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.


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