Thursday, October 2, 2014

Supreme Court of Canada declares BC Government's court hearing fees unconstitutional.

The Supreme Court of Canada today declared the BC government's court hearing fee schedule as unconstitutional. Under the government's system, he hearing fees escalated from no fee for the first three days of trial, to five hundred dollars for days four to ten, to eight hundred dollars for each day over ten. Those fees were found by a 6-1 majority to be unconstitutional as they had the potential to deny access to justice.

Rule 20‑5(1) of the Supreme Court Civil Rules provided for an exemption from hearing fees if the court finds that a person is “impoverished”.  The exemption in place at the time of the trial provided that a judge could waive all fees for a person who is “indigent”. However, the Supreme Court found this exemption did not go far enough in protecting access to justice.  Chief Justice McLachlin wrote:

" A hearing fee scheme that does not exempt impoverished people clearly oversteps the constitutional minimum ― as tacitly recognized by the exemption in the B.C. scheme at issue here. But providing exemptions only to the truly impoverished may set the access bar too high.  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."

Interestingly, the Court did not say that the fees offended the Charter of Rights.  Rather, they offended the inherent jurisdiction of the Court to manage it's affairs and had the potential of restricting superior courts (such at the BC Supreme Court) from being able to exercise their inherent jurisdiction.  It seems clear that the Supreme Court of Canada was carefully avoiding extending Charter Rights to individuals with respect to "financial access" to justice.

The Court indicated that the government could legally impose a fee structure, so long as it allowed for exemptions on a broader scale and allowed for judicial discretion to waive the fees.

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