Albion Truck Repairs Ltd. v. Donald Walsh, 2018 BCSC 1010

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Albion Truck Repairs Ltd. v. British Columbia (Infrastructure and Transportation) 2018 BCSC 1010 Date: 20180620 Docket: S169995 Registry: Vancouver Between: Albion Truck Repairs Ltd. and Donald Walsh Petitioners And The Director of the Commercial Vehicle Safety & Enforcement, Ministry of Transportation and Infrastructure Respondent Before: The Honourable Mr. Justice Pearlman Reasons for Judgment Counsel for the Petitioners: S. Anderson S. Shir Counsel for the Respondents: V. Ryan Place and Date of Hearing: Vancouver, B.C.

January 26, 2018 Place and Date of Judgment: Vancouver, B.C. June 20, 2018 Table of Contents INTRODUCTION .. 3 statutory framework .. 4 BACKGROUND FACTS .. 7 ISSUES .. 13 ANALYSIS .. 14 Standard of Review .. 14 In determining that s. 25.12(1)(

g) of the MVAR authorized the seizure of the petitioners’ records, did the Deputy Director properly balance s. 8 Charter values against the public safety objectives of the MVAR and MVA ? . 17 Fettering of Discretion . 18 The Deputy Director’s consideration of the Petitioner’s Charter argument 19 Did the Deputy Director err in his

interpretation of s. 25.12(1)(f)(ii) of the MVAR ? . 22 Did the Deputy Director unreasonably uphold the Adjudicator’s decision after finding she had erred in holding the petitioner Walsh had breached s. 25.12(1)(f)(i)? . 25 Did the Deputy Director err in his

interpretation of s. 25.12(1)(a)(ii) of the MVAR ? . 26 Conclusion .. 27

INTRODUCTION [ 1 ] The petitioners, Albion Truck Repairs Ltd. (“Albion”) and Donald Walsh seek judicial review of the reconsideration decision of the Deputy Director of the Commercial Vehicle Safety and Enforcement Branch (“CVSE”) made on July 7, 2016. The Deputy Director upheld the decision of an Adjudicator imposing a six-month suspension of the petitioner Albion’s licence as a designated inspection facility (“DIF”) under the Motor Vehicle Act , R.S.B.C. 1996, c. 318 (“ MVA ”). [ 2 ] Albion and Mr.

Walsh contend the decision of the Deputy Director is incorrect, or alternatively, unreasonable, and apply under the Judicial Review Procedure Act , R.S.B.C. 1996, c. 241 for an order in the nature of certiorari setting aside the reconsideration decision. [ 3 ] The petitioner Albion conducts commercial vehicle inspections under the MVA and the Motor Vehicle Act Regulations , B.C. Reg. 26/58, as amended (“ MVAR ”).

Donald Walsh is the owner, director and operator of Albion. [ 4 ] The respondent Director of Commercial Vehicle Safety and Enforcement (the “Director”) is an official of the Ministry of Transportation and Infrastructure appointed pursuant to s. 116.1 of the MVA . Both the Adjudicator and the Deputy Director are delegates of the Director. [ 5 ] The core of this dispute concerns the Deputy Director’s

interpretation and application of s. 25.12(1) of the MVAR , which sets out the grounds upon which the Director may cancel or suspend the designation of an inspection facility. In addition, the petitioners dispute the Deputy Director’s determination that s. 25.12(1)(

g) permitted a CVSE peace officer to seize Albion’s records, and that the search and seizure were reasonable. They say the Deputy Director erred by failing to find the seizure breached Albion’s rights under s. 8 of the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“ Charter ”). [ 6 ] By their petition, Albion and Mr. Walsh also contended that the Adjudicator breached the requirements of procedural fairness by considering an undisclosed report from the CVSE Manager of Vehicle Inspections and Standards. When the petition came on for hearing, the petitioners abandoned that ground for judicial review. [ 7 ] Albion and Mr. Walsh originally sought judicial review of both the decision of the Adjudicator and the reconsideration decision.

As a preliminary matter, after hearing submissions from the parties, I held that only the reconsideration decision, as the final decision of the tribunal, was subject to judicial review: see Yellow Cab Co. Ltd. v. Passenger Transportation Board , 2014 BCCA 329 at para. 40 .

While this review is confined to the reconsideration decision, it will be necessary to make some reference to the findings and reasons of the Adjudicator. statutory framework [ 8 ] Before turning to the facts giving rise to this application, I will begin by setting out the relevant statutory framework. [ 9 ] CVSE administers British Columbia’s vehicle inspection program.

The purpose of that program is the improvement of vehicle and road safety in the Province. [ 10 ] Under s. 217(1) of the MVA , the Director may authorize persons to inspect vehicles and may designate inspection facilities. [ 11 ] By operation of the Vehicle Inspection Regulation , B.C. Reg. 256/2010, made pursuant to s. 216 of the MVA , authorized inspectors must conduct vehicle inspections that comply with the standards set out in the Vehicle Inspection Manual. [ 12 ]

Section 25.09(1) of the MVAR prohibits a person from issuing an inspection certificate for a vehicle unless he or she is an authorized person for that class of vehicle and the authorized person has inspected the vehicle at a designated inspection facility. [ 13 ] Under s. 118.95 of the MVA , if the Director “considers it desirable in order to ensure road safety”, the Director may suspend an inspection authorization or facility designation. [ 14 ]

