Wadalowski v. South Coast BCTA Date:, 2014 BCPC 52

Citation: Wadalowski v. South Coast BCTA Date: 20140206 2014 BCPC 0052 File No: 1345833 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF A REVIEW UNDER S. 257 OF THE SOUTH COAST BRITISH COLUMBIA TRANSPORTATION AUTHORITY ACT BETWEEN LYNSEY JANE WADOLOWSKI APPLICANT AND SOUTH COAST BRITISH COLUMBIA TRANSPORTATION AUTHORITY RESPONDENT REASONS FOR JUDGMENT OF JUDICIAL JUSTICE B. L. EDWARDS Appearing in Person: Lynsey Wadolowski Counsel for South Coast British Columbia Transportation Authority A.R. Westmacott, Q.C. Place of Hearing: Vancouver , B.C.

Date of Hearing: January 24, 2014 Date of Judgment: February 6 th , 2014 A Corrigendum was released by the Court on April 8, 2014. The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] This case is the first review by this Court under s. 257 of the South Coast British Columbia Transportation Authority Act and the Regulations thereto of a referral by a disputant of an Arbitrator’s decision.

Three other reviews were conducted by this Court, pursuant to the same legislation and on the same day as this case and the decisions in those cases will be released as companion cases to this one . BACKGROUND: [ 2 ] On November 27, 2012, a Fare Officer the South Coast British Columbia Transportation Authority (“Translink”) issued Lynsey Wadolowski, a 22 year old Cosmetologist, Fare Infraction Notice F002175 for failure to produce proof of payment of fare under s. 244(2) of the South Coast British Columbia Transportation Authority Act (the “Act”).

The amount of the fine noted on the Fare Infraction Notice for this infraction is $173 and the infraction was noted as occurring at or on the Sky Train and at or near Braid Street Station, Burnaby, B.C. [ 3 ] On December 3, 3012, Ms. Wadolowski emailed a “Fare Infraction Dispute Form” to “TransLink” in which she stated that she had purchased monthly bus passes since April 2012 and that she “always scratched “1” off assuming “1” meant “1 zone”. She added that she travels “from Lougheed to Gilmore which is 1 zone”.

She noted that she had been asked for proof of fare previously and that no one had questioned the fact that she had scratched the “1” on the monthly card. [ 4 ] The same day, i.e. December 3, 2012, Terry Robins, Supervisor, Fare Infraction and Dispute Services sent Ms. Wadolowski a “Fare Infraction Notice of Dispute Decision”. This Decision was not on TransLink letterhead, did not indicate that Ms.

Robins was a TransLink or South Coast British Columbia Transportation Authority employee and did not refer to any statutory authority for the “Decision”. [ 5 ] The Decision letter of December 3, 2012 indicated that an unidentified “Dispute Screening Representative” had reviewed the fare infraction ticket issued to Ms. Wadolowski and that the “outcome” of the review was that “this fare infraction ticket has been confirmed and you are responsible for paying the ticketed amount”. [ 6 ] The reason given to Ms. Wadolowski for the Decision was: “On the front of the Fare Card it states ‘not valid unless zone scratched’.

As outlined in the South Coast British Columbia Transportation Authority Act: all persons boarding a transit vehicle or entering a fare paid zone must obtain valid Proof of Payment before boarding a transit vehicle or entering a Fare Paid Zone; possess valid Proof of Payment obtained to any Transit Employee upon request.” [ 7 ] The Decision letter went on to state “Failure to do so may result in fines being levied pursuant to the BC South Coast British Columbia Transportation Authority Act.” [ 8 ] No explanation as to what she might be fined for failing to do is provided but the letter then stated that: “If full payment is not received, this debt may be sent to collections or to the Insurance Corporation of British Columbia (ICBC).

A debt at collections may affect your credit rating should it remain unpaid. A debt sent to ICBC may prevent you from obtaining or renewing your driver’s licence and/or vehicle insurance. In addition, if not paid in full the debt will increase with time, in accordance with the fare collection bylaw”. [ 9 ] The Decision letter, then, advised of the right to appeal the Decision to an arbitrator appointed by the Minister. [ 10 ] On December 25, 2012, Ms.

Wadolowski emailed a “Fare infraction - Appeal Form” dated December 24, 2012 to TransLink as per the instructions on the TransLink website. [ 11 ] On the Appeal Form, Ms. Wadolowski selected Ground “A” for appeal, i.e. that she did not commit the infraction as alleged and added by way of explanation in the 3 lines provided on the Form to argue her case: “The infraction is the result of an honest mistake. There was no intent to defraud Translink. The dispute decision outcome states “not valid unless zone scratched” and I in fact scratched 1 in error therefore I did have valid proof of payment.

Please appreciate the fact that I am 22 years old, responsible for paying rent & have purchased my own bus passes since April at an extra cost of $81, which in January will increase to $91”.

