They even got a special cost award!
The SCC’s Case in Brief Summary is very helpful:
https://www.scc-csc.ca/case-dossier/cb/2022/39430-eng.aspx
The Judgment in its entirety may be accessed here:
https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19424/index.do
Legal Media has covered the Judgment extensively already.
Cristin Schmitz wrote about it for the Lawyer’s Daily on June 23, 2022 here:
Aidan Macnab’s article in Canadian Lawyer appeared here also on June 23, 2022:
I am incredibly proud of the work we did, as counsel team extraordinaire in this intervention.
This was an amazing group of young women who supported the client and me – thank you!
For our client’s role and the history of our Intervention for the Empowerment Council see my blog entry here:
The most important paragraphs from this Judgment for our client, the Empowerment Council are these:
(1) Individual Co-plaintiff Not Required
[63] At the outset, both parties rightly acknowledge that public interest litigation may proceed in some cases without a directly affected plaintiff (see, e.g., A.F., at para. 59). A statute’s very existence, for example, or the manner in which it was enacted can be challenged on the basis of legislative facts alone (see, e.g., Danson, at pp. 1100-1101).
[64] The AGBC, however, submits that where the impacts of legislation are at issue, evidence from a directly affected plaintiff is vital to “ensuring that a factual context suitable for judicial determination is present” before standing is granted (A.F., at para. 60). In such cases, the AGBC maintains, an applicant for public interest standing should be required to (i) explain the absence of an individual plaintiff, (ii) show how it is a suitable proxy for the rights and interests of directly affected plaintiffs, and (iii) demonstrate, “with some specificity”, how it will provide a well-developed factual context that compensates for the absence of a directly affected plaintiff (paras. 40 and 66).
[65] I would not impose such rigid requirements, for two reasons.
[66] First, a directly affected plaintiff is not vital to establish a “concrete and well-developed factual setting”. Public interest litigants can establish such a setting by calling affected (or otherwise knowledgeable) non-plaintiff witnesses (see, e.g., Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at paras. 14-16, 22 and 110; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 15 and 54; Downtown Eastside, at para. 74). As long as such a setting exists, a directly affected co-plaintiff or a suitable proxy is not requiredfor a public interest litigant to be granted standing. If a directly affected co-plaintiff is not required, then would-be public interest litigants should not have to justify — or compensate for — the absence of one.
[67] Second, the AGBC’s proposed requirements would thwart many of the traditional purposes underlying standing law. A strict requirement for a directly affected co-plaintiff would pose obstacles to access to justice and would undermine the principle of legality. Constitutional litigation is alreadyfraught with formidable obstacles for litigants. These proposed requirements would also raise unnecessary procedural hurdles that would needlessly deplete judicial resources. Given these concerns, the Court was correct in Downtown Eastside to retain the presence of directly affected litigants as a factor — rather than a separate legal and evidentiary hurdle — in the discretionary balancing, to be weighed on a case-by-case basis. I would not disturb that conclusion here.
(2) Satisfying a Court on this Factor Will Be Context-Specific
[68] The question remains: In the absence of a directly affected co-plaintiff, how might a would-be public interest litigant demonstrate that the issues “will be presented in a sufficiently concrete and well-developed factual setting” (Downtown Eastside, at para. 51 (emphasis added))? And, in particular, how might such a litigant do so where (as here) standing is challenged at a preliminary stage of the litigation?
[69] To begin, a few clarifications are in order. As the Court explained in Downtown Eastside, none of the factors it identified are “hard and fast requirements” or “free-standing, independently operating tests” (Downtown Eastside, at para. 20). Rather, they are to be assessed and weighed cumulatively, in light of all the circumstances. It follows that, where standing is challenged at a preliminary stage, whether a “sufficiently concrete and well-developed factual setting” will exist at trial may not be dispositive. The trial judge retains the discretion to determine the significance of this consideration at a preliminary stage by taking the particular circumstances into account.
