IN LAST WEEK’S ARTICLE I mentioned the Canadian case of Trial Lawyers Association of British Columbia v British Columbia (Attorney General) (2014), a decision of the Supreme Court. It concerned the constitutionality of hearing fees charged by legislation in the Province of British Columbia for hearings in the superior courts whose jurisdiction is protected by the Constitutional Act, 1867.
In the above case the plaintiff in a family dispute was charged hearing fees of $3 600, which were almost equivalent to the net monthly income of the family. She was, therefore, unable to pay the fees and meet her ordinary monthly expenses.
Under the fee regime, the fees escalate over the course of a trial. The first three days are free but for days four to ten, $500 is required and $800 for each day over that time.
Neither party was represented at the trial and the hearing took over ten days.
The trial judge found that even though the plaintiff could not afford the hearing fees, she did not come within the exemption in place at the time, which permitted a judge to waive all fees for a person who was “indigent”.
Unconstitutional
The issue that arose was whether the imposition of the fee was unconstitutional. The Supreme Court of Canada considered this issue and decided by a majority of six to one that the legislation was unconstitutional.
The headnote of the case explains the basisof the court’s decision. It reads in part:
“Hearing fees are unconstitutional when they deprive litigants of access to the superior courts. That point is reached when the hearing fees in question cause undue hardship to the litigant who seeks the adjudication of the superior court.
A hearing fee scheme that does not exempt impoverished people clearly oversteps the constitutional minimum. But providing exemptions only to the truly impoverished may set the access bar too high.
Undue hardship
“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.
“It is the role of the provincial legislatures to devise a constitutionally compliant hearing fee scheme. But as a general rule, hearing fees must be coupled with an exemption that allows judges to waive the fees for people who cannot, by reason of their financial situation, bring non-frivolous or non-vexatious litigation to court.
Hearing fee scheme
A hearing fee scheme can include an exemption for the truly impoverished, but the hearing fees must be set at an amount such that anyone who is not impoverished can afford them.
“Higher fees must be coupled with enough judicial discretion to waive hearing fees in any case where they would effectively prevent access to the courts because they require litigants to forgo reasonable expenses in order to bring claims.
“The hearing fee scheme at issue in this case places an undue hardship on litigants and impedes the right of British Columbians to bring legitimate cases to court and is unconstitutional. The current exemptions do not provide sufficient discretion to the trial judge to exempt litigants from having to pay hearing fees in appropriate circumstances.”
Although the constitutional arrangements in Canada are not identical to ours, the right of access to justice is an important aspect of the rule of law. Care must be taken when increasing fees or introducing fees that discretion is given to the court to waive those fees where they are judged to be an impediment to some persons accessing the courts on account of lack of financial means.
Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to cnmcc@caribsurf.com