BC Court of Appeal Breaks Own Rules For Government

Video: Public Confidence In Canada's Justice System

How BC's Elected Representatives Responded To This News: 

Vancouver MLA Herbert says Canada doesn’t treat its citizens well.

After two judges of the 3-judge panel made comments that seemed to favour the appellant/plaintiff, BC Government lawyer Karen Horsman submitted the plaintiff’s original statement of claim to the panel in breach of the following rules of court:

1. Once a claim has been amended, the original claim has no validity. The decision under appeal was based on the plaintiff’s amended claim, not the original claim.
2. Parties at a Court of Appeal hearing may not submit any new documents that have not been filed with the court prior to the hearing.

After the panel accepted her submission Ms. Horsman then made a desperate plea to the judges to treat executives of the Business Practices & Consumer Protection Authority (BPCPA) as public servants and not to give plaintiff the opportunity for discovery. Discovery is the process by which evidence is obtained in the course of legal action.

Legislation passed in 2004 says BPCPA is an “independent” non-profit corporation that is not an agent of the government. BPCPA executives draw undisclosed private sector salaries, and are not accountable to the legislature. BPCPA, now renamed “Consumer Protection BC”, carries an errors and omissions insurance policy. Although BPCPA was represented in court by its own lawyer, most of its defense was delivered by the government.

Central issue in the dispute is whether the plaintiff has the right to sue BPCPA for damages on allegations of negligence and misconduct. Government says plaintiff should have applied for judicial review, a process that cannot award damages and will only result, at most, in a slap on the wrist for a wrong decision.

In England where the process originated, judicial review is intended as an alternative to full civil action where damages are not sought as a remedy against governmental organisations. By contrast, governments in Canada use judicial review as a vehicle to evade liability for property loss or damage.

The Court dismissed the appeal, saying the plaintiff should have applied for judicial review, and it’s out of luck. The decision was based on the original statement of claim as if the amendment had not taken place.

The Court ignored decisions by the appeal courts of Ontario and Newfoundland in similar cases where they allowed plaintiffs to sue the federal government for negligence. The Ontario case, Telezone v.Canada, is currently awaiting judgment by the Supreme Court of Canada, and may affect the future of foreign investment in this country.

Canada is a signatory to the Universal Declaration of Human Rights administered by the United Nations. The Declaration protects citizens of signatory nations against arbitrary deprivation of property and entitles them to pursue appropriate legal remedies at a fair trial.

In contrast to the United States' constitutional division of governmental powers, Canada has no formal division of powers between the executive and judicial branches of government.

I have spoken to Spencer Herbert, Member of BC Legislative Assembly for Vancouver-Burrard about this case and the international human rights code. He told me that the Government of British Columbia “has been hit” several times by United Nations agencies for human rights violations. He said “This country does not treat its citizens well.”

I have forwarded this article to members of BC government and legislature for comment. If there are any replies, I will publish them here.

These BC MLA's have confirmed reading message:

Jenny Kwan MLA, Kevin Krueger MLA, Sherri Wacker MLA, Bill Bennett MLA

These BC MLA's have deleted message without reading it:

Rich Coleman MLA (Minister for Housing & Social Development), John Van Dongen MLA, Randy Hawes MLA, Brenda McLean MLA, Robin Austin MLA , Scott Fraser MLA, Gary Coons MLA, Iain Black MLA