Rosario v. South Coast BCTA Date:, 2014 BCPC 50

Citation: Rosario v. South Coast BCTA Date: 20140206 2014 BCPC 0050 File No: 1346003 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 DEZEREE ROSARIO APPLICANT AND SOUTH COAST BRITISH COLUMBIA TRANSPORTATION AUTHORITY RESPONDENT REASONS FOR JUDGMENT OF JUDICIAL JUSTICE B. L. EDWARDS Appearing in Person: Dezeree Rosario 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 [ 1 ] This case was heard as the last of four reviews that were the first such reviews to be heard by this Court under s. 257 of the South Coast British Columbia Transportation Authority Act of a referral by a disputant of an Arbitrator’s decision. The decisions in all four cases will be released together.

BACKGROUND: [ 2 ] On October 17, 2012 at 7:27 a.m., a Fare Officer the South Coast British Columbia Transportation Authority (“Translink”) issued Dezeree Rosario Fare Infraction Notice F003678 for “failure to produce” proof of payment while on Bus 8002 at or near Broadway and Cambie (no City/Town) was listed in B.C., contrary to s. 244(2) of the South Coast British Columbia Transportation Authority Act (the “Act”) with a ticketed amount of $173. The ticket does not indicate a Driver’s Licence for Ms. Rosario whose birthdate was noted as March 26, 1979. [ 3 ] On October 29, 2012, Ms.

Rosario filed a Fare Infraction Dispute Form with the Authority (better known as “TransLink”) challenging the ticket. She indicated that her ground for disputing the ticket was s. 251(1)(

c) of the Act, i.e. that she did not commit the infraction as alleged. She added by way of explanation that she was not given sufficient time to locate her pass within her belongings after a quick check. She also indicated that her “2 zone pass” was attached to the dispute form. (A photocopy of what appears to be a 2 zone pass for the month of Oct 2012 was attached). [ 4 ] On October 30, 2012, Terry Robins, Supervisor Fare Infraction and Dispute Services, TransLink, wrote a letter to Ms. Rosario on blank letterhead that was entitled “Fare Infraction Notice of Decision”.

The letter stated that an unnamed Dispute Screening Representative had reviewed the ticket as requested by Ms. Rosario and that “the outcome of this review is that this fare infraction ticket has been confirmed ” (bold in original). [ 5 ] Ms.

Rosario was advised by Terry Robins that the reason for this outcome was that “(a)s 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 for the entire duration of his or her journey; and present valid Proof of Payment obtained to any Transit Employee upon request.” (bold in original). The letter then advised Ms.

Rosario that “failure to do so may result in fines being levied pursuant to the BC South Coast British Columbia Transportation Authority Act. ” No further explanation was provided as to how the requirements of the legislation applied to Ms. Rosario’s circumstances. [ 6 ] On November 30, 2012, Ms. Rosario filed a Fare Infraction - Appeal Form notifying Translink that she was dissatisfied with the decision to confirm the ticket and she indicated that under s. 253 of the Act she was appealing on the ground, (as stated on the TransLink form) that 253(

c) any other ground for cancellation set out in the fare collection bylaw. The fare collection bylaw permits you to appeal liability under a ticket on the ground that relevant information was not submitted in the dispute procedure. (This is not the wording of s. 253 but is a paraphrasing of s.253 merged with the language s.6 of the Fare Collection Regulation , 190/2012 that was used by TransLink.) [ 7 ] Ms.

Rosario attached a 2 page letter to the Appeal Form explaining the circumstances leading up to her receiving the Fare Infraction Notice and outlining her reasons for appealing TransLink’s decision to confirm the ticket.

Her letter included the following information: 1) she “got on” the “B” Line on Broadway and Heather Street, from the rear entry since the bus was full at the front entry and was closing” 2) when she was unable to locate her bus pass prior to entering the bus, she decided to pay cash 3) she had the “money in hand” but she thought it was unsafe for her to get to the front of the bus, while moving, as there were a lot of people in the front of the bus 4) she wanted to wait for the bus to stop so that she could safely proceed to the fare slot

5) the bus was boarded at Broadway and Cambie Street by TransLink officers 6) the officer “immediately sanctioned” her even though she had the fare in her hand 7) the officer blocked her path to pay her fare 8) the officer told her to get off the bus, ignored her story and wrote her the ticket 9) the officer did not give her sufficient time to locate her driver’s licence or her bus pass 10) she showed the officer her work ID and he wrote her the ticket. [ 8 ] On January 23, 2013, an unsigned letter on blank letterhead but which appears to be from TransLink, was sent to Ms. Rosario.

