Advancing Access to Charter Litigation
Canadian judges have creatively used some courtroom tools to make access to Charter litigation easier. These efforts are focused in two primary areas: standing and costs. As Charter litigation often involves some of Canada’s most vulnerable communities, a flexible approach to these two issues has relieved some of the financial and emotional burdens of Charter litigation, and advanced access to justice.
The Expansion of Public Interest Standing
What is Public Interest Standing?
"Standing" is the legal term for one's ability to bring a case in court. The Canadian civil litigation system is premised on the norm of "private standing" or "standing as of right". This means that that individual litigants will come to court raising grievances personal to them. These people have the right to bring a case to sue on their own behalf.
Private standing has traditionally been viewed as the best way to operate our justice system because: it prevents mere “busybodies” from using up scarce judicial resources; it ensures contending points of view are raised by those personally invested in the case; and it preserves the proper role of courts and their relationship to the other branches of government.
However, private interest standing has its limitations. Sometimes, for example, a law or policy negatively impacts a segment of our society, not just an individual. In other cases, a law might negatively impact people that are vulnerable and/or marginalized in society. These people may not have the money or other resources to hire a lawyer personally. In these cases, important matters of public interest can be brought to court by external interested parties or civil advocacy organizations. This is known as public interest litigation.
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Public interest litigation allows a person or organization to bring a case notwithstanding their lack of direct involvement in the matter, or any infringement of their personal rights. It tends to arise when litigants want to challenge government action with broad social effects, and therefore, is very important in Charter litigation.
What is the test for Public Interest Standing?
There is no automatic right to be a public interest litigant. That potential litigant must apply to court before they can proceed with their case. The potential litigant must pass a three stage test:
There is a serious justiciable issue raised as to validity of legislation;
The plaintiff is affected by it directly or has a genuine interest as to the validity of the legislation; and
Considering all circumstances, public interest standing is a reasonable and effective manner in which the issue may be brought before the court.
How Do Judges Treat Public Interest Standing?
Traditionally, public interest standing was viewed very narrowly. Up until 2012, the third stage of the test asked if there was "no other reasonable and effective manner" to bring a case to court. So long as a hypothetical personal litigant existed, public interest standing was often rejected. This third stage prevented several public interest suits from advancing, even when private litigants did not exist or were unwilling to launch a case personally.
This strict view slowly evolved over many years into a more purposive and contextual approach. Starting in Vriend v. Alberta,  1 SCR 493, the Supreme Court of Canada permitted someone to challenge Alberta's (then existing) human rights legislation despite the fact that his personal circumstances only engaged certain discrete sections of that Act.The Supreme Court rejected a strict reading of the third stage of the test, because it was inefficient and imposed an unfair burden on unknown people (Vriend at para 47).
In 2005, the dissent in Chaoulli c. Québec (Procureur general), 2005 SCC 35 (CanLII) again suggested that the third stage of the public interest standing test needed to be changed (Chaoulli at para 189). This was picked up by the New Brunswick Court of Appeal in Morgentaler v New Brunswick, 2009 NBCA 26, where the Court granted public interest standing to a doctor who wanted to challenge abortion restrictions in the province. Despite the fact that this doctor was a man and would never be directly impacted by the restrictions, the Court held that public interest standing was appropriate (Morgentaler at para 59).
These incremental changes culminated in (AG) v. Downtown Eastside Sex Workers United Against Violence (SWAUV), 2012 SCC 45 wherein the Supreme Court officially expanded the public interest standing test. Now, when approached with the third stage of the test, rather than asking if there is “no other reasonable and effective means” to bring the case, we now ask whether the current action is "a reasonable and effective means” to bring the case (SWAUV at para 50). Answering this question involves reviewing the public interest litigant's capacity to bring the claim, the existence of realistic and more efficient alternatives, and the potential impact of the proceedings on the rights of others (SWAUV at para 51).
This reformulation has significantly reduced the onus on prospective public interest litigants. The case is also important because it was the first time the Supreme Court characterized public interest standing as an access to justice issue (SWAUV at para 51). Marginalized groups often lack resources to advance Charter litigation, and public interest standing is a mechanism by which these groups can effectively participate in adjudication of important social issues.
