Petrovic v. South Coast BCTA Date:, 2014 BCPC 51

Citation: Petrovic v. South Coast BCTA Date: 20140206 2014 BCPC 0051 File No: 1346215 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 IGOR PETROVIC APPLICANT AND SOUTH COAST BRITISH COLUMBIA TRANSPORTATION AUTHORITY RESPONDENT REASONS FOR JUDGMENT OF JUDICIAL JUSTICE B. L. EDWARDS Appearing in Person: Igor Petrovic 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 third 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 and the Regulations thereto 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 16, 2012 at 10:50 a.m., a Fare Officer employed by the South Coast British Columbia Transportation Authority (“Translink”) issued Igor Petrovic Fare Infraction Notice F003374 for “failure to produce” for inspection proof of payment while on Bus 8137 at or near Broadway and Cambie in Vancouver, 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 indicates that no driver’s licence was produced to identify the recipient of the ticket whose birthdate was noted as June 1, 1983. [ 3 ] On October 27, 2012, Mr. Petrovic filed a Fare Infraction Dispute Form with TransLink challenging the ticket. He selected from the form’s options, ground 251(1) (

a) of the Act, i.e. that he did not commit the infraction as alleged. He added by way of explanation that someone had stolen his student pass and that he discovered this when the officer asked him to provide one. He further stated that he did not deserve to pay the fine when he had paid for monthly passes before. [ 4 ] On October 29, 2012, Terry Robins, Supervisor Fare Infraction and Dispute Services, Translink, wrote to Mr.

Petrovic in a letter entitled “Fare Infraction Notice of Decision” that an unnamed Dispute Screening Representative had reviewed his request to review the ticket and that “the outcome of this review is that this fare infraction ticket has been confirmed ” (bold in original). [ 5 ] Mr.

Petrovic was advised by Terry Robins that the reason for this outcome was that conditions for use of the U-Pass are provided on the reverse of the pass and include: a U-Pass BC may only be used by the student to whom it was issued; that the pass and student identification must remain in the user’s possession at all times when in transit vehicles and in fare paid zones, and that both must be produced for inspection on request of an operator or other official of TransLink. No further explanation was provided as to how these conditions applied to Mr. Petrovic’s circumstances. [ 6 ] On November 30, 2012, Mr.

Petrovic filed a Fare Infraction - Appeal Form notifying TransLink that he was dissatisfied with their decision to confirm the ticket and he indicated that under s. 253 of the Act he was appealing on the ground, (as stated on the TransLink form) that 253(

c) any other ground for cancellation set out in the 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 correct wording of s. 253 but is a paraphrasing of s.253 used by TransLink merged with the language s.6 of the Fare Collection Regulation , 190/2012.) [ 7 ] Mr.

Petrovic used the three lines provided on the appeal form together with the remaining white space on the page to explain his reasons for appealing, in this way: I am dissatisfied with the automated Translink response about my case which was not considered as separate from others as a result of my special circumstances; As a full time student I always pay for fare ticket of monthly bus-pass. That day I did not find my monthly bus pass immediately, the officer wrote (illegible) fare infraction notice.

I feel it’s unfair to me to pay $173 if I always pay to transit and this time I failed to show my transfer immediately. [ 8 ] On January 22, 2013, Sandra Walters, Arbitrator issued “Fare Infraction Appeal - Arbitrator’s Decision” in which she confirmed the ticket based on the Fare Infraction Notice of Appeal, the Fare Infraction Dispute Form and the “ticket”, itself. She gave no consideration to TransLink's Notice of Decision for confirming the ticket following the Dispute. [ 9 ] Arbitrator Walters indicated that, in reaching her decision, she considered: s.244 (1) (

b) and s. 244(2) of the Act; s. 10 of the Bylaw (she does not state which bylaw) and Transit Tariff, s. 6 and Appendix 2.

[ 10 ] In her Reasons for Decision, Arbitrator Walters referred to Mr. Petrovic’s assertion that “he discovered that his student pass had been stolen when the officer asked him to provide one” and that “he did not find his monthly bus pass immediately when asked by the officer”. She then referred to the requirements under s. 244 of the Act to retain proof of payment when in a transit vehicle and to produce it for inspection at the request of a transit employee. [ 11 ] Arbitrator Walters stated that “(t)he proof of payment required by the Bylaw in

