COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
Council of Canadians with Disabilities v. British Columbia (Attorney General), |
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2020 BCCA 241 |
Date: 20200826
Docket: CA45711
Between:
Council of Canadians with Disabilities
Appellant
(Plaintiff)
And
Attorney General of British Columbia
Respondent
(Defendant)
And
British Columbia Civil Liberties Association, West Coast Legal Education and Action Fund, and Ecojustice Canada Society
Intervenors
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Before: |
The Honourable Mr. Justice Frankel The Honourable Madam Justice Dickson The Honourable Madam Justice DeWitt-Van Oosten |
On appeal from: An order of the Supreme Court of British Columbia, dated October 12, 2018 (MacLaren v. British Columbia (Attorney General), 2018 BCSC 1753, Vancouver Docket S168364).
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Counsel for the Appellant: |
M.A. Feder, Q.C. |
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Counsel for the Respondent: |
M.A. Witten |
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Counsel for the Intervenor British Columbia Civil Liberties Association: |
S.M. Tucker, Q.C. |
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Counsel for the Intervenor West Coast Legal Education and Action Fund: |
J. Harman |
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Counsel for the Intervenor Ecojustice Canada Society: |
M.P. Doherty |
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Place and Date of Hearing: |
Vancouver, British Columbia May 31, 2019 |
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Written Submissions received: |
August 14, 21, 2020 |
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Place and Date of Judgment: |
Vancouver, British Columbia August 26, 2020 |
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Written Reasons by: |
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The Honourable Madam Justice Dickson |
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Concurred in by: |
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The Honourable Mr. Justice Frankel The Honourable Madam Justice DeWitt-Van Oosten |
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Table of Contents |
Paragraph Range |
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[1] - [5] |
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[6] - [12] |
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[13] - [30] |
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[13] - [14] |
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[15] - [25] |
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[26] - [30] |
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[31] - [48] |
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[33] - [38] |
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[39] - [40] |
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Reasonable and Effective Means to Bring the Challenge to Court |
[41] - [47] |
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[48] - [48] |
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[49] - [59] |
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[49] - [54] |
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[55] - [58] |
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[59] - [59] |
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[60] - [123] |
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[60] - [60] |
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[61] - [66] |
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[67] - [101] |
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[72] - [73] |
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[74] - [79] |
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[80] - [85] |
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[86] - [89] |
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[90] - [97] |
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[98] - [98] |
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[99] - [101] |
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Did the Chief Justice err in assessing whether the claim raised a serious justiciable issue? |
[102] - [116] |
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[117] - [121] |
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In light of the error identified, what order should this court make? |
[122] - [123] |
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[124] - [124] |
Summary:
The Council of Canadians with Disabilities (“CCD”) appeals from an order dismissing its constitutional challenge to certain mental health legislation on the basis that the CCD lacked public interest standing to pursue the claim on its own. The CCD argues the judge erred in his application of each of the three Borowski factors that govern public interest standing: i) whether there is a serious justiciable issue to be tried; ii) whether the plaintiff has a genuine interest in its outcome; and iii) whether the action is a reasonable and effective means to bring the claim to court. Further, it contends that the judge failed to consider its alternative position that the standing issue was not suitable for summary determination.
Held: Appeal allowed. The judge erred in his application of the first Borowski factor in finding that, absent an individual plaintiff, the CCD’s claim lacked a sufficient factual context to ground a serious justiciable issue. The CCD’s claim is a comprehensive and systemic constitutional challenge to specific legislation that directly affects all members of a defined and identifiable group in a serious, specific and broadly-based manner. As such, it manifestly raises a serious justiciable issue. Given that error, it is unnecessary to decide whether he erred in his application of the other Borowski factors, although, in some respects his approach failed to comport with the flexible and purposive approach required. The judge did not err in concluding that the standing issue was suitable for summary determination.
Reasons for Judgment of the Honourable Madam Justice Dickson:
[1] The Council of Canadians with Disabilities (“CCD”) and two individual co-plaintiffs brought a claim to challenge the constitutional validity of British Columbia’s mental health legislation related to the provision of non-consensual psychiatric health care treatment. After the co-plaintiffs discontinued their personal claims, Chief Justice Hinkson dismissed the action on the basis that the CCD lacked public interest standing to pursue the challenge on its own. The CCD appeals, contending he erred by applying a legally incorrect and unduly narrow approach to public interest standing that unjustifiably privileges individual claims over group claims in constitutional litigation. It says we should set aside the dismissal order and grant it standing to advance the comprehensive and systemic constitutional challenge raised by the claim.
[2] The question of standing is concerned with whether the court should deal with a particular claim brought by a particular plaintiff. This appeal is concerned with the proper approach to answering that question when a public interest advocacy organization such as the CCD seeks standing to bring a broadly based challenge to the constitutionality of legislation. Developed in a trio of Supreme Court of Canada decisions in the 1970s and 80s, public interest standing permits public-spirited litigants to bring justiciable issues of general interest and transcendent importance before the courts for determination in appropriate cases. This, in turn, enables the courts to fulfill their constitutional role of scrutinizing the legality of government action, striking it down when it is unlawful and thus establishing and enforcing the rule of law.
[3] Public interest standing is an aspect of judicial discretion. In exercising their discretion to grant or refuse public interest standing, courts consider the three factors set out in Canada (Minister of Justice) v. Borowski, [1981] 2 S.C.R. 575: i) whether there is a serious justiciable issue raised by the claim; ii) whether the plaintiff is directly affected by the proposed action or, if not, has a genuine interest in its outcome; and iii) whether the action is a reasonable and effective means to bring the claim to court. Since the Canadian Charter of Rights and Freedoms came into force in 1982, courts have exercised this discretion liberally and generously while accounting for concerns that traditionally limited standing, namely, ensuring that the courts are not overburdened with marginal or redundant claims, that “busybody” litigants are screened out, that courts benefit from the contending views of those most directly affected by an issue and that they maintain their proper role within our democratic system of government.
[4] As Charter challenges have grown in frequency and complexity over the years, so, too, has standing law evolved and developed. Three decades after the Charter was passed, the Supreme Court of Canada re-examined the traditional concerns underlying strict limitations on standing and relaxed some of them in the public law context: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45. The goals of standing law remain the same: to ensure that legislation and state action are lawful, that courts are accessible and that judicial resources are deployed economically and appropriately. However, since Downtown Eastside was decided courts have sought to achieve them by applying the Borowski factors flexibly, purposively and pragmatically, increasingly attuned to the importance of upholding the legality principle and the practical realities of providing meaningful access to justice for vulnerable and marginalized citizens affected by legislation of questionable constitutional validity.
[5] In my view, the Chief Justice’s analysis of standing did not comport in all respects with the flexible, purposive approach mandated in Downtown Eastside. It was also based on an error in principle with respect to the first factor of the Borowski test. For the reasons that follow, I would allow the appeal, set aside the order dismissing the action and remit the CCD’s application for public interest standing to the Supreme Court of British Columbia for fresh consideration.
[6] Every adult in British Columbia is presumed to be capable of giving, refusing, or revoking consent to health care until the contrary is demonstrated: Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, s. 3(1) [Health Care (Consent) Act]. Subject to certain exceptions, health care providers must not provide health care without obtaining an adult’s consent: Health Care (Consent) Act, s. 5. When an adult is found incapable of consenting to health care, health care providers must seek consent from the adult’s representative, known as a “substitute decision maker”: Health Care (Consent) Act, ss. 11, 16. A substitute decision maker may be authorized in advance by the adult under the Representation Agreement Act, R.S.B.C. 1996, c. 405, chosen temporarily by a health provider under the Health Care (Consent) Act or appointed by the court under the Patients Property Act, R.S.B.C. 1996, c. 349.
[7] However, pursuant to ss. 2(b) and (c), the Health Care (Consent) Act does not apply to the provision of psychiatric health care treatment to involuntary patients detained in provincial mental health facilities, released on leave or transferred to approved homes under the Mental Health Act, R.S.B.C. 1996, c. 288. Nor may an adult authorize a representative in advance to refuse consent to psychiatric treatment when the adult is an involuntary patient: Representation Agreement Act, ss. 11(1)(b) and (c). The authority, criteria and procedures for the admission, detention and psychiatric treatment of involuntary patients is governed by the Mental Health Act and the Mental Health Regulation, B.C. Reg. 233/99.
[8] The means and criteria by which involuntary patients may be admitted to a designated facility and treated are set out in ss. 22, 28, 29, 30 and 42 of the Mental Health Act. Pursuant to ss. 22(1) and (2), the director of a facility may admit, detain and treat an involuntary patient for up to 48 hours on receiving a medical certificate completed by a physician and continue to do so on receiving a second medical certificate from another physician. Pursuant to s. 22(3), these medical certificates must include a statement of opinion by an examining physician that the person has a mental disorder, requires treatment in or through a designated facility to prevent substantial mental or physical deterioration or for the protection of the person or others and cannot suitably be admitted as a voluntary patient.
[9] Section 8(a) of the Mental Health Act provides that the director of a designated facility must ensure that every patient admitted is given treatment appropriate to the patient’s condition and the function of the facility. Pursuant to s. 31(1), the director may authorize the provision of psychiatric treatment to an involuntary patient and, in such circumstances, the treatment is deemed to be given with the patient’s consent.
[10] Section 31(1) of the Mental Health Act provides:
31(1) If a patient is detained in a designated facility under section 22, 28, 29, 30 or 42 or is released on leave or is transferred to an approved home under section 27 or 38, treatment authorized by the director is deemed to be given with the consent of the patient.
