Danylyuk v. South Coast British Columbia Transportation Authority, 2016 BCPC 185

Citation: Danylyuk v. South Coast British Columbia Transportation Authority 2016 BCPC 185 Date: 20160527 File No: 14-48110 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) INNA DANYLYUK CLAIMANT SOUTH COAST BRITISH COLUMBIA TRANSPORTATION AUTHORITY DEFENDANT REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE Z. MAKHDOOM Appearing for Claimant : I. Danylyuk, In Person Appearing for Defendants : T. Robbins Place of Hearing: Vancouver , B.C. Date of Hearing: July 16, 2014 Date of Judgment: May 27, 2016 [ 1 ] This case was heard on 16 July 2014, by this Court under s. 257 of the South Coast British Columbia Transportation Authority

[ 1 ] This case was heard on 16 July 2014, by this Court under s. 257 of the South Coast British Columbia Transportation Authority Act and Regulations of a referral by a disputant of an Arbitrator’s decision. BACKGROUND & FACTS: [ 2 ] On 7 th of November 2013 at 3:13 p.m., Fare Officer Stangeland of the South Coast British Columbia Transportation Authority (“Translink”) issued Ms.

Inna Danylyuk Fare Infraction Notice F064317 (“Ticket”) for “failure to produce” proof of payment while on Bus 7380 at or near 3700 block Imperial St., Burnaby in the province of British Columbia, contrary to s. 244(2) of the South Coast British Columbia Transportation Authority Act (the “ Act ”) with a ticketed amount of $173. Ms. Danylyuk was identified by way of a British Columbia Identification card (BCID) bearing number of [omitted for publication]. Her birthdate was noted as [omitted for publication]. [ 3 ] On 07 November 2013, Ms.

Danylyuk filed a Fare Infraction Dispute Form with the TransLink disputing liability by way of proffering a “due diligence defence”. She indicated that on the material day she was a full-time student at Langara College and possessed a valid U-Pass. She co-habited with her “partner”, Serghei Miscenco, who was a full-time student at the BCIT and holder of a valid U-Pass, on the material day she accidentally ended up carrying his U-Pass. [ 4 ] On 20 November 2013, Terry Robins, Supervisor Fare Infraction and Dispute Services, TransLink, sent a letter, titled “Fare Infraction Notice of Decision” to Ms. Danylyuk.

Therein Ms. Danylyuk was advised after a review by an unnamed Dispute Screening Representative “… this fare infraction ticket has been confirmed ” (emphasis in original). Terry Robins wrote: Although I can empathize with your situation, you weren’t able to produce the proper UPass that was valid to you. The infraction of failure to produce was issued correctly. It is the student’s responsibility to ensure they have the proper pass needed anytime you are travelling on the system or in the fare paid zone.

Per the South Coast British Columbia Transportation Authority Act (transit Tariff) Any (sic) passenger paying a fare other than an adult fare, presenting Proof of Payment for a fare other than an Adult Fare, or presenting a non-transferable Proof of Payment, must present evidence of eligibility for, or entitlement to, such fare or proof of Payment to a Transit Employee upon request. As per the conditions of use located on the reverse side of the UPASS

(1) This UPASS may only be used by the student to whom the pass was issued and who possess valid student ID. [ 5 ] No further explanation was afforded to Ms. Danylyuk as to the specifics in her case. [ 6 ] Pursuant to s. 253 of the Act , Ms. Danylyuk filed a Fare Infraction - Notice of Appeal on November 24, 2013. [ 7 ] Regarding the grounds of her appeal, Ms. Danylyuk set out the “ticket does not comply with section 249(1) of the Act ,” and that: I had no intention of using the UPASS that was not valid to me, as I am a full-time student of Langara College and possess a valid UPASS from the institution.

