Fitter International Inc. v British Columbia, 2021 ABCA 54

The respondent (“Fitter”), which was an Alberta corporation that had been assessed penalties under the Provincial Sales Tax Act (B.C.) (the “PST Act”) for failure to collect and remit sales tax on its sales made to B.C. residents, brought an originating application in the Alberta Court of Queen’s Bench (“ACQB”) naming The Queen in Right of B.C. as respondent and seeking declarations that those sections of the PST Act that purported to apply to persons and property outside of BC were ultra vires the powers ascribed to the province under s 92 of the Constitution Act, 1867. BC’s application to strike was dismissed by a Master in chambers on the basis that Crown immunity does not apply when the issue raised is the constitutionality of provincial legislation that purports to have extra-territorial application in another province.

In finding that the ACQB had the jurisdiction to hear the application, the Court stated (at para. 22):

Fitter can bring an action against the Crown in right of BC pursuant to the BC CPA [Crown Proceeding Act], but it must do so in the courts of BC in accordance with the requirements of that statute. BC has not waived its Crown immunity so as to permit it to be sued in the courts of Alberta.

The Alberta Court of Appeal found that the Alberta Court of Queen’s Bench lacked the jurisdiction to hear an application by an Alberta company (“Fitter”) for a declaration that provisions of the Provincial Sales Tax Act (B.C.), that purported to impose liability on non-B.C. vendors for failure to charge and collect B.C. sales tax on sales to B.C. residents, were unconstitutional. The Court stated (at para. 22):

Fitter can bring an action against the Crown in right of BC pursuant to the BC CPA [Crown Proceeding Act], but it must do so in the courts of BC in accordance with the requirements of that statute. BC has not waived its Crown immunity so as to permit it to be sued in the courts of Alberta.