Chipping Away At The A2J Crisis: The SCC’s Decision In Trial Lawyers

It would be forgivable to suffer from "access to justice fatigue" when every day seems to bring a new report or statistic highlighting the crisis afflicting the Canadian legal system. But the Supreme Court of Canada has provided a reason for optimism with its decision in Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59. Chief Justice McLachlin, for the majority, held that British Columbia court hearing fees are unconstitutional because they deprive litigants of effective access to the civil courts.[1]

This decision chips away at the access to justice crisis, and offers litigants and reformers several avenues of argument for future ways to fight it. It also brings to mind R v Salituro, [1991] 3 SCR 654. Both cases share the theme of respecting the proper roles of courts and legislatures.

But another aspect of Salituro sticks out too - the point that the common law develops in an "incremental" nature. Access to justice can only be achieved by following a similar course: One incremental step at a time.

The decision in Trial Lawyers is one of those steps.

What fees were at issue, and why?

The appellants alleged that two sets of BC rules of court were unconstitutional: The Supreme Court Rules, in force when this litigation started, and the Supreme Court Civil Rules, which came into force in 2010 (collectively, "the Rules"). The Rules have the status of subordinate legislation because they were enacted under BC's Court Rules Act.[2]

As Chief Justice McLachlin explained, the current fee structure looks like this:

For the first 3 days of trial: No fee For days 4-10: $500 For each day over 10: $800[3] The Rules permit a judge to exempt a party from payment, if he or she is receiving benefits under certain employment assistance legislation, "or is otherwise impoverished."[4] The scope of "otherwise impoverished" became a central issue in Trial Lawyers.

The case itself originated as a family law matter, with the parties disputing custody and property issues. Both parties were unrepresented at the hearing. The mother, V, who brought the case to court, sought relief from paying the hearing fee that ultimately amounted to $3,600.[5] As McLachlin CJ put it, this was "almost the net monthly income of the family."[6]

The trial judge allowed the Attorney General; the Law Society of British Columbia; and the Canadian Bar Association's BC branch to intervene to make submissions on the constitutionality of the hearing fee scheme, and stayed V's obligation to pay in the meantime.[7] He eventually found the scheme unconstitutional and struck it down. On appeal, the BC Court of Appeal agreed on unconstitutionality, but used the "reading in" remedy so the exemption provision would read, "...is otherwise impoverished or in need."[8]

How are the provisions unconstitutional?

Moving on to the Supreme Court's constitutional analysis, one is struck by the majority's innovative interpretation of the Constitution - particularly when this was not a Charter case, but was instead decided pursuant to the Constitution Act, 1867.

The nuts and bolts of Chief Justice McLachlin's division of powers reasoning were as follows:

Section 92(14) gives the province the authority to charge hearing fees, as part of its power over the administration of justice in the province.[9] But there are two principles of constitutional interpretation that limit this authority: The express provisions of the Constitution must be read together "so that the Constitution operates as an internally consistent harmonious whole."[10] The express provisions "must be consistent not only" with each other, but also "with requirements that "'flow by necessary implication from those terms.'"[11] Applying these principles leads to section 96, which operates as a limit on the province's authority under section 92(14). Section 96 protects "the core jurisdiction of provincial superior courts,"[12] and "therefore restricts the legislative competence of provincial legislatures and Parliament - neither level of government can enact legislation that...