The Supreme Court of Canada holds that the scope of public interest standing and the circumstances in which organizations can pursue public interest litigation without an individual plaintiff is a matter of public interest that has a significant and widespread societal impact
British Columbia v Council of Canadians with Disabilities
2022 SCC 27
Supreme Court of Canada
Wagner, CJ and SCJ; Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal, SCJJ
June 23, 2022
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Reported by Faith Wanjiku and Bonface Nyamweya
Constitutional law- Bill of rights- right against discrimination where a not-for-profit organization working for the rights of people living with disabilities in Canada, together with two individual plaintiffs, filed a claim challenging the constitutionality of certain provisions of British Columbia’s mental health legislation- where the impugned provisions violated sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms by permitting physicians to administer psychiatric treatment to involuntary patients with mental disabilities without their consent and without the consent of a substitute decision-maker- without an individual co-plaintiff, how could a litigant seeking public interest standing show that its claim will be presented in a sufficiently concrete and well-developed factual setting- Canadian Charter of Rights and Freedoms, 1982, sections 7 and 15 (1); Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, section 2(b) and (c); Mental Health Act, RSBC 1996, c 288, section 31(1).
Locus standi– locus standi in public interest litigation- conditions for the grant of the public interest litigation-what role did the principles of access to justice and of legality play in the test for public interest standing, and did they merit particular weight in the balancing exercise a court had to undertake to grant public interest standing.
Locus standi– locus standi in public interest litigation- conditions for the grant of public interest litigation-where the two individual plaintiffs, who were involuntary patients affected by the impugned provisions, eventually withdrew from the litigation, leaving the organization as the sole remaining plaintiff-how could a litigant seeking public interest standing show that its claim would be presented in a sufficiently concrete and well-developed factual settingwithout an individual co-plaintiff- whether revisiting the issue of standing at a later stage of a proceeding was necessary to ensure that setting was present and under what conditions should parties be permitted to do so-what were the factors a court ought to consider in awarding special costs -Canadian Charter of Rights and Freedoms, 1982, sections 7 and 15 (1); Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, Section 2(b) and (c); Mental Health Act, RSBC 1996, c 288, section 31(1).
Brief facts A not-for-profit organization working for the rights of people living with disabilities in Canada, together with two individual plaintiffs, filed a claim challenging the constitutionality of certain provisions of British Columbia’s mental health legislation. The claim asserted that the impugned provisions violated sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms by permitting physicians to administer psychiatric treatment to involuntary patients with mental disabilities without their consent and without the consent of a substitute decision-maker. The two individual plaintiffs, who were involuntary patients affected by the impugned provisions, eventually withdrew from the litigation, leaving the organization as the sole remaining plaintiff. The organization filed an amended claim shortly thereafter seeking, among other things, public interest standing to continue the action.
The attorney general applied to have the action dismissed on the basis that the organization lacked standing. The trial court weighed the application and dismissed the claim. The trial court held that the organization failed to satisfy the test for public interest standing set out in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45,  2 SCR 524 (Downtown Eastside). The organization appealed. The Court of Appeal determined that the principles of legality and of access to justice merited particular weight in the Downtown Eastside framework, and held that the trial court erred in finding that the claim lacked a particular factual context of an individual’s case or an individual plaintiff. The Court of Appeal allowed the appeal, set aside the order dismissing the action, and remitted the matter to the court of first instance for fresh consideration. The attorney general appealed to the Supreme Court and the organization sought leave for the cross-appeal to be granted public interest standing. Issues
- What role did the principles of access to justice and of legality play in the test for public interest standing, and did they merit particular weight in the balancing exercise a court had to undertake to grant public interest standing?
- Without an individual co-plaintiff, how could a litigant seeking public interest standing show that its claim will be presented in a sufficiently concrete and well-developed factual setting?
- Whether revisiting the issue of standing at a later stage of a proceeding was necessary to ensure that setting was present, and under what conditions should parties be permitted to do so?
- What were the factors a court ought to consider in grant of public interest?
- What were the factors a court ought to consider in awarding special costs?
