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”.
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.
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, 
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
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
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.