COURT OF APPEAL FOR BRITISH COLUMBIA

Date: 20120829

Docket: CA038609

Between:

Jesse David MacNeil

Respondent

(Petitioner)

And

The Superintendent of Motor Vehicles and
The Attorney General of British Columbia

Appellants

(Respondents)

On appeal from:  Supreme Court of British Columbia, October 27, 2010
(MacNeil v. British Columbia (Superintendent of Motor Vehicles),
Vancouver Registry S103902)

Reasons for Judgment of the Honourable Mr. Justice Harris:

Introduction

[1]             This is an appeal by the Superintendent of Motor Vehicles and the Attorney General of British Columbia from an order in a judicial review quashing a decision of a delegate of the Superintendent.  The delegate, Adjudicator Neilson, refused to extend the seven-day period within which the petitioner, Mr. MacNeil, could apply for a review of a Notice of 24-hour Prohibition and Report to ICBC (“Notice”) served under s. 215 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [Act].

[2]             The adjudicator concluded that she had no authority to extend the seven-day period.  She based her conclusion on the wording of the legislation conferring a right to seek a review.  She rejected an argument that case law that held that the Superintendent has the right to extend the time period for applications to review 90‑day driving prohibitions also applies to 24-hour prohibitions.

[3]             The chambers judge quashed the adjudicator’s decision and remitted the matter back to the Superintendent to consider whether time to apply for a review should be extended in the circumstances.  The chambers judge concluded that the statutory language stipulating the time periods to apply for a review of 24-hour or 90‑day prohibitions was practically identical.  If there was jurisdiction to extend time to apply for a review in one situation, there would be jurisdiction to do so in the other.  He considered that he was bound to follow earlier case law from the Supreme Court of British Columbia that had ruled that the Superintendent has the discretion in certain circumstances to extend the time for applying to review 90-day prohibitions.  Accordingly, he decided that the adjudicator had based her decision on an error in law and, therefore, the Superintendent had the jurisdiction to extend the seven-day period to apply for a review.

[4]             The right to apply to the Superintendent for review of a 24-hour prohibition is found in s. 215.1 of the Act which reads, in part, as follows:

215.1   (1)  A person may, within the prescribed number of days after being served with a notice of driving prohibition under section 215(2), apply to the superintendent for a review of the driving prohibition by

(a)        filing an application for review with the superintendent, and

(b)        paying to the superintendent the application fee prescribed by the Lieutenant Governor in Council.

(2)        For the purposes of subsection (1), the Lieutenant Governor in Council may prescribe the number of days, which number must not be less than 7, within which a person may apply for a review of a driving prohibition.

[5]             The Lieutenant Governor in Council has, by regulation, prescribed seven days as the period within which a person may apply for a review.  The Review of 24 Hour Driving Prohibition Regulation, B.C. Reg. 591/2004, O.C. 1259/2004, s. 2 provides:

For the purpose of section 215.1(1) of the Act, the prescribed number of days within which a person may apply for a review of a driving prohibition review served under section 215(2)(b) is 7 days.

[6]             There is no provision in the statute or regulation that expressly authorizes the Superintendent to extend the seven-day period to apply for a review.

[7]             The appellants contend that the decision of the Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, confirms that the standard of review applicable to the adjudicator’s decision is “reasonableness”.  Applying that standard, they submit, the adjudicator’s decision was reasonable, even in the face of a Supreme Court decision interpreting similar statutory language differently.  In any event, the wording of the statutory scheme is clear and unambiguous, admitting of only one meaning, namely, that the Superintendent does not have the jurisdiction to extend the time to apply for a review.  Mr. MacNeil disagrees.  He argues that when interpreted with proper regard for principles of natural justice, the statutory language does not exclude a discretionary power to extend time when circumstances warrant.  Any interpretation that concludes otherwise is unreasonable.

[8]             For the reasons that follow, I would allow the appeal.

