“Winning!!!” when dealing with Governments in British Columbia
In British Columbia we have multiple levels of government. In this post we will be dealing with the municipal, provincial and federal governments in BC generally. I have drafted City policies, have worked for the City of Richmond and Surrey Bylaw Departments, and the Provincial Translink department, and as such, have a sense of the inner workings of many levels of government.As a law firm and a lawyer, I (we) have represented clients dealing with all levels of governments in B.C. and there are some very practical realities that someone should keep in mind when “fighting City Hall”.
First, it should be noted that the front line government employees deal with a lot of difficult situations and often have little authority to make specific decisions related to your particular case.
Generally, when you sue someone in court you have something to lose or win (business or personal) and they have something to lose. When you sue or fight the government, the people you are dealing with are not playing with their money; they are playing with yours (indirectly). This makes for a very different type of adversary. I do not believe that government employees are bad people but one has to agree that decisions are made differently when you have nothing to lose personally and are unhappy with your job. I have heard government employees repeatedly state or certainly their actions suggest ‘I do not care if this goes to court’.
Another difficulty government employees face is that the rules they have to enforce apply to hundreds, if not millions, of people and can often only be changed by a challenge to legislation. Thus, they have little actual authority and you can appreciate how that may be frustrating.
Governments are given their powers or authority by The Constitution Act 1867 (the “Constitution”) and to a large degree by the Court’s interpretation of the Constitution.
Section 92 and 91 split the powers between the Provincial Government and the Federal Government. If it is not a listed in 91 or 92, the Federal Government gets jurisdiction. The Municipal governments obtain their powers from the Provincial government under the applicable acts. For example the BC Government gives the City of Vancouver its powers from the Vancouver Charter, [SBC 1953] Ch. 55 (the “Vancouver Charter”). If it is not in the Vancouver Charter, the City of Vancouver does not have the authority to deal with it, period.
For example, under section 330(a) the City of Vancouver has the authority to:
“provide for the care, promotion, and protection of the health of the inhabitants of the city and for preventing the spread of contagious, infectious, or other disease, and, for that purpose, for regulating, controlling, and restricting persons and their activities;”
If the City tries to pass a bylaw outside of this definition (that is not captured under another section of the Vancouver Charter) they are outside their authority and the Court may rule the bylaw of no force and affect or ultra vires. Bylaws can be challenged many ways but you should look to the bylaw empowering the government when dealing with government.
Get it in Writing
One thing I recommend to clients when dealing with the government is ask the government official to send you everything in writing (which is reasonable) and ask them where they get their authority (what law). Many times my clients have gotten themselves into a bind because the situation has become personal between themselves and the person they are dealing with. Then the government employee digs their heelsin and it becomes a matter of egos.
One should always remember; a fight with the government is not going to be pleasant, it will be costly and even if you get what you want you will most likely not be happy with the end result.
If you get the information in writing you can look to the bylaw or law to see if they have the right to make that decision and did they make it correctly. Another practical benefit of getting everything in writing (email should suffice) is that if the person you are dealing with is replaced or you have to deal with multiple levels of government you have in writing what you were promised and will not have to start again. We often deal with situations where a government official has overstepped their authority and asking for the information is writing is a good way to keep everyone honest. We always tell our clients “If you send something in writing to the government keep in mind it may end up in front of a judge.”
The Government is not the Law
Remember the government has to follow the law as well. They have to honour contracts and follow other laws (like privacy laws). In many cases, governments have more laws that they have to follow than you as an individual. Be reasonable but make them do the right thing. You can request all of the information / file under the applicable privacy law and most if not all government agencies have privacy officers you can contact. In addition, government decisions can most often be appealed. Looking at the applicable law should tell you when the limitation period for an appeal runs out. Many government agencies have helpful webpages that will show you how to appeal the decision. As they say, ‘knowledge is power’, get it and use it to stand up for your rights and what is right.
Fighting with the government is an uphill battle that can leave many scars, so if you can avoid the fight I would recommend you do so. If you cannot or what they have done is wrong, do it right from the beginning, know your rights and hold the government accountable. Ultimately they should be working for you.
DEAN P. DAVISON