Public Interest Standing: The Supreme Court Reaffirms Its Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society Analysis

Published date21 July 2022
Subject MatterLitigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation
Law FirmLanglois Lawyers, LLP
AuthorMr Sean Griffin and Geneviève Claveau

On June 23, 2022, in British Columbia (Attorney General) v. Council of Canadians with Disabilities,1in a unanimous decision written by Chief Justice Wagner, the Supreme Court of Canada reaffirmed the analysis made in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society.2

History

In 2016 the Council of Canadians with Disabilities (CCD), a not-for-profit advocacy organization for persons with disabilities in Canada, and two individual plaintiffs filed a claim before the Supreme Court of British Columbia challenging the constitutionality of provisions in the provincial law that allowed physicians to administer psychiatric treatment to patients with mental disabilities without their consent or the consent of a designated substitute (the "Provisions").3

The two individual plaintiffs withdrew their claim in 2017. CCD applied to the B.C. Supreme Court for "public interest standing" (the right to appear) so it could pursue the constitutional challenge on its own. The Attorney General objected, and the court ruled in his favor.

The Court of Appeal overturned the decision on the ground that the court erred by not putting enough emphasis on the principles of access to justice and legality when applying the analytical framework of Downtown Eastside, and by requiring that the application be based on facts specific to an individual plaintiff. It sent the case back to the B.C. Supreme Court for reconsideration. The Attorney General appealed to the Supreme Court of Canada.

Overview of the appeal to the Supreme Court of Canada

The Supreme Court of Canada granted CCD public interest standing in this case. The appeal was primarily an opportunity for the Court to revisit the framework set out in Downtown Eastside and to determine (1) whether the principles of access to justice and legality should be given greater weight in the analysis and (2) how a party can demonstrate a sufficiently concrete and well-developed factual setting in the absence of an individual co-plaintiff.

Downtown Eastside remains the authority

First, the Court reaffirmed the factors4that must guide the Court in granting public interest standing: (1) whether the case raises a serious justiciable issue (2) whether the party brining the action has a genuine interest in the matter (3) whether the proposed suit is a reasonable and effective means of bringing the case to court.

The Court stated that all three factors must be weighed together "purposively,"5and reiterated...

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