Background to this Appeal

[9]             On 19 December 2007, a peace officer, acting on the authority provided in s. 215(2) of the Act, served Mr. MacNeil with the Notice.  Mr. MacNeil signed the Notice on receiving it, but did not apply to the Superintendent for a review within the seven-day period.

[10]         At the same time, Mr. MacNeil was also served with a notice of an Administrative Driving Prohibition (a so-called 90-day prohibition).  Mr. MacNeil filed an application to review the 90-day suspension within time.  On 8 January 2008, the Administrative Driving Prohibition was revoked because an adjudicator was not satisfied that he had care and control of a motor vehicle at the relevant time.

[11]         In October 2009, the Superintendent reviewed Mr. MacNeil’s driving record pursuant to s. 93(1)(ii) of the Act.  This section permits the Superintendent to prohibit a person from driving a motor vehicle if the Superintendent considers it to be in the public interest on a variety of grounds including the Superintendent concluding that the person’s driving record is unsatisfactory.

[12]         The Superintendent decided to prohibit Mr. MacNeil from driving for four months because his driving record was “unsatisfactory”.  The Notice of Intent to Prohibit was sent with a copy of Mr. MacNeil’s driving record which revealed three 24-hour prohibitions, including the one related to the Notice. The prohibition related to the Notice was the earliest in time.  That together with the subsequent prohibitions, and another infraction that did not involve alcohol, cumulatively led to the Superintendent’s opinion that Mr. MacNeil’s driving record was unsatisfactory.  The possibility of a successful challenge to the Notice, and its effect on the s. 93 prohibition, may explain why Mr. MacNeil chose to challenge the Notice.

[13]         Mr. MacNeil made submissions to the Superintendent with respect to the proposed four-month prohibition.  He submitted that the Notice could have been successfully challenged as was the Administrative Driving Prohibition and, in the circumstances, the prohibition should be treated as removed from his driving record or given no weight.

[14]         By letter dated 20 November 2009, Adjudicator Allison, a delegate of the Superintendent, informed Mr. MacNeil that because he had not filed an application to review the Notice within seven days, he would be considered responsible for it.  Adjudicator Allison nonetheless, considering Mr. MacNeil’s personal circumstances, reduced the term of prohibition to two months.

[15]         Mr. MacNeil made a further submission to persuade the Superintendent to extend the seven-day period within which he might apply for a review of the Notice.  By letter dated 18 December 2009, he submitted that “… until recently, he was never made aware of having been issued” the Notice.  He argued that he met the criteria as set out in the jurisprudence to be considered for an extension of time to apply for review of a 90-day driving prohibition issued pursuant to s. 94.1 of the Act, and that an extension of time should accordingly be granted in his case to review the 24-hour Notice.

[16]         Mr. MacNeil’s argument  was rejected by Adjudicator Neilson, who concluded as follows:

The criteria upon which Mr. Cruickshank bases his argument on is Segers v. British Columbia (Superintendent of Motor Vehicles).  This case applies to late applications for Administrative Driving Prohibitions.  It does not apply to 24 hour prohibitions.

…

Section 215 of the Motor Vehicle Act states that persons who receive a 24 hour prohibition because a peace officer had reasonable and probable grounds to believe that their ability to drive a motor vehicle was affected by alcohol may apply to the superintendent for a review.  A person may within the prescribed number of days after being served with a Notice of Prohibition apply for a review of their driving prohibition by filing an application for review to the superintendent and paying the application fee.

As previously stated in your driving prohibition review decision dated November 20, 2009 you were eligible to file an application for review of your 24-hour prohibition from driving within 7 days of the issue date noted on the Notice of 24 Hour Prohibition and were to do so at a Driver Licencing Centre.  You did not make any application for review within the time limit and therefore, your letter is not eligible for consideration.  There is no other option available to you through this office.

