Two more points about the court hearing fees decision of the Supreme Court of Canada, Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) 2014 SCC 59.
The decision creates an asymmetrical principle of access to justice.
The majority held that there is a constitutional right of access to the province’s superior courts.
This right is grounded in section 96 of the 1867 Constitution Act, buttressed by the so-called unwritten principle of the rule of law. Section 96 deals with the appointment of judges to the provincial superior courts. (In our province this is the Supreme Court of British Columbia.) It has no application to provincial courts. Accordingly, while there is a constitutional right of access to the superior courts, there is no such right of access to provincial courts. Litigants who may wish to complain about the difficulty of access to provincial court justice will not be able to rely upon this decision.
Interestingly, there are no hearing fees in provincial court.
And in fact, you can deal with most family law issues in provincial court. Including custody, for example, which was the major issue in the trial in this case. There was a property issue that could only be decided in a superior court, but the issue that took the most time at this trial was a question of custody. There is surely some irony in the fact that the major issue in this case could have been decided in a provincial court where there are no hearing fees.
The $3500 court hearing fee was held to be unconstitutional because, in the words of the majority, “for many litigants [payment of the fee] would require sacrificing reasonable expenses.”
I don’t disagree that litigation is expensive, unbearably so for most people, but it’s not the hearing fee that is the real problem.
Somehow or other, no one thought to ask about lawyer fees. In this case, of course, the litigants were not represented by counsel. What if they had been? Well, it’s not easy to estimate the legal fees for a ten-day trial. But I can make some conservative assumptions. One is that a ten-day trial is the culmination of approximately 30 days of preparation, a three to one factor. Two, that a ten day trial should have a lawyer of some experience, and so I will assume that the lawyer is charging $250 per hour, and only charging for 8 hour days. (In the heat of trial, lawyers often work 10 or 12 hours a day. $250 per hour would buy you a very junior lawyer in downtown Vancouver, but probably would buy you a lawyer of considerable experience in other communities in BC.). Simple arithmetic. The legal fees for one party for a ten-day trial would be $80,000.
So what it is that really restricts access to justice – the $3500 hearing fee or the $80,000 legal bill?
And yes, careful readers will note I left something out. The tax on legal fees. Which, for $80,000 in fees, would be $9600 – GST and PST.
Now you may not like those taxes. But what we know about them is that there was a constitutional challenge to them in a case called Christie. The Supreme Court of Canada dismissed the challenge. As the majority in Trial Lawyers says, “The tax at issue in Christie, on the evidence and arguments adduced, was not shown to have a similar impact.” That is, while the hearing fee “has the potential to bar litigants with legitimate claims from the courts”, the tax did not.
Apparently the $9600 tax is not offensive to the constitution, but the $3500 hearing fee is. Go figure.