(ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA) BETWEEN

51 Pages·2014·1.59 MB·English

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Court File No. 35315
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IN THE SUPREME COURT OF CANADA i
(ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)
BETWEEN:
TRIAL LAWYERS ASSOCIATION OF BRITISH COLUMBIA and
CANADIAN BAR ASSOCIATION - BRITISH COLUMBIA BRANCH
APPELLANTS
(RESPONDENTS)
AND:
ATTORNEY GENERAL OF BRITISH COLUMBIA
RESPONDENT
(APPELLANT)
AND:
ATTORNEY GENERAL OF CANADA,
ATTORNEY GENERAL FOR THE PROVINCE OF ONTARIO,
ATTORNEY GENERAL OF QUEBEC, ATTORNEY GENERAL OF ALBERTA,
ADVOCATES' SOCIETY, WEST COAST WOMEN'S LEGAL EDUCATION AND
ACTION FUND, and DAVID ASPER CENTRE FOR CONSTITUTIONAL RIGHTS
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INTERVENERS
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FACTUM OF THE RESPONDENT
ATTORNEY GENERAL OF BRITISH COLUMBIA
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(Pursuant to Rule 44 of the Rules oft he Supreme Court a/Canada)
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ATTORNEY GENERAL OF BRITISH COLUMBIA BURKE-ROBERTSON LLP
Ministry of Justice Barristers and Solicitors
Legal Services Branch 441 MacLaren Street, Suite 200
1001 Douglas Street, 61h Floor Ottawa, ON K2P 2H3
P.O. Box 9280, Station Prov Govt Telephone: [phone]
Victoria, BC V8W 9J7 Facsimile: [phone]
Telephone: [phone] Email: [email protected]
Facsimile: [phone] Robert E. Houston, Q.C.
Email: [email protected] Ottawa Agents for Counsel for the
Respondent, Attorney General of British
J. Gareth Morley Columbia
Bryant A. Mackey
Counsel for the Respondent,
Attorney General of British Columbia
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MILLER THOMSON LLP SUPREME ADVOCACY LLP
Barristers and Solicitors Barristers and Solicitors
1000 - 840 Howe Street I 00 - 340 Gilmour Street
Vancouver, BC V6Z 2Ml Ottawa, ON K2P OR3
Telephone: [phone] Telephone: [phone], Ext. 102
Facsimile: [phone] Facsimile: [phone]
Email: [email protected] Email: [email protected]
Darrell W. Roberts, Q.C. Marie-France Major
Chantelle Rajotte Ottawa Agents for Counsel for the Appellant,
Counsel for Appellant, Trial Lawyers Trial Lawyers Association of British Columbia
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Association of British Columbia
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CAMP FIORANTE MATTHEWS MICHAEL SOBKIN
Barristers and Solicitors Barrister and Solicitor I
400 - 856 Homer Street 331 Somerset Street West
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Vancouver, BC V6B 2W5 Ottawa, ON K2P OJ8
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Telephone: [phone] Telephone: [phone] I
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Facsimile: [phone] Facsimile: [phone]
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Email: [email protected] Email: [email protected]
Sharon D. Matthews, Q.C. Michael J. Sobkin I
Melina L. Buckley Ottawa Agent for Counsel for the Appellant, I
Counsel for the Appellant, Canadian Bar Canadian Bar Association - British Columbia !
Association - British Columbia Branch Branch I
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ATTORNEY GENERAL OF CANADA ATTORNEY GENERAL OF CANADA
Department of Justice 50 O'Connor Street, Suite 500, Room 557
900 - 840 Howe Street Ottawa, ON KIA OHS
Vancouver, BC V6Z 2SO Telephone: [phone]
Telephone: [phone] Facsimile: [phone]
Facsimile: [phone] Email: [email protected]
Email: [email protected] Christopher M. Rupar
Jan E. Brongers Ottawa Agents for Counsel for the Intervener, i·
Alain Prefontaine Attorney General of Canada
Counsel for the Intervener,
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Attorney General of Canada i.
ATTORNEY GENERAL FOR THE PROVINCE BURKE-ROBERTSON LLP
OF ONTARIO Barristers and Solicitors
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720 Bay Street, I O'h Floor 441 MacLaren Street, Suite 200
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Toronto, ON MSG 2KI Ottawa, ON K2P 2H3
Telephone: [phone] Telephone: [phone] I
Facsimile: [phone] Facsimile: [phone] !
