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TRAVIS – B.C. government like Maple Leafs when it comes to losing in court

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?

traviscolhedNews last week that 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 (7-0) 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 unanimously (7-0) 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. www.integritybc.ca.

About Mel Rothenburger (7213 Articles)
ArmchairMayor.ca is a forum about Kamloops and the world. It has more than one million views. Mel Rothenburger is the former Editor of The Daily News in Kamloops, B.C. (retiring in 2012), and past mayor of Kamloops (1999-2005). At ArmchairMayor.ca he is the publisher, editor, news editor, city editor, reporter, webmaster, and just about anything else you can think of. He is grateful for the contributions of several local columnists. This blog doesn't require a subscription but gratefully accepts donations to help defray costs.

2 Comments on TRAVIS – B.C. government like Maple Leafs when it comes to losing in court

  1. If you’re willing to accept that laws are generally designed to reflect and ensure that what society holds to be right and fair is protected, then the legal costs shouldn’t be what come to mind first. The costs are simply the result of a deeper problem.

    If the laws are correct, but the government is fighting them on a regular basis, shouldn’t we infer that the government isn’t doing what is ‘right and fair’ in the eyes of society? If it isn’t, why not? Isn’t the government elected to do what’s right and fair for the citizens of the province? The fact that it’s regularly making decisions that lead to legal challenges and supreme court losses is a far bigger concern, in my opinion.

    I don’t care which party is involved – being found to be on the wrong side of law on such a regular basis is a bad omen for how things are being done in government.

  2. – I’m guessing by this article (which made me read it twice and look up ‘constitutional reference [et al])’ that -at least from BC’s standpoint- we’d be better off just asking the high court to see what basis of constitutionality is actually being addressed before going into the aspect of ‘all out’ litigation, because this -as time seems to have proven negatively herein over the years in BC- would’ve saved British Columbia a lot more money than was spent on hiring out law firms to defend cases that have come from the British Columbia provincial government?

    …That is… if you base the pursuit of justice strictly on a cost basis analysis…

    I suppose one could say that about the use of the police force in any province as well, when it comes to dealing with drug overdoses. ‘If you harm yourself for no reason, then perhaps -on a cost basis analysis- you, “Should: simply die.” -saving the medical treatment plan for all provincial taxpayers some money in times of needed triage, concerning how to effectively spend money from the provincial coffers.’

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