On September 15, 2017, the B.C. Court of Appeal rejected a challenge by the Trial Lawyers Association of British Columbia (“TLA”) to the constitutionality of legislation requiring civil litigants opting for a jury trial to pay the fees and expenses of the jury and jury process. TLA 2017 holds that provinces may impose such fees without interfering with the core jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867.
Section 17 of the Jury Act states that a party requiring a jury in a civil matter must pay to the sheriff: (a) a sum sufficient to pay for the jury and jury process; and (b) any additional fees prescribed by the Jury Act or the Supreme Court Civil Rules for expenses of a jury and attendance of the sheriff or sheriff’s officers. Rule 12-6(3)(b) of the Supreme Court Civil Rules states that a party requiring a civil jury trial must pay the sheriff “a sum sufficient to pay for the jury and the jury process.”
In 2013, the B.C. sheriff service issued a notice to the legal profession setting the initial deposit fee at $1,500 (required to be deposited at least 45 days before trial) and additional daily deposit fees ranging between $800 to $1,200 (depending on the stage of the trial). The initial fee reflects an estimate of the fees for the jury and jury process up to and including the first day of trial. The further deposits are based on daily jury fees and expenses and an estimate of the costs to the sheriff in summoning and empaneling the jury, attending in court, escorting the jury, and related administration duties. At the end of the trial, the sheriff provides the party responsible for paying the jury fees with information about the total costs associated with the trial and their breakdown.
TLA argued, among other things, that the above provisions violated the core jurisdiction of the superior courts under s. 96 of the Constitution Act, 1867. Section 96 provides that:
The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.
While administrative in nature on its face, s. 96 has been interpreted by the Supreme Court to protect the government from interfering with the “core jurisdiction” of the superior courts, i.e. their “historic task of… resolv[ing] disputes between individuals and decid[ing] questions of private and public law.”
The Court of Appeal held that the jury fee scheme in B.C. was not a restriction on access to justice and therefore does not violate s. 96. The Court distinguished the Supreme Court’s decision in TLA 2014, which upheld a s. 96 challenge to B.C. legislation imposing user fees on all civil litigants (regardless of the mode of trial) with a narrow exception for “impoverished” litigants. That scheme, according to the TLA 2014 Court, placed undue burden on litigants and impeded the right of British Columbians to bring legitimate cases to court.
The Court of Appeal aptly described the concept of “core jurisdiction” under s. 96 of the Constitution Act, 1867 as “a nice question… [that has] never been definitively answered”. While refraining to venture a definitive answer, the Court of Appeal did emphasize that “laws denying access to the powers traditionally exercised by superior courts is the theme of much of the jurisprudence on s. 96 violations.” The challenged provisions did not deny access to the courts. As Hinkson C.J. held in the court below, a litigant who cannot or will not pay the reasonable expenses for a jury has his or her case determined by a judge.
The absence of a Charter right to a jury trial in civil cases was also a critical factor in the Court’s decision. The Charter confers a right to a jury trial in certain criminal matters only. Certain jurisdictions, such as Quebec, have abolished civil jury trials. Provinces that have retained civil jury trials restrict the matters that can heard before a jury in various ways. The Court’s ruling in TLA 2017 indicates that trial by jury in civil cases cannot be indirectly constitutionalized through the core jurisdiction protected by s. 96 of the Constitution Act, 1867. It is constitutionally permissible for the government to impose a user fee model for litigants that elect to use the jury system in civil cases.
It remains to be seen whether the case will be appealed to the Supreme Court.
Date of Decision: August 15, 2017
 2017 BCCA 324 [TLA 2017].
 B.C. Reg. 168/2009.
 Other provinces have enacted similar schemes. See e.g. Jury Act, R.S.A. 2000, c. J-3, s. 18(1) (Alberta); The Jury Act, 1998, c. J-4.2, s. 18(2) (Saskatchewan).
 TLA 2017, supra note 1 at ¶ 5.
 Trial Lawyers Association of British Columbia v. British Columbia (Attorney General),  3 S.C.R. 31, at ¶ 29 and 32 [TLA 2014].
 Ibid. at ¶ 50.
 Ibid. at ¶ 47.
 Supra note 1 at ¶ 49 (emphasis added).
 TLA 2017, supra note 1 at ¶ 42.
 Legroulx v. Pitre, 2009 ONCA 760 at para. 5, leave to appeal to S.C.C. refused  S.C.C.A. No. 34.
 See e.g. Courts of Justice Act, R.S.O. 1990, c. C.43, s. 18(2) (limiting issues of fact and assessment of damages to trial by judge alone in certain types of matters).