Vilardell v. Dunham, (2014) 463 N.R. 336 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 14, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 463 N.R. 336 (SCC);2014 SCC 59

Vilardell v. Dunham (2014), 463 N.R. 336 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] N.R. TBEd. OC.008

Trial Lawyers Association of British Columbia and Canadian Bar Association - British Columbia Branch (appellants/respondents on cross-appeal) v. Attorney General of British Columbia (respondent/appellant on cross-appeal) and Attorney General of Canada, Attorney General 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 (interveners)

(35315; 2014 SCC 59; 2014 CSC 59)

Indexed As: Vilardell v. Dunham

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.

October 2, 2014.

Summary:

During the trial of a family action, the plaintiff asked to be relieved from paying the hearing fees imposed by the Crown.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 434, determined the family law issues. With respect to the plaintiff's request to be relieved from paying the fees, the court identified a potential jurisdictional problem and invited submissions from the British Columbia Attorney General, the Law Society of British Columbia and the British Columbia Branch of the Canadian Bar Association (CBA). Ultimately, the Attorney General, the CBA and the Trial Lawyers' Association of British Columbia (TLA) intervened.

The British Columbia Supreme Court, in a decision reported at [2012] B.C.T.C. Uned. 748, struck down the hearing fees as unconstitutional. The Attorney General appealed. The West Coast Women's Legal Education and Action Fund intervened.

The British Columbia Court of Appeal, in a decision reported at 334 B.C.A.C. 71; 572 W.A.C. 71, allowed the appeal, set aside the order striking the fees and granted the plaintiff's application for relief. The court expanded the exemption provision for a person who was "impoverished" by reading in the words "or in need". The TLA and the CBA appealed the remedy. The Attorney General cross-appealed on the issue of whether the fees were constitutional.

The Supreme Court of Canada, Cromwell, J., concurring in the result and Rothstein, J., dissenting, allowed the appeal, dismissed the cross-appeal, set aside the Court of Appeal's order expanding the exemption provision, and affirmed the trial judge's declaration of unconstitutionality.

Constitutional Law - Topic 5.3

General - General principles - Unwritten constitutional principles - Constitutionalism and the rule of law - Access to courts - The Supreme Court of Canada held that levying superior court hearing fees was a permissible exercise of the Province's jurisdiction to administer justice under s. 92(14) of the Constitution Act, 1867 - However, that power had to be exercised in a manner that was consistent with s. 96 of the Act - Section 96 restricted provincial legislatures and Parliament from enacting legislation that abolished the superior courts or removed part of their core or inherent jurisdiction - Hearing fees that denied people access to the courts infringed that core jurisdiction - The connection between s. 96 and access to justice was supported by considerations relating to the rule of law - The s. 96 judicial function and the rule of law were inextricably intertwined - As access to justice was fundamental to the rule of law, and the rule of law was fostered by the continued existence of s. 96 courts, it was only natural that s. 96 provided some degree of constitutional protection for access to justice - See paragraphs 18 to 43.

Constitutional Law - Topic 5.3

General - General principles - Unwritten constitutional principles - Constitutionalism and the rule of law - Access to courts - The Supreme Court of Canada held that superior court hearing fees violated s. 96 of the Constitution Act, 1867 and the underlying principle of the rule of law, and was outside the province's jurisdiction to administer justice under s. 92(14) of the Act, when they caused undue hardship to the litigant who sought adjudication - It was the provincial legislatures' role to devise a constitutionally compliant hearing fee scheme - Generally, fees had to be coupled with an exemption that allowed judges to waive the fees for people who could not by reason of their financial situation, bring non-frivolous or non-vexatious litigation to court - The scheme could include an exemption for the truly impoverished, but the fees had to be set at an amount such that anyone who was not impoverished could afford them - Higher fees had to be coupled with enough judicial discretion to waive fees in any case where they would effectively prevent access to courts because they required litigants to forgo reasonable expenses in order to bring claims - See paragraphs 44 to 48.

