Written by: Daniel McBain
On April 1, 2021, the Supreme Court of Canada granted leave to appeal in from the B.C. Court of Appeal judgment in Council of Canadians with Disabilities v. British Columbia (Attorney General), 2020 BCCA 241.
This case raises important issues around the test for public interest standing in complex constitutional cases, particularly where there are no individual claimants.
The Council of Canadians with Disabilities (CCD) is a not-for-profit association founded to advance the rights of people with disabilities, with significant experience in related law reform and litigation. Along with two individuals, it filed a claim alleging that the provisions of B.C.’s Mental Health Act and related legislation violated ss. 7 (life, liberty and security of the person) and 15 (equality) of the Charter. Outside of the Act, individuals are entitled to consent to medical treatment unless the opposite is demonstrated, in which case healthcare providers must seek consent from a representative, who may be appointed by the person in advance, appointed by the court, or chosen temporarily by the healthcare provider. By contrast, individuals detained under the Act are deemed to consent to treatment and a representative may not make determinations about consent to treatment.
The two individual claimants withdrew after the Attorney General (AGBC) requested their medical records. The CCD filed an amended claim removing references to the personal experiences of the two individuals, replacing them with general allegations about the impact of forced treatment.
The AGBC brought a summary trial application seeking an order that the action be dismissed on the basis that the CCD did not have standing to bring the claim. The B.C. Supreme Court granted the application and dismissed the claim. The Court of Appeal allowed an appeal and remitted the application to be reconsidered by the BCSC.
Law
In most cases, an individual must have a direct interest in a matter to bring a claim. As an exception, courts developed public interest standing. Public interest standing allows litigants without a direct interest to bring cases respecting public interest matters in service of the legality principle: the idea that state action must be based in the law, and there must be a reasonable and effective means of challenging the legality of state action.
The leading case is Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45. There, the Court developed the factors for public interest standing, which requires examining:
(1) Whether the case raises a serious justiciable issue;
(2) Whether the plaintiff has a genuine interest in the litigation; and
(3) Whether the case is a reasonable and effective means to bring the challenge to court.
As SWUAV explains, these factors are not rigid criteria and must be applied in a flexible manner consistent with the underlying policy concerns and the purpose of public interest standing. These are concerns about allocating scarce judicial resources, with a focus on ensuring that “busybodies” are not wasting the court’s time; ensuring that there are truly contending points of view, in order to ensure that court benefits from parties that vigorously advance their causes; and respect for the proper judicial role, including with regard to the nature of the issues courts may address and their institutional capacity to do so.
The main impact of SWUAV was to liberalize the third factor. Previously, courts occasionally stated that the case must be the only reasonable and effective means to bring the challenge. After SWUAV, the case in question must only be a reasonable and effective means, having regard to relevant matters like the plaintiff’s capacity to pursue the claim effectively, the public interest in the case and whether it may provide access to justice for disadvantaged individuals, the availability of other realistic means that would be preferable, and the impact of the proceeding on the rights of others who may be equally or more directly affected.
The Initial Decision
The BCSC held that the first and third factors were not met, and the second only weakly. Accordingly, the CCD did not have standing.
The Court found that there was no serious justiciable issue because of the “lack of a particular factual context of an individual’s case” (para. 37). Without the individualized facts, there was no basis on which the Court could find any rights violations. With respect to the s. 15 claim in particular, the BCSC held that “[a]n 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”: quoting Canadian Bar Assn. v. British Columbia, 2008 BCCA 92 at para. 51.[1] Without individual facts, it was impossible to conduct that comparative analysis.
With respect to the second factor, the Court found that it was met only weakly because while the CCD advocated for people with disabilities, its “history of involvement in cases shows it is more focussed on disability (particularly physical disability) and far less focussed on mental health” (para. 44). Further, unlike other cases involving public interest standing, it would not have individual litigants alongside it to ensure that the perspectives presented to the court were complete.
