Cristin Schmitz wrote for the Lawyer’s Daily about this case on June 23 2022 here:
SCC sheds new light on test, evidence required for public interest standing in court challenges
Thursday, June 23, 2022 @ 5:44 PM | By Cristin Schmitz
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Case(s):
British Columbia (Attorney General) v. Council for Canadians with Disabilities, [2022] S.C.J. No. 27
MacLaren v. British Columbia (Attorney General) 2018 BCSC 1753
Council of Canadians with Disabilities v. British Columbia (Attorney General) 2020 BCCA 241
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Litigants seeking public interest standing to challenge constitutionally suspect laws do not need co‑plaintiffs directly affected by those laws in order to proceed with the litigation, the Supreme Court of Canada has ruled in a 9-0 judgment which sheds new light on the decade-old Downtown Eastside legal test and its evidentiary requirements for attaining public interest standing.
On June 23, Chief Justice Richard Wagner dismissed the appeal of the Attorney General of British Columbia, and allowed the cross-appeal of the respondent Council of Canadians with Disabilities (CCD): British Columbia (Attorney General) v. Council of Canadians with Disabilities 2022 SCC 27.
The upshot is that the advocacy group can proceed in court to the merits of its Charter challenge to three B.C. health laws authorizing compelled treatment of persons with mental disabilities, notwithstanding that CCD doesn’t have an individual co-plaintiff who is or was affected by the impugned provisions.
Citing “exceptional circumstances,” Chief Justice Wagner also exercised the court’s discretion to award CCD “special” (i.e. full indemnity) legal costs at the Supreme Court and below, dating back four years, with the aim of placing CCD “as far as it is possible to do so financially— in the position it was in when the AGBC called its standing into question.”
Those costs are estimated by CCD’s pro bono counsel to amount to hundreds of thousands of dollars.
Michael Feder, McCarthy Tétrault LLP
CCD’s lead counsel Michael Feder of Vancouver’s McCarthy Tétrault LLP, whose co-counsel were Katherine Booth and Kevin Love, called the court’s judgment “a huge win for access to justice” — and one which he speculated may spur British Columbia to roll out better mental health legislation to replace the constitutionally impugned provisions that are unique to that province.
“I think it’s a huge repudiation of the attorney general’s approach to defending the litigation [by attacking the plaintiff’s public interest standing at a preliminary stage], and I think it bodes well for legality … for unconstitutional laws being challenged in court — as they should be — and those challenges not getting derailed by these preliminary, and in some cases fully tactical, skirmishes on standing,” Feder said.
In light of the court’s ruling on standing and its costs award, he suggested, “going forward, attorneys general are going to have to be circumspect in bringing unmeritorious challenges to standing because the cost consequences, by that logic, ought to be similar to those consequences the attorney general of B.C. is faced with here.”
Feder told The Lawyer’s Daily the judgment is salutary for achieving public interest standing in constitutional court challenges to laws (and also in judicial reviews of state action) in that the top court rejected the very restrictive approach followed by the B.C. Supreme Court below (which denied standing to CCD), while it also sheds light on the public interest standing test and its application, under the leading decision Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, which test asks: whether there is a serious justiciable issue; whether the would-be public interest litigant has a real stake or genuine interest in the case’s outcome; and whether the litigation is a reasonable and effective means of bringing the issue forward.
Aubin Calvert, Hunter Litigation Chambers
Aubin Calvert of Vancouver’s Hunter Litigation Chambers, counsel for the intervener Trial Lawyers Association of British Columbia, said the ruling is significant for not taking up the appellant attorney general’s invitation to build into the Downtown Eastside test a requirement that a would-be public interest litigant must satisfy the court that it is a suitable “proxy” for a directly-affected individual plaintiff, and able to “compensate” for the absence of such a plaintiff.
That rejected approach “would have seen the addition of procedural and evidentiary hurdles to the already challenging field of constitutional litigation and, as the court ultimately found, those new hurdles would have done nothing to advance the purposes of standing law. Instead, it would undermine access to justice,” Calvert observed.
Calvert said the court gave “useful and important” new guidance by unpacking the requirement in the Downtown Eastside framework that constitutional issues should only be litigated in a “sufficiently concrete and well-developed factual setting.”
“First, what constitutes a ‘sufficient’ factual setting must be tailored to the nature of the issues in the case; not every constitutional case is equally dependent on individualized facts,” she noted. “Second, the approach must be sensitive to the stage of the litigation at which standing is challenged, bearing in mind that the question of standing may be revisited at trial, even if a preliminary challenge fails.”
