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October 27, 2017 8:15 pm

Province’s Record in Court Battles Not Good

Friday, November 18, 2016 @ 5:45 AM

by Dermod Travis

If winning cases before the Supreme Court of Canada could be likened to the National Hockey League, the B.C. government would be the Toronto Maple Leafs of litigants.

Perhaps the government is getting bad legal advice? Perhaps it’s not listening to good legal advice?

News  the government had lost its decade-long-plus fight with the B.C. Teacher’s Federation is just the latest in a list of constitutional blowouts before Canada’s highest court.

Back in 2007, the government lost its battle with the B.C. Hospital Employees Union when the court ruled in a 6-1 decision that “the collective bargaining process is protected by the Charter of Rights and Freedoms.”

So much for former Premier Gordon Campbell’s 2002 contract shredding.

The government could take some solace in having won over one of the seven justices, a rare feat for it before the court.

In 2012, the court ruled that the North Vancouver school board had discriminated against children with learning disabilities through a series of budget cuts that fell disproportionately on special-needs programs.

The government had argued that the courts should not have a role in setting education priorities.

The justices ruled unanimously (9-0) in favour of the students.

Madam Justice Rosalie Abella wrote: “Adequate special education is not a dispensable luxury. For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made to all children in B.C.”

In 2014, the court overturned the B.C. Court of Appeal’s decision in regards to the Tsilhqot’in First Nation’s claim to more than 1,700 square kilometres of land.

No split decision. The court ruled unanimously (8-0).

Later that year, it sided with the Trial Lawyers Association of B.C. in its dispute with the government over a decision to impose court hearing fees as a way to discourage the filings of frivolous matters before the courts.

In a 6-1 decision the court ruled that the fees “were unconstitutional because they impeded access to justice and therefore jeopardized the rule of law itself.”

In April 2015, the court unanimously sided with francophone parents in Vancouver in their case against the Ministry of Education, ruling that “francophone children have a right to the same facilities as those in English-language schools.”

One month later the court ruled  that Ivan Henry could sue the government over malicious prosecution.

Justice Moldaver wrote: “Proof of malice is not required to make out a cause of action for Charter damages against the provincial Crown in this case.”

Not taking the hint – nor the double-barreled hint when the City of Vancouver and the federal government settled with Mr. Henry – the provincial government fought on to the bitter end.

Henry was awarded $8 million in damages for 27 years of wrongful imprisonment.

In June – overturning another decision of the B.C. Court of Appeal – the court ruled (6-1) in favour of three Mission Memorial Hospital health workers who had argued “they developed breast cancer as a result of their jobs.”

In 2015, the court refused to hear the government’s appeal over a 4.9 per cent pay hike for Provincial Court judges.

When the government did manage to notch a win it came with some caveats.

In 2015, the court upheld B.C.’s drunk-driving laws tempered by its concerns over drivers’ rights and police oversight.

Ten cases. In one, the court declined to hear the appeal, in another the government won a qualified decision and in the other eight, blowouts.

A government that once promised to be the most open and transparent in Canada, won’t say how much all of this legal brilliance is costing taxpayers.

After its 2011 loss at the Supreme Court of B.C. to the Teachers Federation, the government turned to Vancouver lawyer Howard Shapray to handle the appeal.

While the billings may not all be related to the case, Shapray Cramer Fiterman Lamer LLP was paid $333,086 by the government over the last two fiscal years.

The government could have saved everyone a lot of time and trouble in 2002 by simply referring the issues it had with the Teachers’ Federation to the B.C. Court of Appeal for a constitutional reference.

Perhaps the Charter of Rights and Freedoms – the one ratified by former Social Credit premier Bill Bennett’s government – wasn’t foremost in their minds at the time.

Funny how politics can come full circle.

-Dermod Travis is the executive director of IntegrityBC


I believe the record of the Liberal government in these areas is symptomatic of a common rightist approach to the law and governance. It is common among rightists, including some of those on this site, to take the view that the Legislature is supreme and that the government can use its authority to compel citizens to follow a particular path, to “make” them do something whether they want to or not. All the Supreme Court has done is reject that approach to governance as being a violation of our most fundamental laws, the constitution and Bill of Rights. The Legislature is not the supreme authority in BC, the Constitution overrides them, and governments must work within the constraints they impose. Unfortunately, the Provincial Liberals and their supporters do not agree with constitutional supremacy, but until they do we will continue to have the Supreme Court slap them down, over and over and over again. What we need is a government in BC that respects the Constitution and Citizens’ Rights.

Dermode Travis forgot to add a couple more court battles lost by our incompetent BC Liberal Government.

In 2008 the B.C. Liberal government imposed limits on how much can be spent on advertising by non-political parties in the 60 days before a provincial election campaign officially begins, and during the 28 days of the official campaign. Those limits were challenged by a coalition of labour unions who eventually won when the law was struck down by the courts in 2009.

Much shrieking and howling ensued after this court loss by our incensed troupe of BC Liberal chimpanzees in Victoria. In an assertion that they must be right, and must have their way, in the spring of 2012, our troupe of BC government chimpanzees amended the law with a shorter 40-day period of restricted spending before the official start of the campaign.

