Lloyd v. Alberta (Transportation Safety Board), 2012 ABQB 443

Court of Queen ’ s Bench of Alberta Citation: Lloyd v. Alberta (Transportation Safety Board), 2012 ABQB 443 Date: 20120705 Docket: 1203 04029 Registry: Edmonton Between: Ryan Thomas Lloyd Applicant - and - Alberta (Transportation Safety Board) and Registrar of Motor Vehicle Services Respondents Corrected judgment: A corrigendum was issued on July 27, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Robert A.

Graesser _______________________________________________________ Introduction [ 1 ] This is a judicial review application by Ryan Thomas Lloyd for an order of certiorari against the decision of the Alberta

Transportation Safety Board (the “Board”) dated March 8, 2012 (the “Decision”) in which it denied Mr. Lloyd’s appeal from an administrative licence suspension and confirmed the suspension. Facts [ 2 ] The undisputed facts of the case are that on January 27, 2012 at approximately 6:30 p.m., a passing motorist first observed Mr. Lloyd's vehicle stopped at the intersection of 61st Street and 103rd Avenue in Edmonton, Alberta. Later, when the motorist saw that the vehicle was still there at 7:10 p.m., he approached it and tapped on the window. The driver, Mr. Lloyd, was startled and incoherent.

The complainant/motorist then called the police as he believed Mr. Lloyd might be impaired. A member of the Edmonton Police Service responded. On arrival at the scene, the police officer located the vehicle blocking the intersection of 64 Street and 103 Avenue in Edmonton, Alberta. The officer approached Mr. Lloyd, who was the sole occupant of the vehicle, and observed him sitting behind the wheel with his head and torso reclined onto the driver’s seat. The vehicle was in drive, the headlights and brake lights illuminated and Mr. Lloyd’s foot was on the brake pedal. When the officer asked Mr.

Lloyd what he was doing at the intersection, Mr. Lloyd blinked several times and replied incoherently. The officer also asked Mr. Lloyd whether he had any liquor to drink and he responded unintelligibly. There was no evidence as to how much Mr. Lloyd had drunk, and there was no evidence as to when Mr. Lloyd had finished drinking. [ 3 ] The police officer noted a “moderate” odour of alcohol on Mr. Lloyd’s breath. Thereafter, the officer arrested and read the Charter and police caution to the Mr. Lloyd.

He was transported to the police station where he provided two samples of breath that recorded readings of 30 milligrams percent and 27 milligrams percent respectively. After Mr. Lloyd complied with the breathalyzer demand, he was charged with impaired driving, and two other offences under the Criminal Code , RSC 1985, c C-46. The arresting officer also issued a Notice of Suspension, pursuant to the Administrative Licence Suspension (“ALS”) provisions of the Traffic Safety Act , RSA 2000, c T-6 (“ TSA ”). [ 4 ] The Crown did not proceed with the impaired driving charge. [ 5 ] Mr.

Lloyd appealed the Administrative Licence Suspension to the Transportation and Safety Board. The appeal proceeded on March 1, 2012 based on written submissions and there was no hearing. The Registrar of Motor Vehicles made no submissions opposing Mr. Lloyd's submissions and the Board considered the appeal on the basis of Mr. Lloyd's submissions and documents forwarded to it. [ 6 ] Included with Mr.

Lloyd's submissions was a letter from Leo Walter, a forensic toxicologist, who opined that blood alcohol levels in the range of .02 to .03 (i.e. 20 mg% to 30 mg%) would be unlikely to be associated with any impairment of the ability to drive. [ 7 ] The Board denied Mr. Lloyd’s appeal and confirmed the administrative licence suspension in the Decision which is under judicial review in the within application. Basis for Application [ 8 ] The grounds for this application for judicial review are: (

i) The Board erred by applying the wrong test for determining whether the ALS suspension should be upheld; (ii) The Board erred in its conclusion because:

(

a) its reasons were functionally inadequate; and (

b) it misapprehended the forensic toxicology evidence. Law [ 9 ] The relevant provisions of the TSA include: 39

(5) If, after conducting an appeal under this section, the Board is satisfied that (

a) the person drove a motor vehicle having consumed alcohol in such a quantity that the concentration of alcohol in that person’s blood exceeded 80 milligrams of alcohol in 100 millilitres of blood at any time within 3 hours after having driven a motor vehicle, (a.1) the person drove a motor vehicle having consumed a drug, alcohol or a combination of a drug and alcohol in such a quantity that the person’s ability to operate the motor vehicle was impaired at any time within 3 hours after having driven a motor vehicle, or (

b) the person, with respect to the driving of a motor vehicle, failed or refused, without a reasonable excuse, to comply with a demand made on that person under

section 254 of the Criminal Code (Canada), the Board must confirm the suspension or disqualification.

