Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59
Darrell Roberts, QC and Chantelle Rajotte of the Miller Thomson Vancouver office, argued this pivotal constitutional case, pro bono, on behalf of Trial Lawyers Association of British Columbia (TLABC). Their representation started in 2009 when the TLABC intervened in the case of an unrepresented woman who was a party to child custody dispute with her former common law spouse and who had applied for relief from the hearing fees imposed by the Rules of Court. The hearing fees for the hearing were almost the net monthly income of the family. While the woman could not afford the hearing fees, she did not come within the exemption in place at the time of the trial which provided that a judge could waive all fees for a person who is “indigent”.
The trial judge, Mr. Justice McEwan, invited interventions from interested legal organizations with respect to the constitutionality of the hearing fees and, after hearing submissions from the TLABC and others, ruled that the hearing fee provision was unconstitutional. Upon appeal, the British Columbia Court of Appeal ruling ( Vilardell v. Dunham, 2013 BCCA 65 ) resolved the constitutionality issue by a deemed reading in of the words “or in need” to the exemption. The TLABC appealed the Court of Appeal decision to the Supreme Court of Canada and the Province of British Columbia cross-appealed. The Supreme Court of Canada allowed the appeal and dismissed the cross-appeal.
The decision of the Supreme Court of Canada represents a major victory for access to justice in Canada. The SCC affirmed the declaration of unconstitutionality of the trial judge and held that the hearing fee scheme in BC Supreme Courts places an undue hardship on litigants and impedes the right of British Columbians to bring legitimate cases to court. The Court ruled that the hearing fees prevent access to the courts in a manner inconsistent with s. 96 of the Constitution and the underlying principle of the rule of law, and that this constitutional defect could not be cured by an expansion of the indigency exemption, as held by the BC Court of Appeal. This much anticipated decision of the SCC finally strikes a blow for all Canadians that the courts of this country are a public good and that under the Rule of Law, which defines Canada both constitutionally and democratically, access to the courts is for everyone, not just governments, corporations or wealthy individuals.
This case is a continuation of the pro bono work of Miller Thomson and Darrell Roberts, QC advocating for access to justice. After receiving news of the decision, Darrell Roberts noted: “Today’s decision follows the disappointment in 2006 in the Christie Case. I was counsel for the late Dugald Christie — wherein the SCC overturned the holdings of our trial and appellate courts, which held that the BC Social Services Tax on legal fees was an unlawful impediment to access to justice.”
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