Case Comment: Trial Lawyers Association of British Columbia v British Columbia (AG)

The recent Supreme Court of Canada [“SCC”] decision in Trial Lawyers Association of British Columbia v. British Columbia (AG)[1] may have far-reaching ramifications for those of us concerned about access to justice, particularly by those people generally described as “middle class”. The SCC found that British Columbia’s court fee provisions were unconstitutional because of their effect of denying some people access to the courts. This post comments on the SCC’s decision, and considers the case’s potential impact for Alberta.

The case  involved British Columbia [“BC”] court hearing fees imposed during a custody battle between two unrepresented people. The applicant was required to undertake to pay the court hearing fees, which ultimately amounted to $3,600 – about equal to the family’s net monthly income. The applicant applied to have the fees waived, the judge invited submissions and interventions, and the debate was on! Fundamentally, the SCC found that the BC court fee provisions were unconstitutional in that they impinged on s. 96 of the Constitution Act, 1867[2] (which protects the core jurisdiction of the superior courts) by denying some people access to the courts. The SCC did state that provinces have the power to impose fees, but only if the fees would not limit access to justice.

The majority decision found that restricting access to the courts infringes on the jurisdiction of superior courts to resolve disputes and decide questions of private and public law.[3] The Court further stated that access to justice is fundamental to the rule of law:[4] in the context of legislation which effectively denies people the right to take their cases to court, concerns about the maintenance of the rule of law are not abstract or theoretical. If people cannot challenge government actions in court, individuals cannot hold the state to account ― the government will be, or be seen to be, above the law. If people cannot bring legitimate issues to court, the creation and maintenance of positive laws will be hampered, as laws will not be given effect and the balance between the state’s power to make and enforce laws and the courts’ responsibility to rule on citizen challenges to them may be skewed.[5]

The BC provisions allowed the court to waive the hearing fees where the paying party was “impoverished.” The SCC found, however, that “providing exemptions only to the truly impoverished may set the access bar too high”[6] and that the ability to exempt people who were “impoverished” or “indigent” did not cover “people of modest means” who could not typically afford such fees.  Of particular note is the court’s comment that requiring litigants to “beg the court to publicly acknowledge” that they are “impoverished” or “indigent”  is  “arguably an affront to dignity and imposes a significant burden on the potential litigant of adducing proof of impoverishment”.[7]   Furthermore, the Court refused to read in the term “in need” (rather than “impoverished”),  commenting that such a requirement would result in an “onerous or undignified process of proving that one falls within the exception.”

Given the severe restrictions on the availability of Legal Aid in Alberta, the issue of  “dignified access to justice” is important here.  It will be interesting to see how this SCC decision impacts Alberta cases, including trial and appeal fees but also cases where criminal defendants are required to publicly plead their indigence before being able to secure counsel for serious criminal charges. A table comparing BC court fees with those in Alberta is found below.

A Comparison of Superior and Appeal Court Fees in BC and Alberta:

This chart is not comprehensive, and does not include Sheriff’s costs, witness fees, transcript costs or fees payable between parties, among others.

Sources: Court of Appeal Rules, BC Reg 297/2001 as am., Appendix C, Schedule 1: Fees Payable to the Crown, accessible here

Supreme Court Civil Rules, BC Reg 168/2009 as am., Appendix C: Fees, Schedule 1: Fees Payable to the Crown, accessible here

Alberta Rules of Court, Alta Reg 124/2010 as am., Schedule B—Court Fees and Witness and Other Allowances, accessible here

[1] Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59. Available here.

[2] The Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3.

[3] At para 32

[4] At para 40.

[5] At para 40,  referencing Christie v British Columbia (Attorney General), 2005 BCCA 631, 262 DLR (4th) 51, at paras 68-9, per Newbury J.A.

[6] At para 46

[7] At para 60