British Columbia v. Bolster et al.

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Newbury, Levine and Chiasson, JJ.A.
• Neutral Citation: 2007 BCCA 65
• Citation: (2007), 236 B.C.A.C. 46 (CA),2007 BCCA 65,[2007] 4 WWR 405,63 BCLR (4th) 263,236 BCAC 46,52 Admin LR (4th) 163,[2007] BCJ No 192 (QL),155 ACWS (3d) 153,59 CHRR 1,236 B.C.A.C. 46,(2007), 236 BCAC 46 (CA),[2007] B.C.J. No 192 (QL)
• Date: 02 February 2007

B.C. v. Bolster (2007), 236 B.C.A.C. 46 (CA);

    390 W.A.C. 46

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. FE.012

Her Majesty the Queen in Right of the Province of British Columbia (appellant/petitioner) v. William Bolster and the British Columbia Human Rights Tribunal (respondents/respondents)

(CA033531; 2007 BCCA 65)

Indexed As: British Columbia v. Bolster et al.

British Columbia Court of Appeal

Newbury, Levine and Chiasson, JJ.A.

February 2, 2007.

Summary:

Bolster had a visual disability. His visual acuity was not fully correctable with glasses or contact lenses. Despite this, Bolster held a class 1 driving licence which authorized him to drive semi-trailer trucks. In October 1998, the Superintendent of Motor Vehicles cancelled Bolster's licence without notice. Despite Bolster's ongoing appeals and requests, the Superintendent did not offer Bolster an individual functional driving assessment. In January 2003, Bolster filed a complaint with the British Columba Human Rights Commission. The Commission contacted the Superintendent and the Superintendent moved to deal with Bolster's case. The Superintendent advised Bolster that he was approved for an individual functional assessment at his expense. The Superintendent subsequently agreed to pay the costs. Bolster passed the assessment and was issued a class 1 driver's licence. A human rights tribunal concluded that the Superintendent had discriminated against Bolster by not providing him an individual functional driving assessment. The tribunal ordered the Province of British Columbia to pay $141,939.38 for the loss suffered by Bolster from October 1998 to January 2003, when he was unable to earn a living as a truck driver. The Province applied for judicial review.

The British Columbia Supreme Court, in a decision reported at [2005] B.C.T.C. 1491, dismissed the application. The Province appealed.

The British Columbia Court of Appeal dismissed the appeal.

Administrative Law - Topic 41

De facto doctrine - General - The Province of British Columbia appealed a human rights tribunal's decision requiring it to pay compensation for the loss suffered by the complainant during the period that he was unable to earn a living - The Province asserted that it was acting in accordance with a British Columbia Court of Appeal decision that was overturned in December 1999 and, accordingly, it should not be liable for compensation prior to December 1999 (the de facto doctrine) - Section 59 of the Administrative Tribunals Act provided that "In a judicial review proceeding, the standard of review to be applied to a decision of the tribunal is correctness for all questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness" - The Province asserted that the issue of whether the de facto doctrine applied was a question of law subject to the standard of correctness - The tribunal asserted that application of a legal principle to a set of facts was a question of mixed fact and law which came within the phrase "findings of fact" and, accordingly, was exempt from the standard of correctness - The British Columbia Court of Appeal held that the issue was a question of mixed fact and law, albeit a law-intensive question of mixed fact and law - However, questions of mixed fact and law were not "findings of fact" and were reviewable on the standard of correctness - See paragraphs 115 to 124.

Administrative Law - Topic 44

De facto doctrine - When applicable - Bolster had a visual disability - His visual acuity was not fully correctable with glasses or contact lenses - Despite this, Bolster held a class 1 driving licence - In October 1998, the Superintendent of Motor Vehicles cancelled Bolster's licence without notice - Despite Bolster's ongoing appeals and requests, the Superintendent did not offer an individual functional driving assessment - A human rights tribunal concluded that the Superintendent had discriminated against Bolster and ordered the Province of British Columbia to pay $141,939.38 for the loss suffered by Bolster from October 1998 to January 2003 (the date that the discrimination ceased) - The Province appealed the dismissal of its judicial review application, asserting that the Superintendent's actions were in accordance with a British Columbia Court of Appeal decision (the Grismer case) which was overturned in December 1999 and, accordingly, the Superintendent should not be liable for compensation prior to December 1999 (the de facto doctrine) - The British Columbia Court of Appeal rejected the assertion where (1) the doctrine's underlying purpose was to preserve law and order and the government's authority, none of which were at stake here; (2) unlike in Grismer, there was evidence that individual functional testing would be effective in assessing fitness - Prior to Grismer, the Superintendent had been ordered several times to consider each individual application for licence on its merits - Moreover, the legislation and the Superintendent's practices and procedures provided for the assessment of fitness by the application of more than a single standard; (3) although an order was binding on the parties until reversed, it was not binding on third parties and, where it was found to be wrong, the principle that it was "never a nullity" did not necessarily apply; and (4) the superintendent's intention was irrelevant to the determination of discrimination - See paragraphs 125 to 144.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See Administrative Law - Topic 41 ].

