To no one will we sell, to no one will we delay right or justice
King John, Magna Carta
1215
1. Introduction
While sailing from Prince Rupert to Port Hardy on Vancouver Island on the night of 22 March 2006, the Queen of the North belonging to the B.C. Ferry Corporation went off course, struck Gil Island and sank
Mr. Gerald Foisey was a passenger on the vessel but did not survive the sinking. His two daughters brought an action for damages in the Supreme Court of B.C. (SCBC) against the Corporation and some of its ship’s officers. As daughters of the survivors they are entitled to a limited amount of damages under provincial legislation.
Counsel for the plaintiff said that the daughters could not afford to have a jury trial for the purpose of assessing damages since the B.C. government’s hearing and jury fees were so excessive. These were estimated at $15,000 for a judge hearing the trial and $25,000 for jury fees totaling $40,000.
Similar fee items charged in other jurisdictions are estimated as follows: Alberta: $800; Ontario: $645, and Washington State: $ 480.00.
2. Discussions on this website – filing and hearing fees
In two previous postings of 11 September 2007 and 5 March 2008 I discussed these fees and argued that the B.C. government is involved in selling justice. At the very least it reveals the indifference the government has towards civil justice and any B.C. citizens that try to access its antiquated and costly system.
Around 1898 the B.C. government gave the BCSC the 1883 English Rules of Civil Procedure. Since that time the government has tinkered with them ignoring other more modern models. Finally, in 2006 the government proposed a new set of rules titled “Effective and Affordable Justice.”
Most B.C. Bar organizations oppose these rules since they will slow the pace of litigation and cost litigants even more money in filing and hearing fees and lawyer’s fees. Many judges and lawyers caricature the 2006 Rules as “Ineffective and Unaffordable Justice.”
Postings:
11 September 2007
http://www.bouckslawblog.com/bouckslawblog/2007/09/index.html
5 March 2008
http://www.bouckslawblog.com/bouckslawblog/2008/03/index.html
3. Damages for wrongful death
More than a century ago, senior judges talked themselves into denying damages to survivors of dead relatives who were killed by a third party. Their theory was that a dead body had no right to claim damages and neither did the surviving relatives.
Legislators recognized this irrationality and enacted legislation allowing close relatives to sue the person who caused the death. However, they limited the amount of damages that survivors could collect.
Besides funeral expenses and the like, this means Mr. Foisey’s surviving daughters may only collect the amount of pocket money they can prove Mr. Foisey would have given them during his lifetime had he lived. Here is the link to the B.C. Families Compensation Act:
http://www.bclaws.ca/Recon/document/freeside/--%20f%20--/family%20compensation%20act%20%20rsbc%201996%20%20c.%20126/00_96126_01.xml
Mr. Foisey’s daughters could not recover damages for the grief they experienced due to the loss of their father. Nor could they recover aggravated or punitive damages if they were allowed to prove extreme neglect or indifference by the Corporation and its officers on the night in question.
What does this mean in the real world? If an automobile driver inadvertently runs over a pedestrian and injures him or her, the amount of damages the driver must pay depends upon the injuries suffered by the pedestrian. Should the driver carelessly back up and re-injure the same pedestrian so that he or she is made a quadriplegic, the amount of damages is many times higher.
But if the driver intentionally drives forward again and kills the pedestrian, the amount of damages the driver must pay is substantially less than in the first two scenarios. Does this make sense to any rational human being?
4. Comparisons with the criminal law
When a person murders another, Canadian criminal law attaches the most severe sanction of life imprisonment. But when a person intentionally or carelessly kills another, B.C. civil law imposes only a modest sanction of minimal damages roughly equivalent to the criminal crime of say petty theft.
Few British Columbians would consider this civil law sanction sufficient recognition for the death of a husband, father, wife or mother.
