In order to bring a legal action in Canada, the party initiating the statement of claim must have what is known as “standing” on the matter. Standing refers to the legal entitlement to bring a particular matter before the court in question. Many parties have automatic standing due to the fact that they have a direct interest in the matter at hand, for example, if the shareholders of a business bring a claim against the business’s directors in relation to an ongoing dispute.

However, in some cases, a party will look to initiate a claim in the name of the public interest. For example, challenging the constitutionality of a law that does not necessarily impact the plaintiff directly, but could impact a broader scope of individuals in the country to whom the plaintiff is tangentially related.

In order to grant standing on the basis of public interest, Canada has long observed a standard three-part test which judges must consider before using judicial discretion to decide the matter. However, the Supreme Court of Canada recently heard a case that could change the way public interest standing is determined going forward.

The Current Test for Public Interest Standing in Canada

The test to determine whether an individual or organization may advance a claim on the basis of a matter of public interest was originally set out by the Supreme Court of Canada in the case Canada (Minister of Justice) v. Borowski [Borowski] in 1981. In that case, the plaintiff, an anti-abortion activist, sought a declaration that sections of the federal Criminal Code which allowed for therapeutic abortions were “invalid and inoperative” under the Canadian Bill of Rights. The test was revisited again in another landmark decision, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society [Eastside] in 2012, in which the Supreme Court reiterated the test set out in Borowski and stated that the three elements set out in Borowski must be weighed cumulatively and that none of the individual elements should be viewed as an independent test on their own.

The three elements of the test are as follows:

1. The issue at hand must be a serious, justiciable issue. The term “serious” refers to a “substantial constitutional issue” or an “important issue”. The term “justiciable” helps to ensure that the Courts remain within their constitutional boundaries, and refrain from exercising discretion in an area better left to other branches of government.
2. The plaintiff must have a real stake in the proceedings at hand or be engaged in the issues raised by the proceedings. For example, in Borowski, the Court found that the plaintiff had a genuine interest in the exculpatory provisions relating to therapeutic abortion in the Criminal Code.
3. The court should consider any other interrelated matters which may be useful to take into account. In Eastside, the Court expanded on this element by naming specific issues which may be useful, including:
   1. The plaintiff’s capacity to bring the matter before a court.
   2. Whether the issues in the case transcend the rights of those most directly impacted by the decision at hand.
   3. Whether the issues in the case at hand have the potential to provide access to justice to those who may otherwise be disadvantaged yet could be impacted by the decision.
   4. Whether there are better or more efficient alternatives to granting standing to the party to bring the matter before a court.
   5. How the outcome of the case might impact those who are equally or more directly affected by the issues at hand, and whether there is potential for a conflict between private and public interests.

While the existing test has been helpful in allowing court discretion to make determinations on a case-by-case basis, the test can also be relatively subjective, which in turn can lead to multiple appeals, and significant resources spent dealing with the issue of standing in general. The current case, Attorney General of British Columbia v. Council of Canadians with Disabilities [Canadians with Disabilities], has the potential to set more clear guidelines that will help expedite considerations of public interest standing across Canada.

Lower Court and Appeal Court Disagree on whether there is a Justiciable Issue to be Tried

Canadians with Disabilities was initiated by the Council of Canadians with Disabilities as a way to constitutionally challenge certain legal provisions in British Columbia’s Mental Health Act, which enable doctors to administer medications to a patient in a mental health care facility without the patient’s consent.

The attorney general challenged the Council’s standing in the matter and asked that the case be dismissed. The lower court applied the Borowski factors and found that the Council failed to meet the first and third factors. The court held that without the factual context of a specific individual plaintiff, there was no justiciable issue to be tried.

The Court of Appeal disagreed. After considering how the issue could be presented in court, including the availability of relevant witnesses, the Court found that an individual plaintiff was not necessary to establish a serious, justiciable issue. According to Elin Sigurdson, counsel for the BC Civil Liberties Union, an intervenor in the case, the decision was consistent with the “contextual, flexible, and purposive” approach taken by the Supreme Court in Eastside.

Opportunity for the Supreme Court to Refine the Test for Public Interest Standing

In mid-January of this year, the matter was heard by the Supreme Court of Canada, after being granted leave in April 2021. While the decision has not yet been released, many are hoping that the country’s highest court will take this opportunity to provide a more efficient and concrete approach to determining public interest standing.

The issue of whether the Council has standing to bring its case has been ongoing for four years now, an unfortunate side effect of a test that allows for flexibility and discretion. The approach taken by the Supreme Court in the Canadians with Disability has the potential to shape the future of how the issue of public interest standing is decided going forward.

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