Kenyon v. Superintendent of Motor Vehicles (B.C.) et al., (2015) 379 B.C.A.C. 304 (CA)

• Judge: Tysoe, Groberman and Dickson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 21, 2015
• Jurisdiction: British Columbia
• Citations: (2015), 379 B.C.A.C. 304 (CA);2015 BCCA 485

Kenyon v. Superintendent (2015), 379 B.C.A.C. 304 (CA);

    654 W.A.C. 304

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. NO.044

Lyle Anthony Kenyon (respondent/petitioner) v. Superintendent of Motor Vehicles and Attorney General of British Columbia (appellants/respondents)

(CA41596; 2015 BCCA 485)

Indexed As: Kenyon v. Superintendent of Motor Vehicles (B.C.) et al.

British Columbia Court of Appeal

Tysoe, Groberman and Dickson, JJ.A.

November 26, 2015.

Summary:

Kenyon was issued a prohibition under s. 215.41 of the Motor Vehicles Act on the basis that a sample of his breath registered a "fail" in an approved screening device (ASD). He applied under s. 215.48(1) of the Act to have the prohibition reviewed. At issue was whether he was the driver of the motor vehicle immediately prior to the police officer's request for the breath sample. The adjudicator found the officer's evidence to be more compelling than Kenyon's evidence, concluded that Kenyon was a driver within the meaning of s. 215.41(1), and confirmed the driving prohibition. Kenyon applied for judicial review.

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 168, held that the case could not safely be decided on the available evidence and that the adjudicator had resorted to a series of peripheral credibility tests, which was an unsound approach. The court allowed the application, set aside the adjudicator's decision and revoked the prohibition. The Superintendent of Motor Vehicles appealed.

The British Columbia Court of Appeal allowed the appeal and reinstated the adjudicator's confirmation of the driving prohibition. The court stated that "In my opinion, the adjudicator's reasoning process was not so lacking in logic or otherwise flawed to make her conclusion unreasonable. When her reasons are read as a whole, it is apparent the adjudicator found Mr. Kenyon's version of the events to be inherently implausible; she also relied on actions of Mr. Kenyon at the scene that were not consistent with his version. It is my view that the judge did not properly apply the reasonableness standard of review to the adjudicator's reasons and held the adjudicator to a higher standard than is required by law."

Administrative Law - Topic 3221

Judicial review - General - Unreasonableness of decision attacked (incl. reasonableness simpliciter) - See paragraphs 32 to 69.

Motor Vehicles - Topic 7222.1

Licensing and regulation of drivers - Licence - Suspension of - Administrative review - See paragraphs 32 to 69.

Motor Vehicles - Topic 7225.3

Licensing and regulation of drivers - Licence - Suspension of - Administrative or summary suspension - Impaired driving incidents - See paragraphs 32 to 69.

Motor Vehicles - Topic 7240

Licensing and regulation of drivers - Licence - Suspension of - Appeals and judicial review - See paragraphs 32 to 69.

Cases Noticed:

Nagra v. Superintendent of Motor Vehicles (B.C.) et al. (2010), 285 B.C.A.C. 133; 482 W.A.C. 133; 2010 BCCA 154, consd. [para. 29].

Whyte v. Superintendent of Motor Vehicles (B.C.) et al. (2013), 344 B.C.A.C. 247; 587 W.A.C. 247; 2013 BCCA 454, consd. [para. 29].

Scott v. Superintendent of Motor Vehicles (B.C.) et al. (2013), 348 B.C.A.C. 211; 595 W.A.C. 211; 2013 BCCA 554, leave to appeal denied (2014), 474 N.R. 399 (S.C.C.), consd. [para. 29].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 32].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 2 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 33].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 35].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 38].

Allen v. Workplace Health, Safety and Compensation Review Division et al. (2014), 357 Nfld. & P.E.I.R. 1; 1109 A.P.R. 1; 2014 NLCA 42, leave to appeal denied [2015] S.C.C.A. No. 344, refd to. [para. 43].

Power v. Workplace Health, Safety and Compensation Review Division (Nfld. and Lab.) et al. (2012), 318 Nfld. & P.E.I.R. 222; 989 A.P.R. 222; 2012 NLTD(G) 4, refd to. [para. 43].

Wilson v. Superintendent of Motor Vehicles (B.C.) (2015), 476 N.R. 60; 2015 SCC 47, refd to. [para. 44].

Shadow v. Superintendent of Motor Vehicles (B.C.) et al., [2002] B.C.T.C. 790; 2002 BCSC 790, refd to. [para. 45].

Rangi v. Superintendent of Motor Vehicles (B.C.) et al., [2014] B.C.T.C. Uned. 2343; 2014 BCSC 2343, refd to. [para. 52].

Sivia v. Superintendent of Motor Vehicles (B.C.) et al. (2015), 476 N.R. 3; 2015 SCC 46, refd to. [para. 59].

Goodwin v. Superintendent of Motor Vehicles (B.C.) et al. - see Sivia v. Superintendent of Motor Vehicles (B.C.) et al.

Mills v. Workplace Safety and Insurance Appeals Tribunal (Ont.) (2008), 237 O.A.C. 71; 2008 ONCA 436, refd to. [para. 61].

Guinn v. Manitoba (2009), 245 Man.R.(2d) 57; 466 W.A.C. 57; 2009 MBCA 82, refd to. [para. 61].

Counsel:

K.A. Horsman, Q.C., and S.A. Bevan, for the appellants;

S.R. Wright, for the respondent.

This appeal was heard at Vancouver, British Columbia, on October 21, 2015, by Tysoe, Groberman and Dickson, JJ.A., of the British Columbia Court of Appeal. Tysoe, J.A., delivered the following reasons for judgment for the court on November 26, 2015.