Tim Dickson of Vancouver’s JFK Law, who with Jason Harman represented the intervener West Coast Legal Education and Action Fund, said the court firmly rejected B.C.’s argument that a directly affected individual acting as plaintiff is vital in this case for two main reasons. “First, while a well-developed factual setting will usually be required to adjudicate such claims, a directly affected plaintiff is not required in order to do so as public interest litigants can establish such facts by calling directly affected witnesses. And second, restricting public interest standing in this way would reduce access to justice and the courts’ vital role in reviewing the constitutionality of legislation.”
Dickson said the judgment “is undoubtedly a huge relief” to CCD and the many public interest organizations who intervened in the appeal, as well as to other organizations that bring constitutional claims to protect the rights of their constituents. “Mounting a constitutional challenge to legislation is, in most cases, an enormous undertaking,” he pointed out. “It is extremely difficult — often practically impossible — for an individual to bring. Indeed, it is a huge challenge for most public interest organizations,” he remarked. “West Coast LEAF is facing a similar challenge [to its public interest standing] in a constitutional challenge it is supporting involving access to legal aid for single mothers in family law proceedings. Hopefully this judgment has the effect of deterring governments across the country from needlessly challenging the standing of public interest organizations in constitutional litigation and instead encourages the parties and the courts to focus on the substantive issues in the case.”
Fahad Siddiqui, Norton Rose Fulbright Canada LLP
Fahad Siddiqui of Toronto’s Norton Rose Fulbright Canada LLP, counsel for the intervener Federation of Asian Canadian Lawyers and Canadian Muslim Lawyers Association, hailed the ruling as “a resounding victory for communities affected by unconstitutional legislation, and charitable and not-for-profit organizations.”
“The court specifically rejected the government’s proposed requirement for a directly affected plaintiff, and accepted that such requirements would thwart access to justice,” Siddiqui explained. “The court rightly took a pragmatic approach, and the decision is a strong reminder to governments and courts that they should be alive to the practical realities preventing many potential plaintiffs from bringing, and carrying on, constitutional litigation.”
In addition to the interventions from the attorneys general of Canada, Ontario, Albert and Saskatchewan, the appeal attracted submissions from 18 advocacy groups, and coalitions of advocacy groups, who litigate (frequently using lawyers’ pro bono or discounted legal work) on the gamut of public interest matters in areas including public health, equality rights, animal rights, civil liberties, prisoners’ rights, Indigenous rights, environmental law, constitutional law, refugee law, personal injury law, tenant rights and the interests of the disability, racialized and LGBTQ communities.
Counsel expressed hope that the court’s judgment and costs award will deter federal and provincial attorneys general across Canada from tactically contesting advocacy groups’ public interest standing to challenge constitutionally suspect laws, as a way to forestall, or delay, court determinations on the merits.
Had the court endorsed the restrictive approach to public interest standing advocated by B.C. it would likely have been a deterrent to pro bono counsel whose aim is to try to make positive changes in the law, and not to spend years tied up in pointless procedural wrangles, Feder noted.
“This decision sends a strong signal that procedural barriers should not be erected to unnecessarily prevent, or delay, access to justice in meritorious public interest cases,” said Kaitlyn Mitchell, who with Scott Tinney represented the intervener, Animal Justice.
“This is important to Animal Justice and other public interest groups, given the very real risk of unnecessary motions, including preliminary challenges to standing, that can drain precious resources that would be better spent on advancing the substance of the claim.”
Cheryl Milne, who with fellow University of Toronto law professor Kent Roach represented the intervener David Asper Centre for Constitutional Rights, said the court has unanimously “reaffirmed a progressive and flexible approach to public interest litigation that should assist vulnerable people who might otherwise have difficulty bringing forward claims that their rights have been abused.”
Milne said the court “clearly understood that the CCD competently represented the perspectives of people with mental disabilities who face serious barriers to bringing litigation before the courts.”
She noted that although Chief Justice Wagner states that access to justice, and the legality principle (i.e. that people must be able to challenge government actions), are not to be given more weight than others in the public interest test, “those principles permeate all of the factors that a court must consider when deciding whether to grant public interest standing. The court has put flesh on the bones of the decision in the Downtown Eastside case and made it clear that courts need to look at all the factors at play rather than placing undue emphasis on one.”
Milne added that the court listened to the submissions of the CCD and the Asper Centre, that relying upon class action litigation as a more effective means of bringing forward the claim in this case is questionable.
The court notes that class actions are “rife with unknowns,” Milne remarked, including the fact that class actions’ primary focus is on damages “and not always the systemic issue raised by a public interest litigant.”
