Carson James Withrow Appellant And: British Columbia (Superintendent of Motor Vehicles) v. The Attorney General of British Columbia, 2013 BCSC 451

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Withrow v. British Columbia (Superintendent of Motor Vehicles), 2013 BCSC 451 Date: 20130318 Docket: 12-4025 Registry: Victoria Between: Carson James Withrow Appellant And: British Columbia (Superintendent of Motor Vehicles) and The Attorney General of British Columbia Respondents On appeal from a decision of the Superintendent of Motor Vehicles made on October 24, 2012, under s. 93(1)(a)(ii) of the Motor Vehicle Act , R.S.B.C 1996, c. 318. Before: The Honourable Mr. Justice Macaulay Reasons for Judgment Counsel for the Appellant: R.

Claus Counsel for the Respondents: J.G. Penner Place and Date of Hearing: Victoria, B.C. March 8, 2013 Place and Date of Judgment: Victoria, B.C. March 18, 2013 [ 1 ] Pursuant to s. 94(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (“ MVA ”), Withrow appeals the decision of the Superintendent of Motor Vehicles (“Superintendent”) prohibiting Withrow from driving a motor vehicle for a term of four months. In

summary, the grounds of appeal are that the decision was unreasonable and that the Superintendent’s delegate violated the principles of natural justice and fairness in failing to provide adequate reasons. [ 2 ] The Superintendent opposes the appeal, first, on the basis that Withrow failed to take advantage of an internal administrative review of the driving prohibition and second, in any event, on its merits. [ 3 ] The Superintendent has a wide statutory power to impose a driving prohibition.

Section 93 of the MVA reads: 93.

(1) Even though a person is or may be subject to another prohibition from driving, if the superintendent considers it to be in the public interest, the superintendent may, with or without a hearing, prohibit the person from driving a motor vehicle (

a) if the person (

i) has failed to comply with this Act or the regulations, or (ii) has a driving record that in the opinion of the superintendent is unsatisfactory, (

b) if the person's privilege of driving a motor vehicle has been suspended or cancelled in any jurisdiction in Canada or in the United States of America, or (

c) for any cause not referred to in paragraph (

a) or (

b) that relates to the use or operation of motor vehicles.

(2) In forming an opinion as to whether a person's driving record is unsatisfactory the superintendent may consider all or any part of the person's driving record, including but not limited to any part of the driving record previously taken into account by a court or by the superintendent in making any order prohibiting the person from driving a motor vehicle.

(3) If under this

section the superintendent prohibits a person from driving a motor vehicle on the grounds of an unsatisfactory driving record, a prohibition so made must not be held invalid on the grounds that the superintendent did not examine or

consider other information or evidence. The Superintendent imposed the prohibition without holding a hearing in this case. [4] Section 94(1) governs the appeal: A person who is prohibited from driving a motor vehicle under

section 93 may, within 30 days after the person receives notice ofprohibition from driving a motor vehicle, appeal the prohibition to the Supreme Court. Appeals under this

section occur relatively infrequently. I will later set out the procedural and substantive law that governs. [5] At all material times, Withrow was a new, or “N”, driver. He was ticketed for speeding on two occasions. [6] On July 21, 2012, Withrow received the first speeding ticket. He did not dispute the ticket and accordingly, on August 21,2012, a conviction was registered and a penalty of three points imposed. Withrow received a second speeding ticket on July 31, 2012,which he also did not dispute.

Accordingly, a further conviction was registered on August 31, 2012, and another three-point penaltyimposed. [7] On August 27, 2012, before the registration of a conviction on the second offence, the Superintendent sent a letter to Withrowto inform him that, “as a result of [his] driving offence(s), [he had] been placed on probation …” and that “[a]ny further driving offencesduring this probationary period may result in [his] being prohibited from driving.” At that date, Withrow had only been convicted of thefirst ticket offence, as the dispute period had not yet expired on the second citation. [8] On September 10, 2012, the Superintendent sent a Notice to Withrow advising of his intention to prohibit Withrow fromdriving for four months.

The Notice informed Withrow that he had the option of seeking a review of the decision to prohibit by making awritten submission. Withrow and an adult acquaintance, now counsel for Withrow on the appeal, wrote letters to the Superintendentopposing the proposed prohibition. The letters addressed: 1. Withrow’s need to drive as a condition of his employment; 2. Withrow’s lack of any further offences after being placed on probation, and careful driving habits otherwise; and 3. Positive changes to his driving attitude.

