Law Times

Page 14 November 17, 2014 • Law Times www.lawtimesnews.com SUPREME COURT OF CANADA Constitutional Law COURTS Hearing fees unconstitutional when they cause undue hardship to litigant To obtain trial date in custody dispute, mother undertook to pay court hearing fee. Trial judge reserved decision on mother's request to relieve her from hear- ing fee until end of trial. After le- gal fees, mother could not afford hearing fee. Trial judge invited submissions and interventions on constitutionality of hearing fees. British Columbia branch of Canadian Bar Association (CBA), Trial Lawyers Associa- tion of British Columbia and Attorney General of British Co- lumbia intervened. Hearing fees escalate from zero for first three days of trial, to $500 for days four to ten, to $800 for each day over ten. Supreme Court Civil Rules (B.C.), provide exemption for persons "impoverished". Previous Supreme Court Rules, in place at time this case began, provided exemption for persons "indigent". Trial judge held that hearing fee provision unconsti- tutional. Court of Appeal held provision would pass consti- tutional muster if exemption expanded by reading in words "or in need". Trial Lawyers and CBA appealed remedy. Prov- ince cross-appealed on issue of constitutionality of hearing fee. Appeal allowed; cross-appeal dismissed. Power to levy hear- ing fees, permissible exercise of Province's jurisdiction, must be exercised in manner consis- tent with s. 96 of Constitution Act, 1867, and requirements that f low by necessary implica- tion from s. 96. Measures that prevent people from coming to courts are at odds with historic task of superior courts to resolve disputes and decide questions of private and public law. Hearing fees that deny people access to courts infringe core jurisdic- tion of superior courts and im- permissibly infringe s. 96 which provides constitutional protec- tion for access to justice, which is fundamental to rule of law. Sec- tion 92(14) not giving provinces power to administer justice in way that denies access to courts. Hearing fees unconstitutional when they cause undue hard- ship to litigant. Fees that require litigants who are not impov- erished to sacrifice reasonable expenses in order to bring claim may be unconstitutional as causing undue hardship. Hear- ing fees must be coupled with exemptions that allow judges to waive fees for people unable, by reason of financial situation, to bring non-frivolous or non-vex- atious litigation to court. Hear- ing fee scheme in this case places undue hardship on litigants, im- pedes access to justice and un- constitutional. Trial judges not having sufficient discretion to exempt litigants in appropriate circumstances. Mother excused from paying hearing fee. Hear- ing fee scheme declared uncon- stitutional. "Reading in" to be used sparingly and not applica- ble; Legislature left to enact new provisions if it chooses to do so. Vilardell v. Dunham (Oct. 2, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., and Karakatsanis J., File No. 35315) Decision at 223 A.C.W.S. (3d) 797 was reversed. 244 A.C.W.S. (3d) 327. FEDERAL COURT OF APPEAL Courts JURISDICTION Higher courts would benefit from practical expertise of provincial superior courts Applicant fathers brought ap- plication alleging that Fed- eral Child Support Guidelines (Can.), contradicted provisions of Divorce Act (Can.), under which they were enacted. Fa- thers sought to have Federal Court declare that Guidelines were ultra vires DA. Attorney General applied to have ap- plication dismissed. Federal Court Judge dismissed appli- cation. Judge found that four fathers lacked standing and did not meet test for public interest standing. Judge found that one father's application was imper- missible collateral attack and abuse of process. Judge found that one father had standing but court should decline to exercise jurisdiction to hear application because issues would be more appropriately dealt with in pro- vincial superior court. Father appealed. Appeal dismissed. Judge did not err in law in con- cluding that provincial superior courts had jurisdiction to deter- mine vires of Guidelines in con- text of proceedings for which they had jurisdiction under Act and to decline to apply them if found to be ultra vires. Judge erred in principle in applying and describing third factor to be considered in determining public interest standing. Ap- peal should be determined on issue of whether or not judge erred in declining to exercise jurisdiction and it was assumed fathers could have some stand- ing. Judge's discretion not to hear matter should be respect- ed. Vires of Guidelines should be determined by court that de- veloped particular expertise to properly assess argument in fac- tual context. It would be more appropriate to adjudicate issues in context of divorce proceed- ings because it would ensure full participation of spouse seeking support. Higher courts would benefit from practical expertise provincial superior courts had. While declaration of invalidity could not be granted by provin- cial superior court, fathers could obtain ultimate goal of reduc- tion of child support. Strickland v. Canada (Attorney General) (Feb. 5, 2014, F.C.A., Blais C.J., Sharlow J.A., and Johanne Gauthier J.A., File No. A-199-13) Decision at 228 A.C.W.S. (3d) 705 was affirmed. 