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Standing - Public Interest Standing
MORE CASES
Part 2
. British Columbia (Attorney General) v. Council of Canadians with Disabilities
In British Columbia (Attorney General) v. Council of Canadians with Disabilities (SCC, 2022) the Supreme Court of Canada builds upon Downtown Eastside public interest standing doctrine [para 28], here by downplaying the need for a 'co-plaintiff' [someone with a direct standing interest] who can advance facts to be conventionally tested. The SCC is now prepared, albeit cautiously and with the judge's constant discretion to withdraw the standing, to countenance facts being provided by a well-prepared public interest litigant. The court draws upon the principles of 'legality' [para 22, 33] and 'access to justice' [para 22, 34] in it's ruling. The entire case is worth reading, but the following are the essence of it:B. Sufficient Factual Setting For Trial
[60] The third Downtown Eastside factor requires courts to consider whether, in all the circumstances, a proposed suit is a reasonable and effective means of bringing an issue before the courts. One of the many matters a court is to consider when assessing this factor is “the plaintiff’s capacity to bring forward [the] claim” (para. 51). To evaluate the plaintiff’s capacity to do so, the court “should examine, amongst other things, the plaintiff’s resources, expertise, and whether the issue will be presented in a sufficiently concrete and well-developed factual setting” (para. 51).
[61] The dispute in this appeal revolves around this last question: “. . . whether the issue will be presented in a sufficiently concrete and well-developed factual setting”. The AGBC argues that CCD did not — and cannot — adduce a sufficient factual setting because it lacks an individual co-plaintiff, and that standing should therefore be denied.
[62] The AGBC’s argument invites this Court to consider how public interest litigants can satisfy a court that a sufficient factual setting will exist at trial. Is an individual plaintiff necessary in circumstances like those on appeal? If not, how can a plaintiff satisfy the court that such a setting will be forthcoming where, as here, standing is challenged at a preliminary stage of litigation? And, if it becomes necessary to revisit the issue of standing to ensure that this factual setting exists, under what circumstances should a party be permitted to do so?
(1) Individual Co-plaintiff Not Required
[63] At the outset, both parties rightly acknowledge that public interest litigation may proceed in some cases without a directly affected plaintiff (see, e.g., A.F., at para. 59). A statute’s very existence, for example, or the manner in which it was enacted can be challenged on the basis of legislative facts alone (see, e.g., Danson, at pp. 1100-1101).
[64] The AGBC, however, submits that where the impacts of legislation are at issue, evidence from a directly affected plaintiff is vital to “ensuring that a factual context suitable for judicial determination is present” before standing is granted (A.F., at para. 60). In such cases, the AGBC maintains, an applicant for public interest standing should be required to (i) explain the absence of an individual plaintiff, (ii) show how it is a suitable proxy for the rights and interests of directly affected plaintiffs, and (iii) demonstrate, “with some specificity”, how it will provide a well-developed factual context that compensates for the absence of a directly affected plaintiff (paras. 40 and 66).
[65] I would not impose such rigid requirements, for two reasons.
[66] First, a directly affected plaintiff is not vital to establish a “concrete and well-developed factual setting”. Public interest litigants can establish such a setting by calling affected (or otherwise knowledgeable) non-plaintiff witnesses (see, e.g., Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at paras. 14-16, 22 and 110; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 15 and 54; Downtown Eastside, at para. 74). As long as such a setting exists, a directly affected co-plaintiff or a suitable proxy is not required for a public interest litigant to be granted standing. If a directly affected co-plaintiff is not required, then would-be public interest litigants should not have to justify — or compensate for — the absence of one.
[67] Second, the AGBC’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 is already fraught with formidable obstacles for litigants. These proposed requirements would also raise unnecessary procedural hurdles that would needlessly deplete judicial resources. Given these 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. I would not disturb that conclusion here.
(2) Satisfying a Court on this Factor Will Be Context-Specific
[68] The question remains: In the absence of a directly affected co-plaintiff, how might a would-be public interest litigant demonstrate that the issues “will be presented in a sufficiently concrete and well-developed factual setting” (Downtown Eastside, at para. 51 (emphasis added))? And, in particular, how might such a litigant do so where (as here) standing is challenged at a preliminary stage of the litigation?