[70] That said, the absence of such a setting will in principle be dispositive at trial. A court cannot decide constitutional issues in a factual vacuum (Mackay v. Manitoba,[1989] 2 S.C.R. 357, at pp. 361-62). Evidence is key in constitutional litigation unless, in exceptional circumstances, a claim may be proven on the face of the legislation at issue as a question of law alone (see, e.g., Danson, at pp. 1100-1101, citing Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, at p. 133). Standing may therefore be revisited where it becomes apparent, after discoveries, that the plaintiff has not adduced sufficient facts to resolve the claim. As I will explain below, however, parties should consider other litigation management strategies before revisiting the issue of standing, given that such strategies may provide a more appropriate route to address the traditional concerns that underlie standing law (Downtown Eastside, at para. 64). For example, summary dismissal may be open to a defendant where there is no evidence to support an element of the claim (as in Hryniak v. Mauldin,2014 SCC 7, [2014] 1 S.C.R. 87, at para. 93).
[71] With these clarifications in mind, I will now return to the question at hand: What suffices to show that a sufficiently concrete and well-developed factual setting will be forthcoming at trial? The answer to this question necessarily depends on the circumstances, including (i) the stage of litigation at which standing is challenged, and (ii) the nature of the case and the issues before the court. On the first point, what may, for example, satisfy the court at an early stage may not suffice at a later stage. Likewise, the significance of a lack of evidence will vary with the nature of the claim and the pleadings. Some cases may not be heavily dependent on individual facts — where, for example, the claim can be argued largely on the face of the legislation. In such cases, an absence of concrete evidence at the pleadings stage may not be fatal to a claim for standing. Where a case turns to a greater extent on individual facts, however, an evidentiary basis will weigh more heavily in the balance, even at a preliminary stage of the proceedings.
[72] When standing is challenged at a preliminary stage, the plaintiff should not be required to provide trial evidence. That would be procedurally unfair, as it would permit the defendant to obtain evidence before discovery. Generally, however, a mere undertaking or intention to adduce evidence will not be enough to persuade a court that an evidentiary basis will be forthcoming. It may be helpful to give some examples of the considerations a court may find relevant when assessing whether a sufficiently concrete and well-developed factual setting will be produced at trial. As was the case in Downtown Eastside, for the purposes of its assessment of the “reasonable and effective means” factor, this list is not exhaustive, but illustrative.
1. Stage of the proceedings: The court should take account of the stage of the proceedings at which standing is challenged. At a preliminary stage, a concrete factual basis may not be pivotal in the Downtown Eastside framework — the specific weight to be attached to this consideration will depend on the circumstances, and ultimately lies within the trial judge’s discretion. At trial, however, the absence of a factual basis should generally preclude a grant of public interest standing.
2. Pleadings: The court should consider the nature of the pleadings and what material facts are pled. Are there concrete facts with respect to how legislation has been applied that can be proven at trial? Or are there merely hypothetical facts with respect to how legislation might be interpreted or applied? Do the pleadings reveal that the case can be argued largely on the face of the legislation, such that individual facts may not be pivotal? Or does the case turn more heavily on individualized facts?
3. The nature of the public interest litigant: The court may also consider whether the litigant — if it is an organization — is composed of or works directly with individuals who are affected by the impugned legislation. If that is the case, it would be reasonable to infer that the litigant has the capacity to produce evidence from directly affected individuals.
4. Undertakings: Courts rigorously enforce undertakings, which must be “strictly and scrupulously carried out” (see, e.g., Law Society of British Columbia, Code of Professional Conduct for British Columbia (online), rule 5.1-6). An undertaking by a lawyer to provide evidence might help to persuade a court that a sufficient factual setting will exist at trial, but an undertaking alone will seldom suffice.
5. Actual evidence: Though a party is not required to do so, providing actual evidence — or a list of potential witnesses and the evidence they will provide — is a clear and compelling way to respond to a challenge to standing at a preliminary stage. As I explained above, the significance of a lack of evidence will depend on the stage of the litigation, the nature and context of the case, and the pleadings.
(3) Ability to Revisit Standing
[73] In Downtown Eastside, this Court cautioned against using the “blunt instrument of a denial of standing” where other well-established litigation management strategies could ensure the efficient and effective use of judicial resources (para. 64). For example, courts can screen claims for merit at an early stage by intervening to prevent abuse, and have the power to award costs. A court hearing a preliminary challenge to standing may also defer consideration of the issue to trial (Finlay, at pp. 616-17). Any of these tools may provide a more appropriate route to address the traditional concerns that underlie standing law, and courts should take these tools into account when exercising their discretion to grant or deny standing (Downtown Eastside, at para. 64). Likewise, parties should generally pursue alternative litigation management strategies first, before seeking to revisit the issue of standing.
