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B.C. Court of Appeal Provides Guidance on Proper Procedure for Bringing Charter Challenges

The B.C. Court of Appeal’s recent decision in The Redeemed Christian Church of God v. New Westminster (City), 2022 BCCA 224, provides guidance on the proper procedure for bringing a Charter challenge in British Columbia. The court held that a Charter challenge in British Columbia must be brought via action, not via petition. This decision has important implications for future Charter challenges in British Columbia because actions and petitions are subject to different procedural rules that can influence the course — and outcome — of Charter litigation.

Key Differences Between Actions and Petitions

In British Columbia, a person may bring a claim either via action or via petition. Actions involve document discovery, oral discovery, and a trial with oral testimony and documentary evidence. Petitions, by contrast, involve fewer and simpler procedural steps and result in a hearing with affidavit evidence. Generally, petitions involve less complicated or contentious factual disputes, or less serious questions of law. Under the B.C. Supreme Court Civil Rules (the “Rules”), some types of claims must be brought via petition, including matters involving wills and estate, trusts, interests in lands, and where an enactment authorizes an application to court.[1] The table below summarizes several key differences between actions and petitions.

 

Actions

Petition

Claim started using:

Notice of civil claim

Petition

Parties are called:

Plaintiff and defendant

Petitioner and respondent

Hearing:

Full or summary trial

Hearing in chambers

Evidence:

Oral testimony and documentary evidence

Affidavit evidence

Process

Lengthier and more complicated

Exchange of pleadings, demands for particulars (if required), document discovery, oral discovery, pre-trial conferences, exchange of written submissions, trial

Shorter and less complicated

Exchange of petition and petition response, hearing on affidavit evidence, cross-examination available only with permission of the court

Facts

A church rented a ballroom in a facility owned and operated by the City of New Westminster for a youth conference. After a member of the public complained that one of the speakers at the upcoming conference was “anti-LGBTQ”, the city terminated the rental agreement. The city stated the speaker’s views conflicted with the facility booking policy, which restricted or prohibited user groups that promote racism, hate, or violence.

The church filed a petition claiming that the city’s decision violated the church’s freedom of religion under s. 2(a) of the Charter, freedom of expression under s. 2(b) of the Charter, and freedom of association under s. 2(d) of the Charter. The city argued that any Charter claim must be brought via action, and the church lacked standing to bring a s. 2(a) Charter challenge.

B.C. Supreme Court’s Decision

The B.C. Supreme Court held that the church’s request for Charter relief could proceed via petition. The court also addressed each Charter claim. Regarding s. 2(a), the court held that the church had standing to bring a freedom of religion claim, but that particular claim should be converted into an action due to its complexity. Regarding s. 2(b), the court held that the city had violated the church’s freedom of expression. Regarding s. 2(d), the court held that the city had not violated the church’s freedom of association.[2]

B.C. Court of Appeal’s Decision

The B.C. Court of Appeal allowed the city’s appeal. The court concluded that Charter claims in British Columbia must be brought via action, not via petition. The court noted that under the Rules, a claim can be brought via petition only if a rule or enactment permits. But neither the Rules nor the Charter authorizes Charter claims to be brought via petition.

The court observed that B.C. and federal courts are outliers in this regard. Elsewhere in Canada, the rules of court either expressly permit Charter claims to be brought via petition or application, or permit claims to be brought via petition or application where no substantial facts are in dispute.

In the result, the court set aside the lower court’s ruling on the s. 2(a) standing issue, set aside the declaration that the city violated the church’s freedom of expression under s. 2(b), converted the existing petition into an action, and gave the church leave to file a notice of civil claim.

Key Takeaways

Unlike in other provinces, in British Columbia a Charter challenge must be brought via action, not via petition. The Court of Appeal’s decision illustrates that procedure matters, and failing to follow this rule can have serious consequences, including having the claim sent back to square one. In every case, whether or not it engages the Charter, parties should think carefully about the proper procedural vehicle for advancing the claim.

We Can Help

Our Public Law Litigation Group has extensive experience in Charter litigation. If you have questions about our Charter litigation practice, please contact Connor Bildfell.

 

Case Information

The Redeemed Christian Church of God v. New Westminster (City), 2022 BCCA 224

Docket: CA47688

Date of Decision: June 24, 2022

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[1] B.C. Reg. 168/2009, r. 2-1(2).

[2] The church did not appeal the s. 2(d) ruling.

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