Thanks to Clark Wilson LLP associate and Estate Litigation Practice Group member  Seva Batkin  for bringing to our attention the following issue.

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The high costs of litigation that have been imposed by taxes and increased fees have, over the last several decades, troubled all of those concerned about access to the court system. The  imposition of the  GST and PST on most legal accounts  many years ago,  together with seemingly non-stop escalation of court related  filing fees and court use fees has created what many stakeholders consider a crisis in our justice system.

Various  inquiries set up both by the profession and government have attempted to address this issue. Recent changes to our Rules of Court were were intended to address this issue of affordability and therefore access.  However, governments have been loathe to cut back on fees while still cutting back on services.  Recently a judicial rebuke was issued by  BC Supreme Court Justice  McEwan to this state of affairs.

In a recent judgment  (temporary link here), the Honourable Mr. Justice McEwan declared unconstitutional the hearing fees charged by the B.C. Crown for use of courtrooms for hearings or trials.

In a tour de force 178-page judgment, which considered intervenor submissions from TLABC and CBA BC and took over two years to render, Justice McEwan reviewed the constitutional history of Canadian courts (starting from the Magna Carta), reviewed Charter and other access to justice considerations, and even likened access to the courts with public expectation of free health care. Ultimately, he concluded with the following key lessons for the government:

(1) Access to the s. 96 courts is a fundamental premise of the constitutional arrangement of Canada which cannot be materially hindered by anyone (BCGEU), including either Parliament or the legislatures, just as public and political discourse may not be abrogated by law (Alberta Reference).

(2) The mandate of the province under s. 92(14) is to maintain, that is, to provide adequately for, the courts. It does not include the power to legislate in a manner that impairs the court’s ability to fulfill its proper role in a democracy. This responsibility is of precisely the same importance as the responsibility of governments to maintain the functions of legislatures and the executive branches of government.

(3) Hearing fees are a barrier to access imposed by one branch of government over another. The court cannot fulfill its democratic function as an independent and impartial arbiter between government and the individual, or between individuals, if the government limits those who may come before the court by means of financial or procedural deterrents.

(4) Fees charged by government for services rendered in individual cases, such as filing fees, do not constitute impermissible impediments to access, and as such fall within the legislative ambit of the province under s. 92(14) and its responsibility for the administration of justice. There is no alternative to that kind of assistance, and it is of direct individual benefit. Although the government is not bound to charge such fees on a strict cost recovery basis (see Eurig Estate (SCC), para. 80 herein), the fees charged, given the limited nature of such services, could not “reasonably” rise to a level that are not affordable by all but the truly poor or indigent. To the extent that, for those properly described as indigent, such fees constitute an impediment to access, the exemption is available.

While the actual effect of the judgment is somewhat unclear, since Justice McEwan only struck down the hearing fees under the old Rules, his message is unmistakeable. In another passage of the Judgement he notes:

“The courts exist as a place where questions of value matter, where individual voices can be heard, and where the deficiencies of bureaucratic and systematic modes of thinking may be carefully examined, rather than abetted. Courts cannot be enlisted into “systems thinking” without harm to their functional essence.”

Appeal is surely to follow.