Section 10, if a ‘pass’ that is valid for application to the fare is used, is to ‘retain’ the pass or to keep it in one’s possession. [ 12 ] Arbitrator Walters, further, found that the definition of ‘pass’ in the Bylaw included a monthly pass as well as the U-Pass BC for students of an eligible educational institution. She added that for the U-Pass,

section 6 and Appendix 2 of the Transit Tariff stipulate that proof of payment includes a valid student card as well as a valid U-Pass BC. [ 13 ] The Arbitrator found that Mr. Petrovic was not able to produce a “pass” when requested and stated that she was satisfied on a balance of probabilities that there was no other ground for cancellation of the ticket. [ 14 ] On February 19, 2013, Mr. Petrovic filed a Referral for Review form with the Provincial Court selecting as his basis the option “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.” [ 15 ] Court Services Branch of the Ministry of Justice sent a form letter to Mr.

Petrovic on September 12, 2013 advising him that on September 16, 2013 the Fare Infraction Review Referral Regulation would come into effect and that one of the requirements of the regulation was that persons seeking to have an arbitrator’s decision referred to the Provincial Court must file an affidavit in support of their Referral for Review. [ 16 ] In support of his Referral for Review, Mr.

Petrovic filed an Affidavit that was either sworn or affirmed (neither is indicated by the Notary Public before whom the affidavit was given) October 16, 2013 in which he asserted that he owned a monthly bus pass for October 2012 and that the officer did not give him enough time to find it and required him to step off the bus, immediately. [ 17 ] Mr. Petrovic further swore/affirmed that the officer asked him for an identification card, did not allow him to look for his October monthly bus pass and that when he could not produce his ID card, the officer “threatened to contact the immigration office". Mr.

Petrovic asserts that this was a form of intimidation. [ 18 ] On November 5, 2013, TransLink filed a Response to Referral, supported by a November 5, 2013 affidavit that was either sworn/affirmed Terry Robins, TransLink (again neither is indicated by the lawyer who took the affidavit).

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. [ 19 ] On November 13, 2013, Judicial Justice Edwards considered the Referral for Review and the Response to the Referral filed by TransLink together with the Arbitrator’s Decision. Judicial Justice Edwards noted the differing versions of events that had been provided by Mr.

Petrovic and noted the absence of any evidence from TransLink as to the circumstances leading up to the issuance of the Infraction Notice. [ 20 ] Judicial Justice Edwards, further, noted that it appeared that Mr. Petrovic may not speak English as his first language. In all of the circumstances, Her Worship found that she could not confirm the ticket without further evidence and ordered that there be a hearing set for the matter. [ 21 ] The hearing of this matter was set for January 24, 2014 before the same Judicial Justice who had considered the Referral. FURTHER FACTS THAT EMERGED FROM THE HEARING: [ 22 ] Mr.

Petrovic testified, under oath, that on the date in question (October 16, 2012) he was riding the #99 bus when transit officers, one for each door of the bus, boarded the bus at Cambie Street and began checking passengers for proof of payment of the fare. Mr. Petrovic testified that he was sitting just in front of the rear door of the bus. Mr. Petrovic further testified that he searched for his ticket but when asked by the transit officer for his proof of payment, that he could not, “immediately” find it and assumed that it had been stolen.

He added that when he could not “immediately” produce proof of payment that he was told to step off the bus with the Officer. [ 23 ] When asked in cross-examination, how long the bus remained at the stop while he and the officer were standing beside it on the pavement, he said that he stepped off the bus and it left the area, that , at most, it was there perhaps another minute. [ 24 ] Mr. Petrovic further testified, that, once off the bus, the transit officer asked him to provide ID which he did not have on him. Mr.

Petrovic testified that the officer told him that he if he did not have any identification on him that the officer would call Immigration Services to see if he was legally in Canada. Mr. Petrovic testified that he was a new immigrant, unfamiliar with the laws and was afraid in the situation. He had never seen Transit officers before. [ 25 ] Mr. Petrovic further testified that the officer asked him his name and address and then made him repeat his name and address, telling him it was to see if he was telling the truth. Mr.

Petrovic told the Court that he had no reason to lie and gave him the same information the second time that he was asked. [ 26 ] Mr. Petrovic testified that after the officer wrote the Infraction Notice that the officer gave him a fare ticket that he could use until 6 pm and “told him not to worry too much” about the ticket. [ 27 ] Under cross-examination Mr. Petrovic acknowledged that he had not raised the issue of being threatened by the officer in his dispute or appeal but he continued to assert that the officer said that he would call Immigration to check to see if Mr. Petrovic was legally

in Canada. He added that “As a new immigrant, these words were very big” and that he felt threatened. He stated that the officer began writing the ticket without giving him time to look further and that he stopped looking once the officer began to write the ticket. [ 28 ] Mr. Petrovic also testified under cross-examination that he had first stated that his “ticket” had been stolen as that is what he believed at the time when he could not immediately find it but that he, later, found the ticket in his jacket pocket. Mr.

