Appeal court takes cop-out route on court fees

  • February 20, 2013

Justices say a lower court was wrong to call fees unconstitutional, decide that judges can rule case-by-case on who can afford them

Source: Vancouver Sun
Byline: Ian Mulgrew

B.C.’s highest bench has let down the public with its decision on government-imposed court-hearing fees.

The Court of Appeal three-justice panel has told judges to fix the constitutional flaw in the fees by re-interpreting the word “indigent.”

By substituting in its place the phrase “or in need,” the unanimous ruling said, judges can provide an antidote to the noxious costs, which have become the reason many lawsuits are abandoned, such as the litigation over the sinking of the Queen of the North ferry.

With the support of his colleagues Edward Chiasson and Nicole Garson, Justice Ian Donald acknowledged that hearing fees have the potential to pervert justice.

“The remedy I propose in this case is a measured response to the problem,” he added. “The [new] 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.”

“Needy” as a constitutional concept? Is that before or after paying a lawyer? For instance, the woman in this case had already paid some $20,000 to a lawyer to get to trial.

The judgment completely missed the point.

This was not about a middle-class woman who couldn’t pay roughly $3,600 in fees for a 10-day trial because she had other bills. It was about their fundamental unfairness and their broad affect on vulnerable sectors of society and most members the middle class.

In the best traditions of an independent judiciary, B.C. Supreme Court Justice Mark McEwan started this discussion four years ago by realizing the systemic nature of the woman’s predicament.

He invited the attorney general, the Law Society, the Canadian Bar Association and the Trial Lawyers’ Association to appear before him in what became a proceeding on the constitutional validity of the fees. The Crown and the bar occupied centre stage, not the two litigants — an unemployed veterinarian and a UBC professor.

After listening to lengthy arguments, McEwan spent two years of soul-searching before producing last May a veritable cri de coeur.

He surveyed Canada’s legal history from its roots in old documents such as the Magna Carta of 1225 and the 1494 Statute of Henry VII, to the present-day Charter of Rights and Freedoms.

Weaving together precedent with economic and cultural analysis, McEwan provided a trenchant interpretation of the use of fees.

Writs cost money both before and after the Magna Carta was adopted and different kinds of legal levies have been imposed over the centuries — but there was an exemption for the poor.

Hearing fees disappeared in B.C. for a long time and were reintroduced by the NDP in 1998, a move inspired by Britain’s move to a user-pay system for its civil courts.

The present B.C. Liberal administration stridently argued that the fees did not pose a barrier to justice because a judge could waive them for any litigant who qualified as “indigent.”

McEwan, however, dismissed that argument, saying this was not about the poor but about the struggling middle class.

“A person who cannot afford a fee of $100 or $200 may properly be described as indigent, that is, as being ‘destitute,’ ‘needy,’ ‘in want,’ ‘poor’ or ‘necessitous’ as the dictionaries define the term,” McEwan said in his landmark 178-page ruling. “It is an awkward word to use to describe a middle-class family’s inability to pay a month’s net salary for the two-week ‘rent’ of a courtroom.”

The appeal court acknowledged McEwan’s diagnosis but threw out his prescription, which struck down the hearing fees as unconstitutional.

According to Donald, the long-standing exemption from fees for the indigent codified in the Statute of Henry VII simply needs updating.

“In my opinion,” he said, “were it not for the power of the courts to give relief from the hearing fees, they would be an unconstitutional impediment to justice. The power [to remove that barrier] is found in an enlarged interpretation of the indigency provision.”

Anticipating such a mealy-mouthed, head-in-the-sand reaction, McEwan had warned that such a response would bring the whole exercise into disrepute: “The courts simply do not engage in calling things what they are not, and could not be enlisted into an executive function by administering a more general form of means test to those who come before them, without compromising the appearance of independence, and the fact of equality before the law.... The ‘indigency’ remedy does not cure this obvious impediment to access to justice.”

He recognized the indignity of forcing working people to claim poverty as supplicants for charity in order to get their time in court, perpetuating inequality in relation to better funded litigants such as former husbands or the Crown.

Donald figures people won’t feel stigmatized because so many of them are in the same boat.

Boy, did he get it wrong: the most-effective and proper way to deal with unconstitutional hearing fees was to send the whole concept back to the legislature for debate.

This decision wasn’t a remedy; it was a cop-out.