Sentries of Injustice: Fees and Costs

Few people welcome the experience of arguing in court over intensely personal issues. Fewer people would pay a single nickel for the experience. With the very odd exception, ordinary people appear in court because they have no real choice in the matter. A mother fights for the custody of her infant son out of concern for his safety. A factory worker seeks wrongful dismissal damages to pay his mounting bills. A disabled man resists eviction from his subsidized apartment to avoid homelessness. And yet in spite of these common scenarios and the human need to correct actual or perceived injustice, our governments too often treat the courtroom experience as if it were an amusement ride worth a hefty price of admission.

Everywhere in Canada, governments charge a long list of administrative fees for the use of court resources. Depending on who is asked, the fees are either large or small—prohibitive or incidental. But the practical reason for charging such fees is apparent: courts cost money to operate. Governments typically seek to recover their operational expenses by making their court systems as self-sufficient as possible. The obvious strategy is to adopt a “user-pay” model where litigants become consumers charged with covering the cost of their filings, their time in court, and occasionally the litigation costs of their successful opponents. In its crudest form, the popular argument for a user-pay court system runs something like, “I will never need to appear in court, so why should I pay for you to appear in court?”

On the other hand, court fees and costs also serve as financial barriers to the pursuit of frivolous claims and the maintenance of dubious defences. They encourage early settlement of cases and, in many instances, avoidance of the courts altogether. But a real financial barrier to one litigant is just a trivial nuisance to another. And while indigent status protects the most destitute of litigants from spending their last dollars in court, working- and middle-class litigants must contend with the same fee and cost structures as their wealthier counterparts. The relative risks of litigation are much more severe for lower-income litigants, and therefore—all things being otherwise equal—they are less likely to pursue justice through the courts. So what to do about this regressive user-pay system that results in such inequity? Reform it, of course.

Hearing Fees

The issue of how hearing fees (i.e. fees imposed on a party by the government for the use of a courtroom) offend the rule of law by impeding access to the courts was recently considered in Vilardell v. Dunham, 2012 BCSC 748. BC was one of only four Canadian jurisdictions that charged civil hearing fees, and its hearing fees were considerably higher than those charged in Saskatchewan, Yukon, and the Northwest Territories. They started at $312 per day for the first five hearing days, and accelerated as high as $624 per day for every day beyond ten hearing days. The plaintiff in Vilardell— a single mother whose monthly income was about $1,500—amassed $3,600 in hearing fees over several days of trial in a losing battle for primary custody of her daughter.

Justice McEwan noted the large gap between the income level of litigants who are granted fee waivers for being so poor as to be deemed indigent, and the income level of litigants who can afford to $300 to $600 per day to rent a courtroom. Relying on authority stretching back to the Magna Carta, he held that hearing fees impede access to superior courts in violation of s.96 of the Constitution Act, 1867, and wrongly prevent the courts from fulfilling the democratic function of independent and impartial arbiter of disputes among government and individuals. He found that Canada’s superior courts are a common good by constitutional definition:

[429] […] It undermines the fundamental values of democracy, federalism and the rule of law informing the Constitution, elaborated in the case law, and evident in our history, to put a “price on justice” or to purport to re-imagine the courts as “services.”

If left to stand or upheld on appeal, this landmark decision could radically alter how governments are able to assess court fees of all types. Not surprisingly, the BC government is appealing the decision. But to the relief of lower-income litigants, it is neither collecting nor invoicing for hearing fees in the meantime.

Transcription Costs

Another financial barrier to access to our courts arises from the fact that appellants must pay an exorbitant cost for trial transcripts. In order to exercise their right of appeal, appellants must negotiate market rates with private contractors. The average cost of a transcript is just shy of $1,000 per hearing day. If a trial spans several days as it did in Vilardell, the cost of transcripts can reach several thousands of dollars. Lower-income litigants simply cannot afford to pay upward of $10,000 just to meet the evidentiary demands of their case. And in a cruel twist of fate, indigent status will not relieve an appellant from paying the cost of transcripts because it is a third-party expense.

In Pavlis v. HSBC Bank of Canada, 2009 BCCA 450, an indigent appellant challenged the requirement to pay for transcripts on the grounds that it infringed her rights under sections 7 and 15 of the Charter. The Court rejected her section 15 argument on the basis that there is no authority in Canada supporting a general right to access to justice. It rejected her section 7 argument on the basis that neither her life, liberty or security of the person was jeopardized in the context of a civil appeal. The Court did, however, leave open the possibility that transcript costs could be avoided under circumstances meeting the stringent requirements for an advanced or protective costs order. But very few advanced costs orders have ever been granted in Canada, and no protective costs orders have been granted to date.

Given the large financial barriers placed in the path of litigants, is it any wonder that our courts— and justice by extension— are commonly perceived as the preserve of the wealthy? Is it fair for our governments to ask litigants of limited means to look past the luxury cost of legal counsel and the real prospect of paying court-ordered costs, only to find more financial obstacles in the form of hearing fees and transcription costs? The poor do not pay the same amount of taxes as the wealthy in Canada, so why are they expected to pay the same amount in court fees and costs?

The current judicial structures for granting relief from the costs of litigation— on the basis of indigent status, costs orders or otherwise— are obviously insufficient. If our courts are to provide a truly accessible public forum for resolving disputes and testing and enforcing laws, governments need to rethink how they charge litigants for entry and use of our courts. Ordinary people deserve a progressive means-based system for assessing court fees and costs, and more judgments in line with the following statement from Vilardell:

[431] The Court is an essential forum of that common life, and cannot perform its necessary function if it, like so much else, is subject to the values of the marketplace the government has used to justify the fees. Some things cannot be for sale.