[11] Section 11 of the Mental Health Regulation prescribes the forms required by the Mental Health Act. For an involuntary patient, the consent for treatment form is Form 5. When an involuntary patient is admitted to a designated facility and signs a Form 5, option “A” on the form is completed. It provides that the patient authorizes the treatment described and the physician attests “[t]o the best of my judgment, the above-named patient was capable of understanding the nature of the above authorization at the time it was signed.” When the patient does not sign, option “B” is completed by the director or a delegate. It provides that the director authorizes the treatment described and the physician attests “[t]he above-named patient is an involuntary patient under section 22, 28, 29, 30 or 42 of the Mental Health Act and to the best of my judgment is incapable of appreciating the nature of treatment and/or his or her need for it, and is therefore incapable of giving consent.”
[12] The CCD sought to challenge the constitutional validity of s. 31(1) of the Mental Health Act, ss. 2(b) and (c) of the Health Care (Consent) Act and ss. 11(1)(b) and (c) of the Representation Agreement Act. I will refer to these provisions collectively as the “impugned provisions”.
[13] The CCD is a national, not-for-profit association founded by persons with disabilities to represent and advance their interests, including the interests of those with mental health-related disabilities. Headquartered in Winnipeg, it presently has 17 national or provincial member organizations whose members, together, number in the several hundred thousand. Its mandate is to promote the equality, autonomy and rights of persons living with all types of disabilities, which it does by undertaking work related to law reform, policy development and rights advancement, including litigation.
[14] A self-described “national human rights organization of people with disabilities working for an inclusive and accessible Canada”, the CCD acts as a consultant to the federal government on issues relating to the rights of persons with disabilities. It was a participant in the Canadian delegation responsible for negotiating the language of the UN Convention on the Rights of Persons with Disabilities and the plaintiff in Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, which concerned transportation accessibility for persons with disabilities. It was also an intervenor in 34 court cases dealing with the rights of persons with disabilities. Several of those cases involved ss. 7 and 15(1) of the Charter and some involved medical treatment of persons with disabilities or discrimination against employees with mental health-related and addiction disabilities.
[15] On September 12, 2016, Mary Louise MacLaren, D.C. and the CCD filed the original notice of civil claim as co-plaintiffs. Ms. MacLaren and D.C. are persons with mental disabilities who have experienced psychiatric treatment as involuntary patients under the impugned provisions. The three plaintiffs alleged that the impugned provisions deprive all involuntary patients of the right to consent to psychiatric treatment regardless of their actual capability to do so and preclude substitute decision makers from making treatment decisions as their representatives, thus infringing s. 7 of the Charter (the right to life, liberty and security of the person) and s. 15 of the Charter (the right to equal treatment by and under the law). As relief, they sought a declaration under s. 52 of the Constitution Act, 1982 that the impugned provisions unjustifiably infringe ss. 7 and 15 and are, to that extent, of no force or effect.
[16] The notice of civil claim provided an overview of the plaintiffs’ claim in the first paragraph:
This claim challenges the constitutionality of British Columbia’s mental health legislation, which deprives all involuntary patients – including patients living in the community and those actually detained – of the right to give, refuse, or revoke consent to psychiatric treatment, regardless of those patients’ actual capability to do so. British Columbia’s legislation allows capable adults to be forcibly administered psychiatric treatment, including psychotropic medication or electroconvulsive therapy, against their will. The legislation further deprives those adults of the right to have psychiatric treatment decisions made by a substitute decision marker, such as a representative, friend or family member. Involuntary patients are deprived of the health care consent rights and protections enjoyed by others in society. Most fundamentally, they are deprived of the right to control what is done to their own bodies.
[17] In the paragraphs that followed, the notice of civil claim described the plaintiffs, defined certain terms and summarized health care consent rights in British Columbia. An “Involuntary Patient” was defined as “a patient who is detained in a designated facility under ss. 22, 28, 29, 30 or 42 of the Mental Health Act, or who is released on leave or is transferred to an approved home under ss. 37 or 38 of the Mental Health Act”. “Forced Psychiatric Treatment” was defined as “psychiatric treatment, or any procedure necessarily related to the provision of psychiatric treatment, that is administered to an Involuntary Patient and deemed to be given with the consent of the Involuntary Patient pursuant to subsection 31(1) of the Mental Health Act.”
[18] The notice of civil claim also outlined the impugned legislative provisions, including a pleading that “[t]here is no statutory requirement to assess whether an Involuntary Patient is capable of giving, refusing, or revoking consent to psychiatric treatment before administering Forced Psychiatric Treatment”. Then it set out detailed factual allegations regarding the nature, administration and impacts of Forced Psychiatric Treatment that Ms. MacLaren and D.C. experienced personally as involuntary patients. These included allegations that electroconvulsive therapy, psychotropic medications or both were forcibly administered to Ms. MacLaren and D.C. when they were involuntary patients but capable or had a substitute decision maker available and that the treatments were risky, carried side effects and caused them harm.
[19] As the legal basis of their claim, the plaintiffs pleaded s. 52 of the Constitution Act, 1982 and ss. 1, 7 and 15 of the Charter. With respect to s. 7, they pleaded that the impugned provisions deprive the individual co-plaintiffs and other involuntary patients of security of the person insofar as they remove their rights to decide on what is done to their bodies, permit non-consensual touching and cause harm without any assessment of their capability to make treatment decisions. They also pleaded that these deprivations “result from the existence and operation of the Impugned Provisions” and do not accord with principles of fundamental justice, “including the principles that laws shall not be arbitrary, overbroad, or have grossly disproportionate effects”. With respect to s. 15, they pleaded that the impugned provisions deprive all involuntary patients of the benefit of the presumption of capability, the right to a capability assessment, the right to give, refuse or revoke consent to treatment when capable or, when incapable, to do so through a substitute decision maker and that they create a discriminatory distinction based on mental disability.
[20] In his response to civil claim the Attorney General denied most of the plaintiffs’ factual allegations or alleged that they were outside his knowledge. He pleaded that the Mental Health Act and Mental Health Regulation provide a comprehensive scheme for the detention and treatment of involuntary patients which includes a requirement in Form 5 that a physician assess an involuntary patient’s capability to provide consent to treatment. He also pleaded additional facts regarding the nature and benefits of psychiatric treatment for patients with serious mental disorders and denied that the impugned provisions unjustifiably infringe ss. 7 and 15 the Charter. In their reply, the plaintiffs denied that the legislative scheme requires an assessment of an involuntary patient’s capability and pleaded that Forced Psychiatric Treatment is administered to involuntary patients without a completed Form 5.
[21] After pleadings closed, the parties discussed document production. The Attorney General requested production of the individual co-plaintiffs’ medical records, but they were not produced. On October 25, 2017, Ms. MacLaren and D.C. filed notices of discontinuance, leaving the CCD as the only remaining plaintiff. Shortly thereafter, the CCD filed an amended notice of civil claim, the Attorney General filed an amended response and the CCD filed an amended reply.
[22] In its amended notice of civil claim, the CCD retained the first paragraph of the original notice of civil claim reproduced above, together with the defined terms, the summary of health care consent rights and the outline of impugned provisions. However, it deleted the factual allegations regarding the nature, administration and impacts of Forced Psychiatric Treatment experienced by Ms. MacLaren and D.C. personally and replaced them with substantively similar allegations regarding the nature, administration and impacts of Forced Psychiatric Treatment, plus psychosurgery, experienced by involuntary patients generally by operation of the impugned provisions. It also added allegations regarding public interest standing and framed the claim as a comprehensive and systemic challenge to three inter-related statutes that would not all necessarily be engaged by an individual challenge and characterized the constitutional validity of the impugned provisions as an issue relevant to all residents of British Columbia. The declaratory relief sought and the legal basis for the amended claim remained substantively the same as in the original notice of civil claim.
[23] The Attorney General’s amended response to civil claim remained substantively unchanged with respect to the constitutional challenge except that he added a response to the new factual allegation regarding psychosurgery. He denied that the CCD had public interest standing, alleged that a directly affected individual plaintiff was required because the Charter claims were fact-specific and pleaded that the constitutional validity of the impugned provisions could not be litigated in the abstract. The CCD’s amended reply remained substantively unchanged.
[24] The parties agreed that four weeks would be required for the trial of the action. Document production commenced, although at the point that the Attorney General filed a summary trial application the CCD had only listed documents related to its status and composition, the Attorney General had not sought further particulars of the amended notice of civil claim and a case management plan had not been agreed upon.
[25] Five months after the amended pleadings closed, the Attorney General brought a summary trial application seeking a determination on the issue of the CCD’s public interest standing and a related dismissal of the claim.
[26] The summary trial application came on for hearing before the Chief Justice. Both parties relied on the amended pleadings and correspondence of counsel. The CCD also relied on the affidavit of Melanie Benard, the Chair of the Mental Health Committee of the CCD.
[27] In her affidavit, Ms. Benard deposed that she previously worked as a lawyer in Quebec specializing in mental health law, clerked at Montreal’s specialized mental health court where she dealt with parties experiencing mental health-related disabilities and conducted related research. Through this work, she deposed, she had “direct experience with people who are experiencing or have experienced mental health related-disabilities, the societal and legal barriers they face, and their involuntary hospitalization and treatment”. She described the CCD, its mandate and its member organizations, which include organizations that focus on persons with mental health-related disabilities, autonomy in decision making and the equality of people in British Columbia with all types of disabilities. She also described the CCD’s position that the impugned provisions result in discrimination against people with mental disabilities and outlined its litigation history regarding the rights of people with disabilities.
[28] Under the heading “Mental Health-Related Disabilities are Disabilities,” Ms. Benard summarized what she called common misconceptions and stereotypes regarding mental health-related disabilities. She deposed “[t]his type of stereotyping of and discrimination against people with mental disabilities specifically is at the core of this challenge to the Impugned Provisions” which are “a constructed barrier that precludes people with a specific type of disability – mental disability – from participating in meaningful treatment and recovery decisions … in a way that is not necessarily experienced by people with other types of disabilities or by people without disabilities”. She deposed further that the CCD “has a unique perspective relevant to the litigation about how the Impugned Provisions result in discrimination between people with different types of disabilities, specifically physical versus mental disabilities”.
