Lang v. Superintendent,

• Jurisdiction: British Columbia
• Judge: Donald, Newbury and Low, JJ.A.
• Neutral Citation: 2005 BCCA 244
• Citation: (2005), 212 B.C.A.C. 78 (CA),2005 BCCA 244,254 DLR (4th) 111,43 BCLR (4th) 65,212 BCAC 78,28 Admin LR (4th) 299,[2005] BCJ No 906 (QL),254 D.L.R. (4th) 111,212 B.C.A.C. 78,(2005), 212 BCAC 78 (CA),[2005] B.C.J. No 906 (QL)
• Date: 25 April 2005
• Court: Court of Appeal (British Columbia)

Lang v. Superintendent (2005), 212 B.C.A.C. 78 (CA);

    350 W.A.C. 78

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. MY.010

Robert Lang (respondent/petitioner) v. The Superintendent of Motor Vehicles for the Province of British Columbia and the Attorney General of British Columbia (appellants/respondents)

(CA028764)

Roger Steven Corbett (respondent/petitioner) v. The Superintendent of Motor Vehicles for the Province of British Columbia and the Attorney General of British Columbia (appellants/respondents)

(CA028794)

Kim Charles Lucas (respondent/petitioner) v. The Superintendent of Motor Vehicles for the Province of British Columbia and the Attorney General of British Columbia (appellants/respondents)

(CA029799)

Michael Sebelius Feddersen (respondent/petitioner) v. The Superintendent of Motor Vehicles for the Province of British Columbia and the Attorney General of British Columbia (appellants/respondents)

(CA030648)

(2005 BCCA 244)

Indexed As: Lang v. Superintendent of Motor Vehicles (B.C.) et al.

British Columbia Court of Appeal

Donald, Newbury and Low, JJ.A.

April 25, 2005.

Summary:

Four motorists were given a driving prohibition after each provided a breath sample which was recorded to exceed the legal blood-alcohol level. The motorists each applied to have their driving prohibition reviewed by an adjudicator appointed under the Motor Vehicle Act, as the Superintendent's delegate. The reviews were dismissed. Each motorist petitioned for judicial review of the adjudicator's decision.

The British Columbia Supreme Court allowed all four petitions with costs. Three of the decisions are reported at [2000] B.C.T.C 928, [2002] B.C.T.C. 272 and [2003] B.C.T.C 208. The Superintendent and the Province appealed the costs orders.

The British Columbia Court of Appeal allowed three of the four appeals.

Administrative Law - Topic 3349

Judicial review - Practice - Costs - The British Columbia Court of Appeal held that, on a judicial review application, the Attorney General could appear in his own right (i.e., as a party) to speak for the public interest and could advocate for the statutory decision maker (i.e., the tribunal) if the latter had not engaged separate counsel - The court held that if the decision in question was set aside, costs should not be levied against the tribunal unless (a) the tribunal exhibited misconduct or perversity in the proceedings before it or (b) made submissions on the merits of the judicial review application and did not limit itself to jurisdiction - The Attorney General could be liable in costs if (a) the tribunal did not file an appearance to the petition; and (b) the Attorney General argued the merits of the tribunal's decision - See paragraphs 26 to 43.

Crown - Topic 4427

Actions by and against Crown in right of a province - Proceedings against the Crown Acts - Actions to which Act applicable - The British Columbia Court of Appeal held that all proceedings against the provincial Crown were not subject to the Crown Proceeding Act - The Crown Proceeding Act dealt with claims against the Crown (i.e., the liability of the Crown in the ordinary sense) - In judicial review, there was no true lis between the subject and the Crown - The issue was the jurisdiction of the tribunal (although there might be another party truly adverse in interest such as between a union and an employer in a labour relations dispute) - While s. 19 of the Judicial Review Procedure Act provided that "This Act is subject to the Crown Proceeding Act", this was in order to harmonize the power to issue an injunction or a declaration with the immunity provided in s. 3(2)(a) of the Crown Proceeding Act - See paragraphs 18 to 20.

Crown - Topic 4704

Actions by and against Crown in right of a province - Practice - Proper Crown party - The British Columbia Court of Appeal held that the representative of the provincial Crown in proceedings under the Judicial Review Procedure Act was the Attorney General, not Her Majesty the Queen in Right of the Province of British Columbia - The court stated that "The argument that Her Majesty the Queen is the proper party respondent to a judicial review proceeding proceeds on a fundamental misunderstanding of the origin and nature of the proceeding. Although put in modern dress, judicial review under the Act remains in substance the process by which the Sovereign supervises the jurisdiction of a Crown agency. If the agency acted outside its jurisdiction then the Queen's Court remits the matter for proper determination. To name the Sovereign as a party moved against is to place the Sovereign on both sides of the dispute, which is absurd." - See paragraphs 22 to 25.

