IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)

Transcription

1 ' Court Fle No N THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRTSH COLUMBA) - BETWEEN: TRAL LAWYERS ASSOCATON OF BRTSH COLUMBA and CANADAN BAR ASSOCATON - BRTSH COLUMBA BRANCH AND: ATTORNEY GENERAL OF BRTSH COLUMBA APPELLANTS (RESPONDENTS) RESPONDENT (APPELLANT) AND: ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL FOR THE PROVNCE OF ONTARO, ATTORNEY GENERAL OF QUEBEC, ATTORNEY GENERAL OF ALBERTA, ADVOCATES' SOCETY, WEST COAST WOMEN'S LEGAL EDUCATON AND ACTON FUND, and DAVD ASPER CENTRE FOR CONSTTUTONAL RGHTS NTERVENERS FACTUM OF THE RESPONDENT ATTORNEY GENERAL OF BRTSH COLUMBA (Pursuant to Rule 44 of the Rules of the Supreme Court a/canada) ~ ~. j

2 ATTORNEY GENERAL OF BRTSH COLUMBA Mnstry of Justce Legal Servces Branch 1001 Douglas Street, 6 1 h Floor P.O. Box 9280, Staton Prov Govt Vctora, BC V8W 9J7 Telephone: (250) Facsmle: (250) Emal: Bryant.Mackey@gov.bc.ca J. Gareth Morley Bryant A. Mackey Counsel for the Respondent, Attorney General of Brtsh Columba BURKE-ROBERTSON LLP Barrsters and Solctors 441 MacLaren Street, Sute 200 Ottawa, ON K2P 2H3 Telephone: (613) Facsmle: (613) Emal: rhouston@burkerobertson.com Robert E. Houston, Q.C. Ottawa Agents for Counsel for the Respondent, Attorney General of Brtsh Columba MLLER THOMSON LLP Barrsters and Solctors Howe Street Vancouver, BC V6Z 2Ml Telephone: (604) Facsmle: (604) Emal: droberts@mllerthomson.ca Darrell W. Roberts, Q.C. Chantelle Rajotte Counsel for Appellant, Tral Lawyers Assocaton of Brtsh Columba CAMP FORANTE MATTHEWS Barrsters and Solctors Homer Street Vancouver, BC V6B 2W5 Telephone: (604) Facsmle: (604) Emal: smatthews@cfnlawyers.ca Sharon D. Matthews, Q.C. Melna L. Buckley Counsel for the Appellant, Canadan Bar Assocaton - Brtsh Columba Branch SUPREME ADVOCACY LLP Barrsters and Solctors Glmour Street Ottawa, ON K2P OR3 Telephone: (613) , Ext. 102 Facsmle: (613) Emal: mfnajor@supremeadvocacy.ca Mare-France Major Ottawa Agents for Counsel for the Appellant, Tral Lawyers Assocaton of Brtsh Columba MCHAEL SOBKN Barrster and Solctor 331 Somerset Street West Ottawa, ON K2P OJ8 Telephone: (613) Facsmle: (613) Emal: msobkn@sympatco.ca Mchael J. Sobkn Ottawa Agent for Counsel for the Appellant, Canadan Bar Assocaton - Brtsh Columba Branch ' ' ' ~ t 1

3 ATTORNEY GENERAL OF CANADA Department of Justce Howe Street Vancouver, BC V6Z 2SO Telephone: (604) Facsmle: (604) Emal: Jan E. Brongers Alan Prefontane Counsel for the ntervener, Attorney General of Canada ATTORNEY GENERAL OF CANADA 50 O'Connor Street, Sute 500, Room 557 Ottawa, ON KA OHS Telephone: (613) Facsmle: (613) Emal: Chrstopher M. Rupar Ottawa Agents for Counsel for the ntervener, Attorney General of Canada. ATTORNEY GENERAL FOR THE PROVNCE OF ONTARO 720 Bay Street, O'h Floor Toronto, ON MSG 2K Telephone: (416) Facsmle: (416) Shannon Chase Sara Wenrb Counsel for the ntervener, Attorney General for the Provnce of Ontaro BURKE-ROBERTSON LLP Barrsters and Solctors 441 MacLaren Street, Sute 200 Ottawa, ON K2P 2H3 Telephone: (613) Facsmle: (613) Emal: Robert E. Houston, Q.C. Ottawa Agents for Counsel for the ntervener, Attorney General for the Provnce of Ontaro l ' PROCUREUR GENERAL DU QUEBEC 1200 route de l'eglse, 2e etage Ste-Foy, Quebec G V 4Ml Telephone: (418) Facsmle: ( 418) E-mal: agngras@justce.gouv.qc.ca Alan Gngras Dana Pescarus Counsel for the ntervener, Attorney General of Quebec NOEL & AssOCES Barrsters and Solctors 111, rue Champlan Gatneau, Quebec JSX 3R Telephone: (819) Facsmle: (819) Emal: p.landry@noelassoces.com Perre Landry Ottawa Agents for Counsel for the ntervener, Attorney General of Quebec 1-1 l

4 ATTORNEY GENERAL OF ALBERTA Department of Justce 403 Legslature Buldng Edmonton, AB TSK 2B6 Telephone: (780) Facsmle: (780) E-mal: Donald Padget Counsel for the ntervener, Attorney General of Alberta GOWLNG LAFLEUR HENDERSON LLP Barrsters and Solctors Elgn Street PO Box 466, Stn. "D" Ottawa, ON KP C3 Telephone: (613) Facsmle: (613) Emal: Henry S. Brown, Q.C. Counsel for the ntervener, Attorney General of Alberta FARRS, VAUGHAN, WLLS & MURPHY LLP Barrsters & Solctors 700 West Georga Street, 25' 11 Floor Vancouver, BC V7Y B3 Telephone: (604) Facsmle: (604) E-mal: Joseph A. Arvay, Q.C. Tm Dckson Kelly D. Jordan Counsel for the ntervener, Advocates' Socety GOWLNG LAFLEUR HENDERSON LLP Barrsters and Solctors Elgn Street PO Box 466, Stn. "D" Ottawa, ON KP 1C3 Telephone: (613) Facsmle: (613) Emal: Henry S. Brown, Q.C. Counsel for the ntervener, Advocates' Socety YOUNG, ANDERSON Barrsters & Solctors Nelson Street PO Box 12147, Nelson Square Vancouver, BC V6Z 2H2 Telephone: (604) Facsmle: (604) E-mal: Francesca V. Marzar Kasar Govender Counsel for the ntervener, West Coast Women's Legal Educaton and Acton Fund BORDEN LADNER GERY AS LLP Barrsters and Solctors World Exchange Plaza 00 Queen Street, Sute 1300 Ottawa, ON KP 1J9 Telephone: (613) Facsmle: (613) Emal: Nada Effend Counsel for the ntervener, West Coast Women's Legal Educaton and Acton Fund r ' ~ ' ~ ' ~ ~ ' '

