This case began as Vilardell v Dunham, a family law case that addressed the constitutionality of daily hearing fees. In family law, the party who files the proceedings is charged a fee for every day of hearing after the first three days. In this case, the mother applied to have her fees waived. In the course of the application, the Court considered the constitutionality of this fee structure and heard intervening arguments from the Trial Lawyers Association of BC and the Canadian Bar Association – BC. The BC Supreme Court ruled that the fees were unconstitutional; the government appealed this decision to the BC Court of Appeal. The BC Court of Appeal found that the hearing fee in civil cases is not constitutionally valid unless the exemption to pay them is substantially broadened. This decision was appealed to the Supreme Court of Canada, where it was called Trial Lawyers Association of British Columbia v. British Columbia (Attorney General).
- Application for leave to intervene – BC Court of Appeal
- Factum – BC Court of Appeal
- Decision – BC Court of Appeal
- Application for leave to intervene – Supreme Court of Canada
- Factum – Supreme Court of Canada
- Decision – Supreme Court of Canada
West Coast LEAF’s Involvement
West Coast LEAF was granted leave to intervene at both the Court of Appeal and the Supreme Court of Canada to argue that hearing fees in family law cases have an unequal impact on women, violates their right to security of the person, and should be struck down on that basis. Because of women’s unequal economic status, they are less likely to be able to afford hearing fees than men are. We believe that this inequality impedes women’s access to justice and violates their equality and security rights.
The Supreme Court of Canada released its decision on Oct. 2, 2014. The Court found that while the Province has the power to levy hearing fees, they cannot do so in a way that deprives litigants of access to the superior courts. If fees are imposed, judges must be given enough leeway to waive the fees if paying them would cause a litigant undue hardship by requiring her to forgo other reasonable expenses. The hearing fees were declared an unconstitutional barrier to access to justice and struck down. The Court left it open to the BC government to impose a new fee structure that meets the constitutional requirements.
This decision is a major victory for access to justice and for women’s equality. The Court has confirmed that access to justice is constitutionally protected, and that the justice system is not just for those who can afford it.
This is an extremely important case in the ongoing struggle to ensure that everyone has access to our justice system to resolve disputes such as who has custody of children after parents separate. That struggle continues, particularly in the context of advocating for greater funding for legal aid.