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British Columbia B.C.’s fees shouldn’t bar access to legal system, top court rules

Veritas (Truth) guards the entrance of the Supreme Court of Canada as the Peace tower is seen in the background in Ottawa.

ADRIAN WYLD/THE CANADIAN PRESS

British Columbia has the right to charge administrative court fees, but they can't be so high as to prevent litigants from accessing the legal system, the Supreme Court of Canada ruled Thursday.

The justices said the effect of the B.C. fee scheme would be to deny some people access to the courts, so they struck it down as unconstitutional by a 6-1 margin.

"When hearing fees deprive litigants of access to the superior courts, they infringe the basic right of citizens to bring their cases to court," Chief Justice Beverley McLachlin wrote in a landmark ruling on the issue of public access to the courts. "That point is reached when the hearing fees in question cause undue hardship to the litigant who seeks the adjudication of the superior court."

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The advocacy group, West Coast LEAF, which was an intervener in the case, said the ruling marks a major victory for access to justice.

The group argued that charging fees in family law cases was particularly unfair to women as they are less likely to be able to afford them because of "their unequal economic status."

"This will mean improved access to justice for women in family law," Kasari Govender, the group's executive director, said in a statement.

"It also means that the highest court in Canada 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 a day to celebrate."

The case stems from a child-custody dispute in which a woman said she could not afford the $3,600 she was charged for a 10-day trial.

B.C.'s superior court originally ruled the fees unconstitutional, because, while the very poorest are exempt, they still apply to other people of modest means and prevent them from pursuing their legal claims.

The B.C. Court of Appeal agreed, but widened the exemption to include not only impoverished people but other people in need.

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In this particular case, a mother and father decided to end their relationship, but had to decide who would get custody of their daughter. The mother wanted to take their daughter to live with her in Europe, but the father wanted to keep her in B.C.

In order to get a court date, the woman, because she was the plaintiff, had to agree to pay the court administrative fee. The trial judge deferred the issue of the court fees until the end of the proceedings.

The woman was "not an 'impoverished person' in the ordinary sense of the word," Thursday's ruling said.

She was a qualified veterinary surgeon in Europe, but had not worked in the year leading up to the court action. She and her daughter were supported by the child's father.

The woman had $24,500 in savings, but other lawyer's fees depleted that, the ruling said.

"A fee that is so high that it requires litigants who are not impoverished to sacrifice reasonable expenses in order to bring a claim may, absent adequate exemptions, be unconstitutional because it subjects litigants to undue hardship, thereby effectively preventing access to the courts," McLachlin wrote.

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The case centered on a section of the Constitution Act, 1867, which deals with jurisdictional issues of the superior courts of the provinces.

The Supreme Court upheld the trial court ruling that the fees violated Section 96 of the act.

"Indeed, it is their very book of business. To prevent this business being done strikes at the core of the jurisdiction of the superior courts protected by s.96 of the Constitution Act, 1867," the ruling said.

"As a result, hearing fees that deny people access to the courts infringe the core jurisdiction of the superior courts."

The court fees were set on a sliding scale. There was no fee for the first three days, but days four to 10 cost $500 each and the charge rose to $800 for every day over 10.

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