British Columbia Court Services Branch Plans to Collect Hearing Fees Again

In a letter to the Trial Lawyers Association of British Columbia, the Assistant Deputy Minister, Court Services Branch, Ministry of Justice has advised that Court Services Branch intends to begin collecting hearing fees for civil matters set down for dates on or after August 1, 2016.  For the time being, the Court Services Branch will not collect fees for family matters.

As I wrote before, the majority of the Supreme Court of Canada held that the hearing fees in British Columbia were an unconstitutional impediment to access to the courts in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59. Although the Supreme Court of Canada said that a province could charge hearing fees, the majority found British Columbia's regime unconstitutional, by exempting only those who are impoverished. The exemptions did not exempt those for whom the fees created undue hardship, but were not impoverished.

I have some doubts as to whether the changes the Government has made to the exemptions will pass constitutional muster, but the only prediction I will make is that there will be further litigation on this issue.

Irrespective of whether the Government of British Columbia can legally collect hearing fees, there remains the public policy issue of whether this is the right thing to do. I wish those making this decision would read and take to heart Mr. Justice McEwan's eloquent discussion about access to the courts in the Supreme Court of British Columbia's decision in this case, Vilardell v. Dunham, 2012 BCSC 748.

In making this decision, the Government of British Columbia does not appear to be taking access to justice seriously.

Supreme Court of Canada Strikes down British Columbia’s Court Hearing Fees!

I don’t use exclamation marks often. This may be the first one in my blog. But I am very pleased with the decision of the Supreme Court of Canada released this morning in The Trial Lawyers Association of BritishColumbia v. British Columbia (Attorney General), 2014 SCC 59, holding that British Columbia’s court hearing fees are unconstitutional by effectively denying access to people to superior courts, contrary to section 96 of the Constitution Act, 1867.

Chief Justice McLachlin, writing for the majority, held that although the province may impose hearing fees under section 92 (14) of the Constitution Act, 1867, those fees must not impinge on the core jurisdiction of superior courts by effectively barring access. She wrote at paragraphs 35 and 36:

[35]                          Here, the legislation at issue bars access to the superior courts in yet another way ― by imposing hearing fees that prevent some individuals from having their private and public law disputes resolved by the courts of superior jurisdiction ― the hallmark of what superior courts exist to do. As in MacMillan Bloedel, a segment of society is effectively denied the ability to bring their matter before the superior court.

 

[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.

The Chief Justice of Canada also considered the underlying values implicit in our constitution of the rule of law:

[38]                          While this suffices to resolve the fundamental issue of principle in this appeal, the connection betweens. 96  and access to justice is further supported by considerations relating to the rule of law. This Court affirmed that access to the courts is essential to the rule of law in B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214.  As Dickson C.J. put it, “[t]here cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice” (p. 230).  The Court adopted, at p. 230, the B.C. Court of Appeal’s statement of the law ((1985), 20 D.L.R. (4th) 399, at p. 406):

   . . . access to the courts is under the rule of law one of the foundational pillars protecting the rights and freedoms of our citizens.  . . . Any action that interferes with such access by any person or groups of persons will rally the court’s powers to ensure the citizen of his or her day in court.  Here, the action causing interference happens to be picketing.  As we have already indicated, interference from whatever source falls into the same category.  [Emphasis added.]

As stated more recently in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, per Karakatsanis J., “without an accessible public forum for the adjudication of disputes, the rule of law is threatened and the development of the common law undermined” (para. 26). 

[39]                          The s. 96  judicial function and the rule of law are inextricably intertwined. As Lamer C.J. stated inMacMillan Bloedel, “[i]n the constitutional arrangements passed on to us by the British and recognized by the preamble to the Constitution Act, 1867 , the provincial superior courts are the foundation of the rule of law itself” (para. 37). The very rationale for the provision is said to be “the maintenance of the rule of law through the protection of the judicial role”: Provincial Judges Reference, at para. 88. As access to justice is fundamental to the rule of law, and the rule of law is fostered by the continued existence of the s. 96  courts, it is only natural that s. 96  provide some degree of constitutional protection for access to justice.

[40]                          In the context of legislation which effectively denies people the right to take their cases to court, concerns about the maintenance of the rule of law are not abstract or theoretical. If people cannot challenge government actions in court, individuals cannot hold the state to account ― the government will be, or be seen to be, above the law.  If people cannot bring legitimate issues to court, the creation and maintenance of positive laws will be hampered, as laws will not be given effect.  And the balance between the state’s power to make and enforce laws and the courts’ responsibility to rule on citizen challenges to them may be skewed: Christie v. British Columbia (Attorney General), 2005 BCCA 631, 262 D.L.R. (4th) 51, at paras. 68-9, per Newbury J.A.

