Case: Ahmad v. British Columbia (Superintendent of Motor Vehicles), 2024 BCCA 228

Keywords: Motor Vehicle Act, R.S.B.C. 1996, c. 318; fitness and ability to drive; 80 years old; Enhanced Road Assessment

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Synopsis:

The B.C. Superintendent of Motor Vehicles has a policy requiring all licenced drivers over 80 years of age to submit a Driver’s Medical Examination Report (“DMER”) to RoadSafetyBC, and to continue to do so every two years. (See para. 2; Ahmad v. British Columbia (Superintendent of Motor Vehicles), 2023 BCSC 965 (CanLII), at para. 8).

The Appellant falls under the Superintendant’s policy. He submits the necessary DMER. His physician reports the Appellant has certain medical conditions, but nothing “that might affect his driving ability”. (See para. 8). The Superintendent asks for further information – including the results of in-office screening tools designed to assess cognitive function – to determine the Appellant’s medical fitness to drive. The physician provides the Appellant’s Montreal Cognitive Assessment (“MoCA”) scores and response sheets. (See para. 9).

After reviewing this information, the Superintendent advises that “the results of in-office cognitive testing…indicate you may be experiencing cognitive changes”, and requires the Appellant to complete an Enhanced Road Assessment (“ERA”) (i.e., a road test conducted by a qualified examiner provided by the Insurance Corporation of British Columbia). (See paras. 2, 10-11).

Five “concerning aspects of [the Appellant’s] driving” are identified during the ERA. The Superintendent decides the Appellant is “unsafe to drive” and cancels his licence. (See para. 11). The Appellant protests his cancellation, seeking reinstatement on the basis that the direction to take the road test was arbitrary in light of his MoCA results, and that the examiner administered the ERA improperly. His physician provides a further medical report which “fully supported” the Appellant’s fitness to drive and indicates the Appellant “did not have cognitive impairment”; and “had average cognitive abilities for his age”. (See para. 12).

Receiving no response to his protest letters, the Appellant files a petition for judicial review of the Superintendent’s decision. Before the petition can be heard, the Superintendent issues a “Reconsideration Decision”, which upholds the initial decision but provides the Appellant another opportunity to take the ERA. (See para. 13). The Appellant declines the further ERA, and proceeds with his petition. (See para. 14). Justice Blake, hearing the petition, finds the requirements imposed by the Superintendent reasonable and within the authority of the office. For Justice Blake, the “definitive issue” is whether to dismiss the petition because the Appellant declined the second ERA. Finding this to be an adequate alternative remedy, she declines to entertain the petition for review. (See para. 19). The Court of Appeal (Saunders, Griffen, and Horsman, JJ.A.) dismisses the appeal. (See para. 44).

Importance:

The first issue on appeal was the Judge’s discretion to decline to hear the petition. Citing Casavant v. British Columbia (Minister of Environment and Climate Change Strategy), 2023 BCCA 320 at para. 30, the Court observed that a Judge’s exercise of discretion is subject to deference – the Court “may not interfere absent a palpable and overriding error of fact, an error of principle, reliance on irrelevant considerations, or failure to take into account relevant considerations.” (See para. 25). The Court noted that, even if there were a problem with the Judge’s exercise of discretion, the reviewing Court of Appeal adds its own layer of discretion as to whether to interfere with the underlying order which “is likely to depend upon the reasonableness of the impugned decision”, here the Superintendant’s decision. (See para. 25).

In this case, the Court of Appeal found the Judge “erred in principle” by finding the Appellant had “fatally failed to avail himself of an adequate alternative remedy of participating in another ERA”. (See para. 26). For the Court, an offer to take a further ERA was not an alternative remedy to his complaint that the initial ERA was unjustified and “[n]o fault can be attributed to him for taking a legal route to address his licensing status.” (See paras. 28-29). The Court of Appeal also noted that it would be an error in principle to “weigh the commencement date of the judicial review proceedings against the petitioner when deciding whether to hear the petition”. In other words, the Appellant’s decision to proceed with the petition after receiving the Superintendent’s Reconsideration Decision, and offer to re-take the ERA, was not improper. (See para. 30).

The Court of Appeal distinguished Wong v. British Columbia (Superintendent of Motor Vehicles), 2013 BCSC 2091, a case the Appellant argued had “limited the Superintendent’s authority to cancel a driver’s licence where there was no medical opinion that a medical condition made it dangerous for the licensee to drive”. (See paras. 18, 39). For the Court of Appeal, the issue in Wong was episodic behaviour, whereas this case is about the driving errors observed by the Appellant’s ERA examiner. (See para. 39).

As to the reasonableness of the Reconsideration Decision, the Court determined it was “not unreasonable” because the Superintendent had the driving examiner’s report that the Appellant “had made serious errors in his road test” and the examiner’s opinion that he was “not fit and able to drive”. In these circumstances, the Court found it was not unreasonable to require the Appellant to retake the ERA. (See para. 40).

Of further interest, the Court of Appeal noted a question that arose about the legal basis of the Superintendant’s jurisdiction to reconsider a licencing decision (i.e., since there was “no express provision in the [Motor Vehicle Act]for such a review”). The Court declined to address this concern, observing that the question was not “beyond debate”, but “leaving it to another day and a more complete record”. (See paras. 41-43). One may wonder how the Court concluded the Reconsideration Decision was, itself, “not unreasonable” if the legal basis for that decision remains to be determined? (See para. 40).

Counsel for the Respondent: N. J. Isaac and H. Stewart

Appellant: Appearing in person

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