[ 12 ] On January 24, 2013, a “Fare Infraction Appeal- Arbitrator’s Decision”, a form document was completed. The Arbitrator’s signature is illegible and there is no printed name. The form is completed to indicate that the following material was considered by the Arbitrator: Part “D” “Section 244(1) (

a) Fare Collection Bylaw”; Part “E” - information in the “Fare Infraction- Notice of Appeal” and “Fare Infraction-Notice of Decision”. [ 13 ] The Reasons for the Decision of the Arbitrator consist of two sentences: “While I can sympathize with the disputant’s situation, it remains that she did fail to produce proof of payment when required by the officer. The Arbitrator does not have authority to waive or lower the fine.” [ 14 ] It is not clear when the Arbitrator’s decision was conveyed to Ms.

Wadolowski, but it is clear that after receiving the Arbitrator’s Decision, she completed and signed a “Referral for Review” on February 6, 2013 to refer the Arbitrator’s Decision to the Provincial Court under s. 257 of the Act. [ 15 ] The Referral for Review was filed in the Provincial Court on February 13, 2013 but the Court had no legal mechanism to deal with the review until a regulation to the Act, i.e. the Fare Infraction Review Referral Regulation (the “FIRR”), B.C. Reg. 88/2013 (amended by B.C. Reg. 242/2013) came into effect on September 16, 2013. [ 16 ] On November 6, 2013 the Referral for Review of Ms.

Wadolowski and the Response to Referral of the Authority were considered, without a hearing, by Judicial Justice Edwards pursuant to s. 7 of the FIRR. Judicial Justice Edwards determined that she was not able, without further evidence, to decide whether there existed grounds to cancel the ticket. [ 17 ] A hearing was set for January 24, 2014 for the review before Judicial Justice Edwards. FURTHER FACTS THAT EMERGED FROM THE HEARING: [ 18 ] On November 27, 2012, Ms. Wadolowski boarded the Sky Train at Gilmore Station and was headed to Brentwood Station; Cst.

Meldrun a police officer employed by the South Coast British Columbia Transportation Authority also boarded the Sky Train at Gilmore and rode the train, eastbound, to Brentwood Station. [ 19 ] Cst. Meldrun was checking passengers on the train to determine if they had proof of payment of the fare. [ 20 ] Cst. Meldrun approached Ms. Wadolowski and asked her for proof of payment and she provided him with a monthly fare card for November 2012; the fare card had the number “1” scratched off and the numbers “2” and “3” remained unscratched. Ms.

Wadolowski provided the Court with the fare card at issue which is entitled “Nov 2012 $81 One Zone Fare Card”. [ 21 ] Ms. Wadolowski regularly travelled this route and always scratched the “1” to indicate that she was travelling in a single zone. She produced monthly one zone fare cards dating back to April 2012 to the Court, each of which had the “1” scratched off. [ 22 ] Ms.

Wadolowski testified that she had been asked by a transit employee to provide proof of payment before and that she had always produced her monthly fare card, marked by scratching out the number “1” and it had never been suggested to her that she was not marking the card correctly. [ 23 ] Cst. Meldrun testified that on weekends, holidays and weekdays after 6:30 p.m. There is a single fare to travel on the Sky Train no matter what zone is being travelled. On weekdays until 6:30 p.m., however, the fare differs depending on the number of zones travelled. [ 24 ] Cst.

Meldrun understood that the monthly fare card was valid for only one zone and that the Zones were “1” for Vancouver; “2” for Burnaby (among other municipalities); “3” for Coquitlam (and other municipalities). [ 25 ] Cst. Meldrun further testified that, as Ms. Wadolowski was travelling on a Tuesday and in Zone “2”, Burnaby, the monthly fare card with the number “1” scratched which she provided to him was not valid in his view and so he issued her Fare Infraction F002175 at 18:10 hrs. (6:10 p.m.) on November 27, 2012 for failure to produce proof of payment contrary to s. 244(1)(

b) of the South Coast British Columbia Transportation Authority Act . [ 26 ] Cst. Meldrun had no specific recollection of any conversation between himself and Ms. Wadolowski. [ 27 ] In response to a suggestion by Ms. Wadolowski that she had, in fact, provided him with proof of payment by providing him with her November 2012 monthly fare card, Cst.

Meldrun testified that it was not “proof of payment” that was valid for the situation. [ 28 ] Counsel for the South Coast British Columbia Transportation Authority (the “Authority” or “TransLink”) filed a single written submission and a Book of Authorities which she asked the Court to consider for each referral that proceeded to a hearing on the same day as this hearing regarding Ms. Wadolowski, together with oral submissions by counsel and the Disputant and any evidence called for each of the reviews.