[74] Courts, however, retain the ability to reconsider standing, even where it was initially granted at a preliminary stage (Borowski v. Canada (Attorney General),[1989] 1 S.C.R. 342). The ability to revisit standing depends on a plaintiff’s continued efforts to demonstrate that a sufficiently concrete and well-developed factual setting will be put forward at trial. In this sense, the ability to revisit standing acts as a fail-safe to ensure that the plaintiff does not rest on its laurels.
[75] To be clear, the courts’ ability to revisit standing is not an open invitation to defendants to challenge standing at every available opportunity. Litigants must not waste judicial resources or unduly hinder the litigation process. For that reason, a defendant wishing to revisit standing may apply to do so only if a material change has occurred that raises a serious doubt that the public interest litigant will be able to put forward a sufficiently concrete and well-developed factual setting, and alternative litigation management strategies are inadequate to address the deficiency. One example of such a material change would be where the plaintiff undertook to provide evidence in response to a previous challenge to standing but failed to do so. By contrast, moving from one stage of the litigation to another does not, by itself, correspond to a material change that would merit revisiting standing.
[76] A material change that raises a serious doubt that a plaintiff will be able to put forward a sufficiently concrete and well-developed factual setting is most likely to occur when the parties exchange pleadings or complete the discovery stage. These are the steps in the litigation process at which the factual setting is most likely to emerge. Unsurprisingly, the importance of the factual setting increases at each step of the process as the litigation progresses. This means that a plaintiff’s inability to demonstrate that it will put forward a sufficiently concrete and well-developed factual setting will carry more weight at the close of the discovery stage than after the exchange of pleadings, at which point the absence of concrete evidence would be less significant. Like the initial decision on standing, a decision to revisit standing turns on the particular circumstances of the case (Downtown Eastside, at para. 2).
[77] While I do not foreclose the possibility of a material change occurring other than at the pleadings and discovery stages, such an occurrence would be rare. One example of an appropriate case would be where the original basis for the plaintiff’s standing has been called into question or becomes moot. The latter situation arose in the Borowski saga. In 1981, this Court granted Mr. Borowski public interest standing to challenge the prohibition against abortion in the Criminal Code, R.S.C. 1970, c. C-34 (see Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575), but the impugned provisions were subsequently struck down in R. v. Morgentaler, [1988] 1 S.C.R. 30. In 1989, this Court held that Mr. Borowski lacked standing to continue the case, because he was now asking the court to address a “purely abstract question” about the rights of a foetus, which meant that his challenge now amounted to a “private reference” (Borowski (1989), atpp. 365-68).
[78] At the oral hearing, CCD requested leave to cross-appeal the Court of Appeal’s order, and urged this Court to rule on the issue of standing. It argued that remitting the matter for reconsideration would only cause further delay. I agree. In my view, it is in the interests of justice to grant leave to cross-appeal in the circumstances, and address the standing issue. Courts may grant public interest standing in the exercise of their inherent jurisdiction whenever it is just to do so (Morgentaler v. New Brunswick, 2009 NBCA 26, 344 N.B.R. (2d) 39, at para. 51).
[79] I note that rulings on standing are discretionary, and are thus “entitled to deference on appeal” (Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713, at para. 39). In the case at bar, however, there are errors in the decisions of the courts below that justify our intervention.
[80] My analysis in this regard will proceed in two parts. First, I will outline the errors made by the courts below. Second, I will apply and weigh each of the Downtown Eastside factors before concluding that, cumulatively, these factors favour granting public interest standing in the circumstances.
(1) Errors in the Courts Below
(a) Chambers Judge
[81] The chambers judge made a number of errors in his interpretation and application of the Downtown Eastside factors.
(i) Errors With Respect to the Serious Justiciable Issue Factor
[82] The chambers judge concluded that CCD failed to raise a justiciable issue, but his analysis on this point was insufficient. He (and the Court of Appeal) reduced the inquiry to whether it was necessary for the plaintiff to plead facts relating to specific individuals: the chambers judge held that it was, while the Court of Appeal held that it was not.
[83] This approach misses the point of the “justiciability” inquiry, which is directed at maintaining an appropriate boundary between an impermissible “private reference” and a proper grant of public interest standing (see, e.g., Borowski (1989), at p. 367). Whether facts relative to specific individuals are or are not pleaded may be a relevant factor, but it is not, in itself, the point to be decided, nor is it determinative.
