IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Yuen v. British Columbia (Superintendent  
of Motor Vehicles),  
2022 BCSC 986  
Date: 20220613  
Docket: S170780  
Registry: Vancouver  
Between:  
And  
Amanda Maria Yuen  
Petitioner  
The Superintendent of Motor Vehicles and the Attorney General of British  
Columbia  
Respondents  
Before: The Honourable Justice Fitzpatrick  
Reasons for Judgment  
(Hearing proceeded via MS Teams)  
Counsel for the Petitioner:  
Counsel for the Respondents:  
Place and Date of Hearing:  
A. Chamgoulova  
K. Chewka  
Vancouver, B.C.  
May 11, 2022  
Place and Date of Judgment:  
Vancouver, B.C.  
June 13, 2022  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 2  
Introduction  
[1]  
On July 9, 2016, the petitioner, Amanda Yuen, was served with a Notice of  
Driving Prohibition (the “Notice”) under s. 215.41(4) of the Motor Vehicle Act,  
R.S.B.C. 1996, c. 318 [Act] for refusing to comply with a demand for a breath  
sample.  
[2]  
Pursuant to s. 215.48 of the Act, Ms. Yuen applied to the respondent,  
Superintendent of Motor Vehicles (the “Superintendent”), for a review of the driving  
prohibition, arguing that the prohibition under the Notice should be revoked. On  
November 18, 2016, M. Dimech, the Superintendent’s delegate (the “Adjudicator”)  
issued a decision declining to revoke the driving prohibition (the “Decision”).  
[3]  
In January 2017, Ms. Yuen filed this petition, seeking judicial review of the  
Decision. From 2017-2022, this hearing for judicial review was delayed given that  
other persons had filed constitutional challenges to the Immediate Roadside  
Prohibition (IRP) scheme created by the Act (the “IRP Scheme”). Those challenges  
ultimately failed: Lemieux v. British Columbia (Superintendent of Motor Vehicles),  
2019 BCCA 230; leave to appeal ref’d [2020] S.C.C.A. No. 38807.  
[4]  
Accordingly, the parties are now ready to proceed to the merits of the judicial  
review. Ms. Yuen argues that the Adjudicator made an unreasonable decision in  
concluding that she refused to comply with a demand to provide a sample of breath  
into an approved screening device” or ASD. The respondents disagree, stating that  
the Decision is transparent, justifiable, and intelligible and falls within a range of  
possible, acceptable outcomes defensible in respect of the facts and the law.  
Legislative Framework  
[5]  
The respondents have helpfully summarized the IRP Scheme as is relevant to  
this judicial review, which I have lightly edited for readability:  
Sections 215.41-215.51 of the Act establish the IRP Scheme as an  
administrative regime designed to deter alcohol-impaired driving  
through the issuance of roadside prohibitions and promote public  
safety. The IRP scheme has two phases: firstly, an officer issues the  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 3  
notice of driving prohibition; secondly, a driver has the option of  
seeking a review of the prohibition by the Superintendent.  
If reasonable grounds exist, an officer must issue a notice of roadside  
prohibition to the driver where the officer makes a demand, pursuant  
to the Criminal Code, for a sample of breath for analysis by an ASD,  
and the driver fails or refuses, without reasonable excuse, to provide a  
sample of breath into the ASD: Act, s. 215.41(4).  
An officer who serves a notice of driving prohibition on a driver must  
promptly forward several documents to the Superintendent: the  
driver’s licence or permit, a copy of the notice of driving prohibition, a  
certificate of personal service on the driver, a report and, in the case  
of a driving prohibition resulting from the analysis of a sample of  
breath, information relating to the calibration of the ASD. The officer is  
not required to forward information relating to the calibration of the  
ASD where there was a refusal or failure to provide a breath sample:  
Act, s. 215.47.  
Within seven days of receiving an IRP, a driver may apply to the  
Superintendent for a review of the prohibition and the Act sets out the  
required procedures for the review: Act, s. 215.48.  
On a review, the Superintendent must consider information from a  
variety of sources, including any relevant statement or evidence  
submitted by the applicant, the officer’s report, a copy of the notice of  
driving prohibition and other relevant documents and information  
forwarded by a peace officer who served the notice: Act, s 215.49(1)  
In relation to the information before the Superintendent on review:  
o
The Superintendent may determine the weight to be given to  
any document or other information: Act, s. 215.49(4);  
o
The Superintendent may consider any information that may  
assist him or her in coming to a decision, including “technical  
materials”, which includes “technical, medical or scientific  
evidence or information” relating to ASDs: Act, s. 215.49(5)-  
(6).  
Section 215.5(4) of the Act sets out the sole grounds on which the  
Superintendent may revoke the driving prohibition. To revoke an IRP  
issued for failure or refusal to comply with a demand for a breath  
sample, the Superintendent must find that the driver did not fail or  
refuse to provide the sample, or had a reasonable excuse for failing to  
comply with the demand: Act, s. 215.5(4)(c).  
The applicant/person served with the notice of driving prohibition who  
seeks the review bears the burden of proof on that review: Act,  
s. 215.5(1).  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 4  
The Decision  
[6]  
On the review, the Adjudicator considered various materials forwarded by the  
Vancouver Police Department (VPD), the relevant documents being:  
a)  
b)  
The Notice;  
Constable Rieger’s (the VPD officer who served the Notice on  
Ms. Yuen) Report to Superintendent dated July 9, 2016 (the “Report”);  
c)  
d)  
The Certificate of a Qualified Alco-Sensor FST Calibrator, Serial  
Number 204636 dated June 20, 2016 which included various technical  
information (the “Certificate”); and  
Constable Rieger’s Occurrence Report or narrative dated July 9, 2016  
(the “Narrative”).  
[7]  
In support of her position, Ms. Yuen filed her affidavit sworn July 26, 2016,  
along with the affidavit of Paul C. Doroshenko sworn April 30, 2015. Ms. Yuen’s  
counsel also forwarded various submissions to the Adjudicator for consideration.  