The Court agreed to that proposal. [ 29 ] The submissions of learned counsel for TransLink have been extremely helpful to this Court in wading through the myriad of pieces of legislation that have been cobbled together by government, on a piece meal basis, in order to collect fares from the public for riding the transit system in the Lower Mainland of B.C. (The Court wishes to note, here, that disputants appeared on only four of the referrals for review that were set for hearing on January 24, 2014; for those referrals where the Disputants did not appear for the hearing, the Court confirmed the tickets as required by s.11(

c) of the FIRR Regulation.

THE LEGISLATIVE SCHEME APPLICABLE TO FARE INFRACTION REVIEWS: [ 30 ]

Part 12 of the Act sets out the procedure for “Fare Recovery” by Translink. [ 31 ]

Section 244 sets out the requirement for persons entering a fare paid zone or boarding a transit vehicle that is not in a “fare paid zone” to pay the fare required by the tariff, obtain proof of payment that the fare was paid or the requirement for payment was satisfied in a manner authorized by the fare collection bylaws, and produce that proof of payment at the request of a transit employee. 244(1) a person entering a fare paid zone or boarding a transit vehicle that is not in a fare paid zone must (

a) Pay the fare required by tariff or satisfy the requirement for that payment in any other manner authorized by the fare collection bylaw, and (

b) Obtain the proof of payment required by the fare collection bylaw, if any, that (

i) The fare was paid, or (ii) The requirement for its payment was satisfied in a manner authorized by the fare collection bylaw.

(2) A person must, while in a fare paid zone or a transit vehicle that is not in a fare paid zone, retain the proof of payment, if any, required under subsection (1) (

b) and produce it for inspection at the request of a transit employee. [ 32 ] The Fare Collection Regulation , B.C. Reg. 190/2012 came into force on September 4, 2012 and was the first fare collection bylaw passed. It provided detail, in

section 10, as to what was needed in order to comply with section 244(1) (

b) of the Act. In other words, the bylaw set out what was needed to constitute “proof of payment” of a fare. 10. To comply with section 244(1)(

b) of the Act in relation to a fare, a person must (

a) Obtain and retain any receipt issued by the authority or a related party for the payment of that fare, (

b) If a pass that is valid for the application to the fare is used, retain the pass, or (

c) If under the tariff another form of payment is authorized and that other form of payment is issued, retain that form of payment and obtain and retain (

i) Any receipt issued by the authority or a related party, and (ii) Any record in the person’s power or control, whether in electronic from or otherwise, that confirms that the form of payment was used in payment of the fare. [ 33 ]

Section 243 of the Act defines “fare”, “fare paid zone” and “tariff” as follows: 243 In this part: “Fare” means a user fee established under section 29(2) “Fare officer” means a transit employee who is employed or retained as a fare officer by, or with the authorization of, the authority, and includes a member of the South Coast British Columbia Transportation Authority Police Service “Fare paid zone” means any transit facility or service to which access is restricted by sign to those persons who have (

a) Paid the fare required by the tariff for that access, or (

b) Otherwise satisfied the requirement for that payment in any other manner authorized by the fare collection bylaw; “Tariff” means the applicable fare structure from time to time established by the authority [ 34 ] South Coast British Columbia Transportation Authority Bylaw Number 75-2011 , effective January 1, 2012 (the "Tariff Bylaw") sets out the “tariff” or fare for a variety of different modes of transit at various times.

Like the Act itself and the other applicable bylaws, it is not reading for the faint of heart and is certainly not easily understandable by the average member of the public who might ride the transit system. It must be especially bewildering for those whose first language is not English. Ms. Wadolowski is such a person.

[ 35 ] First, the reader must read the definition

section to try to determine which of the Appendices is applicable. There is a definition provided for “Sky Train” which includes the Expo Line, Millennium Line and Canada Line.

However, at page 4 of the Tariff Bylaw there is a definition for “Conventional Transit” which is defined as “Transit service provided by or on behalf of Translink in the Transportation Service Region, except WCE Service, Handy DART service and Canada Line service between Bridgeport and Templeton Stations” [ 36 ] The rider is expected to know that this definition means that a bus or Sky Train that is not operating between the Bridgeport and Templeton stations is considered to be “Conventional Transit”. [ 37 ] If the reader has safely navigated the Tariff Bylaw to this point, then she must locate “Appendix “2” - Fares and Proof of Payment/ Table “1” Cash Fares and Proof of Payment” which provides, at p.2 for Proof Of Payment or Cash Fare.

One form of acceptable Proof of Payment is listed under various headings as: “Fare Card- Adult/Fare Card (calendar month) Fare Cost - Regular Hours - 1 Zone - $81 Conventional Transit (3 Zones) - Valid for unlimited travel through the number of Zones paid for… (Emphasis mine) [ 38 ] The reader is somehow to know that she must also read “Appendix “I” Fare Zones” (which confusingly has the header “Appendix 1”) and under the sub-heading “Conventional Transit” note that there are a series of “Zones”.