Relevant provisions of law
Canadian Charter of Rights and Freedoms, 1982
Section 7- Life, liberty and security of person
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Section 7 guarantees the life, liberty and personal security of all Canadians. It also requires that governments respect the basic principles of justice whenever they intrude on those rights. Section 7 often comes into play in criminal matters because an accused person clearly faces the risk that, if convicted, his or her liberty will be lost.
Section 15 (1)- Equality before and under law and equal protection and benefit of law
(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181
Section 2(b) and (c)- Application of this Act
This Act does not apply to:
(b)the provision of psychiatric care or treatment to a person detained in or through a designated facility under section 22, 28, 29, 30 or 42 of the Mental Health Act,
(c)the provision of psychiatric care or treatment under the Mental Health Act to a person released on leave or transferred to an approved home under section 37 or 38 of the Mental Health Act.
Mental Health Act, RSBC 1996, c 288
Section 31(1)-Deemed consent to treatment and request for a second opinion
(1)If a patient is detained in a designated facility under section 22, 28, 29, 30 or 42 or is released on leave or is transferred to an approved home under section 37 or 38, treatment authorized by the director is deemed to be given with the consent of the patient.
Representation Agreement Act, RSBC 1996, c 405Section 11(1)(b)(c)-Decisions not permitted
(1) Despite sections 7 (1) (c) and 9, an adult may not authorize a representative to refuse consent to:
(b)the provision of professional services, care or treatment under the Mental Health Act if the adult is detained in a designated facility under section 22, 28, 29, 30 or 42 of that Act, or
(c)the provision of professional services, care or treatment under the Mental Health Act if the adult is released on leave or transferred to an approved home under section 37 or 38 of that Act.
- Access to justice depended on the efficient and responsible use of court resources. Frivolous lawsuits, endless procedural delays, and unnecessary appeals increased the time and expense of litigation and wasted those resources. To preserve meaningful access, courts had to ensure that their resources remained available to the litigants who needed them most — namely, those who advanced meritorious and justiciable claims that warranted judicial attention.
- Public interest standing offered one route by which courts could promote access to justice and simultaneously ensure that judicial resources were put to good use. Public interest standing allowed individuals or organizations to bring cases of public interest before the courts even though they were not directly involved in the matter and even though their own rights were not infringed. It could therefore play a pivotal role in litigation concerning the Canadian Charter of Rights and Freedoms, where issues could have a broad effect on society as a whole as opposed to a narrow impact on a single individual.
- The decision to grant or deny public interest standing was discretionary. In exercising its discretion, a court had to cumulatively assess and weigh three factors purposively and with regard to the circumstances. Those factors were:
- whether the case raised a serious justiciable issue,
- whether the party bringing the action had a genuine interest in the matter, and
- whether the proposed suit was a reasonable and effective means of bringing the case to court.
- In Downtown Eastside, the court explained that each factor was to be weighed in light of the underlying purposes of limiting standing and applied in a flexible and generous manner that best served those underlying purposes. Those purposes were threefold:
- efficiently allocating scarce judicial resources and screening out busybody litigants;
- ensuring that courts had the benefit of the contending points of view of those most directly affected by the issues; and
- ensuring that courts play their proper role within our democratic system of government.
- Courts had to also consider the purposes that justify granting standing in their analyses. Those purposes were twofold:
- giving effect to the principle of legality and
- ensuring access to the courts, or more broadly, access to justice.
The goal, in every case, was to strike a meaningful balance between the purposes that favour granting standing and those that favour limiting it.
- Downtown Eastside remained the governing authority. Courts should strive to balance all of the purposes in light of the circumstances and in the wise application of judicial discretion. It followed that they should not, as a general rule, attach particular weight to any one purpose, including legality and access to justice. Legality and access to justice were important — indeed, they played a pivotal role in the development of public interest standing — but they were two of many concerns that informed the Downtown Eastside analysis.The legality principle encompassed two ideas:
- state action had to conform to the law, and
- there had to be practical and effective ways to challenge the legality of state action.
- Legality derived from the rule of law. If people could not challenge government actions in court, individuals could not hold the state to account — the government would be, or be seen to be, above the law. Access to justice, like legality, was fundamental to the rule of law. There could not be a rule of law without access, otherwise the rule of law was replaced by a rule of men and women who decided who should and who should not have access to justice. Access to justice meant many things, such as knowing one’s rights, and how the legal system works; being able to secure legal assistance and access legal remedies; and breaking down barriers that often prevented prospective litigants from ensuring that their legal rights were respected. For the purposes of the appeal, however, access to justice referred broadly to access to courts.