5 l1 ' f ' ' [ UNVERSTY OF TORONTO 39 Queen's Park Crescent East Toronto, ON M5S 2C3 Telephone: (416) Facsmle: ( 416) E-mal: cheryl.mlne@utoronto.ca Cheryl Mlne Paul Schabas Counsel for the ntervener, Davd Asper Centre for Consttutonal Rghts BLAKE, CASSELS & GRAYDON LLP Barrsters and Solctors Albert Street Consttuton Square, Tower 3 Ottawa, ON KR 7Y6 Telephone: (613) Facsmle: (613) Emal: nancy.brooks@blakes.com Nancy K. Brooks Counsel for the ntervener, Davd Asper Centre for Consttutonal Rghts,..

6 TABLE OF CONTENTS PART PAGE PART 1: OVERVEW OF POSTON AND STATEMENT OF FACTS PART - POSTON WTH RESPECT TO QUESTONS N SSUE 11 PART -ARGUMENT 12 PART V-SUBMSSONS AS TO COSTS 40 PART V - ORDER SOUGHT 40 PAR V - TABLE OF AUTHORTES PART V - LEGSLATON t '. 1- ~- ' 1.

7 PART 1: OVERVEW OF POSTON AND STATEMENT OF FACTS Overvew of Poston 1. Access to courts to determne cvl dsputes s a foundatonal common law rght datng back to the Mddle Ages. Makng that rght meanngful - especally for low-ncome and moderate-ncome Canadans - s one of the most dffcult publc polcy problems of the twentyfrst century. An aspect of the problem s that court-tme s a scarce resource, 1 and one whch must be allocated as farly and effcently as possble. Snce t s scarce, excessve use of courttme by one group of ltgants necessarly delays or denes access to others. 2. One polcy nstrument Brtsh Columba ("BC") uses to face the challenge of makng access to cvl justce meanngful s a means-tested hearng fee. n the ordnary course, a ltgant settng a matter down for tral undertakes to pay a fee based on the length of tral. The fees are structured to recover most of the provncally-funded expenses assocated wth court hearngs, other than crmnal hearngs and famly hearngs n provncal court. The daly rate of the fee ncreases wth the length of tral to provde a subsdy for shorter hearngs at the expense oflonger ones wthn that overall framework Currently there s no hearng fee for the frst three days spent n court. 3. The hearng fee, unlke most other court fees, s not pad n advance. The regstry nvoces the ltgant who set down the matter for tral, unless the court otherwse orders. However, snce the hearng fee s a dsbursement, the successful ltgant s normally ndemnfed for t as part of an award of costs followng the event. n addton, the court has the power to releve a ltgant from all or some court fees, ncludng the hearng fee, based on fnancal status. At the tme of tral n ths case, ths was referred to as an "ndgency" applcaton. n 2010, the language n the rules of court was modernzed and the term "mpovershed" was substtuted for ndgency. 4. The frst and prncpal argument rased by the appellants s that the purpose of the hearng fee volates the rght of access to cvl justce. The appellants rely on the followng statement: We understand the purpose of the ncrease n the fee as the number of tral days ncreases to be 1 Canadan Councl of Churches v. Canada (Mnster of Employment and mmgraton, [1992] 1 S.C.R. 236 ("Canadan Councl of Churches"), at p. 243; R. v. Jesse, 2012 SCC 21, at para 63.

8 2 twofold. The prmary purpose s[... ]to provde an ncentve for effcent use of court tme and a dsncentve for lengthy and neffcent trals. The secondary purpose s[... ]to provde suffcent revenue on average to partally offset the overall costs of provdng tral facltes for ltgants The appellants' man argument appears to be that the hearng fees are nvald, regardless of ther effects, because one or both of these aforementoned purposes s "nvdous. " 3 The Respondent, Attorney General of BC ("AGBC"), submts that these purposes are not only unexceptonable, but necessary to promote the goal of access to cvl justce. 6. Cost recovery through court fees helps mantan a stable budget for cvl ltgaton-related publc expendtures. f those fees dd not exst and ther loss was not offset from general revenue, court servces would have to be reduced. Generally, the purpose of cost recovery (as opposed to the means by whch ths s accomplshed) has never been found to be problematc. 4 Furthermore, there s no evdence that subsdzng superor court trals s the most effectve use of scarce publc funds for promotng access to justce. 7. The other purpose s "to provde an ncentve for effcent use of court tme and a dsncentve for lengthy and neffcent trals." The AGBC argues that t s mpossble to magne a court system that does not concern tself wth effcent use of court tme. A valuable, scarce good or servce must be allocated somehow, n the sense that the access of some (or perhaps all) must be lmted fthere s to be meanngful access for others. 5 Allocaton can occur through conscous dstrbuton by a decson-maker, monetary ncentves, queung, or a combnaton of all three, but necessarly t must occur. There s abundant authorty that effcency s an mportant value and not an nvdous purpose. At the same tme, effcency should not be the only value. Hearng fees promote effcency n allocaton, but they would be unfar f they were charged wthout regard to ablty to pay. The common law has always recognzed ths, and thus has 2 Ths s the source of the appellants' clam that the purpose of the mpugned rule s to create a barrer of access to justce: Vlardell v. Dunham, 2012 BCSC 748 ("V/ardel/ 2") at para. 309; Jont Appellants Record ("JAR") (Vol. ) p. 139, and Vlardell v. Dunham, 2013 BCCA 65 at para. 19 ("V/ardell (CA)"); JAR (Vol. ) pp A smlar statement of a twofold purpose of revenue generaton and dsncentvzng longer hearngs, along wth a thrd purpose of promotng "equty" (manfested n the "ndgency" exempton) s found n the appellants' expert's report: Carson Affdavt #1 Exhbt "B"; JAR (Vol. ) p BC CBA Factum, para Eurg Estate (Re), [1998] 2 S.C.R. 565 ("Eurg Estate") (court fees ntra vres provnce unless for generatng surplus). 5 Borowsk v. Canada (Attorney General), [1989] S.C.R. 342 at p. 360 ("Borowsk") ("t s an unfortunate realty that there s a need to raton scarce judcal resources among competng clamants").

