Pleau v. Nova Scotia (Prothonotary), (1998) 186 N.S.R.(2d) 1 (SC)

• Judge: MacAdam, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: Tuesday December 22, 1998
• Jurisdiction: Nova Scotia
• Citations: (1998), 186 N.S.R.(2d) 1 (SC)

Pleau v. N.S. (1998), 186 N.S.R.(2d) 1 (SC);

 581 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2000] N.S.R.(2d) TBEd. SE.001

Paul Pleau (applicant) v. The Prothonotary (the Law Courts, Halifax, Nova Scotia), the Supervisor, Access to Justice, and the Director of Appeal and Supreme Court Services (respondents) and the Canadian Bar Association, Nova Scotia Section and the Nova Scotia Barristers Society, Brian Hawes and Hawes Trucking & Exca­vating Ltd., Smith's Field Manor Development Limited and Jane Grover (intervenors)

(S.H. No. 151044)

Indexed As: Pleau v. Nova Scotia (Prothonotary)

Nova Scotia Supreme Court

MacAdam, J.

December 22, 1998.

Summary:

Regulation 69/98 pursuant to the Costs and Fees Act provided for increases in existing court fees and new court fees. The new fees included a jury deposit fee, a hearing fee, an excess time fee and an ad­journment fee. The appli­cant and intervenors challenged the court fees.

The Nova Scotia Supreme Court held that the hearing fee, the jury deposit fee and the excess time fee were unconstitutional be­cause they hindered access to the courts. The court discussed the effective dates of the valid fees.

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms -Denial of liberty - What constitutes - Regulation 69/98 under the Costs and Fees Act provided for increases in existing court fees and new court fees - The applicant and intervenors argued that the fees vio­lated s. 7 of the Charter - The Nova Scotia Supreme Court held that nothing in the Regulation deprived a per­son of liberty - Any deprivation resulting from the fee, if at all, was in respect to accessing the courts and did not involve personal liberty - See paragraphs 59 to 65.

Civil Rights - Topic 1859

Freedom of speech or expression - Limi­tations on - Restricted access to courts - Court fees - Regulation 69/98 under the Costs and Fees Act provided for increases in existing court fees and new court fees - The applicant and intervenors argued that the fees violated s. 2(b) of the Charter because they restricted freedom of expres­sion by limiting access to the courts - The Nova Scotia Supreme Court stated that the charging of a reasonable fee for service did not violate the right to freedom of express­ion - "The fee does not impair the right of anyone to express their views, only the where and when. The where and when are only subject to the fee levied for providing the necessary facility and staff" - See paragraphs 53 to 58.

Civil Rights - Topic 1863

Freedom of speech or expression - Denial of - What constitutes - [See Civil Rights - Topic 1859 ].

Civil Rights - Topic 8310

Canadian Charter of Rights and Freedoms - General - Right of access to courts - The Nova Scotia Supreme Court stated that "[a]ccess to justice is neither a service nor a commodity. It is a constitutional right of all citizens; any impediments must be strictly scrutinized. Regardless of whether the impediment takes the form of a tax, a fee, an allowance, or some other form, it will, and must fail if its effect is to unduly 'impede, impair or delay access to the courts'." - See paragraph 66.

Civil Rights - Topic 8310

Canadian Charter of Rights and Freedoms - General - Right of access to courts - Regulation 69/98 under the Costs and Fees Act provided for increases in existing court fees and new court fees - The fees could be waived if a party did not meet certain income or asset thresholds - The applicant and intervenors challenged the fees, argu­ing that they denied or hin­dered access to the courts - The Nova Scotia Supreme Court held that access to courts was a fundamental right and a cornerstone of rights in a democratic society - Although the hearing fees for court time in trials and appeals were intended as a charge for court facilities and staff, they had the effect of putting a price on accessing the courts and on justice - Even a modest hearing fee was unaccept­able - Further, the permitted fees could not be increased in number or size so as to constitute an undue "impediment, impair­ment or delay in accessing the courts" - See paragraphs 88 to 123 - The court held that the hear­ing fee, the jury deposit fee and the excess time fee were all unconsti­tutional - See paragraphs 141 to 143.

Civil Rights - Topic 8310

Canadian Charter of Rights and Freedoms - General - Right of access to courts - The Nova Scotia Supreme Court stated that "[f]ees related to the provision of services, such as for the commencement of a legal proceeding, setting down for trial, as a penalty for wastage of resources caused by late trial adjournments and for summoning juries involve the processes in getting to trial or to the court and providing they are not so inordinate as to effectively 'impede, impair or delay' access to the courts, the provisions of the [Costs and Fees Act] permit them and nothing under the Consti­tution, both written and unwritten, preclude them." - See paragraph 96.

