Court Fee-waiver Processes in Canada: How Wrong Assumptions, Change Resistance and Data Vacuums Hurt Vulnerable Parties

tags: Shannon Salter

Notes

there remains an intransigent failure to reform even clear, obvious examples of needlessly burdensome, complex and sometimes humiliating justice processes

NOTER_PAGE: (1 . 0.4231805929919138)

first, people are likely to lie about their need, or that second, making the process easier will lead to a flood of applications, depriving the court system of significant fee revenue. There is no available empirical evidence to support either assumption

NOTER_PAGE: (2 . 0.15363881401617252)

while there is no evidence of fraud or floodgates, there is strong evidence that the current process causes real harm

NOTER_PAGE: (2 . 0.29245283018867924)

hearing fees are unconstitutional when they deprive people of access to the superior courts

NOTER_PAGE: (4 . 0.15431266846361186)

fee-waiver processes which create often insurmountable barriers for people with a low income to access the courts are arguably equally unconstitutional

NOTER_PAGE: (4 . 0.39083557951482484)

This process is burdensome and complex on its face. The rules and court forms use legal jargon and are not user-friendly. The process requires a party to complete many written and verbal tasks correctly before the court will consider the fee-waiver request

NOTER_PAGE: (6 . 0.353099730458221)

First, a person must discover that fee waivers exist. This is unclear from the BCSC website, unless one knows to search for “indigency”

NOTER_PAGE: (6 . 0.42115902964959573)

little guidance in determining which of the forms to complete, or the process to follow once this is done

NOTER_PAGE: (6 . 0.511455525606469)

taking time off work in order to obtain documents

NOTER_PAGE: (6 . 0.5849056603773585)

taking public transit to do so, or paying for gas or parking, and perhaps also childcare

NOTER_PAGE: (6 . 0.6172506738544474)

costs to get legal assistance

NOTER_PAGE: (6 . 0.6880053908355795)

expenses may be necessary for the person to travel to file the documents at the court registry and, hopefully, but not always, appear before a master the same day

NOTER_PAGE: (6 . 0.7041778975741241)

return to the court registry to file the order

NOTER_PAGE: (7 . 0.28975741239892183)

go through another, even more complex process to appeal the master’s order to a justice of the BCSC

NOTER_PAGE: (7 . 0.3638814016172507)

registry was doubtful it could be done and had no guidance

NOTER_PAGE: (8 . 0.6731805929919138)

The more barriers you put in front of someone the less likely they are going to be to access justice

NOTER_PAGE: (9 . 0.25471698113207547)

delay is waiting at the civil registry counter and in chambers prior to appearing

NOTER_PAGE: (10 . 0.2129380053908356)

costs more than $200 of organizational resources to save the $200 filing fee

NOTER_PAGE: (10 . 0.7311320754716981)

NOTER_PAGE: (11 . 0.5707547169811321)

no empirical evidence suggesting that people wrongfully or fraudulently obtain fee waivers from the courts

NOTER_PAGE: (11 . 0.7055256064690028)

the data we do have supports that concerns about fraud, or about opening a floodgate of fee-waiver applications, are unwarranted

NOTER_PAGE: (12 . 0.20619946091644206)

why are precious judicial resources allocated to parsing the documents and submissions of people asking to be excused from relatively small sums of money, in the absence of any evidence of fraud?

NOTER_PAGE: (12 . 0.5188679245283019)

court rule comes from obiter in TLABC which states that there is no obligation on a court to waive fees in the case of vexatious or frivolous filings. 42 Of course, the Supreme Court of Canada did not mandate that courts must screen

NOTER_PAGE: (12 . 0.6287061994609164)

Courts, by virtue of their inherent jurisdiction as well as authority conferred in court rules, already have the power to dismiss claims which are vexatious, frivolous or amount to an abuse of process

NOTER_PAGE: (13 . 0.19002695417789758)

four basic normative assumptions

NOTER_PAGE: (13 . 0.5795148247978437)

Programs should be designed to be simple, accessible, and respectful

NOTER_PAGE: (13 . 0.623989218328841)

Burdens should be minimized

NOTER_PAGE: (13 . 0.6947439353099731)

Burdens should be evidence-based

NOTER_PAGE: (13 . 0.738544474393531)

especially careful about costs on those with limited resources

NOTER_PAGE: (14 . 0.15633423180592992)

people who are unable to afford court or tribunal fees are also more likely to face other barriers

NOTER_PAGE: (14 . 0.47641509433962265)

in the absence of any empirical evidence, the CRT assumed that there is no epidemic of people fraudulently obtaining fee waivers

NOTER_PAGE: (14 . 0.5471698113207547)

Where a party receives government assistance, or otherwise meets the objective criteria described above, the CRT system automatically and instantly applies a fee waiver

