Quite apart from the constitutional analysis, the summary review procedures for those persons who wish to contest a notice of a parking infraction must be carefully scrutinized to ensure that the imposition of AMPS and its review, accord with the principles of procedural fairness as enunciated in Baker v. Canada (Minister of Citizenship and Immigration)[75]. In this regard, consideration must be paid to the following non-exhaustive factors:
A. the proximity of the administrative process to the judicial process;
B. the nature of the legislative scheme;
C. the impact of the decision on the person affected;
D. the legitimate expectations of the person affected;
E. the deference to be paid to the decision- maker .[76]
Examining each factor in order, the following analysis and conclusions emerge:
A. The proximity of the administrative process to the judicial process
There is no doubt that the administrative process for reviewing an AMP is distinct from that which would be applied by a court in a provincial offence. As described above, the reviewing officers – that is, the Screening Officer and the Hearing Officer are not judicial officials and under the Regulations they are appointed by the municipality. The first stage of review by a Screening Officer does not require any form of hearing and the City of Vaughan has approached this Regulatory provision by allowing the recipient of the penalty to attend a meeting with the Screening Officer. Since the Enforcement Officer is not required to attend, the process is not adversarial as in a court, but more in the nature of a mediation.[77] The second stage of review according to the Regulations does require that the Hearings Officer grant the requester an opportunity to be heard. However, the rules of evidence are not those of a court and the hearings process is less formal.
One resemblance between the AMPS enacted for parking infractions in Ontario and a judicial proceeding is the apparently open-ended discretion given to the reviewing authorities in determining the penalty that is actually imposed, albeit within the very small range of up to $100. It is difficult however, to conclude that this resemblance should be determinative when there is no indication that traditional sentencing principles –i.e. specific and general deterrence, rehabilitation, the nature of the act under consideration, for example, would all be weighed to the exclusion of any other factors, as it would in a court proceeding. The authors of a 2008 discussion paper prepared by the Administrative Justice Office of the Ministry of the Attorney General for British Columbia concluded that an AMP scheme may give a statutory decision maker discretion as to whether to impose a penalty and/or a discretion about the amount of the penalty to be imposed. [78]
B. The nature of the legislative scheme
As indicated above, [79] the express legislative purpose in the Regulations implementing the AMPS is to help the municipalities to control traffic and land use by promoting compliance with parking by-laws, not to punish wrongdoing.
C. The Impact of the decision to impose the amp on the person affected
This indicator is by no means determinative of whether decision makers have any obligation to act judicially and the extent of their obligation if one exists. [80] This is exemplified by more recent cases such as Martineau [81] in which a forfeiture order of $315,000 was not sufficient to invoke the Charter protection against self-incrimination .In Lavallee[82] a maximum AMP of one million dollars as well as non-monetary sanctions such as life- time trading bans were not sufficient to invoke any obligation to apply the laws of evidence applicable to judicial proceedings. Had the criminal sanction of imprisonment been available, there would, on the other hand, have been an obligation to act judicially. [83] The AMPS for parking infractions have relatively small maximum monetary penalties as well as the potential to withhold driving privileges if the penalties are not paid. The Law Reform Commission of Saskatchewan in a Consultation Paper on Administrative Penalties in June of 2009 concluded from the case law that since stringent procedural safeguards were reserved when matters of serious import were at stake, “…close scrutiny and appeal rights may not be necessary or appropriate if the penalty is small.”[84]
D. The legitimate expectations of the person affected
There are a number of reasons why vehicle owners and operators may wish to contest an AMP .The AMP Regulations 333/07 and 611/06 leave the grounds for cancellation or reduction of the AMP to the municipal by-law.[85] The Vaughan By-Law 156-2009 includes two grounds for cancellation or reduction- negating on a balance of probabilities the allegation in the penalty notice and undue hardship.[86] The City of Brampton Committee of Council in their report earlier this year, [87] recognized that parking violations could be legitimately challenged on a number of grounds outside of the accuracy of the allegations in a penalty notice. These grounds included:
· Failure on the part of a municipality to keep a record of a valid application for an overnight parking pass ;
· Road construction forcing vehicle owners and operators, for lack of alternatives, to park in contravention of parking by-laws.
