Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) PDF

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Case Brief: Trial Lawyers Association of British Columbia v. British Columbia (Attorney General)...

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Mohammad Hammoud Criminology 1107 (R10) Case Brief: Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), [2014] 3 SCR 31, 2014 SCC 59 Facts In, Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) the case stems from a family disagreement, which then results in a custody dispute. Parties were subjected in advance to payments of court hearing fees. V known as Ms. Vilardell had the issue of being financially incapable of paying her hearing fees amounting to $3,600, claiming, “legal fees had depleted her savings, she could not afford the hearing fees”. V wanted custody of the child to return to Spain with some vested interests in D’s house. D on the other hand had wanted to keep the child situated in BC with him. The judge acted with some discretion enticing propositions from the Law Society of British Columbia and Canadian Bar Association. Additionally, the judge had stayed committed to s. 92 (14) of the Constitution Act, 1867 and his decision coincided stating that, Ms. Vilardell was responsible for paying all hearing fees. This decision created a ripple effect catching the attention of the Canadian Bar Association and the Trial Lawyers Association of BC who stood with Ms. V, opposing and challenging the hearing fee scheme as “unconstitutional”. Fallowing this the judge opposed Ms. V’s request again keeping with his decision despite the counter response received by the TLABC and Canadian Bar. The TLABC and Canadian Bar then appealed the matter, with the Province responding with a cross-appeal on the “constitutionality of the hearing fees”. (TLABC v. BC (Attorney General) para.5, 7,8) Procedural History The trial court, the BCSC is where the case emerged. The judge had concluded that Ms. V was still accountable for paying her hearing fees. The Canadian Bar Association and TLABC had intervened challenging the decision to be unconstitutional. The case was then forwarded to the B.C. Supreme Court, which also mutually agreed with the Trial Court judge to not have the court adjudicate her legal fees and still commit striking down all hearing fees. Appeals where again made and forwarded to the B.C. Court of Appeal. Appellants begin to challenge a various number of things. Appellants bring forth the fallowing issues, 1. Is B.C.’s hearing fee scheme constitutionally valid? 2. If not, what is the appropriate remedy? Issues are presented against the province alongside with the rule of law and access to an independent judiciary. The province responds saying that the hearing fee scheme is a valid exercise of power under s.92 (14) of the Constitution Act, 1867. The same precedent was used and once again the same outcome was reached. This triggered both appeals and cross appeals to be filed, which resulted in the case ultimately being brought forth to the Supreme Court of Canada.

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Issues 1. Does the hearing fee scheme of BC fallow established fundamental principles of our constitution? 2. If not, what would be a suitable and proper response? 3. Is there malpractice when implementing the rule of law? / (Ability to access independent judiciaries) 4. What boundaries, if any, regarding to the laying down of provincial authority, intertwine with the administration of justice under s.92 (14)? Its authority to apply hearing fees must comply with s.96 of the Constitution Act, 1867. To certain people hearing fees deny access to court. Decisions The SCC allowed the appeal from the court of appeals, which concluded that Ms. Vilardell was dismissed from paying her hearing fees; furthermore the judge found that hearing fees were in fact unconstitutional. (TLABC v. BC (Attorney General) para.117 a,b,c,d,e) Reasons for Decision The majority decision concluded stating that, by obstructing access to the courts this actively violated the jurisdictions of the Superior Courts to settle disputes and determine questions of public and private law. (TLABC v. BC (Attorney General) para.32) Furthermore, the court reinforced the fundamental aspect that access to justice is rudimentary to the rule of law (TLABC v. BC (Attorney General) para.40) The circumstance of legislation which denies people the rights of access to court was found to be not abstract or theoretical. This created a chain reaction, assimilating that if people couldn’t hold government accountable in court, it would imply that government is above the law. Ultimately this could cause laws to be hampered. The SCC examines Christie v. BC “balance between the state’s power to make and enforce laws and the courts’ responsibility to rule on citizen challenges to them may be skewed”. (TLABC v. BC (Attorney General) para.40) Hearing fees were waived under terms that the paying party was impoverished, the SCC stating, “providing exemptions only to the truly impoverished may set the access bar too high”. (TLABC v. BC (Attorney General) para.46) So exempting the “impoverished” or “indignant” meant that “people of modest means” who lacked financial capability would remain singled out. In the dissenting decision, Rothstein J. didn’t find the issue to do with rule of law or constitutionality. Rothstein contended that there is no clear violation of the constitutional principle hence why the courts should adhere to democratically elected legislators through fallowing their role and policy. (TLABC v. BC (Attorney General) para.100) Furthermore arguing that the hearing fee scheme doesn’t infringe core jurisdiction of the

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courts. He supported this by saying “hearing fees are a financing mechanism and do not go to the very existence of the court as a judicial body to limit the type of powers it may exercise”(TLABC v. BC (Attorney General) para.90) His focal point was that rule of law should not be used to invalidate the hearing scheme. Ratio The capacity to absolve people who are deemed “impoverished” or “indignant” did not cover “people of modest means” who could not typically afford such fees, therefore making hearing fees unconstitutional. Commentary On behalf of the RSCC I declare mutual agreement in the majority decision of the SCC. My synopsis would be that, discretion should be granted to those whom to some extent fall into the category of being “impoverished”. Impoverished in the sense that they are middle class people whom are committed financially to a variety of different things like mortgages, finances, tax payments, rent, schooling and so forth. These financial commitments inflict pressure on the person(s), by lacking monetary surplus for things like court, legal aid, and hearing fees. Not everyone can single handedly fork up fees for court as they do come fairly expensive. This is my elaboration on the definition of “impoverished”. Financial status should not act as a barrier, blocking people from accessing the court systems. Socially this would be detrimental to society, as it would go against constitutional aspects of equality. Equilibrium of the masses should be maintained in regards to the access of government services and institutions.

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Work Cited

Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), [2014] 3 SCR 31, 2014 SCC 59 (CanLII), , retrieved on 201610-01

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