Court of Appeal Releases Decision on Hearing Day Fees

Readers may recall the decision in Vilardell v. Dunham, released in the summer of 2012 and discussed in my post "Court Services Suspends Hearing Day Fees in Supreme Court." In this family law case, which was heard with submissions from the Canadian Bar Association British Columbia and Trial Lawyers Association of British Columbia appearing as intervenors, the trial judge decided that the pricey hearing day fees charged by the Supreme Court were unconstitutional because:

• 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.

Court Services Suspends Hearing Day Fees in Supreme Court

The Law Society advises that the Court Services Branch of the Ministry of Justice — the benighted office responsible for running courts throughout the province — has suspended the processing of payments or issuance of invoices for hearing fees under the Supreme Court Civil Rules and Family Rules.

Hearing days fees are fees charged by the Supreme Court for trials. Under Appendix C, Schedule 1 of the Family Rules, hearing day fees are payable on a tariff which increases with the length of trial:

• nothing for each of the first 3 days;
• $500 per day for the 4th to the 10th days; and,
• $800 per day for 11th day and onwards.

The catch, however, is that the person responsible to pay these fees isn't the party who wins or loses or the person who is awarded their costs, it's the party who sets the action for trial! This can lead to some dickering and brinksmanship about who will wind up setting an action for trial.

The Branch's decision to stop collecting these fees arises out of the court's recent decision in Vilardell v. Dunham, In this case, the claimant had asked the court for an order that she be exempted from paying the hearing fees and, once the trial was done, the court heard her argument on the issue, with submissions by the Canadian Bar Association British Columbia and Trial Lawyers Association of British Columbia as intervenors. At the application, the issue was not whether the claimant could afford the fees (she could, she was a veterinary surgeon), but whether the rules' provisions for the fees were constitutional. This is the relief the claimant sought:

"(b)a declaration that the imposition of fees for the hearing of a trial infringes a right of access to justice and thereby offends the rule of law and is therefore inconsistent with the Canadian Constitution;
"(c) a declaration that the imposition of fees for the hearing of a trial infringes s. 96 of the Constitution Act, 1867 and is therefore unconstitutional;
"(d) a declaration that the imposition of fees for the hearing of a trial infringes s. 7 of the Charter and is not justified under s. 1 of the Charter;
"(e) a declaration that the imposition of fees for the hearing of a trial infringes s. 28 of the Charter by denying women the equal protection of s. 7 which denial is not justified under s. 1 of the Charter;"

I won't recite the court's analysis; it is masterful and deserves a thorough review rather than the hackneyed summary I could provide. At the end of the day, the court held that:

• 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;
• the hearing day fees imposed by the province are a barrier to access to justice; and,
• hearing day fees are unconstitutional.

According to the Law Society, "the Branch has been advised that the ruling is being appealed by government and a decision is pending regarding whether or not to file a motion to apply to the court for an order staying further proceedings." Stay tuned.

As I've said, the judgment is masterful. Here is my favourite passage, from paragraph 425:

"The court cannot fulfill its democratic function as an independent and impartial arbiter between government and the individual, or between individuals, if the government limits those who may come before the court by means of financial or procedural deterrents."