Section 118.96 provides that the Director, on written notice, may cancel an inspection authorization or facility designation on the grounds set out in the regulations. [ 15 ] The grounds for cancelling a facility designation are set out in s. 25.12 of the MVAR , which provides: General duties of operators of facilities 25.12

(1) The operator of a designated inspection facility must (

a) display in a conspicuous place that is clearly visible to customers entering the designated inspection facility (

i) the valid document of designation issued by the director for that facility, and (ii) the certificates of qualification of authorized persons carrying out inspections at that facility, (

b) ensure that authorized persons are the only persons who inspect vehicles for the purposes of this Division, (

c) within 10 days from the date of an inspection report being completed, mail the first copy to the director,

(

d) keep proper records of each inspection carried out at the facility for a period of not less than 18 months after an inspection, (

e) maintain safe custody and control of unissued inspection certificates, report in writing to the office of the director any loss, theft, disfigurement or destruction of unissued inspection certificates and generally comply with reasonable directions of the director respecting acknowledgment or delivery of certificates, (

f) ensure that (

i) the facility is equipped with proper tools, appliances, devices, manuals and documents, as required by the standards, to enable operators within the facility to manage it efficiently and authorized persons to ensure that vehicles comply with the standards, (ii) each authorized person at the facility conducts his or her inspection in accordance with the standards and complies with

section 25.13, and (iii) the facility has available on the premises (

A) an up-to-date copy of the Inspection Standards (Safety and Repair) Regulation, and (

B) the most recent publicly available copy of Division 25 of the Motor Vehicle Act Regulations, (

g) at all times during business hours, on the request of a peace officer or person authorized in writing by the director, permit the peace officer or authorized person to enter the inspection facility for the purpose of examination of equipment necessary for inspection, records of inspection and unissued inspection certificates and to permit such persons to make copies of documents which are relevant to the functions performed under this Division, (

h) maintain a record of issued inspection certificates including (

i) the inspection certificate number, and (ii) the vehicle registration number or the Vehicle Identification Number (VIN) of the vehicle to which the inspection certificate was issued, and (

i) allow a peace officer or person designated in writing by the director to inspect the record of inspection certificates referred to in paragraph (h).

(2) A violation by an operator of a designated inspection facility of any provision of subsection (1) is grounds for cancellation or suspension of that designation of the facility by the director either entirely or for inspection of a class of vehicle.

(3) Upon cancellation or suspension of a designation, the operator must return to the director all unissued inspection certificates and other documents given or supplied to him or her by or on behalf of the director for the purposes of this Part. [ 16 ] Under s. 25.13(1), after every inspection, the authorized inspector must complete and sign an inspection report in the form and manner required by the Director.

If the authorized person is satisfied that the vehicle meets the standards, he or she must place an inspection certificate decal on the vehicle: s. 25.13(2). [ 17 ] By s. 118.97(1) of the MVA , a person served with a notice of cancellation has the right to apply to the Director to show cause why the cancellation should not be made. Under s. 118.97(2), if the show cause hearing results in the confirmation of a cancellation, a person has the right to apply to the Director for reconsideration of the show cause decision. [ 18 ]

Section 118.99 of the MVA provides for the conduct of the show cause hearing and reconsideration application: Show cause hearings and reconsiderations 118.99

(1) Subject to this Part and the regulations, the director may establish his or her own practices and procedures for show cause hearings or reconsiderations under this Part, and is not bound by the legal or technical rules of evidence or by decisions or determinations made under this Part.

(2) If a person or carrier seeks to show cause under

section 118.97 (1) or requests a reconsideration under

section 118.97 (2), the director may, if the director is satisfied that the matter can be disposed of on the basis of written submissions, decide the matter on that basis. [ 19 ] Here, the petitioners made written submissions on both the show cause hearing and the reconsideration. BACKGROUND FACTS [ 20 ] On August 12, 2010, the Director designated Albion as a DIF and authorized Mr. Walsh as the operator of Albion within the meaning of s. 25.12 of the MVAR . [ 21 ] Albion engaged the services of three persons who were authorized inspectors under s. 25.09 of the MVAR .

LeRoy Shirtliff worked at Albion from September 2011 until September 2015. During that time, he conducted the majority of the commercial vehicle safety inspections for Albion. [ 22 ] On or about September 5, 2015, Mr. Shirtliff stopped performing inspections for medical reasons. He briefly returned to work

on September 18, 2015, but only performed one inspection that day. Between September 19, 2015 and January 28, 2016, Mr. Shirtliff was on sick leave, and performed no inspections for Albion. [ 23 ] While Mr. Shirtliff was on sick leave, two other authorized inspectors, Mr. Maderia and Mr. Koch, conducted all of the commercial vehicle inspections for Albion’s clients. [ 24 ] On November 19, 2015, Officer Engel, a CVSE vehicle inspector and peace officer, conducted a roadside inspection of a commercial vehicle that Mr. Shirtliff had inspected at Albion on September 1, 2015.

Officer Engel found significant discrepancies between his measurements of the vehicle’s brake components and the measurements recorded by Mr. Shirtliff in the Albion inspection report. [ 25 ] As a result, on November 27, 2015, Officer Engel attended at Albion to conduct a facility audit. [ 26 ] Officer Engel’s audit revealed various deficiencies, including: i.