These zones have descriptors that include the names of districts, cities and locations described only by vague terminology which may be understandable to a bus driver or Translink administrator but likely few others.

One such Zone is Zone 2 which is described as: “Zone 2” District of West Vancouver District of North Vancouver City of North Vancouver City of Burnaby Bus Stops located on Barnet Highway at the Petro-Canada refinery City of New Westminster Common Fare Zone on North Road for bus stops located between Cottonwood Avenue and Highway #1 Annacis Island (common zone for trips as described below “Suburban Zone Boundary (Zones 2 and 3) City of Richmond Village of Lions Bay Bowen Island (My emphasis) [ 39 ] Counsel for Translink asked the Court to accept, as an exhibit, the monthly fare card that Ms.

Wadolowski used for proof of payment on the day in question. As noted above, it was a “November 2012 $81 One Zone Fare Card” as provided for in the Tariff Bylaw. On the front of the card, in large font, is an advertisement for a Community College adjacent to which are the numbers “1, 2, 3” set out vertically. In smaller font are the instructions for use: “Subject to conditions of use on reverse, Read over prior to scratching.

Scratch only one panel” [ 40 ] The Conditions on the reverse of the Card are in very small font and include near the bottom of the card, a list of the zones by number and a list of the cities in that zone. Burnaby is noted in Zone 2. [ 41 ]

Section 247 of the Act provides that any person who fails to meet the requirements of

section 244 regarding payment and producing proof of payment, commits an infraction. [ 42 ]

Section 248 authorizes a fare officer to issue a ticket for an infraction and to request personal information about the person’s identity and address in order to issue the ticket. [ 43 ] Once issued, the ticket is payable immediately unless it is successfully challenged and cancelled by Translink, an Arbitrator or the Court.

[ 44 ] This system of imposing fines on an assumption of guilt might be cost efficient and expedient for government, but it places a heavy onus on the users of transit many of whom might be considered the most vulnerable members of the public, that is youth, students, the disabled, new immigrants and the elderly. [ 45 ] The Act then sets out three levels of process that a person may pursue in order to challenge a ticket issued under s. 244: • First, dispute liability to Translink (the Authority) under s. 251; • Second, if dissatisfied with TransLink’s decision, appeal the outcome to an arbitrator under s. 251; • Third, if dissatisfied with the Arbitrator’s decision, refer the matter to Provincial Court for a review of the Arbitrator’s decision under s. 257 [ 46 ] Further, the Court may decide that a hearing is required to determine the review which means that the person who received the ticket must present their case for challenging the ticket a fourth time. [ 47 ] The Act sets out the grounds for disputing a ticket as follows: 251(1) a person to whom a ticket has been issued under

section 248 may, within the period and in the manner provided in the fare collection bylaw, dispute his or her liability under the ticket on one or more of the following grounds: (

a) The person did not commit the infraction as alleged (

b) The ticket does not comply with section 249(1) (

c) Any other ground for cancellation set out in the fare collection by law [ 48 ] Subsection 251(2) provides that TransLink may cancel the ticket if it is satisfied that any of the three grounds set out in 251(1) exist. Otherwise, the ticket is to be confirmed. [ 49 ] A person who is dissatisfied with the outcome of the dispute process with TransLink may appeal that decision, under

section 253 of the Act on the same three grounds, i.e. that (

a) the person did not commit the infraction as alleged (

b) the ticket does not comply with section 249(1) (

c) any other ground for cancellation set out in the fare collection by law [ 50 ] Again, the arbitrator when hearing the appeal is limited by the statute to what he or she may do after hearing the appeal; section 256(1) provides that she or he must either

a) Confirm the ticket, or

b) If satisfied that any of the grounds in

section 253(

a) to (

c) applies, cancel the ticket. [ 51 ] In other words, the Arbitrator has the same powers as Translink; nothing more and nothing less. The Arbitrator cannot reduce the amount of the fine or cancel the ticket for any other reason than the 3 set out above. [ 52 ] If a person is dissatisfied with the Arbitrator’s decision, she or he may refer the matter to Provincial Court for a review of the Arbitrator’s decision. [ 53 ] The Fare Infraction Review Referral Regulation ( FIRR Reg.) which came into effect on September 16, 2013 limits the discretion of the Provincial Court when reviewing a decision of an arbitrator.

