Justice Committee on March 8th, 2016

[Rachel Wernick]

That was a part of the program. Again, fundamentally, the rationale behind it was to improve awareness of and access to the CCP. It was to ensure that individuals who were experiencing some kind of an issue with their rights could advance cases through the work of these activities.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I believe you had indicated, Ms. Wernick, that one of the primary barriers to advancing litigation was the cost of litigation. Isn't that the case for all groups? Why are groups, for example, that promote substantive equality rights uniquely disadvantaged in that regard?

[Rachel Wernick]

Again, I apologize, as I'm not understanding the question. I think if an individual faces an issue with their rights, sometimes they will turn to these organizations. So if I'm a person with a disability—

[The Chair, Liberal, Anthony Housefather]

Ms. Wernick, sorry. I don't know if this is a role of the chair, but I just want to clarify Mr. Cooper's question. He's asking whether, when the court challenges program existed, groups that were fighting for substantive equality rights could have benefited from government funding.

Other groups are out there also challenging federal statutes. I believe he's asking why these groups are philosophically entitled to government money that other groups are not.

[Rachel Wernick]

It comes down to it being a constitutional or a charter right. It's not about the group per se. It's about the right they're pursuing. There might be other groups that are pursuing litigation but not that involving constitutional or charter rights. Does that answer the question?

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Yes.

Now, you had also cited a few different groups, such as LEAF, Egale, Council of Canadians with Disabilities, and I believe one other. You cited four groups that had often received support from the court challenges program. Were those four groups the leading four groups?

[Rachel Wernick]

As I said, we're talking about 290 groups that receive funding, so we had to go through all of that and we were able to find the groups.... The five groups that I mentioned accounted for.... As an example, of the 846 cases, the Council of Canadians with Disabilities brought forward 20, which accounted for 2.4%. The ones I mentioned fall into the category of being 2%, 3%, 4% of the cases, but on a total of 846. We're just trying to find you some examples of organizations. We took the ones that were a bit more common, but it's not 50% or something extremely large in terms of proportion.

[The Chair, Liberal, Anthony Housefather]

Mr. Bittle.

[Chris Bittle, Liberal, St. Catharines, ON]

In my humble opinion, this has been an excellent program that has benefited many groups and advanced rights across the country.

Has there been any discussion as to empowering an organization or removing the ability of a future government to cease funding so that it would continue beyond? Has there been any talk or discussion of how a program could be structured so that this could continue into the future, or independently of government?

[Michel Francoeur]

The only way, really, would be to put it in the Constitution. Short of that, even if you put it in a bill or a statute, the same government or the next government can repeal the statute, Parliament being sobering. The only way to really make it almost impossible, or difficult, to abolish the program would be to have a constitutional amendment protecting the program. Mind you, doing that could require lots of work; it might not be easy. The constitutional amendment formula would have to be applied. Whether it's to protect the program by putting it in the Constitution, or taking it out of the Constitution in the case where it is in the Constitution, both cases would be difficult to do.

[Chris Bittle, Liberal, St. Catharines, ON]

It wouldn't be fair to make it impossible, but to make it more difficult, could the organization be endowed and provided with more stable funding in the future so it could be self-sustaining? Ultimately, a future government could act, but it could be self-sustaining in that way.

[Rachel Wernick]

I do think that is a perspective that's been raised in the past, that an alternative model would be to establish a foundation. Again, I do think that's on the table in the work on modernizing the program. It's an alternative model for sure.

[Chris Bittle, Liberal, St. Catharines, ON]

You talked about the biggest barriers to the court system being financial. We've heard from one of the biggest advocates, the chief justice, who mentioned that our system works very well for the very rich and works well for the very poor, but not so much in between. The system, especially on the civil side of things, has not gotten better, so advancing an application can prove to be much more challenging.

You mentioned caps on funding in response to questions from Mr. Rankin. Were those sufficient to advance cases or were lawyers expected to provide a great deal of pro bono work in a file?

[Yvan Déry]

We have had experience with the language rights support program that was created after the elimination of the CCP back in 2006. The CCP cap for a litigation for the first court was $60,000. When we started the LRSP we put that cap at $85,000. After one year the panel of experts recommended that amount be brought up to $125,000 per case, so we had more than doubled the amount we were offering per case for litigation from 2006 to 2010.