The majority rejected the remedy of the British Columbia Court of Appeal to give discretion to the court to relieve those who are “in need” as well those who are “indigent” or “impoverished” from payment of the fees. The Chief Justice wrote:

[66]                          “Reading in” is a remedy sparingly used, and available only where it is clear that the legislature, faced with a ruling of unconstitutionality, would have made the change proposed:  Schachter v. Canada, [1992] 2 S.C.R. 679.  I am not satisfied that this condition is met here.  The legislature or Lieutenant Governor in Council has a number of options, from abandoning or modifying the hearing fee to changing the exemption provision.  Moreover, any expansion of the exemption provision will be at odds with the legislative objective of deterring use of the courts.  “Reading in” to cure the constitutional defect of the hearing fee scheme would defeat the purpose of the legislation.

[67]                          I would also note that modifying the exemption as suggested by the Court of Appeal might still not cure the problem; it is not clear that the term “or in need” will cover all litigants who cannot afford the hearing fee and other provisions might be required in order to avoid the onerous or undignified process of proving that one falls within the exception.

Mr. Justice Cromwell, while concurring in the result, did so on narrower grounds, holding that the fees exceeding the regulation powers of the Court Rules Act by defeating the common law rights of access to the courts.

Mr. Justice Rothstein dissented, and would have upheld the constitutionality of the fees.

The Supreme Court of Canada restored Mr. Justice McEwan’s decision in the Supreme Court of British Columbia, and the majority decision largely adopted his reasoning. His decision is an eloquent statement of the underlying principles of our democratic society. As I quoted in my previous post on his decision:

[346]     There are several fundamental concepts embedded in these observations. A society that is governed by democratic principles is a society governed by the rule of law, the principle that the law applies to every person including the government and its agents. The right to vote is an incident of citizenship, and the laws consequent upon the exercise of that franchise apply to everyone within the jurisdiction of Parliament or the pertinent legislature. The courts operate in “functional symbiosis” with the legislative branches of government in fulfilling the purposes of democracy. Self-government clearly implies a process that begins with the law as it is or as it has been made by legislatures and includes the elaborations of the courts. Those elaborations, even in mundane matters, inform and enrich the law. As Resnick and Curtis note, the court is a public forum in which individuals may call the powerful, including governments, to account, compelling them to meet as equals. In the courts, cases are determined without regard to the distributions of power or wealth and influence that otherwise prevail in society. For this reason each case must be given the attention it requires, however small it may appear to be. The law is replete with examples of apparently inconsequential disputes which led to major changes or developments in the law, the most famous of which is arguably Donoghue v. Stevenson, [1932] A.C. 562.

 

[347]     Seen in this light, a court whose most frequent litigant controls and limits its availability to those who seek its assistance or protection is a court whose essence as a forum within the continuum of democratic lawmaking is compromised. The court is a forum in which minority rights, the values of inclusiveness, equality and citizen participation, and the constitutional commitment to the inherent worth and dignity of the individual, spoken of in Sauvé, are publicly advanced and vindicated. To the extent that government imposes limitations to deter or prevent litigants from seeking recourse to the courts, it undermines a fundamental premise of civil society: that there will be a place for everyone for the peaceful resolution of contentious issues according to law. To the extent the government imposes limitations on those who seek redress against government itself, it undermines its own accountability and legitimacy, and the rule of law itself. This is how the court is a core functional attribute of democracy. The Supreme Court’s observation in Sauvé that there is “no place” for the theory that elected representatives may disenfranchise a segment of the population in a democracy built on principle of inclusiveness, equality and citizen participation, must logically apply to legislation having the effect of depriving people of the means of vindicating their rights through the courts.

I recommend reading his complete decision here.

I wrote about the Supreme Court of British Columbia decision here, and the Court of Appeal decision here.

Supreme Court of Canada Will Hear Appeal on Constitutionality of B.C.'s Court Hearing Fees

As I previously wrote here, Mr. Justice McEwan held in Vilardell v. Dunham, 2012 BCSC 748, that the hearing fees charged by the Province of British Columbia for hearings in the B.C. Supreme Court are unconstitutional. The represent an impermissible barrier to access to the courts.

