LEAF, in coalition with the Council of Canadians with Disabilities, the Charter Committee on Poverty Issues and the Poverty and Human Rights Law Centre, intervened in the Supreme Court of Canada case of Alberta v. Caron. The appeal concerns the discretion of the Courts to award advance costs to claimants who would otherwise be unable to litigate their public interest claims. The test for advance interim costs, also referred to as Okanagan costs, was set out by the Supreme Court of Canada in its 1993 decision in British Columbia (Minister of Forests) v. Okanagan Indian Band. The Coalition factum argues that the Okanagan test must be considered in light of a contemporary understanding of the rule of law, the norm of substantive equality and the principle of access to justice as well as the legal principles underlying Canada’s international human rights obligations.
The decision of the Supreme Court in Caron will have significant implications for access to justice for disadvantaged and marginalized groups. Over the past decade, the elimination of the Court Challenges Programme, restricted access to legal aid, and the decreased availability of any other sources of funding for equality seekers to enforce and advance their constitutional rights, have increased the barriers to access to justice for marginalized groups. Systemic barriers to the court process reinforce the subordination of poor litigants who are members of historically marginalized groups, such as women, people with disabilities, racial minorities and Aboriginal people, and as a consequence subvert justice in a constitutional democracy. The Coalition factum argues that the interests of justice require that legal claims that seek to advance the full social and political participation of marginalized and minority groups fall within the class of “exceptional” cases which are deserving of advance costs
The appeal was heard by the Supreme Court of Canada on April 13, 2010. The Court reserved judgment.
