Depak Fagurha Petitioner v. Superintendent of Motor Vehicles and, 2024 BCSC 236

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Fagurha v. British Columbia (Superintendent of Motor Vehicles), 2024 BCSC 236 Date: 20240126 Docket: S249217 Registry: New Westminster Between: Depak Fagurha Petitioner And Superintendent of Motor Vehicles and The Attorney General of British Columbia Respondents Before: The Honourable Justice Caldwell On judicial review from: A decision of a delegate of the Superintendent of Motor Vehicles dated April 19, 2023 (IRP No. 40-093099). Oral Reasons for Judgment In Chambers Counsel for the Petitioner: N.S. Chhabra (as Agent for P. Dutt) Counsel for the Respondents: A.

Bajwa Place and Date of Hearing: New Westminster, B.C. January 26, 2024 Place and Date of Judgment: New Westminster, B.C. January 26, 2024 [ 1 ] THE COURT : This is my decision on the matter of Fagurha v. British Columbia (Superintendent of Motor Vehicles) . [ 2 ] First off, I do not think there is any opposition to the request for an amendment to the style of cause to get rid of the Attorney General of British Columbia, it being the case that they should not be a named party.

I do not think counsel opposes that, so that order will go removing Attorney General of British Columbia. [ 3 ] The petition filed in April 2023 seeks to quash a 90-day prohibition. It also seeks to set aside a decision of the Superintendent of Motor Vehicles with respect to a 90-day suspension or prohibition.

And lastly, as an alternative, that the matter be sent back to the Superintendent's adjudicator for reconsideration, presumably with directions from the court. [ 4 ] On October 28, 2022, and it leads into October 29, because all this happened about midnight, in Surrey, a 90-day prohibition was provided to the petitioner. The circumstances, not necessarily all that detailed, but the events occurred in the parking lot or near the exit to a Keg restaurant in Surrey. The petitioner was driving a reasonably new Mercedes vehicle and drove over a curb or some kind of low barrier. This was observed by police officers.

They stopped him, made a request, and had present with them an approved breath device. [ 5 ] They deemed, from the subsequent responses and actions, that there was a refusal to provide a breath sample, and they issued a 90-day prohibition and towed the vehicle as allowed, if not required. [ 6 ] The petitioner filed for a review of that decision by the internal process of the Superintendent of Motor Vehicles. That review came on November 14, 2022. I am sorry, it came sometime after that.

There were three basic complaints: that the demand was not made forthwith; that there were no reasonable grounds for the demands; and, if there were reasonable grounds, there was no refusal. [ 7 ] I will not spend much time on that decision, because application was made to set it aside and that decision was ultimately set aside by consent. A stay of the driving prohibition was agreed to and matters carried on. [ 8 ] On January 31, 2023, a second hearing to replace that one that had been set aside occurred.

Evidence of the petitioner, including their own evidence and argument by counsel was provided, as was argument and evidence from or on behalf of the police officers and

the Superintendent. [ 9 ] The adjudicator, who operates under some time constraints, was unable to come up with a decision in the timeframe anticipated for the delivery of such decisions and I believe two, if not three, extensions resulted, with the ultimate consequence that the decision of the adjudicator was delivered on April 19, 2023. That decision is currently before me and appears in the materials.

Again, the result of that was that the adjudicator upheld the prohibition and gave fairly extensive reasons for that decision. [ 10 ] Basically we have here a demand, what is alleged to be a refusal or a request for clarification, a senior officer attends, more information is given. That leads to the continued statement that the demand must be met, it is mandatory to provide it.

The argument essentially is that there was no—argument before me was that there was no actual refusal, and the side argument on that is that the first demand went by the wayside, and after the alleged clarification, the police should have made a second demand renewing the demand, as the first one had been left behind. [ 11 ] There is no real issue about the making of the demand and it appears clear, both from the petitioner's material and that of the police, that the police did not make a subsequent demand after various discussions. The first demand was made.

Their evidence was presented to the adjudicator as to what flowed from that, which was the attendance of a more senior officer, and further questions and further responses and further actions. [ 12 ] Now, the standard of review, and I will borrow, because of the time constraints here, somewhat from the written submissions of the respondent, but I do not think the standard of review is really challenged in this particular case. The standard is reasonableness, the leading case obviously being that of Vavilov [ Canada (Minister of Citizenship and Immigration) v.

Vavilov , 2019 SCC 65 ], and these quotes are pretty much clear, although there is some paraphrasing just for clarity and expedition. [ 13 ] Was the decision based on an inherently coherent and rational chain of analysis and was it justified in relation to the facts and the law? [ 14 ] This is the exercise gone through by the adjudicator. What is not needed is a "line-by-line hunt for errors". The review, the reasons are to be taken as a whole. The question asked is do they provide a pathway to the conclusion which is reasonable?

That is, is the pathway reasonable and is the conclusion reasonably reached based on the pathway? [ 15 ] This review by this Court is not a rehearing. It is not an analysis. I am not to ask myself would I have found the same thing? I may or may not have. But clearly, this is not a rehearing and that is adequately addressed, both in Vavilov and, among other cases: Kenyon v. British Columbia (Superintendent of Motor Vehicles) , 2015 BCCA 485 . [ 16 ] Justice Mayer says in Penz v.

