The Appellant Superintendent unsuccessfully appealed a decision of the British Columbia Supreme Court. The B.C. Supreme Court had granted, in part, the Respondent driver’s judicial review application in respect of an adjudicator’s driving prohibition.

25. August 2009 0

Administrative law – Decisions of administrative tribunals – Superintendent of Motor Vehicles – Suspension of driver’s licence – Breathalyser tests – Certificate of analysis – Jurisdiction – Judicial review – Compliance with legislation – Standard of review – Correctness

Mitchell v. British Columbia (Superintendent of Motor Vehicles), [2009] B.C.J. No. 1428, British Columbia Court of Appeal, R.E. Levine, K.E. Neilson and H. Groberman JJ.A.

The Respondent driver, Mitchell, was stopped at a road check and the breathalyzer tests indicated an illegal blood alcohol level. Mitchell was prohibited from driving and sought a review of the Notice of Prohibition on the basis that the police officer failed to send a Certificate of Analysis to the Superintendent as required by the Motor Vehicle Act. The Superintendent confirmed the prohibition despite the absence of evidence explaining why there was no Certificate of Analysis sent to the Superintendent’s office.

Mitchell sought judicial review of the Superintendent’s decision and the B.C. Supreme Court held that the Superintendent should not have confirmed the prohibition in the absence of evidence about the missing Certificate of Analysis. The B.C. Supreme Court did not accept Mitchell’s submission that the Superintendent should have revoked the notice of prohibition and instead remitted the matter back to the Superintendent.

The Court of Appeal first considered whether the Supreme Court applied the appropriate standard of review. The B.C. Supreme Court applied the “patently unreasonable” standard. The Court of Appeal found that the applicable standard of review is correctness because the question is a jurisdictional one inasmuch as the question is whether the legislation authorizes the Superintendent to proceed with the hearing in the absence of an existing Certificate of Analysis. The Court of Appeal concluded that the Superintendent is not authorized to complete a review if a copy of an existing Certificate of Analysis is not before him or her. If there is evidence that the Certificate of Analysis was lost or destroyed, that evidence, if accepted, will enable the Superintendent to proceed because there is no existing Certificate of Analysis. Therefore, the B.C. Supreme Court decision was correct.

The Appellant also argued that the B.C. Supreme Court should have invoked section 9 of the Judicial Review Procedure Act and exercised its jurisdiction to refuse to grant the relief sought by Mitchell because the error was a technical irregularity. The Court of Appeal could not find that the Supreme Court decision was unreasonable when it refused to exercise that discretion in favor of the Superintendent.

The Appeal was dismissed.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at or review his biography at

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