‘Rapacious’ civil jury fees upheld by judges
Despite hardship they may create, costs are ‘not a restriction on access to justice’
High civil jury fees may be too costly for large segments of the province’s middle class and needy, but they are not unconstitutional, B.C.’s top judges say.
Court of Appeal Chief Justice Robert Bauman — supported by colleagues Richard Goepel and Lauri Ann Fenlon — ruled that it was OK for the wealthy to have a choice between a judge-alone or civil jury trial while those who cannot afford the levies were forced to accept a judge alone.
The Trial Lawyers Association of B.C. — which previously successfully challenged exorbitant civil hearing fees — argued the charges for an eight-person civil jury represented a similar barrier to justice.
The 1,400-member group said the “rapacious” charges ranging from $800 to $1,200 a day, a product of the government’s aim of making civil litigation pay for itself, violated fundamental legal principles and the charter.
But Chief Justice Bauman said the provisions under the provincial Jury Act and the Supreme Court Civil Rules were not vague, met the requisite standard of precision and did not offend long-standing legal values.
“In my view, the association’s reach in this regard exceeds its grasp,” he said.
The option to try a civil matter before a judge and jury has been available in B.C. since the province was established as a colony in 1858.
Since then, different administrations have adopted variants of a user-pay system for civil law that requires a litigant wishing to have a jury trial to deposit some money with the sheriff.
Last year, B.C. Supreme Court Chief Justice Christopher Hinkson concluded the fees for a civil jury were constitutional although they created a hardship for many.
Economist Robert Carson testified that more than a third of provincial households likely couldn’t afford the tariffs.
Those most likely to be deterred by the fees included younger or older people, First Nations, recent immigrants and the disabled.
“The existence of civil jury fees means that a litigant who cannot or will not sacrifice reasonable expenses has his or her case determined by a judge (alone),” Hinkson wrote in his 30-page decision.
“In my view, this is not a restriction on access to justice.”
He differentiated between billing litigants for choosing a civil trial with a jury and charging them for any civil hearings, the practice denounced in 2014 by the Supreme Court of Canada (SCC).
SCC Chief Justice Beverley McLachlin said such charges imposed an undue burden on not just the indigent and needy, but also on ordinary people and impeded their right to bring legitimate cases to court.
“While the same sacrifice would be required of many civil litigants seeking or facing a trial by jury,” Chief Justice Hinkson acknowledged, “I am unable to equate the requirement of civil court fees to civil jury fees. The former would deprive a litigant of access to the courts, whereas the latter does not.”
Bauman agreed with that reasoning.
The current rules require a litigant to pay the sheriff “a sum sufficient for the jury and the jury process” at least 45 days before trial.
As of July 1, 2013, Bauman said the province required an initial deposit of $1,500 and daily deposits, in advance, of $800 for trial days two through 10, $900 for days 11 through 49, and $1,200 for days 50 and beyond. The fees are based on daily jury expenses and an estimate of the costs to the sheriff in summoning and empanelling the jury, attending in court, escorting the jury and related administration duties.
In 2009, the children of Gerald Foisey of 100 Mile House — who drowned in the Queen of the North ferry sinking on March 22, 2006, along with spouse Shirley Rosette — wanted a jury trial of their civil claims, but they couldn’t afford hearing fees of $16,120 and jury fees of $27,000 for the 30-day trial.
The appellate division, as did Hinkson, emphasized that Canadians have no unqualified right to a civil trial by jury.
Bauman cited with approval an Ontario judgment that concluded: “The Charter confers a right to a jury trial only in certain criminal matters.”
Most civil jury trials in B.C. are motor-vehicle-injury lawsuits.
I am unable to equate the requirement of civil court fees to civil jury fees.