bartalk | april 2005
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DESCRIPTIONBarTalk is published six times per year by the British Columbia Branch of the Canadian Bar Association, the leader and voice of Canada’s legal profession.
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APRIL 2005 VOLUME 17, NUMBER 2
SST Declared Unconstitutional in Part Appeal and cross -appeal both filed
I n a decision that adds to the momentum of the CBA's campaign to remove the Social Services Tax (SST) on legal fees, Koenigsberg, J. released a landmark decision in Christie v. AG of B.C. In this case, counsel Darrell Roberts, Q.C. and Robin Bajer, both of Miller Thomson LLP, successfully argued on behalf of Vancouver lawyer Dugald Christie that the Social Services Tax on legal services impedes and denies justice for low income persons, contrary to the Charter of Rights and Freedoms.
Justice Koenigsberg declared the Social Services Tax Amendment Act ultra vires the Province of British Columbia to the extent that it applies to legal servic-es provided for low income persons, as defined by the income and asset levels that determine eligibility "for the Family Duty Counsel Program of the Legal Services Society .. . as set forth in its policy and proce-dures manual." She also ordered the return to Mr. Christie of more than $6,000 that was seized by the government when Mr. Christie could not pay the tax owed on services provided to his clients.
In the days following release of the decision, con-flicting messages came from the Revenue and Attorney General ministries: on the one hand, lawyers were told they were responsible for ensuring that clients under a certain income threshold were not charged SST; on the other hand, it was unclear whether the Attorney General would appeal the decision and lawyers would be liable for SST on those clients' bills should the appeal be successful.
Adding to the confusion, the Ministry of Revenue initially posted a website link to a chart showing the income thresholds for legal aid eligibili-ty, which are lower than those referenced in the court decision. The Ministry then removed the link and posted the duty counsel threshold levels that were in place the day of Mr. Christie's affidavit being filed . In the meantime, the Legal Services Society (LSS) had raised those thresholds quite substantially (the lowest level rising from $28,000 to $32,000). Anyone reading the Christie decision and referencing the LSS website for "LSS Family Duty Counsel Income Thresholds" found the new levels.
Clarification has been sought from government, and has recently been provided . Lawyers with clients who may qualify for SST exemption need to educate themselves about the new requirements. Links to Ministry of Revenue information and Law Society instructions to lawyers are available at www.cba.org/bc.
The Attorney General is appealing the Christie decision, and Mr. Christie's counsel has filed a cross-appeal to have the Act declared ultra vires and the SST on legal services eliminated. The CBABC has resolved to contribute to appeal costs, as part of the Branch's ongoing commitment to have this arbitrary and harmful tax removed for all British Columbians who have need of legal services. BT
The Canadian Bar Association
4 From the President 5 Executive Director 6 National News 8 Section Talk
by Shelley Bentley
10 Practice Talk by David f. Bilinsky
12 Nothing Official by Tony Wilson
13 On the Web by Patricia Jordan
14 Acts In Force Legislative Update is available to CBA members at www.cba.org/bc.
IN THE BACK
20 Events 24 Bar Moves 25 Member Services 26 Partners
B.C. Courthouse Library Society French Jurists Association of B. C. Continuing Legal Education Society of B.C. Law Foundation of B.C.
28 Classified Ads
2 BARTALK April 2005
FEATURED THIS ISSUE
In this issue we turn our focus to the vibrant small centres of B.C. In the Cariboo they are planning another fantastic AGM, in Comox the local bar is dreaming of summer baseball games, and in other cities and towns, local bars are organizing Law Week celebrations for their communities.
The bar in this province is active from corner to cor-ner and we intend to bring you regional stories in this and future issues.
15 Big City, Big Deals? by Warren Smith
16 B.C. Voices Island and Interior lawyers consider the practice of law
18 A Point in the Judicial Direction The process for appointment to the Provincial Court by the Hon. Chief Judge Carol Baird Etlan
19 Court Services Online by the Hon. Geoff Plant, Attorney General
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Copyright the British Columbia Branch of the Canadian Bar Association 2005.
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CAROLINE NEVIN LETTERS TO THE EDITOR
PENGE BUNGALOW SYNDROME (VOL. 17, NO.1) I am a huge Rumpole fan . Now here's my question: in what book does Mortimer actually write about the Penge Bungalow murders?
Send your LETTERS TO THE EDITOR to : Caroline Nevin, BarTalk Senior Editor Canadian Bar Association, B.C. Branch Fax: 604-669-9601 Toll-free fax: 1-877-669-9601 E-mail: cnevin@bccba .org
He's always referring to it but I've never read about the actual case. As an aside, in the mid-80s I was on the front cover of Lawyer
Magazine as the gold medalist from University of Manitoba Law School. I remember thinking it was all downhill from there. Not quite true, but I've never been on the cover again.
-Name withheld by request
[Humour columnist Tony Wilson's reply: He mentions Penge Bungalow all the time, but Mortimer has only just written and released
Rumpole and the Penge Bungalow Murders, a prequel, I suppose, to all his other misadventures.]
Win "Miss Saigon" Tickets Enter to win two tickets to "Miss Saigon" at the Stanley Theatre in Vancouver bye-mailing your name to firstname.lastname@example.org with the subject "Miss Saigon Contest." The contest closes on Friday, May 6. We will hold a draw shortly thereafter and contact the winner by phone. You must be a CBA member on May 6, 2005 to be eligible to win. [Please allow up to 10 business days for processing membership fees .) Congratulations to Rowan Davison of Orchard & Company in Duncan , who won two tickets to "The Lawyer Show" on March 12. Mr. Davison guessed closest to the number of CBABC members as of March 1, 2005.
April 2005 BARTALK 3
FROM THE PRESIDENT MICHAEL C. WOODWARD
SST on Legal Services A leaky boat
I t is difficult to imagine a more fundamental right than "access to justice." If even one citizen is denied access to jus-
tice by the actions of his or her own government, then all citizens have less than justice.
On February 8th, in Christie v.
infringement of access to justice by low income persons.
AG of B.C., 2005 BCSC 122, Koenigsberg J. declared Bill 8, the Social Service Tax Amendment Act (No. 2), S.B.C. c. 24 to be, in part, unconstitutional, on precisely this ground. She said, "Thus I find the Act infringes the fundamental
Michael C. Woodward President 2004/2005
The CBABC is pleased with the removal of this impediment to provision of legal services to our lower-income citizens. I want to specifically commend Darrell Roberts, Q .C. and Robin Bajer who, acting pro bono, successfully represented the Petitioner, noted poverty lawyer Dugald Christie.
Last year the tax collected $100 million from the fee-paying clients of lawyers in this province.
B.C. Branch Canadian Bar Association
constitutional right of access to justice of low income persons and that the Act is ultra vires to that extent" (paragraph 88).
Noteworthy is that the government did not even attempt to justify this impairment under section 1 of the Charter. Koenigsberg J. quoted McEachern CJBC in Carten, saying " .. . it is difficult to imagine how a law that impairs access to constitutional rights and remedies could be justified in a free and democratic society," and herself went on to make findings that the Act cannot be characterized as a minimal impair-ment, and that it cannot be said to pursue an objec-tive that is sufficiently important to justify limiting the Charter right delineated.
The Social Services Tax (SST) on legal services was introduced in 1992 by the Glen Clark govern-ment through Bill 8. The Campbell government did not enact the tax, but instead inherited it. Geoff Plant Q .C., the very thoughtful and refr