The Court of Appeal reversed, holding that the fees were constitutional. I wrote about the Court of Appeal decision here.

On September 12, 2013, the Supreme Court of Canada granted leave to the Trial Lawyers Association of British Columbia  to be added as a party and for the appeal to be heard by the Supreme Court of Canada. The style of cause is The Trial Lawyers Association of British Columbia v. Attorney General of British Columbia (B.C.).

I read a memorandum indicating that Court Services will await the outcome before sending bills for hearing fees. This means that you may complete a trial, but be billed perhaps a year later for the hearing fees if the Supreme Court of Canada upholds the fees.

Does the Writing in Reasons for Judgment Have to be Original?

In a complex medical negligence case, Cojocaru v. BritishColumbia Women’s Hospital and Health Center, 2011 BCCA 192, the majority of the British Columbia Court of Appeal ordered a new trial on the basis that the trial judge copied large portions of the plaintiff’s lawyer’s submissions in his reasons for judgment. Most of the reasons were copied from the submissions, with 47 of the 368 paragraphs of the reasons for judgment in the judge’s own words. Two of the three judges in the Court of Appeal hearing the appeal held

The form of the reasons, substantially a recitation of the respondents’ submissions, is in itself “cogent evidence” displacing the presumption of judicial integrity, which encompasses impartiality.  We have concluded that a reasonable and informed observer could not be persuaded that the trial judge independently and impartially examined all of the evidence and arrived at his own conclusions.

The Plaintiff, who had been successful at trial, appealed to the Supreme Court of Canada.

In Cojocaru v. British Columbia Women’s Hospital andHealth Centre, 2013 SCC 30, the Supreme Court of Canada overturned the majority Court of Appeal decision.

Chief Justice McLachlin, writing for a unanimous Court, wrote that there is a presumption of judicial integrity and impartiality. The presumption that a judge is impartial may be rebutted, but the threshold is high. Copying, even without attribution, does not in itself rebut the presumption.

The Chief Justice noted that judgment-writing is different from other types of writing:

[32]                          To set aside a judgment for failure to attribute sources or for lack of originality alone would be to misunderstand the nature of the judge’s task and the time-honoured traditions of judgment-writing.  The conventions surrounding many kinds of writing forbid plagiarism and copying without acknowledgement.  Term papers, novels, essays, newspaper articles, biographical and historical tomes provide ready examples.  In academic and journalistic writing, the writer is faced with the task of presenting original ideas for evaluation by an instructor or by peers, or of engaging in principled debate in the press.  The task of judgment-writing is much different.  As Simon Stern puts it: 

Judges are not selected, and are only rarely valued, because of their gift for original expression. Just as most lawyers would rather present their arguments as merely routine applications of settled doctrine, yielding the same legal results that other courts have delivered repeatedly, judges usually prefer to couch their innovations in familiar forms, borrowing well-worn phrases to help the new modifications go down smoothly.  The bland, repetitive, and often formulaic cadences of legal writing in general, and judicial writing in particular, can be explained in large part by a commitment to the neutral and consistent application of the law….  [T]he effort to demonstrate that similar cases are being treated alike often finds its rhetorical manifestation in a penchant for analyses that have a déja lu quality — usually because the words have been read before.  This tendency, though visible throughout the legal system, is most pronounced at the trial level.  [Emphasis in original; p.1.]

(“Copyright Originality and Judicial Originality” (2013), 63 U.T.L.J. 1)

And again: 

It is hardly news that legal writing is embedded in a network of precedent, formulas, and boilerplate, that it reflects a general preference for the tried and true over the novel, and that it routinely depends on practices — verbatim repetition of others’ words, adoption of others’ prose and arguments — that might trigger infringement claims in an intellectual property dispute. [p. 6]

In practice copying helps judges give their reasons in a timely way. The Chief Justice wrote:

[37]                          Judges are busy.  A heavy flow of work passes through the courts.  The public interest demands that the disputes and legal issues brought before the courts be resolved in a timely and effective manner, all the while maintaining the integrity of the judicial process.  In an ideal world, one might dream of judges recasting each proposition, principle and fact scenario before them in their own finely crafted prose.  In reality, courts have recognized that copying is acceptable, and does not, without more, require the judge’s decision to be set aside.  While the theoretical basis on which the result is explained varies, this is the position in England, various commonwealth countries, the U.S. and in Canada.