[29] Under the heading “Lack of Realistic and Effective Ways to Bring This Claim”, Ms. Benard expressed the belief that, while it may be theoretically possible for individual plaintiffs with mental disabilities to bring a complex constitutional challenge, it is not realistic to expect them to do so. After asserting that the CCD’s experience in this case supported this belief, she described Charter litigation as complex, often protracted, stressful and demanding. Then she said this:
… These demands are even more challenging for individuals with mental disabilities, since they may experience mental conditions that can improve and deteriorate over time; cycles of periods of wellness and stability followed by periods of deteriorating mental health; intermittent periods of in-patient treatment; side-effects of psychiatric treatment; lack of control over their personal and financial affairs; poverty; concerns about potential negative reactions of health care providers or personal support networks; and fear of public exposure and the stigma associated with mental disabilities and specifically with mental health-related disabilities.
[30] Ms. Benard went on to depose that, despite the anticipated challenges, the CCD originally attempted to bring the claim in connection with the individual co-plaintiffs, D.C. and Ms. MacLaren. However, it became clear by the second year of litigation that they were no longer willing or in a position to fulfil the roles and responsibilities of plaintiffs, so they discontinued their claims. She stated that if the court were to require further evidence of why affected individuals cannot realistically bring such a challenge, the CCD would need to lead much of the same evidence it intended to lead at trial. She also stated that at trial the CCD “intends to lead evidence from both fact and expert witnesses, including from people with direct experience of the impacts of the Impugned Provisions, such as individuals who have experienced forced psychiatric treatment and the exclusion of family members from supported and substitute decision making.”
[31] The Chief Justice began his reasons by describing the legislative scheme, the CCD and its claim that the impugned provisions are unconstitutional. He set out the impugned provisions and summarised the process followed under the Mental Health Act when an involuntary patient is admitted, detained and treated in a designated facility. In doing so, he noted that a Form 5 may or may not be signed by the patient and must be signed a physician. Then he noted the attestations to be made by a physician under both options “A” and “B” of the form, as described in para. 11 above.
[32] Next, the Chief Justice reviewed the governing legal principles and leading authorities on public interest standing. Quoting from Downtown Eastside and Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, he listed the three Borowski factors, noted that they are to be weighed cumulatively in the exercise of judicial discretion and stated that none are treated as a hard and fast requirement. The legal framework thus outlined, he considered each factor in turn.
[33] The Chief Justice summarized the Attorney General’s position that the amended claim offered no particulars of any alleged individual breach of any Charter rights and that the CCD’s systemic challenge invited the court into a debate on legislative policy. Then he quoted from both decisions in Canadian Bar Association v. HMTQ et al, 2006 BCSC 1342 [Canadian Bar Association, BCSC], aff’d 2008 BCCA 92 [Canadian Bar Association, BCCA], leave to appeal dismissed [2008] 2 S.C.C.A. No. 185, upon which the Attorney General relied. In Canadian Bar Association, BCSC, Chief Justice Brenner denied the Canadian Bar Association (“CBA”) public interest standing to bring an action seeking declarations that, in breach of their Charter, constitutional and international obligations, the federal and provincial governments were providing inadequate civil legal aid services to “poor people” who lacked sufficient means to obtain proper legal representation in matters involving their fundamental interests and that they were obliged to provide a constitutionally valid scheme of civil legal aid. He also found that the CBA’s statement of claim failed to disclose a reasonable cause of action and dismissed its claim.
[34] The Chief Justice commenced his consideration of the serious justiciable issue factor by noting that in Canadian Bar Association, BCSC Chief Justice Brenner found the CBA had not established a serious justiciable issue (at para. 34). He went on to quote from that decision, where Chief Justice Brenner stated that the CBA was asking the court to decide an abstract question that would “sanction a private reference”, that it had no standing to advance a s. 24(1) claim “on behalf of an amorphous group of individuals whose Charter rights may have been, or in the future may be, breached” and that it was “advancing a claim, including a Charter claim, on behalf of third parties with whom it stands at arm’s length” (at paras. 54–56, Canadian Bar Association, BCSC). He also quoted Chief Justice Brenner’s conclusion that the CBA had “failed to establish that there is a serious issue as to the invalidity of legislation or as to the invalidity of particular public acts” (at para. 86, Canadian Bar Association, BCSC).
[35] Next, the Chief Justice stated that this Court “upheld the finding of a lack of standing determined by Brenner C.J.S.C.” (at para. 35). He quoted from Canadian Bar Association, BCCA, where Justice Saunders found the CBA’s “broadly-directed pleadings of a systemic problem violating unwritten constitutional principles do not raise a reasonable claim” and concluded the s. 7 Charter challenge also failed to raise a reasonable claim. In reaching this conclusion, she cited British Columbia (Attorney General) v. Christie, 2007 SCC 21 and stated “a s. 7 Charter challenge in respect to legal services must be brought in the context of specific facts of an individual’s case because not every legal proceeding affecting a person’s rights requires counsel” (at paras. 47–50, Canadian Bar Association, BCCA).
[36] The Chief Justice also quoted Justice Saunders’ conclusion to the same effect on the CBA’s s. 15 Charter challenge. In particular, he noted, at para. 51 of Canadian Bar Association, BCCA, Justice Saunders said this:
51 I have come to the same conclusion on the other allegations of breach of the Charter. In particular, a s. 15 enquiry requires the court to not only review the particular deficiency alleged, but to do so in the context of a comparator group that is chosen bearing in mind the characteristics of the individual. Although the Association contends that it is for the trial judge to determine whether there is a Charter breach justifying the relief sought, the plaintiff is still required to plead material facts that warrant the court’s enquiry into the matter. This means there must be a pleading that, if all facts are taken as true, can lead to the relief sought. Such is not the case here.
[37] After setting out these quotations, the Chief Justice drew on his interpretation of their underlying reasoning:
[36] The CCD contends that, unlike the CBA in Canadian Bar Association who purported to sue on behalf of those it defined as “poor people” but did not attack the constitutionality of any statute or regulation, the CCD is more measured and specific in its claim. The CCD further asserts that while the impugned provisions of the Three Acts may reflect a choice between competing policy alternatives that does not render the constitutionality of that choice non-justiciable.
[37] While I do not disagree with the latter assertion, it does not address the fundamental difficulty with the CCD’s role in this litigation: the lack of a particular factual context of an individual’s case. This issue was fatal to the claim for standing in Canadian Bar Association, as discussed therein at paras. 49 and 51 by Saunders J.A., set out above.
[38] In this case, the CCD’s amended notice of civil claim lacks the indispensable factual foundation that particularizes the claim and permits the enquiry and relief sought.
[39] Difficulties would also arise in addressing the plaintiff’s asserted s. 15 claim. An inquiry under s. 15 “requires the court to not only review the particular deficiency alleged, but do so in the context of a comparator group that is chosen bearing in mind the characteristics of the individual”: BCCA Canadian Bar Association at para. 51. To be granted public interest standing, the plaintiff is required to plead the material facts that, if true, can lead to the relief sought: BCCA Canadian Bar Association at para. 51. The CCD has failed to do so in this case.
[38] Based on the foregoing, the Chief Justice was not persuaded that the CCD met the first Borowski factor (at para. 40).
[39] Turning to the second Borowski factor, the Chief Justice acknowledged that a Charter right may have a collective aspect and individuals may require a legal entity to give effect to their rights. He commented on the CCD’s litigation history, characterized its focus as “physical disability” and contrasted its position with that of the British Columbia Civil Liberties Association (“BCCLA”) in several cases in which the BCCLA was granted public interest standing. He reviewed those cases, most notably Carter v. Canada (Attorney General), 2012 BCSC 886, but found they were distinguishable and did not assist the CCD.
[40] The Chief Justice stated that the CCD was “no mere busybody” and that it had “some genuine interest” in the issues raised by the constitutional challenge. However, he found, its interest only “weakly” met the second Borowski factor (at para. 53).
[41] Finally, the Chief Justice considered the third Borowski factor. He began by noting that the CCD bore the burden of establishing public interest standing and asking whether there was another reasonable and effective way to bring the issue before the court (at para. 55).
[42] After framing the question thus, the Chief Justice summarised the Attorney General’s position that there was an insufficient factual and adversarial context for resolution of the Charter claim, no evidence that it would be unduly difficult for a directly-affected individual to bring such a claim and no assurance that the CCD acts in a representative capacity (at para. 57). He also summarized the CCD’s response that it would present a robust factual record at trial by calling directly-affected individuals and expert witnesses to present evidence on the nature of mental health-related disabilities, the barriers faced by people with mental disabilities, their lived experiences with Forced Psychiatric Treatment and the impacts of the impugned provisions, as well as its position that any lack of pleaded specificity could be cured by resort to the Supreme Court Civil Rules (at paras. 58–60).
[43] However, he stated, the CCD’s position “misconstrues the onus that [it] faces on the application” and “does not address the underlying purposes of limiting standing” (at paras. 60–61). He went on to reject its position, stating “[i]t is not open to the CCD to attempt to shift the onus onto the Attorney where he has clearly raised the adequacy of CCD’s pleadings as a basis for the relief he seeks” (at para. 62). He concluded that the CCD had failed to discharge its onus.