[69] To begin, a few clarifications are in order. As the Court explained in Downtown Eastside, none of the factors it identified are “hard and fast requirements” or “free-standing, independently operating tests” (Downtown Eastside, at para. 20). Rather, they are to be assessed and weighed cumulatively, in light of all the circumstances. It follows that, where standing is challenged at a preliminary stage, whether a “sufficiently concrete and well-developed factual setting” will exist at trial may not be dispositive. The trial judge retains the discretion to determine the significance of this consideration at a preliminary stage by taking the particular circumstances into account.
[70] That said, the absence of such a setting will in principle be dispositive at trial. A court cannot decide constitutional issues in a factual vacuum (Mackay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357, at pp. 361-62). Evidence is key in constitutional litigation unless, in exceptional circumstances, a claim may be proven on the face of the legislation at issue as a question of law alone (see, e.g., Danson, at pp. 1100-1101, citing Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110, at p. 133). Standing may therefore be revisited where it becomes apparent, after discoveries, that the plaintiff has not adduced sufficient facts to resolve the claim. As I will explain below, however, parties should consider other litigation management strategies before revisiting the issue of standing, given that such strategies may provide a more appropriate route to address the traditional concerns that underlie standing law (Downtown Eastside, at para. 64). For example, summary dismissal may be open to a defendant where there is no evidence to support an element of the claim (as in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 93).
[71] With these clarifications in mind, I will now return to the question at hand: What suffices to show that a sufficiently concrete and well-developed factual setting will be forthcoming at trial? The answer to this question necessarily depends on the circumstances, including (i) the stage of litigation at which standing is challenged, and (ii) the nature of the case and the issues before the court. On the first point, what may, for example, satisfy the court at an early stage may not suffice at a later stage. Likewise, the significance of a lack of evidence will vary with the nature of the claim and the pleadings. Some cases may not be heavily dependent on individual facts — where, for example, the claim can be argued largely on the face of the legislation. In such cases, an absence of concrete evidence at the pleadings stage may not be fatal to a claim for standing. Where a case turns to a greater extent on individual facts, however, an evidentiary basis will weigh more heavily in the balance, even at a preliminary stage of the proceedings.
[72] When standing is challenged at a preliminary stage, the plaintiff should not be required to provide trial evidence. That would be procedurally unfair, as it would permit the defendant to obtain evidence before discovery. Generally, however, a mere undertaking or intention to adduce evidence will not be enough to persuade a court that an evidentiary basis will be forthcoming. It may be helpful to give some examples of the considerations a court may find relevant when assessing whether a sufficiently concrete and well-developed factual setting will be produced at trial. As was the case in Downtown Eastside, for the purposes of its assessment of the “reasonable and effective means” factor, this list is not exhaustive, but illustrative.1. Stage of the proceedings: The court should take account of the stage of the proceedings at which standing is challenged. At a preliminary stage, a concrete factual basis may not be pivotal in the Downtown Eastside framework — the specific weight to be attached to this consideration will depend on the circumstances, and ultimately lies within the trial judge’s discretion. At trial, however, the absence of a factual basis should generally preclude a grant of public interest standing.
2. Pleadings: The court should consider the nature of the pleadings and what material facts are pled. Are there concrete facts with respect to how legislation has been applied that can be proven at trial? Or are there merely hypothetical facts with respect to how legislation might be interpreted or applied? Do the pleadings reveal that the case can be argued largely on the face of the legislation, such that individual facts may not be pivotal? Or does the case turn more heavily on individualized facts?
3. The nature of the public interest litigant: The court may also consider whether the litigant — if it is an organization — is composed of or works directly with individuals who are affected by the impugned legislation. If that is the case, it would be reasonable to infer that the litigant has the capacity to produce evidence from directly affected individuals.
4. Undertakings: Courts rigorously enforce undertakings, which must be “strictly and scrupulously carried out” (see, e.g., Law Society of British Columbia, Code of Professional Conduct for British Columbia (online), rule 5.1-6). An undertaking by a lawyer to provide evidence might help to persuade a court that a sufficient factual setting will exist at trial, but an undertaking alone will seldom suffice.