NOTER_PAGE: (15 . 0.7715633423180593)

after 3.5 years of operation and 14,482 disputes, CRT staff report that even in cases where they have requested supporting documentation, they have never encountered a circumstance which justifies revoking a fee waiver

NOTER_PAGE: (16 . 0.7998652291105122)

should not require a person to provide supporting documents unless there is a reasonable basis for believing that they are not entitled

NOTER_PAGE: (17 . 0.5997304582210243)

objective, easily quantifiable, and rely on a person’s participation in an existing government assistance program or on their aggregate income and assets

NOTER_PAGE: (17 . 0.6597035040431267)

residual discretion, ideally at a staff level, to grant fee waivers despite an applicant’s failure to meet established income or asset thresholds

NOTER_PAGE: (18 . 0.22911051212938008)

grant fee waivers automatically where applicants meet established criteria

NOTER_PAGE: (18 . 0.3079514824797844)

available remotely

NOTER_PAGE: (18 . 0.4029649595687332)

without the need for it to be notarized

NOTER_PAGE: (18 . 0.5390835579514826)

tested with community legal advocates, and ideally their clients

NOTER_PAGE: (18 . 0.6185983827493262)

gather statistics

NOTER_PAGE: (18 . 0.6987870619946092)

NOTER_PAGE: (19 . 0.5545822102425876)

Notes

there remains an intransigent failure to reform even clear, obvious examples of needlessly burdensome, complex and sometimes humiliating justice processes

first, people are likely to lie about their need, or that second, making the process easier will lead to a flood of applications, depriving the court system of significant fee revenue. There is no available empirical evidence to support either assumption

while there is no evidence of fraud or floodgates, there is strong evidence that the current process causes real harm

hearing fees are unconstitutional when they deprive people of access to the superior courts

fee-waiver processes which create often insurmountable barriers for people with a low income to access the courts are arguably equally unconstitutional

This process is burdensome and complex on its face. The rules and court forms use legal jargon and are not user-friendly. The process requires a party to complete many written and verbal tasks correctly before the court will consider the fee-waiver request

First, a person must discover that fee waivers exist. This is unclear from the BCSC website, unless one knows to search for “indigency”

little guidance in determining which of the forms to complete, or the process to follow once this is done

taking time off work in order to obtain documents

taking public transit to do so, or paying for gas or parking, and perhaps also childcare

costs to get legal assistance

expenses may be necessary for the person to travel to file the documents at the court registry and, hopefully, but not always, appear before a master the same day

return to the court registry to file the order

go through another, even more complex process to appeal the master’s order to a justice of the BCSC

registry was doubtful it could be done and had no guidance

The more barriers you put in front of someone the less likely they are going to be to access justice

delay is waiting at the civil registry counter and in chambers prior to appearing

costs more than $200 of organizational resources to save the $200 filing fee

designing a process that tolerates a small amount of fraud in order to increase general accessibility is better social policy than creating a fraud-proof process that honest applicants can rarely access

no empirical evidence suggesting that people wrongfully or fraudulently obtain fee waivers from the courts

the data we do have supports that concerns about fraud, or about opening a floodgate of fee-waiver applications, are unwarranted

why are precious judicial resources allocated to parsing the documents and submissions of people asking to be excused from relatively small sums of money, in the absence of any evidence of fraud?

court rule comes from obiter in TLABC which states that there is no obligation on a court to waive fees in the case of vexatious or frivolous filings. 42 Of course, the Supreme Court of Canada did not mandate that courts must screen

Courts, by virtue of their inherent jurisdiction as well as authority conferred in court rules, already have the power to dismiss claims which are vexatious, frivolous or amount to an abuse of process

four basic normative assumptions

Programs should be designed to be simple, accessible, and respectful

Burdens should be minimized

Burdens should be evidence-based

especially careful about costs on those with limited resources

people who are unable to afford court or tribunal fees are also more likely to face other barriers

in the absence of any empirical evidence, the CRT assumed that there is no epidemic of people fraudulently obtaining fee waivers

Where a party receives government assistance, or otherwise meets the objective criteria described above, the CRT system automatically and instantly applies a fee waiver

after 3.5 years of operation and 14,482 disputes, CRT staff report that even in cases where they have requested supporting documentation, they have never encountered a circumstance which justifies revoking a fee waiver

should not require a person to provide supporting documents unless there is a reasonable basis for believing that they are not entitled

objective, easily quantifiable, and rely on a person’s participation in an existing government assistance program or on their aggregate income and assets

residual discretion, ideally at a staff level, to grant fee waivers despite an applicant’s failure to meet established income or asset thresholds

grant fee waivers automatically where applicants meet established criteria

available remotely

without the need for it to be notarized

tested with community legal advocates, and ideally their clients

gather statistics

hard not to suspect that, in the absence of data, the public justice system might be one large blind spot, punctuated by only small pinpricks of light where empirical evidence has managed to shine through