9 3 allowed for exemptons n forma paupers for ltgants oflmted means. 8. The appellants' second argument s that even wth a means-tested excepton, the effect of the hearng fees places too great a burden on the ablty of those who cannot afford to pay hearng fees. To the extent that ths burden s caused by an nterpretaton of"ndgency" or "mpovershment" that fals to nclude some persons who cannot reasonably afford to pay the fees, the nterpretaton s wrong. Standard prncples of statutory nterpretaton, and the case law, support a readng broad enough to ensure that no one s prevented from pursung a clam or defence because they cannot afford the court fees. To the extent that ndvduals are requred to make a court applcaton (typcally unopposed and ex parte) to establsh ther status, that s not a suffcently substantal burden to justfy deprvng government of ths polcy nstrument. There s no precedent for a rght that s volated smply by provdng for a process to vndcate t. 9. There s no evdence that those who cannot afford to pay hearng fees would be net 1 1 wnners fhearng fees were abolshed. The mmedate result would be fewer resources for court servces and less ncentve for wealther ndvduals and nsttutonal ltgants to economze ther use of co m tme. 10. The rght of reasonable access to cvl justce s a common law rght, and t s preserved by BC's Court Rules Act, 6 but access to cvl justce s not entrenched n Canada's wrtten consttuton. Common law prncples of publc law, whle "consttutonal" n some sense of the word, are subject to legslatve supremacy. Ths appears to have been a delberate decson by the framers of the Canadan Charter of Rghts and Freedoms ("Charter") to leave the fnal decsons on further reform of cvl and famly law procedures and processes to the legslatures. 11. The Charter, and the other rghts-grantng provsons of the wrtten consttuton, were 1- r r l enacted aganst the background presumpton of Parlamentary soveregnty (n Canada's federaton, the "exhaustveness" prncple). New entrenched rghts can only be added to the consttuton through the process set out n Part V of the Consttuton Act, Snce t s found n subordnate legslaton, the mpugned hearng fee should be revewed for consstency wth the Court Rules Act, whch does not abrogate the common law rght of 6 S.B.C. 1989, c. 22 (now R.S.B.C. 1996, c. 80).

10 4 reasonable access to court. The Court, therefore, can conduct ts revew wthout reference to the "Consttuton of Canada" n the sense set out ns. 52 of the Consttuton Act, The hearng fee does not contradct reasonable access to justce. n fact, wth properly nterpreted and appled exemptons, t enhances access to justce. n any event, snce t volates no provson of the entrenched consttuton, and s clearly wthn the scope of s. 92(14) of the Consttuton Act, 1867 and provncal leglsatve competence, the debate about ts merts must be resolved n the poltcal process. [ Adjudcatve Facts and Court Proceedngs 14. Ths case arose as a famly law dspute. The partes are parents ofa young daughter (fve years old at the tme of tral n February & March 2009). The plantff: Montserrat Vlardell, clamed an nterest n part of a home owned by the defendant, Bruce Dunham, as a result of ther relatonshp, and sought to move wth ther daughter to Europe. Mr. Dunham held a tenure track poston as a statstcs professor at the Unversty of Brtsh Columba, and ressted the move. Ms. Vlardell was traned as a veternaran, and was qualfed to practce n the European Unon, but had not qualfed n Canada (delberately, as found by the tral judge). 7 The partes had shared custody of ther daughter. 15. Ms. Vlardell retaned two lawyers before tral and pad for ther servces wth her Canadan savngs. 8 n her "Affdavt of ndgent Status" she deposed that n the two years precedng Vlardell #2 she spent $23,000 n savngs on lawyers fees 9. At a case management conference, the case management judge (who was not the tral judge) accepted Mr. Dunham's 10- day tral estmate 10. Ms. Vlardell's legal counsel then wthdrew and she went to tral selfrepresented11. The tral judge, T. M. McEwan J., noted that the defendant made submssons regardng Ms. Vlardell' s lack of compromse and determnedness to proceed to tral. 12 '. 16. At the outset of the tral, Ms. Vlardell sought to be releved from payng the daly court 7 Vlarde/l v. Dunham, 2009 BCSC 434 ("Vlardell ") at paras ;JAR (Vol. ) p. 28; Vlardell 2 at para. 17; JAR (Vol. ) p Affdavt oflndgent Status of Montserrat Vlardell at para 13; JAR (Vol ) p Affdavt oflndgent Status of Montserrat Vlardell Exhbt "A"; JAR (Vol ) p ' 0 Affdavt oflndgent Status of Montserrat Vlardell at para 19; JAR (Vol ) p Vlardell 2 at para. 4; JAR (Vol. ) p Vlardell 2 at para. 18; JAR (Vol. ) p. 48.

