Tony Van Bree Petitioner v. British Columbia (Superintendent of Motor Vehicles) and, 2015 BCSC 1224

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Van Bree v. British Columbia (Superintendent of Motor Vehicles), 2015 BCSC 1224 Date: 20150630 Docket: 15-2314 Registry: Victoria In the Matter Under the Judicial Review Procedure Act Between: Tony Van Bree Petitioner And British Columbia (Superintendent of Motor Vehicles) and Attorney General of British Columbia Respondents Before: The Honourable Mr. Justice B.D. MacKenzie Oral Reasons for Judgment (In Chambers) Counsel for Petitioner: M. Mulligan Counsel for Respondents: R. Mullett Place and Date of Trial/Hearing: Victoria, B.C.

June 30, 2015 Place and Date of Judgment: Victoria, B.C. June 30, 2015 [ 1 ] THE COURT: This is an application by Mr.

Van Bree to stay an administrative driving prohibition that was served on him on May 23rd, 2015, pursuant to the provincial government roadside prohibition regime. [ 2 ] This legislation has been the subject of much litigation since coming into force in 2010, firstly pursuant to the case of Sivia , which was heard in the trial court by Justice Sigurdson, in the Supreme Court, which was upheld by the Court of Appeal in March 2014, appeals and cross-appeals being dismissed. [ 3 ] Prior to that appeal in the Court of Appeal, in 2012 the Motor Vehicle Act was amended to address the constitutional deficiencies identified by Justice Sigurdson at the trial level in Sivia . [ 4 ] The constitutional validity of those amendments was then considered by Justice Macaulay in Bro v.

B.C. (Superintendent of Motor Vehicles) . On September the 8th, 2014, Justice Macaulay dismissed the constitutional challenge to the 2012 legislative regime. [ 5 ] However, the Court of Appeal decision surrounding the 2010 regime was appealed to the Supreme Court of Canada, and on January the 1st, 2015, according to the notice of application, leave was granted. That case before the Supreme Court of Canada is now termed Goodwin , who I am advised was one of the appellants along with Mr. Sivia, or Ms.

Sivia. [ 6 ] According to the notice of application, Chief Justice McLachlin stated the constitutional questions in Goodwin , as: 1. Are ss. 215.41 to 215.51 of the Motor Vehicle Act , R.S.B.C. ... ultra vires the province of British Columbia as being exclusively within the federal government’s criminal law power under s. 91(27) of the Constitution Act ... I am not going to quote. 2.

Did those sections infringe s. 8 of the Canadian Charter of Rights and Freedoms , and, if so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Charter ? [ 7 ] That summarizes it sufficiently for our purposes here today, in my view. [ 8 ] Moreover, the appeal in Goodwin was argued before the Supreme Court of Canada on May 19th, 2015. The court reserved judgment in Goodwin , and all parties are awaiting that decision.

[ 9 ] Because the Supreme Court of Canada decision in Goodwin will deal with the fundamental underpinnings of both the 2010 and 2012 regime, the applicant here, Mr. Van Bree, asks this court to stay the driving prohibition until the Supreme Court of Canada delivers its decision, a decision which in all likelihood, based on what I have heard and seen today, will likely determine whether or not Mr.

Van Bree's initial petition challenging the validity of the very same sections of the Motor Vehicle Act that the Supreme Court of Canada has reserved on in Goodwin will even proceed, or will be almost a fait accompli. [ 10 ] The petitioner submits that his application should be granted, given the comments of Justice Goepel in the Court of Appeal in Hemmerich v. B.C. Motor Vehicles , another driving prohibition case where Ms. Hemmerich and another appellant were seeking a stay of driving prohibitions pending the determination of an appeal to the Court of Appeal.

Combined, of course, with the general principles enunciated by the Supreme Court of Canada in R.J.R.-MacDonald having regard to stay applications. [ 11 ] The respondent today, in a very able argument, resists the application on the basis that both the Court of Appeal and Justice Macaulay have clearly and unequivocally dismissed the exact constitutional challenge that the present applicant has put before the court in his actual petition. [ 12 ] As a result, relying on several authorities, the respondent submits the first test in R.J.R.-MacDonald has not been met.