Petrovic said that he could no longer find that ticket. [ 29 ] Michael Filippelli testified under oath that he is a General Investigator and Fare Enforcement Officer for TransLink and that he was so employed on October 16, 2012 when he and two other officers entered Bus #8137. He testified that he entered through the rear doors of the coach, announced that he was “checking fares”. He also testified that he checked “around 4” passengers before reaching Mr. Petrovic who he described as being seated at the rear of the coach. [ 30 ] Officer Filippelli testified that when he asked Mr.

Petrovic to produce his fare that Mr. Petrovic responded “I don’t have one” at which time he asked Mr. Petrovic to step off the bus. The two of them then stood on the pavement outside the bus and Officer Filippelli asked Mr. Petrovic for ID which he could not produce. [ 31 ] Officer Filippelli said that he then asked Mr. Petrovic to say his name and address and that he asked him this twice to test if he was telling the truth. After he asked these questions he wrote the ticket.

He estimated that it took him “5-8 minutes" to write Fare Infraction Notice F003374. [ 32 ] Officer Filippelli testified that there was no discussion about a student pass. He denied mentioning Immigration at all. He stated there was no other discussion between himself and Mr. Petrovic and that, in his view, Mr. Petrovic had no difficulty communicating with him. [ 33 ] Under cross-examination by Mr. Petrovic, Officer Filippelli stated that he remembered Mr. Petrovic but gave no reason for remembering him or the events of October 16, 2012. THE LEGISLATIVE SCHEME APPLICABLE TO FARE INFRACTION REVIEWS: [ 34 ]

Part 12 of the Act sets out the procedure for “Fare Recovery” by Translink. [ 35 ]

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. [ 36 ] Fare Collection Regulation, B.C. Reg. 190/2012 came into force on September 4, 2012. 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. [ 37 ]

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 [ 38 ] South Coast British Columbia Transportation Authority Bylaw Number 75-2011 , effective January 1, 2012 (also known as the “Transit Tariff”) provides a different definition of “Fare Paid Zones” “Fare Paid Zones” All transit vehicles (including buses, SeaBuses, Sky Train cars and WCE cars) and other transit property, designated as “fare paid zones” from time to time by Translink. [ 39 ] The Transit Tariff sets out the “tariff” or fare for a variety of different modes of transit at various times.

It is important to understand the Act, the Bylaws and the Tariff in order to determine what proof of payment would have been required of Mr. Petrovic on the date in question. [ 40 ] The Tariff, like the Act itself and the other applicable bylaws, is not "user friendly" reading 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.

[ 41 ] The Court heard testimony that Mr. Petrovic was both a new immigrant and a student at the time of the alleged infraction. [ 42 ] The Transit Tariff defines “student and “U-Pass BC Student”. It is not clear what definition of “student” would have been applicable to Mr. Petrovic as the Court heard no testimony regarding his age, or the educational institution which he was attending at the time in question. [ 43 ] What is clear from the record and from testimony received at the hearing is that Mr. Petrovic was travelling on a bus on the date in question.

A bus is considered to be “Conventional Transit” under the Transit Tariff. [ 44 ] “Appendix “2” to the Transit Tariff 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- Concession FareCard (calendar month) [ 45 ] This form of payment is sufficient for an “eligible person” who includes “Student with valid identification, who displays a Concession Fare Card.

The cost of the Fare Card is $46.50 per month and it has a value of $1.75 for a WCE fare (a daily value) and it is valid for “unlimited travel through all Zones”. [ 46 ] The Transit Tariff also provides for a “U-Pass BC” (calendar month) as a form of payment as follows: “U-Pass BC (calendar months) Eligible person - student of an educational institution who displays a valid student card and a valid U-Pass BC; fare cost -as determined by agreement between the post-secondary educational institution, their student society and Translink.

The Pass is available to student in an educational institute “who displays a valid student card; Validity - valid for unlimited travel through all Zones”. [ 47 ]

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. [ 48 ]

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 which is then payable immediately unless it is successfully challenged and cancelled by Translink, an Arbitrator or the Court. [ 49 ] As this Court has noted in Wadolowski , Vancouver Reg’y No. 1345833 and Rechenberg, Vancouver Reg’y No. 1346163, 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. ( Wadolowski and Rechenberg are two of the three other reviews heard by this Court on the same day as this case and for which Reasons for Decision are issued on the same day as for this matter). [ 50 ] The Act provides for three levels of process 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 [ 51 ] 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.