- In Downtown Eastside, the court recognized that access to justice was symbiotically linked to public interest standing: the judicial discretion to grant or deny standing played a gatekeeping role that had a direct impact on access. Public interest standing provided an avenue to litigate the legality of government action in spite of social, economic or psychological barriers to access which could preclude individuals from pursuing their legal rights.
- The first of the Downtown Eastside factors, whether there was a serious justiciable issue, related to two of the traditional concerns. Justiciability was linked to the concern about the proper role of the courts and their constitutional relationship to the other branches of state. By insisting on the existence of a justiciable issue, the courts ensured that the exercise of their discretion with respect to standing was consistent with their proper constitutional role. Seriousness, by contrast, addressed the concern about the allocation of scarce judicial resources and the need to screen out the mere busybody. That factor also broadly promoted access to justice by ensuring that judicial resources remained available to those who needed them most.
- The second factor, being whether the plaintiff had a genuine interest in the issues, also reflected the concern for conserving scarce judicial resources and the need to screen out the mere busybody. That factor asked whether the plaintiff had a real stake in the proceedings or was engaged with the issues they raised. To determine whether a genuine interest existed, a court could refer, among other things, to the plaintiff’s reputation and to whether the plaintiff had a continuing interest in and link to the claim.
- The third factor, reasonable and effective meant, implicated both legality and access to justice. It was closely linked to legality, since it involved asking whether granting standing was desirable to ensure lawful action by government actors. It also required courts to consider whether granting standing would promote access to justice for disadvantaged persons in society whose legal rights were affected by the challenged law or action. That factor also related to the concern about needlessly overburdening the justice system, because if there were other means to bring the matter before the court, scarce judicial resources could be put to better use. And it addressed the concern that courts should have the benefit of contending views of the persons most directly affected by the issues.
- To determine whether, in light of all the circumstances, a proposed suit was a reasonable and effective means of bringing an issue before the court, courts should consider whether the proposed action was an economical use of judicial resources, whether the issues were presented in a context suitable for judicial determination in an adversarial setting, and whether permitting the proposed action to go forward would serve the purpose of upholding the principle of legality. Like the other factors, that one should be applied purposively, and from a practical and pragmatic point of view.
- The dispute in that appeal revolved around the last question whether the issue would be presented in a sufficiently concrete and well-developed factual setting. The attorney general of the British Columbia argued that the Council did not and could not adduce a sufficient factual setting because it lacked an individual co-plaintiff, and that standing should therefore be denied.
- A directly affected plaintiff was not vital to establish a concrete and well-developed factual setting. Public interest litigants could establish such a setting by calling affected (or otherwise knowledgeable) non-plaintiff witnesses. As long as such a setting existed, a directly affected co-plaintiff or a suitable proxy was not required for a public interest litigant to be granted standing. If a directly affected co-plaintiff was not required, then would-be public interest litigants should not have to justify or compensate for the absence of one.
- The attorney general of the British Columbia’s proposed requirements would thwart many of the traditional purposes underlying standing law. A strict requirement for a directly affected co-plaintiff would pose obstacles to access to justice and would undermine the principle of legality. Constitutional litigation was already fraught with formidable obstacles for litigants. Those proposed requirements would also raise unnecessary procedural hurdles that would needlessly deplete judicial resources. Given those concerns, the court was correct in Downtown Eastside to retain the presence of directly affected litigants as a factor — rather than a separate legal and evidentiary hurdle — in the discretionary balancing, to be weighed on a case-by-case basis.
- Evidence was key in constitutional litigation unless, in exceptional circumstances, a claim could be proven on the face of the legislation at issue as a question of law alone. Standing could therefore be revisited where it became apparent, after discoveries, that the plaintiff had not adduced sufficient facts to resolve the claim. However, parties should consider other litigation management strategies before revisiting the issue of standing, given that such strategies could provide a more appropriate route to address the traditional concerns that underlay standing law. For example, summary dismissal could be open to a defendant where there was no evidence to support an element of the claim.