Practice - Topic 7035.1

Costs - Party and party costs - Entitlement to party and party costs - Against the Crown or governmental bodies - [See Administrative Law - Topic 3349 ].

Practice - Topic 7242.1

Costs - Party and party costs - Offers to settle - Grounds for denying double costs - A motorist (Corbett) was given a driving prohibition after providing a breath sample which was recorded to exceed the legal blood-alcohol level - He applied to have the driving prohibition reviewed by an adjudicator appointed under the Motor Vehicle Act, as the Superintendent's delegate - The review was dismissed - Corbett petitioned for judicial review of the adjudicator's decision - The application judge allowed the petition and awarded double costs based on Corbett's offer to settle - The British Columbia Court of Appeal held that the award of double costs was an error for two reasons - First, neither the adjudicator nor the Attorney General could be treated as ordinary litigants with respect to costs - There was no true lis between the parties - It was inappropriate to give effect to an offer to settle when the parties referred to in the offer were not adverse in interest and the only question was the tribunal's jurisdiction - Second, there was no contest of any kind at the judicial review hearing - The Crown consented to an order sending the matter back to the adjudicator to conduct a hearing free of the error identified in another case - See paragraph 55.

Cases Noticed:

Dennis v. Superintendent of Motor Vehicles (B.C.) (2000), 146 B.C.A.C. 73; 239 W.A.C. 73; 82 B.C.L.R.(3d) 313; 150 C.C.C.(3d) 544; 2000 BCCA 653 (C.A.), reving. (1999), 15 B.C.T.C. 251; 45 M.V.R.(3d) 10 (S.C.), refd to. [para. 10].

Pointon v. Superintendent of Motor Vehicles (B.C.) et al. (2002), 174 B.C.A.C. 173; 286 W.A.C. 173; 6 B.C.L.R.(4th) 112; 2002 BCCA 516, refd to. [para. 15].

Gordon v. R. et al. (2002), 166 B.C.A.C. 285; 217 W.A.C. 285; 100 B.C.L.R.(3d) 35; 2002 BCCA 224, refd to. [para. 15].

Hollinger Bus Lines v. Ontario (Labour Relations Board), [1952] 3 D.L.R. 162; [1952] O.R. 366 (C.A.), refd to [para. 18].

Allen v. Superintendent of Motor Vehicles (B.C.) et al. (1986), 2 B.C.L.R.(2d) 255; 27 C.C.C.(3d) 519; 42 M.V.R. 25 (S.C.), refd to. [para. 22].

Smithers v. Olsen (1985), 60 B.C.L.R.(3d) 377 (C.A.), refd to. [para. 24].

Auckland Harbour Board v. R., [1924] A.C. 318 (P.C.), dist. [para. 41].

Canada (Attorney General) v. Stuart, J., and Savard (1996), 74 B.C.A.C. 81; 121 W.A.C. 81; 106 C.C.C.(3d) 130; 47 C.R.(4th) 281 (Y.T.C.A.), leave to appeal denied, [1997] 1 S.C.R. xi, dist. [para. 42].

Transair Ltd. v. Canadian Association of Industrial Mechanical and Allied Workers, Local #3; Re Canada Labour Relations Board, [1977] 1 S.C.R. 722; 9 N.R. 181; 67 D.L.R.(3d) 421, refd to. [para. 50].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 683; 23 N.R. 565; 12 A.R. 449, refd to. [para. 50].

Paccar of Canada Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers, Local 14, [1989] 2 S.C.R. 983; 102 N.R. 1; 62 D.L.R.(4th) 437, refd to. [para. 50].

Statutes Noticed:

Crown Proceeding Act, R.S.B.C. 1996, c. 89, sect. 2 [para. 19].

Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, sect. 19 [para. 17].

Authors and Works Noticed:

Brown, D.J.M., and Evans, J.M., Judicial Review of Administrative Action in Canada (1998), para. 5-2560 [para. 47].

Halsbury's Laws of England (3rd Ed. 1955), vol. 7, pp. 382, 383, paras. 806, 807 [para. 26].

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (4th Ed. 2004), generally [para. 23].

McLachlin, Beverley M., and Taylor, James P., British Columbia Practice (2nd Ed.) (Looseleaf), Issue 36, generally [para. 35]; p. 55 [para. 36].

Counsel:

J.G. Penner and R. Mullett, for the appellants;

R.P. Helme and R.M. Junger, for the respondents, R. Lang, R.S. Corbett and K.C. Lucas;

W.C. MacGregor, for the respondent, M.S. Feddersen.

This appeal was heard at Victoria, B.C., on February 1 and 2, 2005, by Donald, Newbury and Low, JJ.A., of the British Columbia Court of Appeal. Donald, J.A., delivered the following decision for the court on April 25, 2005.