B.C. Freedom of Information v. Privacy Association, 2013 BCSC 2467

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: B.C. Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2013 BCSC 2467 Date: 20130322 Docket: 13-0335 Registry: Victoria Between: B.C. Freedom of Information and Privacy Association Plaintiff And: Attorney General of British Columbia Defendant Before: The Honourable Mr. Justice G.R.J. Gaul Oral Reasons for Judgment (In Chambers) Counsel for the Plaintiff: S. Hern Counsel for the Defendant: K. Wolfe N. Brown Place and Date of Hearing: Victoria, B.C. March 22, 2013 Place and Date of Judgment: Victoria, B.C.

March 22, 2013 [ 1 ] THE COURT: The plaintiff in this civil action is the BC Freedom of Information and Privacy Association (the “Association”). The defendant is the Attorney General of British Columbia. [ 2 ] In its Notice of Civil Claim dated and filed 28 January 2013, the Association seeks the following relief: 1. A declaration that, to the extent it applies to third party election advertising expenditures of less than $500,

section 239 of the Elections Act, R.S.B.C. 1996, c. 108 unjustifiably infringes

section 2(

b) of the Charter and is, to that extent, of no force and effect. 2. Special Costs in any event of the cause. [ 3 ] By way of Notice of Application filed 12 March 2013, the Association seeks to have the issues in this litigation resolved by

summary trial. The Association has scheduled the hearing of its

summary trial application on the regular civil chambers list for 3 April 2013. The Association chose and set that date without consulting with the defendant. [ 4 ] Today, the defendant seeks to have the Association’s application adjourned generally. The defendant asserts that this litigation requires case management so that it can proceed in an orderly manner and consequently it seeks an order directing that the matter proceed to a case planning conference. [ 5 ] The Association objects to the adjournment of its

summary trial application, arguing the issue in dispute is a focused and relatively simple one. In that vein, counsel for the Association argues that the

summary trial can be concluded in the estimated two-hour timeframe. Counsel for the Association also submits that the Association will not be unreasonable and if it is persuaded, once it receives the defendant’s responsive materials, that the matter requires more time or should go to another date, then it would agree to that happening. [ 6 ] The Association’s action is a constitutional challenge to a piece of legislation that has been in force in this province since 1995.

Counsel for the Association says he can complete his submissions in less than 60 minutes and that counsel for the defendant should be able to do likewise. It was based upon this belief that counsel for the Association set the hearing of the

summary trial on the regular Chambers list. The date was set without any consultation or input from the opposing party, and while the Rules of Court allow for that to happen, generally it is good practice for counsel to discuss potential dates to see if a reasonable and mutually convenient date can be found. If not, then the applicant can set the matter down for hearing and leave it to the other side to seek an adjournment. I cannot understand why this was not done in the present case.

[ 7 ] In my view, there are ample grounds to adjourn the Association’s application and I am consequently granting the defendant’s request for an adjournment. The Association is dreaming in Technicolor if it thinks that its constitutional challenge to the impugned legislation can be heard on a regular Chambers list in two hours. Constitutional litigation in this province should be approached in a serious, efficient and organized manner. When I say serious, I am not suggesting that the Association’s claim is not serious. On the contrary, I consider this to be a very serious issue.

However, to attempt to deal with it in the manner that is proposed, is in my respectful view, simply wrong. First, unless both parties agree, it should not be on the regular civil Chambers list. Having reviewed the materials filed and having heard from counsel for both sides of the dispute, I do not agree with counsel for the Association when he asserts this matter is a relatively simple dispute. [ 8 ] For all these reasons, I am granting the defendant’s application. I am also ordering that the parties attend at a case planning conference.

In my view, holding such a conference makes imminent sense and I agree with counsel for the defendant that at such a hearing the parties will be able to discuss and establish a timetable for the orderly filing and delivery of materials as well as a

schedule for any pre-trial applications. [ 9 ] So there are two orders resulting from today's hearing. First, the Association’s application for a

summary trial is adjourned generally; and second, the parties will

schedule and attend at a case planning conference. [ 10 ] The suggested date, Mr. Hern, is April 18th. Your friend has taken the liberty of reserving that date. Do you have any submissions on when the case planning conference should take place? [ 11 ] MR. HERN: I'll just have to consult my schedule, My Lord. [ 12 ] THE COURT: Do you have your

schedule with you? [ 13 ] MR. HERN: I do on my BlackBerry, if you don't mind me looking at it. [ 14 ] THE COURT: Go right ahead. [ 15 ] MR. HERN: The date was April 18? [ 16 ] MS. WOLFE: At 11:30. [ 17 ] MR. HERN: Yes, I can attend there. [ 18 ] THE COURT: That has already been pencilled in with trial scheduling, has it, Ms. Wolfe? [ 19 ] MS. WOLFE: It has, My Lord. [ 20 ] THE COURT: All right, and that date and time is available for you, Mr. Hern? [ 21 ] MR. HERN: Yes, it is, My Lord. [ 22 ] THE COURT: All right. Well, then there will be a case planning conference held on April 18, 11:30. Ms.

Wolfe, is that the time that -- [ 23 ] MS. WOLFE: Yes, My Lord. [ 24 ] THE COURT: All right, 11:30. I am not seized of this matter, so it does not have to be before me. [ 25 ] I find that the Attorney General has been successful in this application. Mr. Hern, I will hear your submissions on costs. Your friend has made brief submissions on costs. [ 26 ] MR. HERN: In my submission, My Lord, my client has proceeded in accordance with the rules, that costs should be in the cause as opposed to in any event of the cause.

And particularly in light of our submission, I have heard you and I respect your comments, of course, on setting the date in -- without consultation, but you've heard my position in terms of enforcing the date, and of course if my friend was not available, that was not a date we would proceed on. So in light of that, I would ask for costs in the cause. [ 27 ] THE COURT: Thank you. I hear what you are saying, Mr. Hern, and I respect your view, but I think it was a mistake to set this matter down on the regular Chambers list.

Constitutional litigation does not take place in regular Chambers and, I could be wrong, I have been wrong before, to suggest that this matter is going to finish in two hours, in my view, is unrealistically optimistic. One of the risks of setting this matter down on the regular Chambers list was that you could have had a visiting judge, and if this matter went for continuation, then counsel would have the challenge of trying to get back before that judge. I suggest it would not be of assistance to your client if you had to go to Vancouver or Chilliwack or Prince George.

Nor, in my opinion, would it be an efficient use of court resources if the rota had to be changed to bring the judge back here in order to hear the continuation. [ 28 ] In my view, there are justifiable grounds to award costs to the Attorney General, and I so order. Costs to the Attorney General in any event of the cause. “G.R.J. Gaul, J.”