- The significance of a lack of evidence would vary with the nature of the claim and the pleadings. Some cases could not be heavily dependent on individual facts — where, for example, the claim could be argued largely on the face of the legislation. In such cases, an absence of concrete evidence at the pleadings stage could not be fatal to a claim for standing. Where a case turned to a greater extent on individual facts, however, an evidentiary basis would weigh more heavily in the balance, even at a preliminary stage of the proceedings.
- A material change that arose a serious doubt that a plaintiff would be able to put forward a sufficiently concrete and well-developed factual setting was most likely to occur when the parties exchanged pleadings or completed the discovery stage. Those were the steps in the litigation process at which the factual setting was most likely to emerge. Unsurprisingly, the importance of the factual setting increased at each step of the process as the litigation progresses.
- The court concluded that the council failed to raise a justiciable issue, but his analysis on that point was insufficient. It reduced the inquiry to whether it was necessary for the plaintiff to plead facts relating to specific individuals. The court held that it was, while the Court of Appeal held that it was not. That approach missed the point of the justiciability inquiry, which was directed at maintaining an appropriate boundary between an impermissible private reference and a proper grant of public interest standing. Whether facts relative to specific individuals were or were not pleaded could be a relevant factor, but it was not, in itself, the point to be decided, nor was it determinative.
- The chambers court also erred in the assessment on the existence of a genuine interest. It found that the Council’s interest only weakly met the genuine interest criterion, because its work was focused primarily on disabilities and not on mental disabilities. With respect, that distinction between mental disabilities and disabilities was unhelpful, and unfounded. Mental disabilities were disabilities. It would still be open to the attorney general of the British Columbia to challenge the Council’s standing should the Council fail to adduce the factual setting it undertook to adduce. It would make sense in that case to limit such a challenge to the stage following discovery.
- The Council’s claim undoubtedly raised the issues of public importance that transcended its immediate interests. The litigation had the potential of affecting a large group of people, namely people with mental disabilities. Moreover, granting public interest standing in that case would promote access to justice for a disadvantaged group who had historically faced serious barriers to bringing such litigation before the courts.
- Although the class action was relevant, it was not determinative. The Council provided two compelling reasons to support its argument that its claim was a reasonable and effective means of bringing the issue before the court despite the parallel proceeding.
- First, the class action was rife with unknowns: the record did not confirm that the proceeding had been certified. Even if it was certified, the certified common issues could not address the constitutionality of the impugned provisions. There was no information about the evidence that was to be adduced in the proposed class proceeding. In any case, the primary focus of such proceedings was to obtain damages, which often led to settlements rather than to rulings on alleged Charter violations. As a result, the class action represented a more efficient and effective means of resolving the Charter issues raised by the Council.
- Second, the uncontested evidence from the Benard affidavit was that individuals directly affected by the impugned provisions face significant barriers to commencing constitutional litigation and seeing it through. In that case, directly affected individuals suffered from mental disabilities that could affect their capacity to bring lengthy, complex litigation and to stay its course. Some could fear reprisals from health care providers who, under the legislation at issue, controlled their psychiatric treatment. Or they could hesitate to expose themselves to the unfortunate stigma that could accompany public disclosure of their private health information. The Council’s taking on the role as plaintiff in that litigation alleviated those significant barriers.
- Though fully capable of advancing litigation, individuals with mental disabilities had to overcome significant personal and institutional hurdles to do so. The court would not attach determinative weight to the parallel claim in balancing the factors. The court exercised its discretion in favour of granting the Council public interest standing. If the Council failed to promptly adduce the promised factual setting, the AGBC could apply to have the issue of standing reconsidered at the conclusion of the discovery stage. The court would again stress that while that result was appropriate in the specific context of the case, it could not be appropriate in others.
- The Council sought an award of special costs on a full indemnity basis throughout. Special costs were exceptional and discretionary. To award special costs, two criteria had to be met:
- the case had to involve matters of public interest that have a significant and widespread societal impact and were truly exceptional; and
- the plaintiff had to show that it had no personal, proprietary or pecuniary interest that would justify the proceedings on economic grounds, and that it would not have been possible to effectively pursue the litigation in question with private funding.
