CCLA Welcomes Decision Promoting Access to Justice

CCLA is pleased that the Supreme Court of Canada has affirmed the test for public interest standing. Public interest standing is what allows organizations like CCLA and others, to go to court and fight for justice, particularly for individuals and groups who face barriers to going directly to court themselves. The Court’s decision is a victory for all Canadians.  

This appeal started with a legal challenge brought by the Council for Canadians with Disabilities (CCD) against a law that permits non-consensual and forcible psychiatric treatment on persons involuntarily detained in psychiatric institutions in BC. This challenge was not heard, however, because the lower court decided that the CCD did not meet the test to fight for rights in the “public interest” in this matter. The scope of the test for who can be a “public interest litigant” was the subject of the appeal heard by the Supreme Court on January 12-13, 2022. Webcasts of the two days of hearings are available here.

CCLA argued for a more open test, more opportunity for rights protections, and greater access to justice – not higher barriers. Even new organizations and those arguing for previously unrecognized rights should generally be heard. And this is all the more important for marginalized groups who may face greater rights violations, and may have fewer resources to litigate matters directly. The CCLA’s factum is available here.

The Court’s decision confirms that the approach taken by courts to questions of public interest standing must be flexible, but also liberal and generous. Courts should first consider whether there is a serious issue that is justiciable (i.e. not a political question, but one that can be decided by the courts). The Court should then consider whether the party bringing the case has a genuine interest in the subject. Finally, the Court should ask if the litigation is a reasonable and effective means of bringing an issue before the court. These questions all recognize the need to ensure that laws are not shielded from judicial examination because of inflexible procedural rules. The Supreme Court’s decision is available here.

The CCLA is grateful to its wonderful counsel team: Andrew Bernstein and Alexandra Shelley (Torys LLP).