The UPASS I provided belongs to my partner who is a full-time student of BCIT and lives at the same address. The UPASSes have a similar appearance and it caused my mistake (all documents can be provided upon request) [ 8 ] On 12 March 2014, Arbitrator Terry M. Mullen advised Danylyuk that her appeal has been dismissed as the ticket has been confirmed. After considering s.244(2) of the Act , Arbitrator Mullen concluded: The fare officer said the Appellant was in a Fare Paid Zone as a student and failed to present her UPass when requested. She presented on (sic) which belonged to another person.

The Applicant/disputant did not dispute the fare officer’s statement but said she had inadvertently taken the UPass of her partner when she left home that morning. As part of her submission in the dispute process she provided a photocopy of her UPass that was valid at the time of the infraction. While I accept the Appellant’s evidence, the legislation is clear. It provides that the person’s UPass must be presented at the same time when requested by a fare officer to qualify as valid Proof of Payment.

The Applicant/disputant was unable to do so and, accordingly, I find that the infraction was committed and the ticket is confirmed. [ 9 ] On 04 April 2014, Ms. Danylyuk filed a “Referral for Review Affidavit” in the Provincial Court of British Columbia. She affirmed that: The switch of two UPasses from two different institutions (mine - from Langara College and my partner’s - from BCIT) only happened because they look identical. Which can lead to intentional misuse by someone of UPass of another person, on in my case unintentional misuse by accidental switch.

I believe Translink is partially in fault (for making them look the same) because I would not take the wrong pass if I saw a difference between two. THE LAW

[ 10 ] The relevant extracts statues are as following: South Coast British Columbia Transportation Authority Act [SBC 1998] c. 30. 244

(1) A person entering a fare paid zone or boarding a transit vehicle that is not a fare paid zone must (

a) pay the fare required by the 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 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. Fare collection bylaw 24 5

(1) The authority must, by bylaw, establish a scheme to enhance the authority's collection of fares .

(2) The authority must, in the fare collection bylaw, do the following: (

a) subject to subsection (5), establish the amount of the fines and the amount of the surcharges and other charges, if any, that must be paid by, and the discounts that may be available to, a person who commits an infraction; (

b) establish dispute and appeal procedures, consistent with this Act and the regulations, to be used to resolve disputes relating to liability under tickets issued under

section 248; (

c) establish a dispute period within which a dispute of a ticket issued under

section 248 must be brought under Division 3; (

d) establish an appeal period within which an appeal of a ticket issued under

section 248 must be brought under Division 4.

(3) The authority may, in the fare collection bylaw, do any one or more of the following: (

a) establish one or more periods for the purposes of subsection (4) relating to payment of a fine payable in relation to a ticket issued under

section 248; (

b) establish a rate of, and the manner of calculating, interest, if any, that may accrue on or in relation to all or any portion of unpaid ticketed amounts; (

c) authorize the use of any word or expression on a ticket issued under

section 248 to designate an infraction; (

d) exempt persons or classes of persons from one or more infractions or classes of infractions; (

e) set out any information that must be contained in a ticket issued under

section 248; (

f) establish procedures for the creation, completion and execution of tickets, including, without limitation, by electronic means.

(4) Subject to subsection (5), a provision of a fare collection bylaw under subsection (2) (

a) may specify (

a) a discount of the fine amount of a ticket issued under

section 248 if the discounted ticketed amount is paid within the period, if any, established under subsection (3) (

a) of this

section for the purposes of a discount under this paragraph, and (

b) one or more surcharges to be added to the fine amount of a ticket issued under

section 248 if the ticketed amount is paid in any one or more periods, if any, established under subsection (3) (

a) of this

section for the purposes of surcharges under this paragraph.

(5) The ticketed amount payable in relation to a ticket issued under

section 248 for an infraction must not exceed any maximum ticketed amount prescribed for that infraction.

(6) The minister (

a) may request that the authority amend the fare collection bylaw, and, in that request, provide directions as to how the fare collection bylaw should read or what it should or should not contain, or (

b) may request that the authority repeal one or more provisions of the fare collection bylaw.

(7) If the authority does not comply with a request made under subsection (6) within 90 days after the date of the request, the minister may, by regulation, add, amend or repeal a provision of the fare collection bylaw.