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - Section 59 of the British Columbia Administrative Tribunals Act, which came into effect on October 15, 2004, set out a process for determining the standard of review in a judicial review proceeding - The British Columbia Court of Appeal rejected an assertion that s. 59 applied immediately (i.e., to all judicial review applications heard after October 15, 2004) on the basis that it was a matter of pure procedure - The process of determining the standard of review was not purely procedure - However, s. 59 did apply immediately where it did not interfere with vested rights - See paragraphs 92 to 114.

Civil Rights - Topic 913

Discrimination - General principles - Complaints - Limitation periods - Bolster had a visual disability and his visual acuity was not fully correctable with glasses or contact lenses - Despite his disability, Bolster held a class 1 driving licence - In October 1998, the Superintendent of Motor Vehicles cancelled Bolster's licence without notice - Despite Bolster's ongoing appeals and requests, the Superintendent did not offer an individual functional driving assessment - A human rights tribunal concluded that the Superintendent had discriminated against Bolster and ordered the Province of British Columbia to pay $141,939.38 for the loss suffered by Bolster from October 1998 to January 2003 (the date that the discrimination ceased) - The Province appealed the dismissal of its judicial review application, asserting that the tribunal erred in finding that there was a continuing contravention or ongoing discrimination from October 1998 - The Province asserted that cancellation of Bolster's licence was a discrete event and the limitation period expired before Bolster filed his complaint - The British Columbia Court of Appeal rejected the assertion - The Superintendent's on-going failure to offer an individual functional driving assessment, after repeated appeals and requests, was "a succession or repetition of separate acts of discrimination of the same character" - Those acts continued until the Superintendent began to take steps to offer and arrange an individual assessment (January 2003) - See paragraphs 150 to 157.

Civil Rights - Topic 7003

Federal, provincial or territorial legislation - General - Interpretation of human rights legislation - The British Columbia Court of Appeal stated that "Human rights legislation is recognized as having a special character. It is to be interpreted so as to give it full force and effect, and is not to be limited except by express legislative language." - See paragraph 78.

Civil Rights - Topic 7071

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Compensation to victims - [See Administrative Law - Topic 44 ].

Civil Rights - Topic 7071

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Compensation to victims - Bolster had a visual disability - His visual acuity was not fully correctable with glasses or contact lenses - Despite this, Bolster held a class 1 driving licence which authorized him to drive semi-trailer trucks - In October 1998, the Superintendent of Motor Vehicles cancelled Bolster's licence without notice - Despite Bolster's ongoing appeals and requests, the Superintendent did not offer an individual functional driving assessment - A human rights tribunal concluded that the Superintendent had discriminated against Bolster and ordered the Province of British Columbia to pay compensation - The Province sought judicial review, asserting that the tribunal lacked jurisdiction to award compensation because the Crown was immune from damage-type awards respecting legislative or quasi-judicial decisions made by statutory decision-makers - The chambers judge held that the Superintendent was exercising a "business power", not quasi judicial functions - Alternatively, the Superintendent was not acting in good faith - The Province appealed - The British Columbia Court of Appeal stated that it was unnecessary to determine the nature of the Superintendent's licensing function because the Province's human rights laws precluded it from claiming immunity - The Province was subject to all of the Code's remedies - However, the court agreed with the Province that there was no basis to find a lack of good faith - See paragraphs 54 to 79.