Civil Rights - Topic 8310

Canadian Charter of Rights and Freedoms - General - Right of access to courts - The Nova Scotia Supreme Court stated that "[t]he existence of reasonable fees, that is, fees in amounts that can reasonably be afforded by citizens in general, and not the well to do, at one end of the spectrum, and those qualifying for legal aid, at the other, is not precluded by the constitutional right to access the courts. The processes involved in litigation invoke the provision of various services. A reasonable fee is neither an impediment, impairment or cause for delay. A reasonable fee, how­ever, is not necessarily a full reimburse­ment for the costs of the services. In many cases, it will be substantially less than the costs of the services. Otherwise valid reasonable fees, will lose their constitu­tional validity, in circumstances that cause them to 'impede, impair or delay' access to the courts." - See paragraph 105.

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Analogous cat­egories - Regulation 69/98 under the Costs and Fees Act provided for increases in existing court fees and new court fees - The applicant and intervenors argued that the fees violated s. 15 of the Charter because they were discriminatory - The Nova Scotia Supreme Court stated that "plaintiffs are linked only by the fact they are pursuing remedies or relief in the courts. The fact they are required to pay a fee to reserve time to have their lawsuits heard does not constitute them a group with one of the enumerated traits in s. 15, or any analogous trait, or that the unequal treatment is based on the stereotypical application of presumed group or personal characteristics. The difference in treatment is based on the fact they wish to reserve trial dates, clearly not a ground either enumerated in s. 15, or analogous to any of the listed grounds." - See paragraphs 47 to 52.

Constitutional Law - Topic 6822

Provincial jurisdiction (s. 92) - Direct taxation within the province - What con­stitutes a tax - Section 2(1) of the Costs and Fees Act authorized the Governor-in-Council to determine fees in respect to certain services - The Governor-in-Coun­cil created a Regulation that provided for increases in existing court fees and new additional court fees - The fees included a hearing fee for court time in trials and appeals - The applicant and intervenors argued that the fees were ultra vires because they were taxation and required legislative authority - The Nova Scotia Supreme Court held that the fees were not a tax - They were a fee for service - They did not provide a profit - There was a reasonable connection between the cost of the service provided and the amount charged - See paragraphs 16 to 36.

Courts - Topic 308

Judges - Independence of judiciary - What constitutes interference with - Reg­ulation 69/98 under the Costs and Fees Act pro­vided for increases in existing court fees and new court fees - The fees included a hearing fee for court time in trials and appeals - The applicant and intervenors argued that the fees, par­ticular­ly the hear­ing fee, were invalid on the basis of inter­ference with judicial indepen­dence and the creation of bias or the rea­sonable appre­hension of bias in the ad­ministration of justice - They argued that the hearing fee tipped the balance in favour of the non-moving party - The Nova Scotia Supreme Court held that neither judicial indepen­dence nor issues of bias were invoked by the hearing fee - See paragraphs 69 to 87.

Courts - Topic 1403

Administration - General - Access to courts - [See all Civil Rights - Topic 8310 ].

Courts - Topic 1403.1

Administration - General - Court fees - Section 2(1) of the Costs and Fees Act authorized the Governor-in-Council to determine fees in respect to certain ser­vices - The Governor-in-Council created a Regu­lation that provided for increases in exist­ing court fees and new additional court fees - The fees included a jury deposit fee, a hearing fee, an excess time fee and an adjournment fee - The appli­cant and intervenors argued that the fees were not authorized by the Act - The Nova Scotia Supreme Court held that the fees were authorized by s. 2(1) - They were in respect to related court services - The fees were being levied for particular services and were less than the cost of those ser­vices - See paragraphs 6 to 15.

Courts - Topic 1403.1

Administration - General - Court fees -Section 2(1) of the Costs and Fees Act authorized the Governor-in-Council to determine fees in respect to certain ser­vices - The Governor-in-Council created a Regu­lation that provided for increases in exist­ing court fees and new additional court fees - The fees included a jury deposit fee, a hearing fee, an excess time fee and an adjournment fee - The appli­cant and intervenors argued that the fees were ultra vires because they were dis­criminatory and enacted for an improper purpose - The Nova Scotia Supreme Court held that the fees were not discriminatory so as to ren­der them ultra vires - See paragraph 37 - Further, the fees were not enacted for an improper purpose - They were intended to reim­burse some of the costs of provid­ing the services and not for the purpose of gener­ating profit - See paragraphs 38 to 46.

Courts - Topic 1403.1

Administration - General - Court fees - The Governor-in-Council created Regula­tion 69/98 under the Costs and Fees Act to be effective October 15, 1998 - The Reg­ulation increased existing court fees and created new fees - A party chal­lenging the legislation argued that the fees should not apply to existing litigation, but only to litigation commenced after October 15, 1998 - The Nova Scotia Supreme Court held that the Regulation did not permit the charging of a fee, or an increased fee, where the fee for filing all documents had previously been paid - Fees not yet incurred in respect to existing litigation, but which had been increased, were to be charged at the new rate - They were for new services or successive services and the increased fees were applicable from the effective date regardless of whether the proceeding had been commenced - New fees took effect October 15 and applied to services provided after that date whether in respect to an existing or new proceeding - See paragraphs 124 to 144.

