BC Government Advertising Lawsuit
$12,985 of $13,000 goal
We started this GoFundMe page to finance a lawsuit against the BC Government and the BCLiberal Party with respect to government advertising which was unnecessary and served to advance the interests of the BCLiberal Party during the 2017 election campaign.
The lawsuit is now over and we are in the process of determining the costs. The money we raised will be used to cover our our expenses and costs. In the event that there is money remaining, the committee responsible for launching the lawsuit will determine how best we can advance this important political issue using the remaining money.
We did not pay ourselves for the work we did in this case. We expect that the amount we have collected will cover a portion of the actual costs to advance the lawsuit. We personally contributed our time and also our money to this cause because it's important.
We filed the suit knowing that it was unorthodox. We knew there were challenges but we decided it was worthwhile to proceed for strategic reasons and to have clarity in the law. Confidence in our political processes is maintained if there are methods to stop political parties from stealing from taxpayers. The best way to discourage theft is to ensure that the thief doesn't keep the money. We started the suit to try and keep the BCLiberals from keeping the money they stole from taxpayers.
We filed our lawsuit and the BCLiberals countered by claiming that they were immune from being sued. Essentially, they took the position that they were allowed to keep money they stole because they couldn't be sued. As a political entity they could simply do this. They claimed political parties are immune from any civil responsibility.
We knew this was an argument that they could advance, but hoped it would be an argument that they would not want to advance. Simply put, an ethical organization would wish to defend their integrity. We hoped they would do the ethical thing, set the matter for a hearing about whether they were thieves, rather than taking the position that they're immune from responsibility for stealing.
The BCLiberals filed an application to dismiss our suit claiming immunity by lack of capacity to be sued. The BC Government joined them with a number of arguments that were irrelevant if we couldn't overcome the issue of capacity to sue a political party. After all, if we couldn't get a judgment against the party, there was no remedy.
At the end of February we had a 1-day hearing on this issue. The judge asked good questions. We told him off the start that if we couldn't get over the issue of the capacity of a political party to be sued, the matter was done. It was clear he understood the arguments. He appeared concerned about the possibility of the political party in power stealing in this manner without consequence. Obviously the allegation we made had not been tested, but the concern that political parties have immunity to get away unchecked with all sorts of illegality when in power was a disconcerting.
On April 10, 2018, (amended April 18) the judge rendered his decision, accepting the BCLiberal's argument and dismissing our suit. We lost. It was not completely unexpected because, as we said, it was an unorthodox claim. Had the BCLiberals taken an ethical stand and argued the facts of the case rather than arguing they were immune from responsibility, it might have gone our way. Nevertheless, the case is over.
In addressing the issue of a lack of responsibility by a political party in power, the judge identfied four ways we could hold the BCLiberals responsible.
a) a quasi-criminal proceeding by the Chief Electoral Officer under the Election Act;
b) a criminal prosecution for breach of trust under s. 122 of the Criminal Code, see for example R. v. Bonney;
c) a claim for misfeasance in public office; or
d) voting out the party who performed the wrongful acts in an election.
The voters selected "d" by casting their ballots for other parties in the last provincial election. Some have suggested that the publicity around our suit informed the public about the BCLiberal's theft from taxpayers and that the publicity cost them some seats. That's fine with us. They deserved to lose.
As for option "c" it was clear to us that stealing from the taxpayers was a group decision. Not only would it have been unfair to target an individual in those circumstances, we didn't have the evidence necessary to make the case. Simply put, we know that when the BCLiberals were in power they destroyed evidence as a practice so there was no likelihood of us, outside of the government, finding what we needed to make this allegation.
Options "a" and "b" are on the table. We considered them but we decided that we needed to lose in this case before we could take steps under the Elections Act and the Criminal Code. Those responsible for conducting those investigations can no longer claim it's some other person's job because of the judge's comments. We wanted that clear statement before making those complaints.
What about an appeal?
A good question with a sad answer. If you look at the record at our Court of Appeal you'll see that with great consistency they side with the BCLiberal Government. An emblematic example of this is the Court of Appeal BCTF decision. Dig a little deeper, you'll see that there is a consistent trend of siding for the BC Government. They may be right in law or wrong in law, but we see a clear trend. Interestingly, a significant number of BC Court of Appeal cases that get to the Supreme Court of Canada are then overturned, as we saw with the BCTF case.
