Judge finds civil hearing fees unconstitutional
Government- imposed charges block access to justice for middle class, women, first nations and others
After two years of deliberation, B. C. Supreme Court Justice Mark McEwan has struck down Victoria’s hefty civil court hearing fees as unconstitutional.
In the landmark 178- page ruling released Tuesday, Justice Mcewan declared “some things cannot be for sale” and slammed the provincial government for its approach to legal funding.
“The court is an essential forum of that common life, and cannot perform its necessary function if it, like so much else, is subject to the values of the marketplace the government has used to justify the fees,” he wrote.
The government charges litigants $ 500 a day starting on day four of a trial and $ 800 a day after day 10.
This constitutional throwdown arose from a typical family custody matter and the ruling could have far- reaching effects.
In this instance, a single woman pleaded that she should be spared the fees after losing a custody trial.
The legal tug of war with her ex- partner started in 2008 when the 43- year- old woman decided to return to Europe with her five- year- old daughter.
It cost her more than $ 20,000 in lawyer’s fees just to get to the eve of trial.
She then was forced to litigate herself because she couldn’t pay the lawyer to appear in court.
Her husband, a University of B. C. instructor, also represented himself at the 10- day trial. Neither is happy: This expensive system failed them both.
At the end of the proceedings, the woman asked Justice Mcewan to waive the $ 3,600 she owed in court fees.
But the judge said that unless she was declared indigent, he had no power to give her a break without declaring the fees unconstitutional.
At that point, he decided to hear arguments about their legitimacy.
“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,” Justice Mcewan said.
“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.”
Ironically, the three- day constitutional debate would have added $ 1,872 in fees.
Justice Mcewan’s decision means the woman will not have to pay the hearing fees and puts in jeopardy the revenue the government reaps from them — about $ 2 million a year — if it does not appeal.
At the time of this litigation, the fees started at $ 156 for a half- day hearing and rose to $ 624 a day after 10 days.
Justice Mcewan said this amounted to the government imposing a barrier to access to the judiciary and “this creates a constitutionally untenable appearance of hierarchy.”
He went on to say: “It is evident from the sources presented that in the last two decades the government of B. C. has lost its enthusiasm for supporting the courts at a level required to fulfil their purposes.”
Justice Mcewan added that the breadth and implications of the economic and constitutional material he considered led to the “unusual delay” in producing the impassioned ruling that reviewed centuries of legal history.
The decision’s effects will be substantial — lawsuits over the tragic 2006 sinking of the Queen of the North ferry, for instance, were abandoned in part because of the hurdle posed by $ 40,000 in fees and jury costs.
The public may not be an active participant in a private dispute between litigants, but Justice Mcewan said it has an abiding and important interest in every case.
The outspoken jurist called the fees a “bad idea” during 2010 proceedings.
But no one expected him to so severely stomp the practice of making civil litigants pay thousands of dollars for their day in court — controversial levies that Victoria vigorously defended.
“Wow!” said lawyer Darrell Roberts, of the Trial Lawyers Association of B. C. who made submissions in the case.
“This is wonderful. I was never expecting this. He’s done a great job. We won.”
The Canadian Bar Association’s B. C. branch, which also participated in the case, celebrated too.
“Justice Mcewan has declared hearing fees unconstitutional and in so doing found that the fees, which escalate to over $ 600 per day, are an impediment to the courts for all but those who are well- to- do,” said Stephen Mcphee, past president.
“This decision reaffirms that the courts exist for both the rich and the poor, those with small cases and those with large cases.”
Reasonable fees may be charged for services, but Justice Mcewan said civil litigants don’t have to pay the exorbitant hearing- day costs that Victoria argued had been a part of British justice for half a millennium.
He said the attorney- general’s approach to financing the courts revealed “a significant misunderstanding by the government of its responsibilities under, and the limitations on, its constitutional mandate …”
Fees for time in court that put a price on or acted as a barrier to justice could not be allowed to stand nor could any “legislative constraints designed to limit access.”
“Support for the civil courts is not seen as a cost of good government but as a discretionary expense to be minimized, amateurized ( no legal aid), or privatized, wherever possible,” Justice Mcewan archly wrote.
He pointedly quoted from the recent book — What Money Can’t Buy, the Moral Limits of Markets — saying the “marketization of everything” is not good for democracy, “nor is it a satisfying way to live.”
Given the current tension between the judges and the executive branch, his muchanticipated decision is even
The decision’s effects will be substantial — lawsuits over the tragic 2006 sinking of the Queen of the North ferry, for instance, were abandoned in part because of the hurdle posed by $ 40,000 in fees and jury costs.
more pertinent and germane than when the arguments occurred.
The government had argued that the English and Welsh civil systems today are completely financed by user fees.
In this province, Victoria said, court fees predate Confederation.
But B. C. hadn’t collected hearing- day fees since before the First World War and the present levies were imposed only in 1998.
The only other Canadian jurisdictions imposing hearing fees ( though at much lower levels) are Saskatchewan, Yukon and the Northwest Territories.
Victoria insisted the fees were intended to make the court more efficient and trials less lengthy.
But the Trial Lawyers criticized the exorbitant and escalating tariffs, saying Victoria was robbing the needy.
Roberts, who represented the lobby group, said the fees were abhorrent.
The bar association said the fees made it impossible for people of modest means to have their day in court, and disproportionately blocked first nations, the disabled, immigrants, lone parents and women from access to justice.
At the end of the last century, the Nova Scotia Supreme Court found similar hearing fees that increased with the length of the trial were unconstitutional.
That decision was never appealed.