Monday, 16 July 2012

Access to the courts and the constitution: a few comments on Vilardell v. Dunham


It started as a custody battle, a fight between a mother and a father over where to raise their five-year old child.  But Vilardell v. Dunham, 2012 BCSC 748 will be remembered as the court hearing fees case.  It holds that government cannot exercise its constitutional power over the administration of justice to pass laws that have the effect of directly inhibiting access to the courts.  Court hearing fees, charged by government to help offset the cost of operating the court system, are a barrier to access to justice, and are therefore unlawful. 

The reasons are 178 pages.  They took Justice McEwan of the BC Supreme Court two years to write.  The decision has already been appealed. For the time being, the collection of hearing fees has been suspended and, as one might expect, a lawyer has already started a class action lawsuit to seek recovery of the millions of dollars that have - if this decision is upheld - been wrongly collected over the years.

Justice McEwan’s decision is obviously the product of long and deep thought about the role of courts in our democracy, and the importance to our system of government of access to justice.  It is nothing like a typical trial judgment, where a judge finds the facts and then applies the established law to decide the outcome.  In this case, there was no straightforward legal rule preventing governments from charging hearing fees in civil litigation.  In fact, fees have always been charged to litigants in BC courts, and the tradition of charging fees dates back in English legal history (the source of our common law) to the 13th century.  To answer this history, the judge proceeds by analogy, from what he calls “relatively sparse” constitutional and legislative texts.  He reasons that judges and courts have long been law-makers, not just law interpreters, and that adjudication in court is an aspect of “the fundamental constitutional principle of democracy.” In the end he decides there is support in the Constitution, both in its text and in its underlying principles, for his conclusion (at para. 386) that “the government of British Columbia cannot pass laws that directly inhibit access to the courts.”

The result has been widely cheered by those who see it as a victory for access to justice.

In some respects it is a case study of the old legal maxim that “hard cases make bad law.”  Government’s arguments in support of its right to charge hearing fees clearly angered the judge.  Near the end of his reasons he expresses his “serious concern that the Attorney General has come to this Court with a submission that appears so dismissive of [the] fundamental aspects of our system of government.” (para. 426)

But the question ultimately is not whether the Attorney General had a good argument, but whether as a matter of the basic law of our nation, government is prevented from charging hearing fees to litigants in civil cases in the superior courts.  Put another way, it is not whether, as a matter of policy, government ought to charge hearing fees, but rather whether, as a matter of law, it has the authority to do so. 

What follows does not pretend to be a comprehensive analysis.  It’s just a blog posting.  At the heart of the judge’s decision is a reasoned view about the importance of courts to democracy that warrants serious scrutiny.  I think that the decision is “a bridge too far”; it overreaches in its conception of the limits on the power of government to discharge its constitutional responsibilities in respect of the administration of justice.  But whether I am right or wrong about that, the judgment deserves to be read.  At the very least, it may be the only judicial decision in Canada this year where you will read extracts from US political philosophers (such as Michael Sandel’s new book What Money Can’t Buy: The Moral Limits of Markets), alongside the Magna Carta, passages from British legal histories, legal aid reports done for the Canadian Bar Association, and justice reform studies.

The facts and the fees

The parties to the case were parents of a five-year old daughter.  The mother wished to live in Spain, while the defendant wished to live in British Columbia. They were never married, but regarded themselves as separated. As the trial judge held, “They communicate by e-mail. The situation is untenable, and the essential question is whether the plaintiff may leave British Columbia to live elsewhere with her daughter.”  They were living on the father’s income as a UBC instructor, where he made about $74,000 per year.

There was also an issue about interests in a home registered solely in the name of the father, but lived in by both parents.

The parties were not represented by lawyers at the trial, which took ten days.  At the time of the trial, the hearing fees charged by government for civil trials in BC Supreme Court followed a sliding scale in which the rate per day increased with the length of trial.  The hearing fees for the ten day trial amounted to $3600. This did not include additional amounts that would have been paid for filing fees.

It is possible for litigants to apply to be relieved from the obligation to pay fees on the basis of indigency.  Although eventually there was such an application in this case, the decision turned on the question of principle, namely whether, even with a recognized indigency exception, the requirement to pay fees infringes the right of access to justice guaranteed under the Constitution.

