Will the Fight HST citizen's Initiative be ruled legal or illegal on Friday?
BC Supreme Court Chief Justice Robert Bauman said this afternoon that he plans to issue his decision at 10 a.m. Friday if at all possible,after hearing arguments from a big business coalition that wants to invalidate the Initiative petition signed by 705,643 voters.
That follows a day of arguments from the business organization's legal team - which strangely included comparing the campaign against the HST to a possible citizens Initiative effort to legalize marijuana in BC and saying voters had been "fooled" into signing the Fight HST petition.
Lead business lawyer Peter Gall said the proposed Fight HST draft legislation to kill the HST that was attached to the petition was no more possible for the BC Legislature to implement than it would be able to make marijuana legal in the province.
Bauman also heard counter arguments from lawyers for Fight HST leader and former BC Premier Bill Vander Zalm, the petition proponent, as well as a lawyer for Elections BC, which approved the wording before it was launched.
And NDP MLA Mike Farnworth strongly disagreed with Gall's position, saying that the entire Initiative question should be dealt with by the BC Legislature, not the court.
Gall, whose legal team includes former BC Liberal Attorney General Geoff Plant, was scathing in his attacks on the Initiative.
And Gall rejected any allegations that the business community is playing politics with the Initiative.
"There have been arguments that my clients are interfering with the political process, advancing their own interests - that's just not so. My clients simply want to see the rules followed," Gall said.
"There would be harm done to the political process if this Bill is introduced in the Legislature and the debate is not about the content of the Bill but whether it is constitutional," he said.
That brought a witty rejoinder from Bauman.
"You say it's wrong and they say it's right - and I have to resolve all that?" he asked to laugher in the courtroom.
But Gall forcefully argued that the Fight HST proposed legislation is beyond the province's ability to change because it entered into an agreement with the federal Conservative government to implement the HST.
"The proposed Bill is clearly, clearly in its pith and substance outside the jurisdiction of the province," Gall said. "This statute would nullify the HST immediately....The Act clearly indicated that it extinguishes the HST in British Columbia - and it can't do that."
"It [the Act] doesn't have the constitutional jurisdiction to render inapplicable the HST in BC. Only Parliament through an amendment to the Excise Tax Act can extinguish the HST in BC," Gall said.
Then the longtime adversary of labour unions in countless Labour Relations Board hearings went on the offensive against the Fight HST petition and draft legislation.
"This was very carefully, carefully constructed to have a very misleading and incorrect assumption - that this would eliminate the HST immediately," he said. "The summary also wrongly leads people to believ extinguishing the agreement [with Ottawa] will extinguish the HST."
Gall argued that Bauman should use the provisions of the Recall and Initiative Act that the petition was launched under to rule that the Fight HST effort is invalid and kill the legislation rather than let it go to a Select Standing Committee of the Legislature.
"That's what the Act was designed to prevent - from people being fooled," Gall said.
Fight HST lawyer Bruce Elwood argued strongly against the business coalition position.
"The intent of the Initiative process is to take the Executive [the BC cabinet] out and go directly to the Legislature," Elwood said. "The heart of the [Fight HST] Bill is very simple - to terminate the agreement."
Outside court NDP MLA Farnworth said that if the business coalition argument is upheld by Bauman, the Initiative process is dead.
"It will render the law basically useless," Farnworth said. "That's not what was intended with this legislation - this was a way for ordinary citizens to participate."
"The court should not be, in my view, pre-screening legislation. The Legislature decides what it will discuss and what will pass."
"The court should rule in favour of Vander Zalm and toss out the business coalition case," Farnworth said.
Bauman has reserved judgement on Fight HST's earlier court application to have the HST itself declared unconstitutional based on the fact that the BC Legislature never passed legislation imposing the HST - only to repeal the previous Provincial Sales Tax.
For those interested, the big business coalition members are: the Council of Forest Industries, the Independent Contractors and Businesses Association, the Mining Association of B.C., the B.C. Chamber of Commerce, the Coast Forest Products Association and the Western Convenience Stores Association.