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Uneven scales of justice holding money

Pandemic fee waivers: One size doesn’t fit all

Wednesday, September 22, 2021 @ 1:22 PM | By Bo Kruk

Bo Kruk %>
Bo Kruk
Going to court costs. From the cost of representation to the loss of time in the abstract sense, accessing the modern justice system has a cost on the users. However, one of the often-ignored costs for justice system participants are court fees. These are relatively smaller costs (sometimes as low as $25) when compared to the sums of money generally involved in litigation. For many of the less privileged in society these can be substantial sums of money — one need only look at victim fine surcharges in the criminal sphere for examples (R v. Boudreault 2018 SCC 58).

Court fees in the civil context have been a feature of the common law tradition for centuries. In a poignant critique of the complex and cumbersome process facing litigants in need, UBC Allard School of Law professor Shannon Salter shows just how far parties must go to have the court fees waived at the British Columbia Supreme Court (Court Fee-waiver Processes in Canada: How Wrong Assumptions, Change Resistance and Data Vacuums Hurt Vulnerable Parties).  

The B.C. Supreme Court uses the term “indigency” to refer to the required forms, making the process onerous from the first step. Once a party is finally able to find the required documents, a litigant must navigate a package of 23 pages of court forms. In addition to information about income and dependents, the affidavit includes an exhibit describing the applicant’s education and employment history as well as an additional exhibit describing their workplace skills. Once the forms are completed, the applicant must draft an order to waive fees as well as a requisition for a court master or judge to hear the application for the order to waive the fees. Appearing in open court requires all the work normally associated with any other appearance.

Salter uses the backdrop of the B.C. Supreme Court process to highlight how this process is anathema to a system that seeks to provide access to justice. If we are serious about the prospect of providing access to justice for all, barriers must be reduced, not maintained. A recent series of decisions out of Alberta in the matter Dmyterko v. Nissan Canada (2021 ABQB 219, 2021 ABQB 286, 2021 ABQB 405, and 2021 ABQB 996, respectively) underscores Salter’s premise and demonstrates how the COVID-19 pandemic has provided a powerful set of circumstances to illustrate how the current one-size-fits-all approach to the access to justice crisis does not work.

The plaintiff, Janice Dmyterko, filed a number of statements of claim that were the subject of the Albertan procedure for Apparently Vexatious Applications or Proceedings. A ministerial order from March 2020 waiving court fees because of the pandemic meant that she did not incur any fees to initiate her suits (2021 ABQB 219 at paras. 1-2). The March 2021 decision focused on nine suits by Dmyterko with defendants ranging from Nissan Canada to celebrities like George Clooney and Brad Pitt (2021 ABQB 219 at paras. 3-46). The court found the filings met the necessary threshold for the review procedure used in Alberta.

Upon reviewing the pleadings and noting three common problems (inadequate pleadings, extraordinary claims and excessive or impossible remedies — 2021 ABQB 219 at paras. 47-69), Dmyterko was given the opportunity to provide written submissions that addressed these issues in her claims. She did not make any submissions and her claims were struck out (2021 ABQB 286 at para. 3).

The court found that since September 2020, Dmyterko had filed 14 statements of claim with defendants similar to those in the matters from the March 2021 decision. Subsequently, the court cancelled her fee waiver (2021 ABQB 286 at paras. 5-12) since it was found that she had abused the fee waiver process. In the April 2021 decision striking out her claims, the Court of Queen’s Bench remarked about the role of fee waivers in the province. The court made a rather striking comment that highlights the need for a comprehensive reform of court processes. Fully 41.3 per cent of the statements of claim that were struck out since the institution of the Albertan procedure for Apparently Vexatious Applications or Proceedings were filed with no cost because of a fee waiver (2021 ABQB at para. 8).

Dmyterko’s case is an example of the significant volume of cases remarked upon by the court that illustrate how a blanket approach to fee waivers costs the system time and resources.

The court’s remarks while adjudicating Dmyterko’s case shows that a one-size-fits-all approach to solving issues about the ability to access justice is far from ideal. Some will benefit, but without seriously considering the system as a whole, problems will persist. While pandemic related measures, such as fee waivers, have been well intentioned, they have focused on the short term rather than a long-term solution to existing problems. This finger-in-the-dike approach only pushes problems further down the road without any meaningful resolution. After all, when we take this approach of putting a finger in the dike of the access to justice crisis, there is only one important question. When will we run out of fingers?

Called to the bar of Ontario, Bo Kruk is an LLM student at the University of Ottawa. His current research interests focus on the power of technology in the legal centric world of today.

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