[17]         The thrust of Mr. MacNeil’s petition for judicial review was that Adjudicator Neilson erred in law and made a jurisdictional error in concluding that Segers v. British Columbia (Superintendent of Motor Vehicles), [1999] B.C.J. No. 666 (S.C.), applied only to the review period for 90-day driving prohibitions in s. 94.4(1) of the Act but did not apply to an application for review of a 24-hour prohibition, and that she did not have authority to extend the seven-day period within which Mr. MacNeil might seek a review.

[18]         In Segers, Melvin J. relied on the decision of this Court in Zutter v. British Columbia (Council of Human Rights) (1995), 122 D.L.R. (4th) 665, 3 B.C.L.R. (3d) 321, in support of his conclusion that the Superintendent had authority to extend the time to apply for a review of 90-day suspensions.  Zutter considered whether the British Columbia Council of Human Rights had jurisdiction to re-open a discontinued complaint under the Human Rights Act, S.B.C. 1984, c. 22.  In Segers, Melvin J. noted this Court’s conclusion in Zutterthat there was unfairness in the discontinuance of the complaint in that case, this seemed contrary to the remedial purpose of the tribunal, and the equitable jurisdiction to reconsider has been recognized for administrative tribunals absent express acknowledgement of such jurisdiction in the tribunal’s enabling statute.

[19]         Mr. Justice Melvin considered the Attorney General’s submission that finding that there is discretion to extend time would be an unwarranted amendment of the clear and unequivocal wording of a statute designed for a swift procedure.  He concluded that fairness compels a construction that affords the Superintendent a discretionary power to extend, holding at para. 11 that:

Relying on the language in Zutter, I am satisfied that the Superintendent has jurisdiction to extend the seven day period.  In providing for a review, one must accept that the Legislature wished to give drivers an opportunity to make representations to relieve against the impact of suspension of a driver’s licence.  There are a number of scenarios that may occur making it impossible to file a review within the seven day period.  Obviously, injury or illness may interfere with a driver’s ability to file a review within the seven day limit.  In my opinion, the Superintendent has a discretion to extend the seven day period where the circumstances warrant.  This jurisdiction may be used sparingly, in special or unusual circumstances, and there may be a number of factors which the Superintendent may wish to take into consideration in deciding whether or not to exercise that discretion.

The Chambers Judge’s Decision

[20]         The chambers judge implicitly applied a standard of correctness to the adjudicator’s decision.  He does not appear to have been invited to decide the case according to a standard of reasonableness.  The Supreme Court of Canada had not decided Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association (“A.T.A.”) when this petition was argued.

[21]         The issue, as framed before the chambers judge, was whether the adjudicator was correct in concluding that there was no jurisdiction to extend the time to review a 24-hour prohibition in face of the conclusion in Segers that such a jurisdiction existed for 90-day prohibitions (the s. 94 or Administrative Driving Prohibitions).

[22]         The chambers judge compared s. 94.4(1) of the Act, which governs the time to apply for a review of a 90-day prohibition, with the relevant provisions relating to review of a 24-hour prohibition.  He determined the language and context to be “practically identical”.  He considered the argument that the statutory language granting a right of review of a 24-hour prohibition was unambiguous and excluded any residual discretion to extend time.  In the result, after considering several other Supreme Court decisions that followed Segers and the principles of judicial comity set out in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 (B.C.S.C), he declined to depart from the result and the reasoning in Segers.  The chambers judge summarized his analysis saying:

[37]      In conclusion, the language and the context of the two provisions are practically identical.  The review procedure is virtually the same.  Any finding with respect to the appropriate construction of one section will necessarily affect the interpretation of the other.  In order to come to a different conclusion on the appropriate interpretation of s. 215.1, this court will most likely need to overrule Segers.  However, there do not appear to be sufficient grounds to overrule Segers.  In the result, the Superintendent has the jurisdiction to extend the seven-day period…

On Appeal

[23]         The issue on appeal is whether the Adjudicator’s decision that the Superintendent had no authority to extend the time to apply for a review of a 24-hour prohibition was reasonable.  This statement of the issue follows from the decision of the Supreme Court of Canada in A.T.A.

a)    The standard of review

[24]         A.T.A. involved whether a Commissioner had lost jurisdiction over the subject matter of a complaint because he had failed to complete an inquiry within 90 days of the receipt of the complaint, as required by statute, and had failed within the 90 days to extend the period for the completion of the inquiry, as permitted by statute.

