On Friday, in Allart v. Alec’s Automotive Machine Shop (2003) Ltd., 2014 BCSC 476, Madam Justice Bruce of the British Columbia Supreme Court ruled that the appellant’s constitutional challenge of Rule 18-3 of the Supreme Court Civil Rules (appeals from Provincial Court, Small Claims) could not succeed. In so doing, however, she recognized the plight that many litigants face when dealing with an appeal from the Provincial Court, namely the costs of a transcript of the Provincial Court proceedings. In my view, while this case does not deal substantively with the issue as to whether the requirement that one pay the costs of the transcription of the proceedings below results in a barrier to access to justice, it raises tangentially the question as to whether access to justice has become an illusory concept for most Canadians.

Ms. Allart sought to appeal a decision of the Provincial Court, Small Claims Division. One of the requirements was that she had to file a transcript of the proceedings in the provincial court. Ms. Allart is disabled. Her sole income was through social assistance payments for persons with disabilities, which income was very limited and was granted indigent status by the court. As a result of her indigent status, a legal services group, Access Pro Bono, agreed to represent her. Notwithstanding the fact that she was receiving free legal services, Ms. Allart could not proceed with her appeal because she could not afford to pay for the costs of the transcript. Since 1988, the provincial government had contracted out the transcription services to a private company, J.C. Word Assist Ltd., and anyone appealing a Small Claims result had to pay J.C. Word Assist Ltd. directly for the costs of preparing the transcript. When Ms. Allart applied for an order in the Supreme Court that the provincial government pay for the costs of the transcription, Smith J. ruled that there was no jurisdiction for such an order. Madam Justice Bruce described this result as follows (para. 9):

On April 25, 2013, Ms. Allart applied for an order that the Provincial government pay for the required transcripts. This application was heard in chambers by Smith J. and was dismissed on the basis that the Court had no jurisdiction to order that the province pay for transcripts of proceedings in another court. Smith J. also distinguished Ms. Allart’s case from the circumstances in Vilardell v. Dunham, 2012 BCSC 748 [Vilardell trial]. The brief reasons for judgment are as follows:

[1] Well, I appreciate, Ms. Allart that this transcript cost is a hardship for you and may well, in the circumstances, be an impediment to your access to justice, but I can only do what the law allows me to do. The indigent status order and the Rule under which the court was able to grant you indigent status, as well as the Vilardell case, refer to the court’s ability to waive fees that are payable to the Crown. Unfortunately, the cost of a transcript is not a fee payable to the Crown. It is a purchase to be made from a private provider of services. The money that has to be paid for those transcripts does not go to the Crown at all. It goes to the reporting service.

[2] So the question then becomes whether I have any jurisdiction at all to order the government to pay for transcripts in a case where the government is not a party. You have given me Rule 12-5(55) of the Rules of Court which says, in an action in which evidence or argument is taken down by an official reporter or is recorded digitally, et cetera, the transcript must be provided by the plaintiff, but the court can order a transcript be prepared at the expense of the government. That specifically refers to an action which is defined as a proceeding commenced by a writ of summons. In other words, this court can order the government to pay for transcripts of a proceeding in this court. It does not extend so far as to order the production of transcripts for the purposes of an appeal or a transcript of proceedings in another court. I think the cases have made it quite clear that the Court of Appeal tells me I do not have any such jurisdiction.

Ms. Allart then applied for a similar order but this time in the Provincial Court. Again, the application was denied. In support of her application, an affidavit sworn by an administrator of Access Pro Bono was filed which provided in part:

2. APB is a non-profit organization which promotes access to justice in British Columbia by providing and fostering quality pro bono legal services for people and non-profit organizations of limited means. APB’s only sources of revenue are grants and private donations. As a result, APB has limited resources available to pursue its mandate.

3. As APB’s Roster Coordinator, I am responsible for trying to match eligible low to modest income litigants with lawyers willing to provide pro bono representation services.

4. I am also responsible for managing limited disbursement funds that we make available for cases that are matched with lawyers on our rosters. Thanks to funding from the Law Foundation, we are typically able to offer $2500 in disbursement coverage per eligible client.

5. I am aware of a number of APB clients who have been successfully matched with a pro bono lawyer, but were nevertheless forced to abandon their appeals due to the fact that the estimated cost of producing transcripts exceeded the limited disbursement coverage that APB was able to provide.

6. A disproportionate number of the people who I’ve seen abandon their appeals due to prohibitive transcript costs are low-income women.

