British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2020 BCCA 241, 2022 SCC 27 (39430)
“A not‑for‑profit organization working for the rights of people living with disabilities in Canada, together with two individual plaintiffs, filed a claim challenging the constitutionality of certain provisions of British Columbia’s mental health legislation. The claim asserts that the impugned provisions violate ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms by permitting physicians to administer psychiatric treatment to involuntary patients with mental disabilities without their consent and without the consent of a substitute decision‑maker. The two individual plaintiffs, who were involuntary patients affected by the impugned provisions, eventually withdrew from the litigation, leaving the organization as the sole remaining plaintiff. The organization filed an amended claim shortly thereafter seeking, among other things, public interest standing to continue the action.
The Attorney General applied to have the action dismissed on the basis that the organization lacked standing. The chambers judge allowed the application and dismissed the claim. In his view, the organization failed to satisfy the test for public interest standing set out in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45,  2 S.C.R. 524. The organization appealed. The Court of Appeal determined that the principles of legality and of access to justice merit particular weight in the Downtown Eastside framework, and held that the chambers judge erred in finding that the claim lacked a particular factual context of an individual’s case or an individual plaintiff. The Court of Appeal allowed the appeal, set aside the order dismissing the action, and remitted the matter to the court of first instance for fresh consideration. The Attorney General appeals to the Court and the organization seeks leave to cross-appeal to be granted public interest standing.”
The SCC (9:0) dismissed the appeal, allowed the cross appeal, and granted the organization public interest standing.
The Chief Justice wrote as follows (at paras. 5, 56, 72, 74-77, 79, 108-109, 119-120, 123):
“…I would dismiss the appeal, but grant CCD public interest standing, with special costs in this Court and in the courts below.
The Court of Appeal was wrong to conclude that the principles of legality and access to justice merit “particular weight” in the Downtown Eastside analysis. This Court’s case law, and in particular the existing Downtown Eastside framework, already addresses these factors in both implicit and explicit fashion. However, it does not assign them a place of principal importance in the analysis.
When standing is challenged at a preliminary stage, the plaintiff should not be required to provide trial evidence. That would be procedurally unfair, as it would permit the defendant to obtain evidence before discovery. Generally, however, a mere undertaking or intention to adduce evidence will not be enough to persuade a court that an evidentiary basis will be forthcoming. It may be helpful to give some examples of the considerations a court may find relevant when assessing whether a sufficiently concrete and well-developed factual setting will be produced at trial. As was the case in Downtown Eastside, for the purposes of its assessment of the “reasonable and effective means” factor, this list is not exhaustive, but illustrative.
- Stage of the proceedings: The court should take account of the stage of the proceedings at which standing is challenged. At a preliminary stage, a concrete factual basis may not be pivotal in the Downtown Eastside framework — the specific weight to be attached to this consideration will depend on the circumstances, and ultimately lies within the trial judge’s discretion. At trial, however, the absence of a factual basis should generally preclude a grant of public interest standing.
- Pleadings: The court should consider the nature of the pleadings and what material facts are pled. Are there concrete facts with respect to how legislation has been applied that can be proven at trial? Or are there merely hypothetical facts with respect to how legislation might be interpreted or applied? Do the pleadings reveal that the case can be argued largely on the face of the legislation, such that individual facts may not be pivotal? Or does the case turn more heavily on individualized facts?
- The nature of the public interest litigant: The court may also consider whether the litigant — if it is an organization — is composed of or works directly with individuals who are affected by the impugned legislation. If that is the case, it would be reasonable to infer that the litigant has the capacity to produce evidence from directly affected individuals.
- Undertakings: Courts rigorously enforce undertakings, which must be “strictly and scrupulously carried out” (see, e.g., Law Society of British Columbia, Code of Professional Conduct for British Columbia (online), rule 5.1-6). An undertaking by a lawyer to provide evidence might help to persuade a court that a sufficient factual setting will exist at trial, but an undertaking alone will seldom suffice.
- Actual evidence: Though a party is not required to do so, providing actual evidence — or a list of potential witnesses and the evidence they will provide — is a clear and compelling way to respond to a challenge to standing at a preliminary stage. As I explained above, the significance of a lack of evidence will depend on the stage of the litigation, the nature and context of the case, and the pleadings.
