Recent Developments

Darrell Roberts, QC of the Vancouver office of Miller Thomson acted on a pro bono basis for the Trial Lawyers Association of B.C. in the landmark case, Vilardell v. Dunham 2012 BCSC 748 in which B.C. Supreme Court Justice Mark McEwan, on May 22, 2012, struck down British Columbia’s civil court hearing fees as unconstitutional.  The court fees regulation charged litigants $500 per day starting on the fourth day of trial and $800 per day after the tenth day.  The case is described by the Canadian Bar Association as “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”.

This landmark decision arose out of a typical family law custody trial in 2010 in which both parties were unrepresented.  At the conclusion of the matter, the plaintiff asked Justice McEwan to waive the $3,600 that she owed under the court fees regulation.  Justice McEwan requested legal professional organizations in British Columbia to consider whether they wished to assist the court with submissions on the constitutionality of the hearing fees.  Miller Thomson LLP and Darrel Roberts, QC agreed to represent the Trial Lawyers Association of British Columbia on a pro bono basis.

Mr. Roberts argued that the hearing fees wrongly impede access to justice; that they wrongly sell justice; and that they wrongly impede access to a provincial superior court in violation of s. 96 of the Constitution Act and thereby interfere with the independence of the court.  These submissions followed up on the arguments raised by Mr. Roberts in a previous pro bono case on constitutional issues relating to access to justice which went to the Supreme Court of Canada (British Columbia (Attorney General) v. Christie, [2007] 1 S.C.R. 873).

In Vilardell, Mr. Roberts argued that access to a court of law, in particular to the superior courts of the province, is central to the functioning of the rule of law in Canada and a fundamental right under the Constitution.  By imposing hearing fees upon litigants, the province of British Columbia treated access to justice as just another service or privilege for which the user must pay.

The Court held that the hearing fees are not discretionary expenditures.  Rather, they are manifestly fixed at a level that is intended to deter use of the courts, within a broader scheme having the objective of minimizing the cost to government of maintaining the court system.  The Court accepted the argument advanced by Mr. Roberts and the other intervenors that access to the superior courts is a foundational premise of the constitutional arrangement of Canada which cannot be materially hindered by anyone, including Parliament or the legislatures.

The Vilardell case is not the only pro bono case currently being advanced by Darrell Roberts, QC and the Vancouver office of Miller Thomson.  Mr. Roberts is currently appearing before the Missing Women Commission of Inquiry representing the family of a woman murdered by Robert William Pickton.