BCSC Rules Hearing Fees Unconsitutional Barrier to Access

On May 22 the B.C. Supreme Court issued an interesting ruling in Vilardell v. Dunham, 2012 BCSC 748, an application that arose out of a family law proceeding. The plaintiff had sought to be relieved of hearing fees, or fees for the use of the courtroom. It is important to note the fees in question were as existed under a version of the Supreme Court Rules that was repealed and replaced in 2009; hearing fees continue to exist (at least to the point of yesterday’s ruling) but are reduced.

The Courthouse Libraries BC prepared an excellent and short summary.

The reasons are very long and I have had only a cursory look. Much, if not most, of the interesting analysis seems to be a result of interventions advanced by the Canadian Bar Association (BC Branch) and the Trial Lawyers Association in support of the applicant, along with that of the Attorney General of BC in support of constitutionality. The constitutional question at issue raised Charter and non-Charter questions.

The Court found the hearing fees to be unconstitutional on the non-Charter grounds. The essence of the issues and its ruling is laid out toward the end of the reasons:

[424] I summarize the submissions as follows:

(1) The TLABC submitted that the hearing fees wrongly impede access to justice, wrongly sell justice, and wrongly impede access to a superior court in violation of s. 96 of the Constitution Act, 1867 thereby interfering with judicial independence.

(2) The CBABC submitted that the hearing fees infringes the right of access to justice and offends the rule of law and is inconsistent with the Constitution. It also submitted that the hearing fees are in violation of s. 7 of the Charter, and that the hearing fees infringe s. 96 of the Constitution Act, 1867.

(4) The AGBC defended on the basis that it submitted that hearing fees were not inconsistent with any constitutionally guaranteed right of access, with s. 96 of the Constitution Act, 1867, or with s. 7 of the Charter.

[425] My conclusions are as follows:

(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) [British Columbia Government Employees’ Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214], including either Parliament or the legislatures, just as public and political discourse may not be abrogated by law (Alberta Reference) [Reference re Alberta Statutes, [1938] S.C.R. 100].

(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. As a constitutional responsibility, the maintenance of the superior courts does not compete with the government’s discretionary expenditures.

(3) Hearing fees are a barrier to access imposed by one branch of government over another. For the reasons I have set out, this creates a constitutionally untenable appearance of hierarchy. 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. [My emphasis.] In this respect, the AGBC’s position that as long as the government does not interfere with the cases the court is permitted to hear judicial independence is respected, is an inappropriately constricted view of the court’s constitutional place. So is the notion that it may tell the public, whose interests may occasionally be adverse to those of government, that for them the courts are a “valued but last resort.” Courts must be available to the public on precisely the same basis as they are available to government: as a place they are free to attend when they seek an authoritative determination of a right or legal position according to law. Going to law is not a form of failure or an act of deemed unreasonableness: it is better understood as an affirmative act of faith in the authority of the law. [My emphasis.]

(5) 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…

(6) The question posed by this case was limited to the constitutionality of hearing fees….To the extent Pleau is applicable to the issue in this case, I have accepted that court’s conclusions, and the distinction it recognized between hearing fees and fees for services….

The Charter question raised section 7:

[419] I have considered whether the plaintiff has satisfied the test for a finding of a breach of section 7 of the Charter. The section reads:
Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the provisions of fundamental justice.

[420] The deprivations claimed are of two kinds:

(1) a deprivation of the plaintiff’s freedom to exercise her democratic input to access the courts on a matter of fundamental interest to her;
(2) a deprivation of security of the person by seriously interfering with the plaintiff psychological security and integrity.

[421] I accept the CBABC’s submission that…a custody hearing engages security interests of the highest order. I also accept the plaintiff’s evidence that the imposition of the hearing fees caused her personal anxiety.

The Court ultimately declined to answer the question because of its ruling on the non-Charter aspect, though it did say this about section 7 and Pleau v. Nova Scotia (Supreme Court Prothonotary) 1998 CanLII 12462, 186 N.S.R. (2d) 1, the existence of which case prompted the Court to invite intervenor submissions:

[422] I do not suggest that a case of this kind could not amount to a breach of s. 7 of the Charter. Nor do I specifically follow Pleau, which dismissed a s. 7 claim on the basis that the deprivation was with respect to access to the courts, and not personal liberty.


  1. Again via Courthouse Libraries BC, I see the CBABC issued a media release on the ruling: Court Ruling a ‘Win’ for Equality and Access to Justice

    An excerpt:

    …“We are delighted that access to the courts has been upheld as a “common good” and that government has been found responsible for ensuring equality of access for all,” said CBABC Past President Stephen McPhee, QC.

    …This is a landmark decision with far-reaching impact across the country in terms of a resounding statement of the legal principles that pertain to equal access to justice.

    “The CBABC views the decision in Vilardell v. Dunham as a welcome confirmation of the right of everyone to equal access to justice. Mr. Justice McEwan has declared hearing fees unconstitutional and in so doing found that the fees, which escalate to over $600 per day, are an impediment to the courts for all but those who are well to do,” said Mr McPhee. “This decision reaffirms that the courts exist for everyone, regardless of their wealth or the size of their case. In the current context of justice reform, the decision is a comprehensive and compelling review of the legal principles that direct how government and the courts must interact to fulfill their constitutional responsibilities.”

  2. Jamie Maclaren

    Thanks for posting on this very important case, Kim. I was pro bono counsel for the plaintiff Vilardell, and I can tell you that the interveners did ALL of the lifting for the determinative constitutional arguments. Sharon Matthews (current CBA-BC Branch President) and Melina Buckley, QC (current Chair of the CBA’s National Access to Justice Committee) represented the intervening CBA-BC Branch, while Darrell Roberts, QC (who was counsel for the respondent in AGBC v. Christie, 2007 SCC 21) represented the intervening Trial Lawyers Association of BC. It was a beautiful collaborative effort– all done pro bono of course.

    The early thinking is that the AG will not hesitate to appeal the decision.

  3. Thank you, Jamie, and congratulations to all on this collaborative pro bono effort. It is an interesting case with thoughtful constitutional arguments. Yes, it will be interesting to watch the continued course of this case – or any legislative amendments that might follow instead.


  4. Does it make sense to say that filing fees are OK but hearing fees are not? Could filing fees now be increased to cover the costs to the system that hearing fees have helped discharge up to now?

    How about legal fees? Presumably they are safe from constitutional attack, though far in excess of the hearing fees in most cases, because they are not imposed by the state.

  5. I would also be interested in the position of the collection of filing fees as they are also a deterent to access to the courts. And what about the courts making you pay exorbinent fees to obtain transcripts with which to make your case?? I would like to approach the court for the cancellation of orders made against me for costs. If I knew about the filing fees and or transcript fees, then I could go on with this.
    Thank you