Ms. Allart’s argument was, in essence, that, to the extent that the requirement that she must file a transcript in order to be able to proceed an appeal had the effect of denying her access to justice, then that requirement should be considered to be unconstitutional. She cited in support of her submissions the cases of B.C.G.E.U. v. Attorney General (British Columbia, [1988] 2 SCR 214 (para. 26), Vilardell v. Dunham, 2012 BCSC 748, overturned on appeal 2013 BCCA 65 (leave to SCC granted) and Polewsky v. Home Hardware Stores Ltd. (2003), 66 O.R. (3d) 600 (S.C.J.)

Amongst the arguments advanced by the Attorney General in opposition to Ms. Allart’s submissions was the position that there was an insufficient factual foundation for the important constitutional issues raised by the case to be resolved. This is the argument that found traction with Madam Justice Bruce. She held that she had to dismiss Ms. Allart’s application due to the fact that there was simply an insufficient evidentiary basis for the constitutional issues to be determined (paras. 22-26):

[22] Where the constitutional challenge rests upon the deleterious effects of the impugned legislative provision, the evidentiary foundation of the claim is of fundamental importance. In MacKay, the Supreme Court of Canada addressed a claim that certain sections of the Elections Finances Act, S.M. 1982-83-84, c. 45, violated freedom of expression. It was the impact of the provision on this fundamental right rather than the purpose of the legislation that came under attack. Regarding the evidentiary foundation for the claim, Cory J. says at para. 20:

A factual foundation is of fundamental importance on this appeal. It is not the purpose of the legislation which is said to infringe the Charter but its effects. If the deleterious effects are not established there can be no Charter violation and no case has been made out. Thus the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants’ position.

[23] In Danson, the Supreme Court of Canada dealt with a challenge of Ontario’s new Rules of Court that permitted costs to be awarded against legal counsel personally in certain circumstances. The issue was whether the appeal could be heard without an evidentiary foundation. The appeal was dismissed due to the lack of a factual basis. Sopinka J. describes the fundamental importance of the adjudicative and legislative facts in a case where the effects of the legislation are impugned at paras. 31-32:

… In general, any Charter challenge based upon allegations of the unconstitutional effects of impugned legislation must be accompanied by admissible evidence of the alleged effects. In the absence of such evidence, the courts are left to proceed in a vacuum, which, in constitutional cases as in nature, has always been abhorred. As Morgan put it, op. cit., at p. 162: “. . . the process of constitutional litigation remains firmly grounded in the discipline of the common law methodology.”

The present case is, for these purposes, indistinguishable from MacKay, and I would respectfully adopt and apply Cory J.’s comments to these circumstances. The appellant here seeks to attack the impugned rules on the basis of their alleged effects upon the legal profession in Ontario. It would be, in my view, difficult if not impossible for a motions judge to assess the merits of the appellant’s application under Rule 14.05(3)(h) without evidence of those effects, by way of adjudicative facts (i.e., actual instances of the use or threatened use of the impugned rules) and legislative facts (i.e., the purpose, history and perceptions among the profession of the impugned rules).

[24] More recently in Christie, the Supreme Court of Canada reiterated the importance of an evidentiary foundation to support a claim that a legislative provision effectively precludes access to justice. As the Court said in Christie at para. 28:

… a comment on the adequacy of the record may not be amiss, in view of the magnitude of what is being sought — the striking out of an otherwise constitutional provincial tax. Counsel for Mr. Christie argued before us that the state cannot constitutionally add a cost to the expense of acquiring counsel to obtain access to justice when that cost serves no purpose in furthering justice. This assumes that there is a direct and inevitable causal link between any increase in the cost of legal services and retaining a lawyer and obtaining access to justice. However, as the Attorney General of British Columbia points out, the economics of legal services may be affected by a complex array of factors, suggesting the need for expert economic evidence to establish that the tax will in fact adversely affect access to justice. Without getting into the adequacy of the record in this case, we note that this Court has cautioned against deciding constitutional cases without an adequate evidentiary record: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 762 and 767-68, per Dickson C.J.; MacKay v. Manitoba, [1989] 2 S.C.R. 357, at p. 361; Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, at p. 1099.

[25] In the case at hand, there are insufficient adjudicative and legislative facts before the Court to adequately assess whether the requirement to provide a transcript precludes access to justice because of the cost associated with its preparation. Although at first blush it would seem a simple matter to conclude that if a litigant cannot pay for transcripts necessary for an appeal, access to justice has been denied. However, I believe the question is more complicated. While there is evidence that Ms. Allart cannot afford to pay the costs of a transcript due to her limited financial resources, there is no evidence of the efforts she has made to obtain funding for the transcript through other public and private sources.