(6) If, after conducting an appeal under this section, the Board is satisfied (

a) that the person did not drive a motor vehicle having consumed alcohol in such a quantity that the concentration of alcohol in that person’s blood exceeded 80 milligrams of alcohol in 100 millilitres of blood at any time within 3 hours after having driven a motor vehicle, (a.1) that the person did not drive a motor vehicle having consumed a drug, alcohol or a combination of a drug and alcohol in such a quantity that the person’s ability to operate the motor vehicle was impaired at any time within 3 hours after having driven a motor vehicle, or (

b) that, with respect to the driving of a motor vehicle, (

i) the person did not fail or refuse to comply with a demand made on that person under

section 254 of the Criminal Code (Canada), or (ii) the person had a reasonable excuse for failing or refusing to comply with the demand referred to in subclause (i), the Board must cancel the suspension or disqualification and direct the return to that person of any fees paid to the Government by the person in respect of the appeal conducted under this section. .... Judicial review

47.1(1) Subject to sections 32 and 46 and subsection (2), no decision or order of the Board shall be questioned or reviewed in any court by application for judicial review or otherwise, and no order shall be made, process entered or proceedings taken in any court, whether by way of certiorari, injunction, declaratory judgment, prohibition, mandamus, quo warranto, application to quash or set aside or otherwise, to question, review, prohibit or restrain any decision or order of the Board or any of its proceedings.

(2) A decision or order of the Board may be questioned or reviewed by way of an application for judicial review seeking an order in the nature of certiorari or mandamus if the application is filed with the Court and served on the Board no later than 30 days after the date of the decision or order or the date a copy of the decision or order and reasons in respect of it have been received by the applicant, whichever is later.

(3) On an application for judicial review under subsection (2), the standard of review is patent unreasonableness. Standard of review [ 10 ] The Applicant submits that the standard of review for extricable questions of pure law is typically correctness, but notes that recently the Supreme Court of Canada held that the reasonableness standard will apply where a tribunal is interpreting its “home” statute: Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association , 2011 SCC 61 , [2011] 3 SCR 654.

He observes that in this case, the TSA validly prescribes that the standard of review for a decision of the Board is “patent unreasonableness”: TSA , s 47.1(3); Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 at para 70 , [2009] 1 SCR 339 [ Khosa ]. The Applicant notes that a panel of the British Columbia Court of Appeal held that the Supreme Court’s decision in Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 [ Dunsmuir ] has not changed the meaning of the “patent unreasonableness” standard of review: Manz v Sundher , 2009 BCCA 92 , 91 BCLR (4th) 219 [ Manz ].

He notes that in Victoria Times Colonist v Communications, Energy and Paperworkers Union of Canada , 2009 BCCA 229 , 310 DLR (4th) 367 [ Victoria Times Colonist ] another panel of the court refused a “rigid

interpretation” of Manz . [ 11 ] He disagrees with the decision of the Alberta Court of Queen’s Bench in Juneja v Alberta (Registrar of Motor Vehicle Services) , 2008 ABQB 573 at paras 44-45 , 459 AR 348 [ Juneja ] that Dunsmuir did not change the meaning of “patent unreasonableness” as summarized in Law Society of New Brunswick v Ryan , 2003 SCC 20 , [2003] 1 SCR 247 [ Ryan ].

The Applicant contends that the preservation of the “patent unreasonableness” standard of review does not indicate a return to the meaning in Ryan ; and that the standard is identical to the “reasonableness” standard in Dunsmuir which is concerned with “justification, transparency and intelligibility within the decision-making process”: Dunsmuir at para 47 . [ 12 ] The Respondent Board, in its restricted submissions as the decision-maker under judicial review, submits that the applicable standard of review in this matter is patent unreasonableness, pursuant to s 47.1(3) of the TSA .

It submits that the SCC decision in Dunsmuir did not affect a legislated patent unreasonableness standard: Khosa at para 50 ; Wells v Alberta (Transportation Safety Board) , Q.B. No. 0801-01262 (unreported); Juneja at paras 43-45 ; Dodd v Alberta (Registrar of Motor Vehicle Services) , 2010 ABQB 506 at para 63 . The Board contends that the meaning of “patent unreasonableness” remains that given by the Supreme Court in Ryan that (at para 52 ): The standard of reasonableness simpliciter is also very different from the more deferential standard of patent unreasonableness.

