BarTalk April 2005
Volume 17, Number 2

Appeal and cross-appeal both filed

In a decision that adds to the momentum of the CBA’s campaign to remove the Social Services Tax (SST) on legal fees, Koenigsberg, J. released a landmark decision in Christie v. AG of B.C. In this case, counsel Darrell Roberts, Q.C. and Robin Bajer, both of Miller Thomson LLP, successfully argued on behalf of Vancouver lawyer Dugald Christie that the Social Services Tax on legal services impedes and denies justice for low income persons, contrary to the Charter of Rights and Freedoms.

Justice Koenigsberg declared the Social Services Tax Amendment Act ultra vires the Province of British Columbia to the extent that it applies to legal services provided for low income persons, as defined by the income and asset levels that determine eligibility “for the Family Duty Counsel Program of the Legal Services Society… as set forth in its policy and procedures manual.” She also ordered the return to Mr. Christie of more than $6,000 that was seized by the government when Mr. Christie could not pay the tax owed on services provided to his clients.

In the days following release of the decision, conflicting messages came from the Revenue and Attorney General ministries: on the one hand, lawyers were told they were responsible for ensuring that clients under a certain income threshold were not charged SST; on the other hand, it was unclear whether the Attorney General would appeal the decision and lawyers would be liable for SST on those clients’ bills should the appeal be successful.

Adding to the confusion, the Ministry of Revenue initially posted a website link to a chart showing the income thresholds for legal aid eligibility, which are lower than those referenced in the court decision. The Ministry then removed the link and posted the duty counsel threshold levels that were in place the day of Mr. Christie’s affidavit being filed. In the meantime, the Legal Services Society (LSS) had raised those thresholds quite substantially (the lowest level rising from $28,000 to $32,000). Anyone reading the Christie decision and referencing the LSS website for “LSS Family Duty Counsel Income Thresholds” found the new levels.

Clarification has been sought from government, and has recently been provided. Lawyers with clients who may qualify for SST exemption need to educate themselves about the new requirements. Links to Ministry of Revenue information and Law Society instructions to lawyers are available at www.cba.org/bc.

The Attorney General is appealing the Christie decision, and Mr. Christie’s counsel has filed a cross-appeal to have the Act declared ultra vires and the SST on legal services eliminated. The CBABC has resolved to contribute to appeal costs, as part of the Branch’s ongoing commitment to have this arbitrary and harmful tax removed for all British Columbians who have need of legal services.

This article was published in the April 2005 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.