Although copying does not by itself rebut the presumption of integrity and impartiality, Chief Justice McLachlin wrote at paragraph 49,

if the incorporation of the material of others would lead a reasonable person apprised of all the relevant facts to conclude that the trial judge has not put his or her mind to the issues and made an independent decision based on the evidence and the law, the presumption of judicial integrity is rebutted and the decision may be set aside.

She continued at paragraph 50,

[50]                          This does not negate the fact that, as a general rule, it is good judicial practice for a judge to set out the contending positions of the parties on the facts and the law, and explain in his or her own words her conclusions on the facts and the law.  The process of casting reasons for judgment in the judge’s own words helps to ensure that the judge has independently considered the issues and come to grips with them.  As the cases illustrate, the importance of this may vary with the nature of the case.  In some cases, the issues are so clear that adoption of one party’s submissions or draft order may be uncontroversial.  By contrast, in complex cases involving disputed facts and legal principles, the best practice is to discuss the issues, the evidence and the judge’s conclusions in the judge’s own words.  The point remains, however, that a judge’s failure to adhere to best practices does not, without more, permit the judge’s decision to be overturned on appeal.   

The Supreme Court of Canada found that the copying in this case did not rebut the presumption of judicial impartiality. Significantly the trial judge rejected some of the Plaintiff’s key submissions and made findings of fact against the Plaintiff, indicating that he had considered the submissions of the other parties.

The Supreme Court of Canada restored the trial judge’s decision in favour of the Plaintiff against one of the Defendant doctors, but for other reasons allowed the appeal from the trial judge’s finding that several other Defendants were negligent.

B.C. Court of Appeal Holds that Hearing Fees are Constitutional

[This decision was overruled by the Supreme Court of Canada, 2014 SCC 59. See my post on that decision here.]

On Friday, February 15, 2013 the British Columbia Court of Appeal in Vilardell v. Dunham, 2013 BCCA 65, set aside Mr. Justice McEwan’sruling in the Supreme Court of British Columbia that the hearing fees charged by the Province of British Columbia to the party setting down a trial for the time spent in court are unconstitutional. The trial judge had found that the fees were an impermissible impediment to access to justice. I wrote about Mr. Justice McEwan’s decision here.

In allowing the Attorney General of British Columbia’s appeal, Mr. Justice Donald agreed that the hearing fees would be an unconstitutional impediment were it not for the Court’s power to relieve parties from the hearing fees.

The Supreme Court Family Rules and the Supreme Court Civil Rules both contain provisions allowing the court to order that no fees are payable if the court finds that a person is impoverished. Although the rules of court in effect when Vilardell went to trial were different, they had a provision allowing the court to relieve a person who was “indigent” from paying the fees. The current rule 20-5 (1) reads:

(1)  If the court, on application made in accordance with subrule (3) before or after the start of a proceeding, finds that a person receives benefits under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act or is otherwise impoverished, the court may order that no fee is payable by the person to the government under Schedule 1 of Appendix C in relation to the proceeding unless the court considers that the claim or defence
(a) discloses no reasonable claim or defence, as the case may be,
(b) is scandalous, frivolous or vexatious, or
(c) is otherwise an abuse of the process of the court.
 

The Court of Appeal found that the relieving provision as drafted was too narrow. There are people who are not “indigent” or “impoverished” but for whom the hearing fees are not affordable. But the Court of Appeal held that by giving Rule 20-5 an enlarged interpretation to include persons “in need,” the Court would not have to strike down the hearing fees as unconstitutional. Mr. Justice Donald wrote at paragraph 41:

[41]         Granting an automatic exemption to recipients of employment or disability insurance suggests a more generous approach than was previously taken.  The enlarged scope of the exemption in Rule 20-5, then, should be read as saying “impoverished or in need”.  The phrase is intended to cover those who could not meet their everyday expenses if they were required to pay the fees.  Courts will continue to use their discretion to determine whether a litigant is impoverished or in need to the point that but for the hearing fees, they would be able to pursue their claim, thus qualifying for an exemption.

I don’t know if this is the final word for the courts. It may be that this decision will be appealed to the Supreme Court of Canada. But until then, the Government of British Columbia will be able to continue charge hearing fees, although the Supreme Court of British Columbia will have a broader power relieve from the payment of fees.

The Court of Appeal granted Ms. Vilardell’s application to be relieved from paying the hearing fees.