[8]  
The fundamental issue before the Adjudicator was whether Ms. Yuen failed or  
refused to blow into the ASD device properly so as to cause a reading, so as to  
engage s. 215.5(4)(c) of the Act. Constable Rieger’s evidence was that she had  
purposely not blown properly. Ms. Yuen’s evidence was that she had done her best  
but the ASD device had not registered a reading. Otherwise, Cst. Rieger and  
Ms. Yuen’s respective evidence as to the circumstances of the traffic stop were  
substantially consistent.  
[9]  
Prior to considering the competing evidence and assessing the credibility of  
Cst. Rieger and Ms. Yuen, the Adjudicator was required to address certain  
evidentiary issues, which in part form the grounds for Ms. Yuen’s review. I will  
discuss those below.  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
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Standard of Review  
[10] The parties agree on the applicable standard of review, being  
reasonableness. The parties further agree that Canada (Minister of Citizenship and  
Immigration) v. Vavilov, 2019 SCC 65 [Vavilov] is the leading authority on the  
reasonableness standard of review.  
[11] In this Court’s first review of a driving prohibition after Vavilov, Justice Crerar  
in Wood-Tod v. The Superintendent of Motor Vehicles, 2020 BCSC 155 at  
paras. 31-47 summarized the process and principles that apply from Vavilov. In  
Mason v. British Columbia (Superintendent of Motor Vehicles), 2020 BCSC 1619 at  
paras. 4-9, Justice Hori similarly succinctly summarized the process and principles  
from Vavilov in respect of this type of review. I need not repeat what is found in  
those respective decisions.  
[12] Both counsel agree that pre-Vavilov BC cases applied the same approach  
that was later confirmed in Vavilov in 2019 and that, as such, those prior decisions  
remain relevant today: Rossiter v. British Columbia (Attorney General), 2021 BCSC  
1743 at paras. 13-16.  
[13] Both Ms. Yuen and the Superintendent place some emphasis on the Court of  
Appeal’s discussion of what “manifest flaws” could render a decision to be  
unreasonable. In Kenyon v. British Columbia (Superintendent of Motor Vehicles),  
2015 BCCA 485, the court stated that the route to or reasoning leading to a decision  
must be reasonable as well as the decision itself:  
[53]  
Judicial review judges should read the reasons of the adjudicator  
as a whole in order to assess whether the reasoning is so lacking in logic, or  
is otherwise flawed, that it renders the decision unreasonable despite the fact  
there is some evidence to support a conclusion that the decision falls within a  
range of acceptable outcomes.  
[54]  
The phrase “manifestly flawed” was used in Scott, and it appears that  
judges of the Supreme Court have seized upon the phrase. The use of the  
term was not intended to replace the requirement that judicial review judges  
should review the reasons as a whole in order to assess whether the pathway  
to the conclusion is reasonable.  
[55]  
Judicial review judges should not parse or dissect the reasoning. In  
order to set aside the decision, any flaw in reasoning should be obvious and  
should be fundamental to the conclusion reached by the adjudicator. In  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
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reviews of roadside driving prohibitions, where credibility is frequently the  
central issue, judges should not substitute their own credibility findings in  
place of those of the adjudicator. The fact that the adjudicator’s reasoning is  
flawed in one respect does not necessarily lead to the conclusion that the  
reasoning as a whole is unreasonable. It is necessary to consider the  
reasons as a whole and determine whether the flaw is central to the  
conclusion.  
[14] In Kirby v. British Columbia (Superintendent of Motor Vehicles), 2019 BCSC  
1625, Justice Matthews summarized the “contours of reasonableness” in IRP cases:  
[14]  
Several decisions of this court and several appellate decisions have  
addressed the contours of reasonableness in immediate roadside prohibition  
cases. In summary, a decision will be unreasonable if the route to the  
decision engages a “manifestly flawed” reasoning process that is central to  
the decision that is, if unjustifiable, non-transparent, or unintelligible  
reasoning is used to arrive at the result such that the flaw is obvious and  
fundamental to the conclusion. A decision is not unreasonable if, despite  
defects or debatable findings of fact or debatable reasoning, it is apparent  
that the adjudicator has considered and analyzed the evidence in manner  
which is defensible and transparent. Credibility findings are the purview of the  
adjudicator and so long as they are based on evidence and are transparent,  
deference shall be given to them, see: Kenyon v. British Columbia  
(Superintendent of Motor Vehicles), 2015 BCCA 485 at para. 53-55; Pawloski  
v. British Columbia (Superintendent of Motor Vehicles), 2017 BCCA 406 at  
para 20; Clark v. British Columbia (Superintendent of Motor Vehicles), 2015  
BCCA 487 at para. 28; Scott v. British Columbia (Superintendent of Motor  
Vehicles), 2013 BCCA 554 at para. 31, leave to appeal ref’d [2014] S.C.C.A.  
No. 73; Whyte at para. 11; Nagra at paras. 27-28; Pan v. British Columbia  
(Superintendent of Motor Vehicles), 2012 BCSC 1766 at paras. 21-22; Mains  
v. British Columbia (Superintendent of Motor Vehicles), 2015 BCSC 1701 at  
para 19; and Rangi v. British Columbia (Superintendent of Motor Vehicles),  
2014 BCSC 2343 at paras. 24-26.  
[15] Finally, in Kirby at para. 15, Matthews J. provided examples of a “manifestly  
flawed reasoning process”. Credibility was one of the main issues before the  
Adjudicator. Accordingly, Ms. Yuen places some emphasis on one of those  
examples from Kirby, as follows:  
[15]  
a)  
the adjudicator, in assessing credibility, according a  
presumption of reliability to the police officer's report and  
requiring the respondent to refute the statements in the report;  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 7  
Grounds for Judicial Review  
[16] Ms. Yuen argues the Decision is unreasonable in concluding that she refused  
to comply with the demand to provide a breath sample into an ASD. In argument,  
Ms. Yuen’s counsel confirmed the two grounds for this judicial review:  
a)  
The Adjudicator did not reasonably resolve the issue as to which ASD  
device was used by Cst. Rieger; and  
b)  
The Adjudicator did not reasonably resolve the conflict in the  
respective evidence of Cst. Rieger and Ms. Yuen as to the failure to  
comply with the demand for a breath sample, in arriving at the  
Adjudicator’s credibility findings. Within this issue, Ms. Yuen also  
argues that the Adjudicator unreasonably addressed Cst. Rieger’s  
evidence in relation to the issue as to whether there was a delay in  
administering the ASD test.  
