Chipping away at Cost Barriers: A Comment on the Supreme Court of Canada's Trial Lawyers Decision
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CHIPPING AWAY AT COST BARRIERS: A COMMENT ON THE
SUPREME COURT OF CANADA'S TRIAL LAWYERS DECISION
Paul Vayda*
INTRODUCTION
Cost barriers to litigation impede free access to our justice system. In
its recent decision, Trial Lawyers Association of British Columbia v British
Columbia (Attorney General), the Supreme Court of Canada (the Supreme
Court) had an opportunity to expound upon cost barriers.' At issue were the
hearing fees charged by the British Columbia Supreme Court.2 The Supreme
Court struck these hearing fees down. In doing so, Chief Justice McLachlin,
writing for the majority, made a number of significant comments about the
court, legal fees, and importantly, access to justice.
Before this decision, this author attended a colloquium where Chief
Justice McLachlin addressed the attendees-a group of lawyers, politicians,
judges, academics, and journalists-and spoke about middle class access to
justice. We heard a determined Chief Justice, who noted that,
the middle class cannot hope to pay legal fees that average
$338 per hour, leaving them little option but to represent
themselves in court or go away empty-handed. Do we have
adequate access to justice?.. .It seems to me that the answer is
no. We have wonderful justice for corporations and for the
wealthy. But the middle class and the poor may not be able to
access our justice system.3
As reported by the Globe and Mail, Chief Justice McLachlin also noted the
monopoly lawyers hold over the justice system. The current lack of access to
justice, she argued, endangers public confidence in the justice system and
social stability: [w]e can draft the best rules in the world and we can render
* Paul Vayda recently received his LL.M. at Darwin College, University of Cambridge, and
has lectured in contracts and access to justice at the University of Windsor. He is presently
lecturing in torts and legal process at Osgoode Hall. Professionally, he has been the managing
lawyer at Unifor Legal Services Plan in Oakville since 1986, primarily practicing litigation.
' 2014 SCC 59, 375 DLR (4th) 599 [Trial Lawyers].
2Ibid at para 1.
3 Kirk Makin, Access to Justice Becoming a Privilege of the Rich, Judge Warns, The Globe
and Mail (10 February 2011), online: <www.theglobeandmail.com/news/national/access-to-
j ustice-becoming-a-privilege-of-the-rich-j udge-wams/article565873/>.
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Chipping away at Cost Barriers: A Comment on the Supreme Court of Canada's Trial Lawyers Decision
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