Government actions can be challenged on the grounds that it offends the government’s own law. Challenges of this nature are common when it comes to environmental issues.
A government may have approved a project, be it a dam, hog barn or oil project, without holding the necessary environmental review or public hearings. This happened in Saskatchewan a few years ago. The government approved a hog operation without holding an environmental assessment. The government argued that the project fell under the Agricultural Operations Act and hence did not require such an assessment. Opponents obtained a Queen’s Bench ruling, which agreed such an assessment was necessary. This ruling was subsequently overturned by the Court of Appeal.
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In the Dysart School Board case, the issue was whether a rural school should close. Public consultations had been undertaken and at least three months verbal notice was given that the Cupar school would close. However, the Education Act also required formal written notice to the school trustees. The trustees argued that the written notice was a day short of three months. A Queen’s Bench judge agreed and issued an order against the school being closed. The Saskatchewan Court of Appeal said that if there was a breach, it was technical and minor in nature, and allowed the school to be closed. Note, the law has changed since this case.
In the Winnipeg tax case Harris vs. Minister of National Revenue, George Harris and a coalition for social justice are challenging advance rulings made by Revenue Canada. A taxpayer can ask for an advance ruling on the tax consequences of certain actions. In 1985 and 1991, Revenue Canada ruled on behalf of some unnamed taxpayers that assets held in Canada could be transferred out of the country without tax consequences. Under many situations when assets are transferred it is deemed they are sold and the appropriate taxes applied.
These cases involved several wealthy Canadian families wanting to transfer their assets offshore. By court order, the taxpayers involved have not been named.
The allegation is that the department “acted illegally or improperly or for ulterior motives, namely favouritism and preferential treatment … in favour of a specific trust.”
In a preliminary move, the tax department argued that Mr. Harris had no standing and that his case should be struck down because one taxpayer cannot challenge how the department deals with another taxpayer, and that there was no public interest involved.
The matter was argued up to the Federal Court of Appeal, which concluded that Revenue Canada has a fiduciary obligation to taxpayers and that this case raises the issue of whether Revenue Canada exceeded its own statutory authority. Hence Mr. Harris has a right to pursue his case.
The matter has tentatively been set for trial starting Sept. 17. In this hearing, the court will determine whether there is substance to Mr. Harris’s complaint and whether Revenue Canada breached its authority.
The cases I have mentioned are a small sample of the thousands of cases in which government actions have been challenged. If you’ve concluded that challenging government actions is a difficult process, you are right.
It’s highly unlikely that any government, when challenged, will simply decide the citizens are right and change its legislation.
And challenging the government is likely to be costly. You will require a lawyer, more likely a team, that is knowledgeable in the area being challenged. Such legal help is likely to cost $200 per hour or more.
If the case goes to the Supreme Court, fees could easily amount to $500,000 to $1 million. Better make sure you have a lot of friends or support groups behind you.
The courts are one way of challenging governments. But there are many limitations to challenging the government this way.
First, you have to fit your challenge into one of the grounds I’ve described.
Second, it’s going to cost money and third, there are no guarantees of success. Frankly, I think political activism is a more effective way of protesting government actions.