11 5 hearng fees mposed by the BC Supreme Court Cvl Rules. The tral judge deferred the ssue to the end of the tral 13 The tral took the full 0 days and, n hs reasons, McEwan J. attrbuted the length of the tral to the thorough approach taken by Mr. Dunham, and noted t mght have been reduced by half f the partes had been represented At the end of hs judgment, McEwan J. consdered Ms. Vlardell's request to be releved of any requrement to pay the daly hearng fees. McEwan J. was advsed by the Regstry that the hearng day fees amounted to approxmately $3,600. Ms. Vlardell had not been asked to prepay the fees; they were to be blled at the end of the proceedngs and a schedule for future payments could be consdered. McEwan J. stated he was n "no poston to rule on whether the court has jursdcton to make such an order, or the bass on whch, f t has jmsdcton, t should act." McEwan J. then nvted the AGBC, the Law Socety of BC and the BC Branch of the Canadan Bar Assocaton ("BC CBA") to ntervene. He referred to the decson of the Nova Scota Supreme Court n Pleau, 16 mplyng that he saw a consttutonal ssue arsng from the case at bar. Subsequently the Tral Lawyers Assocaton of BC ("TLABC") obtaned permsson to ntervene, and the Law Socetywthdrew. 17 L 19. The AGBC submtted that the court had jursdcton to exempt Ms. Vlardell from the hearng fees on the bass of Schedule 1 to B.C. Regulaton 221/90,.e., the "ndgency Rule". The AGBC sad the court should do so f t determned she dd not have suffcent ncome and assets to afford the hearng fees. The AGBC took no poston on whether Ms. Vlardell met ths test. Rather, the AGBC argued that the consttutonal ssues dd not arse (and therefore should not be addressed) f the plantff could not afford the fees, snce she would then be ndgent and the court could and should wave the requste fees. On the other hand, fthe plantff could afford the fees then no true denal of access to justce could be sad to have occurred. 18. ~ ' 20. The TLABC argued hearng fees nfrnge an unwrtten consttutonal rght of access to 13 Vlarde/l at para. 90; JAR (Vol. ) p. 31; Vlarde/12 at paras. 4-9; JAR (Vol. ) pp Vlardell 2 at paras. 4 and 19-20; JAR (Vol. ) pp. 45 and Vlardell at para. 90; JAR (Vol. ) pp Pleau v. Nova Scota ( 998), 43 C.P.C. 4th 201 (N.S.S.C.) ("Pleau"). 17 Vlardell 2 at para. 11; JAR (Vol. ) p Vlardell 2 at paras. 21, , 387 and 424; JAR (Vol. ) pp. 49, 92-93, 168 and

12 6 justce, that they nfrnge an unwrtten consttutonal prncple that t s wrong to sell justce, and that they volates. 96 of the Consttuton Act, n addton to those arguments, the BC CBA submtted that the mposton of hearng fees nfrnge ss. 7 and 28 of the Charter McEwan J. dd not accept the arguments under the Charter, but found the hearng fees to be unconsttutonal as a barrer to a rght of access to justce and further that access to the superor courts s a "fundamental premse of the consttutonal arrangement of Canada whch cannot be materally hndered by anyone." 21 McEwan J. found that "ndgent" meant a person who s desttute, needy, n want, poor or necesstous, and found that ths term was "awkward" to apply to a mddle-class famly. He nether determned whether Ms. Vlardell was ndgent, nor found her ndgency status as beng n any way dspostve of the matter Mr. Justce Donald, for a unanmous Brtsh Columba Court of Appeal ("BC CA"), held that hearng fees would be an unconsttutonal mpedment to access to justce were t not for the power of the courts to gve relef. 23 Relyng on ths Court's decson n Chrste, 24 and the long hstory of hearng fees, Donald.A. held that hearng fees were not per se consttutonally suspect, but only n ther potental to mpede persons who cannot afford them. 25 He held that an exempton must be avalable to those who could not meet ther everyday expenses f they were requred to pay the fees. He held that the exstng rule dd not allow for such a broad exempton, but that ths could be remeded by readng n the words "or n need" to the exempton rule. 26 The Court of Appeal exempted Ms. Vllardell from the hearng fees. Legslatve Facts -- Hearng Fees 23. The Supreme Court Rules (snce 2010, the "Supreme Court Cvl Rules") were enacted as subordnate legslaton under the Court Rules Act. Secton 1 of the Court Rules Act empowers the Leutenant Governor n Councl to enact rules for the Court of Appeal, Supreme Court and 19 Vlardel/ 2 at paras. 34 and 424; JAR (Vol. ) pp and Vlardell 2 at paras. 133 and 424; JAR (Vol. ) pp and Vlardell 2 at paras. 422, 423 and 425; JAR (Vol. ) pp Vlardell 2 at paras ; JAR (Vol. ) pp Vlardell (CA) at para. 4; JAR (Vol. ) p Brtsh Columba (Attorney General) V. Chrste, 2007 sec 21 ("Chrste"). 25 Vlardell (CA) at para. 26; JAR (Vol. ) p Vlardell (CA) at para. 41; JAR (Vol. ) p r l F,.

13 7 Provncal Court. Secton 6(b) of the Court Rules Act provdes that before a rule s enacted the Attorney General must consult the chef justce or chef judge of the relevant court. Secton 1 (2)( d) provdes authorty for the "establshment and collecton of fees for servces and dutes provded by the government or employees of the government...". 24. When Vlardell J was decded, Appendx "C" Schedule 1 to the Rules of Court prescrbed Fees Payable to the Crown for hearng a tral n tem 14 as follows: f the tme spent s Y day or less $156 f the tme spent s more than Y day For each of the frst 5 days $312 For each of days 6-10 $416 For each day over day 0 $ Appendx "C" Schedule 1 provded for an exempton from all fees, ncludng hearng day fees, for ndgent ltgants whose clam or defence had a reasonable prospect of success: S() f the court, on smmnary applcaton before or after the commencement of a proceedng fnds that a person s ndgent, the court may order that no fee s payable to the Crown by the person to commence, defend or contnue the whole or any part of the proceedng unless the court consders that the clam or defence a) dscloses no reasonable clam or defence, as the case may be, b) s scandalous, frvolous or vexatous, or c) s otherwse an abuse of the process of the court. 26. Currently, hearng fees are establshed by Schedule 4 of the Supreme Court Cvl Rules and Supreme Court Famly Rules. tem 10 states the followng fees are payable by the party who fles the notce of tral, unless the court orders payment by another party: [ ;.. For the frst 3 days: 2. For each of day 4-10: 3. For each over 10: $0 $500 $800. r 27. Rule 20-5(1) of the Supreme Court Cvl Rules and Supreme Court Famly Rules allows the court to exempt a person from hearng fees at any tme n the proceedng: f the court, on applcaton made n accordance wth subrule (3) before or after the start of a proceedng, fnds that a person receves benefts under the Employment and Assstance Act or the Employment and Assstance for Persons wth Dsabltes Act or s otherwse mpovershed, the l )