Section 11(

a) provides that the Court may conduct the hearing when both parties are present. [ 54 ]

Section 13 of the FIRR Reg. provides as follows: 13 At a hearing referred to in

section 11, the judicial officer conducting the hearing may, by order (

a) confirm the ticket, or (

b) if the disputant satisfies the judicial officer, on a balance of probabilities, that one or more of the grounds referred to in

section 253(

a) to (

c) of the Act apply, cancel the ticket [ 55 ] The wording of s.13 of the FIRR Reg. differs from the wording of s.250 of the Act which provides that a ticket creates a debt owed to Translink unless

a) the person disputes liability in accordance with Division 3 (to Translink) and the ticket is cancelled,

b) the person appeals liability in accordance with Division 4 (to an arbitrator) and the ticket is cancelled in that process, or

c) the person applies to court under

section 257 and is relieved of liability by the Court (comments in brackets are mine) NATURE OF A REVIEW UNDER

SECTION 257: [ 56 ] The nature of a review is a question of statutory

interpretation. The statutory provisions must, in turn, be determined in the context of the statute and giving the provisions their grammatical and ordinary sense, bearing in mind the intentions of the Legislature and reading the terms in harmony with the scheme of the Act: Bell Express Vu Limited Partnership v. Rex et al. 2002, SCC 42 . [ 57 ]

Section 257 of the Act which provides for a review by the Provincial Court of an arbitrator’s decision, must be considered in the context of the Act as a whole which has as its purpose, creating an Authority responsible for overseeing the administration and funding of the transportation network in the Lower Mainland of British Columbia. [ 58 ]

Part 12 of the Act has several purposes: first, it sets out a process for collecting certain fares from passengers for use of the transit system; second, it creates infractions for the failure to pay the correct fare or for failure to provide proof of payment, and third, it provides a three-tiered process to be followed by persons who wish to challenge their liability for the amount of a ticket issued because of an infraction the Act. [ 59 ] The FIRR Regulation adds further structure to the process for challenging a ticket. [ 60 ] TransLink submits that the role of the Court is not that of a “judicial review” in the sense that the term is generally used in statutes, that is a review by the Supreme Court of the province with all of the powers of a superior court with inherent jurisdiction and under the Judicial Review Procedure Act , but, instead, is a “statutory review” by a Provincial Court with only those powers set out in the South Coast British Columbia Transportation Authority Act and its regulations. [ 61 ] The Provincial Court of British Columbia is a statutory court that is to say that it has only the powers granted to it under a particular statute or under its governing statute, the Provincial Court Act , R.S.B.C. 1996, c 379. [ 62 ] I accept that the Court has only the power to review the decision of the Arbitrator and not to substitute its decision for that of the Arbitrator, the question remains what it means to “review” the decision of an arbitrator. [ 63 ] Counsel for the Authority (“TransLink”) put to the Court that the “review” contemplated by the Legislature is not a de novo hearing (that is a new consideration of the validity of the ticket) but, rather, is only a determination of whether the decision of the arbitrator is a lawful one. [ 64 ] Put another way, the Authority says that the Court may only consider whether the Arbitrator made a reviewable error of fact, law or procedure based on the limited grounds for appeal set out in the Act. [ 65 ]

Section 7 of the FIRR Regulation provides that the judicial officer for the Court who is considering the referral of the Arbitrator’s decision may determine the issue at a review without conducting a hearing but if she does so, then she may only confirm the ticket. There is no provision in the Act for the Court to cancel a ticket without conducting a hearing even if the Court is satisfied with the evidence before the Court. [ 66 ]

Section 7 provides that a judicial officer for the Court may determine that she requires additional evidence to decide the matter and, then, order a hearing but the Act is silent with respect to the authority of the Court where a judicial officer does not “require additional evidence” to determine the matter and has found a reviewable error. [ 67 ] The legislative gap that is created by the unusual wording of

section 7 of the FIRR Regulation means that even where the Court finds, based on the record before the Court, that the Arbitrator’s decision does not withstand scrutiny and that there has been a reviewable error, the Court cannot cancel the ticket without ordering a hearing first to hear additional evidence. The Court has to wonder if this is a good use of judicial resources, court time and whether, indeed, it is fair to the disputant. [ 68 ] If the Court determines that a hearing is necessary, then

section 12 of the FIRR Regulations provides that many of the Rules applicable to Small Claims matters are applicable to hearings regarding Fare Infractions under the Acts including the Rule requiring that evidence be admitted only through sworn testimony and providing that references to a “trial” under the Small Claims Rules equates to a “hearing” under the Act. [ 69 ] I find that the review contemplated under

section 257 of the Act is neither a pure judicial review of an arbitrator’s decision for error of fact, law or procedure nor a trial de novo in the sense of being a new hearing of the merits of the ticket for the alleged infraction.

Rather, it is a legal hybrid of sorts in that the Act and the Regulations have created a legal mechanism by which a disputant may refer the appellate decision of an Arbitrator to a Provincial Court to consider whether the Arbitrator erred in reaching the decision. [ 70 ] In considering the referral the Court will have recourse to the written record that was before the Arbitrator but the Court may also decide that it wishes to hear “additional” sworn evidence at an oral hearing.

