Many readers have expressed outrage (or, at the very least, mild dismay) at the legal principle set out by the BC Court of Appeal in Barbour v. University of British Columbia (CanLII) and discussed in a recent post on this blog: namely, that the legislature can pass laws that have the effect of retroactively altering the rules applicable to a dispute.  As one person put it:

Someone’s driving on the highway at 100 km/hr in a 100 km/hr area.  A cop pulls him over and accuses him of speeding for breaking the speed limit.  He is given a big, fat ticket, which he contests.  By the time the driver and the cop get before a judge, the speed limit has been changed to 90 km/hr.  The judge hears them argue about how fast the driver was going, only to shut them up and find against the driver because, well, even if he was going 100 km/hr he was still breaking the law.

In the case of Mr. Barbour, UBC had imposed fines for breaking parking rules that had exceeded the powers of the university under the provisions of the University Act (BC) applicable at the time.   UBC tried to enforce those parking rules, Mr. Barbour refused to comply with them, and a BC Supreme Court judge agreed (CanLII) with him about the lack of authority.  After that decision was released, the provincial legislature passed amendments to the University Act that specifically granted UBC retroactive authority to impose the parking rules.  As a result, even though Mr. Barbour was ordered to pay fines because he broke rules the university (at that time) had no authority to make, he has to pay those fines regardless because of the change in the law.

After the legislature got involved, Mr. Barbour argued that these changes should not apply to his case because of the principle of judicial independence.  Effectively, the legislature was using its law-making power to overrule the decision of the Supreme Court, while the courts are supposed to serve as a check on the legislature and not the other way around.  The BC Court of Appeal disagreed with this view: 

We consider it is clear in Canada that the Legislature may enact legislation that has the effect of retroactively altering the law applicable to a dispute. While a Legislature may not interfere with the Court’s adjudicative role, it may amend the law which the court is required to apply in its adjudication. The difference between amending the law and interfering with the adjudicative function is fundamental to the proper roles of the legislature and courts in our parliamentary democracy.

The court pointed to several other decisions showing the legislature is not prevented from passing legislation that applies retroactively to change the laws applicable to events at issue in a lawsuit:

  1. Air Canada v. British Columbia (CanLII):  In 1980, several airlines sued the provincial government for reimbursement of amounts paid in the mid-1970s as gasoline taxes.  The law allowing the collection of these amounts was struck down by the courts because it was beyond the province’s constitutional authority.  The legislature subsequently amended the law to make it within provincial jurisdiction and extended its application back to the time the airlines paid the taxes, which legalized the retention of the funds.  Mr. Justice LaForest of the Supreme Court of Canada cited numerous policy concerns specific to enforcing retroactive legislation in the face of an unconstitutional statute, many of which were unique to a taxing authority (e.g. if these amounts had to be returned, then the government might have to introduce a new tax to recoup its losses).
  2. Highland Valley Copper v. British Columbia (CanLII): In the mid-1990s, a mining company paid certain amounts in PST on electrical consumption and claimed a portion of it back as a refund.  When the government denied the claim, the company obtained a declaration by the BC Supreme Court that it was entitled to the refund.  Legislation was brought in as an immediate response to the court’s decision and to deny that right.  Mr. Justice Hall of the BC Court of Appeal agreed with the province and rejected the refund, commenting as follows:

One can, I suppose, feel a measure of sympathy for the appellant and its advisers, who had achieved some success under existing legislation only to see this success reversed by subsequent legislation.  However, if the legislative will is clearly manifested in legislation, the courts are bound to construe it according to its language and tenor.

In British Columbia v. Imperial Tobacco Canada Ltd. (CanLII), Mr. Justice Major of the Supreme Court of Canada dealt with this issue by setting out the appropriate relationship between the courts and the legislature:

It follows that the judiciary’s role is not, as the appellants seem to submit, to apply only the law of which it approves. Nor is it to decide cases with a view simply to what the judiciary (rather than the law) deems fair or pertinent. Nor is it to second-guess the law reform undertaken by legislators, whether that reform consists of a new cause of action or procedural rules to govern it. Within the boundaries of the Constitution, legislatures can set the law as they see fit. “The wisdom and value of legislative decisions are subject only to review by the electorate”: Wells v. Newfoundland, 1999 CanLII 657 (S.C.C.), [1999] 3 S.C.R. 199, at para. 59.

The moral of the story? First, this principle of law, right or wrong, points to the supremacy of the legislature and the limits of the judiciary.  Courts exist to interpret and uphold laws and to make sure those laws are consistent with each other, specifically with the constitution.  The legislature is elected to make the laws (or revise them, as the case may be).  Second, this should be considered whenever anyone decides to go up against a public body like a university, particularly when there is a refund at stake.  The exercise may be futile and counter-productive.  If you claim the public body had no authority to do something, and there is the political will to allow them to do it, then all you might get at the end of the day is an explicit change to the law, stating that the public body does in fact have that authority.

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