By Glenn McAleer
The Judiciary in Canada was founded around the scrutiny of private disputes (as opposed to public issues). However, public interest cases are on the rise in Canada. This increase is due in part to the advent of the Charter, but the same phenomenon is happening in other commonwealth countries as well. This trend towards liberalization, which began in Canada with the Supreme Court of Canada’s (SCC) decision in Thorson v. Attorney General of Canada, culminated in the SCC’s decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society (Eastside). In Eastside, the Supreme Court of Canada recognized that the increase in governmental regulation and the introduction of the Charter brought the courts from a purely private conception of their role to a position of willingness to consider public interest claims. Historically, public claims, including claims made by organizations or individuals on behalf of marginalized groups, have been heavily scrutinized. In Eastside, the SCC relaxed the standing test to be applied to these public claims and recognized that public interest standing can provide access to justice for disadvantaged groups. While the SCC relaxed the test, the new test still affords courts great discretion. Whether the relaxed test provides greater to access to justice, or at least greater access for prospective litigants, has yet to be proven conclusively. I recently conducted a quantitative study for use in a term-paper to determine whether the relaxed standing test has had a measurable effect on the success of prospective litigants seeking public interest standing.
History of Public Interest Standing
Prior to Thorson, a person would typically only be granted standing if their rights were directly affected by a matter. Only the Attorney General had the authority to sue in relation to public interest. Only in two rare circumstances could a person gain public interest standing: 1) by showing they had suffered special damages or 2) by being accorded standing through the Attorney General granting permission to bring a relator action for a public wrong.
The advent of the Charter changed this conception of public standing: first, the contradiction between the Attorney General’s dual roles as the defender of the public interest and as a member of Cabinet was brought into sharp relief. Government policy was increasingly seen to be against the public interest…the Charter gave all Canadians certain defined, justiciable rights and freedoms that were often insufficiently protected… As a result, public interest groups had firmer ground on which to stand.
In her article “Reopening Law’s Gate: Public Interest Standing and Access to Justice,” Jane Bailey describes the trio of cases following Thorson (McNeil, Borowski, and Finley), as effectively opening the gate of public interest standing. Following these decisions, Bailey describes Churches as closing the gate.
The SCC in Churches laid out the three-part discretionary criteria. First, is there a “serious issue raised…Second, has it been established that the plaintiff is directly affected… or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the court?” The court in Churches repeatedly mentioned that the principles should be applied liberally and generously, but then changed direction in considering the impact that a personally affected private plaintiff would have on the application of the third discretionary factor. June Ross explains that:
The restriction of public standing in order to preserve judicial resources for private plaintiffs amounts to an abandonment of the perspective of Finlay, i.e., that the consideration of serious constitutional or other public law issues presented by motivated litigants is a proper use of court resources … the court’s language suggests that the mere existence of directly affected persons, even if they had not commenced litigation, would be sufficient to bar public interest standing.
The abandonment of the perspective in Finlay did not last, however, as 20 years after the decision in Churches, the Court reformulated the public interest standing test in Eastside. In Eastside, the court laid out a framework for how the judicial discretion to grant or deny public interest standing should be applied. In contemplating the third discretionary factor, Cromwell J., for the majority, stated:
I conclude that the third factor in the public standing analysis should be expressed as: whether the proposed suit is, in all of the circumstances, a reasonable and effective means of bringing the matter before the court. This factor, like the other two, must be assessed in a flexible and purposive manner and weighed in light of the other factors.
While Cromwell J. insists that the court has rarely applied the discretionary factors mechanically, the language in Churches seeks any other reasonable and effective means to bring the challenge to the court, and the SCC in Eastside merely asks whether the suit at hand is a reasonable and effective means. The change requires those who would apply the discretionary test to consider the reasonableness of the case before them as opposed to treating the existence of directly affected people as fatal to any claim seeking public interest standing. Cromwell stated in Eastside that “[t]he existence of other potential plaintiffs ... is relevant, but the practical prospects of their bringing the matter to court at all or by equally or more reasonable and effective means should be considered in light of the practical realities, not theoretical possibilities.” In Eastside, none of the Society’s members were willing to bring a challenge forward because they feared losing their privacy, which would increase their exposure to violence. Thus, while there existed potential plaintiffs who would have standing as of right, the practical prospects of their bringing a suit convinced the SCC to grant the Society public interest standing on behalf of their members. The SCC in Eastside explained that “one of the ideas which animates public interest litigation is that it may provide access to justice for disadvantaged persons in society whose legal rights are affected.” It is through this representative application that public interest standing can provide an avenue for access to justice.