In Southam ... at para. 57, the Court described the difference between an unreasonable decision and a patently unreasonable one as rooted “in the immediacy or obviousness of the defect”. Another way to say this is that a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective. A patently unreasonable decision has been described as “clearly irrational ” or “evidently not in accordance with reason ” ...

A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand . ( emphasis supplied ) [ 13 ] The Respondent, Registrar of Motor Vehicle Services (the “Registrar”) aligns with the submission that the standard of review applicable for the judicial review of the Decision is patent unreasonableness as stipulated in s 47.1(3) of the TSA .

And that in respect of a review of the adequacy of reasons given by an administrative board, the Supreme Court said in Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at paras 14-16 , [2011] 3 SCR 708:

[14] Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis forquashing a decision, or as advocating that a reviewing court undertake two discrete analyses - one for the reasons and a separate one forthe result ... It is a more organic exercise - the reasons must be read together with the outcome and serve the purpose of showingwhether the result falls within a range of possible outcomes.

This, it seems to me, is what the Court was saying in Dunsmuir when it toldreviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and tooutcomes” (para. 47). [15] In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for thedecision-making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48).

This means thatcourts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing thereasonableness of the outcome. [16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would havepreferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis.

A decision-maker isnot required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (ServiceEmployees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., (SCC), [1975] 1 S.C.R. 382, atp. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it todetermine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

The Registrar submits that based on the foregoing, the standard of review in this case is patent unreasonableness. [14] It is clear that, s 47.1(3) of the TSA, providing for a standard of review of patent unreasonableness, was enacted before theSupreme Court of Canada decision in Dunsmuir which essentially abolished the common law standard of review referred to as “patentunreasonableness.” Nonetheless, it is obvious that the legislature has the power to set its own standard of review as set out in Khosawhere Binnie J stated (at para 19): [19] Generally speaking, most if not all judicial review statutes are drafted against the background of the common law of judicialreview.

Even the more comprehensive among them, such as the British Columbia Administrative Tribunals Act, S.B.C. 2004, c. 45, canonly sensibly be interpreted in the common law context because, for example, it provides in s. 58(2)(

a) that “a finding of fact or law or anexercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not beinterfered with unless it is patently unreasonable”. The expression “patently unreasonable” did not spring unassisted from the mind ofthe legislator. It was obviously intended to be understood in the context of the common law jurisprudence, although a number of indiciaof patent unreasonableness are given in s. 58(3).

Despite Dunsmuir, “patent unreasonableness” will live on in British Columbia, but thecontent of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincialadministration, will necessarily continue to be calibrated according to general principles of administrative law.

That said, of course, thelegislature in s. 58 was and is directing the B.C. courts to afford administrators a high degree of deference on issues of fact, and effectmust be given to this clearly expressed legislative intention. [15] I frankly prefer the decision in Manz to that in Victoria Times Colonist.

And based on this preference, I need not comment onthe decision in Viking Logistics Ltd v British Columbia (Workers' Compensation Board), 2010 BCSC 1340 [Viking Logistics] (whichattempted to reconcile the decisions in the two cases mentioned above) other than to say that I respectfully disagree with the conclusionin the case that “the content of the “patently unreasonable” standard should be determined in light of the Court’s discussion inDunsmuir”: Viking Logistics at para 51. [16] In my view, the effect of Dunsmuir is not to change the meaning of “patently unreasonable”.

It is always open for theSupreme Court of Canada to reconsider the definition of “patent unreasonableness” as previously set out in Ryan. In this regard, thedefinition of patent unreasonableness is not frozen. But I am hard-pressed to consider how the

interpretation of patent unreasonablenessis “informed” by Dunsmuir, or how it might be “calibrated according to general principles of administrative law”. Until there is a newdefinition of “patent unreasonableness” (or a statutory definition as is the case in British Columbia), the Ryan definition continues torepresent the standard. [17] In Ryan the Court stated that “a decision that is patently unreasonable is so flawed that no amount of curial deference can

justify letting it stand”: para 52. Analytically, the question then arises: Is a tribunal that is entitled to the highest level of deferenceentitled to make irrational decisions with no fear of being set aside, while a tribunal with lower deference must avoid irrationality? Ithink not, unless administrative law decisions proceed that far at some stage. They are not there now. [18] In any event, this issue has been considered by Wilson J in Wells and by Read J in Juneja and they both held that Dunsmuirdid not change the standard of review under s 47.1(3) of the TSA.