5. Actual evidence: Though a party is not required to do so, providing actual evidence — or a list of potential witnesses and the evidence they will provide — is a clear and compelling way to respond to a challenge to standing at a preliminary stage. As I explained above, the significance of a lack of evidence will depend on the stage of the litigation, the nature and context of the case, and the pleadings. (3) Ability to Revisit Standing
[73] In Downtown Eastside, this Court cautioned against using the “blunt instrument of a denial of standing” where other well-established litigation management strategies could ensure the efficient and effective use of judicial resources (para. 64). For example, courts can screen claims for merit at an early stage by intervening to prevent abuse, and have the power to award costs. A court hearing a preliminary challenge to standing may also defer consideration of the issue to trial (Finlay, at pp. 616-17). Any of these tools may provide a more appropriate route to address the traditional concerns that underlie standing law, and courts should take these tools into account when exercising their discretion to grant or deny standing (Downtown Eastside, at para. 64). Likewise, parties should generally pursue alternative litigation management strategies first, before seeking to revisit the issue of standing.
[74] Courts, however, retain the ability to reconsider standing, even where it was initially granted at a preliminary stage (Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342). The ability to revisit standing depends on a plaintiff’s continued efforts to demonstrate that a sufficiently concrete and well-developed factual setting will be put forward at trial. In this sense, the ability to revisit standing acts as a fail-safe to ensure that the plaintiff does not rest on its laurels.
[75] To be clear, the courts’ ability to revisit standing is not an open invitation to defendants to challenge standing at every available opportunity. Litigants must not waste judicial resources or unduly hinder the litigation process. For that reason, a defendant wishing to revisit standing may apply to do so only if a material change has occurred that raises a serious doubt that the public interest litigant will be able to put forward a sufficiently concrete and well-developed factual setting, and alternative litigation management strategies are inadequate to address the deficiency. One example of such a material change would be where the plaintiff undertook to provide evidence in response to a previous challenge to standing but failed to do so. By contrast, moving from one stage of the litigation to another does not, by itself, correspond to a material change that would merit revisiting standing.
[76] A material change that raises a serious doubt that a plaintiff will be able to put forward a sufficiently concrete and well-developed factual setting is most likely to occur when the parties exchange pleadings or complete the discovery stage. These are the steps in the litigation process at which the factual setting is most likely to emerge. Unsurprisingly, the importance of the factual setting increases at each step of the process as the litigation progresses. This means that a plaintiff’s inability to demonstrate that it will put forward a sufficiently concrete and well-developed factual setting will carry more weight at the close of the discovery stage than after the exchange of pleadings, at which point the absence of concrete evidence would be less significant. Like the initial decision on standing, a decision to revisit standing turns on the particular circumstances of the case (Downtown Eastside, at para. 2).
[77] While I do not foreclose the possibility of a material change occurring other than at the pleadings and discovery stages, such an occurrence would be rare. One example of an appropriate case would be where the original basis for the plaintiff’s standing has been called into question or becomes moot. The latter situation arose in the Borowski saga. In 1981, this Court granted Mr. Borowski public interest standing to challenge the prohibition against abortion in the Criminal Code, R.S.C. 1970, c. C-34 (see Minister of Justice of Canada v. Borowski, 1981 CanLII 34 (SCC), [1981] 2 S.C.R. 575), but the impugned provisions were subsequently struck down in R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30. In 1989, this Court held that Mr. Borowski lacked standing to continue the case, because he was now asking the court to address a “purely abstract question” about the rights of a foetus, which meant that his challenge now amounted to a “private reference” (Borowski (1989), at pp. 365-68). . Anderson v. Alberta
In Anderson v. Alberta (SCC, 2022) the Supreme Court of Canada considered rules around costs-funding by government parties of public interest litigation in the event of 'impecuniosity' of a party. Here, the funding applicant was a native band but the principles may be adaptable to public interest litigation generally [paras 16-52].
. Carroll v. Toronto-Dominion Bank
In Carroll v. Toronto-Dominion Bank (Ont CA, 2021) the Court of Appeal considered an interesting 'whistleblower' standing case where a former bank employee sought an application for various remedies that were directed at exposing the bank's breach of fiduciary duty to investors. The court contrasted private interest and public interest standing [para 32-43].
