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Courts Must Not Shy Away From Waiving Court Hearing Fees for Those "In Need"

Last year Mr. Justice McEwan blasted BC’s Attorney General stating that ‘some things cannot be for sale’ and struck down Provincially imposed Court ‘hearing fees’.  This decision has now been overturned by the Court of Appeal who have upheld BC’s Court hearing fees but held that in order to survive constitutional challenge the Judicial right to waive these fees much be applied to all ‘in need‘.
In last week’s decision (Vilardell v. Dunham) the Court of Appeal provided the following feedback in upholding BC’s Court hearing fees:
 [4]             In my opinion, were it not for the power of the courts to give relief from the hearing fees, they would be an unconstitutional impediment to justice.  The power is found in an enlarged interpretation of the indigency provision…
[31]         I am reluctant to take the course suggested by the respondents.  Cost recovery has been a legitimate government objective for centuries and our Constitution assigns administration of the superior courts to the province.  It is a drastic step to strike down an otherwise valid enactment for want of a saving provision that falls short of the mark.  A more surgical response is to remedy the deficiency by reading in the under-inclusive indigency provision in the Rules to include people who are “in need”: see Schachter v. Canada, [1992] 2 S.C.R. 679 at 718.  “In need” recognizes the fact that some litigants, while not destitute or impoverished, are still in need of relief or assistance in order to have their case heard before a superior court…
[35]         To the extent that the hearing fees have the potential to interfere with the core judicial function of running a trial, which I think they do, the courts should respond to the interference.  Judges must not shy away from dealing with such incursions.  The remedy I propose in this case is a measured response to the problem. ..
[41]         Granting an automatic exemption to recipients of employment or disability insurance suggests a more generous approach than was previously taken.  The enlarged scope of the exemption in Rule 20-5, then, should be read as saying “impoverished or in need”.  The phrase is intended to cover those who could not meet their everyday expenses if they were required to pay the fees.  Courts will continue to use their discretion to determine whether a litigant is impoverished or in need to the point that but for the hearing fees, they would be able to pursue their claim, thus qualifying for an exemption.

access to justice, Vilardell v. Dunham