I agreed with that conclusion in Dodd, and still do. The appropriatetest here is “patent unreasonableness” and there is, in my view, no reason to look further than Ryan for guidance as to that test. [19] I will now turn to apply this standard of review to the issues raised in this application. Issue 1: Did the Board err by applying the wrong test for determining whether the ALS suspension should be upheld? Parties’ Positions [20] The Applicant states that s 39(5)(a.1) of the TSA was the applicable provision on the appeal to the Board.

He does not disputethat he was in care and control of the motor vehicle; and neither disputes that his ability to operate a motor vehicle was impaired.However, the Applicant submits that the issue is the source of the impairment, i.e.: was the impairment a result of having consumedalcohol, or was the impairment rooted in some other cause.

He argues that the Board’s Decision failed to draw a factual distinctionbetween evidence of “impairment” and “impairment by alcohol.” He submits that the finding of the Board based “on a balance ofprobabilities and in public safety” constitutes an error in the sense that “public safety” does not form part of the test under s 39(5)(a.1) ofthe TSA. He argues that while the Board cited the correct test, its reasons indicate that it did not apply this test correctly or properly indetermining whether the suspension should be confirmed or not.

Merely mentioning the correct test once would not cure apparentdeficiencies in applying the test: Pepper v Alberta (Transportation Safety Board), 2006 ABQB 303 at para 36, 403 AR 56 [Pepper]. [21] The Registrar argues that an appeal under s 39 of the TSA is a civil matter; and the stringent procedural safeguards requiredunder the criminal law are of less significance as the balance shifts in favour of the societal goals of deterrence and safety: Thomson vAlberta (Transportation and Safety Board), 2003 ABCA 256 at paras 29, 69 and 71, 330 AR 262 [Thomson].

The standard of proof onan ALS appeal is the balance of probabilities: Gonzalez v Alberta (Driver Control Board), 2001 ABQB 757 at paras 110-113, 328 AR111 [Gonzalez]; Baker v Alberta (Transportation Safety Board), 2004 ABQB 244 at para 8, 355 AR 144 [Baker]. The Registraracknowledges that within s 39 appeals, the Board owes a duty of fairness which entails allowing appellants the opportunity to presenttheir cases meaningfully: Thomson at para 61-69. [22] The Registrar submits that s 39(5)(a.1) does not specify an amount of alcohol or drugs required to be present in thebloodstream for the grant of an ALS.

As such, the test under this

section is met so long as the alcohol or drugs consumed by the personhas an effect on that person’s level of impairment and the ability to operate a motor vehicle has been compromised.

The Registrar arguesthat while the breathalyzer results is one of many factors to be considered by the Board in order to determine a person’s impairmentunder s 39(5)(a.1), the Board must consider all the evidence before it in making its determination including indicia of impairment, suchas, “smell of alcohol, glassy eyes, [a] belligerent attitude and staggering”: R v Silver, (1997) (NS CA), 22 NSR (2d)259 at para 15 (SC (AD)). [23] The Registrar argues that Mr.

Lloyd admitted on record that he consumed alcohol on the night in question and he led noevidence to indicate reasons for impairment unrelated to alcohol or drug consumption. The Registrar submits that Mr. Lloyd’s failure toprovide any evidence of alternate source of impairment supports the position that the Board was reasonable in its Decision that Mr.Lloyd was impaired by alcohol. Analysis (Issue 1) Onus of proof issue

[ 24 ] One of the questions I asked of counsel during the hearing was who bore the onus of proof in this case. This issue of onus of proof is subsumed in the consideration of whether the correct test was properly applied. [ 25 ] Gonzalez deals extensively with issues concerning the administrative license suspension process under the Act. Slatter J (as he then was) initially considered the constitutionality of the administrative license suspensions under the TSA.

He then described the process involved in administrative license suspensions by the investigating peace officer and initial appeals to the Driver Control Board. At paras 108 - 110, he wrote: [108] It should be noted that the peace officer issues the initial suspension based on “reasonable and probable grounds to believe” that there has been alcohol-related driving. At the appeal before the Driver Control Board, an entirely different standard is imposed. The standard is now that the Board must be “satisfied” on the issue of alcohol-related driving.

The Board does not review if the officer had “reasonable and probable grounds”; the process is not an appeal of what the officers did, but rather a fresh inquiry into the issue. In a true appeal, it is very rare for the underlying standard or question to change. As I have previously held, “satisfied” denotes proof on a balance of probabilities, having regard to the context. This is a higher standard than “reasonable and probable grounds”. [109] In addition, I note that on an appeal the Board is to consider a wide range of evidence and information.

