Judicial review of decision of Superintendent of Motor Vehicles upholding roadside prohibition. Decision of Superintendent set aside on basis that “warn” reading on approved screening device was not, on its own, evidence to indicate petitioner’s ability to drive was affected by alcohol.

Administrative law – Decisions of administrative tribunals – Superintendent of Motor Vehicles – Motor vehicles – Breathalyser test – Suspension of driver’s licence – Judicial review – Permits and licences – Evidence – Standard of review – Reasonableness simpliciter

Wilson v. British Columbia (Superintendent of Motor Vehicles), [2013] B.C.J. No. 1960, 2013 BCSC 1638, British Columbia Supreme Court, September 5, 2013, S.D. Dley J.

The petitioner was stopped at a police road check. He had an “odour of liquor” and admitted to consuming alcohol. The petitioner provided two samples of his breath. Both samples registered a “warn” on an approved screening device. The police officer issued an immediate notice of driving prohibition under the Motor Vehicle Act (the “MVA”).

The petitioner applied to the respondent Superintendent of Motor Vehicles (the “Superintendent”) for a review of the notice. The relevant provision of the MVA requires a reading of a “warn” on an approved screening device and reasonable grounds to believe, as a result of the analysis, that the driver’s ability to drive is affected by alcohol. The petitioner argued the police officer lacked reasonable grounds for issuing the notice because there was no evidence his ability to drive was affected by alcohol. The Superintendent found the notice itself, a signed statement in a prescribed form stating that the police officer had reasonable grounds to believe the petitioner’s ability to drive was affected by alcohol, was sufficient proof, and was corroborated by the “warn” reading. The Superintendent dismissed the application for review.

The petitioner applied to the British Columbia Supreme Court for judicial review of the Superintendent’s decision. The chambers judge applied a reasonableness standard on review of the Superintendent’s decision. The judge held the MVA requires both a “warn” reading and reasonable grounds to believe, as a result of the analysis of a sample of the driver’s breath, that the driver’s ability to drive is affected by alcohol. The judge held the MVA requires more than a “warn” reading; the MVA does not presume that a driver’s ability to drive is affected by alcohol solely on the basis of a “warn” reading. On the record before the Superintendent, there was no evidence the petitioner’s ability to drive was affected by alcohol. There was no evidence to suggest a “warn” reading would indicate the petitioner’s ability to drive was affected by alcohol. Therefore, the Superintendent’s decision was not defensible in respect of the facts and law, and was unreasonable.

The chambers judge quashed the decision. The chambers judge did not remit the matter to the Superintendent for a new hearing because there was no evidence in the record for reconsideration on the question of whether the petitioner’s ability to drive was affected by alcohol

This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at jmorris@harpergrey.com or review his biography at http://www.harpergrey.com..

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