Provincial legislation governing wrongful death actions should be amended to give relatives the right to recover actual damages arising from the death of a loved one. These would include damages for loss of income, services, assistance, society, companionship, comfort, guidance, an expected inheritance, plus punitive damages where the defendant acted intentionally or recklessly.See:
http://www.wrongful-death-network.com/news.shtml
5. Governmental reaction to the Foisey lawsuit fees
Government representatives allege that the Foisey daughters’ claim for aggravated or punitive damages would not have been allowed by the trial judge and the jury would not get a chance to hear that evidence. They then say this would shorten the length of the trial. As a result, they contend the daughters would pay the government much less than $40,000 in filing and hearing fees. How much less they do not mention.
Let’s say it would be 50% less or $20,000. Is that supposed to be some sort of a bargain compared to similar fees in other jurisdictions?
6. Trial judge hearing fees
BCSC judges’ salaries are paid by the federal government, not the provincial government. B.C. litigants should not have to pay provincial government fees to get a hearing before a BCSC judge. It is simply governmental price gouging.
The judiciary is one of the separate but equal three branches of government: Legislative, Executive and Judicial. B.C. citizens do not have to pay a hearing fee in order to speak to their M.L.A. who is a paid member of the Legislative Branch. They do not have to pay a similar fee to speak to a Cabinet Minister who is a paid member of the Executive branch. Why must they pay a fee to speak to a judge who is a member of the Judicial branch and is not paid by the B.C. government?
Given the excessive filing and hearing fees there is little doubt that the B.C. government is in the business of selling justice to its citizens. Here is the link to the BCSC hearing and filing fees: http://www.bclaws.ca/Recon/document/freeside/--%20s%20--/supreme%20court%20act%20%20rsbc%201996%20%20c.%20443/05_regulations/11_221_90%20supreme%20court%20rules/221_90_07.xml#AppendixC
The last time I looked, there was no Order in Council authorizing Sheriffs to collect jury fees. There was only an unsigned and undated memorandum issued by an anonymous public servant. Arguably, the Legislature did not give the executive branch permission to collect those fees unless the LGIC issued an Order in Council under s. 34(2) of the Jury Act. Since apparently it did not, the executive branch had no right to collect those fees and they should be refunded.
7. Provincial sales tax on litigants
Besides these grossly excessive filing and hearing fees litigants must pay the B.C. government a sales tax on their lawyers’ bills. Clients of other B.C. professionals do not have to pay this tax. Probably no other province penalizes its citizens with similar taxes for them daring to use their civil justice systems.
Originally, the government promised the tax would be used to pay for legal aid. Later it just put the money into general revenue.
7. Jury fees and jury rules of court
Exorbitant jury fees are just a reflection of the B.C. governments’ dislike of civil jury trials. Before the 1970s or so, provincial governments could not be sued in a civil court on the grounds of Crown immunity. Judges would have to dismiss any such action based on the ancient theory that the King can do no wrong.
Around that time, federal and provincial governments abandoned this questionable defence and enacted legislation permitting others to sue them. They made one exception. They could not be tried by a civil jury. Apparently they felt they could not trust their fellow citizens as jurors to treat them fairly.
B.C. Rules of Court enacted by the B.C. executive branch allow for trial by jury in certain instances but judges can dispense with them for questionable reasons. Like the general rules of court, the portions dealing with civil jury trials are badly out of date.
The main responsibility of jurors is to find facts from the evidence they heard and apply those facts to the law they receive from the judge. Jurors are better fact finders than judges since jurors must convince one another about the credibility of witnesses while judges need only convince themselves. There are many other advantages of jury trials mentioned elsewhere on this site.
Bottom Line:
1. BCSC filing and judges' hearing fees should be scaled back to levels comparable to other more progressive and enlightened jurisdictions. Like criminal trial jurors' fees, civil trial jurors' fees should be paid out of general revenue as what happens in seven of Canada's common law provinces and most U.S. states.
2. B.C. statute law should allow survivor’s relatives to collect compensatory damages and if relevant punitive damages from those who intentionally or carelessly kill their loved ones.
3. B.C. regulations that tax litigants for accessing lawyers should be repealed.
4. Provincial legislation and rules should modernize the civil jury system and also allow juries to try civil cases in actions against the B.C. government.
4 February 2009
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