Mariam Shanouda, ARCH Disability Law Centre
ARCH Disability Law Centre lawyer Mariam Shanouda, co-counsel with Gabriel Reznick, Jessica De Marinis and Roberto Lattanzio for the intervener Coalition of Specialty Legal Clinics, called the outcome of the case “a victory for specialty legal clinics and for public interest organizations like the Council of Canadians with Disabilities. Persons from marginalized communities, including persons with disabilities, persons who are low-income, persons from racialized communities, and persons who are precariously housed, experience barriers when attempting to access the courts,” she noted. “Public interest standing is an avenue that can provide this access to the courts.”
Shanouda said Downtown Eastside was positive in that it delineated the test for public interest standing, and emphasized that the test had to be interpreted broadly and in a purposive manner. “The importance of this ruling lies in the fact that it confirmed that the Downtown Eastside analysis is still the governing authority on the test for public interest standing.”
“Overall the decision confirmed the advancements made in Downtown Eastside and prevented the test from becoming more restrictive,” she added. “The Supreme Court echoed its own sentiments in Downtown Eastside that denial of standing is a blunt instrument which should be used cautiously and should not be used where other litigation management strategies can be just as efficient and as effective. In other words, the issue of standing should be raised as a last resort.”
Shanouda highlighted the court’s disapproval of the B.C. chamber judge’s distinction between physical disabilities and mental health disabilities in relation to the CCD’s genuine interest in pursuing the litigation, a distinction which the top court called “unhelpful” and “unfounded.”
“The distinction made by the chambers judge demonstrated a very restrictive and narrow application of the branch of the test that speaks to a ‘genuine interest’: i.e. that the CCD could only really establish ‘genuine interest’ in matters where the rights of persons with physical disabilities were (allegedly) violated but not where the rights of persons with mental health disabilities were at stake.”
Anita Szigeti, Anita Szigeti Advocates
Anita Szigeti of Toronto’s Anita Szigeti Advocates, who with Maya Kotob and Sarah Rankin represented the intervener Empowerment Council, Systemic Advocates in Addictions and Mental Health, said her client intervened to underscore the unique and complex vulnerabilities and access to justice barriers that persons with lived experience of serious mental health issues face generally, but especially when they are detained involuntarily in psychiatric facilities or treated forcibly against their will with powerful psychiatric medications.
“On the facts of this case, it was unreasonable for the Crown to insist on individual plaintiffs when their evidence is not necessary in the event a public interest litigant can establish a concrete factual setting for the Charter challenge,” Szigeti said. “As the court recognized in this case and in Downtown East Side, the ‘practical prospects’ of such plaintiffs bringing the matter to court ‘should be considered in light of the practical realities, not theoretical possibilities’.”
Toronto’s Andrew Bernstein of Torys LLP, co-counsel with Emily Sherkey and Alexandra Shelley for the intervener Canadian Civil Liberties Association (CCLA), called the decision “an incremental move towards access to justice in assessing standing. Downtown Eastside broke from the formalism of the Borowski test [for public interest standing] with a focus on legality, that is government’s obligation to comply with the law, and the Constitution in particular. This decision reinforces that access to justice is a key consideration, although the court was careful to say it was ‘a’ key consideration not ‘the’ key consideration in assessing standing — and the court says clearly and unambiguously that it’s not necessary to have a ‘directly affected’ plaintiff, which is an argument that public interest groups like CCLA face often in trying to bring cases before the court.”
Andrew Bernstein, Torys LLP
Bernstein highlighted the chief justice’s statement that “constitutional litigation is already fraught with formidable obstacles for litigants” — with its implication that courts should not impose more of them.
Bernstein said the decision’s impact is to invite public interest organizations to bring legitimate and resourced claims to hold the government to account. “It is also a pretty clear signal to governments to stop challenging standing at an early stage, on the speculative basis that there will not be a sufficient factual record at trial,” he advised, highlighting the chief justice’s statement that “when standing is challenged at a preliminary stage, the plaintiff should not be required to provide trial evidence.”
While the decision doesn’t go much beyond Downtown Eastside, it does provide useful guidance about what is not necessary, i.e. a directly affected co-plaintiff, and what is, i.e. a plan to establish a factual context at trial, Bernstein said.
He added said that the court’s guidance on how to establish that there’s a sufficient factual context for the public interest litigation is new and “extremely useful.”
“Everyone should read it carefully before they commence a public interest case,” he said. “Lawyers should think about this very carefully — and start gathering evidence — before they start their public interest claims, so that they are ready for the motion to dismiss for lack of standing if it gets brought. Worst-case scenario, you get ahead of yourself a little bit and are a prepared for trial earlier than you might otherwise be. It’s never going to be a wasted effort.”
For governments and their counsel, the court has sent “a strong signal to get on with things on their merits,” Bernstein suggested.
