Foreign Buyers' Tax discrimination and unconstitutional limits on experts in ICBC cases

Canada, and British Columbia, have a very unfortunate history of racist legislation intended to restrict Chinese immigration. This includes the Chinese Immigration Act (1885), which imposed a head tax, the Opium Act (1908) which was passed following anti-Asian riots in 1907 that involved destruction in Vancouver’s Chinatown as well as Japanese neighbourhoods, and the Chinese Immigration Act (1923) which banned new Chinese immigration all together. 

It’s in this historical context that 2016 amendments the Property Transfer Act, which imposed the Foreign Buyers’ Tax, were challenged in court. 

Jing Li, a citizen of the People’s Republic of China, moved to Canada in 2013 to study public administration at the University of Saskatchewan. In 2016 Ms. Li purchased a property in Langley British Columbia. After paying a deposit, the Foreign Buyers’ Tax was implemented and she was required to pay an additional $83,850 in tax, on a $559,000 property, because she was not a citizen, or permanent resident, of Canada.

The court challenge brought by Ms. Li argued that the Foreign Buyers’ Tax was outside of the jurisdiction of the Province of British Columbia, because “Naturalization and Aliens” are matters of federal jurisdiction in Canada. She also argued that the tax was unconstitutional because it breached section 15 of the Charter which says: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 

A previous British Columbia court case concluded that section 15 of the Charter prohibits discrimination on the basis of citizenship, because it’s a characteristic analogous to the others which are listed. 

In rejecting her claim, the trial judge concluded that the Foreign Buyers’ Tax discriminated based on immigration status, and not citizenship, because permanent residence are exempt from the tax. 

The trial judge went on to conclude “While the majority of transferees after the Tax was enacted and until November of 2017 have been citizens of Asian countries, particularly China, that does not mean that the Tax adversely affected Asian buyers in particular.”

In reaching his decision, the trial judge refused to admit expert evidence from Professor Henry Yu, an Associate Professor at the Department of History at the University of British Columbia. Professor Yu’s report consisted of a historical review of discriminatory laws against Chinese in British Columbia and elsewhere. 

In rejecting Professor Yu’s report, the trial judge said this “In my view expert evidence is not required to establish that such discriminatory laws were enacted in British Columbia many years ago. The history of such laws would be readily available to counsel and the courts and could have been a matter that was dealt with in argument.”

The second case discussed in the show is a decision by Chief Justice Hinkson which struck down recent changes, made unilaterally by the British Columbia government, that prevented a plaintiff from presenting more than three expert witnesses as part of a motor vehicle accident claim case. 

The purpose of the rule change was to save ICBC money. 

While the provincial government does have authority to modify civil procedure rules, they are not permitted to do so in a way which would interfere with the core jurisdiction of a superior court. 

The reason for this restriction on government authority is to protect the independence of the judiciary. This independence would be of little practical consequence if the government was able to modify procedures or move decision making authority to other, less independent, bodies.