British Columbia Teachers' Federation v. British Columbia

(Attorney General),


2008 BCSC 1769

Date: 20081219
Docket: S085226
Registry: Vancouver


British Columbia Teachers’ Federation, Federation of Post-Secondary Educators
of British Columbia, British Columbia Division of the Canadian Union of Public
Employees, British Columbia Nurses’ Union and Marcia Toms



Attorney General of British Columbia,
Gloria Laurence and Wendy Weis



British Columbia Civil Liberties Association


Before: The Honourable Mr. Justice Cole

Ruling re: Application for Interlocutory Injunction

Counsel for the Plaintiffs

J. Arvay, Q.C.
L.B. McGrady, Q.C.
E.R.S. Sigurdson
M.J. Prokosh

Counsel for the Defendant Attorney General of British Columbia

C.E. Jones
R. Mullett
K.A. Wolfe

Counsel for the Defendants, Gloria Laurence and Wendy Weis

P. Gall, Q.C.
R.W. Grant
D.B. Borins

Counsel for the Intervenor

R.D. Holmes

Date and Place of Trial/Hearing:

December 11, 16 – 17, 2008


Vancouver, B.C.

[1]                The plaintiffs challenge restrictions on third party election advertising imposed by s. 235.1 and s. 228 of the Election Act, R.S.B.C. 1996, c. 106 (the “impugned provisions”) on the grounds that they unjustifiably infringe their rights and freedoms under ss. 2(b), 2(d) and 3 of the Charter.  The next provincial election is statutorily mandated to take place on May 12, 2009, and the restrictions on third party election advertising take effect 88 days prior to that date, February 13, 2009.  Consequently, the plaintiffs seek an interlocutory injunction that either suspends the operation of s. 235.1 and s. 228 of the Election Act, or, in the alternative, exempts the plaintiffs from those sections, pending the release of this Court’s final reasons for judgment.  The defendants oppose the application.

[2]                The test for injunctive relief is found in the three-stage analysis in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311: (a) there is a serious question to be tried; (b) the applicants will suffer irreparable harm if an injunction is not granted; and (c) the balance of convenience, taking into account the public interest, favours the granting of an injunction in the circumstances.

[3]                As the plaintiffs’ action is a constitutional challenge to the impugned provisions, there is clearly a serious question to be tried.  The plaintiffs submit that they have established much more than a serious question, and say that they have in fact established a strong case on the merits of the action.  They urge me to take this into account in considering both irreparable harm and the balance of convenience, and refer to the comments of McLachlin J.A. (as she then was) in British Columbia (Attorney General) v. Gitanmaax Band (1987), 9 B.C.L.R. (2d) 333 at paras. 48 – 49 (C.A.), in this regard. 

[4]                I have not yet had the opportunity to weigh the strength of the parties’ respective positions since argument in this complex constitutional case has only just concluded.  Therefore, the strength of the plaintiffs’ case is a neutral factor on this application.

[5]                With respect to the second issue of irreparable harm, the Court in RJR-MacDonald Inc. explained at para. 59 that “‘Irreparable’ refers to the nature of the harm suffered rather than its magnitude.  It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.” 

[6]                The plaintiffs submit that the application of the impugned provisions will result in irreparable harm in that they will be deprived of their ability to exercise their Charter rights. 

[7]                Harper v. Canada (Attorney General), 2000 SCC 57, [2000] 2 S.C.R. 764, is a very similar case to that at bar.  In that case, Stephen Harper commenced an action challenging the constitutionality of third party spending limits in the federal election statute.  A federal election was called before judgment on the action had been rendered, leading Mr. Harper to seek an interlocutory injunction restraining the enforcement of the third party spending limits pending release of the judgment.  An injunction was granted and upheld on appeal.  The Supreme Court of Canada, however, granted the Attorney General a stay of the injunction, deciding the matter on the basis of the third prong of the analysis for injunctive relief, the balance of convenience.  With respect to irreparable harm, the Court was prepared to assume that the impugned election advertising restrictions might occasion irreparable harm to the capacity of third parties to participate as they wished in the upcoming election campaign to the extent of the spending limits on advertising imposed on them.  I make the same assumption in the present case.    

[8]                I turn, then, to the final issue, the balance of convenience.