14 8 court may order that no fee s payable by the person to the govenunent under Schedule of Appendx C n relaton to the proceedng unless the court consders that the clam or defence (a) dscloses no reasonable clam or defence, as the case may be, (b) s scandalous, frvolous or vexatous, or (c) s otherwse an abuse of the process of the court. 28. Applcatons for ndgent stans are usually spoken to n court, often on an ex parte bass. The Regstry staff wll provde an applcaton form, blank affdavt and a draft order to anyone who expresses to a court representatve that they cannot afford fees payable to the Crown pursuant to Appendx "C", Schedule. 27 Legslatve Facts -- Hstory of Hearng Day Fees 29. McEwan J. accepted the followng hstory of hearng day fees: 34. Recovery n the form of fees of the cost of runnng the courts n England and Wales has a very long hstory datng back to the 13th century. Fees have always been charged to users of the courts. Orgnally, fees were pad drectly to the judges of the courts, who kept them personally, for the work they carred out. 35. The County Courts Act, 1846 saw the creaton of a court system smlar to that n England today and the ntroducton of judcal salares. The Act provded that court fees would cover the full cost of runnng the courts and, through ths, the courts would be self-fundng. The County Courts Act, 1846 became the law n the Colony of Vancouver sland by operaton of the common law and n the Colony of Brtsh Columba on November 18, 1858, by proclamaton of Governor Douglas. The recepton of Englsh Law on November 18, 1858, n the Colony of Vancouver sland was later confrmed by the Englsh Law Ordnance, On December 2, 1853, after recevng and tablng a letter from the Clerk of the Peace descrbng a scale of Fees adopted by the Justces by resoluton for the carryng on of proceedngs n Justces Court, the Governor n Councl resolved that the Justces of the Peace be authorzed to adopt n all ther future proceedngs a '[~rff of Fees and that an act be prepared forthwth to regulate fees n Offce. 37. n 1865, the Legslatve Councl of Brtsh Columba durng ts Sesson from January to Aprl passed Ordnance No. 22, An Ordnance.for regulatng the amount and applcaton of Fees to be taken n the Supreme Court of Cvl Justce from sutors theren. The Schedule to that Ordnance prescrbes tral Hearng Fees of pound per day from the plantff, and 15 shllngs per day from the defendant for the frst day and 0 shllngs per day from each of the plantff and the defendant for subsequent days for a total of pound per day. 38. n 1867, the County Court Ordnance, 1867 No. 95 was passed whch adopted the mperal County Courts Act, 1846 (UK) (para. 34 above) n the course of assmlatng the procedure of the County Courts n all parts of the colony of Brtsh Columba. Ordnance No. 60, passed n the same year Supreme Court Fees were prescrbed, mrrored those n place n 1865 and, n partcular, contnued the Hearng Fees of 1 pound per day for the plantff, and 15 shllngs per day for the defendant for the frst day and 0 shllngs per day from each of the plantff and the defendant for subsequent days for a total of pound per day. 39. From 1890 to 1906, the Appendx M to the Rules of Court dd not nclude tral Hearng Fees n 27 Snellng Affdavt # at paras. 4-6; JAR (Vol. V) pp t [ t t ~ ~

15 9 ' the Fees Payable to the Crown. n 1912, the Leutenant Governor n Councl re-mposed tral Hearng Fees n the amount of$5.00 per day or any part thereof. Ths was changed on December 2, 1914 to $5.00 per day for the frst day to be pad before the tral or hearng was proceeded wth and $1.00 per hour for every hour of tral or hearng after the frst day. 40. The tral hearng fees have ncreased over the years n the followng fashon: Hearng Fees of $10.00 for the frst day of tral and $5.00 for each addtonal day or part thereof: Supreme Court Rules, 1968, Appendx M, Schedule 3, Fees Payable to the Crown, s Hearng Fees of $30.00 for each addtonal day or part thereof after the ffth day: Supreme Court Rules, 1976, Appendx C, Schedule 1, Fees Payable to the Crown, s Hearng Fees of $50.00 per half day or less, or $ per day or any perod less than a day but more than half a day: Supreme Court Rules, 1990, Appendx C, Schedule 1, Fees Payable to the Crown, s. 8. v Hearng Fees of $ for a tral of half a day or less, and for trals extendng beyond half a day, $ for days one through fve, $ for days sx through ten and $ for each subsequent day: B.C. Reg. 74/ n nflaton-adjusted terms, hearng fees n BC n the perod after Confederaton were as hgh as or hgher than they are today. 29 Legslatve Facts -- Hstory of the ndgency Exempton 31. McEwan J. accepted the followng hstory of the ndgency exempton: 28. n 1494 the Statute ofhenry V 2 Henry V 1494, Ch. X (A Means to Help and Speed Poor Persons n Ther Suts) was enacted provdng a means by whch poor persons could sue and defend aganst sut nforma paupers. [... ] 30. The Statute of Henry V was ntroduced nto ths country on the 19th day of November, 1858, as part of the receved cvl law of England not beng "from local crcumstances napplcable" thereto as the B. C. Englsh Law Ordnance Act of 1867 expresses t. 31. The Statute of Henry V has been appled by the courts snce before confederaton n 1871 to permt poor persons to sue and defend aganst suts wthout payng the fees establshed by the Rules of Court where a ltgant wth a mertorous case was truly unable to pay those fees. The role played by the Statute of Henry V has now been supplanted by an express provson n the Rules of Court dealng wth ndgency Status (Rules of Court Appendx C Schedule 1 S B.C. Reg. 221/90, amended by B.C. Reg 75/98 enacted on March 20, 1998). 30 Legslatve Facts -- Economcs of Hearng Fees 32. Two economsts provded expert reports n the tral. Robert Carson of Assocated 28 Vlardell 2 at para. 142; JAR (Vol. 1) pp ; Vlardell (CA) Appendx C; JAR (Vol. ) pp References omtted. 29 Vlardell 2 at paras. 143 and ; JAR (Vol. ) pp and ; Hldebrand Affdavt #1 Exhbt "C"; JAR (Vol. V) p Vlardell 2 at para. 141; JAR (Vol. ) pp ; Vlardell (CA) Appendx C; JAR (Vol. ) pp References omtted.. t " ~ ~