The decision

The legal analysis is extensive, to say the least.  Arguments were made by the Attorney General, the Canadian Bar Association, and the Trial Lawyers Association of BC.  It is important to point out that the starting point for the inquiry was a Nova Scotia case called Pleau (1998), 443 C.P.C, 4th 201, where the court held that reasonable fees for services in initiating and continuing litigation were valid as long as they were not so high as to “impede, impair or hinder” access to the courts, but that certain proposed hearing and jury fees were unconstitutional.  The court held that even a modest hearing fee would be unacceptable because its effect would be to put a “price on accessing the courts,” that is, a price on justice.   A subsequent Ontario case called Polewsky (2003), 229 DLR (4th) expressed a more restrictive view, but as far as Justice McEwan was concerned, these and other cases made it necessary to consider the constitutionality of hearing fees in B.C.

Justice McEwan’s decision is founded in large part on an extensive analysis of what courts call the “unwritten” principles of our constitution.  These are the foundational, underlying principles that are invoked to help interpret the constitution’s written provisions.  In a very few cases, these principles have also been relied upon as sources of substantive law.  The principles include federalism, democracy, constitutionalism and the rule of law, and respect for minority rights. 

Justice McEwan holds that adjudication in court is an aspect of the fundamental constitutional principle of democracy.   In his view, just as “it is beyond the competence of either legislative body to pass laws that inhibit the free right of discussion or debate essential to democratic governance,” so, too, the activity of the courts is a core function of democracy, and courts “cannot fulfill that function in a democratic state if they are not a forum to which all individuals may turn for the determination or enforcement or elaboration of their rights.” 

He poses (at para. 354) the question whether the provincial jurisdiction under s. 92(14) of the Constitution Act, 1867 to legislate “in relation to the administration of justice in the province, including the constitution, maintenance and organization of provincial courts… and including procedure in civil matters in those courts,” includes the right to legislate fees “of any nature in any amount,” or whether there are limitations on this authority. In his view there are such limits.  The right to access to the courts, he says, must “stand outside and beyond the competence of either Parliament or the legislature to inhibit or abrogate.” 

The provincial authority under s. 92(14) is therefore, according to the judge, a fundamental obligation to maintain the courts at a level adequate to their constitutional purpose, not the authority to inhibit it. 

He concludes that “the government of British Columbia cannot pass laws that directly inhibit access to the courts.”

This was not a Charter case

Although the Charter of Rights and Freedoms was argued, the judge did not rely on it.  One reason why this is important is that in Charter cases, the usual framework of analysis is first to decide whether the governmental action breaches a specific Charter right, and then to consider whether the breach can be “saved” by a section 1 analysis, in which the question whether the breach can be “demonstrably justified in a free and democratic society” must be considered.   This is a balancing exercise, in which Charter values are weighed against other imperatives.

That balancing exercise is not required where, as here, the fundamental question is the meaning of a division of powers provision, namely s. 92(14). 

As a result, the decision here is all or nothing.  The court does not hold that the hearing fees are too high.   On the court’s reasoning, hearing fees at any amount are impermissible. 

There is a great deal of evidence and discussion about fee levels, and whether the fees charged cover some or all of the cost of operating the court system.  This appears to have been invited by some passages in previous access to justice cases where courts have suggested that the question whether a potential impediment to justice – say, for example, the tax on legal services – limited access to justice was a fact to be proven on evidence.  But the court in this case ultimately does not need this evidence.  In Justice McEwan’s view hearing fees are impermissible as a matter of principle, because they purport to limit access, whether or not they actually have that effect.

The judgment hangs by a narrow thread

The modern history of “access to justice” as an enforceable legal principle starts with a BC case that arose out of the BCGEU blockade of the Vancouver Law Courts in November 1983.  The Supreme Court of Canada held in that case [1988] 2 SCR 214 that the principle of access to justice – specifically of access to the courts – could support an injunction granted by the BC Supreme Court on its own motion to stop the picketing.  There, “access to justice” meant, literally and physically, the right of a citizen to enter a court. 

The principle has been discussed and applied in later cases.  In this case Justice McEwan relies extensively on the reasons for judgment of Madam Justice Newbury of the BC Court of Appeal in a case called Christie, 2005 BCCA 631.  Justice Newbury wrote for the majority in a 3:2 split decision holding that the 7% provincial sales tax on legal services (this was pre-HST) was unlawful because it violated what she called the “fundamental constitutional right to access to justice”. 

In 2007 the Supreme Court of Canada unanimously overturned the BC Court of Appeal’s decision (2007 SCC 21) and upheld the constitutionality of the 7% tax.  It is difficult to read the Supreme Court’s decision as anything other than a rejection of the majority decision - and the reasoning - of the Court of Appeal.  As the Supreme Court of Canada wrote (at para. 17):

The legislature has the power to pass laws in relation to the administration of justice in the province under s. 92(14) of the Constitution Act, 1867. This implies the power of the province to impose at least some conditions on how and when people have a right to access the courts.