In this sense the hearing is a de novo hearing in that the evidence has not been “heard” before and the Court is not purely “reviewing” what already occurred. [ 71 ] This is not to say that the Court may consider any evidence at the hearing; the Court may only consider evidence admitted at the hearing that is relevant to the issue before the Court and that existed at the time of the appeal before the Arbitrator, it cannot be evidence

that post-dated the appeal and that the Arbitrator could not have considered had it been introduced by either the disputant or TransLink. STANDARD OF REVIEW [72] The law is settled that there are only two common law standards of review: correctness and reasonableness. See e.g. Dunsmuirv. New Brunswick, 2008 SCC 9; Smith v.

Alliance Pipeline Ltd., 2011 SCC 7; Re Alberta Teachers’ Association, 2011 SCC 61. [73] The standard of “correctness” applies to constitutional issues; questions of “general law” that are both of import to the legalsystem as a whole and outside of the adjudicator’s specialized area of expertise; the drawing of jurisdictional lines between twospecialized tribunals and true questions of jurisdiction or vires: Smith, supra at para 26. [74] The reasonableness standard is to be applied to issues involving the

interpretation of a tribunal’s enabling statute or statutesclosely connected to its function; issues of fact, discretion or police, or issues involving inextricably intertwined issues of law and fact:Smith, supra at para 26. [75] Reviewing courts are to give deference to the decisions of tribunals and statutory decision-makers when they are decidingmatters within their own expertise or when they are interpreting their own statute: Alberta Teachers’ Association, supra at para. 34 orwhen deciding questions of mixed fact and law: Dunsmuir v.

New Brunswick, supra. [76] I find that the decision of an arbitrator under the South Coast British Columbia Transportation Authority Act is a question ofmixed fact and law and involves the

interpretation of the “home” statute of both the Arbitrator and TransLink and must, therefore, beaccorded sufficient deference by this Court. [77] If, therefore, the Arbitrator’s decision “falls within a range of possible acceptable outcomes that are defensible in respect of thefacts and the law” as established by the record before me, and the evidence admitted at the hearing, then the decision must be consideredto be a “reasonable” one”: Dunsmuir, supra at para. 47. APPLICATION OF THE LAW TO THE FACTS: [78] The situation leading up to the Fare Infraction Ticket being issued to Ms.

Wadolowski came to light over the course of thehearing before me, it is information that was not available to the Arbitrator but is properly considered by me under the Fare InfractionReview Referral Regulation. [79] The evidence before me was that on November 27, 2012, a Tuesday, at 6:10 p.m., Ms. Wadolowski, a 22 year old woman wastravelling the TransLink system by Sky Train between two locations in Burnaby.

She was, in legal terms as defined in the Act and itsRegulations, including the Tariff Bylaw, an “Adult” required to pay the “Adult Fare” applicable to travelling in a single “Zone” during“Regular Hours”. [80] When stopped by a transit employee she was asked to provide “proof of payment” for this travel, which the Tariff provides,includes a “Fare Card- Adult (calendar month”. She produced a valid “November 2012, $81 One Zone Fare Card”. The Fare Card was avalid “proof of payment” for travelling in one zone. [81] Cst.

Meldrun, a TransLink employee as defined in the legislation, declined to accept the monthly fare card as a valid “proof ofpayment”, asked her to step off the Sky Train and issued her Fare Infraction Ticket F002175 for “failure to produce” under s. 244(2) ofthe Act with a ticketed amount of $173.

DISCUSSION: [82] The sole question before this Court is the reasonableness of the Arbitrator’s decision to confirm the ticket after considering Ms.Wadolowski‘s appeal of TransLink’s confirmation of the ticket. [83] While I accept that it is not for this Court to substitute its decision for that of the Arbitrator, the reasons given for a decisionmust be adequate to allow a reviewing Court to determine whether they are reasonable in the circumstances. [84] What will constitute adequate reasons for decision by an administrative tribunal, such as the Arbitrator in this case, has beenconsidered by appellate Courts in Canada on many occasions.

In Vancouver International Airport Authority v. Public Service Alliance ofCanada, 2010 FCA 158 , Stratas, J.A. held that [13] The Supreme Court has identified some of the purposes underlying the giving of reasons in the administrative lawcontext, albeit in only three cases, and only briefly. These purposes include “fairness to the parties” and “justification, transparency and intelligibility”: Baker, supra at paragraph 43; Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1S.C.R. 190 at paragraph 47.

In the area of Ministerial discretion in the extradition context, the Supreme Court in Lake v.Canada, 2008 SCC 23 , [2008] 1 S.C.R. 761 at paragraph 46 has emphasized that the reasons must inform the partieswhy the result was reached.

They must also make it possible for the supervising court to review the decision. [14] Our Court has held that reasons in the administrative law context must provide an assurance to the parties that theirsubmissions have been considered, enable the reviewing court to conduct a meaningful review, and be transparent so thatregulatees can receive guidance: Canadian Association of Broadcasters, supra at paragraph 11; VIA Rail Canada Inc., supra atparagraphs 17 to 22. [15] In the area of criminal law, the Supreme Court has more fully developed the purposes underlying the giving ofreasons.