Two decals missing from the facility’s inspection decal log, neither of which had been reported as missing to CVSE; ii. evidence that vehicles with defects had received certificates of approval at Albion; iii. two inspections documented as having been conducted by Mr.

Shirtliff at Albion at a time when he was on sick leave and absent from the facility; and iv. failure to display the facility’s authorized inspectors’ certificates. [ 27 ] Officer Engel determined that a more comprehensive audit was required and seized all of Albion’s vehicle inspection reports for the period January 1, 2015 through November 29, 2015. He seized and removed the inspection reports for copying and further examination. CVSE retained the inspection reports for approximately two months. Mr.

Walsh has deposed that some, but not all of the reports were returned to Albion on January 12, 2016. [ 28 ] On December 2, 2015, CVSE inspectors attended at Albion to interview Mr. Walsh and the two authorized inspectors then working at the facility, Mr. Madeira and Mr. Koch. [ 29 ] As a result of those interviews, CVSE determined that vehicles had left Albion with violations and that certificate of approval decals had not been applied in compliance with the regulatory standards. [ 30 ] Between December 3 and December 7, 2015 CVSE conducted roadside inspections on seven vehicles recently inspected by Mr.

Madeira or Mr. Koch at Albion. CVSE determined that five of the seven vehicles were unsafe for highway operation, while the remaining two had multiple safety violations. [ 31 ] On December 7, 2015, CVSE served Mr. Walsh with a notice of suspension of Albion’s vehicle inspection designation. [ 32 ] On January 28, 2016, the Director served Mr. Walsh with notice of cancellation, advising that Albion’s facility designation would be cancelled within 30 days unless the petitioners applied for a show cause hearing to demonstrate why the cancellation should not take effect. The cancellation notice alleged that Mr.

Walsh, as the operator of Albion, had committed multiple violations of MVAR s. 25.12(f)(ii) by failing to ensure that authorized persons conducted inspections at the DIF according to the standards and in compliance with the requirements of MVAR s. 25.13. [ 33 ] On February 2, 2016, the petitioners gave notice to CVSE of their intention to show cause. [ 34 ] The Adjudicator conducted the show cause hearing as a delegate of the Director. [ 35 ] By her decision of April 28, 2016, the Adjudicator made the following findings: i.

The CVSE roadside inspections demonstrated that some vehicles inspected at Albion had left the facility with defects including worn brake systems and worn tires; ii. It was the responsibility of Mr. Walsh, as the operator, to ensure that all inspections were performed in accordance with the standards; iii. Mr. Walsh had violated s. 25.12(1)(f)(ii) of the MVAR ; iv. On October 1, 2015, Mr. Walsh completed inspection reports ET98654 and ET98655 and affixed certificates of approval for inspections completed by Mr. Shirtliff on September 1, 2015. By doing so, Mr.

Walsh, who was not an authorized inspector, violated s. 25.13 of the MVAR ; v. Albion had failed to report two missing inspection decals in violation of s. 25.12(1)(

e) of the MVAR ; vi. Mr. Walsh had failed to display the certificates of qualification of Albion’s authorized inspectors as required by s. 25.12(1)(a)(ii) of the MVAR ; and vii. Mr. Walsh had failed to properly equip the DIF with the proper tools as required by s. 25.12(1)(f)(

i) of the MVAR by failing to provide a Chamber Mate device for measuring air brake chambers. [ 36 ] The Adjudicator, although satisfied that multiple violations had occurred, rescinded the cancellation of Albion’s license and imposed a six-month suspension.

[ 37 ] The Adjudicator also found that the violations of

section 25.12 warranted the imposition of the following conditions: i. that Mr. Walsh successfully complete and pass the DIF Operator course; ii. that Albion undergo a successful audit by CVSE demonstrating that it met all requirements of a DIF; iii. that Mr.

Walsh submit a business plan to CVSE addressing the deficiencies found in the show cause hearing; and iv. that the suspension of Albion’s DIF designation remain in effect for six months, from December 7, 2015 to June 7, 2016. [ 38 ] On May 11, 2016, the petitioners delivered their application pursuant to s. 118.97(2) of the MVA for reconsideration of the Adjudicator’s decision. [ 39 ] By June 8, 2016, the petitioners had satisfied all of the Adjudicator’s conditions. [ 40 ] On June 20, 2016, CVSE reissued Albion’s DIF licence. [ 41 ] On July 7, 2016, the Deputy Director issued his reconsideration decision, upholding the Adjudicator’s decision. [ 42 ] The findings of the Deputy Director relevant to the issues pursued by the petitioners on this judicial review application included the following: i.

Officer Engel’s seizure of Albion’s inspection records was reasonable and resulted in no unfairness to the petitioners. The Deputy Director reasoned: 20. Officer Engel, a peace officer for the purposes of the MVA , wished to perform a comprehensive audit of almost one year’s worth of the Applicant’s records. In order to do so, he required copies of those records and I find that it would be unreasonable to expect so many documents to be copied using the Applicant’s photocopier or the photocopier in Officer Engel’s vehicle.

It would be more reasonable for Officer Engel to be able to take the documents back to his office and have an administrative assistant perform the copying. In other words, I think the most reasonable

interpretation of s. 25.12(1)(

g) is that it authorizes the peace officer to temporarily take the regulated records away from the Facility for the purpose of making copies (without the need for a warrant). In other words, I find that this seizure was authorized by law. ... 22. In this case, I find that both the search and seizure were carried out in a reasonable manner.