This is a very clear statement that the province has the power to impose “at least some conditions” on the right of access to the courts.  As we have seen, Justice McEwan holds that any “material infringement” (para. 378) on access to the courts lies outside provincial competence, which, put another way, is the same as saying there can be no conditions on the right of access.  I suggest it is difficult, if not impossible, to square that circle.  It appears to me that Justice McEwan, rather than follow Christie, as he is required to do, has turned the decision on its head, but that is a question that the BC Court of Appeal (and perhaps ultimately the Supreme Court of Canada) will have to decide when it hears Vilardell.

How broad is the principle of enforceable access to justice?

The heart of the judgment is paragraph 386, where the judge states the governing legal principle in these terms:

I conclude therefore, that the government of British Columbia cannot pass laws that directly inhibit access to the courts. 

The judge then applies this principle to what he describes as the specific question “whether the hearing fees charged by the government constitute such a form of inhibition or interference with access.” We know his answer to that question.

This principle is very clear, but it is also very broad.  How might it be applied to other situations?  Here are three examples:

1.      Could government close a courthouse? 

It is certainly arguable that closing a courthouse directly inhibits access to justice at least for the residents of the community served by that courthouse.  Would this statement of principle prevent government from closing a courthouse even in circumstances where the courthouse was being used only a dozen or so days a year for hearings?  I note that the principle does not acknowledge that some limits might be acceptable; there is no balancing mechanism; the government simply cannot pass laws which directly inhibit access to the courts.  Perhaps it could be said that a budget decision to close a courthouse is not a “law” within the meaning of the principle?  I doubt it.  The focus of the principle is not on government’s legislative authority but its general powers, and as we have seen the court’s view is that government’s constitutional authority requires it to maintain, not inhibit, access to the courts.


2.      What about the myriad of legislation in which government prescribes mechanisms other than courts for the enforcement of legal rights? 

For example, the question whether someone is a worker lies within the exclusive jurisdiction of the Workers Compensation Board.  The right to bargain collectively is enforced by the Labour Relations Board.  Residential tenancy issues are decided by arbitrators.  A process enacted by the legislature this past spring creates a new dispute resolution mechanism for strata property disputes.

In all these contexts, legal disputes arise, and yet the parties to those disputes cannot take them directly to the courts.   The decisions of these tribunals and agencies can, in some limited circumstances be judicially reviewed.  But there is no doubt that the legislature has, by law, directly inhibited access to the courts for the purpose of adjudicating legal disputes.

3.       Does government have the power to decide how many provincial court judges to appoint?

The Provincial Court Act says that the provincial Cabinet may appoint as many judges as the Cabinet “considers necessary”.  If that number – through retirement or other attrition – fell too low, could the court compel the government to appoint more judges in order not to inhibit access to justice?

What all these examples have in common is that government has been routinely making these decisions throughout our history.  And yet, the province has also been charging court hearing fees throughout our history.  If indeed the province’s authority under section 92(14) of the 1867 Constitution is not a power to administer justice, but rather, as Justice McEwan holds, an obligation to maintain access to the courts, are there not a host of potential legal challenges now available?

Courts as a forum of last resort

As we have seen, Justice McEwan holds that the activity of the courts is “a core function of democracy.” In his words, “courts cannot fulfill that function in a democratic state if they are not a forum to which all individuals may turn for the determination or enforcement or elaboration of their rights.”

This approach to the role of the courts, which sees a courtroom as a place where democracy is made, colours the judge’s views with respect to other forms of dispute resolution.  He is particularly unhappy with the evident desire of government to encourage other forms of dispute resolution and to see the courts as the forum of “valued, but last resort.”  He quotes with evident disapproval from a presentation of government’s model of the justice system.  Here is the passage:

[314]     These notions are explicit in the model recently developed by Court Services in British Columbia, which is packaged as a power point and shown to court staff throughout the province:

The justice system can be viewed as a funnel with a large number of rights-based civil, commercial and family disputes at the top of the funnel. These disputes need access to the system because the parties cannot resolve these disputes without help and the cost, delays and complexity associated with traditional litigation processes represent a significant barrier within BC’s justice system. However, because the court is the most expensive option for both parties and the province, MAG’s [Ministry of the Attorney General’s] strategy for the last 15 years has been to make the courtroom a valued but last resort by means of the following policies:

a)    To prevent disputes from arising wherever possible;

b)    When they do arise, to start managing them as early as possible (because the more time passes the more the entrenchment of the parties and the procedural complexity of the process grows);

c)     To provide assistance to parties in forms ranging from self help centers to advice and settlement services;

d)    To divert as many cases as possible to informal, less expensive out-of-court resolution processes like mediation in the private sector;

e)    Where cases cannot be diverted from the court process, to divert parties to informal judicial settlement conferences and judicial mediation;

f)     To expedite cases destined for trial and minimize their draw on resources through active case management and by streamlining litigation procedures.

