Accused of wasting court's time, Translink responds with lawsuit

Weeks after TransLink was accused of misusing "scarce judicial resources" to fight a student who mistakenly boarded a bus with her boyfriend's U-Pass, the transit authority is responding — with a lawsuit.

TransLink has now filed a B.C. Supreme Court petition to quash a decision in which Vancouver provincial court Judicial Justice Zahid Makhdoom asked why — at some point along a complicated legal and bureaucratic path — the company couldn't just have accepted Inna Danylyuk at her word.

"When queried, she had a perfect explanation: both passes look the same, in a hurry to get to my school, inadvertently I switched mine with my boyfriend's," Makhdoom wrote.

"Mindful of the stark dichotomy of shrinking public resources and increasing public needs, TransLink would have been better off demonstrating diligence in exercise of its fiduciary duties to the people of this province and save a student, likely already in debt, from incurring further indebtedness, or worst, waste her time with appeals and further appeals."

'Expensive, rather scarce judicial resources'

Makhdoom went on to tear a further strip off the transit authority, saying that in all likelihood, the "public is offended when its resources are misused. When such misuse involves hugely expensive, rather scarce judicial resources, there is a much greater likelihood of a much eroded public esteem for, and confidence in the administration of justice."

TransLink won't comment on the case, or its legal strategy, because the matter is once again before the courts.

But in a 26-page petition, the company argues that Makhdoom overstepped his boundaries by considering facts other than the reasonableness of an arbitrator who ruled that Danylyuk had to pay the $173 ticket.

"It is the arbitrator's decision, and not the validity of the ticket per se, that is under review," the petition says.

"The provincial court must ask whether the arbitrator committed a reviewable error of fact, law or of procedure in rendering the appeal decision — not whether the person seeking review can establish other reasons for being relieved of liability."

'I believe TransLink is partially at fault'

Danylyuk's ownership of a valid U-Pass on November 7, 2013 has never been in dispute.

She told an initial TransLink officer, then a reviewer, then an arbitrator and, finally, Makhdoom that her partner was a BCIT student and she was enrolled at Langara.

The cost of the U-Pass is part of tuition, although students have to obtain a pass on a monthly basis. The U-Pass used to be issued annually, with the student's picture on it, but that stopped shortly before Danylyuk was ticketed.

The only difference between Danylyuk's pass and her boyfriend's were the letters BIT before the numbers on his and the letters LC on hers. She testified to having "no clue" about the prefixes.

"The switch of two U-Passes from two different institutions ... only happened because they look identical," Danyluk wrote in referring the case to provincial court.

"I believe TransLink is partially in fault (for making them look the same) because I would not take the wrong pass if I saw the difference between the two."

Empathy — but 'legislation is clear'

According to the Supreme Court documents, Terry Robins, supervisor of fare infraction administration, was the first level of review.

He ruled in TransLink's favour, writing: "although I can empathize with your situation, you weren't able to produce the proper UPASS that was valid to you."

At the next level, an arbitrator also sided with TransLink: "While I accept (Danylyuk's) evidence, the legislation is clear."

Makhdoom called it "noteworthy" that both the dispute screening representative and the independent arbitrator are TransLink employees.

In the Supreme Court petition, the company also argues that Makhdoom wrongly classified the basic offence as one in which an accused can avoid liability by proving they took reasonable care — as opposed to one of "absolute liability" such as a parking ticket.

TransLink also claims the U-Passes are distinguishable if you sign the back.