[ 52 ] 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 [1] [ 53 ] 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 confirmed. [ 54 ] 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 [ 55 ] Again, an 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. [ 56 ] 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. [ 57 ] 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 13 of the FIRR Reg. provides that the judicial officer may either

a) confirm the ticket or

b) cancel the ticket if satisfied on a balance of probabilities that one or more of the applicable grounds in s. 253(

a) to (

c) apply. [ 58 ] 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 italics are mine) NATURE OF A REVIEW UNDER

SECTION 257: [ 59 ] In Wadolowski, supra, this Court considered TransLink's submission that the Court’s role, under s. 257 of the Act is limited to a review the decision of the Arbitrator and is not to substitute its decision for that of the Arbitrator. The Court held 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 given that the Act and the Regulations, thereto, 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. [ 60 ] 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 needs to hear “additional” sworn evidence at an oral hearing.

In this limited sense the hearing is de novo in that the evidence has not been “heard” before and the Court is not purely “reviewing” what already occurred. [ 61 ] 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. [ 62 ] In Wadolowski, supra this Court found that the standard for review under s. 257 of the Act is “reasonableness” and, as a result, determined that if the Arbitrator’s decision under review falls within a range of possible acceptable outcomes that are “defensible in respect of the facts and the law” as established by the record and the evidence admitted at the hearing, then the decision must be considered to be a “reasonable” one.

APPLICATION OF THE LAW TO THE FACTS: [ 63 ] The circumstances of what occurred between Officer Filippelli and Mr. Petrovic which led up to the Fare Infraction Ticket being issued to Mr. Petrovic came to light over the course of the hearing before this Court, it is information that was not available to the Arbitrator but is properly considered by the Court under the Fare Infraction Review Referral Regulation. [ 64 ] The evidence of Officer Filippelli and Mr. Petrovic differed in several key areas: 1. Officer Filippelli testified that Mr. Petrovic was seated “at the rear of the coach” whereas Mr.

Petrovic testified that he was seated in front of the rear door of the coach closest to where Officer Filippelli entered the bus but that he was not “at the rear of the coach”; 2. Officer Filippelli testified that when he asked Mr. Petrovic to produce his fare that Mr. Petrovic replied “I don’t have one” whereas Mr. Petrovic stated that he had told the officer that he had a ticket but did not have it right now; 3. Mr. Petrovic testified that when he could not produce identification, as asked, that Cst. Filippelli threatened to call Immigration Services to see if he was illegally in the country whereas Cst.

Filippelli said that he made no mention of contacting Immigration at all; 4. Mr. Petrovic testified that Cst. Filippelli gave him a fare ticket valid for use until 6 p.m. and told him not to worry too much about the “ticket”; Cst Filippelli made no mention of giving Mr. Petrovic a fare ticket or discussing the Violation Ticket with him, at all; he testified that there was “no other discussion” between

himself and Mr. Petrovic; 5. Mr. Petrovic testified that he was not given time to find his ticket as when he could not produce it “immediately” on the bus that Cst. Filippelli told him to step off the bus and demanded ID, threatened to call immigration and then began to write the ticket; Cst. Filippelli testified that he had been given sufficient time in that he had time on the bus while approximately 4 other passengers were being checked for fare, on the pavement outside the bus while he was being asked questions and then a further 5-8 minutes while the officer wrote the ticket. [ 65 ] Cst.

Filippelli’s testimony and that of Mr. Petrovic were the same in two areas. Both testified that 1) Cst. Filippelli asked Mr. Petrovic to state his name and address and then repeat the same information and that Cst. Filippelli did this in order to determine if Mr. Petrovic was being truthful; 2) after they had exited the bus and Cst. Filippelli asked Mr. Petrovic his name and address, the officer began to write Mr. Petrovic the Fare Infraction Notice for “failure to produce” proof of payment. [ 66 ] To the extent that their testimony differs in the areas noted above, I prefer the evidence of Mr. Petrovic.

Both men testified from memory without reference to any notes regarding this incident which occurred some 15 months prior to the hearing. On the date in question, Mr. Petrovic was a new immigrant, unfamiliar with the laws of Canada, who had never experienced being questioned by a transit official before. I accept his assertion that, in these circumstances, he was afraid and that he felt threatened by the Officer because, as a new Immigrant “these words were very big” to him.