That is, there is no serious or indeed any question to be tried on the merits because there is no law that can assist Mr. Van Bree, given the decisions in Sivia and Bro . [ 13 ] In this regard, as Justice Macintosh said at the trial level in Hemmerich at paragraph 5: 5. In accordance with RJR , the Applicants here must first show that they have a serious question to be tried. That burden is also often expressed as an applicant needing to show a case that is more than frivolous.

However the burden is expressed, and I will call it a serious question to be tried, I do not find that the Applicants here can satisfy it. 6. The serious question the Applicants need to raise must be found in their challenges in this Court to the IRP legislation as amended. If they presented their petitions on their merits in this Court today, the hearing judge would be bound by the Court of Appeal in Sivia and by Macaulay J. in Bro . The guidance expressed in Re Hansard Spruce Mills . . . would apply.

In the result, the judge sitting on the petitions could not address the issues as if the reasoning in Sivia and Bro was not binding. 7. The result is that the Applicants cannot show a serious or indeed any question to be tried on the merits of their petitions. They have no question to be tried because there is no law that can assist them. 8. My conclusion that Sivia and Bro preclude the Applicants from showing a serious question to be tried is also supported in the reasoning found in this Court's decision in Kraynyk v.

British Columbia (Superintendent of Motor Vehicles) ... [ 14 ] However, what has complicated what, in my view, would otherwise be an open and shut case, given Justice Macintosh's comments in favour of the respondent, is the discussion embarked upon by Justice Goepel in Hemmerich where the learned justice was considering, as I have said, an application similar to the one before me today. At paragraph 16 Justice Goepel states: 16. Both sides agreed that the test for a stay is found in RJR-MacDonald ... v. Canada ...

The first stage of the test requires the appellants to show that there is a serious question to be tried. The second stage requires the appellants to show that they would suffer irreparable harm if the application is refused. The third stage requires the Court to assess the balance of convenience and which of the parties would suffer greater harm from the granting or refusal of the remedy depending on a decision on the merits. 17. As for the first stage of the test, the Court in RJR noted that the threshold is a low one.

The decision of a lower court judge on the merits of a Charter claim is a relevant but not necessarily conclusive indication that the issues raised in an appeal are serious: RJR at 337. If satisfied that the application is neither vexatious nor frivolous, the judge should proceed to consider the second and third tests, even if of the opinion that the applicant is unlikely to succeed: RJR at 337. 18. In this case, the only issue raised by the appellants is the constitutionality of the legislation. While Mr.

Justice Macauley has upheld the 2012 regime, it is unlikely that his reasons will be the last word in that regard. I cannot say that that constitutional challenge is frivolous. [ 15 ] Counsel today referred me to relevant provisions in R.J.R.-MacDonald, but I have already referred to them, as has Justice Goepel in his decision.

There is no need for me to repeat them. [ 16 ] Having regard to those comments, and the fact that Justice Goepel's decision and observations contained therein occurred after the decisions that the respondent has provided to me today, I am satisfied that, given the fundamental question with respect to the constitutionality of the legislation, which prompted the administrative driving prohibition that Mr.

Van Bree was served with, there is a serious question to be tried, and that clearly it is not frivolous or vexatious. [ 17 ] I appreciate fully that this is not a petition on the merits of the case but rather only the constitutional validity of the matter, but because the matter is squarely before the Supreme Court of Canada, I am satisfied, as I have just said, that there is a serious question to be tried. [ 18 ] Turning to the second part of the R.J.R. analysis, I am of the view it is unnecessary to go further than to quote Justice Goepel at paragraph 19 of Hemmerich , where he states: 19.

Turning to irreparable harm, I note the comments of Donald J.A. in Balderston v. British Columbia (Superintendent of Motor Vehicles) ... at para. 15 (Donald J.A. in Chambers) that irreparable harm exists in all cases of administrative driving prohibitions, because if a stay is not granted, the appellant will have served the prohibition prior to the hearing of the appeal thereby rendering the appeal nugatory.

[ 19 ] I also note what the Supreme Court of Canada said with respect to irreparable harm in R.J.R. where, at paragraph 21 of the case provided to me by Mr. Mulligan, the court states: “Irreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. [ 20 ] In these circumstances I am satisfied the second test in R.J.R. has been met. [ 21 ] I turn finally to the question of the balance of convenience.