(8) In the event of a conflict between (

a) a provision added or amended under subsection (7), and

(

b) any other provision of the fare collection bylaw, the provision referred to in paragraph (

a) prevails to the extent of the conflict. 250 A person to whom a ticket has been issued under

section 248 is indebted to the authority for the unpaid portion of the ticketedamount unless (

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

b) the person appeals liability in accordance with Division 4 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. Review by court 257 If, after completing the dispute and appeal procedures referred to in this Part, a person to whom a ticket has been issued undersection 248 is not satisfied with the arbitrator's decision, the person may, within 30 days after receiving notice under section 256 (2) ofthe arbitrator's decision, refer the decision to the Provincial Court for review. Fare Infraction Review Referral Regulation, BC Reg 88/2013 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. ANALYSIS & RULING: [11] The question before this Court goes beyond the simple, rather mechanistic exercise of determining the reasonableness of theArbitrator’s decision. My learned colleague, Justice Edwards in Wadolowski v. South Coast BCTA [2014] 2014 BCPC 52 , 2014BCPC 0052 at para 70, held: “In considering the referral the Court will have recourse to the written record that was before the Arbitratorbut 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 novohearing in that the evidence has not been “heard” before and the Court is not purely “reviewing” what already occurred.” In sum, when ahearing is held, it is to engage in a thoughtful, judicial enquiry into all aspects of the case. [12] If determination of reasonableness alone were contemplated in the Act, there would not have been provisions for a hearingbefore an independent judicial officer, with witnesses testifying and being subject to cross examination.

When the state makes availableto citizens opportunities for redress, its purpose is not to render the legislative branch of the government as a conjurer engaged inperforming some sort of “cups and balls trick”. [13] In R. v. Sault Ste. Marie, [1978] 2 SCR 1299, (SCC), Mr. Justice Dickson wrote that, “Offences which arecriminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category.

They are notsubject to the presumption of full mens rea.” Hence the presumption that regulatory offences fall within the second category of strictliability. [14] The fault element for a strict liability is negligence. In order to avoid liability, the accused must prove lack of negligence on abalance of probabilities, Sault Ste Marie, ibid. [15] The Act, provides for an internal review of the ticket and when all those steps are exhausted, a person charged with an offencemay apply for review by the Court. The Court may conclude the review by referencing the written materials alone or order a hearing.

After her unsuccessful application for an in-house review, on 04 April 2014, Ms. Danylyuk filed a Referral for Review form with theProvincial Court. In her “Referral for Review Affidavit”, she deposed: “The switch of two UPasses from two different educationalinstitutions (mine – from Langara Collage (sic) and my partner’s –from BCIT) only happened because they look identical. Which canlead to intentional misuse by someone of UPass of another person, or in my case unintentional misuse by accidental switch.

I believeTranslink is partially in fault (for making them look the same) because I would not take the wrong pass if I saw a difference between thetwo.” [16] The referral was put before me on 12 May 2014, I reviewed Ms. Danylyuk’s review application and ordered a hearing, which was held on the 16th of July 2014. The hearing was attended by the applicant/disputant as well by Mr. Terrance Robbins, a Translinksupervisor. They both testified. This was the first time that Ms. Danylyuk had given viva voce evidence, was cross-examined, and hadmade oral submissions.

Previously, the entire process was through tendering of the written materials. I reserved my ruling. Subsequently, a series of health-related events, including a concussion, led up to my departure of the Court duties on a “Short-term Illness and Injury program”. Upon returning to my normal Court duties on 1st of February 2015, presumably this case had left mymemory, until I was reminded by a very competent Court Services personnel, just a few weeks ago.

Hence these rather tardy andoverdue reasons. [17] Briefly stated, s.244 of the Act, requires users of the Translink services must pay applicable fare and be prepared to produce theproof of payment when in a fare paid zone upon a demand made by a transit employee. A large number of instruments were created bythe Translink to prove payment of fare. These instruments included the U-Pass, which is an arrangement between a number of post-secondary institutions throughout the Lower Mainland and the Translink.