As a result, I find that the events of the day in question were etched more vividly in his memory and I accept his recollection of them. [ 67 ] I reject as unreasonable, Cst. Filippelli’s assertion that he took between 5-8 minutes to complete the very limited amount of information required in the Fare Infraction Notice after he obtained Mr. Petrovic’s name and address. It is simply not believable that an experienced officer would take more than 1-2 minutes to complete the form especially given that he asserted that Mr.

Petrovic did not produce a Driver’s licence or any other form of ID that would require a comparison of the likeness of the individual on the ID to the person before him as well as a comparison of data contained on the ID to the assertion of the person before him and given that he recalled only a very limited interaction between himself and Mr. Petrovic. [ 68 ] I do not accept TransLink's suggestion to the Court that Mr. Petrovic’s testimony should be seen as an attempt to malign the officer and that his assertion that he was not given sufficient time to locate his ticket was “specious”. Mr.

Petrovic’s testimony had the “ring of truth” to it; it was balanced and fair. While asserting that he was not given sufficient time to find his ticket and that he felt threatened in the situation he also candidly offered up the comment that the officer told him “not to worry too much” and gave him a fare ticket to use for the remainder of the day. [ 69 ] In the circumstances, I find that Mr.

Petrovic’s recollection of the events was, understandably, more detailed and accurate than that of the officer who, in the course, of his duties as a General Investigator and Fare Enforcement Officer with Translink must have "fare checked" hundreds if not thousands of passengers in the intervening months between the event and the hearing of this matter. It would be unfair to expect him to have a detailed recollection of a very limited interaction with one person unless there was something remarkable about the interaction; Cst.

Filippelli testified as to no remarkable event in his recollection of the events. [ 70 ] In reaching this finding, I am cognizant of the fact that Cst. Filippelli was not asked to recollect what occurred or to produce any notes of the event at either the Dispute or Appeal stages of this matter when his memory might have been fresher. [ 71 ] Having accepted Mr.

Petrovic’s version of events, I must still determine whether the Arbitrator’s decision confirming the ticket was a reasonable one, in the circumstances. [ 72 ] Arbitrator Walters (“the Arbitrator”) in her Reasons for Decision referred to two assertions by Mr. Petrovic, i.e. that his student pass had been stolen (while she did not indicate her source for this assertion, I note that the statement appears to have been taken from Mr. Petrovic’s Dispute Form). She stated that Mr.

Petrovic also asserted that he did not find his monthly bus pass immediately when asked by the officer (this statement appears to be extracted from the Appeal Form). [ 73 ] The Arbitrator found that “the proof of payment required by the Bylaw in

Section 10, if a ‘pass’ that is valid for application to the fare is used, is to ‘retain’ the pass, or to keep it in one’s possession.

[ 74 ] The Arbitrator then noted that a “pass” is defined in the bylaws as including both a “monthly pass” as well as a “U-Pass”. She found that the “proof of payment” required by the Bylaw in

section 10 was to “retain the pass or keep it in one’s possession” and that ‘pass’ meant both a monthly pass as well as a valid U-Pass. [ 75 ] The Arbitrator then set out that Mr. Petrovic “states that he was not In possession of a student card as it had been stolen, he also admits that he was not able to produce a pass when requested”. [ 76 ] Mr. Petrovic did not state, in either his Dispute Form or in his Appeal Form “that he was not in a possession of a student card”. A student ID card (if that is what the Arbitrator meant), is different from a monthly pass or a U-Pass. Mr.

Petrovic asserted in his Dispute Form that “someone stole my student pass ”. In his Appeal Form, he states “I did not find my monthly bus - pass , immediately” and “I failed to show my transfer immediately” (italics mine) [ 77 ] This finding by the Arbitrator is an error in fact. [ 78 ] The Arbitrator could have exercised her discretion to seek additional information from either Mr. Petrovic or Cst. Filippelli, pursuant to s. 7(4) of the Fare Collection Bylaw if she was unclear as to what Mr. Petrovic meant by the terms “student pass”, “monthly bus-pass” and “transfer” as he used them.

She did not do so. [ 79 ] It should have been obvious to the Arbitrator that Mr. Petrovic was unclear as to what he was required to prove in order to satisfy the Arbitrator that there were grounds to cancel the ticket. The record before the Arbitrator did not address what proof of payment would have been required by Mr. Petrovic as it was not clear what form of payment, i.e. what type of “pass” or “transfer” he claimed to have had stolen or been unable to produce. [ 80 ] The Arbitrator failed to address whether Mr.