Civil Rights - Topic 7071

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Compensation to victims - Bolster had a visual disability - His visual acuity was not fully correctable with glasses or contact lenses - Despite this, Bolster held a class 1 driving licence - In October 1998, the Superintendent of Motor Vehicles cancelled Bolster's licence without notice - Despite Bolster's ongoing appeals and requests, the Superintendent did not provide an individual functional driving assessment - A human rights tribunal concluded that the Superintendent had contravened s. 8 of the Human Rights Code by failing to provide a service customarily available to the public and ordered the Province of British Columbia to pay $141,939.38 for the loss suffered by Bolster from October 1998 to January 2003, when he was unable to earn a living as a truck driver - The Province appealed the dismissal of its judicial review application, asserting that s. 37 of the Human Rights Code did not authorize the tribunal to award compensation for lost opportunity - The Province asserted that the remedy had to be limited to the assessment and not compensation for the loss of the licence and the loss of opportunity flowing from that loss - The British Columbia Court of Appeal rejected the assertions - The tribunal took into consideration that, by the end of the tribunal's hearing, Bolster had passed an individual functional driving assessment and his licence had been reinstated - An order that the Superintendent offer such an assessment would not have been a remedy - See paragraphs 158 to 166.

Civil Rights - Topic 7118

Federal, provincial or territorial legislation - Practice - Limitation period - [See Civil Rights - Topic 913 ].

Crown - Topic 2887

Crown immunity - Exceptions - Denial of Charter or human rights - [See second Civil Rights - Topic 7071 ].

Limitation of Actions - Topic 17

General principles - Continuing acts and continuing losses - [See Civil Rights - Topic 913 ].

Motor Vehicles - Topic 7010

Licensing and regulation of drivers - Registrar or superintendent of motor vehicles (incl. powers and duties) - [See Administrative Law - Topic 44 ].

Motor Vehicles - Topic 7146

Licensing and regulation of drivers - Licence - Issue of - Vision requirements - [See Administrative Law - Topic 44 ].

Statutes - Topic 6744

Operation and effect - Commencement, duration and repeal - Prospective enactments - What constitutes - [See second Administrative Law - Topic 9102 ].

Statutes - Topic 6745

Operation and effect - Commencement, duration and repeal - Prospective enactments - Effect on matters in progress - [See second Administrative Law - Topic 9102 ].

Words and Phrases

Findings of fact - The British Columbia Court of Appeal considered the meaning of this phrase as used in s. 59 of the Administrative Tribunals Act, S.B.C. 2004, c. 45 - See paragraphs 115 to 124.

Cases Noticed:

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 37].

Superintendent of Motor Vehicles (B.C.) v. Council of Human Rights (B.C.) (1997), 100 B.C.A.C. 129; 163 W.A.C. 129; 44 B.C.L.R.(3d) 301 (C.A.), refd to. [para. 45].

Welbridge Holdings Ltd. v. Winnipeg (Greater), [1971] S.C.R. 957, refd to. [para. 55].

Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Montréal (Communauté urbaine), [2004] 1 S.C.R. 789; 319 N.R. 379; 2004 SCC 30, dist. [para. 56].

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, refd to. [para. 63].

Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.

Bhadauria v. Seneca College, [1981] 2 S.C.R. 181; 37 N.R. 455, refd to. [para. 73].

St. Jacques v. Fédération des employées et employés de services public Inc. (C.S.N.) et al., [1996] 2 S.C.R. 345; 198 N.R. 1, refd to. [para. 75].

Craton v. Winnipeg School Division No. 1 and Winnipeg Teachers' Association No. 1 of the Manitoba Teachers' Society, [1985] 2 S.C.R. 150; 61 N.R. 241; 38 Man.R.(2d) 1, refd to. [para. 78].

Superintendent of Motor Vehicles (B.C.) et al. v. Council of Human Rights (B.C.), [1994] 25 C.H.R.R. D/296 (B.C. Hum. Rts. Council), affd. [1996] 25 C.H.R.R. D/309; 1996 CarswellBC 1249 (S.C.), revd. (1997), 100 B.C.A.C. 129; 163 W.A.C. 129 (C.A.), revd. [1999] 3 S.C.R. 868; 249 N.R. 45; 131 B.C.A.C. 280; 214 W.A.C. 280, refd to. [para. 81].

Grismer - see Superintendent of Motor Vehicles (B.C.) et al. v. Council of Human Rights (B.C.).

St. James Community Service Society v. Johnston et al., [2004] B.C.T.C. Uned. 842; 2004 BCSC 1807, refd to. [para. 105].

R. v. Hutchinson (C.) et al., [2005] B.C.T.C. 1421; 49 B.C.L.R.(4th) 331; 2005 BCSC 1421, refd to. [para. 105].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 108].