At press time, the attorney general of B.C. had not yet provided comment to The Lawyer’s Daily.
Noel Busse, a spokesperson for the intervener attorney general of Saskatchewan, said in a brief statement that “Saskatchewan supports access to justice and the ability to legally challenge the constitutionality of legislation and government action. … The Supreme Court has provided further guidance on the test for public interest standing in this case, which balances the many interests which are engaged.”
The case, argued before the Supreme Court last January, arose about six years ago. The CCD succeeded below in overturning at the B.C. Court of Appeal a 2020 B.C. Supreme Court decision that summarily dismissed the CCD’s constitutional challenge to a B.C. law authorizing non-consensual psychiatric treatment for involuntary patients.
The appellant attorney general argued at the Supreme Court of Canada that the B.C. Court of Appeal articulated “a new approach” to the Downtown Eastside multifactored test for public interest standing that gave too much weight at the outset to access to justice and the principle of legality, over other valid countervailing concerns such as the importance of properly allocating scarce judicial resources and screening out “the mere busybody.”
According to the attorney general’s written argument, the B.C. Court of Appeal, “in effect, dispensed with the need for a ‘sufficiently concrete and well-developed factual setting’ required by Downtown Eastside, finding that ‘systemic’ constitutional challenges do not necessarily require an individual plaintiff — or even the specific factual context of an individual’s case” — i.e. such challenges can effectively be adjudicated in a factual vacuum or without any factual foundation, based on reasonable hypotheticals.
Chief Justice Wagner held that applying the Downtown Eastside framework to the case at bar, CCD raises a serious issue: the constitutionality of laws that implicate the Charter rights of people with mental disabilities. “Though the organization’s case is still at the pleadings stage, the issue is justiciable,” he held. “Material facts are pleaded which, if proven, could support a constitutional claim. The organization has a genuine interest in the issues, and in the challenges faced by people with mental disabilities.”
The claim is also “a reasonable and effective means” of bringing the matter before the courts, he ruled. “The case does not turn on individual facts, and it can be inferred that a sufficiently concrete and well‑developed factual setting will be forthcoming.”
Moreover, the organization’s claim “undoubtedly raises issues of public importance that transcend its immediate interests. Granting public interest standing in this case will promote access to justice for a disadvantaged group who has historically faced serious barriers to litigating before the courts,” he concluded.
The chief justice said the principles of legality and of access to justice do not merit particular weight in the Downtown Eastside analysis. “The flexible, discretionary approach to public interest standing must be guided by all the underlying purposes of standing, and no one purpose, principle or factor takes precedence in the analysis,” he explained.
Nor is a directly affected co‑plaintiff required for a public interest litigant to be granted standing, “as long as the latter can establish a concrete and well‑developed factual setting.”
In this case, remitting the case to a court below would only cause further delay, the chief justice said. “Weighing all of the Downtown Eastside factors cumulatively, flexibly and purposively, public interest standing should be granted to the organization,” he concluded.
The chief justice explained that legality and access to justice are primarily considered in relation to the third Downtown Eastside factor, which asks whether a proposed suit is a reasonable and effective means of bringing an issue before the court. “To answer the question, courts may consider the plaintiff’s capacity to bring the claim forward, whether the case is of public interest, whether there are alternative means to bring the claim forward, and the potential impact of the proceedings on others,” he said. “Though courts are encouraged to take access to justice and legality into account, they should not turn these considerations into hard and fast requirements or freestanding, independently operating tests.”
Moreover, to evaluate a litigant’s capacity to bring a case forward, “courts should examine the plaintiff’s resources, expertise, and whether the issue will be presented in a sufficiently concrete and well‑developed factual setting. Though courts cannot decide constitutional issues in a factual vacuum, public interest litigation may proceed without a directly affected plaintiff,” the chief justice stipulated. “A statute’s very existence, for instance, or the manner in which it was enacted, can be challenged on the basis of legislative facts alone. A concrete and well‑developed factual setting can also be established by calling affected, or otherwise knowledgeable, non‑plaintiff witnesses.”
The chief justice said that what will suffice to show that a sufficiently concrete and well‑developed factual setting will be forthcoming at trial depends on the circumstances. “What may satisfy the court at an early stage of the litigation may not suffice at a later stage,” he explained. “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, but where a case is so dependent, an evidentiary basis will weigh more heavily in the balance.”
He elaborated that in assessing whether a sufficiently concrete and well‑developed factual setting will be produced at trial, a court may consider the stage of the proceedings, the pleadings, the nature of the public interest litigant, the undertakings given, and the actual evidence tendered. “If 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. However, a mere undertaking or intention to adduce evidence will generally not be enough to persuade a court that an evidentiary basis will be forthcoming.”
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