It is this apparent liberalization of the public interest standing test that led to this quantitative study. Bailey identifies the judicial discretion to grant or deny public interest standing as an illustration of the judiciary’s gatekeeping role on access to justice:
[D]evelopments in the public interest standing test demonstrate the crucial role that judicial interpretation and application of the law can play in deciding whether all citizens have substantively equal access to the justice that apparently lies on the other side of law’s gate.
There has been some academic praise regarding the reformation of the public interest standing test espoused in Eastside. Phillips believes that the reformation of the test will make the exception the new rule, allowing all but few to gain public interest standing. McKay-Panos writes:
DESW [Eastside] constitutes a significant step forward in increasing access to Charter litigation. It recognizes that public interest litigants are crucial to realizing the Charter’s democratic potential because they can address the systemic impacts of the law on the most vulnerable people in a way that isn’t possible in individual litigation.
While litigation remains prohibitively expensive or otherwise unattractive for individuals to bring forth via standing by right, especially in the case of marginalized community members, or because of laws having a chilling effect on a group without direct or traditionally justiciable issues, public interest standing should be understood as a vehicle for organizations to protect the rights of their constituents. Whether or not the liberalized standing test has afforded these organizations such an opportunity is yet to be determined.
I restricted the scope of the study by only considering appellate level decisions, from the SCC’s seminal decision in Churches until December 2022. This scope provided a 30-year window through which to compare data from 20 years before Eastside to the 10 years after. This comparison shows how the appellate level courts applied the relaxed public interest standing test, and whether its relaxation had a measurable impact on the number and percentage of public interest litigants granted standing in Canada since Eastside. Data collected includes whether public interest standing was granted, and if it was denied, which part of the 3-step process was determinative in the case, as well as the jurisdiction of the decision. The same method was used to collect data both pre- and post-Eastside.
Pre-Eastside, the filter results left 53 cases. Further inspection showed many did not consider public interest standing or were decided on other grounds. After excluding these cases, 38 applied the public interest standing test as iterated in Churches prior to the decision in Eastside. Of these 38 cases, standing was granted or upheld in 20, it was denied in 17, and 1 was remitted to trial for consideration. This represents approximately 54% of litigants being granted standing, 44% denied, and 2.5% remitted.
Post-Eastside, the filter results left 61 cases. Further inspection proved similar to the pre-Eastside cases. Many cases did not consider public interest standing, or standing was decided on a basis other than the test laid out in Eastside. After excluding such cases, 40 cases applied the public interest standing test laid out in Eastside. Of these cases, only 17 litigants were granted public interest standing, 19 were denied, and 4 were remitted to trial or tribunal for consideration. This represents approximately 42.5% of litigants being granted standing, 47.5% denied, and 10% remitted.
More litigants applied for public interest standing or had their public interest standing challenged at the appellate level in the 10 years after Eastside than the 20 years prior. In just half the time, more groups sought public interest standing—a substantial increase since the reformation of the test. The easing of the test may not be the only factor, however. A general liberalization of public interest standing has occurred across common law jurisdictions outside of Canada, and the introduction of the Charter has also affected the ability of groups to seek public interest standing. Boughey states that, “[t]he Charter may… have provided more ‘hooks’ on which representative groups could hang constitutional challenges, thereby adding to the number of representative challenges and accelerating the existing liberalizing trend.” While Churches certainly came long after the advent of the charter, the general liberalizing trend may have influenced the total number of prospective litigants seeking public interest standing, even without the test itself being restated.
While there were more individuals and organizations seeking public interest standing in the 10 years post-Eastside, as opposed to the 20 years prior, fewer, on average, were granted standing. While each case turns on a specific set of facts and contains different issues and considerations relating to the application of scarce judicial resources, it is apparent that the liberalization of the test in Eastside has not caused a floodgate issue in the slightest, at least at the appellate level. To take the findings further, the reformation of the test, as applied by appellate level courts, may have failed to meet the goal iterated in Eastside as increasing access to justice for marginalized groups. While the Supreme Court’s reformation of the test led to a high ratio of standing granted to standing denied at that level, the same cannot be said for every jurisdiction (especially Alberta, which features a relatively high volume of prospective public interest litigants who are routinely denied standing).
A broad, surface-level, quantitative study like this cannot answer whether the relaxed test increases access to justice, an equally broad concept. However, a common theme throughout the development of the public interest standing test has been hesitation to allow busybodies into the courtroom to preserve court resources. This study, by not providing a full contextual analysis on a case-by-case basis, cannot determine the merits of each case. But this study does show that the relaxation in the public interest standing test has not substantiated concerns regarding a floodgate issue for the court system; appellate courts in Canada are still comfortable using their discretion to deny public interest standing.