16 ~. 10 Economc Consultants gave evdence on behalf of the appellants and Douglas Hldebrand of Columba Pacfc Consultng gave evdence on behalf of the AGBC. 33. Mr. Carson opned as follows regardng the purpose of hearng fees: [The polcy goals and objectves] may be sununarzed as revenue generaton, ratonng access to government servces, makng a connecton between the users of specfc servces and the costs of provdng them, and equty (chargng fees on the bass of ablty to pay, and/or makng servces avalable to those n need regardless of ablty to pay)... Relatvely hgh fees wth steeply ncreasng rates after fve or 10 days n court are consstent wth revenue generaton, and wth ratonng objectves Mr. Carson descrbed "ratonng" through the prce system as follows: The economc theory of the consumer s based on the dea that spendng unts (these may be ndvduals or households) try to allocate expendtures between goods and servces n such a way that the utlty ganed from the last dollar spent on each good or servce equals the utlty ganed by the last dollar spent on any other good or servce purchased. n ths way households allocate funds avalable to them between goods and servces and prces detennne how much of each good or servce a household can, or s wllng to buy. Thus households respond to prces whch, n turn, become a devce whch ratons the purchases of goods and servces, based on buyers' preferences an d a b 1 11ty to pay:- 1? 35. Mr. Carson dd not provde any evdence about what level of wealth or ncome trggered ndgency status n BC, and noted that hs nformaton about ths came from counsel. Hs conclusons were, therefore, couched n terms of the proportons of varous populatons that would ether face a serous obstacle to court access or requre exempton. 36. Mr. Carson opned that those wth low ncomes and those n dsadvantaged groups would be over-represented among those who would qualfy for ndgency status and among those wth ncomes too hgh to qualfy for ndgency status but for whom hearng fees would represent a sgnfcant barrer. However, Mr. Carson dd not try to specfy what a "sgnfcant barrer" would mean or to estmate who would fall nto whch group. 33 He opned that the need to know about the opton of ndgency status, the wllngness to accept ths label and the need to prove ndgency could pose barrers to accessng court servces Carson Affdavt #1 Exhbt "B"; JAR (Vol. ) p Carson Affdavt #1 Exhbt "B"; JAR (Vol. ) p Carson Affdavt #1 Exhbt "B"; JAR (Vol. ) p Carson Affdavt #1 Exhbt "B"; JAR (Vol. ) p L, ' ~

17 11 ' 3 7. Mr. Carson acknowledged that hearng fees fund court servces and reduce usage and therefore mplctly acknowledged that they reduce delay. 35 No evdence was presented as to whether the other costs assocated wth obtanng access to court (legal costs, costs mposed by delay, etc.) would be greater or less for low, medum or hgh ncome Brtsh Columbans wth or wthout hearng fees, 36 or comparng access n BC wth jursdctons wthout hearng fees. 38. Mr. Hldebrand also dd not opne as to what levels of ncome or wealth trgger ndgency status n BC. Mr. Hldebrand stated that, from an economc pont of vew, an ndvdual wll "pursue recourse n court f, after takng nto account the lkelhood of success and falure, the expected benefts of the proceedng outwegh the antcpated costs." He nterpreted "barrer" to mean a hearng fee that has the effect of changng the ndvdual's decson as to whether to brng or defend ltgaton Mr. Hldebrand opned that whether hearng fees would be a barrer n ths sense would depend on a number of factors other than ncome, and that there s no specfc ncome level at whch hearng fees would not affect ths decson. 38 He noted that based on the one case about whch there was nformaton n the record, the hearng fees were about 5% of the cost, so there would be a very narrow band wthn whch hearng fees would be the determnng factor as to whether to brng ltgaton. PART - POSTON WTH RESPECT TO QUESTONS N SSUE 40. The Consttutonal Queston s stated as follows, by order of Chef Justce McLachln, dated 15November2013: Are the hearng fees set out n paragraph 14 of Appendx C, Schedule 1 (B.C. Reg. 10/96, as amended) and the hearng fees set out n paragraphs 9 and 0 of Appendx C, Schedule (B.C. Reg. 168/2009, as amended), unconsttutonal on the bass that they nfrnge a rght of access to justce and thereby offend the rule of law? 41. The AGBC says the answer to ths queston s "No." 1 j '.. L 35 Carson Affdavt # Exhbt "B"; JAR (Vol. ) p Vlardell {CA) at para. 20; JAR (Vol. ) p Hldebrand Affdavt #1 Exhbt "C"; JAR (Vol. V) pp Hldebrand Affdavt # Exhbt "C"; JAR (Vol. V) p [ 1

18 12 PART - ARGUMENT Overvew of Argument 42. t s common ground that there s a rght of access to cvl justce n BC and that t requres exemptng ltgants from court fees payable to the Crown (ncludng hearng fees) fthe alternatve s forcng the ltgant to choose between payng everyday necessary expenses and advancng an arguable clam or defence n court. The AGBC says ths rght can be vndcated by approprately nterpretng the exstng rule and, f not, by declarng t ultra vres ts enablng statute. The AGBC says ths s a common law rght, and not a consttutonal one entrenched aganst otherwse-vald legslaton. 43. The queston of whether the mpugned hearng fees are unconsttutonal on the bass that they nfrnge a rght of access to justce naturally resolves tself nto two questons: - ' 1. Frst, do the hearng fees nfrnge the rght of access to cvl justce, whatever ts source? 2. Second, s the rght of access to cvl justce n Canada "consttutonal"? Overvew of why hearng fee does not nfrnge the rght of access to cvl justce 44. Promotng effcency n the use of court-tme s not a purpose that s nconsstent wth the common law rght of access to justce. Ths rght has never been, and cannot be, a rght to unlmted access to cvl trals of unlmted duraton. A provnce exercsng ts authorty under s. 92 (14) of the Consttuton Act, 1867 can mpose condtons on how and when a person may access the cvl courts for the purpose of promotng effcency. 45. The use of hearng fees s not a means that s nconsstent wth the rght of access to justce. As a matter of hstorcal fact, the common law courts charged hearng fees from ther outset. Economc theory suggests hearng fees may reduce delay, a major scourge for court systems generally, and wll n some respects be preferable to the allocaton of hearng tme through case management or other means Posner, Rchard A. Economc Analyss of Law, 7" ed. Austn, TX: Aspen Publshers, 2007 at pp