Courts - Topic 1403.1

Administration - General - Court fees - [See Civil Rights - Topic 726 , Civil Rights - Topic 1859 , all Civil Rights - Topic 8310 , Civil Rights - Topic 8672 , Constitutional Law - Topic 6822 , and Courts - Topic 308 ].

Cases Noticed:

Reference re Alberta Legislation, [1938] S.C.R. 100, refd to. [para. 10].

Eurig Estate v. Ontario Court (General Division), Registrar (1998), 213 N.R. 55; 114 O.A.C. 55 (S.C.C.), consd. [para. 16].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115, refd to. [para. 47].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 50].

Dunmore et al. v. Ontario (Attorney Gen­eral) et al. (1997), 57 O.T.C. 53; 155 D.L.R.(4th) 193 (Gen. Div.), refd to. [para. 51].

Ontario Public Service Employees Union et al. v. National Citizens' Coalition Inc. et al. (1987), 60 O.R.(2d) 26 (H.C.), refd to. [para. 55].

Native Women's Association of Canada et al. v. Canada et al., [1994] 3 S.C.R. 627; 173 N.R. 241, refd to. [para. 56].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 59].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 60].

Pearlman v. Manitoba Law Society Judi­cial Committee, [1991] 2 S.C.R. 869; 130 N.R. 121; 75 Man.R.(2d) 81; 6 W.A.C. 81, refd to. [para. 60].

Irwin Toy Ltd. v. Québec (Procureur gén­éral), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 60].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 61].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 62].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1; 150 D.L.R.(4th) 577, refd to. [para. 70].

Reference Re Public Sector Pay Reduction Act (P.E.I.) - see Reference Re Remun­eration of Judges of the Provincial Court (P.E.I.).

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 71].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 83].

British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241; 71 Nfld. & P.E.I.R. 93; 220 A.P.R. 93, consd. [para. 89].

R. v. Lord Chancellor, ex p. Witham, [1997] 2 All E.R. 781, refd to. [para. 91].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; 18 D.L.R.(4th) 321, refd to. [para. 95].

R. v. Mian (S.R.) (1998), 172 N.S.R.(2d) 162; 524 A.P.R. 162 (C.A.), refd to. [para. 111].

R. v. Romanowicz (J.), 49 O.T.C. 58 (Gen. Div.), refd to. [para. 111].

Sherman v. Giles (1994), 137 N.S.R.(2d) 52; 391 A.P.R. 52 (C.A.), refd to. [para. 113].

Lienaux et al. v. Toronto-Dominion Bank (1995), 140 N.S.R.(2d) 156; 399 A.P.R. 156 (C.A.), refd to. [para. 114].

Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R.(2d) 171; 349 A.P.R. 171 (C.A.), refd to. [para. 114].

Shibley v. Nova Scotia (Attorney General) et al. (1995), 146 N.S.R.(2d) 227; 422 A.P.R. 227 (S.C.), refd to. [para. 126].

Quebec (Attorney General) v. Expropri­ation Tribunal, [1986] 1 S.C.R. 732; 66 N.R. 380, refd to. [para. 129].

Statutes Noticed:

Costs and Fees Act, R.S.N.S. 1989, c. 104, sect. 2(1) [para. 2].

Costs and Fees Act Regulations (N.S.), Regulation 69/98, generally [para. 1].

Authors and Works Noticed:

Driedger, E.A., Construction of Statutes (3rd Ed. 1994), pp. 513 [para. 127]; 514, 515 [para. 131].

Hogg, Peter W., Constitutional Law of Canada (4th Ed.), pp. 382, 383 [para. 108]; 396, 397 [para. 94].

Hogg, Peter W., Constitutional Law of Canada (Looseleaf), pp. 44-8, 44-9 [para. 62]; 52-26, 52-28 [para. 49].

Counsel:

Blair H. Mitchell, for the applicant;

Reinhold M. Endres, Q.C. and Louise Y. Walsh Poirier, for the respondents;

Joel Fichaud, Q.C. and Shawn Harmon (articled clerk), for The Canadian Bar Association - Nova Scotia Section and the Nova Scotia Barristers' Society;

W. Augustus Richardson, for Brian Hawes and Hawes Trucking & Excavating Ltd.;

Charles D. Lienaux, for Smith's Field Manor Development Ltd.;

Ross H. Haynes, for Grover.

This application was heard in Chambers, on December 1, 15 and 17, 1998, by MacAdam, J., of the Nova Scotia Supreme Court, who delivered the following oral reasons on December 22, 1998, with the written release on January 21, 1999.