Supreme Court of Canada hears case that could revise the test for public interest standing

“Should those types of groups be able to sue on behalf of the people whom they represent?” he says.

At the first stage, Chief Justice of the B.C. Supreme Court Christopher Hinkson denied the CCD standing based on his cumulative weighing of the three factors from Canada (Minister of Justice) v. Borowski. While only “weakly” meeting the second factor, that the plaintiff have a genuine stake in the proceedings, Justice Hinkson found the CCD fell short on the first – that the action raise a serious justiciable issue – and the third – whether there is “another reasonable and effective way to bring the issue before the court.” On the justiciable-issue aspect, the CCD’s problem was that it lacked “a particular factual context of an individual’s case,” said the judge.

“The Chamber's Judge considered that our client… lacked a serious justiciable issue that it wished to present to the court,” says Feder. “The court reached that conclusion despite every academic who's ever looked at the Mental Health Act and written about it having concluded that it's unconstitutional, or at least constitutionally suspect.”

“In the Chambers Judge’s view, those opinions notwithstanding, there was no serious justiciable issue for the court to determine, in the absence of an individual affected by the Mental Health Act.”

But the Court of Appeal found Justice Hinkson had erred in his assessment of the first Borowski factor. The CCD’s claim “manifestly raises a serious justiciable issue,” said Justice Gail Dickson, who authored the decision she reached with Justices David Frankel and Joyce DeWitt-Van Oosten.

The view of standing evolved, from Justice Hinkson’s narrow focus on an individual plaintiff directly affected as a party to the action, to the Court of Appeal’s consideration of how evidence would be presented, the availability of witnesses and how the cases would be presented in an ultimate trial, says Katherine Booth, a partner in McCarthy Tétrault’s litigation group and counsel for the CCD.

“BC's insistence on individual plaintiffs or ‘facts’ ignores the lived reality of detained psychiatric inpatients who are often secluded, restrained, sedated and cannot access phones or lawyers,” says Anita Szigeti, a lawyer and expert in mental health and the law, who is acting for the intervenor, Empowerment Council. “Once they are discharged, they should not have to bear the burden of years-long complex litigation, when that process itself can be retraumatizing and stigmatizing.”

Attorney General of British Columbia v. Council of Canadians with Disabilities comes almost ten years after the SCC’s decision Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, which Feder says relaxed the test for public interest standing.

The Court of Appeal’s analysis was “totally consistent” with the SCC’s approach in Downtown Eastside Sex Workers, says Elin Sigurdson, counsel for the BC Civil Liberties Association, an intervenor.

“It was to look at the nature of the case that was in front of it, the nature of the plaintiff, the type of remedy that they were seeking and the types of facts and issues that would need to be in front of the court for that case to be made out,” she says.

The Court of Appeal’s ruling takes a “contextual, flexible and purposive approach” to the question of standing, Sigurdson says.

“This is a group of people who are marginalized. They're not people who can come forward on their own. There's all sorts of limits on them. The particularities of a law are such that it's not the kind of thing that's going to necessarily be able to be brought from pleading through appeal by an individual.”

Sigurdson, an aboriginal and constitutional litigator at Mandell Pinder LLP in Vancouver, also represented the Downtown Eastside Sex Workers United Against Violence Society, in their SCC case.

The dispute over the CCD’s standing will have lasted over four years by the time the SCC renders its decision and Feder says he hopes the court will look at preventing that from happening in the future. He predicts the court will want to set some “concrete guidelines” on standing. While the Downtown Eastside Sex Workers decision, “has its virtues,” it contains a “very broad discretionary test,” he says.

“One of the challenges with broad discretionary tests is that they leave a lot of things to debate. And I suspect the court may look at that, and look at the experience of this case, and say that it needs to set clearer guardrails. It's not to say they need to restrict standing or to change the test. But they need to be setting something up that invites less debate and more rapid determinations of standing.”

“I think the court is going to be sensitive to the fact that there's an access to justice crisis in this country,” says Feder.

“It's an access to justice crisis that has been widely acknowledged and that has existed for a long time. And I think the court is going to be sensitive that public interest standing is one way of affording access to justice to marginalized people.”

According to a spokesperson, the B.C. Ministry of Attorney General was unable to comment because the matter is still before the courts.