[25]         A preliminary question raised on judicial review was whether the failure to extend time should be viewed as a loss of jurisdiction to be reviewed on a standard of correctness.

[26]         The Supreme Court of Canada was unanimous that the failure to comply with timelines should not be viewed as an issue of jurisdiction to be reviewed on a standard of correctness.  Although the Court divided on the question of whether or when true issues of jurisdiction might arise, the Court agreed that the issue before it should be reviewed on a standard of reasonableness.

[27]         Justice Rothstein, writing for himself and five other judges, identified the narrow question to be whether the inquiry automatically terminated as a result of the Commissioner extending the 90-day period only after the expiry of that period.  This question involved the interpretation of the Commissioner’s home statute, a matter usually attracting deferential review.  At paras. 30-34 he summarized the key principles at issue:

[30]      … This principle applies unless the interpretation of the home statute falls into one of the categories of questions to which the correctness standard continues to apply, i.e., “constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside the adjudicator’s expertise, . . . ‘[q]uestions regarding the jurisdictional lines between two or more competing specialized tribunals’ [and] true questions of jurisdiction or vires” (Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, at para. 18, per LeBel and Cromwell JJ., citing Dunsmuir [2008 SCC 9, [2008] 1 S.C.R. 190], at paras. 58, 60-61).

[31]      The timelines question is not a constitutional question; nor is it a question regarding the jurisdictional lines between two or more competing specialized tribunals.

[32]      And it is not a question of central importance to the legal system as a whole, but is one that is specific to the administrative regime for the protection of personal information. The timelines question engages considerations and gives rise to consequences that fall squarely within the Commissioner’s specialized expertise. The question deals with the Commissioner’s procedures when conducting an inquiry, a matter with which the Commissioner has significant familiarity and which is specific to PIPA. Also, in terms of interpreting s. 50(5) PIPA consistently with the purposes of the Act, the relevant considerations include the interests of all parties in the timely completion of inquiries, the importance of keeping the parties informed of the progression of the process and the effect of automatic termination of an inquiry on individual privacy interests. These considerations fall within the Commissioner’s expertise, which centres upon balancing the rights of individuals to have their personal information protected against the need of organizations to collect, use or disclose personal information for purposes that are reasonable (s. 3 PIPA).

[33]      Finally, the timelines question does not fall within the category of a “true question of jurisdiction or vires”. I reiterate Dickson J.’s oft-cited warning in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, that courts “should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” (p. 233, cited in Dunsmuir, at para. 35).  See also Syndicat des professeurs du collège de Lévis-Lauzon v. CEGEP de Lévis-Lauzon, [1985] 1 S.C.R. 596, at p. 606, per Beetz J., adopting the reasons of Owen J.A. in Union des employés de commerce, local 503 v. Roy, [1980] C.A. 394.  As this Court explained in Canada (Canadian Human Rights Commission), “Dunsmuirexpressly distanced itself from the extended definition of jurisdiction” (para. 18, citing Dunsmuir, at para. 59).  Experience has shown that the category of true questions of jurisdiction is narrow indeed. Since Dunsmuir, this Court has not identified a single true question of jurisdiction (see Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3, at paras. 33-34; Smith v. Alliance Pipeline Ltd., at paras. 27-32; Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678, at paras. 31-36).  Although this Court held in Northrop Grumman Overseas Services Corp. v. Canada (Attorney General), 2009 SCC 50, [2009] 3 S.C.R. 309, that the question was jurisdictional and therefore subject to review on a correctness standard, this was based on an established pre-Dunsmuir jurisprudence applying a correctness standard to this type of decision, not on the Court finding a true question of jurisdiction (para. 10).

