Standing (Locus Standi) – is the determination of whether someone has the power to invoke a judicial process, for the purpose of making a claim in court or seeking judicial enforcement of a legal duty/right.
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This begins with the would-be interests of the litigant. The more direct the interest, the more likely to be entitled to standing before the court.
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Our adversarial system thinks that the greater your interest is (or adversarial pushback), the better the argument, better the case for greater development of the law.
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Standing is always a balance b/w scarce residual resources & A2J
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By having a gatekeeper function to allow the court to protect its own resources, they can still honor their obligation to A2J while remaining as efficient as possible
IMPORTANT POINTS ABOUT STANDING
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When should standing be considered?
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Historically, it was first order of business on the first day of trial
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Now, standing should be decided before the first day of trial or as early as possible to avoid engaging courts/others before standing is proven
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There ought to be preliminary screening of the litigants interests, expertise
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LEGAL CAPACITY vs STANDING
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Civil proceedings may only be instituted by an entity that enjoys the status of a legal person
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Lack of legal capacity - is the inability to assert their position in law (ex – child will not have legal capacity to start a trial or people with mental disorders)
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Lack of standing is different. It’s “no power to acquire and exercise legal rights”
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Standing in jurisdiction
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A pure jurisdictional hurdle. If Judge decides that P lacks standing, case is over
If the harm or breach giving rise to the claim is traceable to a violation of a concrete right or interest belonging to the P, they will have standing as a right.
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Are you sufficiently affected by the matter?
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Is the harm traceable to a violation of an interest/right?
5 Reasons For Limitations on Standing:
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Courts try to avoid the floodgates of unnecessary litigation.
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To apply scarce judicial resources only to real and not hypothetical issues
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Avoid risk of prejudice to people whose interests may be affected by busybody litigants
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Avoid the risk that cases will be inadequately represented due to lack of interest of party
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Avoid result that Courts could come to an unwise decision
Public interest standing
TEST (Borowski) – To garner public interest standing:
“To establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious issue as to its invalidity, a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court”
Breaking this down into 3 parts:
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Is there a serious issue to be tried?
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Is there a serious issue regarding the validity of the legislation?
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Can the court actually deal with this concern? Is the court equipped to provide answer?
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Idea behind public interest standing is to make sure that legislation or public acts can actually be challenged. The challenge must be brought within ambit of courts
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Does P have a direct or genuine interest in the matter?
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Is there another reasonable, effective manner to bring the matter to Court?
*Factor to consider (Downtown East Side Workers – below):
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The Court should consider P’s capacity (resources, expertise) to present the case in Court
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The Court should consider: is this matter of public interest?; when it affects a huge array of people, public interests
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Were there realistic, effective means that would be more adversarial
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The potential effects of rights on others should be taken into account
Downtown Eastside Workers v Canada (AG)
[Standing; Factors to see if there’s alternative reasonable manners to bring matter to Court]
FACTS
DEW (a society) attempted to launch Charter challenge to prostitution provision in the Criminal Code.
Trial – denied standing. Appeal – given standing
RULE
TEST for Public Interest Standing:
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Is there a serious issue to be tried?
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Does P have a direct or genuine interest in the matter?
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Is there another reasonable, effective manner to bring the matter to Court?
*Factors:
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The Court should consider P’s capacity (resources, expertise) to present the case in Court
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The Court should consider: is this matter of public interest?; when it affects a huge array of people, public interests
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Were there realistic, effective means that would be more adversarial
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The potential effects of rights on others should be taken into account
ANALYSIS
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Para 50 – Must balance all factors. Flexible approach required to consider the “reasonable and effective” means factor
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Instead of construing as if there are “no other alternatives” than there may be standing; but rather “if there’s no reasonable alternatives”
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There may be many other ppl who could bring the case to Court but may not realistically do so
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Prostitutes often do not have the time, resources or desire to bring this litigation. Also issues often disproportionately affect the poor, low-income prostitutes and they might not bring the case due to limited resources, fear of reprisal.
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Therefore, the DWS Society has the resources and experience necessary to litigate and will be more than able to provide the appropriate adversarial proceedings.
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*Note: However, test must be fulfilled to avoid making the courtroom a space for airing of public policy issues on a whim.
HOLDING
Granted Standing
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