Finally, the Court found that the case was not a reasonable and effect means because:
(1) Although the CCD gave evidence that it would lead a robust evidentiary record, and the BCSC acknowledged they had sufficient resources to pursue the claim, the BCSC was not satisfied there would be a concrete and well-developed factual setting to decide the constitutional issues;
(2) The BCSC was not persuaded the CCD could “fairly represent the interests of all of those who may be affected by the impugned provisions”, given that its advocacy experience was primarily as an intervenor with only one case as a litigant, it had performed little advocacy for those with mental illness, and there was a concern that the CCD’s position may not be shared by all those affected; and
(3) The BCSC rejected the CCD’s assertion that it would be difficult for individuals with mental health challenges to maintain a challenge to the impugned laws, referring to 7 cases raising issues around mental health detention and/or compulsory treatment over the course of approximately 30 years brought in B.C., Manitoba, and Ontario. The CCD gave evidence that in B.C., there were approximately 20,000 involuntary admissions under the Mental Health Act. The BCSC did “not accept that if funded and supported by the CCD, none of those patients would be unwilling or unable to participate in the constitutional challenge” (para. 95).
Weighing these factors cumulatively, the BCSC held that “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” (para. 98).
The Appeal
As the decision below was a discretionary decision, the issue for the Court of Appeal was whether 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.
On the law, the Court of Appeal emphasized the primacy of upholding the principle of legality and facilitating access to justice, stating:
[79] … [T]he 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.
Other concerns can also be addressed by other litigation management tools, such as demands for particulars (para. 88).
The Court of Appeal held that the BCSC erred in finding that there was no serious justiciable issue. The constitutionality of legislation is always justiciable (para. 105), and the claim here contained detailed, concrete allegations about the impacts of the impugned provisions on individuals subject to involuntary treatment (paras. 110-112). The absence of an individual claimant was not fatal: the CCD can lead evidence of the effects of compulsory treatment from directly affected witnesses and expert witnesses (para. 113).
The Court of Appeal’s finding of error on this part was sufficient to undermine the decision below. The Court of Appeal went on to comment that the decision also did not comport with the flexible, purposive analysis required by SWUAV, and that it was incorrect to suggest that it is always preferable that a public interest organization assist an individual rather than seek standing in its own right (para. 115).
While the Court of Appeal’s decision was on reserve, three individuals brought a class action pursuing similar relief and a new action was brought by one of the original co-plaintiffs. Accordingly, the application was remitted for reconsideration in light of those new developments and the Court of Appeal’s reasons.
Going Forward
While the error found by the Court of Appeal is relatively narrow, at the heart of the disagreement between the courts are two broader issues with which the Supreme Court of Canada will have to grapple.
First, there is a concern about the proper role of courts. The BCSC decision is consistent with the traditional view of courts as arbiters of disputes between directly affected persons, adjudicating those cases on their individual facts, and taking small, incremental steps forward in line with traditional common law reasoning. The expanded role for judges in the age of the Charter and related comprehensive, systemic challenges to legislation can be at odds with that traditional view. The Court of Appeal, in emphasizing a flexible, purposive approach that gives additional emphasize to the principle of legality and the need to provide access to justice, ensures that the law of standing develops in line with that expanded role.
Second, and related, is a concern about public interest groups overriding the voices of those whose interests they claim to advance. This is a much thornier issue: how can courts ensure that special interest organizations do not speak over vulnerable individuals? Cases without individual litigants in particular may highlight this concern. However, we suggest that such cases do not differ substantively from those where public interest groups bring cases alongside individuals. The ability of a public interest group to find one or two individual litigants does not meaningfully ensure that they are acting in the interests of all those whose rights they ostensibly seek to vindicate. Ultimately, this may be a concern to be dealt with through other litigation tools, including permitting intervenors to bring other perspectives before the courts.
Footnotes:
[1] This is wrong. Comparator groups do not form a necessary part of the analysis under s. 15 of the Charter: Withler v. Canada (Attorney General), 2011 SCC 12. Instead, courts must look at whether there is a distinction based on an express or analogous ground that perpetuates, reinforces or exacerbates disadvantage, whether because the legislation in issue does so directly, or there is a disproportionate impact: Fraser v. Canada (Attorney General), 2020 SCC 28 at paras. 50-55. This error was noted obliquely by the Court of Appeal at para. 106.