Constitutional Law - Topic 5.3

General - General principles - Unwritten constitutional principles - Constitutionalism and the rule of law - Access to courts - During the trial of a family action in British Columbia, the plaintiff asked to be relieved from paying the hearing fees imposed by the Crown - The trial judge struck down the hearing fees as unconstitutional, holding that they "materially hindered" access to the courts (an aspect of the rule of law) - The British Columbia Court of Appeal set aside the order striking the fees, expanded the exemption provision for a person who was "impoverished" by reading in the words "or in need", and granted the plaintiff's application for relief - The Supreme Court of Canada allowed an appeal - Under the British Columbia scheme, the fee for a 10 day trial was $3,500 - That amounted to the net monthly income of the plaintiff's family - The fee was on top of the $23,000 that the plaintiff had already spent on lawyer fees and she could not afford to pay it - The current exemption and the exemption in place at the time of trial (for a person who was "indigent") did not provide sufficient discretion to the trial judge to exempt litigants from having to pay hearing fees in appropriate circumstances - They did not cover people of modest means who were nonetheless prevented from having a trial because of the fees - Also, litigants having to appear in court and explain why they were indigent and beg the court to publicly acknowledge that status and excuse the payment of fees was arguably an affront to dignity and imposed a significant burden on litigants - The hearing scheme prevented access to the courts in a manner inconsistent with s. 96 of the Constitution Act, 1867, and the underlying principle of the rule of law - The scheme was therefore outside the Province's jurisdiction to administer justice under s. 92(14) of the Act - Reading in words to expand the exemption to include "people in need" was not an appropriate remedy where it was not clear that the legislature, faced with a ruling of unconstitutionality, would have made that change - The proper remedy was to declare the hearing fee scheme unconstitutional and leave it to the legislature or the Lieutenant Governor in Council to enact new provisions, should they choose to do so - See paragraphs 49 to 69.

Constitutional Law - Topic 2507.1

Determination of validity of statutes or acts - General principles - Reading in - [See third Constitutional Law - Topic 5.3 ].

Constitutional Law - Topic 7404

Provincial jurisdiction - Administration of justice (s. 92(14)) - Jurisdiction of superior courts - [See all Constitutional Law - Topic 5.3 ].

Constitutional Law - Topic 8633

Judicial Power - Appointment of judges (s. 96) - Access to courts - [See all Constitutional Law - Topic 5.3 ].

Courts - Topic 1403

Administration - General - Access to courts - [See all Constitutional Law - Topic 5.3 ].

Courts - Topic 1403.1

Administration - General - Court fees - [See all Constitutional Law - Topic 5.3 ].

Practice - Topic 44.2

Actions - Commencement of - General principles - Filing fees and costs - Indigent parties - [See all Constitutional Law - Topic 5.3 ].

Cases Noticed:

Pleau v. Nova Scotia (Prothonotary) (1998), 186 N.S.R.(2d) 1; 581 A.P.R. 1 (S.C.), refd to. [para. 6].

Christie v. British Columbia (Attorney General) et al., [2007] 1 S.C.R. 873; 361 N.R. 322; 240 B.C.A.C. 1; 398 W.A.C. 1; 2007 SCC 21, refd to. [para. 20].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2005] 2 S.C.R. 473; 339 N.R. 129; 218 B.C.A.C. 1; 359 W.A.C. 1; 2005 SCC 49, refd to. [paras. 26, 96].

Reference Re Senate Reform, [2014] 1 S.C.R. 704; 457 N.R. 206; 2014 SCC 32, refd to. [para. 26].

MacMillan Bloedel Ltd. v. Simpson et al., [1995] 4 S.C.R. 725; 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161, refd to. [para. 29].

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, refd to. [para. 30].

Residential Tenancies Act of Ontario, Re, [1981] 1 S.C.R. 714; 37 N.R. 158, refd to. [para. 33].

Crevier v. Quebec (Attorney General), [1981] 2 S.C.R. 220; 38 N.R. 541, refd to. [paras. 33, 90].

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, affing. (1985), 20 D.L.R.(4th) 399 (B.C.C.A.), refd to. [paras. 38, 92].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 38].

Christie v. British Columbia (Attorney General) et al. (2005), 220 B.C.A.C. 165; 362 W.A.C. 165; 262 D.L.R.(4th) 51; 2005 BCCA 631, refd to. [para. 40].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 66].

Polewsky v. Home Hardware Stores Ltd. et al. (2003), 174 O.A.C. 358; 66 O.R.(3d) 600 (Div. Ct.), refd to. [para. 71].

Fabrikant v. Canada et al. (2014), 459 N.R. 163; 459 N.R. 163; 2014 FCA 89, refd to. [para. 71].

Toronto-Dominion Bank v. Beaton (2012), 534 A.R. 132; 2012 ABQB 125, refd to. [para. 71].

Lord Chancellor, Ex parte Witham, [1998] Q.B. 575, refd to. [para. 71].

R. v. Secretary of State for the Home Department, Ex parte Saleem, [2006] 4 All E.R. 814 (C.A.), refd to. [para. 71].

Shoppers Drug Mart Inc. et al. v. Ontario (Minister of Health and Long-Term Care) et al., [2013] 3 S.C.R. 810; 451 N.R. 80; 312 O.A.C. 169; 2013 SCC 64, refd to. [para. 73].