[44] In reaching this conclusion, the Chief Justice declined to follow the result in Thompson v. Attorney General of Ontario, 2011 ONSC 2023 and Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59. In Thompson, Justice Brown permitted an institutional litigant to carry forward a constitutional challenge of mental health legislation it originally commenced with an individual despite the fact that she had permanently left the country. In Trial Lawyers Association, the Supreme Court of Canada granted the CBA and the Trial Lawyers Association of British Columbia (“TLABC”) standing to appeal this Court’s decision on the constitutionality of hearing fees when the individual litigant involved did not do so because she was personally relieved of the need to pay fees. However, the Chief Justice found that the factual matrix necessary for consideration of the constitutional challenges in Thompson and Trial Lawyers Association had been established by unavailable personal litigants, but that in this case it had not.
[45] In further explaining his conclusion, the Chief Justice cited Lamb v. Canada (Attorney General), 2018 BCCA 266 and emphasized the importance of deciding constitutional cases on a full evidentiary record. Ultimately, he was not satisfied there would be “a sufficiently concrete and well-developed factual setting” upon which the constitutional question could be decided and he held “[t]here is an insufficient factual matrix” to consider the claim (at paras. 68–69). Nor was he satisfied that the CCD could fairly represent the interests of all who may be affected by the impugned provisions, despite its access to adequate resources to advance the claim. He formed this view based on the nature of its advocacy and litigation experience and the lack of general agreement in support of its position among those more directly affected by the impugned provisions.
[46] The Chief Justice also stated that Ms. Benard did not explain why D.C. and Ms. MacLaren were no longer willing or able to fulfil the role of plaintiff or why she asserted that it was unrealistic to expect directly-affected individual plaintiffs with mental disabilities to bring and see through a complex constitutional challenge such as this one (at paras. 79–81). He quoted extensively from Ms. Benard’s affidavit, but found that her assertion was “general” and lacked evidentiary support. He went on to discuss cases in which individuals had, in fact, challenged the constitutional validity of mental health legislation and referred to the CCD’s pleading that there are approximately 20,000 involuntary admissions each year under the Mental Health Act. Then he rejected the notion that none of those patients would be willing or able to participate in the constitutional challenge if funded and supported by the CCD.
[47] Based on all of these considerations, the Chief Justice was not persuaded that the CCD met the third Borowski factor.
[48] The Chief Justice expressed his conclusion on whether to grant or refuse public interest standing to the CCD like this:
[98] Having cumulatively weighed the three Borowski factors I find that, as with the CBA, the CCD should be denied standing to assert the claim it has pleaded on behalf of the amorphous group of individuals whose Charter rights may have been, or in the future may be, breached by the operation of the impugned provisions in the Three Acts.
[99] I will therefore decline to exercise my discretion to afford the CCD public interest standing to bring this action, and dismiss its claim.
[49] On appeal, the CCD contends that the Chief Justice erred by misapprehending the factors that govern public interest standing, considering legally irrelevant criteria and denying it standing for failing to meet those criteria. Although he recited the correct legal approach for determining standing, it says he failed to apply that approach, which is an extricable legal error. According to the CCD, he made these errors in respect of each of the three Borowski factors.
[50] First, the CCD submits, the Chief Justice erred in concluding that its claim did not raise a serious justiciable issue because it did not turn on the factual context of a particular individual’s circumstances, presumably those of a necessary co-plaintiff. However, in its submission constitutional litigation need not turn on the personal circumstances of one individual and there is no good reason to privilege a case that pleads material facts in relation to an individual co-plaintiff over a case such as this that pleads substantially the same material facts in relation to a group of affected individuals. He also erred, it says, by ignoring Ms. Benard’s unchallenged evidence that it would call directly affected individuals as trial witnesses, by failing to allow it to amend its pleadings, if necessary, and by faulting it for not pleading material facts about a comparator group when such a group is not required for a s. 15 Charter analysis. He erred further, it says, by prejudging significant disputed issues and failing to consider the central issue, namely, whether there was a substantial constitutional question for determination that was “far from frivolous”.
[51] Second, the CCD submits, the Chief Justice arbitrarily diminished the extent of its interest in the constitutionality of the impugned provisions. It says he erroneously required that its focus be predominantly on mental illness when organizations with a broad range of interests are commonly granted standing if their interest in the issue raised is genuine. He also incorrectly assumed that the claim concerns only those with mental illness and discounted the CCD’s important experience with a range of disabilities. Further, it says, by distinguishing between mental illness and other forms of disability he implicitly accepted the Attorney General’s position that such a distinction is valid, which is a hotly contested key merits point.
[52] Third, the CCD submits, the Chief Justice imposed improper and unattainable standards in finding that the claim was not a reasonable and effective means of advancing its comprehensive constitutional challenge. For example, he faulted it for not proving those affected by the impugned provisions share a unanimous viewpoint when unanimity is not required, for not disclosing why D.C. and Ms. MacLaren did not remain plaintiffs when that is their personal information and for not proving that other affected individuals would not bring a similar challenge when proving such a negative is impossible. Further, it says, he erroneously asked whether its claim was the only reasonable and effective means of litigating the challenge rather than asking whether it was a reasonable and effective means of doing so and he unjustifiably doubted its ability to conduct the litigation because its sole experience as a plaintiff was prosecuting one prior case.
[53] According to the CCD, the fair and expedient means of correcting these errors is for this Court to set aside the dismissal order and determine the public interest standing issue based on the appeal record, which is sufficient for this purpose. Based on that record, it submits it is obvious that its claim raises a serious question concerning the constitutionality of the impugned provisions, that it has a strong and genuine interest in the issues raised and that the claim is a reasonable and effective means of bringing the constitutional challenge before the court. According to the CCD, it follows that we should grant it public interest standing to advance the claim.
[54] Alternatively, the CCD submits, the Chief Justice erred by failing to consider its alternative position, namely, that, if the evidence presented was insufficient to establish its public interest standing, the standing issue was not suitable for summary determination in isolation from other issues because it was inextricably interwoven with the evidence and issues for consideration at trial. In other words, it says, if more evidence was required to make out its standing, that evidence would substantially overlap with the intended trial evidence and, therefore, the question of standing could not be determined summarily, which argument he entirely overlooked.
[55] The Attorney General responds that the Chief Justice’s discretionary decision to deny the CCD public interest standing is unassailable. In his submission, the Chief Justice applied well-settled law to the facts of the case and like Chief Justice Brenner’s decision in Canadian Bar Association, BCSC has discretionary decision to deny an organization standing to litigate the rights of unrelated third parties in the abstract without an individual plaintiff or adjudicative facts is entitled to appellate deference. According to the Attorney General, had the Chief Justice granted the CCD standing, he would have pushed public interest litigation into uncharted territory.
[56] In support of his position, the Attorney General says the Chief Justice recognized that an institutional litigant such as the CCD cannot bootstrap itself into having public interest standing in the absence of a concrete factual context based solely on the interests of an amorphous group of unidentified involuntary patients. He also recognized that the claim amounted to an invitation to enter into a legislative policy debate, which invitation he wisely declined. He submits that the Chief Justice correctly concluded the proposed ss. 7 and 15 Charter analyses would lack necessary focus and perspective without a proper factual matrix involving an individual rights claimant. In reaching this conclusion, he says, he did not ignore Ms. Benard’s evidence or prejudge disputed questions. Rather, he recognized the weaknesses in her evidence and rejected it and simply quoted from the Health Care Regulation and Form 5, all of which he was entitled to do.
[57] Nor, he submits, did the Chief Justice misunderstand the issues or the nature of the CCD, erroneously ask whether its claim was the only reasonable and effective means of advancing the challenge or impose a unanimity requirement. On the contrary, he says, the Chief Justice accepted that mental health-related disabilities are a sub-set of disability and that the CCD’s interest in the constitutional issue raised is genuine, but unspecialized. He also considered other possible ways in which the challenge might be brought, previously decided cases and the risk of conflict between private and public interests, which was relevant to the third Borowski factor. Further, he recognized that the CCD’s allegations were grounded in hypotheticals that it could not test, which distinguished the claim from those in Downtown Eastside, Carter and B.C./Yukon Association of Drug War Survivors v. Abbotsford (City), 2014 BCSC 1817, aff’d 2015 BCCA 142. He says this, in turn, meant that there was an insufficient factual dimension and adversarial context for resolution of the claim.
[58] Finally, the Attorney General submits, the Chief Justice did not err in determining the standing issue on a summary trial or fail to consider whether it was unsuitable for such determination. Rather, he exercised his discretion to decide the issue at a preliminary stage and found the CCD had failed to establish that standing should be granted, which was its onus to meet. In doing so, he says the Chief Justice conserved judicial resources and implicitly rejected the CCD’s alternative argument that the issue was unsuitable for summary determination. He also says the CCD could have tendered affidavits from directly affected individuals expressing their willingness to testify at trial, explaining why such individuals were unwilling to act as plaintiff or describing its failed efforts to find an individual plaintiff, but it presented no such evidence. The Attorney General submits that, in choosing to respond to his summary trial application as it did, the CCD took the risk that the application would be decided on the record as it stood.
[59] Three intervenors participated in the appeal: BCCLA, West Coast Legal Education and Action Fund (“WCLEAF”) and Ecojustice Canada Society (“Ecojustice”). Each provided helpful submissions on the development and purposes of public interest standing law and the importance of applying the standing test in a flexible, generous and purposive way. BCCLA focused on the role and nature of facts in wholly public interest standing litigation and submitted that evidence of the impact of impugned legislative provisions can be placed before the court through affected or otherwise knowledgeable non-plaintiff witnesses. WCLEAF focused on intersecting forms of disadvantage experienced by some groups and the role that systemic constitutional challenges can play in enhancing their access to justice to vindicate their Charter rights and freedoms. Ecojustice focused on how the principle of legality informs the public interest standing test and the relationship between the legality principle and access to justice.
