For Sale! (Or To Give Away)

Last week, the BC Court of Appeal issued a decision upholding the constitutionality of the “hearing fees” imposed by the government on litigants who took their cases to trial in the province’s courts, Vilardell v. Dunham, 2013 BCCA 65. The fees had been struck down last May by the province’s Supreme Court.  “Some things are not for sale,” Justice McEwan had written in Vilardell v. Dunham, 2012 BCSC 748.  (I summarized that decision here, and commented on it here, here, and here.) According to the Court of Appeal, they are, though they must sometimes be given away fee of charge.

As a general proposition, says the Court, there is nothing wrong with hearing fees. The province has always had them, except for a relatively short period around the turn of the 20th century. Indeed, they have a very long history:

Crown hearing fees and an accompanying exemption for those who cannot pay them have been a feature of the English legal system going back to the Statute of Henry VII, 11 Henry VII, c. 12, in 1494 and which we inherited upon becoming a colony in 1858. (Par. 9)

And this history matters, the Court holds, “because it shapes the relationship between the executive and the judicial branches of government” (par. 11). Since this relationship has always taken the shape of a compromise balancing the government’s right to impose hearing fees with the courts’  “power to waive payment in forma pauperis, then the claim for a constitutional right to be free of them falls away” (par. 14).

Furthermore, the Court holds that there is no general, unqualified right of access to justice. Provincial legislatures, which are responsible for the administration of justice, have the power to impose conditions on access to courts. The Court is also unpersuaded by a Nova Scotia case in which that province’s hearing fees scheme was held to be unconstitutional.

The problem, and the only problem, with hearing fees is “their potential to impede persons who cannot afford them. Wealthy individuals and corporations may not like paying the fees but they are unlikely to alter their litigation strategy because of them” (par. 26), but for people who are not well-off, they act as a real barrier to asserting their rights in court. This upsets the compromise struck by the Statute of Henry VII (par. 21), violates the principle of the Rule of Law (par. 33), and infringes the courts’ constitutionally protected “core jurisdiction” (par. 35-36).

Accordingly, the solution the Court of Appeal chooses is not to strike down the hearing fees, as the Supreme Court had done, but to expand the exemption from the duty to pay them, so that it covers not only the “indigent,” as it did until recently, or even those on public assistance or “impoverished,” as it now does, but also those “in need.” Reading in these words, “intended to mean those who could not meet their everyday expenses if they were required to pay the fees” (par. 41), eliminates the constitutional difficulty. And, contrary to what Justice McEwan had suggested about the “indigency” exemption, since the re-crafted and expanded “exemption is focused on affordability rather than socio-economic status” (par. 37), it is not offensive to the dignity of those who have to seek it.

For my part, I think this is a poor decision, mostly because it fails to engage with some of the key problems of the hearing fees, which Justice McEwan raised in his (admittedly very imperfect) reasons. Most importantly, it does not at all address the suggestion, which I think is sound, that there is something profoundly wrong with the idea that civil justice is a service of which the litigants choose to avail themselves and for which they may legitimately be made to pay. People often do not have a choice but to litigate; nor can they always settle a case. It is one thing to punish a party who refuses a favourable offer to settle, as for example Ontario’s Rules of Civil Procedure do. It is quite another to make a party pay for going to trial regardless of the reasonableness of his position.

The judgment also, in my view, misunderstands the relationship between history and constitutional principles. History helps us ascertain the underlying principles of the constitution (and of our law more generally), but it does not define them. Ultimately, the constitutional principles are the values that underpin the law today, not necessarily those that connect it to the times of Henry VII. As the future Justice Holmes famously wrote in “The Path of the Law,” 10 Harv. L. Rev. 457 (1897),

[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

The century of civil wars separating Henry IV from Henry VII is no good warrant for this either. The Court does not explain why the compromise that was good in the times of the first Tudor monarch should still have power over us more than five centuries after his death.

Finally, the Court’s arguments both about both the law and the facts are misguided. As for the law, the concept of constitutionally protected core jurisdiction is a shaky foundation on which to rest the requirement for a capacious exemption from hearing fees, because it only applies to superior (“s. 96”) courts, and not to provincial courts. The Court simply misunderstands the concept as protecting judicial power in general rather than the power of superior courts. In any case, it does not make sense to protect the litigants’ choice to go to trial, and their choices as to the trial’s length, as an aspect of the courts’ control over their proceedings. As for the facts, the Court is surely wrong that the hearing fees―which, after all, are concededly designed to discourage trials, especially long trials, will only affect the litigation choices of those “in need.” Not the very rich or the very large corporations perhaps, but by no means only “those who could not meet their everyday expenses if they were required to pay the fees” will do their best to minimize the amount of fees they owe and thus modify their litigation strategy and perhaps refrain from asserting legitimate claims as a result of the government’s financial pressure (which, to repeat, has nothing to do with the potential reasonableness of the legal positions litigants seek to assert). The exemption crafted by the court is thus still badly underinclusive. It is also underinclusive by failing to include corporations.  A corporation, I think, cannot be described as “impoverished or in need,” without doing violence to the English language. But corporations do have the right to sue (that’s a large part of what legal personality means), and yet a small corporation can be deterred from suing, or going to trial, by the prospect of the hearing fees just as easily as an individual.

The Court of Appeal’s decision is not only mistaken, I think, but very poorly justified. It is based on misunderstandings of fact and law, and fails to address the serious issues the case raised. It accepts, unthinkingly, the proposition that justice is for sale, even if it says that it must sometimes be given away for free. I can only hope that there will be an appeal, and that the Supreme Court will take it.

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