Discussion  
[17] I will address the two grounds for judicial review separately below. However,  
Ms. Yuen argues that the Adjudicator’s unreasonable resolution of the first issue  
(which ASD device was used) also impacts on the Adjudicator’s credibility findings  
with respect to Cst. Rieger.  
Type of ASD Used  
[18] In BC, two ASDs are currently being used by police: the Intoximeter Alco-  
Sensor IV DWF (the “DWF”) and the Intoximeter Alco-Sensor FST (the “FST”). Both  
devices are prescribed ASDs for the purpose of ss. 215 and 215.41(2) of the Act,  
pursuant to the Approved Screening Device Regulation, B.C. Reg. 590/2004  
[Regulation].  
[19] In the Report, Cst. Rieger was required to “tick” which of these ASD devices  
he had used. He “tickedthat the DWF had been used. In the Report, he also noted  
that the serial number of the ASD was “204636” and that the ASD temperature was  
“within range”.  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 8  
[20] However, the other police evidencethe Narrative and the Certificateboth  
referred to an FST being used, not a DWF:  
a)  
In the Narrative, in relation to making a demand for a breath sample,  
Cst. Rieger specifically referred to the ASD as “FST, (SN#204636; had  
temperature within range).” In describing Ms. Yuen’s total number of  
blowing attempts, Cst. Rieger also referred to her blowing into the  
“FST”; and  
b)  
The Certificate specifically related to the FST and recorded the same  
serial number as noted on the Report and the Narrative. In addition,  
the Technical Information in the Certificate confirmed that FST devices  
had a six digit serial number starting with a “2”; that it had to be “within  
the acceptable temperature range” before it would work; and, that if  
there is no attempt to blow a samplewithin three minutes of a test  
sequence, the device will show a “TIME OUT” message.  
[21] Before the Adjudicator, Ms. Yuen argued this was a material conflict in the  
police evidence and that if Cst. Rieger:  
cannot properly record which device he used then he cannot possibly say  
with confidence that [Ms. Yuen] intentionally refused.  
[22] In other words, Ms. Yuen advanced this argument as indicating that  
Cst. Rieger’s evidence as to Ms. Yuen’s blowing attempts was not reliable. The  
Adjudicator provided reasons for rejecting this argument.  
[23] Now, on this judicial review, Ms. Yuen advances a different argument. She  
now contends that:  
without knowing what ASD was used, [Ms. Yuen] could not be found to  
have refused to comply with an [ASD] demand, since the identification of the  
device as an ASD was not clear.  
[24] As the Superintendent’s counsel notes, this argument was not raised before  
the Adjudicator and is only now being raised on this judicial review. For that reason  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 9  
alone, the Superintendent says that the Adjudicator cannot be said to have erred by  
failing to consider an argument that was advanced before her on the review and that  
this “new” argument ought to be summarily rejected: Vandale v. Workers’  
Compensation Appeal Tribunal, 2013 BCCA 391 at para. 54.  
[25] I agree. In that event, this argument, at best, stands to be considered within  
the overall issue as to how the Adjudicator addressed the reliability of Cst. Rieger’s  
evidence, just as it was framed before the Adjudicator.  
[26] In any event, for the sake of completeness, I will address the merits of  
Ms. Yuen’s “new” argument, as now framed.  
[27] The Adjudicator agreed there was a conflict in the evidence as to which type  
of ASD was used, but ultimately rejected Ms. Yuen’s argument. The Adjudicator  
provided reasons why she considered that reasonable inferences arose from the  
evidence to establish that Cst. Rieger had, in fact, used an FST device and that he  
had simply “ticked the wrong box on the Report”. The Adjudicator referred to the  
following factors in coming to this conclusion:  
The consistent serial number recorded by the officer is 204636. The  
Technical Information tells us that Alco-Sensor FST devices used in  
BC have a six digit serial number starting with a 2.  
The officer recorded the ASD temperature as “within range”. The  
Technical Information sheet tells us that the Alco-Sensor FST is  
designed to provide maximum accuracy when the internal  
temperature is between -12 and 55 degrees C. The Alco-Sensor FST  
temperature is displayed briefly before a test is started and operators  
are trained to ensure the unit is within the acceptable temperature  
range (emphasis mine) before conducting a test. The device will not  
proceed with a subject test if the displayed temperature is not in the  
acceptable range of -12 and 55 degrees C, and therefore Alco-Sensor  
FST operators are not required to note the operating temperature.  
On page 2 the Narrative, the officer wrote that he “provided  
[Ms. Yuen] with no less than 15 opportunities to blow into the FST …”  
The officer recorded that the ASD provided a “time out” message. The  
Technical Information tells us that with the Alco-Sensor FST, if there  
is no attempt to blow a sample within a 3 minute window of the test  
sequence, it will end with a “TIME OUT” message.  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 10  
[28] It is clear the Adjudicator was aware of the inconsistency in the evidence and  
that, if the “ticking” in the Report was in error, to what extent “ticking” the DWF box  
negatively impacted the reliability of Cst. Rieger’s evidence. The Adjudicator  
concluded:  
… I do not question the officers’ ability to properly record his observations of  
your blow behavior simply because he ticked the wrong box on the Report.  
[29] Ms. Yuen argues that the Adjudicator could not have concluded that an FST  
device was used because of a lack of evidence as to what technical information  
might have related to DWFs. Specifically, she says that the Adjudicator employed  
“logical fallacies” in her conclusions, in that DWFs may have the same type of serial  
numbers (six digits starting with “2”) and be operated in the same fashion as FSTs  
(with a correct operating temperature and with a “TIME OUT” message). In essence,  
Ms. Yuen argues that, without other evidence as to the features of a DWF, the  
Adjudicator could not have reasonably concluded that the stated features of the FST  
were unique and specific to the FST only.  
[30] In my view, this argument has no merit.  
[31] As argued by the Superintendent, the resolution as to whether Cst. Rieger  
used an FST or DWF device has no impact on the essential requirements to support  
the issuance of the Notice. Both the DWF and FST are approved ASDs under the  
Regulation. Constable Rieger was only required to prove a failure or refusal to  
comply with a “demand” for a sample of breath and that it be for analysis “by means  
of an approved screening device”: Act, s. 215.41(4).  
