GUEST COLUMN: Long losing streak in court looks bad on the B.C. government

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

Dermod Travis

Dermod Travis, IntegrityBC

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?

Recent news 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 regard 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 Victoria-based IntegrityBC, described on its website (Integritybc.ca) as “a non-partisan non-profit organization dedicated to help restore a bond built on trust and confidence between citizens and their elected officials.”

 

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