British Columbia (Superintendent of Motor Vehicles) , 2022 BCSC 47 , that this is especially so with respect to credibility issues, and here I am reading from para. 48 of the respondent's submissions where he quotes Justice Mayer as follows: [19] In roadside driving prohibitions, credibility is frequently the central issue. This Court should not substitute its own credibility findings for those of an adjudicator.

Reasons, which are flawed in one respect, must be considered in their entirety in order to determine whether the flaw is central to the decision … [20] In order to overturn a credibility finding, this Court must find that the petitioner has proven that the finding was made on evidence that was not before the adjudicator or that the adjudicator failed to grapple with clear material conflicts in the evidence … [21] Where credibility is at issue, an assessment of credibility involves examination of factors including, amongst others, whether the witness’ testimony seems unreasonable, impossible, or unlikely … [Citations omitted.] [ 17 ] Overall, there is a standard and a clear duty of deference by this Court to the decision makers at the lower level.

ANALYSIS OF THE DECISION MAKER BELOW [ 18 ] I think it is fair to say, without any doubt, that this adjudicator, in the words of the previous decisions, grappled, perhaps greatly, with the evidence which was presented at the hearing back in January. It seems fairly clear, although it is not outright stated, that that grappling may well have been the reason for the delays in getting the decision out and published. It is clear from the reasons that she reviewed the evidence extensively.

This is including that she outlines the evidence of the petitioner and the submissions of the petitioner's counsel in considerable detail. She then outlines the police evidence in considerable detail. She specifically addresses the relevant legislation and finds, on a review of that legislation, that the demand was lawfully made. [ 19 ] She finds as a fact on balancing, after grappling with the evidence, that the petitioner was advised and knew the consequences of the failure to provide a breath sample, and that he did understand the demand and the consequences.

This is in the face of his submissions and evidence that he did not understand these things. She simply disbelieved him. That was an action which was open to her on the evidence. [ 20 ] She compares the evidence on the actual "refusal" and finds it, in her words, "more likely than not" that the petitioner told the police officer that he would not give a sample. [ 21 ] I read, in particular, what I refer to as page 8, and that is the 8 which appears at the top right-hand corner of the decision, the bottom two paragraphs, and both counsel have referred to these, but I find them helpful.

They read as follows: When I consider the factors above, I find that they support that you did, in fact, refuse to provide a breath sample at the roadside on the day in question. The evidence before me is that you were provided the consequences of refusing, which you understood. You were also provided an opportunity to provide a breath sample into a roadside ASD but did not attempt to do so at any time. On this basis, I find that

the evidence before me supports that you did fail to comply with Cpl. Waraich's demand to provide a breath sample. Finally, while your counsel argues that Cpl. Waraich ought to have done more to fully ascertain whether you were unequivocally refusing, I note that the evidence before me from Cpl. Waraich is that you stated, multiple times, that you would not provide a breath sample. I have also found it to be more likely than not that you did understand the demand(

s) but did not provide a breath sample. Finally, while Mr. Dutt argues that the interaction with Sgt. Chu occurred after Cpl. Waraich had already determined that you had refused, I am mindful that I have found that you did not offer, at any point prior to the service of the Notice, to provide a breath sample into the roadside ASD. Therefore, while you may not have said an unequivocal "NO," I find that your behaviour, arguments, and unwillingness to provide a breath sample supports that you were unequivocally refusing. Having made this finding, I find that Cpl.

Waraich was reasonable in determining that you were refusing to provide a breath sample. [ 22 ] She specifically reviews the competing evidence regarding the reasonable excuse as well, and says at page 10: When I weigh the totality of evidence before me as it relates to whether you had a reasonable excuse for failing to comply with Cpl. Waraich's demand to provide a breath sample, I do not find your evidence to be reliable or persuasive. The evidence before me is that you were provided multiple explanations about the demand(

s) as you requested; the consequences of refusing, which you understood; and an opportunity with a roadside ASD. Regardless, you did not provide a suitable sample of your breath. Therefore, you have not satisfied me that you had a reasonable excuse for failing or refusing to comply with the ASD. [ 23 ] I have also reviewed the case of Haldane v. British Columbia (Superintendent of Motor Vehicles) , 2016 BCSC 2228 , a decision of Justice Baird. While there are differences, I find that the facts in that case are somewhat similar and that the analysis of Justice Baird is both applicable and persuasive.

He refers, as well, to the Kenyon reasoning which I have touched on here. He deals with the issue of grappling with the conflicts in evidence, and he accepts that ultimately the adjudicator believed the police evidence and not the evidence of the petitioner. [ 24 ] In a nutshell, that is what happened in this case. The matter came before the adjudicator, the evidence was led. There is an issue about the first demand, should there have been a second demand. There is nothing, in my view, that establishes that the first demand, the initial demand, was ever suspended, disposed of, or killed off.

It was a process that continued from the original demand. The parties, as is not unusual in this Court or any court, had different versions of events. Those versions of events were fairly placed before the adjudicator in January of last year. [ 25 ] She took time and took great pains to review that evidence in detail, and chose to believe certain of the evidence and disbelieve certain of the other evidence. She came to a conclusion based on that analysis of the evidence. That is what can be fairly said about the case before me.

I may or may not, as I said at the outset and I say again, had I been the adjudicator, had the matter been before me at first instance, I might have come to a different conclusion than the adjudicator came to. But there clearly was evidence upon which she could reasonably come to the conclusions which she did reach. [ 26 ] I see no reason, given the standard of deference, to interfere with that decision. The petition is dismissed. “Caldwell J.”