SCC ruling makes way for access to justice by assessing public interest standing

Partner Andrew Bernstein spoke with The Lawyer’s Daily about the Supreme Court of Canada’s ruling in British Columbia (Attorney General) v. Council of Canadians with Disabilities, calling the decision an incremental move towards access to justice in assessing standing.

He said that “Downtown Eastside broke from the formalism of the Borowski test [for public interest standing] with a focus on legality, that is government’s obligation to comply with the law, and the Constitution in particular. This decision reinforces that access to justice is a key consideration, although the court was careful to say it was ‘a’ key consideration not ‘the’ key consideration in assessing standing—and the court says clearly and unambiguously that it’s not necessary to have a ‘directly affected’ plaintiff, which is an argument that public interest groups like CCLA face often in trying to bring cases before the court.”

The decision’s impact is to invite public interest organizations to bring legitimate and resourced claims to hold the government to account. 

“It is also a pretty clear signal to governments to stop challenging standing at an early stage, on the speculative basis that there will not be a sufficient factual record at trial,” he advised.

Andrew said that while the decision doesn’t go much beyond Downtown Eastside, it does provide useful guidance about what is not necessary, i.e. a directly affected co-plaintiff, and what is, i.e. a plan to establish a factual context at trial.

He added that the court’s guidance on how to establish that there’s a sufficient factual context for the public interest litigation is new and extremely useful.

“Everyone should read it carefully before they commence a public interest case,” Andrew said.

“Lawyers should think about this very carefully—and start gathering evidence—before they start their public interest claims, so that they are ready for the motion to dismiss for lack of standing if it gets brought. Worst-case scenario, you get ahead of yourself a little bit and are a prepared for trial earlier than you might otherwise be. It’s never going to be a wasted effort.”

Andrew acted as co-counsel with Emily Sherkey and Alexandra Shelley for the intervener Canadian Civil Liberties Association.

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