To this list one could add other legitimate reasons for reduction or cancelation which would not qualify as grounds for cancellation or penalty reduction under the Vaughan By-Law. These would include a broken parking meter which would not accept payment. The vehicle would, as the allegation in the notice alleged, be parked in a location in which a valid ticket for that time was not in effect, but there would be some extenuating circumstances explaining the non-compliance. Similarly, if someone had an injured or pregnant person in need of urgent medical attention, the last thing that the vehicle operator would be thinking about when stopping in front of a hospital or clinic would be whether he/she was stopping in compliance with the parking sign. The City of Toronto has recently placed on its website a previously confidential set of guidelines for cancelling parking tickets.[88] Some of the additional grounds for cancellation include:
1. vehicles on delivery;
2. official vehicles including city or municipal vehicles;
3. utility vehicles such as Canada Post, Bell Canada, public utilities;
4. security companies and armoured cars;
5. tour buses;
6. religious observance;
7. stolen vehicles
Legitimate expectations should include the ability to challenge AMPS for all the above grounds and because not all grounds can be anticipated in advance, a penalty recipient should be permitted to raise any grounds. If the law is applied blindly without any consideration of mitigating circumstances, drivers may lose respect for it. The challenge to the AMP however, may not deserve a full cancellation of the penalty. After all, traffic and land use control may demand that in densely populated locations if, for example, the parking meter isn’t working, or construction or maintenance of a transmission line or light fixture is underway, the driver should find an alternative location to park. The law recognizes that drivers in particular, assume additional regulatory responsibilities when they apply for their licence. This was explained by Mr. Justice Cory in the Wholesale Travel case[89], where he cited with approval an article from Professor Webb[90] :
Before a regulator will authorize a regulatee to engage in controlled activities, the regulatee must agree to abide by a set of rules, and must be found fit to carry out the regulated activity. A driver’s licence is a good example of such an arrangement. In effect, this arrangement establishes and certifies that the regulatee knows the standards which he or she must meet, is capable of meeting them, and accepts that should his or her conduct fall below these standards, he or she may be subject to administrative actions and penalties prescribed in legislation, according to procedures which take into account the special knowledge of the regulatee. The fact that an accused is participating in a regulated activity and has met the initial “entrance requirements” leads to a legally imposed or assumed awareness on his or her part of the risks associated with that activity.
E. Deference to be paid to the decision- maker
This particular criterion has limited application to AMPS as the municipal enforcement officer and reviewing authorities have no particular expertise which would warrant any additional flexibility in the procedural safeguards.
F. Other Considerations
1. Independence and Impartiality
Aside from the above factors, consideration must be given to the extent to which administrative law principles require that the reviewing authorities, in this case, the Screening and Hearings Officers, are independent and impartial as would be expected of judicial authorities. Mr. Justice Gonthier, in giving his opinion in the Supreme Court of Canada case of 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool)[91] stated the following:
The three main components of judicial independence, namely security of tenure, financial security and institutional independence, were identified in Valente.[92] …. The purpose of these objective elements is to ensure that the judge can reasonably be perceived as independent and that any apprehension of bias will thus be eliminated. Independence is in short a guarantee of impartiality.
The principles developed by this Court in relation to judicial independence must be applied under s. 23 of the Charter. That does not mean of course that the administrative tribunals to which s. 23 applies must be in all respects comparable to courts of law. As is the case with impartiality, a certain degree of flexibility is appropriate where administrative agencies are concerned.
The Supreme Court has recognized that unlike courts, the degree of independence which tribunals possess is very much within the discretion of Parliament and the legislatures. In Ocean Port Hotel Ltd. v. British Columbia[93] the Court stated:
…Ultimately, it is Parliament or the legislature that determines the nature of a tribunal’s relationship to the executive. It is not open to a court to apply a common law rule in the face of clear statutory direction. Courts engaged in judicial review of administrative decisions must defer to the legislator’s intention in assessing the degree of independence required of the tribunal in question.
This principle reflects the fundamental distinction between administrative tribunals and courts. Superior courts, by virtue of their role as courts of inherent jurisdiction, are constitutionally required to possess objective guarantees of both individual and institutional independence. …
Administrative tribunals, by contrast, lack this constitutional distinction from the executive. They are, in fact, created precisely for the purpose of implementing government policy. Implementation of that policy may require them to make quasi-judicial [page795] decisions. They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government. However, given their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it. While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not. Thus, the degree of independence required of a particular tribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must be respected.
