B.C. Court of Appeal Holds that Hearing Fees are Constitutional

[This decision was overruled by the Supreme Court of Canada, 2014 SCC 59. See my post on that decision here.]

On Friday, February 15, 2013 the British Columbia Court of Appeal in Vilardell v. Dunham, 2013 BCCA 65, set aside Mr. Justice McEwan’sruling in the Supreme Court of British Columbia that the hearing fees charged by the Province of British Columbia to the party setting down a trial for the time spent in court are unconstitutional. The trial judge had found that the fees were an impermissible impediment to access to justice. I wrote about Mr. Justice McEwan’s decision here.

In allowing the Attorney General of British Columbia’s appeal, Mr. Justice Donald agreed that the hearing fees would be an unconstitutional impediment were it not for the Court’s power to relieve parties from the hearing fees.

The Supreme Court Family Rules and the Supreme Court Civil Rules both contain provisions allowing the court to order that no fees are payable if the court finds that a person is impoverished. Although the rules of court in effect when Vilardell went to trial were different, they had a provision allowing the court to relieve a person who was “indigent” from paying the fees. The current rule 20-5 (1) reads:

(1)  If the court, on application made in accordance with subrule (3) before or after the start of a proceeding, finds that a person receives benefits under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act or is otherwise impoverished, the court may order that no fee is payable by the person to the government under Schedule 1 of Appendix C in relation to the proceeding unless the court considers that the claim or defence
(a) discloses no reasonable claim or defence, as the case may be,
(b) is scandalous, frivolous or vexatious, or
(c) is otherwise an abuse of the process of the court.
 

The Court of Appeal found that the relieving provision as drafted was too narrow. There are people who are not “indigent” or “impoverished” but for whom the hearing fees are not affordable. But the Court of Appeal held that by giving Rule 20-5 an enlarged interpretation to include persons “in need,” the Court would not have to strike down the hearing fees as unconstitutional. Mr. Justice Donald wrote at paragraph 41:

[41]         Granting an automatic exemption to recipients of employment or disability insurance suggests a more generous approach than was previously taken.  The enlarged scope of the exemption in Rule 20-5, then, should be read as saying “impoverished or in need”.  The phrase is intended to cover those who could not meet their everyday expenses if they were required to pay the fees.  Courts will continue to use their discretion to determine whether a litigant is impoverished or in need to the point that but for the hearing fees, they would be able to pursue their claim, thus qualifying for an exemption.

I don’t know if this is the final word for the courts. It may be that this decision will be appealed to the Supreme Court of Canada. But until then, the Government of British Columbia will be able to continue charge hearing fees, although the Supreme Court of British Columbia will have a broader power relieve from the payment of fees.

The Court of Appeal granted Ms. Vilardell’s application to be relieved from paying the hearing fees.

When I discussed Mr. Justice McEwan’s decision in my previous post, I wrote:

But irrespective of what the British Columbia Court of Appeal or Supreme Court of Canada may ultimately decide, his eloquent discussion of the fundamental role of our courts in civil society would be a good starting point of debate among British Columbians about how the Government of British Columbia funds not only British Columbia courts, but also other programs such as legal aid that are necessary for those who have the greatest need to get meaningful access to the courts. 

I hope that the Government of British Columbia will recognize that just because it is constitutionally permitted to charge hearing fees does not mean it is the right thing to do, or that it is good governance. It is neither.