R. v. BC Transit 

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Laureen P. Nowlan-Card
for the Crown

Christopher M. Considine
for the Defence

THE COURT: (Oral) Well, this is a case where B.C. Transit is charged that as owner of a motor vehicle, specifically a bus, committed an offence contrary to section 151(7), now section 146(7) of the Motor Vehicle Act.

First of all, I have no difficulty in accepting the Crown's case that the vehicle involved was in fact speeding, going forty-one kilometres per hour in a thirty-kilometre-an-hour zone.

The question is: Has the disputant brought itself within subsection (3) of section 83.1 of the Motor Vehicle Act, in that have they exercised reasonable care and diligence entrusting the motor vehicle to the person who was at the time of the contravention in possession of the motor vehicle? The one concern that I had throughout was that the disputant might be saying and putting forward documents and having seminars, saying: Don't speed. Don't speed. Don't speed. And then setting routes that would make it very difficult for a driver to complete the route on time without speeding. My mind was relieved somewhat by the testimony that slack time was allowed and that there was a procedure in place for setting out the timing on the routes.

The Crown has referred me to two cases. The only one that I will deal with at all is Regina and Tilden Car Rental, a 1991 case, the Court of Alberta. On page 7, quoting Wholesale Travel with approval, it said:

Thus the question is not whether the accused has exercised some care, but whether the degree of care exercised was sufficient to meet the standard imposed. If the false advertiser or the corporate polluter and the manufacturer of noxious goods are to be effectively controlled, it is necessary to require them to show on a balance of probability that they took reasonable precautions to avoid the harm which actually resulted.
I think in the circumstances that, on the totality of the evidence, the disputant corporation has shown on a balance of probabilities that they took reasonable care and that they did meet the reasonable care and diligence test in subsection (3). I am, I guess the word is, "comforted" somewhat in reaching that decision by looking at the first document at tab 2. And in that document, it's something put out by the union, and it contains something which I regard as slightly inflammatory. It says:
Due to B.C. Transit Victoria's vindictive and heavy-handed approach to all employees that have been charged with a traffic violation for speeding, the company has said by way of a bulletin that any employee that has been charged will on the first offence be suspended, and on a second offence the employee will be dismissed.
Now, I take it from that that the union, at least, was aware that the management was doing virtually everything within its power, short of putting inspectors on every bus, to ensure that their drivers did not speed. Therefore, I have no difficulty, as I said, in finding that the company disputant has met the test set out in section 83.1(3).

Now, I do have to comment further on the apparently absurd result that this entails where an owner, in my understanding, that cannot force a driver to go through the nomination process, to come to court and say: We exercised reasonable care and diligence and there is apparently no way of getting the driver before the court. I don't know whether this is just something that the legislature missed. It is new legislation, after all, and it probably needs some fine-tuning. As I said earlier, it really goes against the grain to interpret a statute so as to create an absurdity, which I think I have done in finding that the disputant corporation is not liable because of this section. And there is no way of bringing the person who actually committed the offence before the court. However, I can't cure that and it is for the legislature to cure, or for a superior court to give me advice in this matter.

So the defence which the corporation has raised, based on section 83.1(3), I give effect to and the charge is accordingly dismissed.

MR. CONSIDINE: Thank you very much, Your Worship.

THE COURT: Thank you. I must say I hope to be given some guidance by the Court of Appeal.

MR. CONSIDINE: I hope the legislature will take it in hand because we were confronted with the problem right from the beginning, Your Worship, and that's been the difficulty.

Thank you very much for your time and all the other people, Your worship.

Rev: 1998.09.29