Supreme Court

Constitutional Law

Hearing fees unconstitutional when they cause undue hardship to litigant

To obtain trial date in custody dispute, mother undertook to pay court hearing fee. Trial judge reserved decision on mother’s request to relieve her from hearing fee until end of trial. After legal fees, mother could not afford hearing fee. Trial judge invited submissions and interventions on constitutionality of hearing fees. British Columbia branch of Canadian Bar Association (CBA), Trial Lawyers Association of British Columbia and Attorney General of British Columbia intervened. Hearing fees escalate from zero for first three days of trial, to $500 for days four to ten, to $800 for each day over ten. Supreme Court Civil Rules (B.C.), provide exemption for persons “impoverished”. Previous Supreme Court Rules, in place at time this case began, provided exemption for persons “indigent”. Trial judge held that hearing fee provision unconstitutional. Court of Appeal held provision would pass constitutional muster if exemption expanded by reading in words “or in need”. Trial Lawyers and CBA appealed remedy. Province cross-appealed on issue of constitutionality of hearing fee. Appeal allowed; cross-appeal dismissed. Power to levy hearing fees, permissible exercise of Province’s jurisdiction, must be exercised in manner consistent with s. 96 of Constitution Act, 1867, and requirements that flow by necessary implication from s. 96. Measures that prevent people from coming to courts are at odds with historic task of superior courts to resolve disputes and decide questions of private and public law. Hearing fees that deny people access to courts infringe core jurisdiction of superior courts and impermissibly infringe s. 96 which provides constitutional protection for access to justice, which is fundamental to rule of law. Section 92(14) not giving provinces power to administer justice in way that denies access to courts. Hearing fees unconstitutional when they cause undue hardship to litigant. Fees that require litigants who are not impoverished to sacrifice reasonable expenses in order to bring claim may be unconstitutional as causing undue hardship. Hearing fees must be coupled with exemptions that allow judges to waive fees for people unable, by reason of financial situation, to bring non-frivolous or non-vexatious litigation to court. Hearing fee scheme in this case places undue hardship on litigants, impedes access to justice and unconstitutional. Trial judges not having sufficient discretion to exempt litigants in appropriate circumstances. Mother excused from paying hearing fee. Hearing fee scheme declared unconstitutional. “Reading in” to be used sparingly and not applicable; Legislature left to enact new provisions if it chooses to do so.

Vilardell v. Dunham

(Oct. 2, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., and Karakatsanis J., File No. 35315) Decision at 223 A.C.W.S. (3d) 797 was reversed.  244 A.C.W.S. (3d) 327.

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