. Know Your City Inc. v. The Corporation of the City of Brantford
In Know Your City Inc. v. The Corporation of the City of Brantford (Div Ct, 2021) the Divisional Court considers public interest standing:[30] KYC asserts that, as a concerned citizen, it is entitled to a form of “public interest” standing to pursue this litigation. It relies on the decision of the Supreme Court in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524. In Downtown Eastside, Cromwell J., writing for the Court, begins the decision by discussing the law of standing and the role of public interest standing as follows:This is appeal is concerned with the law of public interest standing in constitutional cases. The law of standing answers the question of who is entitled to bring a case to court for a decision. Of course it would be intolerable if everyone had standing to sue for everything, no matter how limited a personal stake they had in the matter. Limitations on standing are necessary to ensure that courts do not become hopelessly overburdened with marginal or redundant cases, to screen out the mere “busybody” litigant, to ensure that courts have the benefit of contending points of view of those most directly affected and to ensure that courts play their proper role within our democratic system of government. The traditional approach was to limit standing to persons whose private rights were at stake or who were specially affected by the issue. In public law cases, however, Canadian courts have relaxed these limitations on standing and have taken a flexible, discretionary approach to public interest standing, guided by the purposes which underlie the traditional limitations. [Citations omitted.] [31] Justice Cromwell goes to outline, at para. 2, the three factors that the courts have weighed in deciding whether a party should be granted public interest standing: (1) Does the case raise a “serious justiciable issue”?; (2) Does the party bringing the proceeding have “a real stake or a genuine interest in its outcome’? and (3) “[W]hether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court”. . Democracy Watch v. Ontario Integrity Commissioner
In Democracy Watch v. Ontario Integrity Commissioner (Div Ct, 2020) the Divisional Court cites the leading public interest standing case as follow:27. The parties agree that the governing test for public interest standing is set forth in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society.[11]
28. The court is required to consider three factors, namely:a. whether there is a serious justiciable issue raised;
b. whether the Applicant has a real stake or a genuine interest in the outcome; and
c. whether, in all the circumstances, the proceeding is a reasonable and effective way to bring the issue before the courts. . Ontario (Attorney General) v. Bogaerts
In Ontario (Attorney General) v. Bogaerts (Ont CA, 2019) the Court of Appeal commented on the need for an evidentiary context when granting public interest standing:[33] I would, however, point out that the combined effect of the order granting the respondent public interest standing and striking out the affidavits providing specific instances of the infringement of Charter rights resulted in this court having a less than satisfactory record. In Downtown Eastside Sex Workers, the case recognizing generous scope for public interest standing, the Supreme Court noted, at para. 74, that there was a substantial record of affidavit evidence as to the operation and impact of the challenged legislation, to “provide a concrete factual background” for the challenge. By contrast, on this application and appeal, the constitutional arguments were advanced in the abstract without a proper factual foundation. In my view, it would have been preferable had this challenge come before the court either on the application of an individual who had been subjected to the challenged statutory powers, or upon some other proper record, to provide a concrete factual context for the consideration of the constitutional issues raised. . Alford v. Canada (Attorney General)
In Alford v. Canada (Attorney General) (Ont CA, 2019) the Court of Appeal held that public interest standing supported an application by a law professor to challenge a provision of a federal security statute that he alleged violated parliamentary privilege:[4] In our view, Mr. Alford’s public interest standing should be recognized. A balancing of the factors identified in Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General) 2012 SCC 45 (CanLII), [2012] 2 S.C.R. 524, supports this conclusion. Mr. Alford raises a serious issue, suitable for adjudication. He has demonstrated a genuine interest in this issue, having published on the topic and having participated in committee hearings relating to the legislation. The challenge he wishes to bring is a reasonable and effective way to bring the matter before the court. He is highly competent and able to represent the constitutional issues at stake, and clearly motivated to do so. There can be no concern that he is a busybody or that his interest is purely academic. He sees this challenge as an issue of public importance impacting on fundamental principles of democracy.
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