The B.C. Government is reviewing the Society Act , which governs Transport Action BC. The result is a lengthy discussion document detailing proposed legislation, including annotations explaining the rationale for the proposals. The document was posted in August 2014 with a review period that ended October 15, 2014. A conversation with the BC Registry Services indicated that legislative changes could be implemented some time in 2016.
Clause (Section 99, Sub-section 1 (b)) resulted in considerable on-line discussion because it seems to open Societies to Court action based on the undefined concept of “activities that are detrimental to the public interest.” The entire text of Section 99 follows:
Complaints by public
99 (1) A person whom the court considers to be an appropriate person to make an application under this section may apply to the court for an order under this section on the grounds that a society
(a) is conducting its activities or internal affairs with intent to defraud a person or to otherwise act unlawfully, or
(b) is carrying on activities that are detrimental to the public interest.
(2) On an application under this section, the court, with a view to remedying or bringing to an end the matters complained of, may make any order it considers appropriate, including an order referred to in section 98 (3).
(3) Section 98 (4) applies for the purposes of this section.
Detailed reporting about the issue is found on The Tyee and The Huffington Post . West Coast Environment Law led the response to the clause with a letter signed by 50 non-governmental organisations. 24 Hours dueling columnists’ discussed this issue on Oct. 20, 2014 here and here .
Transport Action BC expressed its concern over Section 99, Sub-section 1 (b) in an e-mail to the Ministry of Finance:
October 15, 2014
Financial and Corporate Sector Policy Branch,
Ministry of Finance,
PO Box 9418 Stn Prov Govt,
Victoria BC, V8W 9V1
Re: Society Act Revisions White Paper (August 2014)
Issues have been raised over Section 99, Sub-section 1 (b) of the Society Act revisions which proposes to allow anyone to take a Society to court by alleging that the Society “is carrying on activities that are detrimental to the public interest.” The section is very vague and provides no clear definition of “the public interest”. Indeed, defining “public interest” would appear to be a challenge in itself.
The vagueness of the proposed clause appears to open the way for frivolous and vexatious legal actions that could prevent a Society from carrying out its functions or even force it into financial insolvency. The White Paper’s annotations state the Courts will prevent abuse of Section 99, Sub-section 1 (b). However, the Courts can’t prevent claims from being filed or requiring that Societies use time and resources to defend against such claims, even if the Courts eventually decide the claim is an abuse of process.
No rationale for opening up Societies to potentially, open-ended, expensive court actions is provided in the White Paper. Illegal and fraudulent activities by a Society seem adequately covered by Section 99, Sub-section 1 (a) so what issue is Section 99, Sub-section 1 (b) supposed to resolve?
Section 99, Sub-section 1 (b) also appears to contradict statements made in Minister de Jong’s Introductory Letter to the White Paper in which he explains
The Minister states that “Each provision … is annotated to include … background information, such as the policy intent behind the provision …” No such policy annotation appears for Section 99, Sub-section 1 (b).
The Minister also states “stakeholders … requested the new Act be … simple and straightforward, so it could be used by all … including those without legal council[sic]“. As Section 99, Sub-section 1 (b) involves the courts, legal counsel will be necessary for any Society that runs afoul of an action initiated under the clause.
One of the Minister’s “objective[s] in publishing [the] White Paper is to ensure that any legislative obstacles preventing societies from functioning fully and efficiently are identified before legislation is introduced.” Section 99, Sub-section 1 (b) appears to be a new “legislative obstacle” to a Society’s functioning.
For these reasons – vagueness, lack of policy rationale, potential for unnecessary legal actions against Societies, apparent contradictions between the Minister’s direction on Society Act revisions and the Draft Legislation – it is respectfully requested that Section 99, Sub-section 1 (b), as drafted, be clarified, revised or eliminated.
Thank you for the opportunity to comment on the “Societies Act White Paper: Draft Legislation with Annotations”.