46 THE ADVOCATE
VOL. 80 PART 1 JANUARY 2022
Supreme Court. Pleau and others applied for a ruling on the constitutional
validity of regulations that increased existing court fees and created new fees.
The court fees were imposed in part to help pay for new technologies. In our
view, the relatively modest objective of these regulations may have made the
judge more comfortable in making a finding of unconstitutionality. Although
Charter and certain other arguments were dismissed, the court held that the
hearing fees unduly hindered or denied access to the courts. The effect of the
fees was to put a price on accessing the courts, to which there is a constitutionally
guaranteed right. The chambers judge stated:
65 Access to justice is neither a service nor a commodity. It is a constitutional
right of all citizens; any impediments must be strictly scrutinized.
Regardless of whether the impediment takes the form of a tax, a
fee, an allowance, or some other form, it will, and must fail if its effect is
to unduly “impede, impair or delay access to the courts”.
Another early case of note is Polewsky v. Home Hardware Stores Ltd.,20
from the Ontario Superior Court of Justice (Divisional Court). The plaintiff
sought a declaration that the Small Claims Court tariff fees for setting a matter
down for trial violated the Charter. This argument failed at first instance
but succeeded on appeal. The Charter arguments were not successful, but
the appeal court held that under the rule of law and at common law there
was a conditional right of access to the courts. It stated:
76 We agree that the Rule of Law infuses this court’s determination of
the issues raised in this appeal. We say that the existence of the Rule of Law
combined with what we find to be the common law constitutional right of
access to justice compels the enactment of statutory provisions that permit
persons to proceed in forma pauperis in the Small Claims Court.
Again, in our view, the social objective of the fees was relatively modest,
perhaps again providing some reassurance to the court in making its finding.
Of course, as noted earlier, not all cases that have considered rule-of-law
arguments led to outcomes favourable to those challenging the enactment
at issue. The most significant Supreme Court of Canada case casting doubt
on the rule-of-law argument is British Columbia v. Imperial Tobacco Canada
Ltd.21 Imperial Tobacco dealt with British Columbia’s Tobacco Damages and
Health Care Costs Recovery Act, which allows the provincial government to
sue tobacco manufacturers to recover the cost of health care benefits caused
or contributed to by a “tobacco-related wrong”. This effort by the B.C. government
to hold the tobacco companies to account arguably had a significant
societal objective, in contrast to some cases in which rule-of-law
arguments were accepted. By extension, one might posit that this objective’s
significance constrained judges’ willingness to invalidate the legislation
on this basis. Notably, this legislation was a second attempt: prior