Specifically, Officer Engel was permitted entry to the Facility by the owner of the Facility, he searched only the commercial premises, he took only the business records which are required to be kept and inspected under the regulatory regime and he took them for the purpose of making copies. I could find no evidence of any objection to that seizure by the applicant, and the original records were ultimately returned to the applicant. While the delay in returning the records to the applicant was unfortunate, I do not find that it resulted in a Charter breach. ii.

Even if the seizure of records breached s. 8 of the Charter , the Deputy Director did not think it would be unfair to consider those records where the objective of the MVA and the vehicle inspection program was to ensure road safety; iii. In any event, Officer Engel had discovered Mr. Walsh’s unauthorized completion of inspection reports ET98864 and ET98655 before the seizure of the petitioners’ records.

The Deputy Director concluded that even if he disregarded all of the seized records, the applicant’s regulatory breaches relating to those two inspection reports were sufficient to justify the suspension and conditions imposed by the Adjudicator; iv. There was evidence before the Adjudicator to support her findings of fact that some vehicles left Albion with defects present, and that Mr. Walsh had breached his obligation to ensure that inspections were conducted according to the required standards; v.

The Adjudicator did not take into account an irrelevant consideration, or fetter her discretion by considering the evidence that Mr. Walsh had affixed two inspection decals to vehicles despite the fact he was not an authorized inspector. As the Deputy Director explained at para. 43: In my view, the Adjudicator’s finding was both reasonable and correct.

A breach of s. 25.12(1)(f)(ii) (which incorporates s. 25.13) is a ground for suspension or cancellation and those two sections, when read together, require a Facility operator to ensure that the Authorized Inspector who passes the vehicle is the one who applies the decal to that vehicle. Clearly, the applicant personally breached this duty as he has provided sworn evidence that he applied decals to vehicles ( i.e. he did not ensure that the Authorized Inspector who passed the vehicle applied the decals).

Therefore, I find that the breach of s. 25.09 by the applicant himself would also be a breach of s. 25.12 and is grounds for suspension or cancellation. vi. The failure of Mr. Walsh to equip Albion with a Chamber Mate device until September 2015 did not violate s. 25.12(1)(f)(

i) of the MVAR ; and vii. the Adjudicator’s

interpretation of s. 25.12(1)(a)(ii) as requiring the operator to display the certificates of qualification of authorized inspectors “at all times that the DIF is designated” was both reasonable and correct. Mr. Walsh violated s. 25.12(1)(a)(ii) by failing to display the authorized inspectors’ certificates when Officer Engel conducted his audit of November 27, 2015. [ 43 ] Following the Deputy Director’s reconsideration decision, Albion and Mr. Walsh brought their petition for judicial review. ISSUES

[ 44 ] The following issues arise for determination: i. What is the standard of review? ii. In determining that s. 25.12(1)(

g) of the MVAR authorized a peace officer to seize the petitioners’ records, did the Deputy Director properly balance s. 8 Charter values against the public safety objectives of the MVAR and MVA ? iii. Did the Deputy Director err in his

interpretation of s. 25.12(1)(f)(ii) of the MVAR ? iv. Did the Deputy Director unreasonably uphold the Adjudicator’s decision after finding she had erred in holding the petitioner Walsh had breached s. 25.12(1)(f)(i)? v. Did the Deputy Director err in his

interpretation of s. 25.12(1)(a)(ii) of the MVAR ? vi. What remedy, if any, should the Court grant? ANALYSIS Standard of Review [ 45 ] Decisions of the Director or his delegates are not subject to the statutory standards of judicial review set out in ss. 58 and 59 of the Administrative Tribunals Act , S.B.C. 2004, c. 45. [ 46 ] On issues of procedural fairness and natural justice, including the fettering of discretion, where the court owes no element of deference to the administrative decision maker, the standard of review is correctness: Halfway River First Nation v.

British Columbia (Ministry of Forests) , 1999 BCCA 470 at para. 58 ; Minhas v. British Columbia (Superintendent of Motor Vehicles) , 2017 BCCA 304 at para. 22 . [ 47 ] For review of the substance or merits of the Deputy Director’s decision, I must determine whether the standard is reasonableness or correctness, based on the common law principles stated in Dunsmuir v. New Brunswick , 2008 SCC 9 . The first step is to ascertain whether the case law already establishes the degree of deference to be afforded to reconsideration decisions of the Director concerning the cancellation or suspension of a DIF’s designation.

If not, it will be necessary to conduct a contextual analysis of the standard of review taking in account the following factors: i. the presence or absence of a privative clause; ii. the purpose of the tribunal as determined by

interpretation of the enabling legislation; iii. the nature of the question at issue; and iv. the relative expertise of the tribunal. See Dunsmuir at paras. 62-64 . [ 48 ] In CK Auto Services Ltd. v. British Columbia (Attorney General) , 2014 BCSC 2359 , Justice Williams held that the appropriate standard of review of reconsideration decisions of the Director is reasonableness.

There, the petitioners did not contest the standard of review: [22] The respondent submits, and I do not understand the petitioners to contend otherwise, that the decision at issue can be fairly characterized as broadly discretionary, fact-based, and requiring the application of a specialized subject-matter expertise not shared by the Court. Accordingly, the applicable standard of review is that of reasonableness. [ 49 ] Here, the petitioners contend the standard of review is correctness.

