Supreme Court Of Canada Strikes Down Court Hearing Fees As Unconstitutional

The Supreme Court of Canada struck down the court hearing fees imposed by the province of British Columbia as being unconstitutional because they prevent access to the courts in a manner that is inconsistent with section 96 of the Constitution and the underlying principle of the rule of law.

The Case History

The SCC's October 2, 2014 decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, arose from a family law action in the Supreme Court of British Columbia. The parties were not represented by lawyers, and the trial took 10 days. Under a schedule of hearing fees contained in the BC Supreme Court Civil Rules, the hearing fees would have amounted to $3,600, which the trial judge found was almost the net monthly income of the family.

The Rules in BC impose no fee for the first three days of trial, $500 per day for the fourth through tenth days of trial, and then $800 per day from the eleventh day onwards. The Rules also contain an exemption from paying the hearing fees if the court finds that a person is "impoverished" (or, in the words of the former rules that were in place during the trial at issue, "indigent").

The trial judge held that the hearing fee provision was unconstitutional. The Court of Appeal agreed, but held as a matter of remedy that the provision could be saved by reading in the words "or in need" to the exemption provision.

The Majority Judgment

A majority of the SCC held that the hearing fee scheme should be struck down as unconstitutional and that the legislature should be left to enact new provisions, should they choose to do so. The court accordingly allowed the Trial Lawyers Association's appeal with respect to the remedy and dismissed the Attorney General's cross appeal on the finding of unconstitutionality.

The majority held that, while the province has the jurisdiction to establish hearing fees under its powers to administer justice pursuant to section 92(14) of the Constitution, 1867 it could not exercise that power in a way that violates section 96 of the Constitution, which protects the core jurisdiction of the superior courts. In the majority's view, hearing fees that deny people access to the courts infringe on the core jurisdiction of the superior courts that is protected by section 96. The example of the litigants in the family law case before the court illustrated the adverse effect of the fees in practice. Like the trial judge, the majority found that...