THE ADVOCATE 49
VOL. 80 PART 1 JANUARY 2022
has been given short shrift in cases noting that the B.C. Court of Appeal’s
decision in Christie was overturned by the Supreme Court of Canada.
The Supreme Court of Canada’s decision in Christie was applied for the
principle that “it is clear that legislatures have the right to restrict access
to the courts” in 908077 Alberta Ltd. v. 1313608 Alberta Ltd.29 The Alberta
Court of Queen’s Bench held that non-lawyers did not have the right to represent
corporate litigants, and considered the implications of that for access
to justice. The court commenced by stating that it was clear that legislatures
have the right to restrict access to the courts, relying on Christie, then
quoted from it as follows: “the constitutional text, the jurisprudence and the
history of the concept does not support the respondent’s contention that
there is a broad general right to legal counsel as an aspect of, or precondition
to, the rule of law”.30
Imperial Tobacco and Christie were applied by the B.C. Court of Appeal in
J. Cote & Son Excavating Ltd. v. Burnaby (City)31 to hold that the rule of law
does not ground an independent right to access the courts and, further, that
Trial Lawyers ties the efficacy of the rule of law inextricably to the judicial
function of the court under s. 96 of the Constitution Act, 1867 such that the
rule of law did not operate alone. The plaintiff contractor submitted a tender
for work with the City of Burnaby. The city had a clause in its tender
documents precluding bids from contractors involved in litigation with the
city in the prior two years. The plaintiff argued the clause was of no force
and effect because it unjustifiably infringed the rule of law. The trial judge
held these constitutional protections were subject to permissible limits and
dismissed the application. The B.C. Court of Appeal dismissed the appeal,
holding the clause did not infringe a constitutionally protected right of
access to the civil superior courts. It adopted the textual approach of Imperial
Tobacco and concluded:
22 The jurisprudence establishes the rule of law does not provide an
independent, stand-alone protection of access to the civil courts. Instead,
the rule of law supports the Charter and is inextricably linked to the judicial
function in s. 96 of the Constitution Act, 1867. …
Most recently, in Toronto (City) v. Ontario (Attorney General),32 a majority
of the Supreme Court of Canada upheld Ontario legislation that redrew
ward boundaries and reduced the number of wards in Toronto, reducing the
size of council. In rejecting the City’s argument that the legislation violated
unwritten constitutional principles, the majority stated that, although
unwritten principles such as democracy and the rule of law “form part of
the context and backdrop to the Constitution’s written terms”, they “cannot
serve as bases for invalidating legislation”.33 The majority also clarified that,