Whereby, the participating institutions add on a certainamount to the tuition fees of the students, who are then entitled to a U-Pass that affords them travel throughout the Tranlink system in theLower Mainland. A U-Pass is obtainable on a monthly basis from kiosks installed on the premises of the institutions. Until shortly prior

to the time Ms. Danylyuk got in trouble, a U-Pass was issued annually with a photograph of its bearer. Payment for a U-Pass is mandatory for all students attending the participating institutions. [ 18 ] The statute does not afford any meaningful guidance as to the scope of a review hearing by the Court, contemplated under

section 257 of the Act .

Section 12 of the FIRR Regs sets out the British Columbia Small Claims rules apply in the adjudication of a review. The mere fact that the Court may order a hearing after reviewing the documents tendered in chambers, prepares the ground for a de novo hearing; distinct and much broader in scope from the administrative review by the in-house arbitrators of the Translink. Wherein it is open to the adjudicating judicial officer to rule on the merits of both the Crown’s case and the proffered defence.

One of the two outcomes are contemplated within the rather mechanistic referral scheme: a ticket may either be confirmed or cancelled. [ 19 ] If a ticket is confirmed, the statute does not afford any meaningful guidance respecting an appropriate sentence. That is, contrary to the common law sentencing rules, there are no provisions for reducing or increasing the penalty amount or adopting any other options, such as suspended sentence, consistent with the sentencing principles. [ 20 ] The question inevitably arises what is the scope of a “hearing” when ordered by the Court?

Prior to seeking a judicial review, the disputant has two opportunities for redress. First instance by putting in a simple dispute and a request for review by a Dispute Screening Representative. Unsuccessful, Ms. Danylyuk applied for review by an “arbitrator”. She was unsuccessful in that bid as well. It’s is noteworthy that both Dispute Screening Representative and the Arbitrator are employees of the South Coast British Columbia Transportation Authority. [ 21 ] At the hearing, Mr. Terrance (Terry) Robbins, Supervisor of the Fare Infraction Administration Office, appeared for the Translink. His testimony was a

summary of his “Response to Referral Affidavit”, that he had signed on 2 May 2014. [ 22 ] Ms. Danylyuk adduced evidence that she is a full-time student at the Langara College. She shared her dwelling place with Mr. Serghei Miscenco, a full time student at the British Columbia Institute of Technology (BCIT), who is also her partner. Her College and Mr. Miscenco’s BCIT were participants in the Translink’s U-Pass programme. Under this programme, tuition fees for all full-time registered post-secondary students at the participating institutions include payment for U-Pass.

The U-Pass, however, must be obtained on a monthly basis. Translink was her main mode of transportation. Hence her diligence in obtaining her monthly U-Pass in a timely fashion. She affirmed paying for and owning the November 2013 U-Pass (admitted as an exhibit at the hearing). [ 23 ] U-Pass programme has been in place for several years. Many Lower Mainland post-secondary institutions participate in it, including the Langara College, where Ms. Danylyuk is a full-time student, and BCIT, where her partner, Mr. Miscenco, is a full-time student.

Participation in this programme is mandatory for all full-time students attending the participating schools. The cost of a U-Pass is included in the tuition fees that student must pay prior to the beginning of the academic term. Upon a demand by a translink employee or police, a bearer must produce a valid U-Pass along with a valid student ID card. Non-production of the either instrument, may result in a fare infraction charge pursuant to s.244 of the Act . [ 24 ] Upon a demand made by fare officer Stangeland, Ms. Danylyuk produced a U-Pass and her Langara College student ID.

The officer noticed that the U-Pass number was prefixed with letters, BIT, indicating to him that the pass was meant for someone attending the BCIT. Ms. Danylyuk brought to the Court, both hers and Mr. Miscenco’s U-Passes for the months of November and December 2013, which were admitted into evidence. Indeed numbers on both passes were prefixed with letters LC or BIT. She admitted producing BIT U-Pass but had no clue about the use of such prefixes. [ 25 ] Other than two or three letters preceding the numerals on a U-Pass there are no other identifiable features.