- The Council’s case satisfied both of those criteria. Regarding the first criterion, the scope of public interest standing and the circumstances in which organizations could pursue public interest litigation without an individual plaintiff was a matter of public interest that had a significant and widespread societal impact. The participation of over 20 interveners from across the country representing a range of interests and perspectives with respect to that appeal was a testament to that fact. As for the second criterion, the Council was a not-for-profit organization whose mandate was to promote the equality, autonomy and rights of people with disabilities. It had no personal, proprietary or pecuniary interest in the litigation.
- Moreover, it would not have been possible for the Council to pursue the litigation effectively with private funding; it had relied upon pro bono counsel to argue its case. The Council had sought to advance the litigation for nearly six years. The substantive issues had yet to be addressed. In such circumstances, having regard to the strict criteria for special costs, it would be contrary to the interests of justice to ask the Council and its pro bono counsel to bear the majority of the financial burden associated with pursuing the claim. In those exceptional circumstances, and in the exercise of the court’s discretion, the court would grant special costs in the Supreme Court and in the courts below to place the Council as far as it was possible to do so financially in the position it was in when the attorney general for British Columbia called its standing into question.
Appeal dismissed and cross-appeal allowed.
Relevance to the Kenyan jurisprudence
Marion Muringe Ogeto and Waikwa Wanyoike in their article: Judiciary and Public Interest Litigation in Protecting the Right of Assembly in Kenya, define Public Interest Litigation (PIL) when they note that:
PIL can be broadly defined as litigation which focuses on issues of importance to the public at large, or for a major section of the public and whose outcome is likely to impact not only the individual litigant but a larger section of the society. One way of understanding PIL is by looking at the factors of the case such as the nature of the issues, the reason why the case is being initiated and the possible impact the case might have. These become the parameters of labeling a case as PIL…Many jurisdictions in the world have now adopted PIL in one form or another. These jurisdictions have done so by expanding the rule of standing, which historically made it difficult for individuals and groups to litigate public interest cases. Some are also encouraging PIL by eliminating costs or minimising the possibility that those who bring the matter will be punished with costs if they are successful.
Indeed, the Constitution of Kenya 2010, encourages the spirit of Public Interest Litigation especially in article 22 where it states that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. Also: 2. In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by:
a. a person acting on behalf of another person who cannot act in their own name;
b. a person acting as a member of, or in the interest of, a group or class of persons;
c. a person acting in the public interest; or d. an association acting in the interest of one or more of its members.
Article 28 adds that every person has inherent dignity and the right to have that dignity respected and protected. The Persons with Disabilities Act 2003 in section 20 says that:
(d) enabling persons with disabilities to receive free rehabilitation and medical services in public and privately owned health institutions;
(e) availing essential health services to persons with disabilities at an affordable cost;
(f) availing field medical personnel to local health institutions for the benefit of persons with disabilities.
The Kenya National Patients’ Rights Charter of 2013 (the Charter) gives patients the right to the highest attainable standards and quality of health care in article 5.
The Court in County Assembly Forum & 6 others v Attorney General & 2 others; Senate of the Republic of Kenya (Interested Party) (Constitutional Petition E229, E225, E226, E249 & 14 of 2021 (Consolidated))  KEHC 304 (KLR) (Constitutional and Human Rights) (15 October 2021) (Judgment) noted that although the petitioners did not state the average cost of obtaining a degree qualification in Kenya, there was no doubt that there was such a cost and that the cost was not within the reach of the majority of Kenyans.
In Chunky Limited v Director of Criminal Investigations (Petition E004 of 2022)  KEHC 297 (KLR) (27 April 2022) (Judgment) the petitioner stated that by failing to perform their constitutional and statutory duties, the respondent was violating its constitutional rights under articles 40, 47 and 48 of the Constitution and they were eroding public confidence in the integrity of the two offices tasked with maintaining law and order, detecting and preventing crime.
This case is thus significant for it expounds on public interest litigation, precisely on the conditions for its granting by court and is also enlightening in how a court proceeds on the issue of locus standi in public interest litigation where individual plaintiffs withdraw from the litigation leaving an organization as the sole plaintiff.