There are different legislative models for promoting the independence of administrative tribunals. The Chief Review Officer under C.E.P.A.[94] is appointed to hold office during good behaviour for a term of not more than three years, but may be removed by the Minister at any time for cause. This model would set a more onerous standard upon the Minister for removal of the Officer thereby ensuring a greater degree of independence. A simple notice of termination would not suffice, but would need to be accompanied by sufficient information to explain why the Officer lacked good behaviour , a dialogue, or some form of independent inquiry.[95]. The AMPS Regulations on the other hand, have given the municipalities more freedom to develop their own safeguards for independence in decision-making. They require that the municipalities develop policies and procedures to prevent political interference in the administration of the system, as well as conflict of interest guidelines and prohibit the enforcement officer issuing the penalty notice from accepting payment in respect of the penalty.[96] They also require that the appointment of the Hearing Officer be consistent with the conflict of interest guidelines developed and that the Hearing Officer conduct the hearing in an impartial manner.[97] The City of Vaughan has passed a By-Law establishing the position of Screening and Hearings Officers and empowering City Council to make the necessary appointments. The By-Law provides that members of City Council and relatives are ineligible for appointment as a Screening or Hearings Officer.[98] It further makes it an offence to attempt directly or indirectly to influence Screening and Hearings Officers.[99] While the By-Law does not achieve the same standard of independence for the reviewing officers as the Chief Review Officer under C.E.P.A., nor does it implement detailed conflict of interest guidelines, it should prove to be sufficient to meet acceptable current standards of practice in administrative law.
The Saskatchewan Law Reform Commission in their 2009 Consultation Paper on Administrative Penalties[100] observed that few of the laws authorizing Saskatchewan administrative penalties provided for decisions to be made by an adjudicator who was independent of the regulator who administered the legislation authorizing the penalties.
In Van Harken, the U.S. Court of Appeals, in denying a constitutional challenge to the administrative penalty system for parking infractions in Chicago, made the following statements which are equally applicable to the Ontario AMPS for parking infractions:
The plaintiffs also object to the fact that the hearing officers are hired by, and can be fired at will by, the City’s Director of Revenue, who may want to maximize the City’s “take” from parking tickets. Actually, this cannot be assumed. The Director of Revenue is appointed by and serves at the pleasure of the Mayor, whose concerns transcend the collection of parking fines. The enforcement of the parking laws is not merely a program for raising revenues; it is also designed to facilitate traffic flow. Compliance, which produces no revenue, may be as important to the City as noncompliance, which produces revenue but also clogs the streets. Compliance is not reliably promoted by absence of fair adjudication of contested parking violations; indeed, if parking fines are assessed randomly, you might as well park illegally, as you are as likely to be fined if you park legally. And drivers are voters, and so cannot be treated with an utter disregard for their predictable indignation at being fined for parking violations that they did not commit.
Judge Posner goes on to point out that the hearings officers have no financial stake in the outcome. He then observes that the plaintiffs’ argument would be slightly stronger if the Director of Revenue or his subordinates were hearing these parking cases, but even in that event,
…the mere fact that an administrative or adjudicative body derives a financial benefit from fines or penalties that it imposes is not in general a violation of due process…[101]
Professor Gerrard of Columbia University, in his unpublished paper on the Reform of Sanitation Laws in New York City observed that:
Where simple fairness rather than pressure from above is concerned, there is no reason to believe that hearing officers are less fair-minded as a group than judges.[102]
2. Right of Appeal
While there is no legal or constitutional requirement that an appeal should exist from any decision made by a statutory delegate, the principles of good public administration usually require that at least one level of appeal exist with respect to any delegate’s decision.[103] The AMPS Regulations for parking in Ontario satisfy this general rule of practice since the AMPS enforcement officer’s penalty is subject to review by the Screening Officer and the Screening Officer’s decision is subject to review by the Hearings Officer. In British Columbia, the Local Government Bylaw Notice Enforcement Act,[104] set up a type of AMP enforcement scheme which allows for appeals to qualified adjudicators whose decisions reached, on a standard of balance of probabilities, are protected from judicial review by a strong privative clause with the exception of errors of law. The cities of West and North Vancouver, as well as the District of North Vancouver, have used this legislation since 2004 and an evaluation of an eight- month pilot project found that the system resulted in fewer disputes, faster disposition of disputes and improved rates of fine payment. [105]
3. Written and Or Oral Representations
The AMPS Regulations for parking do not specify whether the review process before the Screening and or Hearings Officer can be written rather than oral. The Statutory Powers Procedure Act which expressly applies to the hearing before the Hearings Officer only, permits written hearings if the rules for the tribunal deal with written hearings.[106] The United Kingdom has enacted a civil penalty system which recognizes the right of the recipient of the penalty to make representations in writing.[107] Giving recipients of penalties the option to make their representations in writing could further expedite reviews. Canadian law accepts that while there may be a right to a hearing, the duty to be fair does not necessarily mean an oral hearing is required.[108] Careful consideration would have to be given however, to the question of whether or not a written submission either electronically or in writing, would increase the number of requests for review of the initial AMP. Section 17.1(3) of the Provincial Offences Act was introduced to eliminate the mail-in process of requesting a trial and replacing it with a personal attendance requirement. Legislators were anxious to avoid abuse of the mail-in provision by people who had no intention of ever truly defending themselves but hoped to get their payments delayed or nullified based on attrition. [109]
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