44 THE ADVOCATE
VOL. 80 PART 1 JANUARY 2022
legislation to be unconstitutional because it denied access to justice in a
manner inconsistent with s. 96 of the Constitution Act, 1867 and the unwritten
constitutional principle of the rule of law.13 The B.C. court rules at the
time required that a party pay hearing fees for trials lasting longer than three
days in order to obtain a trial date. The applicant, a self-represented litigant
in a family law proceeding, was involved in a lengthy trial and at the outset
asked the judge to relieve her from paying the hearing fees, as she could not
afford to pay them. The rules exempted persons from paying the hearing
fees if they were impoverished, but the litigant was not, though had limited
means. The judge reserved judgment and invited the Trial Lawyers Association
of British Columbia, the Attorney General of British Columbia and the
Canadian Bar Association (B.C. Branch) to make submissions as interveners.
The trial took over ten days, and the hearing fees of $3,600 were almost
equal to the applicant’s net family monthly income. The trial judge held that
the hearing fee provision was unconstitutional and struck it down. The
Court of Appeal agreed that the provision was unconstitutional, but rather
than striking it down, declared the existing exemption to be available to persons
“in need”. On further appeal, the Supreme Court of Canada held that the
hearing fee scheme was unconstitutional because it prevented access to the
courts. As two commentators explain:
In concluding that the hearing fee scheme is unconstitutional, the majority
of the Supreme Court of Canada appears to do two key things. First, it
has extended the constitutional right to access superior courts. Previous
case law on section 96 had largely focused on the extent to which the government
could pare away at the court’s inherent jurisdiction to create
administrative law tribunals and statutory courts. Now the concept has
been extended to incorporate a right to the removal of barriers to accessing
the court’s jurisdiction. In doing so, the majority incorporates access
to justice into the broader constitutional principles that flow from section
96 and seems to give access to justice the status of an unwritten constitutional
principle. In this way, access to justice (like judicial independence)
may become a basis to invalidate legislation in its own right. …14
More recently, in Council of Canadians with Disabilities v. British Columbia
(Attorney General), the B.C. Court of Appeal described access to justice as “a
core constitutional principle rooted in the rule of law and critical to its
maintenance”.15 The plaintiff association challenged the constitutionality of
B.C. legislation related to the provision of non-consensual psychiatric
health care treatment based on ss. 7 and 15 of the Charter. The chambers
judge summarily dismissed the action on the basis that the plaintiff lacked
public interest standing. In the course of reinstating the action and remitting
the standing question for reconsideration, the Court of Appeal stated
that public interest standing “enables the courts to fulfill their constitutional