The letter advised her that a “Dispute Screening Representative” “had requested and received a statement (the “Statement”) from the fare officer who issued the above noted fare infraction ticket. [ 9 ] The letter then advised Ms. Rosario that a copy of the fare officer’s Statement was enclosed and that she had 5 business days to respond to the Statement and that her response could amend her Notice of Appeal to address any new information or withdraw her appeal. Ms. Rosario was directed to send her response to TransLink. [ 10 ] A “Statement - Issuing Officer” was appended to the January 23, 2013 letter.

The Statement was signed by Dale Mackie on “12/10/2012” The Statement indicated under the heading “Information of Issuing Officer” that Mr.

Mackie was employed by TransLink and on duty, in uniform, on the date of the alleged infraction, “which took place in the City of Vancouver in the Province of British Columbia”. [ 11 ] The Statement of Officer Mackie also indicated under the heading “Issuing Officer’s Statement on By-law Notice” that the officer was patrolling on October 17, 2012 in the area of Broadway and Cambie at 7:27 a.m. and that he “observed a 5’0” Asian female passenger within/entering just departing a TransLink fare paid zone”, that he “asked the individual to present to me their proof of payment”.

The Officer further indicated that “the fare paid zone signage was clearly visible”, that the female passenger was “with (sic) the farepaid zone of the 99bline coach” and that “(a)t this time the female was unable to produce any form of valid fare”. Finally, the Officer noted that the female passenger “produced her hospital ID tag as ID” when asked to do so and gave her address and birth date (bold in Statement). [ 12 ] On January 30, 2013, Ms. Rosario wrote to TransLink in response to Officer Mackie’s Statement in which she stated that she was “inside the bus and my payment was in progress”.

She reiterated that she was pregnant, the bus was crowded and she was being cautious as the bus was moving.

She repeated her explanation that she showed the officer the exact fare that she had in hand; that the officer asked her to step off the bus; that she showed her employee ID as identification and verbally stated her address; and that she was not permitted to go to the fare slot or to locate her bus pass and driver’s licence. [ 13 ] On February 6, 2013, an arbitrator with the initials “AV” (the “Arbitrator”) signed a Fare Infraction Appeal - Arbitrator’s Decision form confirming the ticket. [ 14 ] The Arbitrator noted that (s)he did not request any additional information from either TransLink or Ms.

Rosario and that (s)he considered: • the “other ground” which Ms. Rosario had used to establish her appeal; • the Fare Infraction - Notice of Appeal; • the Fare Infraction Notice of Decision; • the Fare Infraction Dispute Form; • the “Ticket” and a “Photo of 2 pass provided by the disputant” and • s. 244(2) of the Act [ 15 ] The Arbitrator’s Reasons for Decision are brief:

The disputant states that she “indicated to officer #9954 that I was making my way towards the fare slot and also visually showed him the exact fare I had in my hand”. The disputant had not paid the fare at the time she was stopped by the officer. The disputant has provided a photograph of her two zone pass but this was not produced for the officer. The disputant did not present any valid proof of payment to the officer upon request. [ 16 ] While the “Fare Infraction Appeal - Arbitrator’s Decision” does not list Ms.

Rosario’s January 30, 2013 letter filed in Response to Officer Mackie’s Statement, or Officer Mackie’s Statement of December 10, 2012, I find that the Arbitrator must have considered Ms. Rosario’s letter as the quote attributed to Ms. Rosario appears only in her January 30, 2013 Response letter. It is not clear that the Officer’s Statement was before the Arbitrator. [ 17 ] On February 28, 2013, Ms. Rosario filed a Referral for Review form with the Provincial Court selecting as her basis for requesting the review the option described as: “any other ground for cancellation set out in the fare collection bylaw.

