B.C.’s courts prepare to answer the question

While litigation doesn’t always change the world, British Columbia is poised to shake it up substantially with two landmark cases.

On October 19, 2005, the appeal and cross-appeal will be heard in Christie v. AGBC. Attorneys General from across Canada are paying close attention to this case; there are fundamental issues at stake about what governments can charge individuals when they need access to legal services. The argument put forward in Christie is that a tax on legal services impedes access to justice because it is a barrier to obtaining legal representation when necessary.

The original decision in Christie offered a partial victory: the Social Services Tax Amendment Act was declared ultra vires as it applies to people with incomes below the threshold for receiving duty counsel services from the Legal Services Society. The Attorney General is seeking to have that decision set aside; Mr. Christie’s pro bono counsel, Darrell Roberts, Q.C. of Miller Thomson is seeking to have it expanded to include all persons who require legal services. The outcome has important implications for every individual, business, and institution that uses legal services.

In a second matter, B.C.’s Supreme Court will be the first jurisdiction to hear a national test case to establish a constitutional right to legal aid in civil matters. Surrounded by reporters in Vancouver on June 20, CBA President Susan McGrath announced the filing of a groundbreaking case widely expected to reach the Supreme Court of Canada. The legal team for the case includes J.J. Camp and Sharon Matthews of Camp Fiorante Matthews, as well as Marina Buckley, Ph.D. and Gwen Brodsky, Ph.D.

The test case is unusual, in that the plaintiff is the CBA itself and not an individual or individuals specifically affected by lack of access to legal aid. The case will rely on novel legal arguments that seek to establish a broad right to legal representation, rather than narrow interpretations of law focused on a particular individual’s case.

The essential basis of the test case legal arguments is that the current structure of legal aid funding, by both the federal and provincial governments and the Legal Services Society as their administrator of legal aid services, denies access to justice to people who cannot afford legal counsel in matters that threaten their fundamental interests as protected by the Charter, the Constitution Act, 1982 and international human rights law. For the full statement of claim, visit www.cba.org.

The legal aid test case is supported financially by a three-year pledge from every CBA Branch in the country, as well as the National office, to a total of $500,000. The Christie challenge is supported by $5,000 pledged by the B.C. Branch toward disbursements. Stay tuned to www.cba.org/bc for more news on both of these exciting cases.

This article was published in the August 2005 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.