Email: [email protected] I'·
Shannon Chase Robert E. Houston, Q.C. I
Sara Weinrib Ottawa Agents for Counsel for the Intervener,
Counsel for the Intervener, Attorney General for the Province of Ontario
Attorney General for the Province of Ontario
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PROCUREUR GENERAL DU QUEBEC NOEL & AssOCIES
1200 route de l'Eglise, 2e etage Barristers and Solicitors
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Ste-Foy, Quebec GI V 4Ml 111, rue Champlain
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Telephone: [phone] Gatineau, Quebec JSX 3RI
Facsimile: ( 418) 644-7030 Telephone: [phone]-
E-mail: [email protected] Facsimile: [phone] 1
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Alain Gingras Email: [email protected] I
Dana Pescarus Pierre Landry
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Counsel for the Intervener, Ottawa Agents for Counsel for the Intervener,
Attorney General of Quebec Attorney General of Quebec
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ATTORNEY GENERAL OF ALBERTA GOWLING LAFLEUR HENDERSON LLP
Department of Justice Barristers and Solicitors
403 Legislature Building 2600 - 160 Elgin Street
Edmonton, AB TSK 2B6 PO Box 466, Stn. "D" I
Telephone: [phone] Ottawa, ON KIP IC3
Facsimile: [phone] Telephone: [phone] I
E-mail: [email protected] Facsimile: [phone]
Donald Padget Email: [email protected]
Counsel for the Intervener, Henry S. Brown, Q.C.
Attorney General of Alberta Counsel for the Intervener, I
Attorney General of Alberta
FARRIS, VAUGHAN, WILLS & MURPHY LLP GOWLING LAFLEUR HENDERSON LLP
Barristers & Solicitors Barristers and Solicitors
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700 West Georgia Street, 25'11 Floor 2600 - 160 Elgin Street
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Vancouver, BC V7Y I B3 PO Box 466, Stn. "D" I
Telephone: [phone] Ottawa, ON KIP 1C3
Facsimile: [phone] Telephone: [phone]
E-mail: [email protected] Facsimile: [phone]
Joseph A. Arvay, Q.C. Email: [email protected]
Tim Dickson Henry S. Brown, Q.C.
Kelly D. Jordan Counsel for the Intervener,
Counsel for the Intervener, Advocates' Society
Advocates' Society I
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YOUNG, ANDERSON BORDEN LADNER GERY AIS LLP
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Barristers & Solicitors Barristers and Solicitors I
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1616 - 808 Nelson Street World Exchange Plaza
PO Box 12147, Nelson Square I 00 Queen Street, Suite 1300 I
Vancouver, BC V6Z 2H2 Ottawa, ON KIP 1J9
Telephone: [phone] Telephone: [phone] I
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Facsimile: [phone] Facsimile: [phone] ~
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E-mail: [email protected] Email: [email protected]
Francesca V. Marzari Nadia Effendi
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Kasari Govender Counsel for the Intervener, I'
Counsel for the Intervener, West Coast Women's Legal Education and !
West Coast Women's Legal Education and Action Fund ~
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Action Fund
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UNIVERSITY OF TORONTO BLAKE, CASSELS & GRAYDON LLP
39 Queen's Park Crescent East Barristers and Solicitors
Toronto, ON M5S 2C3 1750 - 340 Albert Street
Telephone: [phone] Constitution Square, Tower 3
Facsimile: (4 16) 978-8894 Ottawa, ON KIR 7Y6
E-mail: [email protected] Telephone: [phone]
Cheryl Milne Facsimile: [phone]
Paul Schabas Email: [email protected]
Counsel for the Intervener, Nancy K. Brooks
David Asper Centre for Constitutional Rights Counsel for the Intervener,
David Asper Centre for Constitutional Rights
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TABLE OF CONTENTS
PART PAGE
PART 1: OVERVIEW OF POSITION AND STATEMENT OF FACTS i
PART II- POSITION WITH RESPECT TO QUESTIONS IN ISSUE 11
PART III -ARGUMENT 12
PART IV-SUBMISSIONS AS TO COSTS 40
PART V - ORDER SOUGHT 40
PAR VI - TABLE OF AUTHORITIES 41
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PART VII - LEGISLATION 45
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PART 1: OVERVIEW OF POSITION AND STATEMENT OF FACTS
Overview of Position
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1. Access to courts to determine civil disputes is a foundational common law right dating
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back to the Middle Ages. Making that right meaningful - especially for low-income and
moderate-income Canadians - is one of the most difficult public policy problems of the twenty
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first century. An aspect of the problem is that court-time is a scarce resource, 1 and one which
must be allocated as fairly and efficiently as possible. Since it is scarce, excessive use of court
time by one group of litigants necessarily delays or denies access to others.
