In every Canadian province other than British Columbia, a party may bring a claim under the Canadian Charter of Rights and Freedoms by petition or application, as opposed to an action, provided there are no material facts in dispute. British Columbia and the federal courts appear to be outliers.

In British Columbia, a party may initiate court proceedings in two ways: by filing a notice of civil claim (an action) or by filing a petition (referred to as an “application” in other provinces). The Rules do not explicitly address Charter claims, and have no blanket provision allowing for a petition where there are no material facts in dispute.

This procedural anomaly was a key factor in The Redeemed Christian Church of God v. New Westminster (City), 2022 BCCA 224. The British Columbia Court of Appeal held that Charter claims must be brought in British Columbia in an action, by filing a notice of civil claim. The only exception is if the Charter claim is combined with another claim that must be brought by petition. Grace Chapel’s petition was held to be improperly brought, their Charter claim was dismissed, and they were granted leave to start at square one by filing a notice of civil claim.

This case highlights the importance of obtaining advice when bringing or defending Charter claims, especially when they are combined with an application for judicial review.

The case

The Redeemed Christian Church of God entered into a contract with the city of New Westminster to rent a ballroom for a one-day youth conference. After the contract was signed, the City cancelled the contract in response to a third party complaint. Grace Chapel filed a petition under the Judicial Review Procedure Act and the Charter for a declaration that the City’s decision was both procedurally unfair and infringed on Grace Chapel’s rights and freedoms under the Charter.

The Supreme Court of British Columbia dismissed Grace Chapel’s judicial review application. The judge held that the issues raised by Grace Chapel were essentially contractual and not properly the subject of judicial review. The remaining issues related to the infringement of Grace Chapel’s Charter rights. The judge found that the Charter challenge was properly brought by petition and ruled that the City unjustifiably infringed Grace Chapel’s freedom of expression.

The appeal

The City appealed. The main ground of appeal was that the judge incorrectly found that a petition was the proper procedure for the Charter claims. Grace Chapel did not bring a cross-appeal on the dismissal of its judicial review application, which left the Charter issues to stand alone.

The primary question for the Court of Appeal was whether standalone Charter claims can be started by way of petition. Following an analysis of the term “enactment”, the Court of Appeal determined that this term refers only to “an Act or regulation or a portion of an Act or regulation” that is enacted in British Columbia. Federal statutes, such as the Charter, are not included.

Therefore, a stand alone Charter claim must be brought in British Columbia as an action However, there is no doubt that joining a Charter claim to a properly brought petition under another enactment, such as the Judicial Review Procedure Act, is the proper procedure in British Columbia.

As a result the City was successful on its appeal and the Charter infringement decision was overturned. The Court of Appeal was careful to note that it set aside the declaration of Charter infringement not solely because of the improper proceeding, but also because the City argued that it was inhibited from advancing certain evidence in the petition proceeding, and Grace Chapel had already been granted leave to convert another Charter claim into an action. It would be efficient to combine these issues into a single proceeding.

Takeaways

British Columbia courts have significant discretion to correct procedural irregularities. However, it can be difficult to predict whether a court will exercise its discretion to dismiss a proceeding, convert a proceeding to an action, or use a hybrid method. In deciding how to address an incorrect proceeding, a court must consider the interests of proportionality and access to justice, the importance of the issues, and the complexity of the proceeding.

Whether a party is bringing or defending a Charter claim, they should seek advice on any procedural hurdles to overcome or defences to advance. For litigants who are combining a Charter claim with an application for judicial review (or other application allowed by a statute in British Columbia), they should carefully consider the validity of the statutory claim. If the non-Charter claim is found to be outside the ambit of its statute, the court may require a litigant to begin the process again as an action, wasting time and resources. For defendants, this case highlights the importance of carefully considering whether there is a procedural defence, as well as a defence on the merits.