This was an application pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 by the Petitioner for an order of certiorari quashing the decision of an Adjudicator acting under section 94.5 of the Motor Vehicle Act, R.S.B.C. 1996, c.318 (“MVA”). The Adjudicator’s decision confirmed an administrative driving prohibition imposed on the Petitioner by a police officer. The Court held that the applicable standard of review with respect to the decision of the Adjudicator, based upon a finding of fact, is patent unreasonableness. The Court held that the Adjudicator’s decision was not patently unreasonable and dismissed the application for judicial review.

27. February 2007 0

Administrative law – Motor vehicles – Breathalyser test – Adjudication – Decisions of administrative tribunals – Superintendent of Motor Vehicles – Judicial review – Evidence – Admissibility – Standard of review – Patent unreasonableness

LeBlanc v. British Columbia (Superintendent of Motor Vehicles), [2006] B.C.J. No. 3237, British Columbia Supreme Court, December 14, 2006, Bruce J.

A police officer issued a notice of driving prohibition to the Petitioner as he concluded that there were reasonable and probable grounds to believe, by reason of an alcohol test, that the Petitioner consumed alcohol in excess of the legal limit. The Petitioner pursued her right, under section 94.4 of the MVA, to have this notice reviewed by an Adjudicator.

The only evidence before the Adjudicator was the Report to Superintendent completed by the police officer who served the Petitioner with a notice of driving prohibition. The main issue before the Adjudicator was whether the Report was properly sworn evidence within the meaning of section 94.5(1) of the MVA when the date shown in the jurat pre-dated the date of the alleged incident. Relying on R. v. Ramirez, [1992] B.C.J. No.1776 (B.C.S.C.), and on R. v. Dean (1985), 57 A.R. 81 (Q.B.), the Adjudicator concluded that any inconsistency in the date did not render the report untrustworthy. The Adjudicator dismissed the Petitioner’s argument. The Petitioner then sought judicial review of the Adjudicator’s decision.

The BCSC explained that the court plays a strictly supervisory role in a judicial review application to ensure the administrative tribunal acts within its jurisdiction and accords the Petitioner a fair hearing. The Court also held that the standard of review with respect to the Adjudicator’s decision, based upon a finding of fact, is patently unreasonable rather than correctness.

The main issue before the Court was whether the Adjudicator’s decision, that the Report before her was properly sworn and thus admissible under section 94.5(1)(a) of the MVA, was clearly irrational or devoid of any reasonable evidentiary foundation. The court discussed Ramirez and Dean, and held that the Adjudicator’s application of the case law was appropriate. The Court explained that it was clearly not a patently unreasonable error for the Adjudicator to draw upon the legal principles discussed in authorities such as Ramirez and Dean which concerned defects in another type of sworn document forming part of a judicial proceeding. The BCSC was satisfied that the inference drawn by the Adjudicator was not a patently unreasonable one. The Court therefore dismissed the Petitioner’s application for judicial review.

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