The fare collection bylaw permits you to appeal liability under a ticket on the ground that relevant information was not submitted in the dispute procedure.” [ 18 ] In support of her Referral for Review, Ms. Rosario filed an Affidavit which may have been either sworn or affirmed on September 30, 2013 (neither is indicated by the lawyer before whom the affidavit was given) to which she attached as Exhibits the ticket, the Arbitrator’s Decision, her statement of facts (i.e. letter to TransLink dated January 30, 2013). [ 19 ] On October 28, 2013, some 9 months after Ms.

Rosario filed her Referral for Review, the South Coast British Columbia Transportation Authority (referred to elsewhere as “TransLink”) filed a Response to Referral, supported by Terry Robin’s affidavit of the same date that was may have been sworn/affirmed (again neither is indicated by the lawyer who took the affidavit). [ 20 ] In its Response, TransLink asserted that the Referral for Review was not supportable because the Disputant had failed to produce valid proof of payment for inspection “while in a fare paid zone” and that the Arbitrator had properly confirmed the ticket. [ 21 ] Terry Robins’ stated in his/her affidavit that the Fare Infraction ticket at issue was issued to Ms.

Rosario on October 17, 2012; Ms. Rosario disputed the ticket on October 29, 2012; the ticket was confirmed on October 30, 2012 and that Ms. Rosario filed a Notice of Appeal on November 30, 2012. [ 22 ] I accept the affidavit of Ms. Rosario and paragraphs 1-6 of Terry Robins’ affidavit as if they were properly sworn testimony. [ 23 ] The Court relies on members of the legal profession who are authorized as Commissioners for taking affidavits to ensure that the person appearing before them swears an oath that the contents of the document are true or solemnly affirms the same.

Merely affixing one’s signature to a pre-typed document that indicates that the information contained in the document was “Sworn/Affirmed before me” does not satisfy the Commissioner’s obligation and is a practice which the Court does not condone. [ 24 ] Terry Robins then indicated at paragraphs 7-9 of his/her affidavit that “(o)n December 14, 2013 , TransLink requested an officer statement from Dale Mackie to confirm the circumstances of the issuance of the fare infraction ticket. The officer statement was received on January 23, 2013 and mailed to the Disputant for response”. The affidavit then set out that Ms.

Rosario’s Response to the Officer Statement was received by TransLink on January 31, 2013 and that the Arbitrator “issued a decision on February 7, 2013 ”. [ 25 ] The Affidavit of Terry Robins does not indicate when the Appeal was forwarded to the Arbitrator or what materials were forwarded to the Arbitrator. [ 26 ] There are two obvious errors in the Affidavit of Terry Robins: • Translink could not have requested an officer statement from Officer Mackie on December 14, 2013 as that would post date the Referral to this Court.

If the affiant meant to say “December 14, 2012 ” that would still be problematic as the Officer’s Statement was signed on “12/10/2012” which must either mean “October 12, 2012” (which does not fit the chronology of events) or “December 10, 2012” - either of which would mean that the Officer wrote the statement before Translink requested it.

• (For the purposes of this review, I find that Officer Mackie’s Statement was written on December 10, 2012 as October 10, 2012 (the alternate

interpretation) would have preceded the event at issue). • The Arbitrator’s decision is dated February 6, 2013 and not February 7, 2013 [ 27 ] Terry Robins did not appear as a witness for TransLink at the hearing of the review before the Court and so was not available for cross-examination with respect to his/her affidavit. Accordingly, I am not able to rely fully on his/her affidavit. [ 28 ] For the purposes of this review, I find that the record before the Arbitrator consisted of the information listed in the “Fare Infraction Appeal-Arbitrator’s Decision” form plus the January 30, 2013 letter of Ms.

Rosario from which the Arbitrator quoted in his/her Reasons for Decision. [ 29 ] On November 6, 2013, Judicial Justice Edwards considered the Referral for Review and supporting affidavit and the Response from TransLink and supporting affidavit (less paragraphs 7-9 of Terry Robins’ affidavit) together with the Arbitrator’s Decision. Judicial Justice Edwards noted the differing versions of events that had been provided by Ms. Rosario and noted that TransLink had not addressed whether the officer had been notified by Ms.

