Neither Here Nor There

I have summarized the Supreme Court’s decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, the B.C. hearing fees case, here. Over a furious dissent by Justice Rothstein, the Court held that while provinces can impose some hearing fees, the fees cannot constitutionally result in “undue hardship” on litigants, preventing them from asserting their legal claims. The Court found that the B.C. fees do not pass this test, and declared them unconstitutional. As I wrote in the conclusion of my earlier post, the majority’s reasons leave some important questions unanswered. They also rest on shaky foundations, which Justice Rothstein’s dissent exposes. Yet Justice Rothstein’s own arguments are even less persuasive than the majority’s.

Perhaps most significantly in practical terms, the majority’s reasons do a poor job of answering the question of what fee or fee and exemption structure is constitutionally acceptable. The threshold the majority sets out for the acceptability of hearing fees ― that they must not cause “undue hardship” to litigants or make them “sacrifice reasonable expenses” ― strikes me as quite vague.

It also seems to have been formulated with only individual litigants in mind. But what about corporations? Not big corporations for which litigation is just another business expense, but small businesses ― say a convenience store engaged in a dispute with a supplier ― or non-profits? I suspect that to such litigants, the BC hearing fees can represent a significant expense, and perhaps a prohibitive one in some cases. But how will the “undue hardship” and “reasonable expenses” tests apply to them? Yet the majority’s rationale for finding some fees unconstitutional, which is that they interfere with the courts’ core jurisdiction and the Rule of Law, ought to apply to corporate litigants as well as to individual ones.

Most importantly, Justice Rothstein is right to point out that the majority’s pronouncements on the role that exemptions from fees can play in a constitutional hearing fees scheme are contradictory. As he explains, the majority says that “as a general rule, hearing fees must be coupled with an exemption that allows judges to waive the fees” (par. 48), while also saying that making litigants “come before the court, explain why they are indigent and beg the court to publicly acknowledge this status and excuse the payment of fees” (par. 60) can be demeaning and burdensome. Whether the exemption is framed in terms of “impoverishment” or “undue hardship” changes nothing to this fact; nor does it alleviate the majority’s “concern the exemption application itself may contribute to hardship” (par. 60). It is perhaps worth recalling that, as I noted at the time, at oral argument Justice Moldaver seemed convinced that an exemption regime was “unworkable.” The majority reasons (which Justice Moldaver signed on to!) do not really address this concern.

And then, there’s the question of whether a province could impose fees for hearings in provincial court (to which s. 96 of the Constitution Act, 1867, does not apply). Or, for that matter, in administrative tribunals. Now even British Columbia seems not to impose hearing fees in provincial courts, so this particular question might be purely academic but, at least in theory, anchoring the protection of access to adjudicative fora in s. 96, as the majority does, seems to suggest that access to other adjudicators ― which, no less than superior courts, even if under their supervision, engage in the determination of private and public law rights of individuals ― is not protected.

Beyond these practical worries, which may end up generating yet more costly and time-consuming litigation if British Columbia or some other province imposes fees coupled with an “undue hardship” exemption, the majority’s reasons are theoretically weak. Section 96 is a very dubious ground on which to rest a conclusion that hearing fees are unconstitutional. Justice Rothstein is quite right that the fees do not “limit the type of powers [s. 96 courts] may exercise.” They do not, in other words, interfere with these courts’ jurisdiction as it had been understood in the s. 96 jurisprudence, which has always been concerned with the removal of types of cases (e.g. judicial review of administrative tribunals) from the superior courts’ purview. The fact that courts may have fewer litigants able or willing to go before them cannot, in itself, be an interference with their jurisdiction. (If it were, a great many rules encouraging litigants to settle their dispute or to use alternative dispute-resolution mechanisms would be unconstitutional too.) As I have argued before, “the real issue [with the hearing fees] is not that the courts are being interfered with, but that individual litigants are.”

In the post just quoted, I argued that the Court should resolve the case on that ground, because hearing fees have the effect of preventing litigants from asserting their legal rights, which legislatures cannot abrogate, if at all, without clearly stating their intent to do so ― something the hearing fees do not do. So I am happy that the majority discusses the rule of law, even though it does not make that principle the main ground for its decision, and doesn’t go as far as the I would have liked. The majority is right that there cannot be a Rule of Law if people cannot assert their rights in court, and that “[i]f people cannot challenge government actions in court, individuals cannot hold the state to account ― the government will be, or be seen to be, above the law” (par. 40). To my mind, that ― rather than s. 96 of the Constitution Act, 1867 ― is the key to resolving “the fundamental issue of principle” regarding the constitutionality of hearing fees, all the more since there is already a line of cases, culminating in Air Canada v. B.C. (A.G.), [1986] 2 S.C.R. 539, standing for the proposition that legislatures or governments cannot indirectly deny citizens’ constitutional rights by preventing them from asserting them in court. Unfortunately, the majority does not mention this jurisprudence (which was also ignored by the parties and the interveners). Instead, it tries to link the Rule of Law to s. 96, but the connection seems to me awkward and unconvincing.

It is, perhaps, an attempt to rebut Justice Rothstein’s criticisms, though the majority opinion never addresses his dissent directly. But while I share Justice Rothstein’s skepticism at the majority’s reading of s. 96, I think that his brutal attack on its reliance on the Rule of Law misses the mark. Justice Rothstein argues that an unwritten principle, especially one so “vague and fundamentally disputed” (par. 100) as the Rule of Law, cannot justify striking down laws on the basis of their content. But it’s not the substance of a law that is at issue with the hearing fees ― it’s the fact that litigants will be unable to assert or defend their rights under any law, whatever its content. In Jeremy Waldron’s terminology, the conception of the Rule of Law that is at issue here is neither a substantive nor a formal one (both of which the Supreme Court had rejected in the past), but a procedural one. Justice Rothstein, in my view, has no answer to the majority’s point that allowing hearing fees to prevent people from defending their legal rights places the government above the law, which the Court had already said would be a Rule of Law problem.

More generally, Justice Rothstein’s approach to constitutional interpretation is unconvincing. His position is an absolutist one ― since hearing fees are not prohibited by the constitutional text, they are permissible, whatever their consequences. Yet even the B.C. government did not take that view and accepted, at oral argument, that in the absence of a suitable exemption, fees could create a constitutional problem. Justice Rothstein’s paeans to democracy mask the fact that the fees are imposed by the rules of court, not by legislation actually enacted by elected representatives of the people. They also ignore the problem of near-total ignorance of access to justice issues by the electorate, which I describe here.

The majority, at least, ends up in the right place, more or less, although its reasons leave a lot to be desired from a theoretical standpoint and fail to answer many important practical questions. Justice Rothstein makes some important points in criticizing them, but his critique ultimately fails.