02/15/2013 04:02 EST | Updated 04/17/2013 05:12 EDT

Appeal Court upholds hearing fees, but redefines who is exempt

VANCOUVER - The British Columbia government can charge fees for court time so long as judges have broad discretion to determine who cannot afford them, the B.C. Appeal Court says, overturning an earlier decision that declared such fees unconstitutional.

The Appeal Court ruling stems from a family law case in which a woman named Montserrat Vilardell said she could not afford the $3,600 she was charged for a 10-day trial. The case involved a range of issues including custody her and her husband's children.

Vilardell asked the court to waive those fees, prompting arguments involving the provincial government and several intervener groups about whether the fees were even legal.

The B.C. Supreme Court ruled last year the fees are unconstitutional, because, while the very poor are exempt, they still apply to middle-class litigants who might also be prevented from pursuing their legal claim because of onerous fees.

In a ruling issued Friday, the Appeal Court rejected the finding that the fees are unconstitutional, and instead attempts to balance the government's right to charge fees with the ability of plaintiffs to access the courts.

The three-judge Appeal Court panel said regulations that outline who may be exempt from the fees — litigants who are labelled indigent — should be expanded to include anyone a judge determines is "in need."

"The phrase is intended to cover those who could not meet their everyday expenses if they were required to pay the fees," Justice Ian Donald wrote in a unanimous decision.

"Courts will continue to use their discretion to determine whether a litigant is impoverished or in need to the point that, but for the hearing fees, they would be able to pursue their claim."

With that in mind, the court said Vilardell — a trained veterinarian who said the hearing fees amounted to a month's income — does not have to pay the fees.

Currently, provincial regulations define indigent litigants as those who receive income assistance, disability payments or who are "impoverished." Donald said the third category should be expanded to read "impoverished or in need."

He noted fees disproportionately affect women in family law cases, aboriginals, people with disabilities and recent immigrants, and he wrote that those groups should be assured they won't be prevented from accessing the justice system because of burdensome fees.

However, Donald rejected the argument that it is always unconstitutional to charge fees to access the courts.

He concluded the government has a right to charge fees to recover costs and encourage parties to use court time efficiently.

There were several interveners in the case that argued against the fees, including the B.C. branch of the Canadian Bar Association, the Trial Lawyers Association of British Columbia, and the West Coast Women’s Legal Education and Action Fund, also known as West Coast LEAF.

Kasari Govender, the executive director of West Coast LEAF, said her group had mixed feelings about the ruling.

Govender said she was pleased the court concluded a wide segment of society can't realistically afford court fees, but she noted her group wanted the entire fee structure abolished.

"Where there is an obstacle to accessing justice, that obstacle needs to be removed," she said in an interview.

"Everyone needs equal access to the courts, not different treatment for different people, and that's ultimately what this is. When most people can't afford (the fees), the remedy is to remove the fees as a whole."

Kerry Simmons, president of the B.C. branch of the Canadian Bar Association, said the association welcomes the Appeal Court ruling.

"While the result falls short of a declaration of unconstitutionality, the ruling is very important because it confirms that hearing fees should not be charged to those who cannot pay them while meeting their daily needs," Simmons said in a written statement.

The structure for court hearing fees was changed in 2010, though the Vilardell case was heard under previous regulations.

Under the old rules, litigants were charged $312 a day for the first five days, $416 a day for the next five days, and $624 for each day after the 10th day. Cases that only required a half-day of court time were charged a fee of $156.

Changes implemented in 2010 gave litigants three days of court time for free, but the fees for subsequent days increased. For trials that last longer than three days, each additional day costs $500 until a trial reaches 10 days. After 10 days, each additional day is $800.