While the report of the peace officer is to be considered, this is clearly not a review of the record before the peace officer. The Board is also entitled to consider other information, some of which clearly could not have been before the peace officer. Nor is it a situation where the Board is to make the decision the peace officer should have, because as I have indicated, the standard applied by the peace officer and by the Board is different.

If this process is to be called an appeal, it is much closer to an appeal de novo , where the whole matter is determined afresh, and with the added parameter that the underlying standard has changed. In this particular case the Board ruled, in part, that: The Appellant, to be successful, must prove to the satisfaction of the Board that his blood alcohol reading was not in excess of 80 milligrams of alcohol in 100 millilitres of blood. The Board concluded that the Applicant had not done so, and therefore dismissed the appeal.

The Board did not expressly state that it was not satisfied that the Applicant did not engage in alcohol-related driving, although that is perhaps implicit in the decision. Nevertheless, it does seem clear that the Board thought that the persuasive burden rested on the Applicant if he wished to have the suspension set aside. [110] I have come to the conclusion that the Board was partly correct in this respect. Since the

Schedule provides no specific rule about the burden of proof, the normal principles apply; the burden generally falls on the litigant propounding a particular point. An Appellant under the Administrative Licence Suspension Scheme must satisfy the Board that he did not engage in alcohol-related driving in order to have the suspension automatically set aside under s. 3(5). Likewise the plain words of the

Schedule seem to provide that the Crown must satisfy the Board that alcohol-related driving has occurred in order to automatically maintain the suspension under s. 3(4). [ 26 ] Slatter J continued in Gonzalez at paras 111 - 113 : [111] But what of the situation when the Board is uncertain? The Act provides no particular guidance on this point, and I have concluded that in such circumstances the driver should get the benefit of the doubt, and the suspension should be lifted.

It is consistent with the principles of our legal system that a person who holds a licence (whether it be characterized as a privilege or a right) not be deprived of that licence in cases of doubt. Therefore, if the Board is not satisfied on a balance of probabilities one way or the other, then the suspension should not be sustained. [112] I acknowledge that s. 3(5) states that if the Board is satisfied that there has been no alcohol-related driving, then it “must” cancel the suspension. This is mandatory wording.

In my view, this wording does not exclude the possibilities that there are other circumstances where the Board “may” and “should” lift the suspension. There is a genuine gap in the legislative scheme, which should be resolved in favour of the Applicant. I do not mean to suggest that the legislature could not fill the legislative gap, and provide that in cases of uncertainty the Board should either uphold or set aside the suspension. As the Court of Appeal said in Horsefield ( supra , paragraph 15) at D.L.R. 68 “. . . the sufficiency of the right of review in the ADLS Program is a matter for the legislature.”

[113] I therefore conclude that if, at the end of the day, the Board is neither “satisfied” nor “not satisfied” about the presence or absence of alcohol-related driving, the suspension should be lifted. To the extent that the Board in the Gonzalez appeal was suggesting something different, it was in error. This is a question of law, and the standard of review is correctness. However, notwithstanding this problem in its reasoning, I note that the Board did make the following positive finding: Pursuant to section 3(4)(

a) of the Schedule, the Board is satisfied that the Appellant having consumed alcohol in a such a quantity that the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood drove a motor vehicle. [ 27 ] Further, Slatter J noted in Gonzalez at para 11 that driving patterns and signs of impairment are not sufficient to support a suspension as the peace officer’s belief must be based on an analysis of breath or blood. [ 28 ] Several principles can be stated from Gonzalez : 1. On an appeal, the Board must in any event conduct a fresh inquiry into the issue; 2.

In this fresh inquiry, the Board must be satisfied on a balance of probabilities that the Appellant did engage in alcohol related driving; otherwise it must cancel the suspension; 3. The balance of probabilities test is a higher burden than “reasonable and probable grounds”; and 4. The benefit of any doubt goes to the Appellant. [ 29 ] As a result of this statutory scheme, I do not see that there is any basis to conclude that the Appellant bears any onus on the appeal before the Board.

In that regard, and with respect, I disagree with Slatter J’s statement that the “normal rules” apply placing a burden on the Appellant. If that were the case, the Appellant would have to satisfy the Board that he did not engage in alcohol-related driving. The Legislature has provided a process for suspended drivers to appeal that suspension.

That process involves a “fresh inquiry” by the Board. [ 30 ] While it is open for the Appellant to call evidence at the hearing, it is also open for the Appellant to simply ask the Board to review the evidence relied on by the peace officer and argue that such evidence does not meet the “balance of probability” test. [ 31 ] In all appeals, the Board is required to conduct this fresh inquiry. If there is a fresh inquiry, where the benefit of the “tie” goes to the Appellant, there can be no significant onus on the Appellant. That is the opposite of bearing the onus.