Courts, however, retain the ability to reconsider standing, even where it was initially granted at a preliminary stage (Borowski v. Canada (Attorney General),  1 S.C.R. 342). The ability to revisit standing depends on a plaintiff’s continued efforts to demonstrate that a sufficiently concrete and well-developed factual setting will be put forward at trial. In this sense, the ability to revisit standing acts as a fail-safe to ensure that the plaintiff does not rest on its laurels.
To be clear, the courts’ ability to revisit standing is not an open invitation to defendants to challenge standing at every available opportunity. Litigants must not waste judicial resources or unduly hinder the litigation process. For that reason, a defendant wishing to revisit standing may apply to do so only if a material change has occurred that raises a serious doubt that the public interest litigant will be able to put forward a sufficiently concrete and well-developed factual setting, and alternative litigation management strategies are inadequate to address the deficiency. One example of such a material change would be where the plaintiff undertook to provide evidence in response to a previous challenge to standing but failed to do so. By contrast, moving from one stage of the litigation to another does not, by itself, correspond to a material change that would merit revisiting standing.
A material change that raises a serious doubt that a plaintiff will be able to put forward a sufficiently concrete and well-developed factual setting is most likely to occur when the parties exchange pleadings or complete the discovery stage. These are the steps in the litigation process at which the factual setting is most likely to emerge. Unsurprisingly, the importance of the factual setting increases at each step of the process as the litigation progresses. This means that a plaintiff’s inability to demonstrate that it will put forward a sufficiently concrete and well-developed factual setting will carry more weight at the close of the discovery stage than after the exchange of pleadings, at which point the absence of concrete evidence would be less significant. Like the initial decision on standing, a decision to revisit standing turns on the particular circumstances of the case (Downtown Eastside, at para. 2).
While I do not foreclose the possibility of a material change occurring other than at the pleadings and discovery stages, such an occurrence would be rare. One example of an appropriate case would be where the original basis for the plaintiff’s standing has been called into question or becomes moot. The latter situation arose in the Borowski saga. In 1981, this Court granted Mr. Borowski public interest standing to challenge the prohibition against abortion in the Criminal Code, R.S.C. 1970, c. C-34 (see Minister of Justice of Canada v. Borowski,  2 S.C.R. 575), but the impugned provisions were subsequently struck down in R. v. Morgentaler,  1 S.C.R. 30. In 1989, this Court held that Mr. Borowski lacked standing to continue the case, because he was now asking the court to address a “purely abstract question” about the rights of a foetus, which meant that his challenge now amounted to a “private reference” (Borowski (1989), at pp. 365-68).
I note that rulings on standing are discretionary, and are thus “entitled to deference on appeal” (Strickland v. Canada (Attorney General), 2015 SCC 37,  2 S.C.R. 713, at para. 39). In the case at bar, however, there are errors in the decisions of the courts below that justify our intervention.
Finally, I note that it will still be open to the AGBC to challenge CCD’s standing should CCD fail to adduce the factual setting it undertook to adduce. It would make sense in this case to limit such a challenge to the stage following discovery.
I would pause to observe that standing is fact- and context-specific. This is an appropriate result in this case; it may not be appropriate in other cases. Rather than using the “blunt instrument” of denying standing, it is appropriate here to use various litigation management tools — like the possibility of revisiting standing — to ensure that the evidence in question is in fact tendered promptly.
CCD seeks an award of special costs on a full indemnity basis throughout. Special costs are exceptional and discretionary (Carter, at paras. 137 and 140). To award special costs, two criteria must be met:
- the case must involve matters of public interest that have a “significant and widespread societal impact” and are “truly exceptional” (Carter, at para. 140); and
- the plaintiff must show that it has no personal, proprietary or pecuniary interest that would justify the proceedings on economic grounds, and that it would not have been possible to effectively pursue the litigation in question with private funding (Carter, at para. 140).
CCD’s case satisfies both of these criteria. Regarding the first criterion, the scope of public interest standing and the circumstances in which organizations may pursue public interest litigation without an individual plaintiff is a matter of public interest that has a significant and widespread societal impact. The participation of over 20 interveners from across the country representing a range of interests and perspectives with respect to this appeal is a testament to this fact.
In these exceptional circumstances, and in the exercise of my discretion, I would grant special costs in this Court and in the courts below to place CCD — as far as it is possible to do so financially — in the position it was in when the AGBC called its standing into question.”