2. One policy instrument British Columbia ("BC") uses to face the challenge of making
access to civil justice meaningful is a means-tested hearing fee. In the ordinary course, a litigant
setting a matter down for trial undertakes to pay a fee based on the length of trial. The fees are
structured to recover most of the provincially-funded expenses associated with court hearings,
other than criminal hearings and family hearings in provincial court. The daily rate of the fee
increases with the length of trial to provide a subsidy for shorter hearings at the expense oflonger
ones within that overall framework Currently there is no hearing fee for the first three days spent
in court.
3. The hearing fee, unlike most other court fees, is not paid in advance. The registry invoices
the litigant who set down the matter for trial, unless the court otherwise orders. However, since
the hearing fee is a disbursement, the successful litigant is normally indemnified for it as part of
an award of costs following the event. In addition, the court has the power to relieve a litigant
from all or some court fees, including the hearing fee, based on financial status. At the time of
trial in this case, this was referred to as an "indigency" application. In 2010, the language in the
rules of court was modernized and the term "impoverished" was substituted for indigency.
4. The first and principal argument raised by the appellants is that the purpose of the hearing
fee violates the right of access to civil justice. The appellants rely on the following statement:
We understand the purpose of the increase in the fee as the number of trial days increases to be
1 Canadian Council of Churches v. Canada (Minister of Employment and Immigration, [1992] 1 S.C.R. 236
("Canadian Council of Churches"), at p. 243; R. v. Jesse, 2012 SCC 21, at para 63.
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twofold. The primary purpose is[ ... ]to provide an incentive for efficient use of court time and a
disincentive for lengthy and inefficient trials. The secondary purpose is[ ... ]to provide sufficient
revenue on average to partially offset the overall costs of providing trial facilities for litigants.2
5. The appellants' main argument appears to be that the hearing fees are invalid, regardless
of their effects, because one or both of these aforementioned purposes is "invidious. "3 The
Respondent, Attorney General of BC ("AGBC"), submits that these purposes are not only
unexceptionable, but necessary to promote the goal of access to civil justice.
6. Cost recovery through court fees helps maintain a stable budget for civil litigation-related
public expenditures. If those fees did not exist and their loss was not offset from general revenue,
court services would have to be reduced. Generally, the purpose of cost recovery (as opposed to
the means by which this is accomplished) has never been found to be problematic.4 Furthermore,
there is no evidence that subsidizing superior court trials is the most effective use of scarce public
funds for promoting access to justice.
7. The other purpose is "to provide an incentive for efficient use of court time and a
disincentive for lengthy and inefficient trials." The AGBC argues that it is impossible to imagine
a court system that does not concern itself with efficient use of court time. A valuable, scarce
good or service must be allocated somehow, in the sense that the access of some (or perhaps all)
must be limited ifthere is to be meaningful access for others. 5 Allocation can occur through
conscious distribution by a decision-maker, monetary incentives, queuing, or a combination of all
three, but necessarily it must occur. There is abundant authority that efficiency is an important
value and not an invidious purpose. At the same time, efficiency should not be the only value.
Hearing fees promote efficiency in allocation, but they would be unfair if they were charged
without regard to ability to pay. The common law has always recognized this, and thus has
2 This is the source of the appellants' claim that the purpose of the impugned rule is to create a barrier of access to
justice: Vilardell v. Dunham, 2012 BCSC 748 ("Vi/ardel/ 2") at para. 309; Joint Appellants Record ("JAR") (Vol. I)
p. 139, and Vilardell v. Dunham, 2013 BCCA 65 at para. 19 ("Vi/ardell (CA)"); JAR (Vol. II) pp. 7-8. A similar
statement of a twofold purpose of revenue generation and disincentivizing longer hearings, along with a third
purpose of promoting "equity" (manifested in the "indigency" exemption) is found in the appellants' expert's report:
Carson Affidavit #1 Exhibit "B"; JAR (Vol. III) p. 180.
3 BC CBA Factum, para. 31.
4 Eurig Estate (Re), [1998] 2 S.C.R. 565 ("Eurig Estate") (court fees intra vires province unless for generating
surplus).
5 Borowski v. Canada (Attorney General), [1989] I S.C.R. 342 at p. 360 ("Borowski") ("It is an unfortunate reality
that there is a need to ration scarce judicial resources among competing claimants").
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allowed for exemptions in forma pauperis for litigants oflimited means.
