Uncovering Disguised Correctness Review? Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47

Canadian courts have sometimes described undeferential reasonableness review as “disguised correctness”, cases in which a court says it is applying a reasonableness standard but in fact performs its own analysis of the law and the facts to reach an independent conclusion that it labels ‘reasonable’ or ‘unreasonable’. Here are some examples of judicial uses of the term. Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47 is a recent Supreme Court of Canada decision that might be described as an example of this phenomenon. I think, however, that this would be unfair.

Wilson concerned an administrative-law challenge to a decision taken under the British Columbia roadside prohibition scheme considered in Goodwin (see my post, though note the scheme had been slightly modified by the time the facts in Wilson occurred). Wilson was subjected to a breath test by a police officer at a roadside stop. He registered a ‘Warn’, which resulted in a three-day suspension. He sought a review of this decision, arguing that the police officer did not have reasonable grounds to issue the notice. He was unsuccessful before an adjudicator who was a delegate of the Superintendent.

The relevant statutory provision provides that a police officer shall issue a prohibition where he or she “has reasonable grounds to believe, as a result of the [breath] analysis, that the driver’s ability to drive is affected by alcohol” (emphasis in decision, at para. 2). Wilson argued, in essence, that the officer could not impose a prohibition based on the breath test alone; he supported this argument by reference to Charter values, suggesting that a requirement of reasonable grounds be read into the statute in order to provide appropriate protections to individuals pulled over by police officers.

Moldaver J. began by commenting that the principles of statutory interpretation provide “helpful guidance” to a reviewing court tasked with assessing the reasonableness of an administrative decision (at para. 18). Indeed, they “must be kept in mind” by the reviewing court (at para. 19). He went on to hold that the text, the surrounding context and the purpose of the provision were consistent with the adjudicator’s interpretation: “The provision is unambiguous. The adjudicator’s interpretation is the only plausible one” (at para. 42). In the absence of ambiguity, there was no role for Charter values to play.

Does this mean that Moldaver J. committed the cardinal sin of substituting his own analysis for that of the decision-maker? I do not think so. Here, Wilson launched an attack on the reasonableness of the decision-maker’s interpretation by pointing to the text, context and purpose of the provision. Certainly, if the decision-maker had ignored important text or failed to give effect to the statutory purpose, there would be a case for judicial intervention; there would have been a “badge” or indicium of unreasonableness. But I read Moldaver J.’s opinion as simply saying that there was nothing amiss. Rothstein J.’s recent discussion of the meaning of “prudence” in ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45 is similar, a patient explanation of why the alleged errors by the decision-maker were not at all unreasonable. In some cases where reasonableness seems to closely resemble correctness, it may simply be a symptom of the way the case is argued.

This content has been updated on October 27, 2015 at 15:43.