They submit that the absence of a privative clause indicates that the legislature did not intend that reconsideration decisions of the Director would only be reviewable on the deferential standard of reasonableness.

Further, the petitioners say that neither the Director nor his delegates possess any particular expertise relative to that of the Court in adjudicating issues related to the suspension or cancellation of a licence. [ 50 ] Although his decisions are not protected by a privative clause, the Director administers a statutory scheme for the promotion of road safety through the inspection of commercial vehicles and the regulatory oversight of DIFs and their operators. In order to determine whether Mr.

Walsh had complied with his obligations as an operator of a DIF, the Deputy Director interpreted and applied the provisions of ss. 25.12 and 25.13 of the MVAR in relation to the facts of this case.

I agree with Justice Williams that the Director (or his delegate), in making reconsideration decisions concerning the suspension or cancellation of a facility’s designation, applies specialized expertise concerning the safety and inspection of commercial vehicles. [ 51 ] Where, as here, the Director or his delegate interprets his home statute and regulations, the presumptive standard of review is reasonableness: Dunsmuir at para. 54 ; Alberta (Information and Privacy Commission) v. Alberta Teachers’ Association , 2011 SCC 61 at para. 30 ; and Edmonton (City) v.

Edmonton East (Capilano) Shopping Centres Ltd. , 2016 SCC 47 . [ 52 ] The Deputy Director’s reconsideration decision does not fall into any of the categories of question to which the correctness standard continues to apply. The impugned decision raises no question of law of central importance to the legal system as a whole. The Deputy Director did not determine the constitutionality of a statute or regulation. Rather, he applied Charter values in relation to a particular set of facts. The standard of review is reasonableness where the court must determine whether an administrative decision-

maker has exercised statutory discretion in accordance with Charter values: Dor é v. Barreau du Qu é bec , 2012 SCC 12 at paras. 36 , 43, 57 and 58; Law Society of British Columbia v.

Trinity Western University , 2018 SCC 32 at paras. 58 , 79 and 80. [ 53 ] Further, the reconsideration decision raises no true question of jurisdiction. [ 54 ] I conclude that the standard of review of the reconsideration decision is reasonableness. [ 55 ] As Bastarache and LeBel JJ., writing for the majority in Dunsmuir explained: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.

Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 56 ] On a review for reasonableness, the court does not re-weigh the evidence adduced before the statutory decision-maker.

A decision will be reasonable where there is some evidence upon which the finding could reasonably be made, and where the decision falls within the range of possible outcomes that are defensible in respect of the facts and the law: CK Auto Services Ltd. at para. 24 . [ 57 ] On the substantive grounds for review, I must determine whether the Deputy Director’s decision meets the standard of reasonableness. In determining that s. 25.12(1)(

g) of the MVAR authorized the seizure of the petitioners’ records, did the Deputy Director properly balance s. 8 Charter values against the public safety objectives of the MVAR and MVA ? [ 58 ] By their petition, Albion and Mr. Walsh raise both procedural and substantive grounds for review of the Deputy Director’s decision regarding the search and seizure of Albion’s records. First, the petitioners say the Deputy Director erred “in finding that the Adjudicator did not fetter her discretion by failing to determine whether Engel breached s. 8 of the Charter ”.

As previously discussed, for fettering of discretion, the standard of review is correctness. [ 59 ] On the merits, the petitioners contend the Deputy Director failed to consider relevant factors and took into account irrelevant considerations in making his determination regarding their s. 8 Charter rights. [ 60 ] At paras. 55 and 56 of the petition, Albion and Walsh assert: 55. The Petitioner submits that the Deputy Director failed to consider relevant factors when making a determination in relation to the Charter breach argument, including: (

a) that the Petitioner Walsh had a reasonable expectation of privacy, in light of his ability to control and regulate access to the property; (

b) that, although

section 25.12(1 )(

g) of the MVAR permitted a peace officer to search and copy a DIF’s records, it did not authorize him to seize records without a warrant; (

c) by failing to consider that the seizure of the records constituted a breach of the Charter . 56. The Petitioner further asserts that the Deputy Director took into consider irrelevant factors in making his determination, including the following: (

a) that the Petitioner Walsh did not object to the seizure of documents at the time they were seized; (

b) that the seized documents were ultimately returned to the Petitioners (notably, not all of the Petitioners’ Records were returned to them by the CVSE); and (

c) that the CVSE’s delay in returning the seized records to the Petitioners did affect the reliability of the records seized (again, notably, the Petitioners contend that not all of their records were returned); (

d) that two months’ delay was not egregious because the government was short-staffed due to the holiday seasons; and (

e) that the Petitioners did not request the return of the records prior to the time they were returned (which misses the Petitioners’ contention that the statutory grant of power did not permit the CVSE to seize the Petitioners’ records without a judicially authorized order). Fettering of Discretion [ 61 ] The Adjudicator determined that in light of her decision to rescind the cancellation, it was unnecessary for her to consider the petitioner’s submissions concerning the alleged Charter violation. [ 62 ] At para. 14 of his decision, the Deputy Director stated:

I agree with the adjudicator that it was not necessary for her to consider the Charter issue because the only remedy requested by theApplicant was for the cancellation to be set aside, or, in the alternative, for a lesser penalty to be imposed and that is precisely what theadjudicator did (i.e. she rescinded the cancellation and instead imposed a suspension on conditions). In other words, the only remedywhich was requested was granted. [63] In Trinity Western University v.