[32] Further, there was a substantial evidentiary record before the Adjudicator that  
Cst. Rieger had used an ASD, despite the confusion about whether it was a DWF or  
FST. In the Report, the DWF was “ticked” in the box labelled “ASD Identification”.  
There are many references in the Narrative to ASDs generally, the “ASD demand”  
and to the FST in particular. Constable Rieger refers to asking Ms. Yuen to exit her  
vehicle so that he could administer a “roadside screening device”. He then refers  
specifically to the FST, its serial number and that it had “temperature within range”.  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 11  
[33] Finally, the Certificate provided to the Adjudicator referred to the FST with the  
same serial number noted by Cst. Rieger in both the Report and the Narrative.  
[34] In my view, there was evidence before the Adjudicator to support the  
conclusion that Cst. Rieger used an ASD (namely, the FST) in conjunction with his  
demand for a sample of breath.  
[35] The facts in Swaby v. British Columbia (Superintendent of Motor Vehicles),  
2012 BCSC 1612 are distinguishable. In Swaby, Justice Williamson found that there  
was no evidence to establish that the officer had used an ASD and therefore, the  
decision to uphold the driving prohibition was unreasonable: paras. 9-14.  
[36] A more relevant and compelling authority is Pan v. British Columbia  
(Superintendent of Motor Vehicles), 2012 BCSC 1766. In Pan, Justice Fisher, as she  
then was, upheld a driving prohibition where the officer had failed to record the type  
or serial number of the ASD. Nevertheless, the officer referred to the demand as an  
“ASD demand” and also referred to the device as an “ASD”: para. 11. At paras. 37-  
38, this Court noted that this was “some evidence” to support that an ASD was used.  
[37] Similarly, in Polson v. British Columbia (Superintendent of Motor Vehicles),  
2014 BCSC 700, the officer’s Report to Superintendent had not been completed to  
indicate which device had been used: para. 74. However, the narrative or  
occurrence report made various references to an ASD being used. At paras. 93-95,  
Justice Skolrood followed Pan and found that the adjudicator’s reliance on this  
evidence was reasonable toward finding that an ASD had been used.  
[38] The lack of evidence as to the specifics and operating procedures of a DWF  
device had no impact on the Decision. As such, it cannot be said that the Adjudicator  
effectively reversed the onus of proof onto Ms. Yuen to “disprove” that an ASD has  
been used. Even if it had been proven that Cst. Rieger used a DWF device, the  
Adjudicator would have gone on to consider the issue as to whether Ms. Yuen had  
failed or refused to blow into the ASD.  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 12  
[39] In any event, as stated above, the Adjudicator identified and addressed the  
conflict in the evidence on the issue of which ASD device had been used. I disagree  
with Ms. Yuen that the Adjudicator “sidestepped” the reasoning process toward  
resolving this conflict. The Decision clearly addresses the issue and, in my view,  
show a path of reasoning that is supportable in the circumstances.  
[40] In that regard, the Adjudicator was entitled to consider the evidentiary record  
and decide the weight to be given to Cst. Rieger’s evidence: Act, s. 215.49(4). The  
Adjudicator did not “supply” the evidence upon which she relied, as Ms. Yuen  
contends. In my view, the Adjudicator properly identified those parts of the evidence  
(quoted above) that supported her conclusion that the DWF “tick” was in error.  
[41] Finally, I see no merit in Ms. Yuen’s argument that the Adjudicator ignored  
evidence in the Narrativei.e., Cst. Rieger’s reference to the ASD device as an  
“instrument”as it relates to this issue. This specific argument was not put before  
the Adjudicator. Further, when the Narrative is read as a whole, it is very apparent  
that Cst. Rieger was referring to the ASD when his report refers to an “instrument”.  
The fact that he did not use the technical word “device” set out in the Regulation  
does not detract from his evidence.  
[42] The Decision, in relation to this point, was reasonable. The Adjudicator  
addressed the issue before her and stated the factors that supported her  
conclusions. Both the reasoning on this point and the Adjudicator’s conclusions are  
supportable by the evidence. Further, having resolved the issue as to which ASD  
was used, the Adjudicator reasonably found that the error in the “ticking” of the ASD  
box did not detract from the reliability of Cst. Rieger’s evidence. Frankly, I do not see  
that any measure of common sense would dictate a different conclusion.  
[43] I see no error on the part of the Adjudicator. The Decision reflects the  
Adjudicator’s conclusion that Cst. Rieger made this clerical error. In that event, the  
Adjudicator then properly then turned to a consideration of Cst. Rieger’s other  
evidence on the merits in the context of the larger issue, namely, whether Ms. Yuen  
had failed or refused to blow into the ASD.  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 13  
Credibility  
[44] Ms. Yuen argues that the Decision was unreasonable in that the Adjudicator  
preferred Cst. Rieger’s evidence regarding her blowing behaviour, rather than her  
own evidence.  
[45] Ms. Yuen did not contend that Cst. Rieger failed to make a valid demand for a  
breath sample. Again, the evidence concerning what happened after the demand  
was made was substantially consistent as between the officer and Ms. Yuen.  
[46] Constable Rieger stated that prior to reading the ASD demand, he explained  
how to provide the sample. After the ASD demand was made at 1:27 a.m., the  
officer then proceeded to have Ms. Yuen attempt to blow into the ASD. After two  
failed attempts, the officer again demonstrated to Ms. Yuen how to blow into the  
ASD. Constable Rieger describes that 15 attempts were made, which led to either  
an insufficient sample or a “TIME OUT” message. Constable Rieger states that at  
1:40 a.m., he then advised Ms. Yuen that she was refusing to provide a breath  
sample and he issued the Notice to her.  
[47] Ms. Yuen also states in her affidavit that she made 15 attempts to blow into a  
“roadside breathalyzer” after Cst. Rieger demanded a breath sample and explained  
the procedure. She further confirms that she attempted to blow 15 times, with  
Cst. Rieger further providing demonstrations or explanations over that time. Finally,  
Ms. Yuen confirmed that eventually, after all these attempts, Cst. Rieger “wrote up  
some documents” and handed them to her while explaining the driving prohibition  
and the impounding of her vehicle. Ms. Yuen’s evidence did not refer to the times of  
the ASD demand and the service of the Notice as the “Refusal” so as to confirm the  
time lapsed between these two events while the 15 attempts were taking place.  
