The Supreme Court of Canada recently released its decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) 2014 SCC 59. The majority of the Supreme Court struck down legislation in British Columbia which obliged parties to pay fees to use courtrooms for trials.
The parties in the case were involved in a child custody dispute. The plaintiff brought an action to have the custody issues resolved. In order to get a trial date, she had to undertake in advance to pay a court hearing fee. At the outset of the trial, the plaintiff asked the judge to relieve her from paying the hearing fee. The judge reserved his decision on the request until the end of the trial. The parties were not represented by lawyers and the hearing took 10 days. The hearing fee amounted to $3,6000 – almost the net monthly income of the family. After legal fees had depleted her savings, the plaintiff could not afford to pay the hearing fee. In declaring the legislation unconstitutional the Supreme Court held that these hearing fees infringed upon the plaintiff's constitutional right of access to justice and offended the rule of law.
Writing for the majority of the court, Chief Justice Beverley McLachlin, stated, “As access to justice is fundamental to the rule of law and the rule of law is fostered by the continued existence of the section 96 Courts (Superior Courts of the Provinces) it is only natural that section 96 of the Constitution Act, 1867 provides some degree of constitutional protection for access to justice…when hearing fees deprive litigants of access to the Superior Courts, they infringe the basic right of citizens to bring their cases to court. That point is reached when the hearing fees in question cause undue hardship to the litigant who seeks the adjudication of the Superior Court.”
Justice McLachlin 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 adequate exemptions, be unconstitutional because it subjects litigants to undue hardship, thereby effectively preventing access to the courts. She held that it is the role of the provincial legislatures to devise a constitutionally compliant hearing fee scheme. As a general rule, hearing fees must be coupled with an exemption that allows judges to waive the fees for people who cannot, by reason of their financial situation, bring non‑frivolous or non‑vexatious litigation to court. A hearing fee scheme can include an exemption for the truly impoverished, but the hearing fees must be set at an amount such that anyone who is not impoverished can afford them. Higher fees must be coupled with enough judicial discretion to waive hearing fees in any case where they would effectively prevent access to the courts because they require litigants to forgo reasonable expenses in order to bring claims.