Written by Eric Epp
In the recent Manitoba Court of Queen’s Bench decision Flette et. Al. v. Manitoba (Flette) it was ruled that the government of Manitoba misappropriated funds meant for First Nation and Metis children in care. Within this decision, the bounds of the 2016 Supreme Court of Canada case Trial Lawyers Assn. of British Columbia v. British Columbia (Attorney General) (TLBC)were tested in Manitoba regarding the core jurisdiction of section 96 courts.
Previously, TLBC held that hearing fees that, in effect, barred access to the courts were unconstitutional via section 96 of the Constitution Act, 1867. While there is no express constitutional right for access to the courts, access to justice has been previously housed in the unwritten constitutional principle of the rule of law. However, TLBC appears to have given access to justice another constitutional home in section 96, according to Michelle Flaherty and Andrea Cole. Section 96 guarantees the core jurisdiction of superior courts in Canada, which includes that legislatures may not legislate away or abolish the core functions of s. 96 courts. The holding in TLBC was that inordinately expensive hearing fees infringed on the core jurisdiction of the courts to be a venue where people may resolve their disputes. Flette attempted to expand this principle in another direction.
Section 231 of the Budget Implementation and Tax Statutes Amendment Act (BITSA) retroactively removed any right to pursue a cause of action based on Manitoba’s allocations of federal government Child Special Allowance funds. Manitoba had used these remittances to reduce its total amount of expenditures paid out to children under its care. The end result was that children in care of the federal government received more funds than children in care of the province. The applicants argued that s. 231 of BITSA was even more egregious than the facts in TLBC because the applicants were completely barred from the court, thus completely removing part of the core jurisdiction of the section 96 courts.
The applicants in Flette argued that legislating away a cause of action infringed on the core jurisdiction of s. 96 courts. However, the applicants were up against significant jurisprudence allowing for provinces to bar certain civil causes of action in this way. Although the ability to legislate away causes of action is long established, it even recently being affirmed in Manitoba, one can see the parallels between effectual inaccessibility via money and complete inaccessibility via legislation. Although sympathetic to the access to justice argument, the Court in Flette ruled in favour of Manitoba given that barring a cause of action through legislation is a confirmed legislative ability, corollary to provinces’ powers over property and civil rights, so long as the legislation explicitly does so.
Flette does not appear to share the same access to justice concerns that TLBC had despite these similarities. A difference may be that inordinately expensive hearing fees seems to have been a freshly considered issue in TLBC, but the ability to bar a cause of action has had a significant judicial exploration and endorsement. Flette does acknowledge that s. 96 courts have a special role to play in access to justice, which does at least somewhat solidify access to justice’s place within s. 96 in Manitoba jurisprudence. More importantly, TLBC was a challenge to a procedural rule while Flette attempted to argue that Manitoba could not change substantive law. The implications of Flette may be that TLBC’s implications are only in the realm of procedure and not substance.
The applicants attempted to use article 40 of UNDRIP in a similar manner because UNDRIP has been endorsed both by Canada and Manitoba. Article 40 states “Indigenous peoples have the right to access to and prompt decision [sic] through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights”. This was applicable to this case because the overwhelming majority of children in care are Indigenous. According to the trial judge, article 40 does not move the needle in any different way for the constitutional analysis given that article 40 does not affect the province’s constitutional ability to eliminate a cause of action. Article 40, like the holding in TLBC, is concerned about procedural access to the courts.
A Note on Substantive Access to Justice
The judge twice notes in Flette that access to justice is not thwarted because the applicants had access to the court in order to even make their argument. I am not certain this argument would bring much peace to access to justice stakeholders. Much of the Canadian’s public view on what is truly access to justice is that of substantive justice. Commenting that access to justice principles were served by being able to unsuccessfully argue for a return of one’s divested rights would seem dubious at best to many. Ultimately, those involved in the legal system should be wary of legal rulings that might further alienate an already legally disconnected public. In Flette, the point is ultimately moot since the case was ruled in favour of the applicants on other grounds, but it is worth mentioning since it reflects an unresolved dissonance between procedural and substantive justice.
It appears safe to say that access to justice has a fairly tenuous constitutional grasp and we may also be seeing the primacy of textual constitutional principles over unwritten constitutional principles coming into play in Flette. The ability for a province to bar civil causes of action comes from the constitutional authority at s. 92(13) whereas access to justice floats within unwritten constitutional principles of both the rule of law and judicial independence according to Cole and Flaherty. This emphasis on text has been further bolstered by the recent Supreme Court decision in City of Toronto which held that unwritten constitutional principles cannot alone be used to invalidate legislation. Although not cited within Flette, the principles of Toronto seem to be implicit in this decision and a ruling in favour of the applicants may have been appealed quickly on this basis.
Taking TLBC and Flette in tandem we see that Canadians indeed have a constitutional right to access the courts. However, s. 96 does not provide for unfettered access, there may be reasonable limits. One of these reasonable limits has, and continues to be, government ability to legislate away causes of action. While it is not unreasonable to continue considering s. 96 as having an access to justice dimension within it, the decision within Flette seems to confirm that it likely will not be the future basis for radical decisions from the judiciary that overturn cemented jurisprudence.
 Trial Lawyers Ass. of British Columbia v. British Columbia (Attorney General), 2014 SCC 59 at para 48 [TLBC].
 Andrea A Cole & Michelle Flaherty, “Access To Justice Looking For A Constitutional Home: Implications For The Administrative Legal System” (2016) 94 Can Bar Rev 13 – 44 at paras 1, 16-18 (QL) [Constitutional Home].
 Ibid at paras 18-19, 26.
 TLBC, supra note 1 at paras 49-50, 64.
 For a detailed breakdown see: Cochrane Saxberg, “A Seismic Legal Decision – Court of Queen’s Bench Judge finds that Manitoba’s actions and law prohibiting children in care from reclaiming $335 million of misappropriated benefits was unconstitutional and discriminated against Indigenous foster children in breach of their Charter rights as Canadian Citizens” (19 May 2022), online: Cochrane Saxberg Barristers & Solicitors <https://cochranesaxberg.com/2022/05/19/a-seismic-legal-decision-court-of-queens-bench-judge-finds-that-manitobas-actions-and-law-prohibiting-children-in-care-from-reclaiming-335-million-of-misappropriated-benefits-was-unconst/> [https://perma.cc/P87G-MQBZ].
 Flette et al. v. The Government of Manitoba et al., 2022 MBQB 104 at para 141 [Flette].
 5185603 Manitoba Ltd. et al. v. Government of Manitoba et al.,2022 MBQB 36 at paras 34-36, 51.
 Flette, supra note 6 at paras 152-153.
 Ibid at paras 145-148.
 Ibid at para 154.
 Ibid at para 156.
 Ibid at paras 153, 156.
 Trevor C.W. Farrow, “What is Access to Justice?” (2014) 51:3 Osgoode Hall LJ 957 at 971-972 [Farrow].
 Farrow, supra note 13 at 972-974.
 Flette, supra note 6 at para 153.; Constitutional Home, supra note 2 at para 3.
 Toronto (City) v. Ontario (Attorney General), 2021 SCC 34 at para 63.