Opinion: The Tension Between Access to Justice and Conservation of Resources in British Columbia (Attorney General) v Council of Canadians with Disabilities

Written by Calvin Ediger

 The Supreme Court has recently clarified the law with regards to public interest standing in British Columbia (Attorney General) v. Council of Canadians with Disabilities. Public interest standing allows organizations or individuals to bring a matter to court even though they are not directly impacted or had their rights infringed. This improves access to justice by allowing third party actors to bring action in instances where the affected individuals themselves may not be positioned to otherwise do so.

The existence of public interest standing necessarily implies that there are groups within Canadian society that cannot adequately access the justice system to resolve their grievances. It should be asked whether public interest standing is enough to remedy this reality.

In examining these issues, we will first look at the factors determining public interest standing before turning to the role access to justice considerations play in the court’s decision. Finally, we will look at the broader structural implications public interest standing has in the Canadian justice system.

Factors Determining Public Interest Standing

A court’s decision to grant or deny public interest standing is based on three factors which were laid out in a previous case, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society. The first factor is whether the case brings forward a serious justiciable issue, that is an issue that is not frivolous and is appropriate for a court to decide.[1]

The second factor is if the party bringing the action has a genuine interest in the matter. The court may look at the plaintiff’s reputation and decide whether they have a link to and interest in the claim. The third factor considers whether the proposed suit is a reasonable and effective means of bringing the matter to court.

The three factors are to be considered with reference to three reasons to limit standing, and two reasons to grant standing. The limiting reasons are: i) effective allocation of resources and screening out “busybody” litigants, ii) ensuring the court has contending views rising from those most affected, and iii) ensuring the courts play their proper constitutional role.[2]

By contrast the two purposes favoring a granting of standing are: i) legality; the concept that the state must conform to the law and there exists a practical way to challenge state action, and ii) access to justice which the court here interprets as access to the courts.[3] The court summed up the importance of access to justice by quoting Dickson C.J.; “[t]here cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice”.[4]

Conservation of Resources and Access to Justice

One of the Supreme Court’s key findings in this case was that concerns about access to justice and legality should not have any heavier weight attached in a court’s decision to grant standing. This decision is based on the rationale that “no one purpose, principle or factor takes precedence in the analysis”.[5] That is to say that legality and access to justice should be treated co-equal with the three reasons to limit standing in a court’s analysis.

“Because legality and access to justice feature most prominently in relation to the third factor, attaching “particular weight” to them would effectively transform the “reasonable and effective means” factor into a determinative one”.[6] Though it may be true that giving more weight to legality and access to justice may make the reasonable and effective means determinative, it must also be observed not to do so necessarily gives more emphasis to the screening out of busybodies and the conservation of resources. This is because all three factors are partially concerned with screening out “busybody” litigants.

The serious justiciable issue combines concerns about whether the court is acting in its prescribed constitutional role in determining the issue, and whether the issue is serious enough to warrant judicial resources. The genuine interest factor is concerned with whether the plaintiff has a “real stake” in the proceedings, and again is concerned with screening out busy body litigants.

In addition, concern over the allocation of resources is also present in the reasonable and effective means factor, as it relates to “needlessly overburdening the justice system”.[7] Thus the conservation of resources is a concern present in all three factors, whereas legality and access to justice are concerns only in one factor of analysis. Let us note that in this same decision the court stated that “Access to justice, like legality, is ‘fundamental to the rule of law’”.[8] By contrast the screening of busybody litigants and the conservation of resources seem more mundane, pragmatic considerations.

It is interesting that all three factors of analysis are dedicated to screening so-called “busybodies” when the court itself notes “the concern about ‘busybodies’ may be overstated”.[9] Quite simply an overemphasis on the conservation of resources risks compromising the principle of the rule of law that the Canadian Justice system is founded upon. To quote a recent report by the Canadian Bar Association with regards to the use of technology in the justice system: “it is essential to nurture institutional norms and values because efficiency is a poor substitute for the integrity of the system.”[10]

Structural Implications

Further, the fact that public interest standing is needed to bring important issues to court is disheartening. The need to increase the abilities of third-party groups to advocate on behalf of those who lack the means to access the justice system themselves cannot be seen as anything other than an indication that the judicial system is out of the reach of many common Canadians.

According to a recent Statistics Canada survey, cost remains the biggest barrier to people seeking legal redress for their issues.[11] Further, people with disabilities face a disproportionate number of legal issues in addition to reporting that they struggle with cost.[12] Third party organisations have dutifully stepped up to try and alleviate this situation by directly advocating on issues that affect disabled people.

However, it must be asked whether a situation where the most viable route for accessing the justice system lies in the advocacy of third-party organizations, as opposed to individuals directly bringing their grievances to court, is truly the best situation for Canadians. Measures such as the increased availability of public interest standing for third-party litigants and expanded use of summary judgements do help ease the burden on the judicial system and litigants in the short term. However, such gains in efficiency cannot be mistaken as solutions for the fundamental structural tensions that underlie the Canadian system of justice.

[1] Ibid, at paras 49-50.

[2] Ibid, at para 29.

[3] Ibid, at paras 33-35.

[4] B.C.G.E.U. v. British Columbia (Attorney General), 1988 2 S.C.R. 214, at p. 230.

[5] British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022, SCC 27, at para 59.

[6] Ibid, at para 58.

[7] Ibid, at para 53.

[8] Ibid, at para 34.

[9] Ibid, at para 45.

[10] Canadian Bar Association, Report, “No Turning Back: Report of the CBA Task Force on Justice Arising from COVID-19” (2021) at page 17.

[11] Statistics Canada, Article, “Experiences of serious problems or disputes in the Canadian provinces” (2021) at page 10.

[12] Ibid, at page 6.

The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.

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