244 A.C.W.S. (3d) 341. Sentence CONTEMPT OF COURT Respondent's depression did not excuse decision to continue to com- municate discriminating messages Applicant filed human rights complaint alleging respondent violated s. 13 of Canadian Hu- man Rights Act by posting ma- terial on internet that constitut- ed discrimination on grounds of religion, national or ethnic origin, race or colour. Tribu- nal concluded that complaint was substantiated and ordered respondent to cease and desist communicating material and pay fine of $4,000. Respondent's application for judicial review was dismissed. Respondent failed to remove all messages tribunal found violated s. 13 of Act from internet and contin- ued to post additional material of similar nature. Respondent was found in contempt. Re- spondent was sentenced to 30 days' imprisonment. Respon- dent appealed. Appeal dis- missed. Sentence was not unfit. Respondent's prior time served in prison in relation to crimi- nal charges should not reduce sentence imposed here. Respon- dent's loss of employment and depression did not excuse his decision to continue to com- municate discriminating mes- sages after being enjoined by tri- bunal to stop. Repeal of s. 13 of Act did not justify respondent's decision not to remove internet postings. Fact that Canadian Charter of Rights and Freedoms protected freedom of expres- sion did not serve as mitigating factor here or indicate that sen- tence was not proportional to offence committed. Respondent showed no remorse and did not offer sincere apology. Respon- dent showed f lagrant disregard for court order. Sentence of 30 days' imprisonment was fit. Warman v. Tremaine (Sep. 9, 2014, F.C.A., Eleanor R. Daw- son J.A., Johanne Trudel J.A., and Wyman W. Webb J.A., File No. A-493-12) 115 W.C.B. (2d) 502. FEDERAL COURT Immigration EXCLUSION AND EXPULSION Conditions of release required and proportional to danger identified Foreign national was first de- tained under security certificate in 2000. Foreign national was released under strict condi- tions after nearly seven years. Foreign national was named in second security certificate in 2008. In January 2013, some of foreign national's conditions of release were repealed and oth- ers were softened considerably. No changes were made when matter was last considered in December 2013. Second secu- rity certificate was found to be reasonable around that time. Foreign national subsequently agreed to provide various pass- words to authorities. Foreign national brought application for order repealing most release conditions. Application dis- missed. Conditions of release were required and proportional to danger identified. Foreign national's record regarding his most recent conditions of re- lease had not been exemplary. Foreign national had breached his conditions of release by, in- ter alia, not giving proper notice of acquisition and use of tele- phone and fax services. Foreign national's recent attitude, ac- tion, and behaviour were also indicative of unwillingness to collaborate and co-operate with supervisors. Foreign national's conduct could give impression that he had something to hide. Fact that underlying proceed- ings were long and complex did not in itself support less strict conditions of release. Report from psychiatrist was given little weight due to inaccuracies. For- eign national's proposed ques- tions for certification were not certifiable. Mahjoub, Re (Jul. 18, 2014, F.C., Simon Noel J., File No. DES-7- 08) 244 A.C.W.S. (3d) 407. REFUGEE STATUS Officer mischaracterized claimants' efforts to engage police Refugee claimants were Roma citizens of Hungary who al- leged fear of persecution based on their ethnicity. Claimants alleged that their home was set on fire and that both were as- saulted by Hungarian Guard. Claimants alleged that when one claimant was assaulted on train and conductor was eye witness, police did not search for assailants after seeing that victim was Roma. Claimant al- leged that he was told by police that he was just street person and not to bother police again. Officer found that police were not able to do anything because claimants were not able to iden- tify perpetrators. Officer denied claim on ground claimants had not rebutted presumption of state protection. Claimants ap- plied for judicial review. Ap- plication granted. Officer made reviewable error by focusing on legislative changes put in place to deal with discrimination against Roma, and listing ame- liorative redress mechanisms, without assessing real impact of those measures. Officer provid- ed no support of her assertion that police and government offi- cials were both willing and able to protect victims and in fact evidence referred to and quoted by officer indicated that efforts made by government had not proven effective. Officer also mischaracterized claimants' efforts to engage police and er- roneously concluded that police were unable to act because per- petrators of assault could not be identified. Steps taken by claim- ants were reasonable in circum- stances, and failure of police to provide any measure of protec- tion was consistent with reliable and corroborating evidence which was before officer that documented police inability or unwillingness to assist Roma. Bari v. Canada (Minister of Citi- zenship and Immigration) (Sep. 11, 2014, F.C., Yves de Montig- ny J., File No. IMM-1735-13) 244 A.C.W.S. (3d) 417. ONTARIO CIVIL DECISIONS Criminal Law TOBACCO OFFENCES Mandatory for prohibition order to be issued after two convictions Applicant's owner was charged with selling cigarettes to mi- nor and pled guilty and paid fine. Applicant received notice of non-compliance that made it clear two convictions in five years could lead to automatic prohibition from selling to- bacco products. Weeks later, ap- plicant's employee was charged with, and pled guilty to, selling cigarettes to minor. As a result, applicant was charged under s. 3(1) of Smoke-Free Ontario Act and sent notice of non-com- pliance. Applicant pled guilty and paid fine. Appeal periods for three charges were long ex- pired. Minister issued prohibi- casELaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164.

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