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October 28, 2014

Supreme Court finds BC court hearings fees to be unconstitutional

A Supreme Court of Canada decision ( Trial Lawyers Association of British Columbia v. British Columbia (A.-G.), 2014 SCC 59 ) recently found British Columbia’s court hearings fee structure to be unconstitutional and included lower income (not only poor) people in the consideration.

British Columbia’s Rules of Court established an escalating fee structure where each day in court occasions a fixed fee rate. The fees escalate from no fee for the first three days of trial, to five hundred dollars for days four to ten, to eight hundred dollars for each day over ten. An exemption clause is provided in the rules where an individual can have his hearing fees waived if he or she receives income assistance or if it is demonstrated that the individual is “impoverished”.

After reviewing the matter, the SCC ruled that the hearing fee structure is unconstitutional as it prevents individuals who are not “impoverished” from accessing the justice system in order to have their claim adjudicated. The fee structure is such that even individuals with modest means cannot afford to go to court without paying considerable fees. The exemption clause is too limiting and does not provide the judge with sufficient discretion to allow him or her to waive the hearing fees even where the amounts are substantial.

However, the SCC acknowledged the right of provinces to enact a hearing fee structure as an exercise of its jurisdiction. A hearing fee structure is permissible if it does not force an individual to suffer unreasonable expenses in order to access the courts. The structure must not reach the point of subjecting an individual to undue hardship. If so, sufficient mechanisms must be provided in the rules to allow the judge sufficient discretion to waive hearing fees where access to courts is restrained due to financial considerations.

Note: New Brunswick does not have hearing fees, only the initial filing fee which is set out in Rule 78 of the Rules of Court.