Musaskapeo v Alberta (Director of SafeRoads), 2021 ABQB 1018

Court of Queen’s Bench of Alberta Citation: Musaskapeo v Alberta (Director of SafeRoads), 2021 ABQB 1018 Date: 20211222 Docket: 2113 00532 Registry: Ft. McMurray Between: Shane Musaskapeo Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice K.S.

Feth _______________________________________________________ [ 1 ] Shane Musaskapeo applies for an interlocutory stay of administrative penalties imposed for operating a motor vehicle while his ability to do so was impaired by alcohol contrary to s 88.1 of the Traffic Safety Act , RSA 2000, c T-6 . The Director of SafeRoads Alberta opposes. [ 2 ] For the reasons to follow, the application for a stay is dismissed. Background [ 3 ] The impaired driving contravention occurred on August 13, 2021. As a consequence, Mr. Musaskapeo received a Notice of

Administrative Penalty (“NAP”) and is subject to various administrative penalties including: a. Suspension of his operator’s licence for an immediate period of 90 days (the “Initial Suspension”); b. A further suspension of his operator’s licence for an additional period of one year (the “One-year Suspension”) or a requirement touse an alcohol-sensing interlock device while driving for a period of one year; c. Seizure of his vehicle for 30 days; d. A fine of $1000 and any applicable surcharges; and e. Completion of a mandatory education course. [4] On August 17, 2021, Mr.

Musaskapeo applied for an oral review of the NAP under s 7(1) of the Provincial AdministrativePenalties Act, SA 2020, c P-30.8. An adjudicator conducted the review and determined that Mr. Musaskapeo had failed to establishgrounds to cancel the NAP (the “Decision”): Musaskapeo (Re), 2021 ABSRA 859. [5] On October 13, 2021, Mr. Musaskapeo applied for judicial review of the Decision and an interlocutory stay of theadministrative penalties. [6] The Initial Suspension expired on November 11, 2021. The One-year Suspension will expire on November 11, 2022. [7] Under ss 88.1(7) and (8) of the Traffic Safety Act, Mr.

Mussaskapeo may apply to the Registrar of Motor Vehicle Services toset aside the operation of the One-year Suspension if he agrees to only operate motor vehicles equipped with an alcohol-sensing interlockdevice for that time period. Mr. Musaskapeo was eligible to apply for that relief after completing 60 days of the Initial Suspension.Applications are generally processed within 45 days of receipt. No evidence is provided showing that Mr. Musaskapeo has applied to theRegistrar. [8] A second prerequisite for participation in the interlock device program is that Mr.

Musaskapeo must have enrolled in andcompleted the one-day “Planning Ahead” course offered by the Alberta Motor Association in various locations throughout Alberta,including Edmonton. No evidence is provided showing that he has completed that course. [9] The stay application came before me in morning chambers on December 13, 2021. The merits of the judicial reviewapplication will not be heard for several months. The certified record of the proceedings before the Adjudicator (the “Record”) is not yetfiled in this Court.

Interlocutory stay pending judicial review [10] The Court may stay the operation of the Decision pending judicial review unless doing so “would be detrimental either to thepublic interest or to public safety”: Rule 3.23 of the Alberta Rules of Court, Alta Reg 124/2010. [11] The parties agree that the stay application engages the tripartite analysis from RJR-MacDonald Inc v Canada (AttorneyGeneral), (SCC), [1994] 1 SCR 311 [RJR]. See also: Tarnow v Alberta (Director of SafeRoads), 2021 ABQB 602 atpara 14 [Tarnow]. [12] Mr. Musaskapeo must show: a.

A serious issue requiring a hearing, meaning an arguable issue that is not frivolous or vexatious; b. Irreparable harm if the stay is not granted; and c. The balance of convenience favours a stay of the administrative penalties. [13] While each branch of the test is considered, the factors are not watertight compartments. They relate to each other and canblend together. Strength in one part of the analysis can compensate for weakness in another.

In particular, the second and third branchesare “inexorably linked and should be considered together”: Irwin v Alberta Veterinary Medical Association, 2015 ABCA 176 at para 21[Irwin]; Pocklington Financial Corp v Alberta Treasury Branches, 1998 ABCA 254 at para 8. [14] The factors are guidelines to assist the Court in exercising its discretion.

