OTTAWA - Middle-class litigants were thrown a lifeline Thursday by the Supreme Court of Canada which stuck down court-hearing fees that block their access to justice.

The country’s highest bench said B.C.’s hearing-fee scheme is unconstitutional because it imposed undue hardship on ordinary people and impeded their right to bring legitimate cases to court.

Writing for the five-judge majority, Chief Justice Beverley McLachlin said the exemptions for the indigent or needy do not provide sufficient discretion to trial judges to exempt litigants in appropriate circumstances.

She said such levies are permissible only so long as they do not impinge on the constitutional jurisdiction of the courts by denying some people access.

Though the constitution “on its face” does not limit the powers of the provinces to impose hearing fees, the Chief Justice said the court “must consider not only the written words,” but “how a particular interpretation fits with other constitutional powers and the assumptions that underlie the text.”

Justice Marshall Rothstein dissented saying there was no right to access to the courts without hearing fees and accused his colleagues of significantly expanding their jurisdiction.

By using an unwritten principle to support expanding the ambit of the courts, he said, the majority is subverting the constitution.

“Courts must respect the role and policy choices of democratically elected legislators,” Rothstein said.

“In the absence of a violation of a clear constitutional provision, the judiciary should defer to the policy choices of the government and legislature. How will the government deal with reduced revenues from hearing fees? Should it reduce the provision of court services? Should it reduce the provision of other government services? Should it raise taxes? Should it incur debt? These are all questions that are relevant but that the Court is not equipped to answer.”

In a concurring judgment, Justice Thomas Cromwell said the court didn’t have to decide the constitutionality because the fees violated the Court Rules Act.

Regardless, the majority ruling vindicated B.C. Supreme Court Justice Mark McEwan, whose two-year-old, 178-page judgment was reinstated.

McEwan ignited this debate nearly five years ago by identifying a middle-class 43-year-old woman’s predicament in a divorce case as a systemic issue — inviting the attorney general, the Law Society, the Canadian Bar Association and the Trial Lawyers’ Association to appear before him.

In what followed, the Crown and the Bar occupied centre stage, not the two litigants — a UBC professor and the unemployed veterinarian who had asked McEwan to waive $3,600 in hearing fees for the 10-day divorce trial because she had other bills.

Ironically, the three-day constitutional debate would have added $1,872 in fees.

Two year later — in May 2012, McEwan produced a landmark ruling that was a veritable a cri de Coeur for the middle class concluding the hearing fees were unconstitutional.

Weaving together precedent with economic and cultural analysis, he surveyed Canada’s legal history from its roots in old English documents such as the Magna Carta of 1225 and the 1494 Statute of Henry VII, to the present-day Charter of Rights and Freedoms.