[34]      The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance when the tribunal is interpreting its home statute. In one sense, anything a tribunal does that involves the interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review. However, since Dunsmuir, this Court has departed from that definition of jurisdiction.  Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review.  However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the interpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should be presumed to be a question of statutory interpretation subject to deference on judicial review.

[28]         Although Justices Cromwell and Binnie, in separate reasons, expressed reservations and disagreement with the majority view of the continuing relevance of jurisdictional issues in administrative law, both agreed with the conclusion that the timelines issue was not jurisdictional and was reviewable on a standard of reasonableness.

[29]         Justice Cromwell summarized his views regarding the standard to be applied in that case at para. 101.  He considered the wording of the statute, the specialized nature of the scheme, and the Commissioner’s role and discretionary powers within the scheme in concluding that the Legislature did not intend to authorize judicial review of the issue on appeal on a standard of correctness.

[30]         A.T.A. dealt with an alleged loss of jurisdiction owing to a failure to extend a timeline as was authorized by a statute within the time stipulated therein.  The question of the standard of review to be applied to a determination of the time period within which to initiate a review was considered by the Federal Court of Appeal in Canada Post Corporation v. Canadian Union of Postal Workers, 2011 FCA 24, 330 D.L.R. (4th) 729, rev’g 2010 FC 154, 364 F.T.R. 177.  The statutory provision stipulated that a party aggrieved by a decision “may appeal the direction in writing to an appeals officer within thirty days after the date of the direction being issued or confirmed in writing”.

[31]         The specific issue on judicial review was when the time began to run to initiate an appeal.  The trial judge approached the issue applying a standard of correctness on the basis that a question of a time limitation was a question of general law that was not within an appeal officer’s specialized expertise and should be answered with “certainty and consistency”.  The Court of Appeal disagreed, stating at paras. 15 and 18:

[15]      In this case, although the judge found the interpretation of subsection 146(1) to be a question of general law, he did not find it to be one of central importance to the legal system as a whole. It would be difficult for him to do so. With respect, in my view, the interpretation of the provision gives rise to a discrete question that falls within a single step of a complex administrative scheme. It is a question of law arising out of the appeals officer’s home statute and it was not suggested that it would have important ramifications on any other aspects of the legal system. The union maintained that the provision is not one of central importance to the legal system and, at the hearing of this appeal, Canada Post acknowledged and accepted the accuracy of that position.

…

[18]      In my view, the comprehensive statutory scheme is designed, in part, to facilitate the resolution of health and safety matters expeditiously. Given the presumption owing to appeals officers in their interpretation of the home statute, the discrete nature of the question at issue, the detailed and comprehensive statutory scheme, the expertise of the appeals officers working within that scheme and the existence of strong privative clauses, reasonableness is the appropriate standard of review. The interpretation of the impugned provision does not rise to the level of any recognized exception to the general rule of deference.

[32]         In my view it follows from A.T.A. and the reasoning in Canada Post Corporation that the question whether the Superintendent has the authority to extend the time for applying for a review is a matter to be reviewed according to a standard of reasonableness.  The issue is not one to be reviewed on a standard of correctness.  The adjudicator, as delegate of the Superintendent, was reviewing the home statute.  The Superintendent is responsible for the administration of a complex and specialized administrative scheme designed to protect the public interest.  The determination of whether there can be an extension was made with knowledge of the manner in which the broader specialized scheme operates.  The issue involves a discrete question involving a single procedural step within that specific scheme and is not one of central importance to the legal system as a whole.

[33]         In the result, I conclude that the chambers judge, who did not have the benefit of the reasoning of the Supreme Court of Canada in A.T.A. when he rendered his judgment, erred in implicitly applying a standard of correctness to the issue before him.

Was the decision of the adjudicator reasonable?

[34]         In my view, the decision of the adjudicator that the Superintendent had no authority to extend the time in which to file an application to review a 24-hour prohibition was reasonable.

[35]         The standard of reasonableness was described by the majority of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190:

[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.

[36]         For convenience, I set out again the applicable statutory language.  The Act provides:

215.1   (1)  A person may, within the prescribed number of days after being served with a notice of driving prohibition under section 215(2), apply to the superintendent for a review of the driving prohibition by

(a)        filing an application for review with the superintendent, and

(b)        paying to the superintendent the application fee prescribed by the Lieutenant Governor in Council.

(2)        For the purposes of subsection (1), the Lieutenant Governor in Council may prescribe the number of days, which number must not be less than 7, within which a person may apply for a review of a driving prohibition.

[37]         The relevant regulation provides:

For the purpose of section 215.1(1) of the Act, the prescribed number of days within which a person may apply for a review of a driving prohibition review served under section 215(2)(b) is 7 days.

[38]         In my opinion, a decision that the Superintendent does not have the authority to extend time is supported by recognition that the Superintendent’s powers are statutory and that he may only exercise powers assigned to him, a plain reading of the legislation, case law interpreting similar provisions in other legislation, and the purposes and objects of the administrative scheme in issue.

[39]         In Rapton v. British Columbia (Motor Vehicles), 2011 BCCA 396, 311 B.C.A.C. 176, this Court confirmed that the Superintendent’s powers are purely statutory and in exercising those powers the Superintendent is confined to powers specifically assigned to him: see paras. 15-16.  Accordingly, the power to extend time must be found in the statute.  There is, however, no express statutory authority to extend time.  The question becomes whether it is unreasonable to conclude that the Legislature did not intend to confer a power to extend time to apply for a review.

[40]         In my view, nothing in the wording of s. 215.1(1) suggests that the Legislature did intend to grant the power to the Superintendent to extend the time to apply for a review.  The wording of the section is unambiguous.  It explicitly specifies the time within which an application must be made if the Superintendent is to be empowered to conduct a review.  If the Legislature had intended to confer the power to extend time on the Superintendent, it would have done so expressly.  Other statutes, such as the Workers Compensation Act, R.S.B.C. 1996, c. 492 at s. 96.2, expressly provide the power to extend time to file for a review and stipulate criteria for the exercise of that discretion.

[41]         Since the Superintendent may only exercise powers granted to him by statute, it is no answer to say that the Superintendent has a power to extend time because nothing in the statute expressly excludes that authority.

[42]         The view that a right to appeal is statutory and that compliance with the preconditions to appeal is necessary to vest jurisdiction in an appellate or review body is reflected in a substantial body of case law.  Examples of appellate cases adopting this approach where the issue involved complying with timelines include:  Mallet v. New Brunswick (Minister of Social Development) (2011), 374 N.B.R. (2d) 170 (C.A.); LeClair v. Manitoba (Residential Care, Director) (1999), 33 C.P.C. (4th) 1, [1999] 9 W.W.R. 583 (Man. C.A.); andHouston v. Saskatchewan Teachers’ Federation, 2009 SKCA 70, 331 Sask.R. 157.

[43]         In Mallet, the New Brunswick Court of Appeal considered s. 59(1) of the Family Services Act, S.N.B. 1980, c. F-2.2, which provides that “any order or decision made under this Part may be appealed within thirty days” (emphasis added).  The Court concluded that the Act does not contemplate an extension of time and there was no jurisdiction to grant one.

[44]         In LeClair, the Manitoba Court of Appeal considered s. 13(7) of the Social Services Administration Act, C.C.S.M., c. S165, which provides that a person “may [appeal] within 10 days” to the Court of Queen’s  Bench.  The Court held that the right of appeal had been lost; the time limitation was mandatory and the statute did not provide for an extension of time.