When I discussed Mr. Justice McEwan’s decision in my previous post, I wrote:

But irrespective of what the British Columbia Court of Appeal or Supreme Court of Canada may ultimately decide, his eloquent discussion of the fundamental role of our courts in civil society would be a good starting point of debate among British Columbians about how the Government of British Columbia funds not only British Columbia courts, but also other programs such as legal aid that are necessary for those who have the greatest need to get meaningful access to the courts. 

I hope that the Government of British Columbia will recognize that just because it is constitutionally permitted to charge hearing fees does not mean it is the right thing to do, or that it is good governance. It is neither.

British Columbia Court of Appeal 100th Anniversary

The British Columbia Court of Appeal is one hundred years old. There are a number of events scheduled through the year to celebrate the centenary, including special sittings as described in the British Columbia Court of Appeal’s 100th Anniversary Event Website as follows:

Victoria, Friday 8 January 2010
In Victoria, on Friday, 8 January 2010, the Court of Appeal held the first event in celebration of the Court’s centenary. During the day, judges of the Court visited several Victoria area schools to meet with students. The Court then held a special sitting in the Heritage courtroom at the Maritime Museum, followed by a black tie Bench & Bar dinner at Government House, hosted by the Lieutenant Governor. A photograph and news story appeared in the Victoria Times-Colonist on Saturday 9 January. The Court thanks the organizers, including lawyers of the Victoria Bar Association, Law Society of British Columbia, and Canadian Bar Association, and also staff of the Justice Education Society.

Vancouver, Friday 26 March 2010
Friday 26 March 2010 at 4:00 p.m., in the Great Hall of the Law Courts, 800 Smithe St., Vancouver.

Prince George, 13 or 14 September 2010, time and place TBA
Monday or Tuesday, 13 or 14 September 2010. Precise time and location TBA by local organizers closer to the date.

Kamloops, 18 or 19 October 2010, time TBA
Monday or Tuesday 18 or 19 October 2010. Precise time TBA by organizers closer to the date. At the Courthouse, 223 – 455 Columbia St., Kamloops (room TBA).

Kelowna, 1 or 2 November 2010
Monday or Tuesday 1 or 2 November 2010. Precise time TBA by organizers closer to the date. At the Courthouse, 1355 Water St., Kelowna (room TBA).

You can read more about the 100th anniversary and view some photographs at the website here.

Chief Judge Hugh Stansfield (1957-2009)

I was saddened to hear about the death of the Chief Judge of the Provincial Court of British Columbia, Hugh Stansfield, from cancer on May 7, 2009.

Before his appointment as Chief Judge, he sat as Provincial Court Judge, and Associate Chief Judge, here in Kelowna, and was well liked and respected amoung our local bar.

You can read the Provincial Court press release announcing his passing here, and a short bio on the Canadian Bar Association, B.C. Branch website here. There will be a Special Sitting of the Court on Thursday, June 4, 2009 from 9:00 to 10:00 am in the Great Hall at the Law Courts, 800 Smithe Street, Vancouver.

Joint Sitting of B.C. Courts to Honour the Late Allan McEachern

There is a special joint sitting of the British Columbia Court of Appeal and the Supreme Court of British Columbia tomorrow to honour Allan McEachern (1926-2008) who served as Chief Justice of British Columbia and Chief Justice of the Supreme Court of British Columbia. The sitting is at the Vancouver Law Courts in the Great Hall at 4:30 pm, Friday, January 25, 2008. This sitting will be linked by video to the Courthouses in Kelowna, Victoria and Prince George.

You may read some information on Mr. McEachern on the The Law Society of British Columbia website. I am going to quote a passage from the President of the Law Society, John Hunter QC's statement, which, as a legal blogger, I find inspiring:

'One of Mr. McEachern's greatest achievements was to open up the courts not just to the people of BC, but to the entire world via the internet,' Mr. Hunter said. 'In 1996, he pushed the courts to develop a website and to post judgments so the public could have instant, cost-effective access to legal decisions. Then he went a step further by hosting his own website and inviting the public to email their questions about the legal system. He was certainly the first chief justice in Canada -- if not the first judge in the world -- to step out of judicial cloisters and make himself accessible to everyone through the internet.'

I can think of at least a couple of notable estate litigation judgments written by Justice McEachern. One of them is his concurring judgment as Chief Justice of the Court of Appeal in Clarkson v. McCrossen, (1995), 3 B.C.L.R. (3d) 80, which deals with an unjust enrichment claim by a step child. He also wrote a frequently cited judgment as Chief Justice of the Supreme Court of British Columbia in an undue influence, and wills variation case called Dalziel v. Bradford (1985), 62 B.C.L.R. 215

Parliamentary Committee Questions Mr. Justice Rothstein

Today, a parliamentary committee questioned Prime Minister Harper's nominee to the Supreme Court of Canada, Mr. Justice Rothstein of Federal Court of Appeal. As I previously wrote here, this is the first time this has occurred.