Katz Group Canada Inc. v. Ontario (Health and Long-Term Care) - see Shoppers Drug Mart Inc. et al. v. Ontario (Minister of Health and Long-Term Care) et al.

Ontario Public Service Employees Union et al. v. Ontario (Attorney General) et al., [1987] 2 S.C.R. 2; 77 N.R. 321; 23 O.A.C. 161, refd to. [para. 84].

R. v. Russel (W.I.), [2013] 3 S.C.R. 3; 447 N.R. 111; 308 O.A.C. 347; 2013 SCC 43, refd to. [para. 87].

Ontario v. Criminal Lawyers' Association of Ontario - see R v. Russel (W.I.).

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 91].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man. R.(2d) 83, refd to. [para. 96].

Singh v. Canada (Attorney General), [2000] 3 F.C. 185; 251 N.R. 318 (C.A.), refd to. [para. 102].

De Fehr v. De Fehr (2001), 156 B.C.A.C. 240; 255 W.A.C. 240; 2001 BCCA 485, refd to. [para. 107].

Combined Air Mechanical Services Inc. et al. v. Flesch et al. (2011), 286 O.A.C. 3; 108 O.R.(3d) 1; 2011 ONCA 764, refd to. [para. 110].

Statutes Noticed:

Constitution Act, 1867, sect. 92(14) [para. 19]; sect. 96 [para. 24 et seq.].

Rules of Court (B.C.), Supreme Court Rules, rule 20-5(1) [para. 11].

Supreme Court Rules (B.C.) - see Rules of Court (B.C.), Supreme Court Rules.

Counsel:

Darrell W. Roberts, Q.C., and Chantelle M. Rajotte, for the appellant/respondent on cross-appeal, the Trial Lawyers Association of British Columbia;

Sharon D. Matthews, Q.C., Melina Buckley and Michael Sobkin, for the appellant/respondent on cross-appeal, the Canadian Bar Association - British Columbia Branch;

Bryant A. Mackey and J. Gareth Morley, for the respondent/appellant on cross-appeal;

Alain Préfontaine, for the intervener, the Attorney General of Canada;

Rochelle Fox and Padraic Ryan, for the intervener, the Attorney General of Ontario;

Alain Gingras and Dana Pescarus, for the intervener, the Attorney General of Quebec;

Donald Padget, for the intervener, the Attorney General of Alberta;

Joseph J. Arvay, Q.C., Kelly D. Jordan and Tim Dickson, for the intervener, the Advocates' Society;

Francesca V. Marzari and Kasari Govender, for the intervener, the West Coast Women's Legal Education and Action Fund;

Paul Schabas and Cheryl Milne, for the intervener, the David Asper Centre for Constitutional Rights.

Solicitors of Record:

Miller Thomson, Vancouver, British Columbia, for the appellant/respondent on cross-appeal, the Trial Lawyers Association of British Columbia;

Camp Fiorante Matthews Mogerman, Vancouver, British Columbia; Michael Sobkin, Ottawa, Ontario, for the appellant/respondent on cross-appeal, the Canadian Bar Association - British Columbia Branch;

Attorney General of British Columbia, Victoria, British Columbia, for the respondent/appellant on cross-appeal;

Attorney General of Canada, Ottawa, Ontario, for the intervener, the Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Attorney General of Quebec, Quebec, Quebec, for the intervener, the Attorney General of Quebec;

Attorney General of Alberta, Edmonton, Alberta, for the intervener, the Attorney General of Alberta;

Farris, Vaughan, Wills & Murphy, Vancouver, British Columbia; Jordan Battista, Toronto, Ontario, for the intervener, the Advocates' Society;

Young, Anderson, Vancouver, British Columbia, for the intervener, the West Coast Women's Legal Education and Action Fund;

Blake, Cassels & Graydon, Toronto, Ontario; University of Toronto, Toronto, Ontario, for the intervener, the David Asper Centre for Constitutional Rights.

This appeal and cross-appeal were heard on April 14, 2014, by McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ. of the Supreme Court of Canada. The judgment of the court was released in both official languages on October 2, 2014, with the following opinions:

McLachlin, C.J.C. (LeBel, Abella, Moldaver and Karakatsanis, JJ., concurring) - see paragraphs 1 to 69;

Cromwell, J., concurring in the result - see paragraphs 70 to 79;

Rothstein, J., dissenting - see paragraphs 80 to 117.