[Emphasis added by the trial judge.]

[315]     It is obvious that, in context, the present regime of hearing fees is part of a larger, more significant shift in the way the courts are viewed by the branch of government that is obliged to finance them. Support for the civil courts is not seen as a cost of good government but as a discretionary expense to be minimized, amateurized (no legal aid), or privatized, wherever possible. This raises a serious question about whether our constitutional arrangements are so ill-defined that the role of the judiciary is contingent on the role the other branches imagine for it.

There is a serious question here about the role of the courts which is distorted by the judge’s failure to explain the government’s view either correctly or fairly.  The judge ignores government’s concern for the cost of litigation to litigants and focuses only on government’s desire to reduce its own expenditures.  The judge repeats this error on several occasions in the latter part of his reasons (see, for example, paragraphs 398 and 410.).  It is as though government’s concern for cost is somehow illegitimate or tawdry.  The judge here falls victim to the classic error of drawing a bright line distinction between between government and the citizens who pay for it.  According to this view, it’s government that is paying, not us. (The judge’s perspective on this issue is made even clearer in his discussion about whether courts are a “service” or “arm” of government, as though that distinction should immunize from scrutiny an expenditure of public resources on the basis that it is one category of expenditure rather than another.) 

Perhaps more importantly, the judge apparently sees the Court Services Branch “ladder” as motivated entirely by expenditure considerations, intended to ration access to the courts, whereas I would argue that the ladder recognizes some more profound truths, namely that encouraging people to take ownership for and solve their own problems, managing disputes so as to contain rather than enlarge them, looking for pathways to limit the issues that truly need to be litigated, and more, are all actually much better ways of dealing with most legal disputes than a court trial.  What we know about court processes is this: they are slow, complicated and expensive, emotionally stressful, and fraught with uncertainty.  Our system of adjudication is founded on the adversarial model of dispute resolution, which is essentially a form of civilized warfare by word, and while it is a system of long lineage, its attributes are increasingly being challenged by those who believe, for good reason, that there are many better ways of achieving justice other than by a courtroom trial. 

The ladder of options which the judge finds so distasteful is not an attempt to limit access to the courts, but rather to recognize that while courts are necessary, courts are not necessarily the best tool in all cases for legal dispute resolution.  The idea of courts as a “valued but last resort” does not strike me as undermining the important role that courts can play in democracy, but simply recognizes that there are limits to that role.

Courts should not be immune from efficiency considerations.

The judge is particularly upset by a government submission about the rationale for hearing fees.  Government said this: (para. 309)

The primary purpose [of the increase in the fee as the number of trial days increase] is evident on the face of the enactment. Construing the enactment, it is to provide an incentive for efficient use of court time and a disincentive for lengthy and inefficient trials.

The judge describes this as “rationing court time.”  This is not, in fact, what the government was saying.  The number of court hours is already limited - there are only so many judges, so many courtrooms, and so many hours available for court hearing.  The fees don’t change that; rather the fees are aimed at the litigants, and are intended to incent litigants to use as little of that court time as is necessary.

The judge commits the same error in the very next paragraph when he says (at para. 310) that government “assumes the right to influence the availability of the court by manipulating fees.”  Again, hearing fees have no relationship to the availability of the court.  The court will be there, with or without the fees.  The question is whether litigants will choose to use the courts, and that is what the fees are aimed at.

But what really troubles the judge about these submissions is the suggestion that court efficiency is a legitimate concern of government.  As he says at para. 425, “The AGBC’s anxious concern for trial efficiency is misplaced.” Here again, with respect, I completely disagree.  Courts cost money.  Whether that money comes from taxpayers or feepayers or some combination of the two, its expenditure cannot be immune from public scrutiny or accountability.  Calling something an arm of government, as opposed to a service, does not mean that the public is no longer entitled to care about how much it costs, or whether it is operating effectively and efficiently.  This is not about inappropriately applying market or business analyses to the work of the justice system.  It’s just about making sure that the public officials who take our money use it wisely. 

