Public interest standing and the Bedford case.

• Author: Ho, Juliana

According to law professor Jane Bailey, inaccessibility of justice is becoming an increasingly prevalent problem for middle-class Canadians. Exorbitant fees and lengthy timelines often act as barriers for many who may be interested in having their concerns formally heard and addressed through the legal system [1] [2]. Judicial capacity to grant public interest standing, she argues, is an effective way to bring a legal challenge forward when there are no other reasonable and effective alternatives, by allowing litigants the chance to challenge government actions that could have broad social effects. This article seeks to provide a very brief overview of public interest standing, before turning to look at how the line of Bedford cases contributes to the conversation.

Public Interest Standing

According to the 1975 Supreme Court of Canada decision in Thorson v. Attorney General of Canada, [1975] 1 SCR 138 the principle that legislation should always be open to constitutional review forms the basis of many public interest standing cases. Foreseeably, if an individual identifies a justiciable and substantive legal issue, it would be alarming should there be no way to make these concerns the subject of judicial review. While Thorson was foundational to spearheading the conversation on public interest standing, a clear test was not laid out until Canadian Council of Churches v Canada (Minister of Employment and Immigration), [1992] 1 SCR 236 which outlines the three considerations that must be met:

1. Is there a serious issue raised as to the invalidity of legislation in question?

2. Has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity?

3. Is there another reasonable and effective way to bring the issue before the court?

Around twenty years later in 2012, the court's method of considering public interest standing undertook a significant shift in Canada (AG) v Downtown Eastside Sex Workers United Against Violence, 2012 SCC 45 (the SWUAV decision). Rather than considering the test as consisting of three distinct items on a "checklist," the court held that the three considerations must be assessed and "weighed cumulatively rather than individually" in a purposive and flexible way. The court focused on the third branch of the test and noted that while this factor had often been considered a strict and rigid requirement, it would be more appropriate to...