19 f hearng fees that recover "for servces provded by the government or employees of the government" are contrary to a common law prncple that no prce may ever be leved on court tme (a common law prncple that the appellants concede has no foundaton n hstory), then the BC legslature has extngushed that prncple through s. (2)(d) of the Court Rules Act. 47. The common law requres an exempton for those ltgants who cannot meet ther everyday expenses and pay the hearng fees, and the Court Rules Act mplctly preserves ths requrement. For that very reason, under the modern approach to statutory nterpretaton the words "ndgent" and "mpovershed" should have been and, pror to the tral decson, had been nterpreted broadly and purposvely. f they cannot be so nterpreted, then the subject rules are ultra vres the Court Rules Act, and no consttutonal remedy s necessary. Overvew of consttutonal ssues 48. f, however, the appellants' argument s correct that the conunon law prncple s nconsstent wth any hearng fee, even f affordable to the ltgant requred to pay t, then the AGBC submts the (purported and novel) common law rght would be nconsstent wth the Court Rules Act and the queston of entrenchment then necessarly arses.. j. 49. Answerng whether the rght of access to justce s "consttutonal" requres a detour nto the analyss of what s meant n Canadan law by a "consttutonal" rght. As ths Court has recognzed, the nature of Canada's gradual evoluton from colony to naton has dened t a sngle un vocal meanng of the term "consttutonal" 40. Canada has: 1. The acts and orders lsted n the Schedule to the Consttuton Act, 1982, the Consttuton Act, 1982 tself and any amendments, all of whch are entrenched by s. 52 of the Consttuton Act, 1982 (the "Wrtten Consttuton"); 2. The prncple of the soveregnty of the Queen-n-Parlament, derved from the Unted Kngdom, whch, n our federal state, becomes a prncple of exhaustve dstrbuton oflegslatve power, subject to the Wrtten Consttuton (the "Legslatve Soveregnty Prncple"); 0 ' New Brunswck Broadcastng Co. v. Nova Scota (Speaker of the House of Assembly), [1993] SCR 319 ("NBBC') at pp , ctng Hogg, Peter W. Consttutonal Law of Canada, 3d ed., vol.. Toronto: Carswell, 1992atpp. l-7.

20 14 3. The varous Brtsh consttutonal/publc law prncples dervng from conventon, old statutes, parlamentary law and the common law (the "Publc Common Law Prncples"). n the Unted Kngdom, these are consdered consttutonal, but are ndsputably subject to alteraton by a vald statute of the Queen-n-Parlament. Ths Court has sometmes referred to ths body of rghts as "consttutonal" 41 and other tmes as "not consttutonal"; The prncples of democracy, federalsm, the rule oflaw/consttutonalsm and protecton of mnortes dentfed n the Secesson Reference as the Underlyng Anmatng Prncples. Each prncple has a "thn" meanng that s relatvely uncontroversal and multple "thck" meanngs whch are hghly contested wthn our socety There s a strct rankng of prorty among the frst three types oflegal prncples (the "Prorty Scheme"). n the event of an nconsstency, the Wrtten Consttuton prevals over Legslatve Soveregnty, whch n tum prevals over the Publc Common Law Prncples The AGBC submts that the Underlyng Anmatng Prncples should not be understood as havng an ndependent rankng n ths Prorty Scheme. Rather, they are normatve njunctons to both courts and elected offcals to be referred to n the development of our consttutonal order. 45 They are used by courts n nterpretng the Wrtten Consttuton and statutes and n developng the common law, and by legslators when debatng and enactng statutory law. Many statutes can be seen as arsng from our ongong natonal dalogue about the meang of these Underlyng Anmatng Prncples. On very rare occasons, they have been used by the courts to develop rules n areas where the Prorty Scheme could not logcally apply, such as the secesson of a provnce. But they have not been used as the appellants seek to do here by lmtng the power of the ' ' 41 Re: Resoluton to amend the Consttuton, [1981] l S.C.R. 753 ("Patraton Reference") at pp (common law Crown prerogatve part of the law of the consttuton); Dunsmur V. New Brunswck, 2008 sec 9 at para. 27 (power of judcal revew of statutory trbunals "consttutonal"). 42 Ocean Port Hotel Ltd. v. Brtsh Columba (General Manager, Lquor Control and Lcensng Branch), 2001 SCC 52 ("Ocean Port") at para. 19 (prncples of natural justce "not consttutonal"). 43 Bngham, Tom. The Rule of Law London: Allen Lane, 2010 at p. 66 ("Bngham"). 44 See, for example, Ocean Port, supra note Reference re Secesson of Quebec, [1998] 2 S.C.R. 217 ("Secesson Reference") at para. 54. ~

21 15 legslature wthout any textual or hstorcal warrant The 1ght of access to courts for purely cvl matters s one of the Publc Common Law Prncples. t s closely ted to the rule oflaw, understood n a "thck" sense. However, t s not located n the Wrtten Consttuton, nor s otherwse entrenched. 53. t s the AGBC's submsson that the Prorty Scheme s tself essental to the rule oflaw, democracy and federalsm. Placng judcal nterpretaton of the Underlyng Anmatng Prncples above the compromses of the Wrtten Consttuton tself would amount to an amendment of the Consttuton of Canada wthout the use of the procedures set out n Part V of the Consttuton Act, 1982, whch s forbdden bys. 52(3) of the Consttuton Act, The Rules are Consstent Wth the Common Law Rght of Access to Justce 54. A subordnate enactment, such as the Supreme Court Rules (now the Supreme Court Cvl Rules and Supreme Court Famly Rules) can be challenged ft s shown to be nconsstent wth the objectve of the enablng statute or beyond the scope of the statutory mandate. 47 Subordnate enactments beneft from a presumpton of valdty, whch means both that the burden s on the challenger to show the nconsstency and that they are read, to the extent possble, n a manner whch render them ntra vres. Both the subordnate enactment and the statute should be nterpreted usng a broad and purposve approach consstent wth ths Com's approach to statutory nterpretaton generally. 48 Where, as here, there s a deep-rooted common law rght of access, the statute wll be presumed not to ntend to nterfere wth that common law rght, and, therefore, the subordnate enactment wll also be subject to that presumpton. The objectve and purpose of the Court Rules Act s to enable rules that best provde for the just, speedy and nexpensve determnaton of every matter on ts merts: goals that are consstent wth, and ndeed dctated by, the common law rght of access to justce. 55. The Court Rules Act lmts fees to the government to fees for servces and dutes provded by the government or employees of the government. Ths s consstent wth the lmtaton set by 46 Brtsh Columba v. mperal Tobacco Canada Ltd., 2005 SCC 49 ("mperal Tobacco") at paras , Katz Group Canada nc. v. Ontaro (Health and Long-Term Care}, 2013 SCC 64 ("Katz Group") at para Katz Group, supra at para. 25.

