by Victoria Tremblett June 27, 2022 7 min read

Standing

Standing is the legal right to bring a dispute before the court. There are two types of standing: private interest standing; and public interest standing. Private interest standing allows a party to commence an action on their own behalf, for injuries or damages they have suffered. For example, a person who suffers injuries as the result of a motor vehicle accident has private interest standing to commence a legal action claiming damages for those injuries.

Public interest standing, however, allows individuals (and often organizations) to bring cases of public interest before the courts, even though they are not directly involved in the matter and have not suffered any damages. As stated by Chief Justice Wagner at paragraph 2 of Council of Canadians with Disabilities,“[public interest standing] can therefore play a pivotal role in litigation concerning the Canadian Charter of Rights and Freedoms, where issues may have a broad effect on society as a whole as opposed to a narrow impact on a single individual.”

However, unlike private interest standing, which is as of right, public interest standing is discretionary. In determining whether to grant public interest standing, the Court must consider the following three factors, as set out in Downtown Eastside:

  1. Whether the case raises a serious justiciable issue;
  2. Whether the party bringing the action has a genuine interest in the matter; and
  3. Whether the proposed action is a reasonable and effective means of bringing the case to court.

British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022 SCC 27

The Council of Canadians with Disabilities (“CCD”) is a not-for-profit organization working for the human rights of people living with disabilities in Canada. CCD brought an action against the Attorney General of British Columbia with respect to the province’s mental health legislation. CCD claimed that certain provisions of the legislation which permit physicians to administer psychiatric treatment (including medication) to involuntary patients without their consent, or the consent of their substitute decision maker, violate sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms.

When the CCD commenced its claim, it was joined by two individual plaintiffs who had personally been impacted by the legislation at issue and alleged their rights had been infringed. However, the individual plaintiffs subsequently withdrew from the litigation, leaving the CCD as the only remaining plaintiff.

The Attorney General of BC then applied to have the action dismissed on the grounds that the CCD lacked standing to bring the action. The Chambers Judge dismissed the CCD’s claim on the basis that it failed to satisfy the test as set out by the court in Downtown Eastside.The Court of Appeal allowed the appeal and highlighted the importance of considering access to justice and the principle of legality in determining issues related to standing. The Attorney General of BC appealed to the Supreme Court of Canada.

The Supreme Court of Canada dismissed the appeal, granting the CCD public interest standing to proceed with the legal action.

Legality and Access to Justice

Before turning to the three factors set out in Downtown Eastside,Chief Justice Wagner, writing for the Court, first commented on the relevance of the principles of legality and access to justice to the law of public interest standing. The Court held that the Court of Appeal was wrong to attach particular significance to the principles of legality and access to justice, placing them above the other factors to be considered in determining whether to grant or deny public interest standing.

The Court held that the current framework for deciding whether or not to grant public interest standing accounts for the principle of legality (which requires that government action conform to the law and that there are practical and effective ways to challenge the legality of government action) and access to justice, in addition to the other important factors, including: allocation of scarce judicial resources and screening out “busybodies”; ensuring that the courts have the benefit of the opposing positions of those most directly affected by the issue; and ensuring that the court plays its proper role in our constitutional democracy.

Legality and access to justice are both considerations informing the third factor of the test – whether the proposed action is a reasonable and effective means to bring the issue before the court. The Court held that to place an increased weight on legality and access to justice would in effect “transform the ‘reasonable and effective means’ factor into a determinative one.” This would run afoul of the flexible, discretionary approach to public interest standing. No one factor is to be placed above the others.

Application of the Downtown Eastside Framework to this Case

With respect to the first factor, the Court found that the pleadings were well drafted and clearly raised a serious issue: the constitutionality of laws which allegedly violate the Charterrights of people with mental disabilities. This issue is certainly “far from frivolous” and is substantial and important amounting to a serious issue.

The Court further held that the issue is justiciable as the pleadings outline a cause of action and material facts, which if true, could support a constitutional claim. Accordingly, the Court found that the case raises a serious and justiciable issue.

Turning to the second factor, the Court found that the CCD’s materials, and in particular the uncontested affidavit of the Chair of the CCD’s Mental Health Committee, clearly demonstrate that the CCD has a genuine interest in the central issues of the case, and generally in the challenges faced by people with mental disabilities. The Court highlighted that the CCD’s work is directed by and for people with disabilities, and that they have a long history of engagement in social, legal, and policy reform actions aimed at promoting the fundamental rights of persons with disabilities. This includes acting as a consultant to the Government of Canada on issues relating to disabilities and acting as a respected and authoritative voice regarding the rights and equality of people with disabilities before international bodies, government, and the Courts. Finally, the CCD has experience acting as plaintiff or intervener in other human rights and Charter cases, and the mental health committee responsible for this action has expertise in the subject matter. The CCD had established the necessary link to the claim and interest in the issues.

Finally, the Court also found that the proposed action was a reasonable and effective means to bring the issue before the Court.

One of the Attorney General’s main arguments on appeal was that the CCD’s action lacked the necessary factual foundation of an individual case. The Court rejected this argument, opining that because the CCD’s work is directed by and for people with disabilities, they will be able to adduce evidence from directly affected individuals, notwithstanding that they are not plaintiffs in the action. This was supported by an undertaking given by counsel for the CCD to adduce evidence of the concrete circumstances of specific patients.

The Court further noted that the pleadings demonstrate that this case does not turn on the facts and there is an argument to be made that the legislation is unconstitutional on its face as it authorizes treatment in certain circumstances without consent of the patient or their substitute decision maker. Moreover, simply because public interest standing is granted at this stage of the proceeding does not preclude the Attorney General from challenging the CCD’s standing after discovery if they should fail to establish the necessary factual foundation they undertook to produce.

The Court also found that the case “undoubtedly” raised issues of public importance with the potential to impact a large group of people. Public interest standing also promotes access to justice in this case where the group of people most likely to be directly impacted is a “disadvantaged group who has historically faced barriers to bringing such litigation before the courts.”

With respect to alternative methods of bringing the issue before the Court, the Court found that while a class action has been commenced, it is in early stages and has not yet been certified. It is also anticipated that the focus will likely be on damages, not rulings related to Charter violations and constitutionality. Accordingly, the Court rejected the argument that the class action was a more reasonable or effective means of bringing the issue before the Court.

Weighing all of the factors identified in Downtown Eastside,the Supreme Court of Canada exercised its discretion to grant the CCD public interest standing.

The Significance of this Case

As noted by the SCC, public interest standing furthers access to justice in circumstances where the matter may otherwise go unaddressed. This is the unfortunate case for people with mental disabilities who may struggle to bring their own action forward for a variety of reasons ranging from their personal health status to the sheer financial burden of litigation.

However, the SCC also highlighted the importance of balancing all factors, both those in favour of granting standing (such as legality and access to justice) as well as those which favour limiting standing (such as conservation of judicial resources and screening busybodies). As delays and backlogs continue to plague our courts it is important that resources are conserved and not wasted on frivolous actions.

This will be an interesting case to watch as it proceeds to adjudication on the merits, as it will undoubtedly provide important guidance to health care professionals who treat people with mental disabilities in BC. Given the significance of the issue, it would not be surprising if the courts look to (and comment on) the mental health legislation of other provinces as well.

 

At Wise Health Law, we have experience and expertise litigating a wide variety of issues related to informed consent to treatment and mental health legislation in Ontario, particularly defending and advising health professionals.



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