SWAUV constitutes a significant step forward in increasing access to Charter litigation. It recognized that public interest litigants are crucial to realizing the Charter’s democratic potential because they can address the systemic impacts of the law on the most vulnerable people in a way that isn’t possible in individual litigation. The decision paves the way for systemic issue Charter challenges in the future, and it validates the importance of public interest litigation.
The Use of Creative Costs Awards
Judges have also tried to simplify access to Charter litigation by taking a creative approach to costs awards.
What are Costs?
Costs are a money award that a judge may order one litigant pay to the other (or to the court) during or at the end of a court action. Traditionally, costs were ordered to (at least partially) indemnify a successful party for the legal fees they incurred during an action. An unsuccessful party is typically ordered to pay costs to the successful party, and in this way, acts as a disincentive to for people to fight lawsuits where they have very little chance of succeeding.
Costs also, however, have a long history of being used to implement broader policies. For example, costs are often awarded or refused to encourage settlement and to prevent vexatious litigation.
Costs awards are entirely discretionary, meaning that a judge has unfettered discretion to decide if costs are appropriate, who may be entitled to them, when they should be awarded, and how much should be given.
What are Interim Costs Awards?
Recently, judges have used their wide discretion to ease some financial burden that weighs on Charter litigants. One controversial method is known as advanced (or interim) costs awards. This allows a judge to award costs to a Charter litigant before the case is finished, to enable the recipient to fund their litigation. Advanced costs are controversial because it forces one party (typically a government entity in Charter cases) to pay another’s legal fees before the validity of the claim is decided.
What is the Test for Interim Costs Awards?
When public interest litigation is at stake, an advanced costs award will be made if the following three steps can be proven:
1. The party seeking interim costs genuinely cannot afford to pay for the litigation.
2. The claim has merit to it and it is in the interests of justice to determine it.
3. The issues raised are of public importance.
The leading case on advanced costs awards is British Columbia (Minister of Forests) v. Okanagan Indian Bands, 2003 SCC 71. In that case, the Supreme Court of Canada held that interim costs awards may be given in exceptional circumstances to increase access to justice and mitigate severe inequality between litigants (at para 31). The Court noted that public interest litigation can change the traditional rules around costs because it imports other important policy objectives. In particular, costs help to ensure that that ordinary people have access to the courts to determine their constitutional rights. In addition, these cases often serve the public interest, as they often have significant implications for the public at large.
However, in Little Sisters Book & Art Emporium v. Canada (Commissioner of Customs & Revenue Agency, 2007 SCC 2 (CanLII) the Supreme Court of Canada held that (contrary to what Okanagan may suggest) access to justice is not the paramount concern in awarding interim costs. Bringing an issue of public importance does not automatically entitle a litigant to preferential treatment with respect to costs (at para 35). Public interest litigation does not automatically entitle a claimant to an advance costs award, and the Court has no interest in becoming a "proxy for the public inquiry process" (at para 39).
How else can Costs increase Access to Justice?
Denying Costs in Charter Litigation
Some judges are getting creative with costs awards by refusing to award costs against a losing Charter litigant. In Okanagan, the Supreme Court of Canada signalled that costs do not necessarily have to be awarded to a successful party, especially in public interest Charter litigation. Costs can be denied, or even awarded to the losing party in the right circumstances. If costs were always awarded against unsuccessful Charter litigants, it would discourage ordinary people from pursuing claims.
Changing the Scale of Costs Awards
In addition, costs can be awarded on an advanced scale outside the normal guidelines. This happened in Victoria (City) v. Adams, 2009 BCCA 563 -- a case regarding a bylaw that banned homeless people from erecting nighttime shelters.
The Court of Appeal awarded solicitor-client costs to the successful public interest counsel. This was unusual, because solicitor-client costs are typically only awarded as a punishment against a vexatious or unreasonable litigant. The City of Victoria had not acted improperly in the action. The Court of Appeal held that “notwithstanding the absence of reprehensible conduct... special costs are awarded as an instrument of policy to encourage access to justice” (Victoria (City) at para 182).