Administrative law – Decisions of administrative tribunals – Superintendent of Motor Vehicles – Motor vehicles – Suspension of driver’s licence – Adjudication – Extension of time – Judicial review – Compliance with legislation – Jurisdiction – Standard of review – Reasonableness simpliciter
MacNeil v. British Columbia (Superintendent of Motor Vehicles),  B.C.J. No. 1795, 2012 BCCA 360, British Columbia Court of Appeal, August 29, 2012, K.E. Neilson, E.A. Bennett and D.C. Harris JJ.A.
A man (“MacNeil”) was issued a 24-hour driving prohibition under Section 215(2) of the Motor Vehicle Act (the “Act”) in December 2007. MacNeil did not apply to the Superintendent for review within the seven-day period permitted by the Act. At the same time, he was also served with a Notice of an Administrative Driving Prohibition (90-day prohibition) and he did file an application to review that 90-day suspension within time.
Subsequently, MacNeil argued that he should be permitted to review the 24-hour prohibition and that the Superintendent of Motor Vehicles ought to extend the time for that review to be brought. The adjudicator concluded that, as MacNeil did not apply for review within the seven-day time limit, a review of his 24-hour driving prohibition would not be available.
MacNeil appealed for judicial review on the basis that the adjudicator erred in law and made a jurisdictional error in concluding that the decision in Segers v. British Columbia (Superintendent of Motor Vehicles),  B.C.J. No. 666 (S.C.) applied only to Administrative Driving Prohibitions (90-day driving prohibitions), but did not apply to a review of a 24-hour prohibition. In Segers, the Court determined that there was authority to extend the period within which a review could be brought, with regard to an administrative driving prohibition.
The chambers judge hearing the judicial review implicitly applied a standard of correctness to the adjudicator’s decision and found that, because the statutory language relating to the administrative driving prohibition was “practically identical” to that pertaining to the 24-hour driving prohibition right of review, Segers should be applied with the result that the Superintendent had the jurisdiction to extend the seven-day period.
The Superintendent of Motor Vehicles appealed from this finding. The question before the Court of Appeal was whether the adjudicator’s decision that the Superintendent had no authority to extend the time to apply for review of a 24-hour prohibition was reasonable. Between the time that the chambers judge issued the decision on MacNeil’s application for judicial review, and the time that the Court of Appeal considered this matter, the Supreme Court of Canada made a decision, Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 (“A.T.A.”).
In A.T.A., the question was whether a commissioner had lost jurisdiction over a complaint because he failed to complete an inquiry within 90 days of receiving the complaint, as required by statute. The Court considered whether a failure to extend time, as permitted by a statute, should be viewed as a loss of jurisdiction reviewable on a standard of correctness. The Supreme Court of Canada found, unanimously, that the failure to comply with timelines should not be viewed as an issue of jurisdiction and was therefore not reviewable on the correctness standard. The question of whether an inquiry automatically terminated as a result of the Commissioner extending the 90-day period only after the expiry of that period, was a question which required interpretation of a home statute, and therefore a matter that would attract reasonableness, a deferential standard of review. Generally, timeline issues are not jurisdictional and are reviewable on a standard of reasonableness in this context.
The Court of Appeal found that, following A.T.A., the question of whether the Superintendent has the authority to extend the time to apply for a review of a 24-hour driving prohibition should be reviewed according to the standard of reasonableness. Here, the adjudicator was a delegate of the Superintendent, charged with reviewing the home statute. The determination of whether there can be an extension of time was made with knowledge of the broader specialized scheme. The discrete question involved a single procedural step within that scheme and was not a question of central importance to the legal system.
The Court of Appeal held that the chambers judge erred in implicitly applying the correctness standard to the adjudicator’s determination, and noted that the chambers judge did not have the benefit of the reasoning of the Supreme Court of Canada in A.T.A.
The adjudicator’s decision that the Superintendent had no authority to extend the time in which to file an application to review a 24-hour prohibition was reasonable. The Superintendent’s powers are statutory and are limited to powers specifically assigned to him. There was no power to extend time found in the statute. It was no answer to say that the Superintendent could extend time because nothing in the statute expressly excluded that authority. There are many cases holding that a right to appeal is statutory and compliance with preconditions to appeal is necessary to vest jurisdiction in an appellate or review body.
Therefore, the adjudicator’s decision was reasonable in light of the purposes and objects of the administrative scheme. The Act had, among its goals, the preservation of public safety on highways by providing expeditious and summary means by which unsafe drivers could be prevented from driving. A 24-hour loss of driving privileges is a relatively minor sanction. It would be inconsistent with the overall scheme to permit drivers who had been served with a 24-hour notice to apply for an extension of time to challenge that notice years later, as in this case. To permit such applications for extensions of time beyond the seven days would risk overloading the administrative scheme.
The adjudicator did not apply the reasoning in the Segers case, which had held that the Administrative Driving Prohibitions ought to have some flexibility with respect to the statutory period for review. Even though the language at issue between the 90-day driving prohibition and the 24-hour driving prohibition was virtually identical, an adjudicator is entitled to interpret his or her home statute, and is not bound to follow construction of a similar statutory section by the Court. An adjudicator’s interpretation of the home statute is to be treated with deference. The issue of whether the Segers case was correctly decided was left for a decision where a set of facts challenged it directly.
The adjudicator’s decision that there was no authority to extend time to apply for review of a notice served under Section 215.1(1) of the Act was not unreasonable. The appeal was allowed.
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