[48] Accordingly, the substance of the issue was the Adjudicator’s assessment of  
the evidence as regards Ms. Yuen’s 15 attempts to blow into the ASD. Constable  
Rieger stated that she had not done it properly on purpose. Ms. Yuen stated the  
opposite, namely that she had made best efforts to blow properly. She denies that  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 14  
she intentionally pretend[ed] to blow or block the [ASD’s] mouthpiece or puff[ed] out  
air.  
[49] Prior to turning to this central issue, one aspect of the Decision concerned  
another admitted conflict in the evidencenamely, Ms. Yuen’s contention that there  
was a 13-minute delay between the time of demand and the time of the first test with  
the ASD test. Before the Adjudicator, Ms. Yuen argued that (a) a 13-minute delay  
took place; and (b) that the delay resulted in a breach of her s. 8 Charter rights. The  
Adjudicator resolved this issue on the first question only. She found that no 13-  
minute delay occurred and therefore, there was no Charter violation.  
[50] As with the first issue (which ASD device was used), Ms. Yuen has  
substantially recast her argument from that which was before the Adjudicator. Now,  
Ms. Yuen does not press the overall argument toward establishing any Charter  
violation. Rather, she contends that the Adjudicator’s resolution of the underlying  
factual issuewhether there was a 13-minute delaywas unreasonable and was  
therefore, not considered in her overall assessment of the reliability and/or credibility  
of Cst. Rieger’s evidence.  
[51] Constable Rieger’s evidence on the delay issue is as follows.  
[52] In the Report, Cst. Rieger noted the following actions and times of those  
actions:  
01:25 hours - Driving or Care or Control  
01:25 hours - Suspicion formed  
01:27 hours - ASD Demand  
01:40 hours - Time of Test  
01:40 hours - Time of Refusal  
[53] In the Narrative, Cst. Rieger also stated:  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 15  
01:25 hours - Constable Rieger stopped Ms. Yuen’s vehicle, noted a  
strong smell of alcohol coming from the driver and observed that she had  
glassy, reddish eyes and cheeks that were blushed.  
Constable Rieger then described Ms. Yuen’s various attempts to blow. He  
made no note of the specific times for some or all of the 15 attempts.  
01:40 hours - Constable Rieger informed Ms. Yuen that she was refusing  
to provide a breath sample, read her the “Refusal” from a Charter card  
and informed her of the 90-day driving prohibition.  
[54] Ms. Yuen argues that Cst. Rieger’s timeline in the Report is not possible and  
that there was a 13-minute unexplained delay between the time of the ASD demand  
(01:27 hours) and the time of the first test (01:40 hours).  
[55] The Adjudicator rejected the argument that there had been a 13-minute delay  
between the ASD demand and the first test. As she was required to do, the  
Adjudicator’s assessment of this issue involved considering all the evidence,  
including that found in the Report and the Narrative. In resolving the conflict between  
those documents, the Adjudicator found that 01:40 hours was not the time of the first  
test; rather, it was the time the officer informed Ms. Yuen that she was refusing to  
provide a sample of breath.  
[56] The Adjudicator stated at pp. 7-8 of the Decision:  
... Turning to the officer’s evidence in the Narrative, he records that at 01:27  
he read the ASD demand to you. He describes his observations of your  
attempts to provide a sample, and at 01:40 hours he stated that he informed  
you that you were refusing to provide a breath sample and read the “Refusal”  
from the departmental issued Charter card. In my view, based on a common  
sense reading of the officer’s evidence in the Narrative, I am able to conclude  
two things:  
1.  
The officer’s recording in the Report of 01:40 hours as the time of the  
first test amounts to a clerical error only. I find that 01:40 hours was  
not the time of the first test (i.e. not the time you first started  
attempting to provide a sample), rather 01:40 hours is the time the  
officer informed you that you were refusing to provide a sample.  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 16  
2.  
There was no thirteen minute “delay”. Rather, the thirteen minute  
“delay” [Ms. Yuen’s counsel] referred to as a “flagrant and wilful”  
Charter violation was not a delay at all. Instead, it was the amount of  
time the officer allowed for you to provide a suitable breath sample.  
Based on my analysis, I do not agree with [Ms. Yuen’s counsel] that there  
was a thirteen minute delay. As such, there is no section 8 Charter violation.  
Consequently, there is no reason for me to reduce the reliability or credibility  
of the officer’s evidence in this matter based on [Ms. Yuen’s counsel’s]  
allegation of a Charter violation.  
[Emphasis added.]  
[57] Leaving aside the now abandoned Charter issue, Ms. Yuen argues that the  
Adjudicator “supplied” the necessary facts or filled in “gaps” in the evidence, so as to  
sidestep the issue of delay between the ASD demand and the test. On judicial  
review, Ms. Yuen argues that the Adjudicator, “rather than asking whether the  
evidence supported that the test was administered immediately after the demand,  
effectively put a burden on the petitioner to provide an alternative sequence of  
events”.  
[58] In support of her argument, Ms. Yuen cites Mason and Verdonk v. British  
Columbia (Superintendent of Motor Vehicles), 2015 BCSC 215.  
[59] In Mason, at paras. 28-32, Hori J. found that the adjudicator did not  
adequately address, analyze or explain the evidentiary issue that arose as to the  
time of the ASD demand and time when the ASD test took place. In that case, the  
officer’s evidence was that the demand and the test both took place at the same  
time (23:41 hours). However, the evidence also indicated a series of events between  
the demand and the test, including that the driver had made four separate attempts  
to blow between the demand and the final fourth test result of “FAIL”. All of this  
strongly suggested that the two stated times indicated a seemingly improbable  
scenario that all this occurred within one minute.  
[60] The adjudicator in Mason did not reconcile the evidence on this point. Rather,  
the adjudicator noted the “investigation was brisk” and that the “timeline of events is  
somewhat unlikelybut then concluded:  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 17  
[29] … I also note that there is no alternative timeline of events present for  
consideration. I must therefore accept Cst. Smillie's evidence on the timeline  
of events leading to the FAIL result.  