Law Society of British Columbia, 2015 BCSC 2326, rev’d on other grounds 2018 SCC 32,Chief Justice Hinkson summarized the law relating to the fettering of discretion at para. 97: 97 Fettering of discretion occurs when, rather than exercising its discretion to decide the individual matter before it, an administrativebody binds itself to policy or to the views of others: Hospital Employees Union, Local 180 v. Peace Arch District Hospital (1989), (BC CA), 35 B.C.L.R. (2d) 64 (C.A.).

Although an administrative decision-maker may properly be influenced by policyconsiderations and other factors, he or she must put his or her mind to the specific circumstances of the case and not focus blindly on aparticular policy to the exclusion of other relevant factors: Halfway River First Nation v. British Columbia (Ministry of Forests) (1999),1999 BCCA 470 , 129 B.C.A.C. 32 at para. 62 [Halfway River]. [64] Here, the Adjudicator exercised her discretion to decide the dispute on grounds that did not require her consideration of theconstitutional issue raised by the petitioners.

Rather than focusing blindly on a particular policy, to the exclusion of other relevant factorson the show cause hearing, the Adjudicator considered the evidence before her relating to the petitioner’s alleged violations of s. 25.12 ofthe MVAR, rescinded the cancellation of Albion’s designation and substituted a suspension with conditions. [65] In my view, the principle of fettering of discretion has no application to the facts of this case.

It follows that the Deputy Directormade no error in failing to find the Adjudicator had fettered her discretion by declining to consider the petitioner’s submissions on s. 8 ofthe Charter.

The Deputy Director’s consideration of the Petitioner’s Charter argument [66] In any event, on the reconsideration hearing the Deputy Director considered the petitioners’ submissions regarding s. 8 of theCharter. [67] As an administrative decision-maker exercising statutory discretion, the Deputy Director was required to take into accountCharter values, and their application to the particular set of facts before him: Doré at para. 36. This required the Deputy Director toexercise his statutory discretion by balancing Charter values with the public safety statutory objectives of the MVA and MVAR.

TheDeputy Director was required to engage in a proportionality exercise, balancing the severity of interference with the petitioner’s s. 8Charter rights with the statutory objective of public safety: Doré at paras. 55, 56.

On judicial review, an impugned decision will befound to be reasonable if, in exercising statutory discretion, the decision-maker properly balances the relevant Charter value with thestatutory objectives: Doré at para. 58. [68] Here, the Deputy Director characterized the balancing of the petitioners’ s. 8 right to security from unreasonable search orseizure with the statutory objective of public safety as a “fairness issue”.

He engaged in the exercise of weighing “whether it would beunfair to consider the records in light of the public safety objective of the MVA and of the Vehicle Inspection Program in particular”. [69] The Deputy Director considered the petitioner’s submission that Officer Engel breached s. 8 of the Charter by removingAlbion’s records from the facility for copying without statutory authority or a warrant. [70] For ease of reference, I reproduce s. 25.12(1)(

g) of the MVAR, which provides that the operator of a DIF must: (

g) at all times during business hours, on the request of a peace officer or person authorized in writing by the director, permit the peaceofficer or authorized person to enter the inspection facility for the purpose of examination of equipment necessary for inspection, recordsof inspection and unissued inspection certificates and to permit such persons to make copies of documents which are relevant to thefunctions performed under this Division, . . . [71] On its face, s. 25.12(1)(

g) permits a peace officer, during business hours, to enter an inspection facility in order to examine andcopy inspection records and other documents relevant to the performance of the officer’s functions.

Section 25.12(1)(

g) confers noexpress power for the warrantless seizure and removal of records. [72] The Deputy Director found that Officer Engel wished to perform a comprehensive audit of almost a year’s worth of thepetitioner’s records, and required copies of those records in order to do so. He reasoned that it would be unreasonable to expect so manydocuments to be copied using either the petitioner’s photocopier or the photocopier in Officer Engel’s vehicle. The Deputy Directorconcluded that the most reasonable

interpretation of s. 25.12(1)(

g) was that it authorized a peace officer to temporarily remove therecords for the purposes copying without a warrant. [73] The Deputy Director also found that Officer Engel conducted the search and seizure reasonably. He observed the search wasconfined to commercial premises and that Officer Engel seized only business records which the petitioners were obliged to keep andproduce for inspection under the statutory scheme. In making those findings, the Deputy Director was alive to the petitioners’ diminishedprivacy interest in the records.

The Deputy Director also found that Officer Engel took the records for the purpose of making copies andultimately returned them to the applicant. He did not regard the two month delay over the winter holiday season as egregious. In thatcontext, he noted the petitioners had not requested the earlier return of the documents. In these circumstances, the Deputy Directorconcluded that the seizure did not constitute a Charter breach. [74] He then went on to consider whether, if he was wrong, and Officer Engel’s seizure of the records breached the petitioners’Charter rights, it would be unfair to consider the records.

The Deputy Director determined that it would not be unfair to consider theseized documents, bearing in mind the road safety objective of the MVA and Vehicle Inspection Program, the civil, rather than criminalnature of the proceedings and that delay in returning the records had no effect on their reliability.

[ 75 ] In determining whether he should consider the seized records in the event Officer Engel had violated the petitioners’ s. 8 rights, the Deputy Director balanced the protected Charter value with the objectives of the statutory scheme.

