Administrative law – Legislation – Orders in council – Ultra vires – Legal Aid – Funding
Tremblay v. British Columbia (Attorney General),  B.C.J. No. 942, British Columbia Court of Appeal, May 2, 2002, Finch C.J.B.C., Prowse and Smith JJ.A.
Tremblay appealed from the decision of the British Columbia Supreme Court dismissing the petition to quash an order of the Lieutenant Governor in Council reappointing members of the Legal Services Society Board, and to declare that the Province of British Columbia must provide sufficient funding to permit the Legal Services Society to carry out its mandate under s. 3 of the Legal Services Society Act, R.S.B.C. 1996, c. 256. Tremblay alleged that the order-in-council was ultra vires the powers granted by s. 19 of the Act or that the Lieutenant Governor abused his discretion. Tremblay also contended that the budget cuts planned by the Provincial Government were inconsistent with s. 3 of the Act, and were ultra vires, and that the trustee had acted contrary to her duties.
The chambers judge had rejected all of Tremblay’s arguments, holding that the order-in-council was not ultra vires and that there was no abuse of discretion. He held that the application for a declaration was premature as there was no evidence that the Legal Services Society had thus far failed to fund fully the legal aid services required by s. 3. On the appeal, Tremblay advanced essentially the same arguments and in addition sought leave to adduce fresh evidence in the form of an affidavit. This affidavit exhibited a memorandum from the Vancouver Regional Director of the Legal Services Society dealing with the Society’s internal plans and policies in light of the proposed budgetary cuts. Essentially, this evidence was that the trustee had suggested changes to the legal aid retainer agreements indicating that clients be put on notice that the legal aid lawyer may have to terminate services in certain cases. The Court of Appeal held that this evidence did not meet the test of being likely to affect the result of the petition, as the messages did not demonstrate conduct that was inconsistent with the existing legislative mandate. The court held that Tremblay had not shown any error of law or principle that would allow the court to intervene. They further agreed with the decision of the chambers judge that this was a policy, rather than a legal, dispute. In the result, Tremblay’s appeal was dismissed.
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