The constitutional principle respecting access to justice was given a major shot in the arm today. In what I consider to be a stunning decision, the Supreme Court of Canada has given real force and effect to this unwritten constitutional principle and ruled that British Columbia’s civil hearing fee regulations are unconstitutional. The Court is increasingly aware, it would seem. that the unwritten constitution may be as important and sometimes more important than the written one. The decision of Trial Lawyers Association et al v. British Columbia, 2014 SCC 59 is a game changer.
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.