Access to Justice and the hypocrisy of the Supreme Court of Canada

On June 30 the Supreme Court of Canada struck down an attempt by the government of Quebec to raise the monetary jurisdiction of its provincial courts by $15,000 as a violation of Canada’s constitution.  In doing so, the Court made plain that the greatest obstacle to access to justice in our country is neither the policies of governments nor the practices of lawyers, but the country’s superior courts themselves.   

To explain, we need to start with the 1867 Constitution Act, the statute that united the three founding colonies into what became the Dominion of Canada, and continues as a central constitutional document. The framers of the 1867 act were concerned among other things to divide powers between the newly-created federal and provincial governments. In section 96 they provided that the judges of the superior courts in each province would be appointed by the federal government.

 

The historical record is nearly silent on the framers’ rationale for this provision.  Plainly it was intended to ensure that certain judicial appointments were to be given to the federal government, rather than the provinces, thereby ensuring a measure of federal control over the composition of the country’s courts. 

 

Nonetheless, in the intervening years, Canada’s courts have found lurking in the slender words of section 96 some profound constitutional doctrine. And they have regularly used these discovered principles to shut down provincial justice reform.

 

Stripped of its technicalities and self-justifying rhetoric, the legal principle created by the courts is this: whatever superior courts happened to be doing in 1867 is what they must forever do, and no provincial government can alter that. Or to put it another way, the superior courts have said to the country’s provincial legislators, “don’t you dare take our job away from us.”

 

What does this have to do with access to justice?  As anyone who has ever litigated will tell you, superior court litigation is slow, complex and expensive. The rules of civil litigation are intended to achieve fairness by preventing trial by ambush. But superior court process comes with an expensive price tag. The result is that justice in superior courts is for most citizens simply unaffordable.

 

Over time provinces have responded to this reality by creating tribunals that are less formal, without all of the trappings of superior courts. This may take the form of a new tribunal, like BC’s Civil Resolution Tribunal, or expansions to the jurisdiction of provincial courts, which are the successor to the magistrates courts that existed at confederation. These tribunals do exactly what practical access to justice requires: they are (or, when well designed and administered, can be) less formal, faster, more direct, more focused on outcomes rather than process. In short, more citizen-centred.

 

But the superior courts have frequently invoked their enlarged view of section 96 to shut these reforms down.

 

Thus on March 2 of this year the BC Supreme Court relied on section 96 to strike down legislation that would have moved many claims for injury in car crashes to the province’s Civil Resolution Tribunal, part of the BC government’s attempt to bring ICBC’s costs under control by reducing the hundreds of millions of dollars the corporation spends each year on lawyers for plaintiffs and defendants. 

 

Apparently the authors of our constitution had the foresight to decide who would be allowed to adjudicate car crash cases decades before the automobile had been invented.

 

And now the Supreme Court of Canada has ruled in the most recent Quebec Civil Code Reference case that Quebec’s provincial court cannot be given exclusive jurisdiction over civil claims up to $85,000. There is no better illustration of the self-serving nature of the whole exercise than to point out that this litigation was originally initiated by the province’s chief justices themselves.

 

Among the many remarkable features of the majority judgement in this case is the proposition that the so-called “living tree” doctrine, which the courts use whenever they want to justify their evolution of the law does not, somehow, apply here. That apparently the framers intended that every other part of our constitution would be allowed to change with changing circumstances, but not section 96, this obscure appointment provision.

 

And the same Supreme Court which regularly issues pronouncements about the independence of provincial court judges has in this case decided that the fundamental rights of the millions of citizens who litigate in those courts are at risk because provincial courts are not section 96 courts. 

 

Fortunately, there was a dissent. In perhaps her last act as a member of the Supreme Court Justice Rosalie Abella eviscerated the majority judgement. In her words, the “atavistic suggestion that this $15,000 increase adversely affects the very constitutional foundation of superior courts in Quebec, let alone the rule of law and national unity, is neither constitutionally mandated, historically accurate, nor desirable.” 

 

Alas, a dissent is not the law.  And instead the Supreme Court of Canada, whose members frequently speak and write in solemn and self-important terms about the importance of improving access to justice, has rendered a decision that will have entirely the opposite effect.