[26] There is no evidence of whether private or public funding might be available to Ms. Allart from other sources to offset the cost of the disbursements required for her appeal. The record indicates that there is at least one possible source of funds for disbursements. The Access Pro Bono Society of British Columbia, which is funded by grants and private donations, is able to offer $2,500 in disbursement coverage per eligible client. Although Ms. Allart is a client of the society, at least for the purpose of this application, there is no evidence as to whether or not she is eligible to receive these funds or, if she is eligible, why these funds could not be used to pay for a transcript. If there is funding available from non-profit societies, can it really be said that Ms. Allart has been denied access to the Court?

Madam Justice Bruce was swayed by this argument. She decided that these sorts of decisions could not be made in a vacuum and that, as a result she had to dismiss the application (para. 28):

[28] The Court cannot address a constitutional challenge of this nature in a vacuum. Without evidence as to the economic consequences of a declaration that a requirement to pay for transcripts to support an appeal is unconstitutional and the extent to which the rule precludes access to justice, the Court cannot measure the relative impact of its decision on the allocation of scarce public resources. If the court struck down the rule that requires transcripts be supplied in every appeal of a judgment in Small Claims Court, or read in a requirement that the Provincial government cover the costs of transcripts where the litigant is declared indigent, it would require an additional outlay of public monies. The Court cannot make such a decision lightly because it is the Legislature that is charged with responsibility for allocating public resources. It may be that in complying with the Court’s order the Legislature would be forced to take monies away from some other publicly funded programs. These questions illustrate the danger of proceeding with a constitutional challenge without knowing all of the relevant facts and the consequential impact of the remedy requested.

After having concluded that she was obliged to dismiss the application of Ms. Allart, Madam Justice Bruce then issued a cri de coeur that seemed to recognize that the matters raised by Ms. Allart raised real issues about access to justice (paras. 31-32):

[31] Although I have dismissed the application, I would like to make a few comments on the issue raised in her application. In my view, Ms. Allart’s application raises complicated and serious questions about the adequacy of the government’s actions to ensure access to justice for all persons regardless of their economic status.

[32] At the present time there is a Canada-wide effort within all levels of government and at all levels of court to make the justice system accessible to everyone. The Supreme Court of Canada’s Committee on Access to Justice in Civil and Family Matters issued a report in October 2013 that stressed the importance of taking concrete steps to ensure that people who have family and civil disputes are not denied access to our court system. A key concern is the cost of litigation. Ms. Allart’s application identifies one area that could be addressed by the Provincial government as a means of precluding a denial of justice to persons with meritorious cases. I urge the government to investigate ways in which the cost of appeal transcripts could be offset where the circumstances warrant such extraordinary measures.

I have two comments respecting this decision.

First, it would seem from her closing comments that Madam Justice Bruce realized that, by dismissing Ms. Allart’s application, she was closing the door on Ms. Allart’s appeal. In other words, for Ms. Allart, she would not be able to proceed with the appeal unless some benefactor were suddenly to step in and fill that financial void. Other options were open to Madam Justice Bruce. She may have taken steps as in Vilardell to require that the issue raised by Ms. Allart be fully explored and argued – especially in light of the fact that she clearly understood that there was a de facto impediment to justice. She may have even dismissed the application but with leave for Ms. Allart to try to perfect the evidentiary record and to bring the application on again. The dismissal of the application because a severely financially limited litigant had not provided an adequate evidentiary record seems to constitute just more salt in the wound for the impoverished party.

Second, and more significantly, it is the issue that this case (and for that matter, Vilardell) does not address that I think is important. So far no one has addressed what is the elephant in the room. Ms. Allart was able to have Access Pro Bono represent her because she was granted indigent status. If she had not been sufficiently indigent, not only would she have had the costs of a transcript to deal with, but she would have had either to represent herself or somehow to come up with some means for legal representation. While the disbursement costs of hearings and appeals are significant and must be considered through the lens of the principle of “access to justice”, by far the greater costs are legal fees. In my view, not only are the nearly indigent excluded from access to justice for many of the issues that face them but so too are many of those Canadians who constitute the “middle class” of our country. I do not profess to have answers to this issue. But I am convinced that the legal profession must take on this issue, this question of access to justice, and address it in conjunction with the courts and the governments, federal and provincial. As participants in the legal process, in this “justice system”, the legal profession will need to take more of a role in addressing the wide disparity that exists between those who can adequately gain entry to justice through the doors of Canada’s courtrooms and those who cannot because they simply cannot afford the costs of “justice”.

I remain

Constitutionally yours,

Arthur Grant