[9]                The Supreme Court’s analysis in Harper turned on a consideration of the balance of convenience.  At para. 5, McLachlin C.J. wrote as follows:

Applications for interlocutory injunctions against enforcement of still-valid legislation under constitutional attack raise special considerations when it comes to determining the balance of convenience.  On the one hand stands the benefit flowing from the law.  On the other stand the rights that the law is alleged to infringe.  An interlocutory injunction may have the effect of depriving the public of the benefit of a statute which has been duly enacted and which may in the end be held valid, and of granting effective victory to the applicant before the case has been judicially decided.  Conversely, denying or staying the injunction may deprive plaintiffs of constitutional rights simply because the courts cannot move quickly enough: R. J. Sharpe, Injunctions and Specific Performance (loose-leaf ed.), at para. 3.1220.

[10]           At para. 7, McLachlin C.J. referred to the principle against granting the equivalent of final relief in interlocutory challenges to electoral statutes, even in the course of elections governed by those statutes.  It is apparent that to grant the injunction sought in the present case would, in effect, give the plaintiffs the ultimate relief they seek in this action, at least with respect to the upcoming election. 

[11]           Another principle that McLachlin C.J. discussed was that in considering the grant of an interlocutory injunction suspending the operation of a validly enacted but challenged law, proof that the law will produce a public good is not necessary.  Rather, the court must proceed on the assumption that the law is directed to the public good and serves a valid public purpose.  At para. 9, McLachlin C.J. quoted from RJR-MacDonald Inc., where the Court wrote:

When the nature and declared purpose of legislation is to promote the public interest, a motions court should not be concerned whether the legislation actually has such an effect.  It must be assumed to do so.  In order to overcome the assumed benefit to the public interest arising from the continued application of the legislation, the applicant who relies on the public interest must demonstrate that the suspension of the legislation would itself provide a public benefit.

[12]           The declared purpose of the impugned provisions is electoral fairness.  As asserted by the Attorney General in its Statement of Defence, their objective is “to promote equality in the political discourse, to protect the integrity of the financial regime applicable to candidates and parties, and to ensure that voters have confidence in the electoral process”.  At this stage, as directed by the Supreme Court, I proceed on the assumption that the legislation is directed to the public good and serves a valid public purpose.

[13]           The plaintiffs submit that they represent approximately 150,000 people for whom the impugned provisions have a severe deleterious effect.  If the Court also takes into account the other public sector unions in the province, the number of people affected approaches or exceeds 250,000, a number, the plaintiffs say, that is sufficiently large to permit them to legitimately claim to represent and advance the public interest. 

[14]           In my view, this is not sufficient to overcome the assumed benefit to the broader public interest of the application of the impugned provisions.  Those provisions are part of a legislative scheme that endeavours to strike a balance between the various participants in the electoral process, those being candidates and political parties (both of which are subject to spending limits by the legislation), third parties and the voting public.  To suspend the operation of only the third party election advertising restrictions would upset that balance to the detriment of the other participants in the electoral process.     

[15]           In my view, para. 11 of the majority’s decision in Harper applies with equal force to the present case:

Applying the principles enunciated in previous decisions of this Court, and without prejudging the outcome of any appeal from the injunction, we are satisfied that the public interest in maintaining in place the duly enacted legislation on spending limits pending complete constitutional review outweighs the detriment to freedom of expression caused by those limits.  To leave the injunction in place is to grant substantial success to the applicant Harper even though the trial has not been completed. Moreover, applying RJR-MacDonald, we must take as given at this stage that the legislation imposing spending limits on third parties will serve a valid public purpose.  Weighing these factors against the partial limitation on freedom of expression imposed by the restrictions, we conclude that the balance of convenience favours staying the injunction granted by the trial judge.

[16]           For those reasons, I conclude that the balance of convenience similarly favours dismissing the plaintiffs’ application to suspend the operation of the impugned provisions, and I so order. 

[17]           I also dismiss the plaintiffs’ alternative claim for relief, namely, an exemption from the operation of the impugned provisions, again, on the balance of convenience.  The plaintiffs filed a number of affidavits in which they (as well as a number of other public sector unions that are not parties to this litigation) undertake not to spend more than $150,000 during the 28-day campaign period and not more than $550,000 during the period beginning 60 days before the campaign period, in the event that the Court either suspends the impugned provisions or grants the plaintiffs an exemption from their application.  However, to exempt the plaintiffs from the operation of the impugned provisions would bestow upon them an unfair advantage, most pronouncedly as against all other third parties to whom the impugned provisions will continue to apply, but also with respect to the other participants in the electoral process.  

[18]           Accordingly, the application is dismissed.

The Honourable Mr. Justice F. W. Cole