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 (for example, they were injured in a car accident and are suing for damages). 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 court 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 outcome of the case; and it preserves the proper role of courts and their relationship to the other branches of government.[1]

However, private interest standing has its own limitations. Sometimes, for example, a law or policy negatively impacts a segment or all of our society, not just an individual. Sometimes a law negatively impacts groups that are marginalized and/or vulnerable, and they do not have the money or other resources to hire a lawyer to sue on their own behalf. In these cases, important matters of public interest are not brought to court by those directly affected by it, but rather, are brought by interested parties or civil advocacy organizations. This is known as public interest litigation.

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?

Public interest standing is not a right -- there is no automatic right to be a public interest litigant. That litigant must apply to court to be granted standing before they can proceed with their case. The potential litigant must pass a three stage test:

  1. There is a serious justiciable issue raised as to validity of legislation;

  2. The plaintiff is affected by it directly or has a genuine interest as to 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.[3]

How Do Judges Treat Public Interest Standing?

In practice, the third stage of the public interest test has proven to be the most massive hurdle. For a long time, judges adopted the view that, so long as a hypothetical person could bring the claim personally, public interest standing was inappropriate4]  This prevented several public interest suits from advancing, even when the proposed private litigants did not exist, or were unwilling to launch a case personally.

This strict view evolved over many years into a more purposive approach. The following cases highlight this evolution, and its most recent changes in (AG) v. Downtown Eastside Sex Workers United Against Violence (SWAUV).

1. Vriend v. Alberta [1998] 1 SCR 493

The narrow view on standing started to change in 1998 with the landmark case of Vriend v. Alberta. Vriend is more commonly known as a decision on the protection of gay and lesbian people from workplace discrimination. The claimant was dismissed from his employment for being gay, and the (then-existing) Alberta human rights legislation intentionally excluded homosexuality as protected from discrimination. Mr. Vriend made a s. 15(1) Charter challenge regarding the Alberta human rights legislation. The province of Alberta argued that he did not have standing to challenge all the provisions of the human rights act -- only those that dealt with employment. Since his grievance only involved employment, this was the only area where he had "standing as of right" (Vriend at para 42).

The Supreme Court of Canada granted Mr. Vriend public interest standing to challenge all provisions of the human rights act – not just those pertaining to employment. The Court rejected a strict reading of the third category, because it was inefficient and imposed an unfair burden on unknown potential litigants (Vriend at para 47).

2. Chaoulli c. Québec (Procureur general), 2005 SCC 35 (CanLII)

Later, in 2005, the Supreme Court of Canada again suggested that the third stage of the public interest standing test needed to be changed. In the dissenting judgment of Chaoulli c. Québec (Procureur general) Justice Binnie noted that, while some people may hypothetically exist to bring a case, it is not fair to expect people who are sick and/or vulnerable to bring wide reaching systemic court challenges to our healthcare system (Chaoulli at para 189).

Rather than mechanically considering whether a potential private litigant existed, Justice Binnie focused on the realistic lived experience of potential private interest litigants.

3. Morgentaler v New Brunswick, 2009 NBCA 26 (CanLII)

The New Brunswick Court of Appeal took matters further in Morgentaler v New Brunswick, a public interest challenge to abortion restrictions brought by a doctor on behalf of women. The province of New Brunswick argued (among other things) that Dr. Morgentaler should be denied public interest standing because more appropriate private litigants were existed -- namely women who had used, or were contemplating using his clinic.

The Court of Appeal picked up on the dissenting judgment in Chaoulli. While obviously other private interest litigants existed, none of them had come forward. Given the intensely personal decision involved in attending an abortion clinic, and the cost and timing restraints of Charter litigation, it was not reasonable to expect these women to bring the case themselves (Morgentaler at para 59).

4.  (AG) v. Downtown Eastside Sex Workers United Against Violence (SWAUV), 2012 SCC 45 (CanLII)

Most recently, a significant change in public interest litigation occurred in the 2012 decision (AG) v. Downtown Eastside Sex Workers United Against Violence (SWAUV). The case was brought by an organization involved in protecting vulnerable sex workers. They challenged the constitutionality of the criminal code provisions that prohibited “bawdy houses” (or brothels), arguing that the prohibition violated the Charter because it deprived women from the ability to do their jobs safely.

Justice Cromwell, speaking for the Court, criticized the traditional public interest standing test. He reformulated it with a more purposive approach. Specifically, at the third stage, rather than asking if there is “no other reasonable and effective means” to bring the case, the third stage of the test now asks whether the current action is a “reasonable and effective means” to bring the case (SWAUV at para 50).

Justice Cromewell provided a list of factors to consider in answering this question, including: the plaintiff’s capacity to bring the claim, whether it is a public interest case, whether there are realistic alternative means that are more efficient, and the potential impact of the proceedings on the rights of others (SWAUV at para 51).

In reformulating the third stage of the test, the Court significantly reduced the onus on a prospective public interest litigant, and removed a judge’s ability to hide behind hypothetical but unlikely private litigants.

This 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. Public interest standing is a mechanism by which these groups can effectively participate in adjudication of important social issues.

Some people have argued that Justice Cromwell’s rephrasing shifts public interest standing from the exception to the rule (see, for example, Dana Phillips, "Public Interest Standing, Access to Justice, and Democracy under the Charter: Canada (AG) v. Downtown Eastside Sex Workers United Against Violence” (2013) 22 Const. F. 21) This may be an overstatement, but nonetheless, the decision 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.

While there is still room for further development on this point,[ it is undeniable that the broadening of public interest litigation has advanced access to Charter litigation.