One ruling could remove government immunity if plaintiffs are Indigenous
“I’m no lawyer, but that certainly sounds like the Interpretation Act changes that the premier brought in as the attorney general has made one confusing legal mess of things in British Columbia,”
–Trevor Halford
A motor vehicle injury claim, and a class action lawsuit over abuse at a girls’ school, are two court cases affected by the landmark Declaration Act ruling, Premier David Eby has revealed.
The government had previously refused to disclose any of the 20 court cases Eby has claimed were amended to take advantage of the December decision by the BC Court of Appeal that the Declaration on the Rights of Indigenous Peoples Act can be used to strike down other provincial laws.
But on Wednesday, he relented, providing the legislature two examples. Because decisions in the cases have been handed down, he said revealing them would not prejudice the cases.
“Revealing a list of cases would be revealing legal advice, which we do not do,” said Eby. He also said providing a full list would force the government to interpret what a petitioner is doing, which may not match their intent.
But that has not stopped the government from repeatedly using the 20 court case figure to highlight what it has called widespread legal liability resulting from the BC Court of Appeal ruling, and to justify taking the case to the Supreme Court of Canada.
“What I can provide the member are situations where we have that actual decisions from the court, and I hope that will assist the member in understanding why I still feel this is an urgent matter,” Eby told the legislature Wednesday, during questioning by Opposition leader Trevor Halford over his office’s budget estimates.
Class action suit relies on Declaration Act and Gitxaala decision
The first case, according to Eby, involves a person who brought a claim for benefits under ICBC’s enhanced care regime after their benefits were cancelled when they failed to show up for a medical exam.
The person then cited DRIPA, the United Nations Declaration on the Rights of Indigenous Peoples, the December Gitxaala BC Court of Appeal decision, and the Interpretation Act as part of an ongoing fight that is now before the BC Court of Appeal, said Eby.
“So here we have a court considering the application of the Declaration Act to ICBC enhanced care benefits,” said Eby.
The second case involves a class action lawsuit by victims of the historic Willingdon School for Girls in Vancouver, where young female juvenile delinquents had been sent decades ago for offences that included sexual immorality and Indigenous girls intoxicated off a reserve.
The girls allege they were subjected to forced sterilization, solitary confinement and other abuse.
“The plaintiffs cite the Declaration Act and provided supplemental submissions post-Gitxaala,” said Eby.
The B.C. government opposed the court certifying the class action, arguing it has immunity. The plaintiffs argued the Crown Immunity Act is inconsistent with DRIPA. The BC Supreme Court certified the case in March, ruling in part that DRIPA might change the government’s immunity argument for Indigenous plaintiffs.
The BC Supreme Court… [ruled] in part that DRIPA might change the government’s immunity argument for Indigenous plaintiffs.
“In other words, the plaintiffs argued that the Declaration Act makes the Crown Proceeding Act retrospective for indigenous plaintiffs,” said Eby.
DRIPA can be wielded to strike down more laws
The two cases serve to show how complex, and varied the application of DRIPA could be in striking down other provincial laws in the wake of the Gitxaala case.
“I’m no lawyer, but that certainly sounds like the Interpretation Act changes that the premier brought in as the attorney general has made one confusing legal mess of things in British Columbia,” said Opposition finance critic Peter Milobar.
Halford questioned why Eby could only provide two examples. He said the premier has “opened a door” to sharing more. But Eby refused.
“This is an ongoing process,” the premier said. “There is a concern, certainly I have, about these filings, about the risk.”