Access to justice: two steps backward

Today in a case called Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, the Supreme Court of Canada struck down the court hearing fees imposed by the BC government for Supreme Court civil cases.  According to the court the fee scheme is unconstitutional because it places “an undue hardship on litigants and impedes the right of British Columbians to bring legitimate cases to court.”

Many have already applauded the decision as a victory for access to justice.  Certainly, the Supreme Court intends by its ruling to make access to courts more affordable. And not just for the truly impoverished, but for anyone who would have to “sacrifice reasonable expenses” to bring a claim.

That is the court’s intent.  But it is not what will happen.  This decision, intended to improve access to justice, will almost certainly make justice less accessible.  For everyone.  

Here’s why.

The court made new law.  It expanded the reach of section 96 of the 1867 Constitution Act, which deals with the power of appointment to superior courts, and it read new constraints into section 92(14), which gives the provinces the responsibility for the administration of justice.  And it invoked so-called unwritten constitutional principles - in particular, the rule of law - to buttresss its view that hearing fees that deny people access to the courts “infringe the core jurisdiction of the superior courts.”  The result is that section 96 is read - more broadly than before - as implying a constitutionally guaranteed access to courts.  

Why is this a problem?  When the court makes new law like this the result, naturally, is more litigation, especially, when, as here, there is no support in the written words of the Constitution for the new principle.  And so we will see more litigation.  The kind of litigation that is inherently slow, complex, expensive, uncertain, and unpredictable.  Litigation that will place demands on the court system, displacing other, more pedestrian claims.  

More importantly, however, we will see court challenges that rely on this decision - the constitutional right of access to justice in particular - to oppose any government reforms intended to improve justice system efficiency.  Such reforms are always attacked by lawyer interest groups as a restraint on access to the courts.  Now such attacks will be made as legal arguments in courts.  

And courts themselves will have fewer tools to manage the cases before them: such tools, themselves, will be attacked by trial counsel as an assault on the fundamental right of all citizens to have their day in court.

There’s more.  The majority holds that hearing fees must be coupled with an exemption that allows judges to waive them in any case where “they would effectively prevent access to the courts because they require litigants to forgo reasonable expenses in order to bring claims.”  The result, of course, will be a proliferation of applications for exemption.  These applications will be supported by evidence - affidavits, and in person testimony - so judges can decide what is, and is not a “reasonable expense” for the claimant.  More applications, more court arguments, more court days spent dealing with such arguments, more experts called as witnesses to give evidence on what is, and is not, a “reasonable expense.”  And so on.  Textbooks will be written on the appellate court decisions that will have to interpret these exceptions.  Law conferences will be held.  The increased burden of this additional litigation, will not, of course, fall on the wealthy.  It will fall, one way or the other, on those who are not. 

And then there is the bit that, as the dissenting judge, Rothstein J. pointed out, is completely missing from the majority analysis:

“The majority looks at the question solely from the point of view of the party to litigation required to undertake to pay the hearing fee.  It does not consider, and has no basis or evidence upon which to consider, the questions of the financing of court services or the impact of reduced revenues from reducing, abolishing, or expanding the exemption from paying hearing fees…. How will the government deal with reduced revenues from hearing fees?  Should it reduce the provision of sort services?  Should it reduce the provision of other government services, Should it raise taxes?  Should it incur debt?”

Many of these options, if pursued, will necessarily compromise access to justice.  There will be fewer courtrooms, or fewer judges or fewer support staff.  (Or at least there will be until these resource allocation decisions are themselves challenged in court on the basis of the same principles created to decide this case!)  Because governments are of limited means - not just by whim, but by strong direction from their electors.  And every time the court invents new constitutional doctrine to impose new spending priorities on government, funding for something else, something that does not enjoy the benefit of constitutional protection, is at risk.

Access to justice is a laudable goal.  Today’s Supreme Court of Canada decision made it less reachable.