As Slatter J noted in Gonzalez , the appeal is not an appeal of the peace officer’s decision; it is a fresh inquiry as to whether the evidence before the peace officer (as potentially supplemented by evidence on the appeal) satisfies the Board on a balance of probabilities that the Appellant drove while he had more than 80 milligrams of alcohol per 100 millilitres of blood in his system. [ 32 ] In applying these principles to the present case, I note that the Board’s Decision on the appeal firstly, reviewed the Appellant’s arguments, then reviewed the peace officer’s evidence, made non-controversial findings of fact and dismissed the appeal.

The Reasons started with the following paragraph: Pursuant to section 39(5)(a)(a.1) of the Act, the Board is satisfied on a balance of probabilities that the Appellant having consumed a drug, alcohol or a combination of drug and alcohol in such a quantity that the person’s ability to operate a motor vehicle was impaired at any time within 3 hours after having driven a motor vehicle. The definition of driving in section 1(1) (

l) of the Traffic Safety Act includes having care or control of a motor vehicle. [ 33 ] The Board then discussed portions of Thomson and Baker . In the discussion of the specific issues on the Appeal, the last

page of the decision is relevant. There, the Board stated: In the case at hand, the essence of the issue is, did the Appellant operate a motor vehicle while impaired? The Appellant provided two suitable samples of his breath which resulted in readings of 30 milligrams percent and 20 milligrams percent respectively these readings negate the laying of a criminal code [ sic ] charge of impaired driving. Police disclosure stated when police arrived on scene Cst.

L found the Appellant’s vehicle stopped in the intersection facing southwest with the front wheels up onto the windrow at the border of the south curb of 103 Avenue at the long side of the T-intersection. The Appellant was the lone occupant of the motor vehicle and seated behind the wheel, apparently asleep. The Appellant’s head and torso reclined onto the driver’s seat. The vehicle was in drive, its headlights and brake lights illuminated, and the Appellant’s foot was on the brake pedal. When the Appellant responded to Cst. L he noticed a moderate odour of liquor on the Appellant’s breath.

The Appellant was unable to provide Cst. L with his driver’s licence and when asked what he was doing at the intersection the Appellant blinked several times at Cst. L before muttering several unintelligible syllables and smacking his lips. When asked if he had liquor to drink the Appellant responded by saying “keys” twice. In addition, the hand written statement by the complainant Mr. F provided the police with sufficient information to allow police to initiate an impaired driving investigation. As to the expert evidence of Mr.

Leo W respecting the predicted blood alcohol concentration of the Appellant at the time of being stopped by police, it is only as reliable as the evidence of the alcohol consumed and the time of consumption reported to Mr. W by the Appellant. The Board therefore can not place much weight on the conclusions of Mr. Walter. In view of the above the Board finds that on a balance of probabilities and in public safety the Appellant operated a motor vehicle while impaired. [ 34 ] There was no evidence before the Board that Mr. Lloyd had consumed any drugs of any kind.

The Board’s statement at the beginning of its decision is simply a restatement of s 39(5)(a.1). [ 35 ] Its analysis does not mention drugs at all; the only discussion relates to alcohol. I do not see how the Board can presume, in the absence of any evidence suggesting drugs, that the impaired functions observed by the peace officer were the result of consumption of drugs. [ 36 ] On the evidence before it, the Board could not have made a finding under s 39(5)(

a) that Mr. Lloyd’s blood alcohol exceeded .08 as that

section requires. The only rational basis for upholding the suspension could be under s 39(5)(a.1). [ 37 ] But in the complete absence of any evidence or suggestion of drug consumption, how could the Board have made such a determination? [ 38 ] Hence my enquiry about onus. Mr. Lloyd put forward no explanation for his obvious impaired functioning. But as I have found above, Mr. Lloyd was under no onus to do so. Once he appealed, the Board was required to conduct its review on the evidence put before it. [ 39 ] In this case, the Applicant Lloyd was under no obligation on the appeal to put forward any evidence.

Also after my review of the record, I conclude that there was no evidence of any sort of drug consumption before the Board.

[ 40 ] In my view, it was patently unreasonable for the Board to make a finding that the Appellant was impaired by a combination of drugs and alcohol in the absence of any evidence of drug consumption.