[60] As I have noted, the question of whether to grant or refuse public interest standing is resolved through the exercise of judicial discretion: Downtown Eastside, at para. 35. The same is true of the question of whether to determine an action or issue summarily under Rule 9-7(15) of the Supreme Court Civil Rules: Gichuru v. Pallai, 2013 BCCA 60 at para. 34. Discretionary decisions such as these are entitled to appellate deference and this Court will not interfere merely because it would have exercised the discretion differently: Strickland v. Canada (Attorney General), 2015 SCC 37 at para. 39. To establish a reversible error in the exercise of judicial discretion an appellant must show the lower court erred in principle, ignored or misapplied a relevant factor or came to a decision that is so clearly wrong that it amounts to an injustice: Lamb, at paras. 46–47.
[61] Rule 9-7 of the Supreme Court Civil Rules governs the procedure on a summary trial application. Pursuant to Rule 9-7(2), a party may apply to court for judgment in an action, either on an issue or generally. Pursuant to Rule 9-7(5), evidence in support or response to a summary trial application may be tendered through affidavits or in other specified forms, such as expert reports or admissions. The underlying purpose of the Rule is to reduce the expense and time required to achieve a final resolution where doing so summarily is both possible and just: Inspiration Mgmt. Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 at 214 (C.A.).
[62] The decision as to the suitability of proceeding by summary trial is subject to a broad judicial discretion. Although a summary trial is heard primarily on affidavits and may involve disputed issues of fact and law, the judge may render judgment unless the facts necessary to decide the issues cannot be found or it would be unjust to decide them in this way. Rule 9-7(15) provides:
(15) On the hearing of a summary trial application, the court may
(a) grant judgment in favour of any party, either on an issue or generally, unless
(i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or
(ii) the court is of the opinion that it would be unjust to decide the issues on the application,
(b) impose terms respecting enforcement of the judgment, including a stay of execution, and
(c) award costs.
[63] The onus of proof that ordinarily applies does not shift regardless of which party moves for judgment on a summary trial application. As in any trial, the party asserting the affirmative of an issue must prove it on a balance of probabilities. For example, where the defendant brings a summary trial application seeking a dismissal of a claim, the plaintiff retains the onus of establishing the claim on a balance of probabilities. Where, as here, the issue is public interest standing, the plaintiff seeking standing bears the onus of establishing that it should be granted by the court: Gichuru at para. 35; Downtown Eastside at para. 37.
[64] To the extent reasonably possible, the parties must come to a summary trial prepared to meet their onus. As Justice D. Smith explained in Gichuru, a party cannot frustrate the benefits of the process by failing to take every reasonable step to put themselves in the best position possible to address the issues raised. Accordingly, a party who opposes a summary trial on the basis that those issues are unsuitable for determination on the available evidence runs a risk that the court may disagree and give judgment against them. As Chief Justice McEachern put it in Inspiration Mgmt., there is no room for a “respondent’s veto” of a summary trial: at 214.
[65] In Bell v. Levy, 2011 BCCA 417, Justice D. Smith summarized the factors a judge should consider when assessing whether an issue is suitable for determination utilizing the summary trial process:
[64] Factors to be considered in deciding whether an action can be properly determined by summary trial were identified in Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.). They include: the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, and the course of the proceedings (para. 48). Additional factors may include the time required to hear the summary trial, whether the credibility of one or more of the parties is a significant issue, if the summary trial application adds a layer of unnecessary complexity, and if the application results in litigation of the action in slices: Dahl v. Royal Bank of Canada, 2005 BCSC 1263, 46 B.C.L.R. (4th) 342 at para. 12, aff’d 2006 BCCA 369, 272 D.L.R. (4th) 344. ”Head on” conflicts in the evidence that go to the core issue in the action will generally provide an impediment to disposition of an action by way of summary trial, especially where findings of credibility are a central issue in the dispute. See Jutt v. Doehring (1993), 82 B.C.L.R. (2d) 223; Canadian Energy Services Ltd. v. Gotaverken Energy Systems Ltd., [1990] B.C.J. No. 1976 (C.A.).
[66] Whether the necessary facts can be found and whether it would be unjust to decide the issues on summary trial are separate, but related, questions. If the necessary facts cannot be found it would not be just for the court to determine a matter on a summary trial. However, in some circumstances, even if such facts can be found on the whole of the evidence presented, it may not be just for the court to determine a matter summarily: Foreman v. Foster, 2001 BCCA 26 at para. 19. For example, a judge may conclude that a summary trial would not improve the overall efficiency of the trial process. The judge’s discretion is broad and the summary trial process is only appropriate where justice can be done between the parties bearing in mind the requirements of Rule 9-7.
[67] Traditionally, standing to assert a purely public interest or right by bringing an action for declaratory or injunctive relief vested solely in the Attorney General. In deciding whether to bring such an action, the Attorney General acted as the guardian of public rights: Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, at pp. 617–618. Private individuals, on the other hand, were strictly limited to bringing forward matters in which they had a direct interest. Accordingly, an individual litigant had no standing to challenge the constitutionality of legislation unless that individual was placed in jeopardy by its provisions or exceptionally prejudiced by its effects: Mercer v. Attorney General of Canada (1972), 24 D.L.R. (3d) 758 (Alta. S.C.).
[68] However, with increasing government regulation and the advent of the Charter the concept of public rights grew, as did the rights and freedoms of individuals. This was unsurprising. As Chief Justice Dickson emphasized in Hunter et. al. v. Southam Inc., [1984] 2 S.C.R. 145, the judiciary is the guardian of the constitution, which, joined by the Charter, must be able to grow and develop over time “to meet new social, political and historical realities”: at p. 155. In responding to these developments, the courts moved beyond a purely private law conception of their role in our constitutional democracy and gradually modified some of the traditionally strict limitations on standing: Canadian Council of Churches at 250–251; Downtown Eastside at para. 22.
[69] The modification process began in a trio of pre-Charter decisions in the 1970s and 80s. In those decisions, the Supreme Court of Canada introduced public interest standing into the law to permit public-spirited litigants to challenge the constitutional validity of legislation in exceptional cases where a directly affected individual could not reasonably be expected to do so: Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; Borowski. In Finlay, the Court extended the availability of public interest standing to cases involving challenges to the exercise of administrative authority.
[70] Since public interest standing was introduced, public-spirited individuals and organizations have sought standing to pursue a wide range of claims challenging the legality of legislation and state action. Judges have granted them standing in some such cases, but remain rightly concerned with the need to maintain limitations to ensure that the courts are not overburdened with marginal or redundant claims, that so-called “busybody litigants” are screened out, that the contending views of those most directly affected by an issue are presented and that the courts stay within their proper constitutional role: Downtown Eastside at paras. 1, 25. These traditional concerns underlie the three Borowski factors. To repeat, the three Borowski factors are: i) whether there is a serious justiciable issue raised by the claim; ii) whether the plaintiff is directly affected by the action or, if not, has a genuine interest in its outcome; and iii) whether the action is a reasonable and effective means to bring the claim to court.
[71] In Downtown Eastside, Justice Cromwell re-examined each traditional concern, its rationale and its implications for a proper assessment of the Borowski factors. In doing so, he refined and relaxed the test for public interest standing, which he held should be applied flexibly and generously in a manner that best serves its underlying purposes. Then he applied a flexible and purposive approach to the circumstances of the case, which involved a broad constitutional challenge to the prostitution provisions of the Criminal Code brought by a society dedicated to improving working conditions for female sex workers. In granting public interest standing to the society, he highlighted the importance of courts upholding the legality principle, the practical realities of providing access to justice for vulnerable and marginalized citizens broadly affected by legislation of questionable constitutional validity and the close connection between these key goals of standing law.
[72] The principle of legality was central to the development of public interest standing. It is derived from the rule of law, which is a cornerstone of Canadian constitutional democracy. The rule of law guarantees the rights of all citizens to protection from arbitrary and unconstitutional government action and obliges governments to act within the bounds of the Constitution and in accordance with the rights and freedoms enshrined in the Charter. When serious justiciable questions arise as to whether government has met these obligations, the final arbiters are the courts: Canadian Council of Churches at 250-251; Downtown Eastside at paras. 31–34; Constitution Act, 1982, s. 52.
[73] The legality principle encapsulates both ideas: that state action must conform to the Constitution and statutory authority and that there must be a practical and effective means to challenge the legality of state action in the courts. This principle lies at the heart of standing law. As Justice Cory observed in Canadian Council of Churches, the main purpose of granting public interest standing is to prevent public acts or legislation from being immunized from challenge and to enable courts to scrutinize the legality of government action and strike down unconstitutional laws. Over time, public interest litigation has become a valuable tool for bringing important justiciable issues of public interest before the courts where it is a reasonable and effective means of doing so. This, in turn, has led to a broadening of access to the courts: Canadian Council of Churches at 248-251; Downtown Eastside at paras. 22, 31–34, 50.
[74] Like the legality principle, access to justice is a core constitutional principle rooted in the rule of law and critical to its maintenance. In Trial Lawyers Association, Chief Justice McLachlin discussed the connection between access to justice, on the one hand, and, on the other, the rule of law:
[38] …This Court affirmed that access to the courts is essential to the rule of law in B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214. As Dickson C.J. put it, “[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” (p. 230). The Court adopted, at p. 230, the B.C. Court of Appeal’s statement of the law ((1985), 20 D.L.R. (4th) 399, at p. 406):
… access to the courts is under the rule of law one of the foundational pillars protecting the rights and freedoms of our citizens. … Any action that interferes with such access by any person or groups of persons will rally the court’s powers to ensure the citizen of his or her day in court. Here, the action causing interference happens to be picketing. As we have already indicated, interference from whatever source falls into the same category. [Emphasis added by McLachlin C.J.C.]