[61] On judicial review, Hori J. in Mason at para. 30 commented that the  
adjudicator was “not bound to accept” the officer’s evidence simply because the  
petitioner failed to present an alternative timeline. The Court set aside the decision,  
further stating:  
… To accept this evidence, without a corresponding explanation of how the  
events from the initial demand to the final sample could have occurred within  
one minute, is a flaw in the adjudicator’s reasoning.  
[62] The respondents agree that the Adjudicator was not “bound to accept”  
Cst. Rieger’s evidence regarding the timing of events.  
[63] In Verdonk, at paras. 45-46, Justice Griffin, as she then was, set aside an IRP  
notice. In that case, the adjudicator had improperly assumed facts or was possibly  
taking “judicial notice” of what might be assumed to have occurred at roadside  
between the time of the vehicle stop and the ASD demand.  
[64] In my view, neither Mason nor Verdonk support Ms. Yuen’s arguments. Here,  
the Adjudicator identified the issue and reconciled the conflicting times as between  
the Report and the Narrative. In fact, the manner in which it was reconciled was  
consistent with the evidence of both Cst. Rieger and Ms. Yuen in that Ms. Yuen  
made a substantial amount (15) of attempts between the time of the ASD demand  
(1:27 a.m. per the officer), just minutes after the vehicle was stopped, and the later  
“Refusaldetermination by Cst. Rieger some 13 minutes later (1:40 a.m. per the  
officer). The only “outlier” information was recorded in the Report by Cst. Rieger in  
that the “time of test” was also at 1:40 a.m.  
[65] However, as the Superintendent notes, it was open to the Adjudicator to  
accept the officer’s evidence. The Adjudicator considered the evidentiary record,  
including the Report and the Narrative, with the latter setting out an explanation of  
how the sequence of events unfolded. In the Decision, the Adjudicator applied logic  
and reason in reconciling the “outlier” information in the Report by concluding that it  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 18  
was an error on Cst. Rieger’s part. Based on the evidentiary record, this finding was  
open to her in that it was supported by the evidence. This is more akin to what  
Griffin J. described in para. 44 of Verdonk, referring to another decision where there  
was evidence of what the officer was doing and where the accused was in the [time  
delay] between the time reasonable suspicion was formed and the time of the  
demand was made”.  
[66] I cannot conclude that the Adjudicator effectively placed a burden on  
Ms. Yuen to provide an alternative timeline. As above, Ms. Yuen’s affidavit was  
silent as to the respective times of the events. In the absence of evidence to the  
contrary, it was open to the Adjudicator to accept Cst. Rieger’s evidence and  
conclude that there was no 13-minute delay. As the Court stated in Scott v. British  
Columbia (Superintendent of Motor Vehicles), 2013 BCCA 554 [Scott BCCA]:  
[34]  
… The respondent may well not have commented on the officer’s  
evidence about her answers to his questioning because it may have been  
true. Her failure to address these two aspects of the officer’s evidence may  
have permitted the adjudicator to accept the officer’s evidence on those  
points, but it does not make the respondent less credible.  
[Emphasis added.]  
See also Toor v British Columbia (Superintendent of Motor Vehicles), 2020 BCSC  
1701 at paras. 70-71.  
[67] The Adjudicator’s resolution of the delay issue was reasonable.  
[68] Ms. Yuen’s final argument goes to the heart of the review before the  
Adjudicatorwhether she had intentionally failed or refused the blow into the ASD  
properly. Ms. Yuen argues that the Adjudicator failed to resolve the “clear conflict” in  
the evidence as to her blowing behavior. She says that the Adjudicator paid scant  
attention to her evidence that she was making genuine attempts to provide a sample  
of breath. She contends that the Adjudicator improperly concluded that her evidence  
was internally inconsistent. Finally, Ms. Yuen argues that the Adjudicator preferred  
Cst. Rieger’s evidence only because it was more detailed.  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 19  
[69] On this central point, the evidence was only available from two sources—  
Cst. Rieger and Ms. Yuen. The Adjudicator extensively summarized their oral  
evidence at pp. 5-6 of the Decision, as supplemented by Cst. Rieger’s Report and  
Narrative. There was no other evidence upon which the Adjudicator could resolve  
the issue. The admittedly “clear conflict” between their respective evidence was  
identified by the Adjudicator on a plain reading of the Decision. This led to a classic  
“he said/she said” scenario.  
[70] The court’s comment in Lemieux is instructive on this point:  
[55]  
The burden of proof establishes the party who, at law, is required to  
prove the relevant facts to succeed. The allocation of the burden of proof  
does not affect the obligation of the decision maker to consider all of the  
evidence, whoever brings it, and it only comes into play if the decision maker  
is unable to conclude the case one way or another. That is, the burden of  
proof will only be the determining factor where there is an evidentiary tie.  
[71] Having identified the evidence, and the conflict that arose, the Adjudicator  
then summarized the factors that she considered as to whether Ms. Yuen had  
intentionally failed to comply with the ASD demand, at p. 10 of the Decision:  
The officer explained and demonstrated twice how [Ms. Yuen] should  
take a deep breath in and to blow out a long steady breath.  
[Ms. Yuen’s] assertion that [she was] making genuine attempts to  
provide a sample.  
[Ms. Yuen’s] internally inconsistent statements that the officer took the  
machine away before [her] lungs were exhausted of air (paragraph 8)  
but also stated that [she] exhausted all the air [she] could fill her lungs  
with (paragraph 9).  
The officer’s evidence that he informed [Ms. Yuen] that [she was] not  
blowing because no air was entering the instrument.  
The officer’s evidence that [Ms. Yuen was] pretending to blow.  
The officer’s evidence that on thirteen of [Ms. Yuen’s] fifteen attempts  
[she] did not provide any air into the device and that “no air was  
entering the instrument.”  
The officer’s evidence that [Ms. Yuen] would not blow any air into the  
instrument at all.  
The ASD was reliable at the time.  
[72] Ultimately, the Adjudicator found as follows:  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 20  
I find the officer’s evidence was well documented and thorough in terms of his  
observations of [Ms. Yuen’s] blow behaviour, and that [Ms. Yuen] provided air  
into the device twice in fifteen attempts. I find the officer’s evidence to be  
more reliable and therefore more credible than yours.  
