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Charity Gaming Licence Fee

On March 5, 1998, the Nanaimo Immigrant Society ("NISS") and the Nanaimo Community Bingo Association ("NCBA") commenced a proposed class action against the Province of British Columbia seeking the recovery of "license fees" imposed by the Province on charitable gaming between 1997 and 1998. The representative plaintiffs alleged that the "license fees" are unconstitutional and outside the power of the Province. On October 6, 1999, the Sooke Marine Rescue Society ("SMRS") was added as a plaintiff. The NCBA was subsequently dropped as a plaintiff.

Branch MacMaster is working in conjunction with constitutional law experts Arvay Finlay relation to this case.

In a decision of Mr. Justice Hutchinson dated December 8, 1999, the Supreme Court of British Columbia ruled that this lawsuit could proceed as a class action and that the NISS and SMRS could act as representative plaintiffs.

In a decision dated February 6, 2001, the Court of Appeal rejected the Province's appeal of the decision to certify the class.

The class members include:

  1. Charitable and religious organizations who managed and conducted charitable casino events in British Columbia between 1977 and June 1, 1998 in respect of which a licence fee calculated as a percentage of gross proceeds or receipts was paid, except casino events held after May 1, 1987 pursuant to a Social Occasional licence; and
  2. Charitable and religious organizations who managed and conducted charitable bingo events between 1977 and July 1, 1998 in respect of which a licence fee calculated as a percentage of total value of prizes, gross receipts or proceeds was paid.

The claim against the Province is for the recovery of all licence fees paid to the Province by all class members between 1977 and July 1, 1998.

The class action has two stages. The first stage is the resolution of the common issues. The common issues which will be resolved are as follows:

  1. Are the "license fees" imposed by the Province on charitable gaming lawful or ultra vires the Lottery Act.
  2. Are the "license fees" in substance a tax, and if so: (a) Indirect and outside the Province's power under s. 92(2) and (9) of the Constitution Act; (b) Direct and yet contrary to s. 207(1)(b) of the Criminal Code of Canada and, or otherwise, ultra vires or inoperative of the Province.
  3. Do the amendments to the Lottery Act of 1998 and 1999 or the common law deprive either class, or some of the members of either class, from recovering "license fees" paid to the Province.

If these common issues are resolved in favour of the class, at the second stage the Court will determine what further steps class members need to take in order to recover any amounts payable and whether those steps should be taken by the class or individually.

For more information about the status of this case, or a copy of the formal notice, please contact Mark Underhill at Arvay Finlay at (250) 388-6868 or by email to munderhill@arvayfinlay.com.

Other decisions by the court in respect of this case: