The tweed curtain: Oak Bay now rules British Columbia

  • Subtitle: Law Law Land
Written by  Posted Date: May 23, 2017
The tweed curtain: Oak Bay now rules British ColumbiaFor those of you who have never been there, Oak Bay, B.C., (perhaps a 10-minute drive to downtown Victoria) may be among the most pleasant, idyllic and floral suburbs in Canada. There are magnificent waterfront homes with immaculate gardens set alongside tree-lined streets; many with million-dollar views of Mount Baker across Strait of Juan de Fuca or, depending upon where you are, equally expensive views of San Juan Island across Haro Strait.

Walking, driving or cycling along the waterfront on Beach Drive, stopping into The Snug for a beer or taking your boat for a quick afternoon sail from the Oak Bay Marina to anchor in front of Willows Beach can be paradise. Or, you might pop up to Estevan Village for a coffee before zipping over to St. Michaels University School or Oak Bay High School to watch a rugby game.
It's very English — in fact, the border between Oak Bay and Victoria is called the "Tweed Curtain."

There's an old joke about Oak Bay being a place where old people go to visit their parents. Whether that's an exaggeration or not doesn't matter anymore because after the 2017 B.C. election (and subject to a recount in a couple of ridings), Oak Bay will likely rule B.C.

Dr. Andrew Weaver, leader of B.C.'s Green party and a graduate of Oak Bay High School and the University of Victoria (which actually borders Oak Bay), and the Member for the riding of Oak Bay-Gordon Head, will likely hold the balance of power in the British Columbia Legislature. Weaver has been courted by Premier Christy Clark for support and by NDP leader John Horgan. Without the support of the Greens, Clark's government falls and the lieutenant governor gets to ask the NDP if they can form a government. Weaver may be a kingmaker in a political culture that can resemble, on certain days, an episode of Game of Thrones.

So, assuming after the recount the Greens do hold the balance of power in a minority government, if I were sitting down with Weaver for a beer in The Snug I might be inclined to provide this advice to him in his new role:

1.    Politics is the art of the possible, not the impossible or the insane. There's enough insane in the United States right now. So, concentrate on what's possible. First off, you should demand (and get) party status in the legislature (and the funding that goes along with it). If you can accomplish One Big Thing, it would be to clean up campaign financing in B.C.; whether from business or from labour unions. When the New York Times says that B.C. is the Wild West of political donations, it's time to fix that for good, and in doing so, change the political system. B.C. would be forever in your debt.

2.    Insist that British Columbia become a proportional representation jurisdiction. Having seen B.C. politics in action since I was a young schoolboy (from Oak Bay, no less), it's the most polarized political culture in Canada. Proportional representation might actually force the two leading political parties (the NDP, and whatever the party against the NDP calls itself that decade) to compromise their respective ideological sacred cows and actually govern with the province in mind, rather than just their base.

3.    One of the biggest travesties to hit B.C. wasn’t the HST but its poorly planned rollout, which gave political grandstander and showboat Bill Vander Zalm an opportunity to get back on television again, chastising and ultimately defeating the tax. Now we're left with a five-per-cent GST on goods and services and a seven-per-cent PST on goods and legal services. Until the HST is back on the table, the B.C. government should tax all services to the same extent that goods are taxed. Maybe that'll bring the rate down. But taxing goods without taxing services is wrong, and particularly singling out legal services is wrong.

4.    The current PST on legal services should be directed to fund legal aid in British Columbia, rather than going into "general revenue." Legal aid funding is a disaster in B.C., and it should be funded as an essential service. Underfunding legal aid is forcing litigants to represent themselves, clogging up the courts and in effect denying justice to those who can least afford it.

5.    Trudeau the younger is correct: There isn't a country in the world that wouldn't exploit billions of dollars' worth of oil in the ground if there's a market for it. Petroleum contributes to our standard of living by allowing governments to use tax revenues for health care and other social services, it creates jobs and people can't use windmills to run their cars, heat their homes or travel by air. Leaving oil in the ground makes us poorer as a society, and windmills aren't quite ready for prime time. So, getting Alberta oil to a west coast port is in the national interest, and any move to block Kinder Morgan by B.C. will only lead to Alberta politicians considering reprisals against B.C. products moving east by rail or threatening that great Canadian side-show: the separation referendum. One way or another, the spice will flow.

By the same token, the risks, costs and benefits of oil distribution and transportation should not be asymmetrically distributed just because something is in the national interest.

There is nothing concrete on the table that directly commits Alberta or the rest of Canada to pay proportionately for any oil spilled in B.C. (particularly in B.C. waters). If there is a spill, everyone will point to the marine shipper, who will inevitably be a numbered Liberian or Panamanian company without assets.

I would argue, Dr. Weaver, that it's in the national interest to allow Alberta oil to be shipped from B.C. ports, but it's also in the national interest to deal definitively with spill prevention and liability, so that everyone will know what their obligations are and B.C. taxpayers aren't saddled with disproportionate cleanup bills in the event of a spill.

Accordingly, Alberta, Canada and B.C. should negotiate a risk-sharing and cost-funding agreement to deal with oil spills, and you would do a service to the province by insisting on such an arrangement as the price to be paid for your support.

By the way, Dr. Weaver, I'll buy the beer.

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0 # Prof.Stephen Scott 2017-05-23 18:55
An excellent post. The primary federal statute of indemnity in favour of all persons suffering loss or damage from spills has to be drafted very broadly, imposing liability upon the public credit of Canada "absolutely and without limit for all loss, economic and non-economic, direct or indirect, proximate or remote, foreseeable or not"; the de minimis rule shall not apply, and any reasonable claim, even if unsuccessful, shall carry costs as between solicitor and client in all courts throughout."
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Tony Wilson

Tony Wilson is a franchise, licensing, and intellectual property lawyer at Boughton Law in Vancouver, an Adjunct Professor at Simon Fraser University and Sessional Lecturer at  Thompson Rivers University Law School, where he teaches Ethical Lawyering. He is a regular business law columnist with The Glolbe and Mail and a Bencher of The Law Society of British Columbia. He is the author of Manage Your Online Reputation and Buying a Franchise in Canada. The views expressed herein do not reflect the opinions of the Law Society of British Columbia or any other organization.

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