[73] I have concluded that Ms. Yuen’s arguments are unpersuasive, that the  
Adjudicator’s chain of reasoning was reasonable and that the Decision was  
supportable by the evidence and therefore, within a range of possible, acceptable  
conclusions.  
[74] Firstly, the Adjudicator was required to, and did, carefully assess the  
credibility of Ms. Yuen’s evidence not only as it relates to Cst. Rieger’s conflicting  
evidence, but also whether it was internally consistent. This approach was entirely  
consistent with this Court’s approach to a credibility assessment, as discussed by  
Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398 at paras. 185-187; aff’d  
2012 BCCA 296. In this Court, Dillon J. stated:  
[187] It has been suggested that a methodology to adopt is to first consider  
the testimony of a witness on a ‘stand alone’ basis, followed by an analysis of  
whether the witness’ story is inherently believable. Then, if the witness  
testimony has survived relatively intact, the testimony should be evaluated  
based upon the consistency with other witnesses and with documentary  
evidence. The testimony of non-party, disinterested witnesses may provide a  
reliable yardstick for comparison. Finally, the court should determine which  
version of events is the most consistent with the “preponderance of  
probabilities which a practical and informed person would readily recognize  
as reasonable in that place and in those conditions” (Overseas Investments  
(1986) Ltd. v. Cornwall Developments Ltd. (1993), 12 Alta. L.R. (3d) 298 at  
para. 13 (Alta. Q.B.)). I have found this approach useful.  
[Emphasis added.]  
[75] Constable Rieger’s evidence was that Ms. Yuen either did not blow or was  
“pretending” to blow or that when she did blow, provided an insufficient sample or  
the ASD timed out.  
[76] Ms. Yuen’s recounted her first two attempts in para. 8 of her affidavit:  
Constable Rieger held up the machine and asked me to blow into it. I did as  
he asked. I blew genuinely for as long as I could. After I was done blowing,  
he took the machine away and told me that I had not blown properly. He gave  
me another demonstration in the air and asked me to try again. I told him I  
understood and I would try better, even though I had been doing my best. I  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 21  
tried a second time. Again, it did not work. I had blown as long and hard as I  
possibly could. He did not give me the opportunity to keep blowing until my  
lungs were exhausted of air. Instead, he would take away the machine before  
I was done.  
[77] Similarly, Ms. Yuen recounted her third attempt in para. 9 of her affidavit. As  
such, in respect of her first three attempts, Ms. Yuen stated that she had finished  
blowing as hard as she could. In para. 8, she stated she kept blowing until as long  
and hard as she possibly could. In para. 9, she repeated this in stating that she had  
“exhaust[ed] all the air [she] could fill her lungs with”.  
[78] Yet, in para. 8, Ms. Yuen also stated that the officer had taken the ASD away  
“before [she] was done”. This was clearly contradictory of her having just before said  
(in the same para. 8) that she had exhausted her lungs of air.  
[79] It was only on this one point that the Adjudicator identified the internal  
inconsistency. Further, it was one of many factors considered by the Adjudicator and  
she was in a position to assign weight to that factor: Act, s. 215.49(4). I see no error  
in her conclusion that Ms. Yuen’s affidavit, as drafted by her, exposed an  
inconsistency: Kuzmanovic v. The Superintendent of Motor Vehicles, 2019 BCSC  
1913 at para. 47.  
[80] Secondly, Ms. Yuen argues that Cst. Rieger’s evidence was preferred only  
because it was more detailed. She cites Scott v. British Columbia (Superintendent of  
Motor Vehicles), 2013 BCSC 676 at para. 40; aff’d Scott BCCA, where Justice  
Schultes stated:  
[40]  
Finally, finding the officer's narrative compelling because it is detailed is a  
wholly illegitimate approach. Again, an assessment of the weight to be given to that  
narrative, in light of an application of legitimate credibility considerations, was  
required.  
[81] This aspect of Scott in this Court was upheld on appeal. In Scott BCCA at  
paras. 23(d) and 27, the court characterized this error as the adjudicator according a  
“presumption of reliability” to the officer’s report that the driver was then required to  
refute.  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 22  
[82] I agree with the Superintendent that the Adjudicator’s approach here in  
relation to the credibility assessments was entirely consistent with the statements in  
Kenyon:  
[52]  
In requesting such guidance, the Superintendent points to one  
decision where Scott is said to have been properly applied by a judicial  
review judge, Rangi v. British Columbia (Superintendent of Motor Vehicles),  
2014 BCSC 2343. It is, coincidentally, a decision of the same judge who  
conducted the judicial review in Scott, Mr. Justice Schultes. He said the  
following about the appropriate approach to a review of adjudicators’  
decisions to confirm roadside driving prohibitions, which are predominantly  
decided on the basis of credibility assessed solely on a written record:  
[24]  
Obviously, an adjudicator’s reasons for deciding whether or  
not to confirm a prohibition are not meant to be the equivalent of  
judicial reasons for judgment. What is required is evidence reasonably  
supporting the conclusion that was reached and a route to that  
conclusion that does not involve a manifestly flawed reasoning  
process. A reviewing judge must not parse out the decision minutely,  
but rather consider whether, when read fairly and as a whole, it meets  
the reasonableness requirement.  
[26]  
Without requiring adjudicators to mimic judicial reasoning  
precisely, it would certainly be preferable if they considered an  
officer’s report as evidence that needs to demonstrate its own  
credibility and reliability, based on the same considerations that apply  
to any other sworn evidence on the review. It may well be that  
thorough, well-documented and coherent narratives by police officers  
in their reports will persuade adjudicators that they should accept the  
police evidence, but that acceptance needs to be the product of an  
actual transparent reasoning process, and not simply assumed or left  
unconsidered.  
[53]  
I agree with these comments. Judicial review judges should read the  
reasons of the adjudicator as a whole in order to assess whether the  
reasoning is so lacking in logic, or is otherwise flawed, that it renders the  
decision unreasonable despite the fact there is some evidence to support a  
conclusion that the decision falls within a range of acceptable outcomes.  
[Emphasis added.]  