We believe that we would lose if we were to take the matter to the BC Court of Appeal. What about then going to the Supreme Court of Canada?
There are rules concerning what matters can go to the Supreme Court of Canada and this case doesn't fit in any of them. It's not an issue in the national interest to decide. The trial judge identified other mechanisms to check the behaviour of political parties, so even though they may be unsatisfactory, there is still something there. And even if we could slot it in some exception, we couldn't afford to make the application for leave, let alone conduct the appeal.
So we're done in court. We're turning our attention to "a" and "b" referred to above and other means of stopping this from happening in the future. Sadly, the taxpayers will never see the BCLiberals pay taxpayers back for the money they stole.
A couple of final points, we have noted that the NDP has recently run arguably partisan advertising. This isn't in advance of an election campaign but we think this unnecessary advertising is intended to promote the NDP. The media appears reluctant to call them out perhaps because their advertising departments count on that revenue. This was an issue we were aware of back when we announced this lawsuit.
As for money we collected, we're months away from an accounting. We have kept all of the donations (minus what GoFundMe charged) in trust and paid for the suit to date ourselves. If there is any money remaining after we do the accounting, we have a committee of 3 lawyers and our litigant who will decide how we can use this money to advance the goal of stopping the BC Government (regardless of the party) from spending taxpayer money for partisan advertising.
If we lose these challenges, we will use the money collected to pay for our expenses and costs. As we explained in the beginning, David Fai and myself (Paul Doroshenko) are not taking payment for our legal work on this file. We decided to do it for the benefit of the people of British Columbia at no charge.
In the event that we lose at this stage and by chance there is money left over, we will use it in consultation with our lead litigant to advance our position on this issue by means outside of court.
Simply put, we believe the BC Liberals should be compelled to pay back the Province for taking taxpayer money and using it to advertise themselves. If the court says we can't get that remedy in a lawsuit, we will try and get it through other provincial regulatory means.
As for the money everyone donated, in the end we will render a final statement for our lead litigant. If we are short, I am personally covering any shortage.
The issue of governments using our tax money to pay for their personal party advertising is in our opinion theft from the people of British Columbia. This type of behaviour can't be permitted and we're committed to doing whatever we can to put a check on it, regardless of the party in power.
As expected, the BC Government and the BCLiberal Party filed challenges to our pleadings. There were a number of hurdles we were aware of off the top and we knew they would focus on that because there's no point getting any further down the road if it turns out it's a dead end.
At our first appearance in court on this matter we came up with a general plan with respect to how to proceed on the preliminary applications. The BC Government took the position that the relationship with the residents is not fiduciary in nature. Although the test for a fiduciary arrangement appeared to be made out from our perspective, and certainly there are examples of government responsibilities that seem to make it out fairly well, it's a strict standard that might not fit perfectly on the government with its many different roles. When it comes to the Government making decisions that are truly part of their role as Government, we took no issue. When the Government steps outside of that role to enrich themselves (wearing two hats), in this case the BCLiberal Party, we take issue with that.
The BCLiberal Party took the position that a political party is immune from a lawsuit. Essentially their position is that the Party is governed only by the Elections Act and that there was no capacity for them to be sued or sue. We could find no decisions from BC on this issue, and decisions from other parts of the country went either way depending on the subject matter of the lawsuit. As you're reading this I know that you're thinking this can't be the case. How can it be that a political party is immune from the laws that govern us all?
We agree with that on principle, but we knew the case law in which political parties were successfully litigants tended to be with respect to the parties seeking to enforce Charter Rights.
The other, less substantive, issues related to whether or not the plaintiff could establish that they (and thereby the potential people in the class) suffered a loss, whether or not we had enough detail to make out a conspiracy. Our allegation of the BCLiberal Party having been unjustly enriched appeared contingent on the other allegations being left to stand.
Courts move slowly. We also wanted a definitive answer to these questions so we set a schedule for the defendants to file their material and then we went to court for a hearing of these issues.
The facts showing that the BCLiberal Government spent this money for their own advantage are on our side. Whether or not there is a remedy, and whether or not an individual could force a political party to pay are the two huge hurdles.