That cannot be presumed; it is I think fair to take judicial notice of the fact that impairment may result from fatigue, illness or distraction. [1] [ 41 ] As such, the Board’s finding cannot be sustained. [ 42 ] Based on the evidence before it, the Board was required under s 39((6) of the TSA to cancel the suspension and direct the return of any fees paid to the Government in respect of the appeal, unless there was sufficient evidence that impairment resulted from drugs, alcohol or a combination of drugs and alcohol. [ 43 ] In the result, I allow Mr. Lloyd’s application in that regard.

Was the correct test applied? [ 44 ] I get no comfort from the Board’s Decision when it describes the “essence of the issue” as “did the Appellant operate a motor vehicle while impaired?” The focus should have been the cause of the impairment. Impairment by itself was not an issue. Mr. Lloyd acknowledged that his ability to drive was impaired.

The Board’s responsibility was to satisfy itself that the impairment was caused by alcohol, drug or a combination of alcohol and drugs. [ 45 ] The Board concluded its reasons by stating that it found “on a balance of probabilities and in public safety the Appellant operated a motor vehicle while impaired.” What public safety has to do with the Board’s Decision is unclear to me.

Public safety is engaged as the justification for the legislation, as stated in Thomson , but it is not a relevant consideration in the Board’s fulfilling its duty to hold a fresh inquiry and make a finding on the evidence based on the balance of probabilities. [ 46 ] Colloquially, impaired driving encompasses each of driving while over .08, driving while impaired by alcohol, driving while impaired by drugs, or driving while impaired by drugs and alcohol.

But driving may also be impaired by other factors including fatigue, illness or distraction. [ 47 ] Whether the Board applied the test properly or not is a question of mixed fact and law, and would be determined on the basis of patent unreasonableness. Here, having applied the test improperly, and having concluded that the Appellant was “impaired”, I do not see that the Board’s recitation of the statutory wording at the beginning of its Decision, can be inferred as demonstrating that the Board really did apply the correct test.

In other words, the Board’s application of the test to the facts in this matter was patently unreasonable. Issue 2: Did the Board err in its conclusion because: (

a) its reasons were functionally inadequate; and, (

b) it misapprehended the forensic toxicology evidence. Parties ’ Positions [ 48 ] The Applicant Lloyd submits that while insufficiency of reasons is not a free-standing ground to overturn a tribunal’s decision, certain factors have been prescribed by the courts for the assessment of adequacy of reasons.

He points to the decision of the Alberta Court of Appeal in Moll v College of Alberta Psychologists , 2011 ABCA 110 at para 33 that: Assessing the sufficiency of reasons should be done having regard to the three purposes that reasons serve: (1) to tell the parties why a decision was made; (2) to provide public accountability for that decision; and (3) to permit effective appellate review. However, reasons

are not to be read in a vacuum but rather in context. That context necessarily includes the totality of the evidence led during theproceedings, the issues raised and the arguments advanced in counsels’ submissions [citations omitted]. [49] He argues that the Board’s reasons in this matter are functionally inadequate and that the reasons failed to consider in any waythe main issue of the source of impairment (apart from impairment generally). [50] Further, the Applicant submits that the Board materially misapprehended the forensic toxicology evidence.

He contends thatcontrary to the suggestions in the Board’s reasons, the expert opinion did not rely in any way on information from the Applicant abouthis consumption pattern; and neither did the expert opinion use any “calculating backwards” method for the determination of theApplicant’s blood alcohol level at a certain time. Additionally, the Applicant submits that when the expert’s evidence of Mr.

Walter isproperly analyzed by a decision-maker, it would be unreasonable to conclude on a balance of probabilities that the Applicant’simpairment was caused by alcohol, given the extremely low breath test results. [51] The Registrar argues that the expert’s letter was written in a generic manner and without citing the Applicant’s specificcircumstances. The Registrar notes that the expert did not state that it was physically impossible to become impaired by alcohol at .030blood alcohol level.

The Registrar notes that the expert’s letter failed to indicate what the Applicant’s physical condition was on the datein question or whether he had any health, diet or sleep issues that may impact the Applicant’s ability to tolerate even a small quantity ofalcohol. To that extent, the Registrar contends that the expert evidence is deficient. Analysis (Issue 2) [52] Mr. Lloyd argues that the Board erred by failing to give adequate reasons and by materially misapprehending the evidence ofthe forensic toxicologist, Leo Walter.

These are both fundamentally duty of fairness issues. [53] Duty of fairness issues have generally been held to be reviewed on the correctness standard: Baker v Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 SCR 817, 174 DLR (4th) 193; Easton v Alberta (TransportationSafety Board), 2005 ABQB 358.