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8. The appellants' second argument is that even with a means-tested exception, the effect of
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the hearing fees places too great a burden on the ability of those who cannot afford to pay hearing
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fees. To the extent that this burden is caused by an interpretation of"indigency" or
"impoverishment" that fails to include some persons who cannot reasonably afford to pay the
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fees, the interpretation is wrong. Standard principles of statutory interpretation, and the case law,
support a reading broad enough to ensure that no one is prevented from pursuing a claim or
defence because they cannot afford the court fees. To the extent that individuals are required to
make a court application (typically unopposed and ex parte) to establish their status, that is not a
sufficiently substantial burden to justify depriving government of this policy instrument. There is I
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no precedent for a right that is violated simply by providing for a process to vindicate it.
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9. There is no evidence that those who cannot afford to pay hearing fees would be net i·
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winners ifhearing fees were abolished. The immediate result would be fewer resources for court
services and less incentive for wealthier individuals and institutional litigants to economize their
use of co mi time.
10. The right of reasonable access to civil justice is a common law right, and it is preserved
by BC's Court Rules Act, 6 but access to civil justice is not entrenched in Canada's written
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constitution. Common law principles of public law, while "constitutional" in some sense of the
word, are subject to legislative supremacy. This appears to have been a deliberate decision by the r
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framers of the Canadian Charter ofR ights and Freedoms ("Charter") to leave the final decisions I
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on further reform of civil and family law procedures and processes to the legislatures.
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11. The Charter, and the other rights-granting provisions of the written constitution, were l
enacted against the background presumption of Parliamentary sovereignty (in Canada's
federation, the "exhaustiveness" principle). New entrenched rights can only be added to the
constitution through the process set out in Part V of the Constitution Act, 1982.
12. Since it is found in subordinate legislation, the impugned hearing fee should be reviewed
for consistency with the Court Rules Act, which does not abrogate the common law right of
6 S.B.C. 1989, c. 22 (now R.S.B.C. 1996, c. 80).
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reasonable access to court. The Court, therefore, can conduct its review without reference to the
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"Constitution of Canada" in the sense set out ins. 52 of the Constitution Act, 1982.
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13. The hearing fee does not contradict reasonable access to justice. In fact, with properly I
interpreted and applied exemptions, it enhances access to justice. In any event, since it violates
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no provision of the entrenched constitution, and is clearly within the scope of s. 92(14) of the
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Constitution Act, 1867 and provincial legilsative competence, the debate about its merits must be
resolved in the political process.
Adjudicative Facts and Court Proceedings
14. This case arose as a family law dispute. The parties are parents ofa young daughter (five
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years old at the time of trial in February & March 2009). The plaintiff: Montserrat Vilardell,
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claimed an interest in part of a home owned by the defendant, Bruce Dunham, as a result of their
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relationship, and sought to move with their daughter to Europe. Mr. Dunham held a tenure track I
position as a statistics professor at the University of British Columbia, and resisted the move. Ms.
Vilardell was trained as a veterinarian, and was qualified to practice in the European Union, but
had not qualified in Canada (deliberately, as found by the trial judge). 7 The parties had shared
custody of their daughter.
15. Ms. Vilardell retained two lawyers before trial and paid for their services with her
Canadian savings. 8 In her "Affidavit of Indigent Status" she deposed that in the two years I
preceding Vilardell #2 she spent $23,000 in savings on lawyers fees9. At a case management I
conference, the case management judge (who was not the trial judge) accepted Mr. Dunham's 10-
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day trial estimate . Ms. Vilardell's legal counsel then withdrew and she went to trial self I
represented11. The trial judge, T. M. McEwan J., noted that the defendant made submissions
regarding Ms. Vilardell' s lack of compromise and determinedness to proceed to trial. 12
16. At the outset of the trial, Ms. Vilardell sought to be relieved from paying the daily court
7 Vilarde/l v. Dunham, 2009 BCSC 434 ("Vilardell I") at paras. 80-82;JAR (Vol. I) p. 28; Vilardell 2 at para. 17;
JAR (Vol. I) p. 48.
8 Affidavit oflndigent Status of Montserrat Vilardell at para 13; JAR (Vol III) p. 141.
9 Affidavit oflndigent Status of Montserrat Vilardell Exhibit "A"; JAR (Vol III) p. 152.
'0 Affidavit oflndigent Status of Montserrat Vilardell at para 19; JAR (Vol III) p. 142.
11 Vilardell 2 at para. 4; JAR (Vol. I) p. 45.
12 Vilardell 2 at para. 18; JAR (Vol. I) p. 48.