Saturday, September 22, 2012

Courts usurping Parliament? (so this is news?)

Canada (Attorney General) v.Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 has an interesting passage about public interest standing. In effect the Court says the historical limit on Court proceedings being brought only by persons with a definable interest should be cut back. 

This is of interest because it suggests Courts can and should make decisions based on academic interest rather than the resolution of real disputes in the real world. 

And this brings the Courts squarely into pure public policy (of course Canadian Courts have long made such decisions but in the past usually based on somebody being charged with something - as with Dr Morgentaler) They are not resolving issues between competing interests but making decisions on matters of public concern raised by persons who do not have penal or pecuniary interests at stake. 

I thought that was Parliament's role?  (of course Parliament is no blameless - there has been an abdication of responsibility there)

Here's what the Court said:

(a)  Scarce Judicial Resources and "Busybodies"

[26]                          The concern about the need to carefully allocate scarce judicial resources is in part based on the well-known "floodgates" argument.  Relaxing standing rules may result in many persons having the right to bring similar claims and "grave inconvenience" could be the result:  see e.g. Smith v. Attorney General of Ontario, [1924] S.C.R. 331, at p. 337.  Cory J. put the point cogently on behalf of the Court in Canadian Council of Churches, at p. 252: "It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by well-meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important."  This factor is not concerned with the convenience or workload of judges, but with the effective operation of the court system as a whole.

[27]                          The concern about screening out "mere busybodies" relates not only to the issue of a possible multiplicity of actions but, in addition, to the consideration that plaintiffs with a personal stake in the outcome of a case should get priority in the allocation of judicial resources. The court must also consider the possible effect of granting public interest standing on others.  For example, granting standing may undermine the decision not to sue by those with a personal stake in the case. In addition, granting standing for a challenge that ultimately fails may prejudice other challenges by parties with "specific and factually established complaints":  Hy and Zel's Inc. v. Ontario (Attorney General), [1993] 3 S.C.R. 675, at p. 694.

[28]                          These concerns about a multiplicity of suits and litigation by "busybodies" have long been acknowledged. But it has also been recognized that they may be overstated.  Few people, after all, bring cases to court in which they have no interest and which serve no proper purpose.  As Professor K. E. Scott once put it, "[t]he idle and whimsical plaintiff, a dilettante who litigates for a lark, is a specter which haunts the legal literature, not the courtroom": "Standing in the Supreme Court — A Functional Analysis" (1973), 86 Harv. L. Rev. 645, at p. 674.  Moreover, the blunt instrument of a denial of standing is not the only, or necessarily the most appropriate means of guarding against these dangers.  Courts can screen claims for merit at an early stage, can intervene to prevent abuse and have the power to award costs, all of which may provide more appropriate means to address the dangers of a multiplicity of suits or litigation brought by mere busybodies: see e.g. Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138, at p. 145.

1 comment:

The Rat said...

""[t]he idle and whimsical plaintiff, a dilettante who litigates for a lark, is a specter which haunts the legal literature, not the courtroom"

No, but the community organization litigating for political purposes is alive and well. From Rob Ford to the Council of Canadians to Sierra Legal Defence to local pains in the ass like the Pivot Legal Society we have seen a real trend towards increases in "public Interest" cases.

It's called lawfare.