Also, fairness of proceedings are reviewed on whether the proceedings met the level of fairnessrequired by law: CUPE v Ontario (Minister of Labour) [Retired Judges Case], 2003 SCC 29 at paras 100-103, [2003] 1 SCR 539. [54] I am not aware of any decisions dealing with the duty of fairness in the context of a legislated standard of review of patentunreasonableness. That said, I see no reason to apply a different standard than correctness.

Surely an administrative tribunal which isentitled to the highest level of deference must still provide the parties with the same level of fairness as an administrative tribunal entitledto less deference. [55] In Pepper, Bensler J held, inter alia, that “the reasons must show that the Board actually applied the correct standard ofproof”: para 36. Pepper was pre-Dunsmuir, and pre-amendments to the TSA legislating the patent unreasonableness standard.

Bensler Japplied the correctness standard to duty of fairness issues. [56] The duty of fairness in proceedings such as this was described by Paperny JA in Thomson at para 68: In

summary, to comply with its duties of fairness, the Board must:

a) inform the appellant of the case against him or her,

b) permit the appellant a meaningful opportunity to answer the case against him or her,

c) give full and fair consideration to the issues,

d) consider the source of the evidence or information including whether it was gathered in a manner contrary to the Charter or

Charter values,

e) consider relevant evidence and information, and as a corollary

f) not consider irrelevant or unreliable evidence or information,

g) not act arbitrarily, for an improper purpose or with malice. [ 57 ] Applying Pepper and Thomson here, the Board did not demonstrate in its Reasons that it applied the correct test and neither did it demonstrate that it gave full and fair consideration to the issues when it failed to consider the source of Mr. Lloyd’s impairment. Whether on a correctness standard or patent unreasonableness standard, the decision would be remitted back to the Board for rehearing on this ground. [ 58 ] As to Mr. Walter’s evidence that dealt with the blood alcohol concentrations as measured in Mr.

Lloyd, the Board held “it is only as reliable as the evidence of the alcohol consumed and the time of consumption reported to Mr. W by the Appellant.” That is clearly inaccurate. Mr. Walters based his opinion on the breathalyzer readings. He made no extrapolations back to the time of driving. The Board obviously misunderstood the nature and effect of Mr. Walters’ opinions. Their rejection of his evidence based on their misunderstanding does not meet the patent unreasonableness standard and cannot be sustained. This would also be a stand-alone basis to remit the matter back to the Board for rehearing.

Conclusion [ 59 ] I hold that the Board’s decision was patently unreasonable as regards its analysis of the evidence and its conclusion that Mr. Lloyd’s ability to drive was impaired by alcohol or a drug or a combination thereof. I also hold that the Board denie Mr. Lloyd fairness as mandated by Thomson and thereby failed in its duty of fairness by applying the test under s 39 improperly, failing to give adequate reasons for its rejection of Mr.

Walters’ evidence, and by misapprehending the expert evidence/opinion. [ 60 ] The failures relating to the Board’s duty of fairness ordinarily requires that the matter be remitted back to the Board for a rehearing. [ 61 ] However, on the evidence before it as to alcohol consumption (regardless of Mr.

Walters’s evidence), and having regard to the absence of any evidence of drug consumption, I am satisfied that the Board, properly directing itself as to the test to be applied under s 39, would have had no choice but to either conclude that the evidence did not support a finding under s 39(5)(a.1), or that it was unable to make that finding on a balance of probabilities with the resulting “tie” going to Mr. Lloyd. [ 62 ] As a result, I quash the Board’s decision and allow Mr. Lloyd’s application for judicial review.

The matter is remitted back to the Board for a new decision that would apply my findings and determinations as outlined in this memorandum of decision. [ 63 ] I am grateful to counsel for their written submissions and their able arguments in this matter. [ 64 ] If counsel are unable to agree to costs, leave is granted to speak to costs within 45 days of this decision. I retain jurisdiction to deal with any ancillary matters within that period. Heard on the 8 th day of June, 2012. Dated at the City of Edmonton, Alberta this 5 th day of July, 2012.

Robert A. Graesser J.C.Q.B.A. Appearances: Dane F. Bullerwell Pringle Macdonald for the Applicant Fiona N. Vance Shores Jardine LLP for the Respondent Alberta (Transportation and Safety Board) Sarah Dolgoy Alberta Justice for the Respondent Registrar of Motor Vehicle Services _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice Robert A.

Graesser _______________________________________________________ The Respondent in the citation and the style of cause has been corrected from “Alberta (Transportation and Safety Board)” to “Alberta (Transportation Safety Board)”. [1] Having regard to the recent "distracted driver" law enacted by the Alberta Legislature.

[1] Having regard to the recent "distracted driver" law enacted by the Alberta Legislature.