Supreme Court of Canada declares court hearing fees a barrier to justice

The Supreme Court of Canada has ruled unconstitutional legislation that imposes court hearing fees. Chief Justice McLachlan delivered the judgment on 2 October 2014, finding that the fees were unconstitutional because they were causing “undue hardship” on ordinary people and denying them access to the courts.

The applicants in the current case, Trial Lawyers Association of British Columbia v British Columbia (Attorney General), challenged the hearing fees on the grounds of rule of law and access to an independent judiciary. A family law case originally sparked the examination of the constitutionality of the court hearing fees. By the end of the ten-day custody proceedings, the hearing fee amounted to $3,600 outside of all other legal costs, which was the equivalent to one month of the net family income. The fee was challenged, and the trial judge invited submissions and intervention from external parties, including the Canada Bar Association, the Trial Lawyers Association of British Columbia and the Attorney General of British Columbia.

The legislative basis for the fees is the Supreme Court Rules and the updated Supreme Court Civil Rules of British Columbia, wherein the fees escalate from no fee for the first three days of trial, to five hundred dollars for days four through ten, to eight hundred dollars for each day over ten. The rules also provide for an exemption from fees where the person was ‘impoverished’ or ‘indigent’.

The court held that the fees impermissibly infringe upon the jurisdiction of the superior courts, as protected by the constitution, by, in effect, “denying some people access to the courts”. Allowing an exemption for “truly impoverished” litigants satisfied the basic minimum requirements, but having only that exemption would set the bar too high for many other litigants and impede their right to bring legitimate cases to the court. In the current scheme, there is insufficient discretion for trial judges to exempt litigants from paying hearing fees. The Court held that “a fee that is so high that it requires litigants who are not impoverished to sacrifice reasonable expenses in order to bring a claim may, absent inadequate exemptions, be unconstitutional because it subjects litigants to undue hardship, thereby effectively preventing access to the courts.”

Click here to read the full judgment.

Click here to read an article from the Vancouver Sun. 

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