These should not be imported uncritically into the administrative law area, as the two areas have important differences.Nevertheless, there is some overlap with the purposes and functions identified above. Enough information must be given so parties canassess whether or not to exercise their rights of review, the supervising court can review what has been done, and

the public can scrutinize what has happened: Sheppard , supra at paragraphs 15 and 24; R.E.M., supra . [ 85 ] To say that the Arbitrator’s Reasons for Decision are scant would be generous. In her two line Decision the Arbitrator wrote: “while I can sympathize with the disputant’s situation, it remains that she did fail to produce proof of payment when required by the officer.

The Arbitrator does not have the authority to waive or lower the fine.” [ 86 ] While Administrative Tribunals which are often staffed by non-lawyers are not to be held to the same standard as a judge when delivering reasons for their decision, they must still meet the basic threshold outlined by the Supreme Court of Canada in Sheppard , supra . [ 87 ] The bald assertion that Ms. Wadolowski failed to provide proof of payment provides no rationale for why the decision was reached nor does it even hint at the thinking process that occurred.

It makes it impossible for this Court, in a supervisory role to review the decision. [ 88 ] The reasons clearly fail to provide enough information for Ms. Wadolowski to assess whether she had been treated fairly, or indeed whether any of her submissions were considered. Similarly, the reasons do not afford the opportunity for a member of the public, reading the decision, to understand the rationale for the outcome. [ 89 ] It is trite law that justice must not only be done, it must be seen to be done.

In this case, justice cannot be seen to have been done. [ 90 ] The inadequacy of the reasons given for the decision leads the Court to find that the decision, itself, is an unreasonable one that cannot be upheld by this Court. [ 91 ] If I am wrong and the Reasons for Decision meet the threshold test for adequacy, I would still find that the decision is unreasonable in the circumstances. [ 92 ] Assuming for a moment that the Reasons for Decision of the Arbitrator were adequate, this Court would still note that the Arbitrator in this case is not a statutory decision-maker in a specialized tribunal. The

interpretation of the Act, and the regulations to it, does not require a special skill set unique to this Arbitrator or any other. The legislation is general legislation regarding travel on a public transit system.

Accordingly, and with the greatest respect for the Arbitrator who had the difficult task of attempting to navigate the uncharted waters of Fare Infraction Appeals, I must consider the nature of the legislation when weighing the deference to be afforded the Arbitrator. [ 93 ] This Court also notes that it is, in fact, better placed than the Arbitrator to reach a decision as it has had the opportunity of considering the complete written record that was before the Arbitrator together with sworn testimony at the hearing. [ 94 ] Both the officer who issued the ticket and the disputant, Ms.

Wadolowski, testified regarding the circumstances leading up to the ticket being issued. Both were subject to cross-examination. [ 95 ] Further, this Court had the benefit of able submissions from counsel for the Translink and by Ms.

Wadolowski, herself. [ 96 ] In reaching a decision, I have considered the legislation as a whole and in the context of the purpose that the legislators must have intended to address. [ 97 ] I find that the intent of the legislation, read as a whole, is to establish a scheme to ensure that riders of the transportation system operated by Translink, i.e. in the South Coast British Columbia area, are contributing fairly to the cost of operating and maintaining the system.

The scheme relies on transit employees to act as enforcers and to carry out random checks of riders to establish proof of payment. [ 98 ] This random checking of fare payment is necessary because there is, at present, no mechanism such as turnstiles, electronic scanners or other method of scrutinizing fare cards and tickets, such as are used by many transportation systems in major urban centres around the world, in order to ensure that only persons who have properly paid for the service are using the system. [ 99 ] The provisions in the Tariff Bylaw must be interpreted in a manner that accomplishes the legislative intent. [ 100 ] The fact that Ms.

Wadolowski scratched the number “1”, in error, on the face of the fare card, if not an officially induced error (given the number of months which she had travelled in the same zone and provided the same proof to Transit employees), is at the very most an administrative error which is subject to amendment. [ 101 ] As a result, I find that the monthly fare card, produced by Ms.

Wadolowski to the transit employee was valid proof of payment for travel in one zone on the Sky Train during Regular Hours and, accordingly, I am satisfied, on a balance of probabilities that she has established grounds to believe that she did not commit the infraction as alleged within the meaning of s. 253(

a) of the Act. [ 102 ] Ms. Wadolowski travelled on the Sky Train in one zone and paid for travel in one zone. To invalidate the form of payment because of such an administrative error or “slip” in the present situation, would amount to permitting the Province of British Columbia to benefit by collecting a significant fine for an administrative error and for providing a service for which she had already paid. This would be a most unjust result. [ 103 ] I, further, find that it would be patently unfair to hold the Disputant, Ms.