But the government’s efforts were shot down again early October, 2012, when the B.C. Court of Appeal ruled the issue of how long the limits were in effect was beside the point. Instead the court said the problem is that “advertising” has too broad a definition and therefore the law is a violation of the Charter of Rights.

Again much shrieking and howling from our troupe of BC Liberal chimpanzees ensued, how can their law be an unjust law in the eyes of their unwaveringly correct right wing ideology? I guess we are about to find out as the BC Freedom of Information an Privacy Association has taken this matter to the Supreme Court of Canada. Now what do you think the odds are that our troupe of BC Liberal chimpanzees will lose again?

ht tps://fipa.bc.ca/supreme-court-hears-fipas-election-act-challenge/

ammonra and BeingHuman–have to agree. I also don’t think that we have ever had a more corrupt government than we have now in BC. I just hope that people will wake up in the next election. Also don’t tell me that there is know one else to vote for. When any government is as corrupt as what we have now people have to vote and make change.

    How about “Making BC Great Again” …… Let us ape the movement down south and see how corrupt we can make it I suspect we would wish we had BCLiberals in power again.

      What are you talking about bud. We have the most corrupt govt. ever in the history of B.C. Feels like we are the Alabama of the north.

    Govt corruption provides for great profits to its cheerleaders. For corrupt governments to get reelected time after time speaks volumes about the voters that put them in office.

Quebec has done about as well as BC when it comes to trampling on rights. They just don’t have any trouble using the notwithstanding clause when they get a result they don’t like.

That said, I think the Supreme Court is becoming a quasi legislative body. Try and find in the constitution where it says the government must bargain class sizes with teachers. There’s nothing remotely close to it. They just broaden the interpretation to suit themselves.

You might like judge made law now, because they’re making laws you like. But had Harper got another term, and changed the tone of the court, you would’ve hated judge made law – as the US is likely to discover. Trump may very well appoint the majority of the Supreme Court, and the hands of successive Democratic governments will be tied by judge made law.

At least when we rely on legislature and parliament to make law, we can vote them out if we disagree. When we accept judge made law, we accept dictatorship because the legislator is un elected, and virtually impossible to remove at the Supreme Court level.

An interesting aside. The Supreme Court had trouble with the BC government breaking a contract – fair enough. Yet the same Supreme Court has no problem with the federal government making retroactive changes to the Income Tax Act making transactions that were legal when they were done, retroactively illegal.

Today’s benevolent dictator can end up tomorrow’s tyrant.

    “Try and find in the constitution where it says the government must bargain class sizes with teachers.”

    Try to find anything in the Constitution.

    Supreme Courts are the only real watchdog we have over Government, whether federal provincial or municipal.

    Some of you may remember the case of: The Corporation of the City of Prince George Appellant; and Joseph E. Payne Respondent. 1976: December 13, 14; 1977: May 17.

    The City tried to legislate the morals of it Citizens regarding the granting of a business license for a adult boutique outlet.

    Not only was it outside the law to restrict a type of business but the Council of the day did not allow the applicant to make his case during a public hearing.

    From the court records:

    “The facts are capable of raising an issue over the application of natural justice rules.

    Before giving the applicant a hearing Council decided against the application. The applicant was then called upon to show reasons why the licence should not be withheld.

    One of the aldermen decided to refuse the application without perusing the catalogues depicting the items to be sold.

    The applicant was denied an opportunity to speak in reply to the representative of the Prince George Ministerial Association.

    Interesting questions arise as to burden and audi alterem partembut I do not deem it necessary to consider them in view of the conclusion which I have reached on other aspects of the case.”

    It seems Councils after that have learned how the system works. We may no longer be the one horse town we are, at least relative to the mid 1970’s. But there is still a temperance bent to Council in my opinion.

    The government is the employer, School Boards are the child of the government. Teachers are employees of the school board.

    When looking at other BC post secondary teaching institutes, class sizes are part of the bargaining menu. Class sizes are the normal and key method by which to measure workload. I know of no union contract, whether private or public, that workload is not a key condition of the contract.

    Not having seen all such contracts, perhaps you can point us to some where workload is not a condition of the contract.

    “That said, I think the Supreme Court is becoming a quasi legislative body. Try and find in the constitution where it says the government must bargain class sizes with teachers. There’s nothing remotely close to it. They just broaden the interpretation to suit themselves.”

    This approach, to change the emphasis in some event in order to mislead people into believing something false is very common. In fact, the Supreme Court did not say that. The case was about whether the government had the right to arbitrarily and unilaterally make changes to a legal contract agreed to by two parties, in this case the BCTF and the MOE. The Supreme Court decided that a legal contract was a legal contract. What the contractual agreement actually stipulated is nor especially relevant to the question being decided – the obligation of both parties to abide by a freely agreed and signed contract. As it happens, negotiating class sizes and so on was a part of the contract, so that must be adhered to.

    However, those opposed to that provision in the contract will undoubtedly twist the decision of the Supreme Court that legally arrived at contracts are inviolable and try to convince people that they were politically motivated, a completely specious bunch of clap trap.

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