It was open to the Deputy Director to conclude, as he did, that the civil, rather than criminal, nature of the proceeding shifted the balance somewhat in favour of the objective of road safety. [ 76 ] At para. 27 of his decision, the Deputy Director concluded that even if he disregarded all of the seized records, there was sufficient evidence to justify the suspension and conditions imposed by the Adjudicator: Finally, even if I am mistaken about all of the above, I note that Office Engel discovered and noted Inspection Reports ET98654 and ET98655 (which reveal the most serious of the Applicant’s regulatory breaches) prior to the seizure, so even if I were to disregard all of the seized records, I still think that there would have been sufficient evidence to justify the suspension and conditions. [ 77 ] During his attendance at Albion on November 27, 2015, and before he seized the petitioner’s records, Officer Engel had discovered that Mr.

Walsh, without authorization, had completed the two inspection reports regarding inspections originally performed by Mr. Shirtliff on September 1, 2015. [ 78 ] In my view, it was open to the Deputy Director to conclude that the public safety objectives weighed in favour of his consideration of the seized records. Further, the Deputy Director reasonably determined that even if he excluded the seized records, the evidence relating to inspection reports ET98654 and ET98655 was sufficient to justify the suspension and conditions imposed by the Adjudicator.

I conclude that in exercising his statutory discretion, the Deputy Director engaged in a reasonable and proportionate balancing of the petitioner’s right to be secure against unreasonable search or seizure and the public safety objectives of the MVA and MVAR . Did the Deputy Director err in his

interpretation of s. 25.12(1)(f)(ii) of the MVAR ? [ 79 ]

Section 25.12(1)(f)(ii) provides that the operator of a DIF must ensure that “each authorized person at the facility conducts his or her inspection in accordance with the standards and complies with

section 25.13”. [ 80 ] This provision forms part of a regulatory scheme that also imposes obligations on the operator to ensure that: • the facility is equipped with proper tools, appliances, devices, manuals and documents, as required by the standards: s. 25.12(1)(f) (i); and • the facility has available on the premises an up-to-date copy of the Inspection Standards (Safety and Repair) Regulation and the most recent publicly available copy of Division 25 of the MVAR : s. 25.12(1)(f)(iii). [ 81 ] Further, s. 25.12(1)(

b) requires the operator to ensure that authorized persons are the only persons who inspect vehicles. Under s. 25.13, if an authorized person is satisfied that the vehicle meets the standards, he or she must place on the vehicle an inspection certificate of approval. [ 82 ] The Deputy Director concluded that it was reasonable for the Adjudicator to find that Mr. Walsh had failed to meet his obligations under s. 25.12(1)(f)(ii) by allowing vehicles to leave the DIF with defects present. [ 83 ] At para. 32 of his decision, the Deputy Director stated: . . .

The Adjudicator relied on evidence (including photographs) provided by CVSE inspectors/peace officers, in making findings of fact that, in light of the number and nature of the defects as well as the short time frames and amount of mileage driven between the Facility inspections and the roadside inspections, it is more likely than not that some vehicles did leave the Facility with defects present.

The Adjudicator also accepted some of the Applicant’s evidence that some of the defects turned out to be unfounded. [ 84 ] On his review of the evidence, the Deputy Director concluded that the Adjudicator was entitled to make those findings of fact and that the findings were reasonable. [ 85 ] The petitioners argue that Mr.

Walsh’s obligations as an operator under s. 25.12(1)(f)(ii) were limited to providing the authorized inspectors with the most up-to-date copies of the Inspection Standards (Safety and Repair) Regulation (the Vehicle Inspection Manual), Division 25 of the MVAR and pre-inspection worksheets. [ 86 ] The Deputy Director took a more expansive view of the operator’s obligations under s. 25.12(1)(f)(ii) of the MVAR .

At paras. 37 and 38 of his decision, the Deputy Director held: However, the obligation to provide Authorized Inspectors with the VIM, Div. 25 and other “manuals and documents, as required by the standards” is found in s. 25.12(1)(f)(

i) and (iii). Consequently, I find that the most reasonable

interpretation of s. 25.12(1)(f)(ii) is that it must mean doing something more than that. Based on the number and nature of defects found at the roadside on these vehicles in a relatively short period of time and distance after inspection at the Facility, I think it was reasonable to find that, on the balance of probabilities, the Applicant was not meeting its obligations under s. 25.12(1)(f)(ii). [ 87 ] The petitioners contend that the Deputy Director’s

interpretation is unreasonable. As the petitioners note, the MVAR does not require an operator of a DIF to hold qualifications as a heavy-duty mechanic or a licensed mechanic. Under the regulatory scheme, only authorized inspectors must hold those qualifications. The petitioners submit the MVAR does not contemplate that an unqualified DIF operator must monitor or “second guess” the work of licensed trade persons whom the Ministry has certified as authorized inspectors. Regarding the obligation of the operator of a DIF to ensure that each authorized inspector complies with s. 25.13 of the MVAR , the

petitioners point out that s. 25.13 does not expressly require the operator to verify an authorized inspector’s vehicle inspections. The petitioners say that by failing to take these considerations into account, the Deputy Director unreasonably interpreted s. 25.12(1)(f)(ii) of the MVAR . [ 88 ] I disagree.

