In reasons for judgement released this week by the BC Court of Appeal in the UBC Parking Fines Class Action (Barbour v. UBC) a stay was ordered permitting UBC to continue to collect parking fines until the appeal of Mr. Justice Goepel’s judgment of March 30, 2009 can be heard.

By way of background a class action was launched against UBC claiming that the University wrongfully collected parking fines from 1990 onward.  At trial Mr. Justice Goepel held that the University indeed did collect parking fines unlawfully over the years, specifically the Court held that:

The (UBC) Parking Regulation Fines are ultra vires.  UBC cannot enter contracts or licenses that incorporate the Parking Regulation Fines.  UBC’s common law proprietary rights authorize the towing and storage of vehicles parked contrary to the Parking Regulations.  UBC is entitled to collect the costs arising from such towing.  UBC cannot, however, rely on its proprietary rights to charge or collect the Parking Regulation Fines.  The plaintiff and other class members are entitled to restitution in the amount of the Parking Regulation Fines subject only to applicable defences under the Limitations Act, towing and storage charges and the applicability of UBC’s claim of set-off which has yet to be resolved.

The University appealed this judgement.  Pending the hearing of the Appeal UBC applied to “stay” Mr. Justice Goepel’s order (which basically means to put a hold on it until the appeal can be heard).  The University argued that a stay was necessary because there has been “a substantial increase in parking violations subsequent to the judge’s order” and a stay would “maintain order with respect to parking on the campus in the interest of public safety and preservation of substantial parking revenue which will otherwise be lost to the University“.

The Plaintiff argued that a stay would not be necessary because granting one would “amount to endorsing what has been determined to be an unlawful regime, which will never be determined to be lawful, when there is an alternative way in which the University can enforce parking restrictions“.

The BC Court of Appeal sided with the University and ordered a stay.  In doing so the Court reasoned as follows:

[4] The considerations on an application of this kind are well established.

[5] It is accepted there is a serious question to be considered by this Court and it appears clear to me the University will suffer irreparable harm, particularly with respect to lost revenue and a large measure of parking disorder if a stay is not imposed.

[6] The balance of convenience favours the imposition of a stay principally because it will constitute no prejudice in any practical sense to the class. There has been no determination of what, if any, portion of fines paid since 1990 any members of the class are entitled to recover from the University. That aspect of the action remains outstanding and, assuming the appeal is prosecuted diligently, it should not unduly interfere with the resolution of the remaining issues in any event. It appears to me the only real effect a stay will have is to facilitate the enforcement of essential restrictions on parking that have been in place for a long time. The members of the class cannot, and of course do not, complain about that.

[7] I do not accept the granting of a stay will necessarily amount to endorsing an unlawful regime that will remain unlawful should the appeal succeed. As I understand it, if the appeal were to succeed, the University would be entitled to continue to regulate parking by imposing fines, albeit as a private law right at common law. But in any event, the situation requires a remedy, however short term, and I have no confidence it is to be found in the alternative suggested even if its prompt implementation could be said to be feasible, which I doubt.

[8] The order is stayed until the disposition of the appeal. It will be a term of the order that any fines collected by the University during the period of the stay be held in trust by the University for distribution by court order and that the recognition of academic achievement in no way be impaired by the University’s attempts to collect parking fines during the period of the stay. The University agrees that the class period and the opt-in period are to be extended to the termination of the stay. The University has filed its factum and is required to continue to prosecute the appeal diligently.

The course of this Appeal can have consequences not only to this case directly but also to a Class Action Lawsuit launched against the University of Victoria and SFU alleging similar wrongdoing as well as a potential challenge to the University of Northern British Columbia (UNBC) for arguably similar wrongdoing.


Advertisements

Fresh on the heels of the recent Class Proceedings Claim launched against UVic challenging the validity of parking fines collected by the University over the years, On June 22, 2009 a claim under the BC Class Proceedings Act (a Class Action lawsuit) was filed in the BC Supreme Court (Victoria Registry) against Simon Fraser University seeking repayment of  parking fines collected by the University.

The Claim was filed on behalf of a Plaintiff who seeks to have the claim certified on behalf of Those people from whom fines were collected by the Defendant for violations of traffic and parking regulations.  You can click here to read the Statement of Claim.  In short, the Claim alleges that Parking Fines collected by Simon Fraser University (SFU) were collected unlawfully in that the University lacked the power to enact and collect parking fines.

As I previously posted, I normally don’t write about cases that I and my firm are directly involved in, however, Class Action lawsuits are by definition public and getting the word out to the potential class is essential.

If you or anyone you know paid a parking fine to the University of Victoria, Simon Fraser University (SFU) or the University of Northern BC (UNBC) and are interested in learning more about these claims you can click here to contact me.

Are you thinking of starting a Canadian Class Action Lawsuit or wondering if a Class Action is underway that affects your interests?  If so the first place you should turn is the Canadian Bar Association’s National Class Action Database.

This is a wonderful resource that  ‘is designed to give lawyers and the public easy access to court documents submitted with regard to class action lawsuits currently underway across the country.‘.

Once you enter this database you can search filed Class Actions (pre and post certification) in Canada.  This database not only contains class action lawsuits arranged by date of filing and Province of filing, but also contains a summary of each purported class and has PDF copies of the initiating court documents.

While this is a voluntary initiative, many jurisdictions require class actions to be reported to this national database.  The Honourable Chief Justice Brenner of the BC Supreme Court gave a Practice Direction in December, 2006 requiring the following:

within 10 days of service or filing, whichever is earlier, a copy of any:

1.  originating process; or

2.  notice of motion for certification (not including affidavits in support); or

3.  amendments to the foregoing

must be sent electronically to the National Class Action Database of the Canadian Bar Association…

Assuming that BC Lawyers comply with this Practice Direction the Database should contain very timely information of all BC Class Action Lawsuits.  For this reason the CBA’s database is great resource and recommended starting point for anyone considering a class action lawsuit in Canada.