[83] Here, the Adjudicator accepted Cst. Rieger’s evidence, which she found to be  
thorough and well-documented in respect of Ms. Yuen’s 15 attempts to blow. By any  
measure, this statement was the result of a transparent reasoning process. After  
having reviewed his evidence in detail, I can detect no hint in the Decision to indicate  
that the Adjudicator simply preferred Cst. Rieger’s evidence because it was “more  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 23  
detailed” or presumed to be true. It cannot be concluded that such a presumption  
was applied simply because the Adjudicator did not equally describe Ms. Yuen’s  
evidence as detailed. A plain reading of the Decision reveals that this conclusion  
was reached after an equally rigorous analysis and assessment of Ms. Yuen’s  
evidence, both competing and supportive of various aspects of the Narrative.  
[84] Ultimately, the Adjudicator preferred Cst. Rieger’s evidence over that of  
Ms. Yuen; nor did she find that there was an “evidentiary tie” as referred to in  
Lemieux. This finding was entirely open to the Adjudicator based on the state of the  
evidence. As stated in Clark v. British Columbia (Superintendent of Motor Vehicles),  
2015 BCCA 487 at para. 28:  
[28]  
When an adjudicator is faced with conflicting stories, the adjudicator  
can resolve the conflict by providing reasons why he or she accepts one  
story, or by providing reasons why he or she does not accept the other story,  
or by providing reasons why he or she prefers one story over the other: see  
R. v. R.E.M., 2008 SCC 51 at para. 66, and F.H. v. McDougall, 2008 SCC 53  
at para. 86. In my view, it is not an error or unreasonable for the adjudicator  
to provide reasons only why he or she accepts one story (and implicitly  
prefers it over the other story). Here, the adjudicator provided reasons why he  
was satisfied on a balance of probabilities that the officer used a different  
approved screening device for the analysis of the second breath sample. It  
was not essential for the adjudicator to explicitly address the credibility of  
Mr. Clark and Ms. Noble or the reliability of their evidence.  
[Emphasis added.]  
[85] Finally, Ms. Yuen argues that the Adjudicator merged and conflated the  
concept of reliability with the concept of credibility. She points to the Decision where  
the Adjudicator stated that she found Cst. Rieger’s evidence to be “more reliable and  
therefore more credible” than that of Ms. Yuen.  
[86] I agree that the concept of reliability and credibility are distinct, although they  
are frequently assessed at the same time. I also acknowledge that, at times, a  
presider will use these concepts interchangeably. Arguably, this can be found in  
Bradshaw at paras. 186-187.  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 24  
[87] A useful statement discussing the differences between the two concepts is  
found in R. v. J.M., 2019 BCPC 105 at paras. 89-92, endorsed by the Court of  
Appeal in R. v. J.M., 2021 BCCA 263 at para. 53:  
[89]  
In order to determine liability, I must assess what evidence I  
find reliable and credible. As Justice Cory commented in R. v. S.  
(R.D.), 1997 324 (SCC), assessing the credibility of a witness  
is more of an ‘art than a science’. It is a task that can be particularly  
daunting where a court must assess the credibility of two witnesses  
whose testimony is diametrically opposed.  
[90]  
Reliability and credibility are not the same. Reliability involves  
the accuracy of the witness’s testimony. It engages consideration of  
the witness’s ability to observe, recall and recount: R. v. H.C., 2009  
ONCA 56 () at para. 41. Credibility, on the other hand,  
concerns the veracity of a witness. Simply put, credibility addresses  
whether a witness is lying, whereas reliability is about honest  
mistakes.  
[91]  
Assessing credibility engages a number of factors, including:  
(a) the plausibility of the witness’s evidence; (b) any independent  
supporting or contradicting evidence; (c) the external consistency of  
the evidence; (d) the internal consistency of the evidence; (e) the  
“balance” of the evidence, meaning the witness’s apparent willingness  
to be fair and forthright without any personal motive or agenda; and to  
a lesser extent (f) the witness’s demeanour while testifying, meaning  
not so much what is said but how it is said.  
[92]  
It goes without saying that evidence that is not credible is not  
reliable; however, the corollary is not true: evidence that is credible  
may nevertheless be unreliable: H.C.at para. 41 citing R. v. Morrissey,  
1995 3498 (ONCA).  
[Emphasis added.]  
[88] Again, this criticism must be considered after a consideration of the entire  
Decision. The reference to Ms. Yuen’s counsel’s submissions (p. 8 of the Decision)  
clearly indicates that both the reliability of Cst. Rieger’s evidence and his credibility  
were in issue. The Adjudicator’s resolution of the “which ASD device was used”  
issue was directed toward the issue of reliability of his evidence, similar to the  
conclusion on the timing issue. Both were identified as an error or clerical error and  
the Decision indicates that both were factored into the reliability analysis. The  
reliability issue was also engaged in terms of Cst. Rieger’s recounting of Ms. Yuen’s  
attempts to blow.  
Yuen v. British Columbia (Superintendent of Motor Vehicles)  
Page 25  
[89] It is equally possible to read the Decision as engaging in a credibility analysis  
of both Cst. Rieger’s and Ms. Yuen’s evidence, particularly as to the internal  
consistency of their respective accounts of the blowing attempts. The Adjudicator set  
out her analysis of the quality of that respective evidence in the Decision.  
[90] In that context, I do not see that any issue arises from the Adjudicator’s  
statement, which Ms. Yuen reads as a reference to reliability leading inexorably to a  
positive finding of credibility. In my view, read holistically, the Decision indicates that  
both concepts were considered by the Adjudicator in coming to her conclusions.  
Conclusion  
[91] As I read the Decision, and in light of the record that was before the  
Adjudicator, the Decision is reasonable and the pathway of the Adjudicator’s  
reasoning in reaching that Decision is equally reasonable. On a fair reading, the  
Adjudicator’s reasons and findings were justified, transparent and intelligible, and fell  
within “a range of possible, acceptable outcomes which are defensible in respect of  
the facts and law”: Vavilov at para. 86 and 99; Dunsmuir v. Brunswick, 2008 SCC 9  
at para. 47.  
[92] The petition is dismissed. As agreed, there will be no order of costs in favour  
of any party.  
Fitzpatrick J.”  



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