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Access to Law

. 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 espoused the principles of 'legality' and 'access to justice' as bases for an expansion of public interest law:
[22] In its analysis, the Court of Appeal began by commenting on two principles that Downtown Eastside highlighted as important features of standing law: (i) the importance of courts upholding the legality principle — the idea that state action must conform to the Constitution and must not be immunized from judicial review — and (ii) the practical realities of providing access to justice for vulnerable and marginalized citizens who are broadly affected by legislation of questionable constitutional validity.

....

[30] Courts must also consider the purposes that justify granting standing in their analyses (Downtown Eastside, at paras. 20, 23, 36, 39-43, 49-50 and 76). These purposes are twofold: (i) giving effect to the principle of legality and (ii) ensuring access to the courts, or more broadly, access to justice (paras. 20, 39-43 and 49). The goal, in every case, is to strike a meaningful balance between the purposes that favour granting standing and those that favour limiting it (para. 23).

[31] Downtown Eastside remains the governing authority. Courts should strive to balance all of the purposes in light of the circumstances and in the “wise application of judicial discretion” (para. 21). It follows that they should not, as a general rule, attach “particular weight” to any one purpose, including legality and access to justice. Legality and access to justice are important — indeed, they played a pivotal role in the development of public interest standing — but they are two of many concerns that inform the Downtown Eastside analysis.

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[33] The legality principle encompasses two ideas: (i) state action must conform to the law and (ii) there must be practical and effective ways to challenge the legality of state action (Downtown Eastside, at para. 31). Legality derives from the rule of law: “[i]f people cannot challenge government actions in court, individuals cannot hold the state to account — the government will be, or be seen to be, above the law” (Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31, at para. 40).

[34] Access to justice, like legality, is “fundamental to the rule of law” (Trial Lawyers, at para. 39). As Dickson C.J. put it, “[t]here cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice” (B.C.G.E.U. v. British Columbia (Attorney General), 1988 CanLII 3 (SCC), [1988] 2 S.C.R. 214, at p. 230).
. Radosevich v. Harvey

In Radosevich v. Harvey (Div Court, 2022) the Divisional Court considered whether a family law client's remedy to an unsatisfactory separation agreement lay with the FLA processes available (which the court held) or - styled in solicitor negligence - with an action against her former lawyer. The ruling was based on abuse of process and appears to be from a line of cases that bars civil litigation in family matters:
[2] The appellant, Mary Radosevich, retained the respondent solicitor, Jane Harvey, to help her negotiate a separation agreement. Unhappy with the agreement, the appellant says that the respondent was negligent in her legal representation. The appellant commenced an action against the respondent seeking to recover the amount to which she claims entitlement by way of unsought spousal support. Vella J. stayed the action as an abuse of process, ruling that the appellant must exhaust her remedies under the Family Law Act R.S.O. 1990, c. F.3 (“FLA”), before she could pursue a civil action against her solicitor.

....

[4] .... In our view, Vella J. correctly held that this family dispute should be adjudicated under the terms of the FLA, the Act that governs spousal support obligations. It is also the statutory mechanism by which a party may seek to set aside a separation agreement, which is the remedy that the appellant should seek in this case before resorting to a civil action against her lawyer.

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[6] However, the support obligation is that of the appellant’s husband, not that of her lawyer. If the appellant entered into an unfair separation agreement, the situation should be rectified under the authority of the FLA, which is “a complete code for the bringing, proving and adjudicating of spousal support claims”: Conroy v. Vassel, 2019 ONSC 4147, at para. 15. The civil law system must not be used to circumvent the statutory regime governing matrimonial disputes: Cunningham v. Moran, 2011 ONCA 476, at paras. 36 and 40; Sutton v. Balinsky, 2015 ONSC 3081, at paras. 174-177. The pursuit of civil damages in lieu of matrimonial proceedings is inconsistent with the proper and orderly interests of justice. It is, as found by Vella J., an abuse of process.

....

[10] In short, as held by Vella J., the appellant’s claims are justiciable under the FLA and that is where they should be tried. Contrary to the argument of the appellant, she does not have the right to choose her defendant. By commencing an action against her solicitor, the appellant chose the wrong forum and is calling the wrong party to account. We agree with the conclusion of Vella J. in para. 14:
[14] For these reasons, I concluded that Ms. Radosevich must attempt to vary the separation agreement, and otherwise avail herself of whatever remedies she might have against her former husband under the relevant family law legislation first, before coming to the civil court to advance an action based on solicitor's negligence against her former lawyer. The remedies advanced by Ms. Radosevich against Ms. Harvey are, in substance, matters governed by the FLA; namely, whether retroactive spousal support ought to be paid by her husband, and whether the lump sum spousal support agreed to be paid was fair in light of her husband's true financial picture.









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