On October 24, 2012, the Superintendent issued the Notice of Prohibition. [9] The Notice of Prohibition, after referring to the delegated authority of the writer, states: Your driving record and letter, in response to the Notice of Intent, have been considered. Based on that consideration, I hereby notify youthat you are prohibited from driving a motor vehicle under Section 93(1)(a)(ii) of the Motor Vehicle Act for a term of 4 months. This action is necessary because of your poor driving record.

The Notice of Prohibition is the only available record setting out the decision, and the basis for it, from which Withrow appeals under s.94(1). [10] At the time of the prohibition, Withrow still had only two speeding convictions. The Notice refers to a letter but makes noreference at all to its content. In fact, Withrow submitted two letters, as described above. [11] I do not accept that any deficiency in the reasons provides a stand-alone right of appeal.

In reaching my conclusion in thisregard, I take into account that this is a statutory appeal rather than a judicial review of a statutory decision under the Judicial ReviewProcedure Act, R.S.B.C. 1996, c. 241 (“JRPA”). [12] Nonetheless, there are clear parallels. The appeal is from an administrative statutory decision made without a hearing. The lawrelating to sufficiency of reasons for the purpose of judicial review is instructive and, in my view, governs.

This is because there is amelding of the approaches to reviewing an administrative statutory decision, whether by appeal or judicial review. [13] The Supreme Court of Canada addressed the melding in Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003SCC 19 , [2003] 1 S.C.R. 226. There, the court found that the reviewing judge, on hearing a statutory appeal, erred in failing toreview the decision with an appropriate degree of curial deference. In doing so, the judge appeared to assume, erroneously, that, as anappellate review, the review differed from a judicial review (para. 17).

Instead, the court is required, on a statutory appeal from anadministrative decision, to apply the same standard of review as on a “judicial review” (para. 21). [14] Counsel did not directly address the standard of review but I am satisfied that, post Dunsmuir v. New Brunswick, 2008 SCC 9,the standard for appellate review under s. 94(1) is now one of reasonableness (Colbon v. British Columbia (Superintendent of MotorVehicles), 2008 BCSC 1183). Previous authority in this province holding that the standard was the more deferential patentunreasonableness (see, for examples, Lilford v.

British Columbia (Superintendent of Motor Vehicles), 2002 BCSC 1868, at para. 4, andMorrow v. British Columbia, [1999] B.C.J. No. 893 (S.C.), at para. 5.) no longer apply. [15] Further, based on decisions of the Court of Appeal that the reasonableness standard applies on judicial review of 24 hour drivingprohibitions, the same standard applies to appellate review of administrative driving suspensions. [16] In Newfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board), 2011 SCC 62 ,[2011] 3 S.C.R. 708, the court addressed the role and adequacy of reasons in the context of administrative procedural fairness andconcluded that the purpose of reasons, when required, is to demonstrate “justification, transparency and intelligibility” (para. 1). Under

the reasonableness standard of review, deference for the decision maker requires respectful attention to the reasons offered or which could be offered in support of the decision [emphasis added] (para. 12). [ 17 ] This contextual approach is necessary because a reviewing court does not “undertake two discrete analyses – one for the reasons and a separate one for the result” (para. 14).

Rather, on administrative law review, and I would add, in statutory appeals under the MVA , the question is whether the decision is reasonable in light of the outcome and the reasons, after showing respect to the decision making process with respect to both the facts and the law (para. 15). [ 18 ] The Court of Appeal applied the above to the judicial review of a 24 hour driving prohibition in Nagra v. British Columbia (Superintendent of Motor Vehicles), 2012 BCCA 387 .

As I have already indicated, the qualitative standard of review in such cases is reasonableness. [ 19 ] Taking into account the range of outcomes, including sending an offence letter, additional probation, or prohibition of one to six months, that were available to the Superintendent in this case, the contents of the two letters that Withrow forwarded for consideration, and finally, the reasons for the decision, I am not persuaded that the decision to prohibit Withrow from driving for four months was unreasonable. [ 20 ] It is unnecessary for me to address the Superintendent’s submission that Withrow should have pursued other internal administrative remedies.

Accordingly, the appeal is dismissed with costs. “M.D. Macaulay, J.” The Honourable Mr. Justice Macaulay