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August 11, 2010

HST in Court

On Monday, August 16th, the BC Supreme Court will begin hearing a challenge which could set a precedent on its relationship to the legislature.

The matter before the court is the petition from major business interests (Council of Forest Industries, Mining Association of British Columbia, Independent Contractors and Businesses Association, Western Convenience Stores Association, Coast Forest Products Association and the B.C. Chamber of Commerce) to reject the anti-HST Initiative petition signed by over 700,000 British Columbians.

In a Vancouver Sun opinion column, former Attorney General Geoff Plant suggested that Elections BC should not have approved Vander Zalm's anti-HST Initiative on the grounds that his proposed bill was not within the powers of the BC Legislature. The business group seized on Plant's suggestion and launched a court challenge to the Initiative.

If the court rules that the anti-HST petition is "not within the competence of the Legislature", then what other bills will be subject to court challenge before they are considered by the Legislature? Will special interests go to the court every time a government introduces a bill for first reading?

It is not unusual for the court to overturn legislation after the legislature deals with it, but it is unusual for the court to tell the legislature what it can and cannot consider. The Legislature can rule a bill out of order, reject it, amend it or adopt it. The court has no idea what the Legislature may do with the bill that the Initiative process may compel it to consider.

The responsible and democratic route for the court would be to defer to the Legislature and only assert its jurisdiction after the Legislature has fulfilled its responsibilities. In short, the Campbell government and its business allies shouldn't be allowed to hide behind the courts.

Anyone can see that the preamble to Vander Zalm's proposed bill is flawed, but legislation isn't judged on the basis of preambles. The core of the proposed bill is the clause that declares: "The Agreement titled "The Comprehensive Integrated Tax Coordination Agreement" between The Government of British Columbia and The Government of Canada establishing an HST in British Columbia is hereby extinguished and of no force or effect whatsoever." The anti-HST forces are arguing in court that the Campbell government did not properly put the tax agreement before the legislature.

It may be appropriate for the court to rule that the Legislature should have acted, and after the fact the courts may determine whether legislation is constitutional, but it is not appropriate for the courts to determine what the BC Legislature may or may not consider. That is why the application from pro-HST business interests should fail in court.