Transit Authority

  • April 01, 2019
  • Brandon Hastings

Fair evasion?

Public transportation in Metro Vancouver is administered by the South Coast British Columbia Transportation Authority (“Translink”), whose board (the “Translink Board”) is comprised of seven or more individuals appointed under Part 8 of the South Coast British Columbia Transportation Authority Act (“Act”).

Under section 245(1) of the Act, Translink “must, by bylaw, establish a scheme to enhance [Translink’s] collection of fares.” This power is probably limited to tickets (ss. 245(1) and 245(2)), and any fines must not exceed $1,000 by regulation. Translink must also, “in the fare collection bylaw, .… establish dispute and appeal procedures.” Any such bylaw must be approved by the mayor’s council on regional transportation (s. 246), but the minister may add, amend, or repeal any fare collection bylaw by regulation [ss. 245(6) and 245(7)].

Translink’s bylaws related to fare collection (the “Fare Collection Bylaw”) are enforceable by, among others, the South Coast British Columbia Transportation Authority Police Service (the “Transit Police”) [Act at s. 243]. According to Wikipedia, the Transit Police are the only police force in Canada dedicated solely to transit matters.

The current Fare Collection Bylaw is not a bylaw of Translink, but a regulation by Order in Council (No. 498).
It was put into force on June 22, 2012 – well before the advent of Compass cards or turnstyles.

The Fare Collection Bylaw stipulates two fines with a penalty of $173: fare evasion, and failure to produce. Fines escalate to $213, then $273 on nonpayment for 180 days and 266 days, respectively. Appeals are to a Translink arbitrator, and the only substantive ground of appeal is that the infraction was not committed as alleged (Act at s. 253 and Fare Collection Bylaw at s. 7(1)). The arbitrator’s decision is then referable to the Provincial Court for review, governed by the procedure set out in the Fare Infraction Review Referral Regulation, B.C. Reg. 88/2013. This process doesn’t appear to provide any opportunity for argument on unfairness or unconstitutionality of the Fare Collection Bylaw itself, and it’s not clear that would be appropriate in any case because it is a bylaw and therefore such a challenge might have to be to the enabling legislation.

There are at least two ways to look at this situation. On the one hand, we have a Crown corporation that provides benefit to the public good, and is able to safeguard its main revenue-generating function through bylaws that apply to those using its services. Those bylaws are subject to vetting by elected officials, and are subject to oversight by an MLA. On the other hand, there is a corporation in BC that has its own police force. That corporation is able to create police-enforceable bylaws, the breach of which results in a debt payable to the corporation. That corporation is also largely charged with determining the justice process with respect to bylaw breaches.

Translink, to its credit, has apparently exercised its power fairly responsibly thus far. The current Fare Collection Bylaw is passed not by Translink, but by Order in Council. Nonetheless, one could be forgiven if they were discomfited by the idea of a corporation able to pass revenue-generating, police-enforceable bylaws, applicable to the public, while at the same time determining the justice processes with respect to breaches of those bylaws – processes which, at the moment, appear to render the bylaws with absolute liability.


Brandon D. Hastings is a lawyer and mediator at Quay Law Centre, CBABC Provincial Council representative, and co-founder of Vancouver Legal Hackers.
@BHastingsLaw
facebook.com/BHastingsLaw
ca.linkedin.com/in/bhastingslaw