Today we got the matter into court. It took four hours. The judge had good questions, some of which we couldn't answer the way we would have liked because the law simply isn't on our side.
From our perspective our concern was whether we as citizens can hold our government to account in our courts. At some point along the line did we abdicate our right to sue the group who took money belonging to the people simply because they are a political party?
The answer may be yes to both of these questions. It may be that the only remedy available is through the regulators, i.e. Elections BC, a criminal investigation or some other regulatory investigation.
If this is the case we run into other problems, such as the fact that the BCLiberals would never have ordered an investigation into themselves, they grossly underfunded many of the investigative bodies they controlled (see: casinos) and Elections BC has a limited mandate and powers. Moreover, the governments could have a policy not to investigate a previous government and they may be motivated to abide by this policy to avoid themselves being under investigation the next time the government switches.
We probably would have done things differently if we had the luxury of time when we drafted our pleadings. It may not have made any difference if political parties are immune from a lawsuit.
In the event that we are unsuccessful, the onus is going to be on the current BC Government to fix these problems. We doubt that they will change the law so it's clear we can sue political parties. The people may want that but the politicians certainly don't.
The issue of government advertising and a political party stealing from the taxpayers, as the BCLiberals did in this case, needs to be addressed. We hope that, one way or another, the current government sees fit to ensure that the political party in power can't again steal from the taxpayers. We hope that the current government sets out clear rules on advertising in advance of an election and ensuring overall that advertising isn't partisan.
If we're not successful and we see no change, we'll take what we've learned and take another kick at the can the next time around. So to future BC governments: take notice.
As for this case, we expect to get a decision from the Court before the end of April. Can citizens hold a political party to account in the courts? We'll find out.
Their responses are more or less what we anticipated, and we don't think there is anything insurmountable that arises.
In the event that the BC Liberals form the Government once again after the election, we expect to face a unified front opposing our claim. In other words, the Government will continue to oppose our efforts to recoup the tax money from the BC Liberals that was spent on these ad campaigns.
If the BC Liberals don't form the Government, they may take a different position on behalf of the taxpayers. So that will be interesting to watch.
Also interesting will be the evidence that comes to light in the discovery process. But that's not an immediate concern.
Again, thank you to everyone who has supported our lawsuit so far. To date we have withdrawn the funds donated (GoFundMe took their cut) and placed it in a trust account for the purpose of advancing the lawsuit.
All expenses to date have been paid by us personally. We have not used any of the funds in trust to date.
I agree and commend you for putting light on this shame, and trying to fund a legal fight. I will not support financially, because they have stolen and wasted much more of our tax dollars. And I don't have the means to share. But I can vote, as I do, and that is worth more than gold. Painfully I would accept and cut my losses by this pathetic government with happiness, as long as the people show up and vote. Fund that.... fund voter registration and education.
I applause your cause and thank you for standing up!! I'm up to here with their ads .. blowing their own horns constantly! I know the liberal party isn't mentioned but anyone who lives and votes in BC gets the gist! Driving up north in BC last summer and I swear you saw a huge sign and some billboards ever 10 miles patting themselves on the back for highways completed! Like they did it with their allowance and not with our tax dollars !! Go get em!
Will donate a bit toward this great idea. I disagree that 'everyone sees these ads for what they are,' however. I think many people are fooled by the BC Liberals; they were fooled in the last election also. The voters of this province have proven themselves to be naive at best, re-electing this corrupt government over and over again, believing the lies. This endeavour is a step in the right direction, a calling to account where there is no loud opposition because the news agencies are controlled by corporate interests that support the BC Liberals. Keep up the great work!
I am prepared to provide some support but need more information first. What is the name of the lead litigant? Would you provide an activity report for the last 10 months? Is your progress encouraging? Why? How long might this go on for?
Lol....Paul...are you part of the 80% club?
What do you mean "Obviously as a courtesy we need to give them some time" ?! They just have to play this out for a couple of weeks and it'll be lost in history. Stop messing about!
"We" are the government and you're advocating that I fund the suite (I did) against myself! So I'm funding both sides? As much as I hate the Lieberals, and especially Rich Coleman & Chrispy Clarke I don't see anything partisan about the 'Job Opportunity' ad. A waste of money, yes, but it doesn't mention 'Liberals'. But youse guys are the lawyers. I wish you every success!