The fundamental question remains whether grantinga stay is just and equitable in all of the circumstances: AB v College of Physicians and Surgeons of Alberta, 2021 ABCA 320 at para 42;BrettYoung Seeds Limited Partnership v Dyck, 2013 ABQB 319 at para 80; Mosaic Potash Esterhazy Limited Partnership v PotashCorporation of Saskatchewan Inc, 2011 SKCA 120 at para 26 per Richards, JA. Parties’ positions [15] Mr. Musaskapeo asserts that he has a strong case on the merits of the judicial review application, enhancing his request for astay.

He alleges irreparable harm because of a substantial risk to his employment and limited access to basic services if he cannot drive amotor vehicle. The balance of convenience, he submits, leans towards the granting of a stay. [16] The Director of SafeRoads concedes that the judicial review raises a serious issue for a hearing. The Director’s oppositionarises under the second and third factors of the test.

Preliminary issue – Absence of the Certified Record of Proceedings [ 17 ] Mr. Musaskapeo anticipated that the Record would form part of the evidence before me on this application. Counsel for the Director explained that the Record had not yet been prepared, but was being compiled for the hearing of the merits of the judicial review application.

Nothing suggests the Director was asked specifically to prepare the Record on an expedited basis for this chambers hearing. [ 18 ] The application for a stay is an interlocutory application in which each party is responsible for ensuring that the evidence on which it relies is placed before the Court. Mr. Musaskapeo has access to disclosure that would allow him to place much of the Record before me. He did not request an adjournment to supplement the evidence for this application. [ 19 ] I have proceeded on the basis of the filed documents and the Decision, which is a public record.

Analysis [ 20 ] In considering the parties’ submissions, I will address each factor in the tripartite analysis while recognizing the test is not applied mechanically and that my discretion must ultimately be exercised by considering an outcome that is just and equitable in all of the circumstances.

a) Serious issue to be heard [ 21 ] As a general rule, the Court undertakes “an extremely limited review of the case on the merits”: RJR at 338. The review of this factor is usually treated as a threshold to be satisfied, rather than an attempt to measure the strength of the applicant’s underlying claim. [ 22 ] In some exceptional circumstances, however, a more rigorous merits review may be conducted and the strength of the applicant’s claim used to support the granting of a stay.

For example, a “clear case” on the merits can invite a “relaxed test” for granting a stay or injunction, rather than strict adherence to the tripartite analysis: LPI v 000 Alberta Ltd , 2005 ABCA 23 at para 7 ; Exxonmobil Canada Energy v Novagas Canada Ltd , 2002 ABQB 455 at paras 10 , 42-48. [ 23 ] As another example, “where both sides have credible arguments about irreparable harm and balance of convenience, the strength of the serious question may, arguably, influence the Court’s perception of the relative strength of the contentions about harm and convenience”: Communications, Energy and Paperworkers Union, Local 707 v Suncor Energy Inc , 2012 ABCA 307 at para 4 ; see also: Irwin at paras 5-6, 24 ; Blacklaws v Morrow , 1998 ABCA 119 at para 6 .

Typically, this latter approach is utilized to tip the balance where there is “no credible dispute that the strength of one party’s case is disproportionate to that of the other party”: American Cyanamid Co v Ethicon Ltd , [1975] AC 396 (HL) at 409 . [ 24 ] Before me, Mr. Musaskapeo focused most of his submissions on the strength of his judicial review application.

He argues that the merits of his case distinguish his stay application from unsuccessful stay applications of administrative penalties imposed under s 88.1 of the Traffic Safety Act : see Tarnow , including other decisions referenced within, and Gill v Alberta (Director of SafeRoads) , 2021 ABQB 874 [ Gill ]. [ 25 ] Mr. Musaskapeo arguments about the merits emphasize two issues raised before the Adjudicator. First, he contends that the investigating police officer at the Checkstop recorded inconsistent information about the results of the screening device measurements of Mr. Musaskapeo’s breath.