Wadolowski to a higher standard than either the Arbitrator or Translink, in this instance. She made one “slip” or error on the face of the ticket; a completely foreseeable error given the confusing use of the terms “one zone” and “Zone 1” on the fare card and in the Tariff.

[ 104 ] The Translink employee, the unnamed Translink Dispute Screening Representative and the Arbitrator all expected Ms.

Wadolowski to know that when she purchased a “one zone” monthly pass for the purpose of travelling on "convential transit" in one zone that she must mark the number “2” if that one zone of travel is in the City of Burnaby; a fact that only becomes evident to a reader who can successfully navigate the Act, the Bylaws, including multiple tables, and the very fine print on the reverse of a fare card. [ 105 ] This legal morass is entirely of TransLink and the legislature’s making and could have been easily prevented by ensuring that the legislation was written in plain language, easily understandable by the public who must comply with it.

Adequate explanations of the obligations of a rider using the service should be posted in language that is understandable to the public where and when they purchase their fare tickets. To do otherwise is simply put, unfair. [ 106 ] I would be remiss if I did not make a couple of observations about this new legislative scheme for enforcing fare payment. At the time that Ms. Wadolowski was issued the Infraction Ticket, Translink and the government had developed a penalty mechanism but had not yet passed legislation to provide for review of that penalty.

In fact the legislation governing judicial reviews of Fare Infraction Appeal decisions by arbitrators was not in place until almost a year after the day in question. [ 107 ] Ms. Wadolowski, was an inexperienced and somewhat unsophisticated user of the transit system. She is typical of the many residents of the Lower Mainland who rely on public transit, many of whom are new immigrants, youth, students, the disabled or low income workers.

She used the system in good faith, paid for the service she used and when confronted by an enthusiastic enforcement scheme she struggled to explain her confusion and to right the wrong that she felt had been done to her. [ 108 ] TransLink has a large bureaucracy, staffed by employees who are charged with understanding and enforcing the legislative scheme under which they operate. Even so, they are humans subject to error. By way of example, when Ms.

Wadolowski filed a dispute of her Infraction Notice she was advised the very same, day, by way of a letter with no letterhead or insignia, but signed by a “Supervisor” of Translink, that an unnamed Dispute Screening Representative had confirmed the ticket and that she would face serious consequences if she failed to make full payment. [ 109 ] The letter failed to address the issue raised by Ms. Wadolowski that she was, in fact, only travelling in one zone and that she simply erred in indicating the correct number associated with that zone. The letter also failed to address Ms.

Wadolowski‘s assertion that she had used this same method as proof of payment, and not been told it was inadequate. Further, the letter failed to address Ms. Wadolowski‘s assertion that she had actually paid the correct fare for travelling in a single zone and claimed an “honest mistake” in scratching the wrong number on the face of the card. [ 110 ] Ms.

Wadolowski‘s error in scratching the wrong number on the ticket on the day she was issued the Infraction Notice is equivalent to a typographical error on the face of a ticket or Infraction Notice; had Translink made a minor error on the face of the ticket, such as misspelling her name, they would no doubt apply to amend the ticket. In fact, Translink made many errors. [ 111 ] Translink did not refer to the Bylaws regarding Tariffs or the Appendices to the Bylaws; no note was made of the discrepancy in the Bylaws between Appendixes “I” versus Appendix “1”.

While these may be oversights and typographical errors to be expected in a new administrative scheme, errors which could be easily remedied, no such opportunity was afforded Ms. Wadolowski with respect to her fare card. [ 112 ] TransLink’s reasons for their decision to confirm the ticket are, in my view, inadequate. [ 113 ] But the matter does not end there. The “Fare Infraction Appeal- Arbitrator Decision”, whose decision is before me for review, misspelled Ms. Wadolowski‘s name, indicated an incorrect email address for correspondence with her and provided inadequate reasons for the decision.

The Court is asked to overlook all of these “errors” on the part of the Arbitrator and find the decision reasonable and confirm the ticket while in doing so, simultaneously finding that Ms. Wadolowski‘s error in scratching the ticket is not to be overlooked. [ 114 ] For all of the reasons stated above, pursuant to

section 13 (

b) of the Fare Infraction Review Referral Regulation, I find that the Arbitrator’s decision is not reasonable. I further find that Ms. Wadolowski has satisfied the Court on a balance of probabilities that she has made out one or more of the grounds referred to in

section 253, specifically ground (a). [ 115 ] I order that the ticket is cancelled and I further order that Ms. Wadolowski is relieved of her obligation to pay the ticketed amount of $173 pursuant to s. 250 of the Act. B.L. Edwards Judicial Justice CORRIGENDUM - Released April 8, 2014 In the Reasons for Judgment dated February 6, 2014, the following change has been made. [ 116 ] The header throughout the Judgment had the incorrect spelling of the Applicant’s name. The header should now read: Wadolowski v. South Coast BCTA [ 117 ] On page 27, paragraph 104, the word conventional is misspelled.