As stated more recently in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, per Karakatsanis J., “without an accessible public forum for the adjudication of disputes, the rule of law is threatened and the development of the common law undermined” (para. 26)
…
[40] In the context of legislation which effectively denies people the right to take their cases to court, concerns about the maintenance of the rule of law are not abstract or theoretical. If people cannot challenge government actions in court, individuals cannot hold the state to account – the government will be, or be seen to be, above the law. If people cannot bring legitimate issues to court, the creation and maintenance of positive laws will be hampered, as laws will not be given effect. And the balance between the state’s power to make and enforce laws and the courts’ responsibility to rule on citizen challenges to them may be skewed: Christie v. British Columbia (Attorney General), 2005 BCCA 631, 262 D.L.R. (4th) 51, at paras. 68-69, per Newbury J.A.
[75] The issue for determination in Trial Lawyers Association was whether hearing fees that denied people of modest financial means access to the superior courts were unconstitutional. The majority of the Court concluded that at the point those fees effectively prevented would-be litigants from accessing the courts by causing them undue financial hardship they infringed the constitutionally protected right of citizens to bring their cases to court: at paras. 45–46. It went on to declare the hearing fee scheme as it stood unconstitutional, thus upholding the legality principle and enhancing access to justice for all such individuals. As the Chief Justice noted below, this was made possible because the Court granted the TLABC public interest standing to pursue the appeal when the private plaintiff originally involved in the case would not or could not.
[76] In some contexts, disadvantages other than or in addition to financial hardship also present barriers to certain individuals accessing the courts to an extent that meaningful access is effectively unavailable. For example, in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, Justice Binnie stated that the compromised material, physical and emotional resources of seriously ailing patients may well prevent them from pursuing a complex constitutional challenge to legislation that significantly impacted their interests: at para. 189. And in Fraser v. Canada (Attorney General), [2005] O.J. No. 5580 (S.C.), Justice Ducharme found that the harsh socio-economic realities and fear of reprisals experienced by foreign migrant agricultural workers kept them from participating in a s. 15 Charter challenge to employment insurance legislation that directly affected them and granted a union public interest standing to pursue the claim on their behalf: at paras. 111–119.
[77] More recently, in Downtown Eastside Justice Cromwell found that the harsh socio-economic realities of their lives effectively barred female sex workers from challenging the constitutionality of the prostitution provisions of the Criminal Code as individual plaintiffs. In doing so, he recognized and emphasized the many barriers to accessing the courts for this purpose faced by individual sex workers, including, for example, fears of losing privacy and limiting future employment opportunities. Similarly, in British Columbia/Yukon Association of Drug War Survivors, Chief Justice Hinkson recognized the stark personal and social disadvantages that beset homeless persons and compromised their ability to access the courts to challenge bylaws that directly affected them. And in British Columbia Civil Liberties Association v. Canada (Attorney General), 2019 BCCA 228, the Attorney General did not dispute the BCCLA’s standing to challenge the constitutionality of the Corrections and Conditional Release Act, S.C. 1992, c. 20 provisions that authorized administrative segregation of federal inmates, presumably at least in part because of the hardship such inmates would encounter in accessing the courts individually.
[78] In my view, these cases reflect a progressive attunement within our civil justice system to the significant barriers to accessing the courts to vindicate their Charter rights and freedoms faced by some citizens. They also reflect an increasing willingness on the part of the courts to facilitate access by granting standing to public interest organizations to pursue broad constitutional challenges in appropriate cases on their behalves. This, in turn, enables the courts to uphold the legality principle and develop the law in an incremental and orderly fashion “to meet new social, political and historical realities”, as contemplated by Chief Justice Dickson in Hunter v. Southam when the Charter first came into force.
[79] I agree with the CCD and the intervenors that the goals of upholding the legality principle and facilitating access to justice merit particular weight in the balancing exercise a judge must undertake when deciding whether to grant or refuse public interest standing. While other concerns must also be accounted for, these goals are the key components of the flexible and purposive approach mandated in Downtown Eastside.
[80] The other concerns traditionally thought to justify strict limitations on standing are the need to allocate scarce judicial resources appropriately, screen out “busybody litigants” and ensure that courts benefit from the contending viewpoints of those most directly affected by the determination of an issue. The first two relate to preserving the effective operation of the court system overall, ensuring that personal plaintiffs receive priority in the allocation of resources and preventing courts from becoming overburdened by marginal or redundant claims brought by well-meaning organizations “certain in the knowledge that their cause is all important”. The third relates to regulating the quality of claims brought before the courts: Canadian Council of Churches at 251–252; Downtown Eastside at para. 26–29.
[81] In Downtown Eastside, Justice Cromwell clarified the role of these traditional concerns in a modern standing analysis. While all remain valid, he said this about the first two:
[28] These concerns about a multiplicity of suits and litigation by “busybodies” have long been acknowledged. But it has also been recognized that they may be overstated. Few people, after all, bring cases to court in which they have no interest and which serve no proper purpose... Moreover, the blunt instrument of a denial of standing is not the only, or necessarily the most appropriate means of guarding against these dangers. Courts can screen claims for merit at an early stage, can intervene to prevent abuse and have the power to award costs, all of which may provide more appropriate means to address the dangers of a multiplicity of suits or litigation brought by mere busybodies: see, e.g., Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138, at p. 145.
[82] As to the benefits of contending viewpoints, Justice Cromwell explained that, in our adversarial system, “concrete adverseness” sharpens the debate and that a personal stake in the outcome of a claim helps ensure arguments are presented thoroughly and diligently: at para. 29. He went on to find that granting standing to a well-represented advocacy organization in that case “will not only serve to enhance the principle of legality with respect to serious issues of direct concern to some of the most marginalized members of society, but it will also promote the economical use of scarce judicial resources”: at para. 76.
[83] The prospect that granting standing to a public interest litigant may promote, not impede, the economical use of judicial resources overall has also been recognized in other recent cases. For example, in British Columbia/Yukon Association of Drug War Survivors, Chief Justice Hinkson granted standing to an advocacy organization for homeless people to pursue a comprehensive constitutional challenge of bylaw provisions in part because he found the challenge “may prevent a multiplicity of individual challenges”: at para. 59. Nevertheless, all other relevant considerations being equal, a plaintiff with private interest standing will usually be preferred over a public interest litigant seeking to advance a duplicative claim in a separate action: Downtown Eastside at para. 37.
[84] In my view, this was the point Justice L. Smith was making in Carter in the passage the Chief Justice quoted in his reasons (para. 49). In that passage, Justice L. Smith said this:
[98] Finally, and most importantly, the BCCLA is involved as a co-plaintiff, in support of plaintiffs who have private standing. The issue is very different than it would be if the BCCLA were attempting to bring a separate action; in that case, the existence of an action by Ms. Carter, Mr. Johnson and Ms. Taylor might provide a strong argument that the BCCLA lacked standing to advance its own separate claim.
[Emphasis added.]
[85] In other words, Justice Smith recognized that permitting a public interest organization to advance a separate duplicative action simultaneously with a private interest litigant may result in an inappropriate allocation of scarce judicial resources, all other relevant considerations being equal. However, this is not the relevant context for consideration when individual co-plaintiffs withdraw from a claim, as occurred in Thompson, Trial Lawyers Association and the action below.
[86] As I have explained, since Downtown Eastside was decided judges have been obliged to apply the Borowski test in a flexible and purposive manner. The three Borowski factors, which are interrelated, are not to be treated as hard and fast requirements, nor are they to be applied mechanically. Rather, they are to be weighed cumulatively, in light of the underlying purposes of standing and the circumstances of the case, and applied flexibly with a view to serving those purposes. In exercising their discretion to grant or refuse public interest standing, judges must balance access to justice with the preservation of judicial resources, with a particular view to upholding the legality principle. In doing so, they must interpret and apply the governing principles in a liberal and generous way: Downtown Eastside at paras. 20–23, 31–33; Canadian Council of Churches at 249–250, 252–253.
[87] The question of standing is sometimes addressed in advance of a full hearing on the merits. Whether a preliminary determination should be made will depend on the nature of the issues raised and the sufficiency of the material presented to the court. The salient question on an application for a preliminary determination on standing (including by way of summary trial) is whether the material “by way of allegations of fact, considerations of law and argument” is sufficient for “a proper understanding at a preliminary stage of the nature of the interest asserted” by a proposed public interest litigant: Finlay at 617. The focus of a standing inquiry is on whether the public interest litigant is an appropriate party to advance a justiciable claim, not on the detail of intended trial evidence or the claim’s ultimate prospect of success.
[88] As Justice Cromwell stated in Downtown Eastside, a complete denial of standing is a blunt procedural instrument. Depending on the circumstances of a case, it may not be the best means of guarding against the concerns that justify strictly limiting standing. This is particularly so given the availability of other litigation management tools for early screening of claims, including, for example, demands for particulars and summary determinations on the merits. That said, regardless of when standing is determined, the plaintiff bears the onus of persuading the court that the Borowski factors, applied purposively and flexibly, favour granting it public interest standing: Downtown Eastside at paras. 28, 37, 75.
[89] Against this backdrop, I turn to a brief review of the Borowski factors and then to the CCD’s grounds of appeal.
[90] An issue is “justiciable” if is appropriate for judicial determination and “serious” if it raises a substantial question that is “far from frivolous”: Finlay at 632–633. In Canadian Bar Association, BCSC, citing Thorson, Chief Justice Brenner stated that a challenge to the constitutionality of legislation is always justiciable: at paras. 23, 36.
[91] In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, Justice Rowe described the concept of justiciability like this:
[32] … The general question is this: Is the issue one that is appropriate for a court to decide?
