The Supreme Court of Canada ruled Thursday that B.C.’s high court fees are unconstitutional.
In a landmark 6-1 decision, Chief Justice Beverley McLachlin said B.C. can charge administrative court fees but not ones so high that they prevent ordinary people from accessing their right to the legal system.
Fees of up to $800 a day were being charged in B.C. civil court before they were suspended pending appeals.
When fees for holding hearings cause undue hardship to litigants, the court considers it an infringement on their basic rights as citizens to bring their cases to a superior court, she wrote.
The advocacy group West Coast LEAF, which was an intervener in the case, said the ruling marks a major victory for access to justice — especially for family-law cases, since women are less likely to be able to afford the fees due to their generally lower earnings, said the group’s executive director.
Kasari Govender, who was co-counsel when the case was argued in Ottawa in April, said her understanding is that because of the ruling, court fees will not be charged starting today in B.C.
The provincial government has not confirmed that interpretation.
The issue hit home in 2009 for the teenage daughters of a man who died in the 2006 Queen of the North ferry sinking.
The girls could not afford to take on B.C. Ferries in a civil trial because the province wanted the teens to pay $40,000 to cover courtroom and jury costs, compared with $800 if the case had been heard in Alberta and $645 in Ontario.
Thursday’s ruling is a significant one and the province will take time to review it and consider the implications, Kurt Sandstrom, assistant deputy attorney general, said in a statement.
B.C. collected about $1.5 million a year in civil hearing day fees before suspending them in May 2012, pending the outcome of appeals.
There is no fee for the first three days in a civil case, while the fee is $500 per day for days four to 10 and $800 per day after 10 days.
The court “acknowledged that hearing fees paid by litigants who can afford them may be a justifiable way of making resources available for the justice system and increasing access to justice overall,” Sandstrom said.
Several provinces argued in favour of fees at the hearing in April. Among those provinces, B.C.’s fees are the highest by far, said Mary Ellen Turpel-Lafond, B.C. representative for children and youth. It’s a matter of law that B.C. has to remove those fees, she said.
Financial hardship isn’t the only issue, she said.
“My deeper concern is [that] all of those people that have not gone to get the proper guardianship order and child-custody order that they actually need to keep their family affairs straight because they find the fees and the process too costly.”
She expects the decision on day fees will extend to the $200 fee required for protection-order applications to be heard in B.C. Supreme Court.
Thursday’s ruling stemmed from a case involving a woman who was supported by her child’s father at the time the couple decided to split. The woman said she could not afford the day fees for a 10-day custody trial.
A fee that is so high that it requires people to “sacrifice reasonable expenses” in order to bring a claim to court, without adequate exemptions to such fees, subjects litigants to undue hardship, effectively preventing access to the courts, McLachlin wrote.
Additional reporting by The Canadian Press
