510 THE ADVOCATE
VOL. 77 PART 4 JULY 2019
tution Act, 1867. As a result, hearing fees that deny people access to the
courts infringe the core jurisdiction of the superior courts.
33 The jurisprudence under s. 96 supports this conclusion. The cases
decided under s. 96 have been concerned either with legislation that purports
to transfer an aspect of the core jurisdiction of the superior court to
another decision-making body or with privative clauses that would bar
judicial review: Re Residential Tenancies Act, 1979, 1981 1 S.C.R. 714;
MacMillan Bloedel Ltd. v. Simpson, 1995 4 S.C.R. 725; Crevier v. Attorney
General of Quebec, 1981 2 S.C.R. 220. The thread throughout these cases
is that laws may impinge on the core jurisdiction of the superior courts
by denying access to the powers traditionally exercised by those courts.
36 It follows that the province’s power to impose hearing fees cannot
deny people the right to have their disputes resolved in the superior
courts. To do so would be to impermissibly impinge on s. 96 of the Constitution
Act, 1867. Rather, the province’s powers under s. 92(14) must be
exercised in a manner that is consistent with the right of individuals to
bring their cases to the superior courts and have them resolved there.
Access to justice, lack of cost effectiveness and lack of efficiency pose significant
challenges to our justice system. The Action Committee on Access
to Justice in Civil and Family Matters along with the Canadian Forum on
Civil Justice are proponents of fostering a strategic approach to reforms and
coordinating the efforts of all participants concerned with civil justice.
Cost, speed and efficiency need to be balanced against the principles of natural
justice to ensure the continued effectiveness of our justice system.
How to balance these considerations is a multi-factored problem that
requires input from all interested parties. Without consideration of the system
as a whole, cost-cutting measures could dramatically impact procedural
fairness principles that lie at the core of our system.
The new legislation in B.C. and the corresponding amendments to the
Supreme Court Civil Rules36 limiting the number of experts allowed to testify
in personal injury cases37 represent a direct intervention by the provincial
government into how our Supreme Court manages and resolves personal
injury cases. The changes to the rules were enacted unilaterally by the
provincial government without recommendation or approval of the rules
committee or the Chief Justice.38 Regrettably, the new legislation indicates
a willingness on the part of the current government to unilaterally address
cost and efficiency issues within our justice system with little regard for
1. Bill 20, Insurance (Vehicle) Amendment Act, 2018,
3rd Sess, 41st Parl, British Columbia, 2019 (assented
to 17 May 2019), SBC 2019, c 19.
2. RSBC 1996, c 231.
3. Bill 22, Civil Resolution Tribunal Amendment Act,
2018, 3rd Sess, 41st Parl, British Columbia, 2019
(assented to 17 May 2019), SBC 2019, c 17.
4. SBC 2012, c 25.