Of the Vilardell Case and a Victory for BC’s Middle Class

The thing about writing for a blog (especially one that commits you to weekly posts) is that often times you can only barely introduce a topic or idea.

And undoubtedly one of the best things about blogs is that cursory introductions are totally fine. Want popcorn commentary on a landmark decision from the country’s highest court? Bam. Here you go.

The Supreme Court of Canada’s October 2, 2014 majority decision regarding the (non) constitutionality of pricey court fees in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, is big news here in BC. I’m a little surprised that we have not yet had a bigger post on Slaw about it. (We have Steve Matthew’s enthusiastic nod in Monday’s Mix, but it is a brief one.)

This is a case worth the full fireworks treatment, and this post is but a sparkler—but I’ll wag it around anyway. The Trial Lawyers Association of BC and the BC Branch of the CBA each issued press releases, which ought to be the bellwether of your own excitement. Both TLABC and CBA BC morphed from interveners in earlier instances to in situ appellants at the SCC, and each participated through the able advocacy of their legal champions, Darrell Roberts, QC, and Chantelle Rajotte, co-champions for TLABC, and Sharon Matthews, QC and Dr. Melina Buckley on behalf of CBA BC. The organizations’ statements capture the essence of what makes this final chapter in the saga of Vilardell v. Dunham, 2012 BCSC 748, so uplifting.

The CBA BC release calls Thursday’s judgment:

• “a landmark decision”
• “a huge win for the public in the fight for Access to Justice”
• “[a ruling that] has far-reaching impact across the country in terms of a resounding statement of the legal principles that support equal access to justice.”

The TLABC release praises the win:

• “a victory for everyday citizens”
• “the result is access to justice is not only for the rich”
• “finally affirms for all Canadians that the courts of this country are a public good and that under the Rule of Law […] access to the courts is for everyone”

I hear exuberance, but I also sense a pressure change in their words, like a vacuum seal breaking. There has been an airless space where grudges have festered during a decade of legal aid decimation in BC—well cataloged in the various grimoires of A2J literature like the Foundation for Change Report of the Public Commission on Legal Aid in British Columbia. Now the oxygen has been let back in. For a long time we saw the reports and heard conference speeches from one chief justice or another decrying the state of legal aid and access to justice. Speeches steeped in earnest empathy, but having little impact. For a long time we have waited for a bold move by the courts.

Last Thursday’s decision was certainly that. Chief Justice McLachlin (who has been outspoken on this exact topic before) penned a majority decision interpreting broadly the necessary implications of s.96 of the Constitution Act to extend to a constitutional mandate to protect access to justice and prevent choking it off through high court fees. We know constitutional protection extends to impoverished people accessing the courts, but now we know it extends to the middle class too. At paragraph 46:

“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.”

This legacy of making courts accessible is quite old. King Henry VII’s law makers enacted a statutory right to counsel—and a waiver for court fees—in 1495. It applied to paupers, of course, but then again there wasn’t really such a thing as a middle class five hundred years ago. In BC, it was about time the embattled middle class caught a break. BC is one of only four jurisdictions in Canada to charge hearing fees, and is by far the most expensive. The first three days are free, but it’s $500 per day for days 4-10, and $800 per day for days after 10. The irony of course is that self represented litigants, many of whom cannot afford lawyers, are frequently the ones who are slowest to progress through their case. They are frequently the ones saddled with hearing fees that amount to more than they earn in an entire month.It will be interesting to see how calculations of undue hardship will be managed, but at least the discretion of the judiciary will have some room to flex.

The TLABC’s postscript to their release notes another indignity that British Columbians with legal troubles have had to manage. Since the 1990s BC has charged PST on professional legal services. Other professional advice from accountants, engineers, etc., is exempt in BC. The TLABC points out that the province garners $145 million annually by taxing legal services, and spends about half that sum on legal aid.