Tag: UBC parking tickets

BC Court of Appeal Reverses UBC Parking Fine Class Action Lawsuit


In 2009 Mr. Justice Goepel of the BC Supreme Court held that the University of British Columbia did not have the legal authority to issue and collect parking fines over the years and awarded judgement in favour of a class action lawsuit seeking to have the money repaid by UBC.
UBC appealed this decision.  Before the BC Court of Appeal had a chance to review the matter the BC Government passed a retroactive law which in essence stated that UBC had the power to issue the fines.    (Click here for some background information on this).
With the retroactive law on the books the matter then proceeded to BC’s highest Court and they were asked to determine if this law was valid and if so what effect it would have on the class action.   In reasons for judgement released today the BC Court of Appeal held that this law was valid and as a result the trial judgement was set aside.
The highlights of the Court’s reasons were as follows (for the sake of easy reading and at the risk of oversimplification ‘intra vires’ means something UBC had the power to do and ‘ultra vires’ means something that UBC did not have the power to do):
[26] Thus, on the general issue of interpretation, we conclude the Miscellaneous Statutes Amendment Act, 2009 applies to the circumstances before the court. This Act makes intra vires that which was conceded to be ultra vires at trial. Further because the foundation for the order declaring the class members entitled to restitution has been replaced, and because s. 16(2)(c) prohibits restitution of the fines or penalties referred to in the Supreme Court of British Columbia order, the declaration of entitlement to restitution cannot stand in light of the new legislation…

[32] 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.

[33] It follows we see no reason to “read down” the amending and transitional provisions to accommodate the concept of judicial independence…

39] The appeal is allowed and the order of the judge is set aside, to be replaced with a declaration answering common issue 1 in the negative, the Parking Regulations are intra vires the University. Given the answer to that question, there is no need to answer questions 2 and 3 (dealing with the rights in contract and proprietary rights of the University), or the other questions that depended upon a positive answer to question 1.

BC Court of Appeal Orders "Stay" in UBC Parking Fines Class Action Lawsuit

While this post does not deal with an ICBC or other BC Injury Claim I though the topic may be of general interest to my readers.  (This entry is reposted from my BC Class Action Law Blog.)
In reasons for judgement released this week by the BC Court of Appeal in the UBC Parking Fines Class Action (Barbour v. UBC) a stay was ordered permitting UBC to continue to collect parking fines until the appeal of Mr. Justice Goepel’s judgment of March 30, 2009 is heard.
By way of background a class action was launched against UBC claiming that the University wrongfully collected parking fines from 1990 onward.  At trial Mr. Justice Goepel held that the University indeed did collect parking fines unlawfully over the years, specifically the Court held that:
The (UBC) Parking Regulation Fines are ultra vires.  UBC cannot enter contracts or licenses that incorporate the Parking Regulation Fines.  UBC’s common law proprietary rights authorize the towing and storage of vehicles parked contrary to the Parking Regulations.  UBC is entitled to collect the costs arising from such towing.  UBC cannot, however, rely on its proprietary rights to charge or collect the Parking Regulation Fines.  The plaintiff and other class members are entitled to restitution in the amount of the Parking Regulation Fines subject only to applicable defences under theLimitations Act, towing and storage charges and the applicability of UBC’s claim of set-off which has yet to be resolved.
The University appealed this judgement.  Pending the hearing of the Appeal UBC applied to “stay” Mr. Justice Goepel’s order (which basically means to put a hold on it until the appeal can be heard).  The University argued that a stay was necessary because there has been “a substantial increase in parking violations subsequent to the judge’s order” and a stay would “maintain order with respect to parking on the campus in the interest of public safety and preservation of substantial parking revenue which will otherwise be lost to the University“.
The Plaintiff argued that a stay would not be necessary because granting one would “amount to endorsing what has been determined to be an unlawful regime, which will never be determined to be lawful, when there is an alternative way in which the University can enforce parking restrictions“.
The BC Court of Appeal sided with the University and ordered a stay.  In doing so the Court reasoned as follows:
[4] The considerations on an application of this kind are well established.
[5] It is accepted there is a serious question to be considered by this Court and it appears clear to me the University will suffer irreparable harm, particularly with respect to lost revenue and a large measure of parking disorder if a stay is not imposed.
[6] The balance of convenience favours the imposition of a stay principally because it will constitute no prejudice in any practical sense to the class. There has been no determination of what, if any, portion of fines paid since 1990 any members of the class are entitled to recover from the University. That aspect of the action remains outstanding and, assuming the appeal is prosecuted diligently, it should not unduly interfere with the resolution of the remaining issues in any event. It appears to me the only real effect a stay will have is to facilitate the enforcement of essential restrictions on parking that have been in place for a long time. The members of the class cannot, and of course do not, complain about that.
[7] I do not accept the granting of a stay will necessarily amount to endorsing an unlawful regime that will remain unlawful should the appeal succeed. As I understand it, if the appeal were to succeed, the University would be entitled to continue to regulate parking by imposing fines, albeit as a private law right at common law. But in any event, the situation requires a remedy, however short term, and I have no confidence it is to be found in the alternative suggested even if its prompt implementation could be said to be feasible, which I doubt.
[8] The order is stayed until the disposition of the appeal. It will be a term of the order that any fines collected by the University during the period of the stay be held in trust by the University for distribution by court order and that the recognition of academic achievement in no way be impaired by the University’s attempts to collect parking fines during the period of the stay. The University agrees that the class period and the opt-in period are to be extended to the termination of the stay. The University has filed its factum and is required to continue to prosecute the appeal diligently.
The course of this Appeal can have consequences not only to this case directly but also to a Class Action Lawsuit launched against the University of Victoria and SFU alleging similar wrongdoing as well as a potential challenge to the University of Northern British Columbia (UNBC) for arguably similar wrongdoing.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer