



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Molberg v. British Columbia (Superintendent of Motor
  Vehicles),









2018 BCCA 12




Date: 20180105

Docket: CA44499

Between:

David Edward Knud
Molberg

Respondent

(Petitioner)

And

The Superintendent
of Motor Vehicles

Appellant

(Respondent)




Before:



The Honourable Chief Justice Bauman

The Honourable Madam Justice Newbury

The Honourable Madam Justice Kirkpatrick




On appeal from:  An
order of the Supreme Court of British Columbia, dated
May 16, 2017 (
Molberg v. British Columbia (Superintendent of Motor Vehicles)
,
2017 BCSC 807, Vancouver Registry S156815).

Oral Reasons for Judgment




Counsel for the Appellant:



A.K. Harlingten





Counsel for the Respondent:



K. Lee





Place and Date of Hearing:



Vancouver, British Columbia

January 5, 2018





Place and Date of Judgment:



Vancouver, British
  Columbia

January 5, 2018








Summary:

A driver was issued an
immediate roadside driving prohibition, which was confirmed in a review hearing
before a delegate of the Superintendent of Motor Vehicles. Subsequent to the
hearing, the driver discovered fresh evidence undermining the reliability of
the approved screening device used to issue the prohibition. On judicial review
the chambers judge ordered that the Superintendent reopen the review hearing to
consider the fresh evidence. The Superintendent appealed. Held: Appeal allowed.
The chambers judge had no jurisdiction to grant an order in the nature of
mandamus when the Superintendent was not under a legal duty to reopen the
hearing.

Overview

[1]

BAUMAN C.J.B.C.
:
The Superintendent of
Motor Vehicles challenges the order of Justice MacNaughton, pronounced 16 May
2017, requiring the Superintendent to reopen the application of Mr. Molberg
to review his driving prohibition, and to consider the fresh evidence Mr. Molberg
seeks to adduce in support of his application. The Superintendent alleges that
the chambers judge erred by (1) failing to consider evidence tendered by the
Superintendent regarding the credibility and likely impact of Mr. Molbergs
fresh evidence, and (2) failing to subject Mr. Molbergs evidence to the
same standard applied to the Superintendents evidence thereby placing the
burden of proof on the Superintendent to show that the evidence presented by
Mr. Molberg did not require reopening his application.

Facts

[2]

On 16 July 2015, Mr. Molberg failed a test
for impaired driving on an approved screening device (ASD) and was issued an
immediate roadside driving prohibition (IRP) pursuant to s. 215.41 of
the
Motor Vehicle Act
, R.S.B.C. 1996, c. 318.

[3]

Mr. Molberg then brought an application to the
Superintendent for review of the IRP which was heard orally on 27 July 2015. As
part of the review, the peace officer who issued the IRP provided the
Superintendent with a calibration certificate for the ASD used on Mr. Molberg.
The certificate indicated that the dry gas alcohol standard canister used to
calibrate the ASD was manufactured by Airgas, and part of lot number AG429301
with an expiry date of 20 October 2016.

[4]

On 6 August 2015, a delegate of the
Superintendent confirmed the IRP. On that same date, Mr. Molberg applied
for judicial review of the decision, which was later granted.

Decision under appeal

[5]

Mr. Molbergs petition set out several
grounds for review, however the sole issue put to the chambers judge was for an
order that the Superintendent reopen the review of Mr. Molbergs
application on the basis of fresh evidence.

[6]

Mr. Molberg sought to introduce three
calibration certificates that were used in other IRP cases which list three
different expiry dates for dry gas alcohol standard canisters from lot
AG429301: 12 September 2015, 17 September 2015, and 20 October 2015. None of
these dates matched the expiry date of the canister used to calibrate the ASD
used on Mr. Molberg. The purpose of the fresh evidence was to call into
question the accuracy of the ASD result in Mr. Molbergs case.