Petrovic’s assertion that he was unable to “immediately” produce the payment in the circumstances was a legal defence to the infraction. [ 81 ] The Arbitrator makes no finding as to whether Mr. Petrovic failed to produce proof of payment within the meaning of s.244 of the Act.

This failure to make a finding on the central issue before her constitutes an error in law. [ 82 ] Finally, the Arbitrator finds that she is “satisfied on a balance of probabilities that there is no other ground for cancellation of the ticket”. [ 83 ] The Arbitrator held that she was satisfied “on a balance of probabilities that no other ground for cancellation of the ticket existed”. While Mr.

Petrovic may have selected the “c” “other ground” option on the Appeal Form, it is also clear from his written submissions on both the Dispute and Appeal Form that he was raising the issue of whether he had, in fact, committed the offence alleged and thereby satisfied the ground referred to in s. 253(a). In fact he specifically selected s. 251(

a) at the Dispute stage of the Process. [ 84 ] A disputant need only “satisfy” the Arbitrator that one of the grounds referred to in

section 253 (

a) to (

c) exists. [ 85 ] I leave to another day the threshold issue, i.e. whether the threshold that a disputant must meet is proof on a balance of probabilities when appealing a decision to an arbitrator.

The legislation is silent on the matter although I note that the legislature has specifically indicated that the threshold for reviews under s. 257 is a balance of probabilities leaving open the question as to whether a different threshold might be required on appeal than before the Court on review. [ 86 ] In the circumstances, I cannot conclude that the Arbitrator’s decision was a “reasonable one” and I turn to the evidence before this Court to decide whether the ticket should be confirmed or cancelled. [ 87 ] In reaching thr conclusion that the Arbitrator's decision was unreasonable in the circumstances, I do not wish to be seen as unduly critical of the Arbitrator in this case.

Arbitrators are not judicial officers and are no doubt required to decide many appeals, in a

short amount of time and based on the scant information that can be provided in the space that Disputants are provided to establish their case on the Appeal and Dispute Forms and, in this case, given the lack of evidence as to the circumstances from the officer issuing the ticket. [ 88 ] It is not clear whether any arbitrators choose to exercise their discretion to seek more information as they are entitled to do under s. 7(4) of the Fare Collection Bylaw but I encourage them to do so where appropriate. [ 89 ] As in the other reviews heard by the Court on January 24, 2014, I find that I am in a better position than the Arbitrator to determine this matter as I had the benefit of hearing from both the Transit employee who issued the Infraction Notice and the Disputant and, further, had the benefit of the submissions of learned counsel as to the applicable law. [ 90 ] The proof of payment requirement found in Section 244(2) of the Act must be interpreted in the context of the rest of the Act and bearing in mind the purpose for which the legislation was enacted.

In Wadolowski, supra this Court found 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 Court further found that the scheme relies on transit employees to act as enforcers and to carry out random checks of riders to establish proof of payment. [ 91 ] As noted above, Section 244(2) of the Act requires that a person provide proof of payment of the fare required by the tariff “at the request of a transit employee”. A person who fails to provide such proof of payment commits an infraction under s. 247. It is not correct, in my view, to read a requirement of “immediacy” to the production of proof of payment.

In other words, the legislation does not stipulate that proof of payment must be produced for inspection “immediately at the request of a transit employee”. [ 92 ] Clearly 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. [ 93 ] While this list is not exhaustive, relevant factors for consideration when determining the reasonableness of the time afforded a person to produce proof of payment would include whether there was evidence that: - the person was impeded in producing proof of payment due to wearing heavy clothing, carrying a child or items, or assisting another person; - there existed a communication barrier that could reasonably be seen to indicate that the person did not understand the transit employee’s request; - the person was making reasonable efforts to locate the proof of payment on their person or in their belongings on request; and - the person’s health or general state of well-being was such that the person was hindered or was unable to comply with the request. [ 94 ] Based on the evidence in the record, as amplified by the evidence that I accepted from the hearing, I find that Mr.

Petrovic was not afforded a reasonable period of time to produce proof of payment when requested to do so by a transit employee. As a result, I find that he did not commit the alleged infraction of failing to produce of payment for inspection at the request of a transit employee within the meaning of s. 244(2) of the Act. [ 95 ] Accordingly, I order that the ticket is cancelled and Mr. Petrovic is relieved of his obligation to pay the fine under Fare Infraction Notice F003374.

B.L. Edwards Judicial Justice