Are Court Fees Unconstitutional? SCC to Decide

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The Supreme Court of Canada will hear a case about the constitutionality of hearing fees imposed on the “struggling middle class” in civil trials.

Sept. 12, the court announced its decision to give leave to an appeal that will consider whether the exemption from paying hearing fees can extend beyond the “impoverished,” under indigency provisions.

Trial Lawyers Association of British Columbia v. Attorney General of British Columbia responds to a family law case in British Columbia. A mother was involved in a 10-day trial with her former common-law spouse. She had been granted an order relieving her from court hearing fees of $3,600, after arguing that the fees created an unreasonable barrier to access to justice.

After the trial, her application was stayed; the Canadian Bar Association, the Attorney General of British Columbia, the Trial Lawyers Association of British Columbia, and the West Coast Women’s Legal Education and Action Fund, intervened. The statement of claim was revised to include a challenge to the constitutionality of the hearing fees.

The Supreme Court of British Columbia ruled in 2012 that the hearing fees were unconstitutional and “materially hindered” access to the courts. B.C.’s Attorney General appealed.

In February, Justice Ian Donald of the B.C. Court of Appeal set aside the order striking the fees. The fees would have approached the family’s net income for a month, he found. Evidence from an economist showed that a significant percentage of the population could not afford the fees for a 10-day trial.

Justice Donald found: “It has been demonstrated that the burden of hearing fees falls most heavily on women in family litigation, Aboriginal persons, those with disabilities, and recent immigrants” and suggested the indigency rules should be interpreted broadly.

“The phrase is intended to cover those who could not meet their everyday expenses if they were required to pay the fees,” he said.

In April, the Trial Lawyers Association of British Columbia filed an appeal with the Supreme Court of Canada, to consider whether hearing fees for civil trials in provincial courts are an unconstitutional impediment to access to justice.

The appeal will also assess whether any unconstitutionality may be relieved by a wider interpretation of the indigency exemption and whether, in the context of the family court case, hearing fees are one of the conditions a province may impose on how and when people have a right to access the courts.

Related Information:

Access to Justice Report recommends expanded role for paralegals

Canadian Bar Association report

Self-Represented Litigants report

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