Dikranian v. Quebec (Attorney General), [2005] 3 S.C.R. 530; 342 N.R. 1; 2005 SCC 73, refd to. [para. 111].

Oak Bay Marina Ltd. v. Human Rights Commission (B.C.) et al. (2002), 172 B.C.A.C. 267; 282 W.A.C. 267; 5 B.C.L.R.(4th) 115; 2002 BCCA 495, refd to. [para. 116].

Board of School Trustees of School District No. 44 (North Vancouver) v. Jubran et al. (2005), 211 B.C.A.C. 161; 349 W.A.C. 161; 253 D.L.R.(4th) 294; 39 B.C.L.R.(4th) 153; 2005 BCCA 201, refd to. [para. 116].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 117].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 127].

Air Canada and Pacific Western Airlines Ltd. v. British Columbia, [1989] 1 S.C.R. 1161; 95 N.R. 1; 59 D.L.R.(4th) 161, refd to. [para. 127].

Galiano Conservancy Association v. British Columbia (Minister of Transportation and Highways) et al. (1996), 17 B.C.L.R.(3d) 392 (S.C.), affd. (1997), 93 B.C.A.C. 149; 151 W.A.C. 149; 40 B.C.L.R.(3d) 171 (C.A.), refd to. [para. 127].

Canadian Transport (U.K.) Ltd. v. Alsbury et al. (1952), 7 W.W.R.(N.S.) 49 (B.C.C.A.), affd. [1953] 1 S.C.R. 516, refd to. [para. 131].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 237 D.L.R.(4th) 385; 2004 SCC 25, refd to. [para. 135].

Kingstreet Investments Ltd. et al. v. New Brunswick (Minister of Finance) et al. (2007), 355 N.R. 336; 309 N.B.R.(2d) 255; 799 A.P.R. 255; 2007 SCC 1, refd to. [para. 137].

Lewis v. British Columbia (Superintendent of Motor Vehicles) (1979), 18 B.C.L.R. 305; 108 D.L.R.(3d) 525 (S.C.), refd to. [para. 140].

Hutchison v. British Columbia (Solicitor General), [1990] 12 C.H.R.R. D/241 (B.C. Hum. Rts. Council), refd to. [para. 140].

Hussey v. British Columbia (Minister of Transportation and Highways), [1999] B.C.H.R.T.D. No. 63; 1999 CarswellBC 3179 (Hum. Rts. Trib.), refd to. [para. 140].

Lynch v. Human Rights Commission (B.C.) et al., [2000] B.C.T.C. 735; 2000 BCSC 1419, appld. [para. 154].

Manitoba v. Manitoba Human Rights Commission (1983), 25 Man.R.(2d) 117; 2 D.L.R.(4th) 759 (C.A.), appld. [para. 154].

O'Hara v. Human Rights Commission (B.C.) (2003), 180 B.C.A.C. 54; 297 W.A.C. 54; 2003 BCCA 139, refd to. [para. 155].

Statutes Noticed:

Administrative Tribunals Act, S.B.C. 2004, c. 45, sect. 59 [para. 92].

Authors and Works Noticed:

British Columbia, Hansard, Debates of the Legislative Assemby, vol. 25, No. 15 (May 18, 2004), p. 11193 [para. 121].

Côté, Pierre-André, Interpretation of Legislation in Canada (3rd Ed. 2000), pp. 160 to 161, para. 37 [para. 111].

Gibson, Dale, and Lercher, Kristin, Reliance on Unconstitutional Laws: The Saving Doctrines and Other Protections (1986), 15 Man. L.J. 305, generally [para. 89].

Hansard (B.C.) - see British Columbia, Hansard, Debates of the Legislative Assemby.

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 546 [paras. 98, 99]; 547 [paras. 98, 101]; 548 to 569 [para. 98]; 570 [paras. 98, 110]; 571 to 581 [para. 98]; 582 [paras. 98, 102]; 583, 584 [paras. 98, 103].

Counsel:

L. Greathead, for the appellant;

F. Kelly and J. Hadley, for William Bolster;

D. Paluck, for the British Columbia Human Rights Tribunal.

This appeal was heard at Vancouver, British Columbia on October 16 and 17, 2006, before Newbury, Levine and Chiasson, JJ.A., of the British Columbia Court of Appeal. Levine, J.A., delivered the following judgment for the court on February 2, 2007.