Rosario that she had a monthly pass on her at the time that she was issued the Infraction Notice. [ 30 ] The hearing of this matter was set for January 24, 2014 before Judicial Justice Edwards FURTHER FACTS THAT EMERGED FROM THE HEARING: [ 31 ] Ms. Rosario testified, under oath, on her own behalf. [ 32 ] Ms. Rosario is a health care professional at Vancouver General Hospital. On the day at issue she was coming off a night shift and heading home to Burnaby. She stated that it was late at night and she was tired. She also stated that it was 7 a.m. [ 33 ] When the B Line bus arrived, Ms.

Rosario testified that she could not locate her monthly bus pass in her bag and decided to pay with cash, instead. She entered the bus through the rear door she says because the bus was crowded. [ 34 ] She testified that TransLink officers entered the bus at Cambie and Broadway Streets; Ms. Rosario testified that she believed that 2 officers entered the Bus and began checking fares and that she was blocked from going to the fare box to deposit her cash. [ 35 ] Ms.

Rosario acknowledged, under cross-examination, that she knew that she had to have proof of payment on her when on a bus or in a fare paid zone and that she knew that “cash in hand” was not the same thing as a validated ticket. She also admitted that she knew that she should not enter the rear doors of a bus unless she had proof of fare payment and that she should have purchased her fare before she got on the bus. [ 36 ] Ms. Rosario testified that she knew that TransLink was “tracking people” and that she would have to show proof of payment if asked by a transit employee.

She also stated that she knew that she had to pay the fare in order to get the transfer that she would need for her next leg of the journey. [ 37 ] Officer Mackie testified for TransLink and stated that he was on duty that day as a General Investigator and Fare Enforcement Officer and that he was one of 3 officers who boarded the bus at the time of the event leading to the Infraction Notice. [ 38 ] Officer Mackie testified that there were 3 officers, rather than 2 as Ms.

Rosario had thought, as one is assigned to each door of the bus; he was the officer who entered the middle door of the bus [ 39 ] The officers announced that they were checking fares. Officer Mackie began working his way toward the rear of the bus. Officer Mackie testified that he checked 15-20 other passengers before he got to Ms. Rosario. When he approached her she was stationary and close to the rear door of the bus. He asked her for her proof of payment of the fare and she told him that she didn’t have it,

that she had a pass but it was not with her. [ 40 ] Officer Mackie could not recollect Ms. Rosario’s exact words to him when he asked her to produce her fare, nor if she showed him cash in her hand. He added that it would not have mattered to him if she had showed him “cash in hand” as a valid ticket or pass was needed as proof of payment. [ 41 ] Officer Mackie recalled that he asked Ms. Rosario to step off the bus with him and that he asked her for ID. She showed him her hospital ID and he asked for additional ID but Ms. Rosario advised him that she did not have any other ID but she gave him “verbal ID”.

He recalled that she told him that she had been working the night shift and that she was tired. [ 42 ] Officer Mackie estimated that it took him 5-7 minutes to get the information from Ms. Rosario and write the ticket. He denied that he had blocked Ms.

Rosario’s way to the fare box. [ 43 ] In argument, counsel for TransLink referred the Court to the written submission and book of authorities filed earlier the same day on behalf of Translink in the Wadolowski review (Vancouver Reg’y No. 1345833) which the Court agreed to accept as submissions and authorities for each of the Reviews heard by the Court on January 24, 2014. [ 44 ] Counsel for TransLink argued that it would be an “ungovernable scheme” if the Court were to accept that “cash in hand” could constitute “proof of payment” under the applicable legislation.

She argued, further that the legislation required presentation of proof “immediately” upon request and that Ms. Rosario had been afforded ample time to present proof. [ 45 ] Ms. Rosario stressed to the Court throughout the proceedings that she was a “regular user” of Translink. In her closing argument she stated that she was aware of all the fares; knew that “real proof” of payment was required and that she knew the Rules and Regulations before she got on the bus.

She clarified that she was not saying that she was special because she was pregnant, only that the circumstances were that “it was dark”, she “was tired” and it was a “busy bus” and that she had “no time” to find her (monthly) pass in the “less than two minutes between stops” that she was on the bus before the Officers boarded. DISCUSSION: [ 46 ] The sole question before this Court is the reasonableness of the Arbitrator’s decision to confirm the ticket after considering Ms.