[33] Lorne M. Sossin defines justiciability as
a set of judge-made rules, norms and principles delineating the scope of judicial intervention in social, political and economic life. In short, if a subject-matter is held to be suitable for judicial determination, it is said to be justiciable; if a subject-matter is held not to be suitable for judicial determination, it is said to be non-justiciable.
(Boundaries of Judicial Review: The Law of Justiciability in Canada (2nd ed. 2012), at p. 7)
Put more simply, “[j]usticiability is about deciding whether to decide a matter in the courts”: ibid., at p. 1.
[34] There is no single set of rules delineating the scope of justiciability. Indeed, justiciability depends to some degree on context, and the proper approach to determining justiciability must be flexible. The court should ask whether it has the institutional capacity and legitimacy to adjudicate the matter: see Sossin, at p. 294. In determining this, courts should consider “that the matter before the court would be an economical and efficient investment of judicial resources to resolve, that there is a sufficient factual and evidentiary basis for the claim, that there would be an adequate adversarial presentation of the parties’ positions and that no other administrative or political body has been given prior jurisdiction of the matter by statute” (ibid.).
[92] In Canada (Auditor General) v. Canada (Minister of Energy, Mines & Resources), [1989] 2 S.C.R. 49, Chief Justice Dickson explained that “[a]n inquiry into justiciability is, first and foremost, a normative inquiry into the appropriateness as a matter of constitutional judicial policy of the courts deciding a given issue, or instead deferring to other decision making institutions of the polity”: at 89–91. Accordingly, the serious justiciable issue factor is primarily concerned with maintaining the proper role of the courts and their constitutional relationship to the other branches of government, as well as with the wise allocation of scarce judicial resources. In Downtown Eastside, Justice Cromwell stated that the latter concern should be assessed practically and possible means of addressing its goals other than refusing standing should be considered. He also stated that courts should not refuse to determine an issue on the basis that it would be better addressed by the legislative or executive branches of government simply because it arises in a policy context or has policy implications: at paras. 40–42.
[93] Although the fact that an issue arises in a policy context or has policy implications does not render it non-justiciable, political questions of broad social and economic policy are nevertheless often non-justiciable. This is because many such questions engage the accountability of parliament or the legislatures and cannot be resolved by the application of law. Courts are neither equipped nor well suited “to embark on a course… resembling a public inquiry”: Tanudjaja v. Canada (Attorney General), 2014 ONCA 852 at para. 33. However, as the Supreme Court of Canada has repeatedly affirmed, when a government policy is translated into law or state action those laws and state actions are subject to judicial scrutiny. In such circumstances, the justiciable issue is whether the law or state action in question complies with the requirements of the Charter: Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 at para. 105; Chaoulli at para. 89.
[94] The question of whether a claim raises a serious justiciable issue is closely related to the question of whether the pleadings disclose a reasonable cause of action, but the two are not identical. Where a reasonable cause of action is disclosed on the pleadings the foundation is laid for a conclusion that there is a serious question to be tried: British Columbia/Yukon Association of Drug War Survivors v. Abbotsford (City), 2015 BCCA 142 at para. 25. For standing purposes, it is generally only necessary for one serious issue to be disclosed on the pleadings. A detailed screening of the merits of every aspect of a multifaceted claim is not required to satisfy the first factor of the Borowski test: Downtown Eastside at para. 56.
[95] Whether a reasonable cause of action is disclosed on the pleadings depends on the nature of the cause of action alleged and the material facts pleaded in support, assuming the truth of those factual allegations. For example, in Canadian Bar Association, BCSC, Chief Justice Brenner noted that a claim for a declaration that there is a constitutional right to civil legal aid would almost certainly be struck because there is ample authority that there is no general constitutional right to legal aid, but only a right arising in specific circumstances: at para. 102; see also Canadian Bar Association, BCCA at para. 37. However, some constitutional rights are more general in their application and pleadings regarding the particular factual context of a specific individual’s case need not always be pleaded for a constitutional claim to disclose a reasonable cause of action. Rather, depending on the cause of action pleaded, the facts underlying a broad and systemic constitutional challenge may relate to an identifiable group of similar individuals in materially similar circumstances, rather than to a specific individual in specific circumstances.
[96] In Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General), 2010 BCCA 439, Justice Saunders commented that individual and systemic constitutional challenges differ significantly in scope and that “the problems arising from that difference may be resolved by taking a more relaxed view of standing in the right case”: at para. 59. She also noted that this difference is particularly acute in cases involving alleged systemic discrimination. In British Columbia v. Crockford, 2006 BCCA 360, Justice Levine explained:
[49] A complaint of systemic discrimination is distinct from an individual claim of discrimination. Establishing systemic discrimination depends on showing that practices, attitudes, policies or procedures impact disproportionately on certain statutorily protected groups: see Radek at para. 523. A claim that there has been discrimination against an individual requires that an action alleged to be discriminatory to proven to have occurred and to have constituted discrimination contrary to the Code. The types of evidence required for each kind of claim are not necessarily the same. Whereas a systemic claim will require proof of patterns, showing trends of discrimination against a group, an individual claim will require proof of an instance or instances of discriminatory conduct.
[97] As is apparent from the foregoing, broad systemic constitutional challenges are a unique form of civil litigation, as are the form of pleadings and evidence required to advance and prove them. While material facts sufficient to ground such a challenge must be pleaded to enable the claim to serve as a foundation for public interest standing, cases such as Downtown Eastside, British Columbia/Yukon Association of Drug War Survivors and British Columbia Civil Liberties Association v. Canada (Attorney General) affirm that an individual plaintiff and plaintiff-specific material facts are not always necessary for a serious justiciable issue to be raised.
[98] The genuine interest factor is concerned with whether the plaintiff has a real stake in the proceedings or is engaged with the issues in question. As noted, its purpose is to achieve “concrete adverseness” to ensure sharp debate, thorough argument and thus economical use of judicial resources: Downtown Eastside at paras. 29, 43.
[99] In Hy and Zel’s Inc. v. Ontario (Attorney General), [1993] 3 S.C.R. 675, Justice Major described the third Borowski factor as lying “at the heart of the discretion to grant public interest standing”: at 692. It was traditionally expressed and sometimes applied as a strict requirement that an applicant must show “there is no other reasonable and effective manner in which the issue may be brought before the Court”. This rigid approach was relaxed in Downtown Eastside, where Justice Cromwell held that the third factor should be assessed flexibly and purposively by considering “whether the proposed suit is, in all of the circumstances, and in light of a number of considerations … a reasonable and effective means to bring the challenge to court” (emphasis added): at para. 44.
[100] Justice Cromwell provided a non-exhaustive list of interrelated matters that the court should consider when assessing the third Borowski factor, including the plaintiff’s capacity to bring the claim and “whether the issue will be presented in a sufficiently concrete and well-developed factual setting”. Whether the case transcends the interests of those most directly affected and facilitating access to justice for affected disadvantaged persons are also highly relevant, as are the practical prospects of private interest plaintiffs “bringing the matter to court at all or by equally or more reasonable and effective means” and the potential impact on the rights of directly affected others, especially where private and public interests may come into conflict: at para. 51.
[101] When Justice Cromwell went on to apply the third Borowski factor to the circumstances of the case, he discussed each concern that led the chambers judge to deny standing under the traditional approach, namely, similar ongoing parallel litigation, criminal prosecutions in which the constitutional issues could be raised as of right and the possibility that individual sex workers could bring the challenge forward as private litigants. However, he found that, under a flexible, purposive approach, none weighed heavily in an assessment of whether the action was a reasonable and effective means of bringing the claims forward: at paras. 61–72. He also identified other relevant matters, such as the comprehensive nature of the challenge, the public importance of the issues raised and the skill with which they would be presented, and concluded that the third Borowski factor favoured granting public interest standing. The systemic nature of the constitutional challenge was a significant factor that weighed heavily in that determination, as was the capacity of the society to bring the necessary evidence before the court.
[102] The CCD contends that the Chief Justice erred in concluding its claim did not raise a serious justiciable issue. In particular, it says, he erred in finding that: “the lack of a particular factual context of an individual’s case” was fatal to its standing claim; in ignoring Ms. Benard’s unchallenged evidence that the CCD would call directly-affected witnesses at trial; in failing to allow it to amend its pleadings, if necessary; in prejudging disputed issues; and in failing to consider whether there was a substantial constitutional question for determination that was “far from frivolous”.
[103] I do not agree that the Chief Justice ignored Ms. Benard’s unchallenged evidence. On the contrary, he expressly considered her evidence that the CCD intended to call presently unidentified individuals directly affected by the impugned provisions and to present a robust factual record at trial (at paras. 58–59). Nor did he prejudge any disputed issues. Rather, he summarized the background facts without purporting to make findings on contested matters such as the use of Form 5s, their legal implications or the appropriate distinction, if any, to be drawn between physical and mental disabilities. And, while he did not expressly ask whether there was a substantial constitutional question for determination, that question was the focus of his analysis of the first Borowski factor.
[104] However, in my view, the Chief Justice erred in his interpretation and reliance upon Canadian Bar Association, BCSC and Canadian Bar Association, BCCA, which led him to err in his assessment of the factual foundation required to ground the constitutional challenge advanced and satisfy the serious justiciable issue criterion.
[105] As noted, in Canadian Bar Association, BCSC, Chief Justice Brenner stated that a challenge to the constitutional validity of legislation is always justiciable. This was a correct statement which has been repeatedly affirmed in the subsequent jurisprudence, as outlined above. However, he declined to grant public interest standing to the CBA because it did not plead or advance any such challenge. Rather, its challenge was to the alleged inadequacy of the civil legal aid scheme overall and the claim was brought “on behalf of an amorphous group of individuals whose Charter rights may have been, or in the future may be breached”, namely, “poor people”.