It might be different if money were not involved.  Then we could have an interesting discussion about the important values that a justice system exists to protect without having to worry about how to pay for it.  But so long as the justice system is not free, it is not just legitimate but critically important to ensure that its resources are well-spent, and in that context, questions of efficiency are absolutely appropriate.  This is particularly so, given the enormous burden of cost, delay and complexity placed on litigants.  Government, which is ultimately responsible for all public expenditure, ought not simply to want efficiency just for the sake of the fiscal bottom line.  Government ought also to contribute in whatever way it can to the design of mechanisms and processes that will improve efficiency for the purpose of maintaining public confidence in the administration of justice.  In that sense, in my view, the purpose of section 92(14) of the 1867 Constitution Act is not to exclude government from the work of advancing the goal of fair, affordable, effective, reliable and efficient administration of justice, but instead to make government – the provincial government –responsible for all those goals.

Plainly Justice McEwan disapproves of the forms of discourse which speak of citizens and litigants as “users” of the “services” of a justice “system.”  It is in this context that he quotes from Michael Sandel’s lament for the “marketization of everything”.  (quoted at para 430).  While we would all surely agree that “some things cannot be for sale,” the notion that a court hearing fee is “justice for sale”, though rhetorically lovely, lacks substance.  A hearing fee is just that.  No one is trying to sell justice.  But a public system that is very expensive to run and susceptible to abuse by those who are prepared to use its inefficiency as a lever to extract advantage ought to be concerned to look for ways ensuring that its resources are used only to the extent needed.  That’s not selling something, it’s managing it.  And it’s not commodifying justice; it’s an acknowledgement that there is a considerable cost associated with operating the labour-intensive, complex, tradition-laden, public facility known as a courtroom, and that asking the litigants who seek and need justice to pay something for that – to allocate the cost among the public and litigants – is not a violation of our fundamental constitutional rights and obligations.

A last word about the facts of this case

The points I am making here are not merely theoretical.  They all have practical application in the context of the very case we are discussing.

  1. Courts as a “valued but last resort”. 

For all the high-minded constitutional analysis, this was a custody dispute, a private fight between a mother and a father.  This was not a transactional dispute between two commercial parties who will never see each other again.  It was a relational dispute between two parties who, whatever the outcome, will share responsibility for child-rearing for a generation.  Courtrooms are not good places to build strong, durable families.  They are filled with (expensive) legal professionals, who argue, sometimes quite stridently, about the facts and the law.  They challenge, belittle and intimidate witnesses, all in the name of discerning a particular kind of truth.  Fundamentally, the issue in this case was about where to raise a child.  Throwing legal rights and entitlements into that mix is, I recognize, something we have gotten used to, but it’s surely an inadequate substitute for responsible decision-making by two people who have brought a child into the world.  Legislatures have done a lot to try to ensure a fair balance in the distribution of parental (and child) rights and responsibilities, but there’s not much evidence that nasty custody fights make for better child-rearing. 

The idea that government should be able to set court hearing fees at a level that would cause potential litigants to think carefully before going to court does not immediately strike me as problematic, particularly in the context of the facts of this case. 

  1. The efficiency question.

The judge holds at para. 425 “Courts of inherent jurisdiction are equipped with all the tools they need to manage trial and to deter time wasting, and they use them.”  I respectfully disagree.  The facts of this case are sufficient for me to make my point.

There is no good reason why this case should have taken more than two days.  Half a day for each of the parents to explain the circumstances, and a second day for them to argue about their claim.  Instead it took ten.  I realize that a battery of lawyers will now line up and explain why I am wrong.  Go ahead.  My conviction is simply this: until such time as judges and lawyers (and legislators) find a way to sort out issues like those in this relatively simple case in a reasonable time, and with reasonable expense (and with great respect, it is mainly the lawyers and judges who make things slow, inefficient and expensive), the public will continue to lose confidence in the justice system and do everything they can to avoid going to court.

If the prospect of paying $3600 in hearing fees might cause a reasonable person to figure out how to run this case in two days instead of ten, could we not reasonably contend that justice has in fact been advanced, not impeded?

A last thought

In the final analysis it seems unlikely that the appeal courts will agree that our constitution is so structured that any court hearing fee – at any level - is an impermissible barrier to justice.  The law is already clear (as Justice McEwan acknowledges) that court filing fees, at least if set at a level which bears some relationship to the cost of doing the work associated with maintaining a court registry, are permissible, and I am not strongly drawn to the proposition – on which this decision depends – that a hearing fee and a filing fee are qualitatively so different from each other as to lend to completely different analyses.  And while our legal system is designed to encourage looking at an old problem in a new way, with different results, it seems a bold leap to have discovered only for the first time in May 2012 that the constitution of Canada has never permitted governments to charge court hearing fees.  But for all of that, this complex and challenging decision has reminded us of the unique role and importance of courts in the panorama of our democracy, and has thereby made a valuable contribution to our jurisprudence.

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