According to press reports, the process appears to have gone smoothly. The committee was co-chaired by the Minister of Justice, Vic Toews, and constitutional scholar Peter Hogg. According to the CBC report here, Professor Hogg advised the committee that Mr. Justice Rothstein could not answer questions about issues that may come before the court, including things such as his views on abortion and same-sex marriage.

The CTV report here has the headline "Judges should apply law, not make it: Rothstein." I have some trouble with this notion that judges may not make law. The common law is judge-made law, albeit made incrementally. If judges had not made law over the last several hundred years, I fear that we might still have trial-by-ordeal. I do appreciate that there is a difference between private law disputes, such as contract cases or negligence, where historically the courts have taken a leading role in developing the law, and public law issues involving broad economic and social issues, where Canadian courts have been deferential to Parliament and provincial legislatures. But I don't think that there is a bright line between interpreting law and making law.

For an in-depth look at Mr. Justice Rothstein's nomination and this historic process, Slaw.ca has done an outstanding job in bringing together interesting materials, from parliamentary debates over selection process, to his decisions as a Federal Court Judge, and how the Supreme Court of Canada has decided appeals from his decisions.

Slaw invited readers to put questions that they would like to ask Mr. Justice Rothstein in the comments. There are some interesting questions. I think that I am most interested in a nominee's life experiences, not only as a lawyer and judge, but also other things that the nominee has done outside of law, and how a nominee has met life's challenges. For example, according to the CTV report, Mr. Justice Rothstein discussed his experience as a waiter working in a dining car on a train between Winnipeg and Vancouver. I think it is helpful if people know that judges do not live in ivory towers, devoid of experiences other than law.

The Slaw "Marshall Rothstein Pages" are here. Michel-Adrien Sheppard at Library Boy also has some good links here.

I am still ambivalent about this process, but I will keep an open mind.

The Prime Minister Nominates Mr. Justice Marshall E. Rothstein to the Supreme Court of Canada

Prime Minister Stephen Harper has nominated Mr. Justice Marshall Rothstein to the Supreme Court of Canada. Mr. Justice Rothstein is a judge of the Federal Court of Canada, Appeal Division, and will replace Mr. Justice John Major, who recently retired. Mr. Justice Rothstein practiced law in Winnipeg, Manitoba, before his appointment to the bench. The Office of the Commissioner for Federal Judicial Affairs' Web site has Mr. Justice Rothstein's curriculum vitae, and links to some of his decisions and scholarly articles here.

Mr. Justice Rothstein will appear before a parliamentary committee to answer questions before his appointment. This is the first time in Canadian history that a nominee to the Supreme Court of Canada will face questions from a parliamentary committee.

I have mixed feelings about this new process. On the one hand, I think it is beneficial if people who are not involved in the legal process have a greater opportunity to learn more about the judiciary. In my experience the overall quality of judges is outstanding, but I doubt most Canadians have an appreciation of that. More exposure is good. On the other hand, I don't want the process to become as politicized as I perceive it to be in the United States. I could care less if a judge is a liberal or a conservative. I want very bright people, who have a good grasp of the practical implications of their decisions, in addition to a theoretical understanding of law--and who simply have good judgment--appointed to the bench. I hope that the members of the parliamentary committee handle this process in a dignified, and thoughtful manner.

British Columbia Small Claims Court Monetary Limit Increased to $25,000

Effective tomorrow, September 1, 2005, the monetary limit of the British Columbia Small Claims Court will increase from $10,000 to $25,000.

The Small Claims Court offers a more streamlined procedure for hearing claims than the British Columbia Supreme Court. In Small Claims Court there are less prehearing disclosure requirements, and there are mandatory settlement conferences. The Small Claims Court is designed to allow people to bring smaller claims to court, and many people represent themselves in Small Claims Court.

If you have a claim that exceeds the new limit, you may still bring the claim in Small Claims Court, provided you agree to abandon any amount over $25,000.

There are some types of claims such as libel and slander that cannot be brought in Small Claims Court even if the amount claimed does not exceed $25,000.

I expect that more claims will be brought in the Small Claims Court with the higher limit, and it will be interesting to see if this will result in delays in having cases heard.