Section 25.12(1)(f)(ii) imposes upon operators an obligation to “ensure”, or make certain, that authorized persons conduct inspections in accordance with the standards and comply with s. 25.13. As the Deputy Director noted, s. 25.12(1)(f)(

i) and (iii) require the operator to provide authorized inspectors with the Vehicle Inspection Manual, and the other manuals and documents required by the standards. The Deputy Director was well aware that the purpose of the regulation is public safety. His

interpretation that compliance with s. 25.12(1)(f)(ii) requires an operator to do something more than provide authorized inspectors with up-to-date copies of the manuals and regulations described in subparagraphs (f)(

i) and (iii) falls within the range of acceptable and defensible outcomes.

Section 25.12 imposes a broad range of duties on the operators of designated facilities as part of a regulatory scheme for the promotion of road safety through an effective system of vehicle safety inspections.

It was open to the Deputy Director to conclude that s. 25.12(1)(f) (ii) requires an operator to oversee his authorized inspectors, rather than simply provide them with current copies of certain prescribed documents . [ 89 ] Supervisory oversight, aimed at reducing the risk of vehicles leaving the inspection facility with defects compromising their safety, does not require the operator to re-inspect each vehicle, or to hold the qualifications of an authorized inspector.

Further, the obligation of the operator to ensure that an inspector complies with s. 25.13 would include ensuring that the inspector has completed the inspection report, as required by s. 25.13(1)(a). Such oversight would also include ensuring that the inspector places a certificate of approval decal on the vehicle if the inspector is satisfied that the vehicle meets the standards, as required by s. 25.13(2). Here, Mr. Walsh failed to ensure compliance with those provisions of s. 25.13. [ 90 ] In short, I am satisfied with the Deputy Director’s

interpretation of s. 25.12(1)(f)(ii) of the MVAR meets the standard of reasonableness. Did the Deputy Director unreasonably uphold the Adjudicator’s decision after finding she had erred in holding the petitioner Walsh had breached s. 25.12(1)(f)(i)? [ 91 ]

Section 25.12(1)(f)(

i) requires an operator of a DIF to ensure the facility is equipped with proper tools, appliances and devices. [ 92 ] The Deputy Director found that Mr. Walsh had not breached s. 25.12(1)(f)(

i) by failing to equip Albion with a Chamber Mate device before September 2015. As the Director noted, the standards set out in the Vehicle Inspection Manual prescribe the minimum equipment requirements for all facilities and include a Chamber Mate or other device for measuring airbrake chambers. The Deputy Director was satisfied that at all material times Albion possessed a device for measuring airbrake chambers. [ 93 ] The petitioners say the Deputy Director unreasonably upheld the suspension of Albion’s designation despite finding that Mr.

Walsh had not violated s. 25.12(1)(f)(i). [ 94 ] As we have seen, although the Director found the Adjudicator had erred in finding a breach of s. 25.12(1)(f)(i), he also determined that Mr. Walsh had engaged in multiple violations of s. 25.12 of the MVAR . [ 95 ] In my view, the Deputy Director’s exercise of discretion to uphold the suspension fell well within the range of possible, acceptable and defensible outcomes in the circumstances of this case. It was open to the Deputy Director to take into account, as he did, Mr.

Walsh’s serious violations of s. 25.12, including his unauthorized completion of Inspection Reports ET98654 and ET98655. I conclude that on this ground, the Deputy Director’s decision meets the standard of reasonableness. Did the Deputy Director err in his

interpretation of s. 25.12(1)(a)(ii) of the MVAR ? [ 96 ]

Section 25.12(1)(a)(ii) requires an operator to display in a conspicuous place clearly visible to customers entering the DIF “the certificates of qualification of authorized persons carrying out inspections at that facility”. [ 97 ] The Deputy Director adopted the Adjudicator’s

interpretation that s. 25.12(1)(a)(ii) requires the operator to display the certificate of qualification of an authorized inspector at all times. [ 98 ] The petitioners contend the Deputy Director’s

interpretation is unreasonable because it permits the cancellation of a DIF’s license if an operator fails to display the certificate of qualifications of an authorized inspector when the facility is not open to the public and no customers are present. The petitioners say s. 25.12(1)(a)(ii), properly interpreted, only requires an operator to display a certificate of qualification during business hours and during the times when the authorized inspector to whom the certificate relates is working at the facility. [ 99 ]

Section 25.12(1)(a)(ii) places no limit on the times when the operator must display the certificates of qualification of authorized inspectors. [ 100 ] The Deputy Director thought his

interpretation best achieved the purpose of the regulation by providing for the continuous display of certificates of qualification. The object or purpose of the MVAR is the promotion of road safety.

Section 25.12(1)(a)(ii) advances that objective by assuring members of the public and potential customers of a DIF that vehicle safety inspections will be conducted by qualified inspectors. The consistent communication of accurate information concerning the qualifications of authorized inspectors is more likely to be achieved by the permanent display of their certificates of qualification than by a regime in which the operator adjusts the display of certificates from day-to-day or shift to shift as inspectors come and go from the facility during the course of their work week. In my view, the Deputy Director’s

interpretation of s. 25(1)(a)(ii) meets the standard of reasonableness.

Conclusion [ 101 ] The petitioners have not established that the Deputy Director’s decision was unreasonable. Nor have they shown any other ground for setting aside the reconsideration decision. Accordingly, the petition for judicial review is dismissed. “PEARLMAN J.”