22 16 ths Court n Eurg Estate for court fees, as opposed to taxes. 49 Access to Cvl Justce docs not meau unlmted access to trals of unlmted duraton 56. t would seem to go wthout sayng that access to cvl justce n Canada cannot mean an unlmted rght of all would-be ltgants to trals of unlmted duraton. However, the appellants explctly argue that f a polcy ntentonally mposes any nhbton on the use ltgants make of court tme, t has an mpermssble purpose. 50 They say that fhearng fees "deter use" or "nfluence avalablty" of courts, or "cause ltgants to raton court tme", then those fees are per se unconsttutonal As wth access to all fnte goods, the rght of access to court for cvl purposes must have lmts placed upon t to ensure access for others. Ths Court has noted the falure to mpose reasonable lmtatons on the use of court tme, tself, volates the rght of access to justce n settng out a test for mootness, ths Court rooted the need for such a test n the basc fact that the realty of scarce resources means there s "a need to raton [those resources] among competng clamants" 53, and remarked that the hghest courts of all common law countres have "recognzed the need to balance the access of publc nterest groups to the Courts aganst the need to conserve scarce judcal resources. " 54 Even n a crmnal tral, where there s a consttutonal rght to make full answer and defence, cross-examnaton may be lmted on the bass that "[j]udcal resources are scarce and they ought to be used constructvely, not wasted on pontless ltgaton. " The executve and legslatve branches of the provncal government have a role to play n defnng the lmtatons to be placed on access to cvl ltgaton processes and procedures: The rght affrmed n B. C. G.E. U. s not absolute. The legslature has the power to pass laws n relaton to the admnstraton of justce n the provnce under s. 92(14) of the Consttuton Act, 49 Eurg Estate, supra note 4 at para BC CBA Factum, para. 2, BC CBA Factum, para Hrynak v. Mauldn, 2014 SCC 7 ("Hrynak") at para. 23 ("[U]ndue process and protracted trals, wth unnecessary expense and delay, can prevent the far and just resoluton of dsputes.") Emphass n the orgnal. 53 Boro1vsk, supra note 5 at para Canadan Councl of Churches, supra note at p R. v. Jesse, supra note 1 at para 63.

23 Ths mples the power of the provnce to mpose at least some condtons on how and when people have a rght to access the courts The appellants try to dstngush between "condtons on how and when people have a rght to access the courts" and measures "ntended to hnder access to the courts." 57 However, any condton necessarly hnders someone's access to court. Standng rules hnder access. The requrement to set out a cause of acton n a pleadng hnders access. Lmts on the admssblty of evdence hnder access. Cost rules hnder access, n the sense that they dsncentvze clams (whch s the same sense n whch hearng fees hnder access). 61. Snce access to cvl justce s scarce, effcency s a necessary goal of the system for allocaton of court tme. 58 An allocaton that lmts access s effcent to the extent that t maxmzes overall access on a systemc level gven the avalable resources. An neffcent system of allocaton would therefore lmt access more than s necessary. Courts have often expressed as axomatc the need to promote effcency n ltgaton and to balance t wth farness. 59 Access to Justce consstent wth monetary ncentves n form of fees 62. Hearng fees have been charged for the use of common law courts from ther orgns. These fees became part ofbc's law as a result of the general recepton of Englsh law n 1858, and except between 1890 and 1912, have exsted ever snce. t s therefore dffcult to see how they can per se be n contradcton of a foundatonal common law rght of access to justce. 63. The common law s frst and foremost an actual and exstng hstorcal body oflaw. Present day courts have the power to reform the common law, but only as necessary to keep t n step wth socety, to clarfy a legal prncple or to resolve an nconsstency. Change must be ncremental and ts consequences must be capable of assessment Chrste, supra note 24 at para BC CBA Factum at para Acton Commttee on Acces to Justce n Cvl and Famly Matters. "Access to Cvl & Famly Justce: A Roadmap for Change", October 2013 (onlne: AC_ Report_ Englsh _Fnal.pdf) at p For example, Brtsh Columba (Mnster of Forests) v. Okanagan ndan Band, 2003 SCC 71 ("Okanagan ndan Band") at para. 26 ("the tradtonal approach to costs can also be vewed as beng anmated by the broad concern to ensure that the justce system works farly and effcently"). 6 Fredmann Equty Developments nc. v. Fnal Note Ltd., 2000 SCC 34, at para. 42.

24 There s no socal consensus that fees to nternalze socal costs as part of prvate decson-makng are a bad thng. On the contrary, contemporary nterest n congeston prcng, tradeable polluton rghts and carbon taxes are examples of how socety has started usng monetary ncentves to more effcently allocate what n the past was not understood to be scarce. The lack of socal consensus aganst the use of fees as a polcy nstrument s demonstrated by the fact that the cost recovery approach to court fees has been adopted n BC under governments of both major poltcal partes n that provnce. 65. The use of means-testeclrc9urt fees to address delays s supported by mcroeconomc theory. Judge Rchard Posner, formerly Chef Judge for the U.S. Court of Appeals for the Seventh Crcut and the author of a leadng textbook on the economc analyss oflaw, has argued that court delay can only be addressed through hgher court fees, modfed by what he calls "prce dscrmnaton" n favour of the ndgent. Posner argues that the falure to ndex court fees to nflaton n the 1960s and 1970s n the U.S. federal court system was a major cause of ncreased ltgaton delays, whch occurred notwthstandng a large ncrease n the number of appontments of federal judges durng the same tme perod Both expert economsts agreed wth Judge Posner's basc theoretcal assumpton that hearng fees would tend to cause ltgants to restrct ther use of court tme when the expected rewards of dong so were outweghed, at the margn, by the rsk of not prevalng and havng to pay the hearng fees (although, as Mr. Hldebrand ponted out, ths would often be dwarfed by the ltgant's own legal blls and expected cost award). Both agreed ths effect would exst even for a ltgant who s wealthy enough to afford the fees. 67. The dsncentve effects of potental lablty for hearng fees are precsely analogous to the dsncentve effects of costs awards between partes n the most common stuaton, the plantff sets down a cvl acton for tral and the successful party obtans a costs award. The plantff only pays the hearng fee fhe or she loses 61 Posner, supra note 39 at pp Okanagan ndan Band, supra note 59 at para. 26 ("Because costs awards transfer some of the wnner's ltgaton expenses to the loser rather than leavng each party's expenses where they fall (as s done n jursdctons wthout costs rules), they act as a dsncentve to those who mght be te1npted to harass others wth mertless clams.")