Roughly a year ago, Daniel Barbour’s crusade against UBC got him where he hoped it would: with a court pronouncing that he was right and UBC was wrong.  Now, that victory has crumbled beneath his feet, thanks to a legislative amendment.

In March 2004, Mr. Barbour, an accountant, had parked his car legally to visit a campus dental clinic.  University parking enforcement officials ordered the car to be towed away on account of unpaid fines for previous parking violations on campus.  The decision led to a violent altercation between the accountant and the tow-truck driver.

Revenge was sweet for Mr. Barbour, though, five years later, when the BC Supreme Court ordered (CanLII) that it was ultra vires (i.e. beyond the powers or authority) for UBC to tow vehicles or issue fines for parking violations.  Since 1990, UBC had collected over $4 million in fines and towing fees, storing charges and other expenses for violations of its parking regulations.  The action was commenced by Mr. Barbour on his own behalf and on behalf of everyone from whom UBC had collected parking fines. 

The case was, simply, that UBC did not have the authority to do this.  UBC, of course, disagreed; tens of thousands of people traversed the UBC campus daily, and it had the power to establish general traffic rules.   It acknowledged that the basis was not the University Act (BC).  UBC maintained that this power came from:

  1. contracts it had entered into with, or licenses it had granted to, members of the campus community related to the use of parking facilities on campus; and
  2. its’ rights as property-owner of the campus area, under which it could remove vehicles parked on its property without its consent and fine trespassers accordingly.

The Supreme Court dismissed these arguments and found against UBC, holding that its authority for ticketing must be found in the University Act.  UBC was required to return the fines and fees.

The first sign of trouble for Mr. Barbour came in July 2009, when the BC Court of Appeal granted (CanLII) a stay of the decision – that is, it suspended the effect of the Supreme Court’s decision until an appeal could be heard. 

Then the tides were reversed completely.  The legislature amended sections 27 and 51 of the University Act.  Section 27(2)(t), in particular, now reads:

[A university's board of governors has the power to] regulate, prohibit and impose requirements in relation to the use of real property, buildings, structures and personal property of the university, including in respect of

(i)  activities and events,

(ii)  vehicle traffic and parking, including bicycles and other conveyances, and

(iii)  pedestrian traffic;

More significantly, these changes were determined to be applied retroactively.  Because universities had relied on the belief that these fines and fees could be validly collected, the amendment was deliberately designed to prevent any of them from being forced to issue refunds.  The Court of Appeal quoted from a speech made by the Minister of Advanced Education during the debates in the legislature to show the intention behind the change:

Without the retroactive provisions, the institutions could possibly have to pay refunds from within their operating budgets and increase fees for students, negatively impacting programs and services for students and increasing the financial burden on students. This unexpected expense for those institutions would also negatively affect institutions’ financial position.

….It was felt that it was not reasonable or fair for students to bear the unreasonable burden of the expenses of people who chose not to obey the parking regulations.

Mr. Barbour saw this as a clear violation of the principle of judicial independence.  Legislatures make laws, people are supposed to follow them, and judges have to apply the laws to peoples’ conduct without any influence by government.  In this case, it seems the legislature effectively overturned the Supreme Court’s decision.

The Court of Appeal disagreed:

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 government has maintained (Vancouver Sun) that the decision of the Supreme Court exposed a hole in the legislation that the legislature never intended to leave there – all they were doing here was repairing a gap.

The trials and tribulations of Mr. Barbour have raised many interesting legal issues surrounding UBC.  Given the cost of the class action and the negative results, it is unlikely that he will step up to bat again and the university can rest easy with its victory.