SCC Clarifies Test For Public Interest Standing In British Columbia v. Council Of Canadians With Disabilities

• Published date: 30 June 2022
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Trials & Appeals & Compensation
• Law Firm: Borden Ladner Gervais LLP
• Author: Ms Nadia Effendi, Pierre Gemson, Laura M. Wagner, Neda Foroughian and Joey Ahmadi

Introduction

A recent Supreme Court of Canada decision in a case between British Columbia and the Council of Canadians with Disabilities will remove significant barriers to access to justice.

On June 23, 2022, the Supreme Court of Canada (SCC) released its decision in British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27 (CCD v. BC), which considered the test for public interest standing. BLG acted as agent for the respondent/appellant on cross-appeal, the Council of Canadians with Disabilities (CCD).

Public interest standing is an integral tool that allows individuals and groups to have constitutional cases heard in court when the matter does not impact them personally. It assists in ensuring that issues of public importance can be litigated, even where those directly impacted may not be in a position to commence the litigation themselves.

In a unanimous decision that will benefit those seeking public interest standing, Chief Justice Wagner writing for the Court held 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 Court further held that the CCD should be granted public interest standing in their constitutional challenge of B.C.'s Mental Health Act and its related legislation.

The SCC decision confirms the factors for public interest standing as then-Justice Thomas Cromwell laid out in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 (Downtown Eastside).

The SCC decision emphasized applying these factors in a flexible, generous way, guided by the underlying purposes of standing. Below, we summarize the SCC's key points and possible legal ramifications.

The law before the SCC's decision

In 2016, CCD and two individual plaintiffs filed a Notice of Civil Claim against the Attorney General of British Columbia (AGBC), alleging that the province's use of involuntary psychiatric treatment violates sections 7 and 15(1) of the Charter of Rights and Freedoms. The individual plaintiffs alleged they had been harmed by forced psychiatric treatment. In 2017, both individual plaintiffs withdrew from the litigation, leaving CCD as the only plaintiff. CCD amended its Notice of Civil Claim to replace all factual allegations relating to the two individuals with more general allegations about the harms of forced psychiatric treatment on involuntary patients. CCD pleaded that it should be granted public interest standing and allowed to continue the action.

In response to the CCD's amended Notice of Civil Claim, the AGBC filed a Notice of Application seeking to dismiss the action, asserting that CCD lacked standing on its own. The...