We just had a program evaluation and this amount is still considered on the low side of what a litigation does cost. A litigation such as the Caron case has been reported to cost between $800,000 and $1 million. It could even be more than that.

Everyone who was interviewed for the program evaluation said this $125,000 was not symbolic. Support by that program adds credibility to a case because it's not just someone, somewhere going to court and suing the government. Instead you had a panel of experts and leaders in that field who approved the litigation. There's that aspect that will help the litigant as well.

Many of the lawyers in that field are known to do pro bono work, and that becomes part of the equation.

Yes, the cost of court cases has exploded over the last number of years. I'm sure my colleagues from Justice can talk about that. We're trying to catch up in a way, but the plan was never to pay in full for those litigations. The plan is to bring the first $100,000 to kick-start things, but never to pay in full, and hence the idea that it's groups and not individuals that bring these cases forward. You have to be solid to be able to sustain that type of burden for the long run if you're paying for it yourself.

[The Chair, Liberal, Anthony Housefather]

Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

I'd like to ask a few questions about the funding models that were in place for the court challenges program. What would be the funding criteria that you would need to establish approval for funding a particular case?

[Rachel Wernick]

For individual cases?

Go ahead.

[Yvan Déry]

In the case of the language rights support program, which has taken a page from their old program, it has to be a constitutional right listed in the contribution agreement that we have with the program. In the case of languages it's your constitutional right to education; the right that flows from the provision of services in French and English from federal institutions; and section 2 of the charter, which is the freedom of expression if it has a language aspect. Mr. Housefather was talking about the Ford case, which was against Bill 101 in Quebec. A provincial law cannot be attacked by the program, but because those elements of Bill 101 were talking about freedom of expression, which is guaranteed under the charter, it became something the program could help with.

The first test is the list of charter rights that are recognized and for which the program can be applied.

The second test, in the case of the language rights support program, is that a panel of experts will decide whether this case you're bringing forward is a test case and is the best case they should fund with the money they have available. With a cap of $125,000 per case, and roughly $700,000 put towards litigation per year, you can see they have to make some choices. The program is there to fund the best cases possible and not to fund them all.

[Rachel Wernick]

I would add it's fundamentally the same on the equality side. The case had to address the constitutional charter provisions that we went through already—federal law, policy, or practice—and meet the criteria for a test case.

I think it's important to mention it had to not duplicate cases that had already been funded, or had been attempted, or were before the court currently. There were some measures to ensure we were focusing in the right areas and not duplicating or overlapping.

[Ted Falk, Conservative, Provencher, MB]

When I'm envisioning access to justice, and I'm thinking that the program would be useful in establishing that access to justice, in the case of individuals, I could see where funding would be required. In the case of groups, often they have substantive funding available to them.

Is there a financial criteria that needs to be met before groups can access the funding? What kind of cost-sharing ratios do you consider, or do you fund 100% to certain thresholds? Tell me a little bit more about your fee schedules.

Further to that, are there hourly rate restrictions when counsel is retained, and what are those? I'd really be interesting in cost-sharing. When a group has the ability to pay for a challenge, and because there's a government program available, chooses rather to go that route, I'm wondering what your criteria is in establishing those.

[Yvan Déry]

The short answer to that is this is a program run by a third party. It was and it still is. We have a contribution agreement that is fairly detailed, but we don't go into that level of detail. If the case is accepted, the program extends the limit that has been discussed—$125,000 in the case of the language rights support program—for the litigant to pay for his legal fees. I'm not aware that the program establishes thresholds for hourly rates or other types of activities. All the cases that I know that have been to court have cost much more than the money that was offered by the program.

[Rachel Wernick]

There were maximum rates, but I agree with Yvan that it's third party delivery. The program, its board, its independent members decided these under the contribution agreement, but I have information here that, for example, the program established maximum rates for applicants to seek reimbursement for administrative fees, legal research and consultation fees, legal drafting, and photocopies. They were only allowed 20 cents per page.

There were specific limits put on all of these areas by the program in order to manage this.

[The Chair, Liberal, Anthony Housefather]

Mr. Falk's time is up. I want to just follow up on that. Would you be able to furnish the committees with copies of the contribution agreements so that we could see what they actually say?

[Rachel Wernick]

Most definitely.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. That would be appreciated.

Mr. Rankin.