[106] As Justice Saunders explained in Canadian Bar Association, BCCA, the descriptor “amorphous” applied to the group of “poor people” in question in that case because, as determined in Christie, “there is no general right to legal assistance whenever a matter of rights and obligations is before a court or tribunal”. Accordingly, membership in the group could only be determined “in the context of specific facts of an individual’s case” based on a range of variable factors such as the seriousness and complexity of the proceedings and the particular capacities of each individual in that context (at paras. 48–49). As she also explained, based on the law in force at the time, the s. 15 Charter challenge could only be analysed “in the context of a comparator group that is chosen bearing in mind the characteristics of the individual” (at para. 51). Notably for present purposes, in Wither v. Canada (Attorney General), 2011 SCC 12 the Supreme Court of Canada later held that a s. 15 equality analysis does not require the identification of a mirror comparator group.
[107] Contrary to the Chief Justice’s statement, this Court did not uphold Chief Justice Brenner’s finding that the CBA lacked public interest standing. Justice Saunders made the statements in Canadian Bar Association, BCCA, that he quoted and relied upon in the context of deciding that the CBA’s pleadings did not disclose a reasonable cause of action. She expressly declined to consider the standing issue on appeal. Nevertheless, as I have explained, the two questions are closely related and pleadings that do not disclose a reasonable cause of action cannot serve as a foundation for a serious justiciable issue. It is, therefore, illuminating to consider Justice Saunders’ statements and their implications for whether a serious justiciable issue is raised on the pleadings in this case.
[108] The Chief Justice repeatedly drew analogies between the CCD’s claim and that of the CBA and relied upon those analogies in his analysis of the serious justiciable issue criterion. In finding that the “fundamental difficulty” with the CCD’s role was “the lack of a particular factual context of an individual’s case” he stated “[t]his issue was fatal to the claim for standing in Canadian Bar Association” and he referred specifically to paras. 49 and 51 of Justice Saunders’ reasons where she discussed the need for an individual factual context to ground the CBA’s claims (at paras. 37–38). In addition, in expressing his final conclusion, the Chief Justice returned to the analogy and stated that “as with the CBA, the CCD should be denied standing to assert the claim it has pleaded on behalf of the amorphous group of individuals whose Charter rights may have been, or in the future may be, breached by the operation of the impugned provisions …” (at para. 98, emphasis added).
[109] However, in my view, the two claims were not analogous. The CCD challenged the constitutional validity of specific legislation. The CBA did not. As discussed, a challenge to the constitutional validity of legislation is always justiciable, regardless of whether it has policy implications, because the challenge concerns government policy translated into law and thus subject to Charter compliance. This is a critical distinguishing feature of the CCD’s claim.
[110] Another critical distinguishing feature between the two claims is the permissibly broad and general nature of the CCD’s constitutional challenge from a legal perspective. As Justice Saunders explained in Canadian Bar Association, BCCA, the ss. 7 and 15 Charter challenges brought by the CBA were necessarily grounded in an individualized factual matrix in accordance with the then-prevailing law and thus the claim, as pleaded, was impermissibly broad. In contrast, in this case the constitutional challenges concern the alleged generally shared right of all involuntary patients to be free from exposure to Forced Psychiatric Treatment and discrimination based on mental disability. To the extent these constitutional rights exist, they are shared by all members of the group regardless of the individual factual contexts within which they arise.
[111] The amended notice of civil claim pleads concrete and detailed material facts regarding the nature and potential impacts of Forced Psychiatric Treatment to which all involuntary patients in British Columbia are exposed by virtue of the operation of the impugned provisions. It also pleads that the impugned provisions create a discriminatory distinction based on mental disability that impacts all directly affected members of the group. Unlike “poor people”, membership in the group is not amorphous, although the group is very large. The alleged breaches are manifestly serious and the claim is “far from frivolous”.
[112] In other words, unlike the CBA’s claim, the CCD’s claim is a comprehensive and systemic constitutional challenge to specific legislation that directly affects all members of a defined and identifiable group in a serious, specific and broadly-based manner regardless of the individual attributes or experiences of any particular member of the group.
[113] In my view, based on these pleadings, as in Thompson, it would be open to the CCD to seek to establish its claim by adducing evidence from directly-affected non-plaintiff and expert witnesses rather than through a personal co-plaintiff. To the extent the Attorney General might require access to relevant documents and other forms of discovery to defend itself adequately, there are litigation management tools short of the blunt instrument of a complete denial of standing available to meet those needs.
[114] For the foregoing reasons, I conclude that the Chief Justice erred in his assessment of the first Borowski factor. In my view, the CCD’s claim does not require “a particular factual context of an individual’s case” or an individual plaintiff and it manifestly raises a serious justiciable issue.
[115] Given my conclusion on this ground of appeal, it is unnecessary to analyse the other grounds of appeal advanced by the CCD regarding the denial of public interest standing. However, I wish to comment that, in my view, the Chief Justice’s analysis of the third Borowski factor did not comport in all respects with the flexible, purposive approach mandated in Downtown Eastside. Although I do not accept that he imposed a precondition that all directly-affected individuals share the CCD’s viewpoint, which is plainly unnecessary, to the extent the Chief Justice may have suggested that, if possible, it is always preferable for a public interest organization to assist an individual party in the background rather than seek public interest standing (at para. 95), I cannot agree. As Justice Cromwell explained in Downtown Eastside, the existence of other potential plaintiffs who have standing as of right is relevant on a standing application, “but the practical prospects of their bringing the matter to court at all or by equally or more reasonable and effective means should be considered in light of the practical realities” on a standing application: at para. 51. And as Justice Diner stated in Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship), 2017 FC 1131, it is not always desirable “for “ghost” parties to lurk in the background, providing extensive funding, evidence, advice, or information”: at paras. 66–68. Rather, in my view, every standing application must turn on its own unique constellation of facts.
[116] I also wish to address the CCD’s alternative position regarding the suitability of a summary trial on the issue of public interest standing.
[117] The CCD submits that the Chief Justice overlooked its alternative position, namely that, if more evidence was required to establish its public interest standing, the standing issue was not suitable for preliminary determination. I do not accept this submission.
[118] In my view, the Chief Justice considered and rejected the CCD’s alternative position. As outlined above, he found that it “misconstrues the onus that [it] faces on the application before me” (at para. 60) and that, in responding to the application, “it is not open to the CCD to attempt to shift the onus onto the Attorney where he has clearly raised the adequacy of CCD’s pleadings as a basis for the relief he seeks” (at para. 62). He also found that, unlike the Thompson case where “adjudicative facts necessary for consideration by the Court were available”, in this case “there is no such evidence pleaded” (at paras. 63–64) and there would not be “a sufficiently concrete and well-developed factual setting upon which the constitutional question it has raised can be decided” (at para. 69).
[119] I agree with the CCD that it was not obliged to plead or present its trial evidence in response to the application for a preliminary determination on public interest standing. I also agree that it would not have been just for the Chief Justice to decide the standing issue if the application evidence and the trial evidence were inextricably interwoven. As noted, in such circumstances a summary trial would not improve the overall efficiency of the trial process and, in any event, the key issue on a standing determination is much narrower than on a merits determination. However, as also noted, to the extent reasonably possible, the parties must come to a summary trial prepared to meet their onus, whatever it may be.
[120] The onus on the CCD was to establish that it was an appropriate party to advance a justiciable claim pleaded in the amended notice of civil claim. I do not interpret the Chief Justice’s reasons as amounting to a finding that the CCD needed to plead or present its intended trial evidence in order to meet this onus. Although he did refer to pleading evidence, read in context, that reference was directed at the need for the CCD to plead material facts and its capacity eventually to prove them should standing be granted. It did not amount to a finding that much or all of the trial evidence was required on the summary trial to enable a proper determination on the standing issue.
[121] Nor do I interpret the Chief Justice’s reasons as overlooking the question of whether the standing question was suitable for summary determination. Rather, in my view, they reflect a clear, if implicit, finding that, as is in many cases, the question of standing was suitable for preliminary determination in this case. I agree.
[122] While this appeal was on reserve, the court was informed that an action was commenced in October 2019 under the Class Proceedings Act, R.S.B.C. 1996, c. 50, by three private litigants on their own behalves and on behalf of a proposed class seeking, among other relief, a declaration that the same statutory provisions at issue in this case unjustifiably infringe ss. 7, 12 and 15(1) of the Charter. In addition, the court was informed that one of the two former individual co-plaintiffs in this action commenced a new action challenging the constitutional validity of the impugned provisions approximately four months after the decision below was handed down but later discontinued that action as well. Although such information would ordinarily be placed before the court on an application to adduce new evidence, I would accept and consider it in the form provided. In my view, its admission is in the interests of justice as it is relevant to the appropriate remedy to be granted on this appeal: Garcia v. Tahoe Resources Inc., 2017 BCCA 39, leave to appeal refused, [2017] S.C.C.A. No. 94 at para. 63.
[123] The existence of the potentially duplicative constitutional challenge commenced in October 2019 is relevant to, though not determinative of, the CCD’s application for public interest standing in this action. The fact that one of the two former individual co-plaintiffs subsequently commenced but discontinued another constitutional challenge to the impugned provisions is also relevant to a fully informed consideration of the third Borowski factor. However, in my view, the Supreme Court of British Columbia is best placed to assess the CCD’s standing application and draw whatever inferences may be appropriate based on a revised record that incorporates and addresses all of the relevant circumstances, including the new information with respect to those claims.
[124] I would allow the appeal, set aside the order dismissing the action and remit the CCD’s application for public interest standing to the Supreme Court of British Columbia for fresh consideration.
“The Honourable Madam Justice Dickson”
I AGREE:
“The Honourable Mr. Justice Frankel”
I AGREE:
“The Honourable Madam Justice DeWitt-Van Oosten”