Rosario’s appeal of TransLink’s confirmation of the ticket. [ 47 ] This Court ordered a hearing after considering the record filed with the Court which included: the Arbitrator’s Decision as amplified by the information contained in the Referral for Review and supporting affidavit and the Response to the Referral of TransLink and supporting affidavit (absent paragraphs 7-9 of Terry Robins’ affidavit). [ 48 ] The Court determined that a hearing was necessary to clarify the circumstances leading up to the Transit Employee issuing the Fare Infraction Notice as the record was ambiguous and given that it was unclear whether the Arbitrator had the Officer’s Statement before him or her. [ 49 ] This Court had the opportunity of hearing sworn testimony from Ms.

Rosario and Officer Mackie together with closing argument from Ms. Rosario and counsel for Translink as well as submissions regarding the law governing the role of the Court under s. 257 of the Act and the standard applicable to such reviews. [ 50 ] In Wadolowski, supra the Court considered the nature of a review under s. 257 and the standard applicable to such a review and held as follows:

[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 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. [ 51 ] I adopt the reasoning in Wadolowksi, supra and conclude that the purpose of the hearing before me is limited to hearing additional evidence that is relevant to the issue before the Court and that existed at the time of the appeal before the Arbitrator.

I accept the evidence of Ms. Rosario and Officer Mackie and the Statement of Officer Mackie clarifying the circumstances leading to his issuing the Infraction Notice to Ms. Rosario. I also accept the Officer’s reference in the Statement to the alleged infraction occurring in Vancouver, B.C. at the location described in the Infraction Notice. [ 52 ] I accept that the standard of review in matters such as the referral of reviews under s. 257 of the Act is “reasonableness” for the

reasons given in Wadolowski, supra. [ 53 ] In determining whether the Arbitrator’s decision was a reasonable one in the circumstances, I have considered the submission urged on me by counsel for TransLink to the effect that the Court should find that persons are required to provide proof of payment immediately on request by a TransLink employee. [ 54 ] I do not accept that submission.

I adopt the reasoning of this Court in Petrovic, (Vancouver Reg'y No. 1346215 ) (handed down as one of the 4 reviews heard by the Court on January 24, 2014) wherein the Court held that it is incorrect to read a requirement of “immediacy” to the production of proof of payment under s. 244(2) of the Act.

The legislation does not stipulate that proof of payment must be produced for inspection “immediately at the request of a transit employee”. [ 55 ] I further adopt the finding of this Court in Petrovic, supra that “ (c)learly there must be a limit to the amount of time that a person may be afforded by a transit employee to produce proof of payment before an infraction is deemed to have occurred and an Infraction Notice properly issued by the officer. In my view, the time afforded a person to produce proof of payment to a transit employee must be a reasonable amount of time.

What will constitute a “reasonable” amount of time will depend on the circumstances. [ 56 ] After considering all of the evidence before me at the hearing, and contained in the record of the dispute proceedings, I am satisfied that Ms. Rosario did not produce proof of payment within a reasonable time of the request by Officer Mackie. [ 57 ] By her own evidence, Ms. Mackie could not locate her monthly pass prior to boarding the bus. She knew that she should not enter the rear door of a bus without proof of payment and knew that she had not yet obtained proof of payment.

At no time did she provide any evidence that she had a monthly pass on her person either the night before when she travelled to her work or earlier on the morning of the infraction when she was travelling to the bus stop. Neither did she provide any evidence that she found the bus pass on her person after receiving the infraction notice.

I do not wish to imply that it would have been sufficient "proof of payment" had she had the pass on her person either before or after requested to produce proof of payment by the officer but it would have been some evidence to bolster her claim that she had proof of payment on her person, other than the cash she claimed to have in hand. [ 58 ] Cash in hand is not proof of payment of the fare required by s. 244 of the Act for a person who is already riding in a transit vehicle, or who is otherwise in a fare paid zone. [ 59 ] I find that the Arbitrator’s decision to confirm the ticket is a reasonable one in view of all of the evidence and under s. 13(

a) of the Fare Infraction Review Referral Regulation I confirm the ticket. [ 60 ] Ms. Rosario asked this Court to “pardon” her from the infraction. I have no authority to make such an order. Ms. Rosario did not make any submissions regarding whether she would require time to pay the fine or whether paying the fine forthwith would pose an undue hardship for her. In the circumstances, I order that she pay the ticketed amount of the fine, i.e. $173 by January 31, 2015. B.L. Edwards Judicial Justice