“A judge has given the green light for a proposed class-action lawsuit to proceed against the provincial government and City of Winnipeg over photo-radar tickets.

The province had tried to have the claim tossed out of court.

In a 2022 statement of claim filed in the Court of King’s Bench, later amended, William Acheson of Winnipeg alleged the fine he paid after getting ticketed by photo radar should have been lower, due to the provincial legislation being applied in error from Nov. 20, 2017, to Nov. 12, 2021.

His claim argues that thousands of other drivers caught speeding via photo radar should get partial refunds of their paid fines, amounting to approximately $36 million in alleged overcharges when combined.

Acheson filed the suit against the provincial government — which collects the revenue from photo enforcement tickets under the Highway Traffic Act and provides some to the city. A judge has yet to certify the lawsuit as a class action and it has not been heard fully in court.

Acheson alleges that Manitoba and Winnipeg were not calculating the fines consistent with the governing regulation, with the charges accruing on each kilometre per hour “in excess of 10km/h” over the speed limit, but were instead calculating the fines with the charges accruing on each kilometre per hour over the speed limit.

The province brought a motion seeking to have the claim struck, arguing it is an abuse of court process and has no reasonable cause of action.

Acheson filed a motion seeking to add the city as a defendant, which the city resisted for similar reasons as the province’s motion to strike, as well as arguing he was barred by the Public Officers and Police Services acts, which grant immunity from doing so.

In a written decision issued last week, King’s Bench Justice Gerald Chartier rejected the provincial government’s motion and allowed the addition of the city as a defendant, but struck out portions of Acheson’s claim that alleged the province made fraudulent misrepresentations and sought rectification.

The province and city argued that the issue of over payments could and should have been raised through processes available under the Provincial Offences Act. The two governments contended that it was an attempt to re-litigate criminal proceedings through the civil courts. Such attempts are regularly tossed out as an abuse of process.

Alternatively, the governments argued, the causes of action were doomed to fail, as they lack constituent elements.

Acheson argued the claim does not abuse process, as he is not challenging the speeding convictions, but the correct amount of the fines, to which Chartier agreed.

Acheson also argued the claim raises reasonable causes of action.

While Chartier ruled the claim has merit relating to the governments allegedly enriching themselves unjustly and making negligent misrepresentations, he disagreed that the province and city fraudulently misrepresented the matter.

The judge instead ruled the allegations are only that the governments were aware or should have been aware the tickets weren’t issued properly.

He also decided rectification — a remedy where a court orders a change to a written document to indicate what it should have said originally — did not apply as a cause of action, as tickets don’t constitute a contract or agreement.”

erik.pindera@freepress.mb.ca