Directly affected plaintiffs not necessary to challenge BC law on Charter grounds: SCC

“The case came about because some courts – including the trial court, in our case – have been very rigid in their view that challenges must be brought by affected individuals, despite whatever barriers they face, no matter how marginalized or disadvantaged they may be, and no matter how unrealistic the prospect of a challenge brought by an individual is.”

The CCD is a non-profit organization which advocates for the rights of people living with disabilities. Along with two individual plaintiffs, the CCD challenged BC’s mental health legislation, arguing it infringed ss. 7 and 15(1) of the Charter.

The CCD’s co-claimants, who had been involuntarily given psychiatric treatment, dropped out of the litigation. The CCD amended its claim and sought public interest standing to continue the action. The AG argued the CCD lacked standing, applied to have its claim dismissed and was initially successful. But the Court of Appeal sent it back to the BC Supreme Court for fresh consideration. The AG then appealed to the SCC.

A primary issue before the court was how, without an individual co-plaintiff, a party seeking public interest standing can demonstrate it will present the claim in a “sufficiently concrete and well-developed factual setting,” wrote Chief Justice Richard Wagner in the reasons.

The SCC set out the three-part test for public interest standing in the 2012 decision, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society. Those seeking it must show they have advanced a “serious justiciable issue.” They must have a “genuine interest in the issue.” And, all circumstances considered, the proposed suit must be a “reasonable and effective means of bringing the issue before the courts.”

Whether the plaintiff has the ability to present the issue in a “sufficiently concrete and well-developed factual setting” is among the court’s considerations when determining whether the proposed suit is a “reasonable and effective means of bringing the issue before the courts.” The AG argued that because the CCD lacked an individual plaintiff, it could not provide this factual setting and therefore should be denied standing.

The AG told the court that, without an individual plaintiff, an applicant for public interest standing should need to explain the absence of such a plaintiff, show how it can serve as a suitable proxy for directly affected plaintiffs, and specifically demonstrate how it will provide a well-developed factual context “that compensates for the absence of a directly affected plaintiff.”

Justice Wagner said the AG’s requirements were too rigid. Directly affected plaintiffs are not vital in establishing a sufficient factual setting because public interest litigants can call them as witnesses. Also, the AG’s strict requirements could erect obstacles for access to justice. Litigants already face “formidable obstacles” in constitutional litigation and raising “unnecessary procedural hurdles” would “needlessly deplete judicial resources.” In Downtown Eastside, the court was correct that the presence of directly affected litigants was a factor, not a necessity, in the discretionary balancing, said Justice Wagner.

“It's not always possible for an individual to be involved,” says Elin Sigurdson, counsel for the intervenor, the BC Civil Liberties Association. “And what an organization does, in the context of public interest standing, is it facilitates access to justice. It means that questions that might otherwise not be able to be pursued by individuals can be heard by the court.”

The CCD satisfied the court that they would bring a “sufficiently concrete and well-developed factual setting.” Because people with mental disabilities are closely involved with the organization’s work, it is reasonable to expect they can “adduce evidence from directly affected individuals,” said Justice Wagner.

The Empowerment Council is a public interest advocacy organization comprised of people with mental health and addiction issues and was among the case’s 22 intervenors. They wanted to show the court the severe harm caused by forcing people experiencing mental health issues to “carry the financial and human burden” of “complex, lengthy and difficult constitutional litigation,” says Anita Szigeti, counsel for the group. The process is retraumatizing and the release of their private psychiatric records is stigmatizing, she says.

“The court has certainly taken this point to heart as all this is reflected throughout the judgment.”

“We are grateful the court has recognized that there is no requirement for individual plaintiffs to participate in such litigation, where a suitable and appropriate public interest litigant can establish a sufficiently concrete factual basis,” says Szigeti, who is a Toronto-based expert on mental health and the law. “That can be done with the use of appropriate subject matter experts. This is an important result that ultimately will facilitate access to justice for vulnerable individuals, including and especially persons with psychiatric histories.”