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Improving access to justice in public interest cases

January 19, 2012

On Jan. 19, 2012, Ecojustice appeared before the Supreme Court of Canada in an important case dealing with Canada’s “public interest standing” test.  In order to bring a court case challenging a law or government decision, an applicant must be granted “standing” either because they are personally effected by the outcome of the case or because they are well situated to bring a case on a matter of legitimate public interest.

In the legal world, public interest cases are those brought to protect the environment, human rights, civil liberties, or vulnerable members of society. Canada’s public interest standing test was developed in the 1980s. Its application by the courts has been inconsistent over the years and, at times, groups or individuals have been prevented from going to court because they failed to meet the test’s standards. Many countries around the world have developed more modern and progressive “public interest standing” tests that allow their citizens to stand up for the public interest by bringing cases to stop unlawful activities.

This case involved two applicants – a former sex worker named Sheryl Kiselbach and the Downtown Eastside Sex Workers United Against Violence Society (SWUAV), a group that works to improve conditions for women in the sex trade. Their case, seeking to challenge some of Canada’s criminal laws related to the sex trade, had been held up in court since 2007 because the federal government argued that the applicants did not satisfy the test for “public interest standing.” B.C.’s Supreme Court agreed with the government, but in October 2010, the case went to the B.C. Court of Appeal, where the original decision was overturned and the applicants were granted standing. The federal government appealed that decision to the Supreme Court of Canada.

Our role in this case was as an intervenor, which means we didn’t advocate for one party or the other. Instead, we were there to help the court understand the full legal and environmental implications of its decision and to explain our unique perspective regarding the need for a modernized public interest standing test in Canada. In a unanimous decision, the Supreme Court decided in favour Kiselbach and SWUAV and laid out a more flexible version of the legal test for courts deciding whether to grant standing in future.

Ensuring that Canadians have greater access to the courts is a major concern for Ecojustice. The vast majority of our cases are brought on behalf of organizations or individuals seeking to serve the public interest rather to advance a private interest.

Ecojustice and its clients regularly rely on “public interest standing” to go to court to protect the environment and hold to account those who violate environmental laws. For example, in January 2015, when we appeared before the Ontario Divisional Court in an effort to uphold Ontario’s Endangered Species Act, our clients relied on public interest standing to bring that case.

What does this victory mean?

This decision has resulted in a more progressive “public interest standing” test in Canada. (Canada [Attorney General] v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45.) As a result, our clients will now have more legal avenues available to stand up for the public interest and the planet.

Ecojustice staff