HOUSE OFFERS OLIVE BRANCH IN TURPEL-LAFOND QUARREL
Suspended legislature clerk Craig James and former Liberal attorney general Geoff Plant have been replaced on the legislature’s legal team in the expensive squabble over the former representative of children and youth’s retirement benefits.
The legislature said it has changed lawyers — Don Farquhar, of Victoria’s Pearlman and Lindholm, is now in charge, and James, who selected Plant for the litigation, ceased giving direction in the suit Nov. 20.
Acting clerk Kate Ryan-Lloyd is instructing counsel.
For three years, James directed Plant in the acerbic lawsuit over verbal promises he allegedly made more than a decade ago to lure to B.C. then- Saskatchewan provincial court judge Mary Ellen Turpel-Lafond.
She maintains in her claim that she became the first children’s representative, an independent legislative officer, after James confirmed a verbal offer in a Dec. 29, 2006 letter, but that the legislature and government later breached that agreement.
Turpel-Lafond served a second term, leaving in November 2016 because a third term was precluded by statute.
Regardless, she and the former Liberal government parted as bitter antagonists — she left not to accolades, but to surly allegations of “contempt” by former Speaker Linda Reid.
Still, last month B.C. Supreme Court Chief Justice Christopher Hinkson dismissed the legislature and government attempt to derail Turpel-Lafond’s lawsuit to force them to honour her contract.
“The (legislative) assembly will not seek to appeal the decision,” the clerk’s office said in an email. “A final resolution to this matter, through mediation, is being pursued.”
The attorney general’s office, however, said the government has not yet decided whether to file an appeal of Hinkson’s ruling that historic parliamentary privilege did not protect the institution from judicial review of its employment practices.
“The province is a separate legal entity from the legislative assembly and has separate representation,” a spokesman for the attorney general said. “Counsel for the province is reviewing the decision.”
Turpel-Lafond was pleased with the legislature’s change in tack and thought a resolution possible.
“I look forward to the appointment of a mediator in the matter,” she said Tuesday. “I trust this matter will soon be resolved. I take no joy in having to take this claim to the courts over the past three years at great personal and financial expense.”
Hinkson’s 31-page ruling was an important statement on parliamentary privilege and its scope — and especially pertinent, given the current scandal over the suspension of James and sergeant-at-arms Gary Lenz and the constraints the archaic constitutional indemnity might impose on special prosecutors.
While there is a role for parliamentary privilege, TurpelLafond’s lawyer, Joseph Arvay, argued successfully there was a limit on it and the line was crossed when parliament or the government tried to deny the court its proper jurisdiction, or vice versa.
“The legislative assembly did not explain exactly how judicial scrutiny of whether it has fulfilled contractual terms regarding remuneration and benefits would interfere with its legislative and deliberative functions, offend its dignity, or violate the separation of powers,” Hinkson said.
Turpel-Lafond alleged a breach of her contractual rights and that was a matter for the court, the chief justice said.
During her application and interview process, TurpelLafond contended James, as deputy clerk and clerk of committees in 2006, made promises to her about remuneration and pension entitlements that were never kept.
Hinkson pointed out, “the Government did not adduce any evidence to dispute the alleged verbal agreement or the representations that the plaintiff alleges were made to her. Importantly, on this application the government does not assert that the verbal agreement and misrepresentations alleged by the plaintiff were not made, nor does it seek to establish by evidence that the deputy clerk did not bind it to pay the plaintiff under the alleged verbal agreement.”
Plant and government lawyers said that allowing Turpel-Lafond’s claim to go to trial would require the court to inquire into “the legislative assembly’s management and internal proceedings and that such judicial interference would undermine its autonomy and the ability of its officers to conduct their business.”
The issues were within the exclusive jurisdiction of the legislature and covered by the blanket of parliamentary privilege, they insisted. Hinkson disagreed.
“I find that the parliamentary privilege asserted, in this case, is cast too broadly,” he concluded.
Now director of residential school history and dialogue centre at UBC’s Peter A. Allard School of Law, Turpel-Lafond said the legal war has taken its toll.
“Every formal objection was presented by the defendants to get to that decision, including threats that I would have to pay punitive costs if I didn’t abandon the matter at the early stages,” she explained.
“This has hung over me as it would be financial ruin for me and my family if I was ordered to pay what no doubt would be many hundreds of thousands in the costs of both of the private law firms that were retained to represent the defendants, in addition to my own fees.”
The government said its legal fees are privileged information and will not be disclosed. The legislature spent roughly $85,000.
I take no joy in having to take this claim to the courts over the past three years at great personal and financial expense.