- access to justice is a fundamental constitutional right which may not be abrogated by Parliament or the provincial Legislature;
- the constitutional obligation of the provinces to administer justice does not not include the power to hinder the court's functioning; and,
- the hearing day fees imposed by the province are a barrier to access to justice.
The result was appealed by the Attorney General, and the Court of Appeal has just released its decision in the matter.
In a nutshell, the Court of Appeal has determined that government has a legitimate interest in imposing hearing day fees and other court fees in order to recover some of the expense incurred in maintaining the courts and the apparatus necessary to sustain them. Such fees would be an unconstitutional barrier to justice, however, were it not for the indigency provisions of the Supreme Court Family Rules which allow litigants to apply for an exemption to some of all of these fees. Rule 20-5(1) provides that:
If the court, on application made ... before or after the start of a family law case, finds that a person receives benefits under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act or is otherwise impoverished, the court may order that no fee is payable by the person to the government ...However, this isn't quite good enough. The court observed that:
"In this case, the constitutional inconsistency consists of an under-inclusive exemption from hearing fees, which restricts it to people who would be defined as impoverished. ... An enlarged interpretation of the indigency provision is necessary to uphold the constitutionality of hearing fees and remove a barrier to court access."
In the end, the court held that the with the wording of Rule 20-5(1) tweaked just a bit to include mere need as well as impoverishment, the government may continue to charge hearing day fees:
"The enlarged scope of the exemption in Rule 20-5, then, should be read as saying 'impoverished or in need'. The phrase is intended to cover those who could not meet their everyday expenses if they were required to pay the fees. Courts will continue to use their discretion to determine whether a litigant is impoverished or in need to the point that but for the hearing fees, they would be able to pursue their claim, thus qualifying for an exemption."
Thanks to my colleague Agnes Huang for letting me know that this judgment has been released.