The Unheard Case for Civil Legal Aid

At the Canadian Bar Association’s (“CBA”) annual meeting last week, Justice Minister Rob Nicholson was asked how he intends to solve a national legal aid problem. After a decade of cutbacks and neglect, provinces now offer less legal aid services and have instituted higher eligibility criteria. A number of lawyers pressed the Minister to devise non-criminal legal aid provision systems that focus on the broad right to equal access to justice. The civil legal aid scheme, as advocated for by the CBA, was subject to a legal battle at the Supreme Court of British Columbia in 2006 and was refused leave to appeal at the Supreme Court of Canada on July 31, 2008. The following revisits The Canadian Bar Association v HMTO et al, 2006 BCSC 1342.

Amongst other things, the CBA sought the courts to declare that the Province of British Columbia, the Attorney General of Canada and legal Services Society were in breach of “the foundational constitutional principles of the rule of law and/or the norm of equality and/or the independence of the judiciary due to inadequacies in BC Civil Legal Aid and by failing to establish and maintain a civil legal regime that ensures meaningful and effective access to justice by Poor People where their Fundamental Interests are at stake”.

In terms of the nature of the claim, which was unfortunately not at issue, Justice Brenner noted that the Supreme Court of Canada has previously accepted the existence of a constitutional right to civil legal aid in certain circumstances (New Brunswick (Minister of Health and Community Services) v G (J), [1999] 3 SCR 46). However, Justice Brenner distinguished the case at bar in that the plaintiff is a national organization and not an individual litigant seeking funding. “Since the CBA has no direct interest in this action, it must meet the criteria for public interest standing in order for the case to proceed in its current form” (para 19). The defendants challenged the standing of the CBA as a preliminary matter and the CBA did not oppose arguing standing in a preliminary setting. This meant that issues of substance, as they regard the provision of civil legal aid, were not assessed on merit. Instead, the case was dismantled for technical and procedural points of law.

A quartet of cases set out the test to determine public interest standing (pre-CharterThorson v Canada (Attorney General), [1975] 1 SCR 138; Nova Scotia Board of Censors v McNeil, [1976] 2 SCR 265; Canada (Minister of Justice) v Borowski, [1981] 2 SCR 575; post-CharterFinlay v Canada (Minister of Finance), [1986] 2 SCR 607). In order to obtain standing to challenge legislation, a party must establish:

(1) there is a serious issue as to the invalidity of the legislation;

(2) the plaintiff is affected directly by or has a genuine interest in the validity of the legislation; and

(3) there is no other reasonable and effective manner in which the issue may be brought before the court.

The issue raised by the CBA was deemed not serious because it does not challenge any particular legislation or administrative action said to be ultra vires. The case ultimately required the court “to define a constitutionally valid civil legal aid scheme and order its provision by the defendants” (para 45). Justice Brenner determined that “[t]here is no question that the provision of legal aid for non-criminal matters is a serious public issue, but that does not render it a serious issue warranting the grant of public interests standing. I am reluctant to extent the concept of public interests standing so far beyond what has been clearly set out by the Supreme Court of Canada” (para 48). The fact that the Supreme Court of Canada refused to hear this case can be interpreted as a positive acknowledgment to this conclusion.

The CBA did not fail the second part of the test that determines genuine interest and Justice Brenner determined he would not decline granting standing to the CBA solely on this issue anyway. However, the CBA did not pass the third part of the test that looks into whether there is any other reasonable and effective manner in which the issue may be brought before the court. The CBA relied on Chaoulli v Quebec (Attorney General), [2005] 1 SCR 791 [Chaoulli], to establish the third requirement in circumstances “where individual resources are lacking and/or where individual circumstances are otherwise dire” (para 66). While Chaoulli establishes the case for standing in circumstances where the affected people can not be expected to exhaust their little resources in individual court challenges, Justice Brenner was not convinced. He distinguished the case based on the first two parts of the test. First, he noted that Chaoulli was an individual challenge initiated by individual patients. Second, he noted the Chaoulli was challenging the constitutional validity of a legislation, which is not the case at bar.

In this brave attempt, the CBA was found to be lacking public interest standing. Moreover, Justice Brenner deemed that the constitutional claims forwarded by the CBA did not disclose causes of action and that “the interests or legal rights claimed were not of a type that would allow him to provide relief, whatever the outcome of the case.” At the final round of battle, the association was denied the opportunity to state its case before the Supreme Court of Canada. So, after years of lobbying, the CBA lost its bid to ensure constitutional rights for low-income people in the court system and from media reports on their most recent meeting, CBA members are back to lobbying political entities.

To conclude, it is ironic that, in this particular case, the plaintiffs lost on the public interest standing test. It is especially because people with low income cannot access lawyers or seek reasonable and effective ways to bring the issues at court that the CBA has taken up this task. Who else but the largest Canadian lawyers’ organization can? With the CBA not granted standing or leave to appeal to the Supreme Court of Canada, the ratio from this case is that Poor People will have to continue relying on charitable “publically minded counsel in the best traditions of the profession” (para 73) and that organization trying to incorporate social justice into their practice need to stick to the role of providing “professional expertise through generous intervener provisions” (para 77).

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