[7]

After reviewing the factual and legal background
of the petition, the chambers judge then discussed the appropriate test to be
applied when making an order for the Superintendent to reopen the review of an
IRP to consider fresh evidence. The chambers judge held that such an order
should be made when the interests of justice require it and be informed by
the criteria set out in
Palmer v. The Queen
, [1980] 1 S.C.R. 759.
Moreover, given the proximity of the IRP regime to criminal law, the
Palmer
criteria should not be applied strictly in the context of the Mr. Molbergs
petition.

[8]

The chambers judge then addressed the four
criteria from
Palmer
. She found that the fresh evidence was not
available at the time of the review through due diligence given that an access
to information request for the three other certificates could not have been
processed in time. The chambers judge also found that the evidence was relevant
since it spoke to the accuracy of the ASD result, which is a decisive issue in Mr. Molbergs
challenge to the imposition of the IRP. The fresh evidence was also credible in
that the certificates were intended to be relied on by peace officers and the
Superintendent.

[9]

The central point of disagreement between the
parties was on whether the fresh evidence could reasonably be expected to
affect the result.

[10]

In response to Mr. Molbergs petition, the Superintendent filed
two affidavits which sought to show that the expiry date of 20 October 2016 for
the dry gas alcohol standard used in Mr. Molbergs case was the correct
expiry date for the canisters from lot AG429301.

[11]

The affidavit of Ms. Fritz, a Ministry of Justice paralegal,
detailed steps taken by her to inquire into the correct expiry date of the
canisters from lot AG429301. Her affidavit included a photo of a canister with
that lot number listing the expiry date as 20 October 2016. Her affidavit also
attached a certificate of analysis produced by the manufacturer and available
through a website which lists the same expiry date for canisters from that lot
number.

[12]

The affidavit of Mr. Roberts, the Deputy Superintendent of
Motor Vehicles, discussed how a partial review of IRP files involving canisters
from lot AG429301 all indicated the correct expiry date was 20 October 2016.

[13]

The Superintendent took the position that this evidence impacted the
credibility of Mr. Molbergs fresh evidence to address the issue of ASD
reliability, or demonstrated that the fresh evidence would be unlikely to
impact the outcome of a subsequent review.

[14]

The chambers judge held that she should not consider the
Superintendents evidence when weighing the credibility or likely impact of Mr. Molbergs
fresh evidence, as the statutory scheme strictly limits the evidence that may
be considered by the Superintendent on a review, and the Superintendents
evidence would not actually be admissible in that context. To consider the
Superintendents evidence would improperly shift the adjudication of the
credibility and weight of Mr. Molbergs evidence from the Superintendent
to the courts.

[15]

As well, the chambers judge found specific problems with the
affidavits tendered by the Superintendent. The attachments from a website
included with Ms. Fritzs affidavit were hearsay and her affidavit does
not indicate that she conducted the actual search for them. The chambers judge
also wrote that she could not assess whether the partial review discussed by Mr. Roberts
was truly a random sample or affected by a result-oriented bias given that he
appeared to form an opinion as to the likely outcome of the search in advance.

[16]

As a result, the chambers judge ordered the Superintendent to reopen
the review of Mr. Molbergs IRP to consider the fresh evidence.

Submissions


[17]

The Superintendent initially raised two issues
on appeal:

1.   Did the chambers judge err by relaxing the
Palmer
test
and not considering the evidence tendered by the Superintendent that addressed
the credibility and likely impact of Mr. Molbergs fresh evidence?

2.
Did the chambers judge err by failing
to subject Mr. Molbergs fresh evidence to the same standard as she
applied to the Superintendents evidence thereby placing the burden of proof on
the Superintendent to show why Mr. Molbergs evidence should not justify
reopening the hearing?

[18]

Before
the hearing of the appeal, the division asked counsel by memorandum through the
scheduling administrator to consider whether the relief sought by Mr. Molberg
was essentially in the nature of an order for
mandamus
directing the
Superintendent to reopen the hearing before him, and whether the chambers judge
had the authority to grant such an order.

