Breaking Down Barriers: The Test Of Public Interest Standing Clarified

Published date14 July 2022
Subject MatterGovernment, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
Law FirmLerners
AuthorMs Zahra Vaid

On June 23, 2022, the Supreme Court of Canada released its long-awaited decision in British Columbia (Attorney General) v. Council of Canadians with Disabilities, which considered the test for public interest standing. Writing for a unanimous bench, Chief Justice Richard Wagner determined that public interest litigation may proceed without a directly affected plaintiff as long as a concrete and well-developed factual setting can be established

The Supreme Court of Canada's decision confirms the factors for public interest standing as Justice Thomas Cromwell laid down in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 (Downtown Eastside). This is a significant step toward improved access to justice within our legal system and will allow organizations to better serve those it advocates on behalf of, including historically marginalized and disadvantaged members of society.

Background

In September 2016, the Council of Canadians with Disabilities ("CCD") and two individual plaintiffs brought a claim to challenge the constitutional validity of three related statutes in British Columbia, including the Mental Health Act, Health Care (Consent) Act, and the Representation Agreement Act.

The plaintiffs alleged the impugned provisions within the statutes deprived involuntary patients of the right to consent to psychiatric treatment regardless of their actual capability to do so and precluded their substitute decision-makers from making treatment decisions as their representatives, contrary to s. 7 and s. 15 of the Charter.1

After the claim was commenced, the two individual plaintiffs who were directly affected by the impugned provisions filed notices of discontinuance, leaving the CCD as the sole plaintiff. The CCD then filed an amended Notice of Civil Claim to remove all factual allegations relating to the plaintiffs and replaced them with more generalized allegations regarding the nature, administration, and impact of forced psychiatric treatment. The CCD also pled that it should be granted public interest standing.2

The Attorney General of British Columbia brought a summary trial application, seeking to dismiss the claim by arguing that the CCD did not have public interest standing and that the lack of an individual plaintiff was fatal to the CCD's claim, as it could not adduce a sufficient factual basis to resolve the constitutional issues.

The Supreme Court of British Columbia ("BCSC") granted the Attorney General's summary trial application, finding that the CCD failed to satisfy the three-part test for public interest per Downtown Eastside, which...

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