A North Vancouver lawyer is one of two people leading a lawsuit against the provincial government and the B.C. Liberals for alleged misuse of taxpayers’ money on pre-election advertising.
David Fai, who practises in central Lonsdale, is donating his time and expertise pro-bono for the suit that seeks to halt the ad campaigns extolling the virtues of government policies on the airwaves, and force the B.C. Liberal party to pay back the provincial treasury.
The suit is filed in the name of David Trapp, a 63-year-old White Rock man recovering from cancer surgery who felt the ad money would be better spent in B.C.’s health-care system. But Fai and co-counsel Paul Doroshenko are seeking to have it certified as a class action suit, meaning virtually any B.C. resident or taxpaying business could join.
The claim filed in B.C. Supreme Court on Monday asks a judge to rule that the government is violating its fiduciary duty to Trapp in its spending of tax money for “partisan and non-essential advertisements.” Specifically, it names the BC Jobs Plan, B.C.’s LNG Industry, WorkBC and Our Opportunity is Here campaigns.
Former B.C. premier Gordon Campbell’s government put a moratorium on such ads in the six-month period leading up to a provincial election but today, the government operates “with no established guidelines and principles that distinguish between government program, partisan political advertising and communications for members of the public services,” the suit alleges.
Fai, Dorshenko and Trapp also are seeking a judge’s finding that the B.C. Liberals continue to be “unjustly enriched” at the expense of taxpayers as well as a total accounting of the costs of the 2013 and 2017 ad campaigns.
Most importantly, the lawsuit seeks an interim injunction pulling the ads in the run-up to the election to stop any “irreparable harm,” said Fai.
“Here, there is irreparable harm and that’s to the electoral process itself. If the court finds that the ads are improper and they’re wrongfully misappropriating public funds, then they could have influenced voters who wouldn’t have been influenced if these ads hadn’t been played. That’s the irreparable harm that can’t be paid back later,” Fai said. “It’s a concern about the function of our democracy. We have a government that’s so arrogant that it thinks it can do whatever it wants with taxpayers’ money – even promote itself, its own party. I just think we need to stop that.”
Fai said he likes his chances of success in the suit.
“I think they’re pretty damned good. I think it’s pretty clear that these ads are partisan and are for one purpose alone, which is promoting the Liberal party for their election campaign,” he said.
In 2016, he successfully argued before the Supreme Court of Canada that the previous Conservative government’s mandatory minimum sentences for drug trafficking were a violation of the Charter of Rights and Freedoms’ protection against cruel and unusual punishment.
“I’m no stranger to constitutional challenges,” he said. “As a lawyer, I have these skills and they should be used for public interest advocacy.”
Doroshenko previously worked for Gordon Campbell’s Liberal government in its early days, in part, because he was bothered by the B.C. NDP’s pre-election ad spending. The two decided to join forces on the suit after a conversation over Twitter.
Fai said he’s had a “very positive” response to the suit as word about it spread.
“On social media, people are saying ‘It’s about time,’ ‘Good job,’ ‘Glad you’re doing it’,” he said.
Once served, the government and the BC Liberal Party have 21 days to respond.
None of the allegations have been proven in court.
Advanced Education Minister Andrew Wilkinson, whose ministry is also responsible for government advertising, issued a statement on Monday afternoon questioning the court action’s timing.
“This litigation is timed to occur just before the election. The issues should be addressed in the election and not in the courtroom,” it read.
The government worked with B.C.’s auditor general to ensure the ad campaigns fulfilled the government’s criteria: that they are fact-based and inform the public about government programs, services, policies or priorities, Wilkinson’s statement added.
Although Fai and Doroshenko are volunteering their time, they have launched a crowdfunding campaign on gofundme.com to cover some of the administrative and court costs that come with the undertaking.
In the first 24 hours, they had raised almost $5,000 towards their goal of $26,000.