[45]         In Houston, the Teachers’ Federation Act, 2006, S.S. 2006, c. T-7.1, s. 34, provided that a person “may appeal to the Court of Appeal within 30 days”.  The Saskatchewan Court of Appeal held that the statute is clear; it says an appeal must be brought within thirty days and makes no provision for an extension of time.  Further, it held that the Court of Appeal Act, 2000, S.S. 2000, c. C-42.1, which confers authority to extend a general appeal period, did not apply as it conflicted with the stricter limit in the Teachers’ Federation Act.

[46]         The adjudicator’s decision in this case is consistent with the line of authority just discussed and, as a result, supports the reasonableness of the decision.

[47]         Finally, it cannot be said that the adjudicator’s decision is unreasonable when viewed in light of the purposes and objects of the administrative scheme.

[48]         Under the Act, a peace officer who has reasonable and probable grounds to believe that a driver’s ability to drive a motor vehicle is affected by alcohol may prohibit the driver from driving for 24 hours.  The provisions have been in place in the Motor Vehicle Act, in one form or another, for some 40 years.

[49]         The 24-hour prohibition is part of an administrative scheme focused on preserving public safety on the highways by providing expeditious and summary means by which unsafe drivers may be prevented from driving.  The purpose of the prohibition is to provide police officers with an additional tool to be used at the roadside to remove a potentially dangerous driver without delay.

[50]         The loss of driving privileges for 24 hours is a relatively minor sanction.  The basis for review provided by ss. 215.1 to 215.3 is limited: see Rapton.  I agree with the submission of counsel for the Superintendent and the Attorney General that it would be inconsistent with the overall scheme to allow drivers who have been served with a notice to apply for an extension of time to challenge the notice months, or as in this case, years later.  For the years 2004-2009, the lowest number of 24-hour prohibitions issued in B.C. was 38,435 (in 2005) and the highest was 41,359 (in 2009).  Permitting applications to be made for an extension of time to seek to review risks overloading the administrative scheme.

[51]         A decision that there is no authority to extend the time to apply for review is, in my opinion, a reasonable decision in the context of this administrative scheme, given its purpose and given the relatively minor consequences flowing from service of a notice of a 24-hour prohibition.

[52]         Finally, I do not think the decision can be viewed as unreasonable because the adjudicator did not apply the reasoning in the Segers case or because she did not conclude that the interpretation of the statute should be guided by the principles of procedural fairness leading to the conclusion that the Legislature did intend to grant the authority to extend time.

[53]         It was not unreasonable for the adjudicator to limit the application of Segers to 90-day prohibitions.  Even though the language at issue in Segers is, for all practical purposes, identical to the language in s. 215.1(1), the adjudicator is entitled to interpret her own home statute and is not bound to follow the construction of a similar section by a court.  Deference is owed to the adjudicator’s interpretation, which I have concluded, for the reasons given, is a reasonable one.  The issue of whether Segers is correctly decided is best left for a case where the decision is challenged directly.

[54]         Moreover, it would not be unreasonable for the adjudicator to conclude that consideration of the principles of procedural justice would not call for a different interpretation than the one she settled upon as it is clear that the Legislature did not intend to grant authority to extend.  Here the question for the adjudicator is properly viewed as one of deciding what the Legislature intended.  If the Legislature did not intend to grant the authority to extend time, in the absence of constitutional concerns, effect must be given to that intent, even if it is viewed as unfair.

[55]         In the result, the adjudicator’s decision that there is no authority to extend the time to apply for a review of a notice served under s. 215.1(1) is not unreasonable.

Conclusion

[56]         I would allow the appeal.

“The Honourable Mr. Justice Harris”

I agree:

“The Honourable Madam Justice Neilson”

I agree:

“The Honourable Madam Justice Bennett”

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