I am cognizant that the comments of Justice Goepel in Hemmerich , where he concluded that, primarily with respect to Ms. Hemmerich, because she had only one day left in her prohibition, the balance of convenience did not militate in favour of a stay in her case. [ 22 ] Moreover, I have also considered his comments with respect to Mr. Whitby and the fact that, in Justice Goepel's opinion, his affidavit material failed to produce sufficient evidence that one could conclude he was prejudiced by the prohibition.

In that regard for both of those appellants Justice Goepel found the balance of convenience was tipped in favour of the respondent. [ 23 ] On that particular issue, as well, I am also cognizant of Justice Goepel's direction that the balance of convenience must be considered in light of the purpose of the legislation in question. [ 24 ] Here, of course, as he has pointed out at paragraph 21, the object of the legislation is to protect the public by removing from the road potentially dangerous drivers who have consumed alcohol.

I accept and agree wholeheartedly with that general observation. [ 25 ] On that particular point, however, I am satisfied in this particular case that the affidavit material provided by Mr. Van Bree does establish that he would be significantly prejudiced if the application was not granted. In this regard, it is appropriate to deal with this issue in the sense of asking whether the prejudice to Mr.

Van Bree, if the application was not granted, would outweigh the prejudice to the respondent if the application was granted. [ 26 ] In this regard, and having regard to the issue of the public interest, I am satisfied that because the application here is founded on the fact that the Supreme Court of Canada has reserved on this exact question with respect to the constitutional validity of the legislation in question, that any concern about the floodgates opening, and every person who wishes to appeal a decision contrary to their interest would be able to obtain a stay is, in my view, unwarranted, having regard to the particular circumstances surrounding this particular application. [ 27 ] So for all of those reasons, I am prepared to grant Mr.

Van Bree's application. There will be a stay of the driving prohibition until further order of the court, or perhaps as agreed to between the parties. [ 28 ] Mr. mullett : If I may, My Lord, the duration of the stay should be decided. [ 29 ] THE COURT: I was going to ask Mr.

Mulligan about that. [ 30 ] Mr. mulligan : Perhaps the way to phrase it would be until the decision from the Supreme Court of Canada, then some number of days for my friend and I to digest it and determine who's likely throwing in the towel. [ 31 ] THE COURT: One of the decisions, I think it may have been Bro , said 21 or 30 days after release of the decision, Mr. Mullett? [ 32 ] Mr. mullett : That's correct, that's what the stays in Bro were, were set up, until 30 days following the decision in Bro . [ 33 ] THE COURT: Okay, let us do that, then. Okay.

So we will delete further order of the court, or the consent of the parties, and we will make it 30 days after the delivery of the judgment by the Supreme Court of Canada. [ 34 ] Mr. mullett: The Supreme Court of Canada in Goodwin ? [ 35 ] THE COURT: Yes, unless there is something to the contrary between now and then. [ 36 ] All right, gentlemen? [ 37 ] Mr. mulligan: Thank you. [ 38 ] THE COURT: Mr. Mullett, thanks very much. Mr. Mulligan, before I say anything else, Mr. Mullett's got one final comment. [ 39 ] MR. MULLETT: No, that's fine, My Lord. [ 40 ] THE COURT: You are sure? [ 41 ] MR.

MULLETT: Well, you didn't say or until further order of the court, My Lord. [ 42 ] THE COURT: I did not, or I did? [ 43 ] MR. MULLETT: You did not. [ 44 ] THE COURT: Do you want me to? [ 45 ] MR. MULLETT: Well no, I don't want you to, because then the stay would end 30 days after the decision in Goodwin . [ 46 ] THE COURT: Right.

[ 47 ] MR. MULLETT: There would be no continuing authority in this court to do anything. [ 48 ] THE COURT: Okay, what do you want me to do, delete that? [ 49 ] MR. MULLETT: It should say -- no, it should say or further order of the court. [ 50 ] THE COURT: Or further order of the court? [ 51 ] MR. MULLETT: In fairness, that's the way these -- that's the way these orders are normally worded. [ 52 ] THE COURT: Sure. No problem, okay. [ 53 ] MR. MULLETT: Okay. [ 54 ] THE COURT: Thanks very much. Okay gentlemen. [ 55 ] MR. MULLIGAN: Thank you. [ 56 ] THE COURT: All right, thanks very much. [ 57 ] MR. MULLETT: Thank you, My Lord. “B.D. MacKenzie, J.” The Honourable Mr. Justice B.D. MacKenzie