Focus On

CIVIL PROCEDURE - Associations, societies and clubs - Striking out pleadings or allegations

Wednesday, May 23, 2018 @ 8:43 AM  

Lexis Advance® Quicklaw®
Applications by the defendants to strike the plaintiff's claim. The plaintiff commenced a proposed class action on behalf of all British Columbian taxpayers alleging that the defendant Government as led by the defendant political party engaged in taxpayer-funded partisan and non-essential advertising. The plaintiff further claimed that the party committed conversion by using tax dollars to fund the partisan and non-essential advertising, engaged in a conspiracy to commit the conversion and was unjustly enriched as a result of the conversion of tax dollars. He claimed that the government breached its fiduciary duty to taxpayers by diverting tax dollars to the Party and also engaged in conversion. The Party sought to strike the action on the basis that it was not a proper defendant in the action and, even if it were, that the plaintiff failed to plead the facts necessary to ground claims of conversion, conspiracy and unjust enrichment alleged against the Party.

HELD: Applications allowed. The Party was not a proper defendant. It was an unincorporated association with no legal existence. Various provisions of the Election Act provided political parties with status for limited purposes, such as for applying for relief from a penalty or to be a defendant in an action approved by the Chief Electoral Officer for a contravention of the Election Act. In addition, the plaintiff had not pleaded a proper cause of action against the Party. Decisions made by public officials for the public good could adversely affect private interests. However, without more, a private interest in public money was not enforceable in tort. As the conversion claim could not succeed, the unlawful conspiracy, which was based on the conversion, could also not succeed. Furthermore, the claim did not seek the return of funds, but rather a redirection of the funds to more worthy causes. The desire to control the government's decision-making power did not qualify as damages in the manner contemplated by a common law conspiracy claim. The conspiracy claim also did not plead actual or constructive intent by the Party to harm the plaintiff or other members of the class. In addition, there was no deprivation pleaded of the kind required to support an unjust enrichment claim. The plaintiff conceded that he would not proceed against the Government if the claim against the Party failed. In any event, the plaintiff's claims against the Government failed for the reasons previously stated. The claim in fiduciary duty was not consistent with the governing case law.

Trapp v. British Columbia, [2018] B.C.J. No. 648, British Columbia Supreme Court, Branch J., April 10, 2018. Digest No. TLD-May212018005