[84] As I will explain below, while it is true that purely hypothetical claims are not justiciable, there is an undisputed cause of action here. CCD has alleged facts which, if proven, could support a constitutional claim.
(ii) Errors With Respect to the Genuine Interest Factor
[85] The chambers judge also erred in his assessment on the existence of a genuine interest. He found that CCD’s interest only “weakly” met the genuine interest criterion, because its work is focused primarily on “disabilities” and not on “mental disabilities”. With respect, this distinction between “mental disabilities” and “disabilities” is unhelpful, and unfounded. Mental disabilities are disabilities (Saadati v. Moorhead,2017 SCC 28, [2017] 1 S.C.R. 543, at paras. 2 and 35).
(iii) Errors With Respect to the Reasonable and Effective Means Factor
[86] The chambers judge concluded that CCD failed to establish that its suit was a reasonable and effective means of bringing the issues forward. He voiced four concerns in this regard:
1. CCD failed to lead adequate evidence of a “sufficiently concrete and well-developed factual setting” upon which the action could be tried (para. 69);
2. CCD failed to persuade the chambers judge that it could fairly represent the interests of everyone affected by the impugned provisions (para. 76);
3. CCD had engaged in “little advocacy for mental illness” in comparison with its advocacy efforts regarding physical disability (para. 74); and
4. CCD failed to explain why it was unrealistic for individuals who have experienced the impacts of the impugned provisions to bring and see through a challenge themselves (paras. 77-95).
[87] It was not open to the chambers judge to afford these concerns the decisive weight he did. I will address each concern in turn.
[88] The first concern relates to the concrete factual setting needed to resolve constitutional claims. As I noted above, this consideration is one of many a court may take into account when deciding whether a suit is a reasonable and effective means of advancing the claim. The chambers judge, however, attached determinative weight, at several points in his reasons, to the alleged absence of a robust factual setting (paras. 37-39, 61, 67 and 69).
[89] The chambers judge’s approach contradicts Downtown Eastside, in which this Court affirmed that none of the factors are “hard and fast requirements” or “freestanding, independently operating tests” (para. 20). They are instead to be assessed and weighed cumulatively. It follows that at this early stage, where the question is simply whether a sufficient factual setting will exist, this consideration is not determinative on its own.
[90] The second concern relates to the interests of others who are affected by the impugned legislation. The chambers judge surmised that CCD was not in a position to “fairly represent” everyone’s interests. But public interest standing has never depended on whether the plaintiff represents the interests of all, or even a majority of, directly affected individuals. What matters is whether there is a serious justiciable issue, whether the plaintiff has a genuine interest, and whether the suit is a reasonable and effective means of litigating the issue.
[91] The third concern expressed by the chambers judge relates to CCD’s status as an advocate for people with mental disabilities. The chambers judge questioned whether CCD’s advocacy efforts “commend[ed] it as an advocate for those with mental health-related disabilities”, and mentioned that its argument seemed to focus on “the extent to which mental illness should be considered a disability” (para. 74). This concern rests on the unfounded distinction between mental and physical disabilities which I discussed above.
[92] The fourth concern relates to the availability of other individuals who might have direct standing to challenge the claim. The chambers judge considered that some individuals affected by the impugned provisions might be willing or able to participate in CCD’s constitutional challenge “if funded and supported by the CCD”, and that there were therefore “other reasonable and effective ways to bring the issues” forward (paras. 95 and 97).
[93] This final concern is problematic for two reasons. First, Downtown Eastside instructs courts to take a “practical” and “pragmatic” approach to the existence of potential plaintiffs. The “practical prospects” of such plaintiffs bringing the matter to court “should be considered in light of the practical realities, not theoretical possibilities” (para. 51). There was no analysis in this regard in the chambers judge’s reasons. Although other plaintiffs have advanced constitutional challenges to these provisions, none of them were able to see their challenges through to completion.
[94] Second, the chambers judge’s fourth concern attaches undue weight to the importance of an individual plaintiff. But as I explained above, Downtown Eastside sets out no requirement for such a plaintiff. Instead, it directs courts to consider whether the plaintiff’s claim is a reasonable and effective means of bringing the case to court, regardless of whether other reasonable and effective means exist (para. 44).
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