The colour of the pass, graphic elements as well as all writing is generic. On the reverse side are set out 5 “Conditions of Use” as follows: 1. This U-Pass may only be used by the student to whom the pass was issued and who possesses valid student identification. Student name must be filled in for Pass to be valid. 2. This Pass and student identification must remain in the possession of the user at all times while on board transit vehicles and in fare paid zones, and must both be produced for inspection on request of operator or other official of Translink, its subsidiaries or operating companies. 3.

Valid for travel, for the month shown, in and across all zones and at all times on South Coast British Columbia Transportation Authority (Translink) service region buses, SeaBus and SkyTrain and for discounted fares on West Coast Express. 4. Use of this Pass is subject to the terms and conditions of the South Coast British Columbia Transportation Authority (Translink) Transit Tariff. Contravention may result in confiscation of this Pass and/or prosecution. VOID IF LAMINATED OR ALTERED. 5. This Pass is non-transferable.

This Pass is the property of TransLink and must be returned to TransLink upon request. [ 26 ] I accept that the standard of review in matters such as the referral of reviews under s. 257 of the Act beyond the “reasonableness-test” for the reasons given in Wadolowski , supra. [ 27 ] Ms. Danylyuk asked this Court to consider her error in producing a wrong U-Pass of such nature having such antecedents that she should be deemed free of liability.

Applying the balance of probabilities standard while reviewing the written materials and the oral evidence adduced by the parties, I am of the respectful view that the arbitrator’s decision dated 12 March 2014, is unreasonable. Furthermore, Ms. Danylyuk has successfully made out the due diligence defence. Pursuant to

section 13 (

b) of the Fare Infraction Review Referral Regulation , Ms. Danylyuk must be relieved of the liability. Consequently, I am cancelling the ticket. [ 28 ] By way of a post-script, I think it is prudent to revisit the wisdom in Madame Justice Mary Southin’s obiter in R. v. Geraghty, [1990] CanLII 496 (BC CA). She wrote:

“…this exercise in constitutional Haddockry (see Sir Alan Herbert's Uncommon Law ) has occupied a trial judge, a County Court judge sitting in appeal and three judges of this Court. I do not know how many days of judicial time have been so consumed but I think it must be at least five. Additionally, it has required the services of two Crown counsel, court clerks and court reporters. Not only does the cost of all this (which must be at least $5,000.00) come from the public purse, i.e., from all the appellant's fellow citizens, but other litigants will have been delayed thereby.

Every person who takes a place he does not need in the queue of litigation and insists on services from the legal system harms his fellow citizen who is behind him in the queue.” [ 29 ] In the case of Ms. Danylyuk, why was it so difficult for the original reviewing officer or later, the arbitrator to discern and take notice of a simple fact that could have been easily ascertainable and verified by their employer: at the material time, Langara College was a bonafide participant in the “U-Pass” scheme of the Translink. As a student at Langara College, Danylyuk was required to pay a set tariff for a UPass.

She did produce a valid Langara College identification along with a U-Pass from BCIT. When queried she had a perfect explanation: both passes look the same, in a hurry to get to my school, inadvertently I switched mine with my boyfriend’s. Why would such explanation be unacceptable in light of the difficulties with the statute that my learned sister Justice Edwards identified at para 67 of Wadalowski, supra . 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. [ 30 ] The cost of dealing with this case is, channelling Madame Justice Southin, an exercise in “administrative haddockry”.

Mindful of the stark dichotomy of shrinking public resources and increasing public needs. Translink would have been better off demonstrating diligence in exercise of its fiduciary duties to the people of this province and save a student, likely already in debt, from incurring further indebtedness, or worst, waste her time dealing with appeals and further appeals. In all likelihood, public is offended when its resources are misused.

When such misuse involves hugely expensive, rather scarce judicial resources, there is a much greater likelihood of a much eroded public esteem for, and confidence in the administration of justice. ________________________ Zahid Makhdoom Judicial Justice