Court of Appeal Decision of the Week

Court of Appeal Rejects Constitutional Challenge to “User Pay” Jury System

Case: Trial Lawyers Association of British Columbia v. British Columbia, 2017 BCCA 324 (CanLII)

Keywords: Civil Jury Fees; Jury Act, R.S.B.C. 1996, c. 242; Constitutional Law

Synopsis:

The Appellant Trial Lawyers Association of British Columbia files a claim challenging the constitutionality of provisions of the Jury Act and Supreme Court Civil Rules providing for civil jury fees. The Appellant argues the provisions are

  • vague;
  • ultra vires the power of Sheriff Services; and
  • wrongfully impede access to justice (offending the rule of law and impinging on the court’s jurisdiction under s. 96 of the Constitution Act, 1867).

Following summary trial, the Trial Judge dismisses the Appellant’s claim. The Appellant appeals on the basis the Trial Judge erred in finding the impugned provisions constitutional.

The Court of Appeal dismisses the appeal, finding the Trial Judge did not err. For the Court of Appeal, the provisions are not unconstitutionally vague. Rather, a “sum sufficient to pay for the jury and the jury process” meets the requisite standard of precision. (See para. 66).

Importance:

Pursuant to s. 17 of the Jury Act, British Columbia has a “user-pay” jury system, requiring litigants to deposit “a sum sufficient to pay for the jury and jury process”. Sheriff Services requires that the party wishing to have a civil jury trial provide,

  • a $1500 deposit no less than 45 days prior to the scheduled trial date;
  • $800 daily deposits, paid in advance for days two through ten;
  • $900 for days 11 through 49; and
  • $1200 for days 50 and beyond. (See para. 5).

The Act and its requirements raise fundamental questions of public importance: do such requirements constitute an unlawful impediment to access to justice? Are the fees ultra vires the Act? Is the language contained in s. 17 of the Act unconstitutionally vague?

With respect to the first question, the Court of Appeal noted, as per Legroulx v. Pitre, 2009 ONCA 760 (CanLII) at para. 5, that the Charter does not confer a right to a jury trial in civil matters. Moreover, it emphasized that ss. 7 and 15 of the Charter should not be interpreted to confer such a right. (See para. 37). The Court of Appeal rejected the Appellant’s submission that the Court’s interpretation of the Charter in Legroulx was not sine qua non the question and that Charter values can still lend support for the argument against civil jury fees.

Comparing the present matter to Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), [2014] 3 SCR 31, 2014 SCC 59 (CanLII), the Court of Appeal noted at para. 51 that, whereas the hearing fees in that case “actually bar access to the superior courts” by preventing “…some individuals from having their private and public law disputes resolved by the courts”, the “proper balance” is achieved by the legislature with respect to civil jury fees:

In my view, the Association has failed to demonstrate an interference with access to the courts of the significant degree contemplated by TLA, 2014. As the court in Christie said, s. 92(14) of the Constitution Act, 1867 “implies the power of the province to impose at least some conditions on how and when people have a right of access to the courts” (Christie at para. 17). The jury fees here fall into this category of regulation. (See para. 53).

With respect to the ultra vires question, the Court of Appeal deferred to the Trial Judge’s conclusions as set out in his reasons. (See paras. 107 and 108 in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2016 BCSC 1391 (CanLII)).

Finally, as to the question of vagueness, the Court of Appeal set out the threshold and concluded as follows:

A provision is unconstitutionally vague where it sets a standard that is not intelligible, that cannot provide the basis for coherent judicial interpretation, and that is not capable of guiding legal debate (Canadian Foundation for Children, Youth & the Law v. Canada Attorney General), 2004 SCC 4 (CanLII) at paras. 15-17). What is required is that a court examining the provision can give sensible meaning to its terms (Reference re ss. 193 & 195.1(1)(c) of the Criminal Code (Canada), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123 (S.C.C.) at 1160). Both the government agent enforcing its terms and the person who is subject to those terms must be able to determine whether the fees in question are permissible or not under the Act and the Rules (Mussani v. College of Physicians and Surgeons of Ontario (2004), 2004 CanLII 48653 (ON CA), 248 D.L.R. (4th) 632 at para. 63). In my view, the impugned provisions meet this standard. (See para. 69).

The Court of Appeal dismissed the Appellant’s appeal, declining to give effect to the alleged errors in the Trial Judge’s reasons. As such, notwithstanding any possible successful application for leave to appeal to the Supreme Court of Canada and determination by that court, the “user-pay” system in B.C. is constitutional.

Counsel for the Appellant: Robert Holmes, Q.C. (Holmes & Bilawich, Vancouver) and Nicholas Peterson (Collette Parsons Harris, Vancouver)

Counsel for the Respondent: Jacqueline Hughes and K. Evans (Ministry of the Attorney General (BC), Vancouver)

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Posted: Wednesday, September 27, 2017