[19]

The
division said this:

Please provide counsel with a copy of this memorandum.

The division of the Court that is to hear this appeal would
like the parties to consider whether the relief sought by the respondent was
for an order in the nature of
mandamus
, and whether the chambers judge
had the authority to grant such an order.

In particular, the division would
like the parties to consider whether the order sought by the respondent
requires the Superintendent to act
ultra vires
, and how the decision in
Stenner
v. British Columbia (Superintendent of Motor Vehicles)
, 2016 BCSC 1690, and
the Superintendents decision that the
Motor Vehicle Act
, R.S.B.C. 1996,
c. 318, does not authorize the Superintendent to re-open a hearing, limit
the availability of a
mandamus
order. In
Berg v. British Columbia
,
2006 BCCA 146 at para. 15, this Court held that
mandamus
was not
available where a decision-maker was not under a public legal duty to take the
action ordered, citing
Apotex Inc. v. Canada (Attorney General)
(1993),
[1994] 1 F.C. 742 (Fed. C.A.).

[20]

We
have received further submissions from counsel on this point. The
Superintendent adopts the position, based on the issues raised in our
memorandum, that the chambers judge had no authority to order the
Superintendent to reopen the hearing. The relief granted was an order in the
nature of
mandamus
which could not be issued in the circumstances as the
Superintendent was under no legal duty to reopen the hearing. Mr. Molberg
demurs.

[21]

I
am of the view that the Superintendent is correct. As the law now stands (on
the basis of
Stenner v. British Columbia (Superintendent of Motor Vehicles)
,
2016 BCSC 1690), the Superintendent has reasonably concluded that he does not
have the jurisdiction to reopen a concluded hearing. We take that to be the law
as
Stenner
was not appealed and its correctness is not now before us.

[22]

Mr. Molberg
in his application asked the court for an order reopening the Petitioners
hearing. The order granted was in these terms:

1.         the Superintendent of
Motor Vehilces [
sic
] must reopen the application of the petitioner to
review the driving prohibition issued pursuant to Section 215.41 of the
Motor
Vehicle Act
on July 16, 2015, to consider the fresh evidence the petitioner
seeks to adduce.

[23]

This
is clearly an order in the nature of
mandamus
purporting to compel the
performance of a public legal duty (the very essence of
mandamus
).

[24]

Mr. Molberg
had also sought in his petition an order setting aside the decision of the
delegate of the Superintendent and remitting the matter back for a rehearing,
but that relief was abandoned and the chambers judge expressly did not deal
with it. So all that was before the chambers judge was the request for relief
in the nature of
mandamus
to the effect I have described. In oral
submissions Ms. Lee suggested that what was implicitly before the chambers
judge was an application to quash the Superintendents decision on its merits
with a direction that he rehear the matter. I cannot accede to that
characterization of the proceedings or the order of the chambers judge.

[25]

To
grant the orders actually sought would be to purport to direct the
Superintendent to act outside his jurisdiction at law. That cannot be directed;
the Superintendent is not under a public duty to take the action ordered;
mandamus
cannot lie:
Berg v. British Columbia
, 2006 BCCA 146 at para. 15.
Ms. Lee submits that there is indeed a legal duty on the Superintendent that
could found an order in the nature of
mandamus
and that is a duty of
fairness. It is more accurate to say that fairness is in the context of the
statutory process. It is not the basis for orders in the nature of
mandamus
.
It is the basis for potential orders in the nature of
certiorari
quashing
administrative action.

[26]

For
these reasons, I would allow the appeal. In the circumstances, it is not
necessary to deal with the other submissions of the parties.

[27]

NEWBURY
J.A.
: I agree.

[28]

KIRKPATRICK
J.A.
: I agree.

[29]

BAUMAN
C.J.B.C.
: The appeal is allowed for the reasons indicated.

[30]

We thank counsel for their very excellent submissions as we have come to
expect as usual from them.

The
Honourable Chief Justice Bauman


