In confirming the test for public interest standing, and awarding full indemnity special costs against the unsuccessful party challenging such standing, the Supreme Court of Canada's decision in British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27 promotes access to justice.
The Court confirmed that a court considering the issue of public interest standing must assess and weigh three factors: (i) whether the case raises a serious justiciable issue; (ii) whether the party bringing the action has a genuine interest in the matter; and (iii) whether the proposed suit is a reasonable and effective means of bringing the case to court.
The court found that legality and access to justice have played a pivotal role in the development of public interest standing. Access to justice is symbiotically linked to public interest standing: it provides an avenue to litigate the legality of government action in spite of social, economic or psychological barriers which may preclude individuals from pursuing their legal rights.
There is no legal or evidentiary hurdle on a party claiming public interest standing to identify a directly affected plaintiff. The test must be applied in a manner that is responsive to the stage of the litigation in which the application to strike the claim is brought. If 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.
The successful respondents were granted standing by the Supreme Court of Canada.
Also of significance, the Court ordered full indemnity special costs against the unsuccessful Attorney General. In exercising its discretion to make such an order, the Court held: " the scope of public interest standing and the circumstances in which organizations may pursue public interest litigation without an individual plaintiff is a matter of public interest that has a significant and widespread societal impact. The participation of over 20 interveners from across the country representing a range of interests and perspectives with respect to this appeal is a testament to this fact."
Alison M. Latimer, Q.C. acted for the interveners the John Howard Society of Canada and the Queen’s Prison Law Clinic.