In the police officer’s hand-written notes and an Occurrence

Summary, the results of both roadside tests were reported as a “Fail”. However, in the Administrative Penalty Information System (“APIS”), both results were recorded as a “Caution” rather than a “Fail”, which would not have invited the administrative penalties. The inconsistency, he asserts, demonstrates that the police officer’s reporting is unreliable. [ 26 ] The Adjudicator concluded that the inconsistency was explained by “typographical errors” when the police officer used the drop-down menu in the electronic APIS to enter the results. She found that the conduct of the police officer and Mr.

Musuaskapeo at the Checkstop was inconsistent with any “Caution” results or a misinterpretation of those results. The Occurrence Report and the police officer’s handwritten notes were found to be “more credible”. [ 27 ] Mr. Musaskapeo’s burden before the Adjudicator was to establish, on a balance of probabilities, that his blood alcohol concentration was under 80 milligrams of alcohol in 100 millilitres of blood. The Adjudicator concluded that he failed to meet that burden. [ 28 ] As the Record is not before me, I do not have the handwritten notes and the APIS records. Only the Occurrence

Summary has been provided. I have not seen any information about the operation of the APIS drop-down menu, including the frequency of or susceptibility to data entry error, which might be within the specialized expertise of the Adjudicator. I do not have any details about the conduct of the police officer and Mr. Musaskapeo at the scene during the Checkstop. [ 29 ] Second, Mr. Musaskapeo submits that the Director failed to disclose all relevant records as required by s 12 of the Provincial Administrative Penalties Act and s 2(

h) of the SafeRoads Alberta Regulation , Alta Reg 224/2020 . In particular, he contends that some of the police officer’s handwritten notes are missing. The Adjudicator accepted that, on a balance of probabilities, all notes were not provided. However, she concluded that while the “further notes may have been informative”, the existing production adequately explained the basis for the NAP and the absence of the other notes therefore did not impede Mr. Musaskapeo’s ability to present arguments or evidence during the oral review. Consequently, she held that the missing notes were not “relevant and necessary to

determine the basis for issuing the NAP,” as contemplated by s 2(

h) of the Regulation, and that their absence did not offend thedisclosure requirements under the legislation. [30] Mr. Musaskapeo did not address the standard of review applicable to the Decision. Section 24(3) of the ProvincialAdministrative Penalties Act states the standard of review is reasonableness.

Even in the absence of statutory direction, the standard ispresumptively deferential to the Adjudicator and therefore requires the applicant to show that the Decision was unreasonable: Canada(Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. [31] Vavilov, at para 17, contemplates the possibility of a correctness standard for some issues, such as general questions of law ofcentral importance to the legal system as a whole. However, Mr. Musaskapeo did not assert that correctness applies to any part of hisjudicial review application.

I have proceeded on the basis that a reasonableness standard is operative. [32] As explained in Vavilov at para 15, when conducting a reasonableness review, the Court must consider: ... the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole istransparent, intelligible and justified. ... the court conducting a reasonableness review must focus on the decision the administrativedecision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached inthe administrative decision maker’s place. [33] In the absence of the Record, I do not have an evidentiary foundation by which to assess the merits of the judicial reviewapplication, except for the Occurrence

Summary and the facts described in the Adjudicator’s Decision. [34] The Director conceded a serious issue for a hearing, but did not otherwise engage on the merits. [35] Mr. Musaskapeo argues that the Adjudicator erroneously concluded that the breath test results entered in the APIS were“typographical errors”. However, without the Record, I cannot properly assess the strength of that argument. On the face of the Decision,the Adjudicator offered a seemingly transparent and intelligible explanation for her conclusion. [36] Mr.

Musaskapeo submits that the Adjudicator also erred by holding that incomplete disclosure of the police officer’shandwritten notes did not offend s 12 of the Provincial Administrative Penalties Act and s 2(

h) of the SafeRoads Alberta Regulation.Again, the Adjudicator provided a seemingly transparent and intelligible explanation for her justification, relying on her

interpretation ofspecific language in the Regulation. She is presumed to have specialized knowledge about the SafeRoads legislation and herinterpretation is entitled to deference. While I accept that Mr. Mussaskapeo has an arguable position in advancing an alternativeinterpretation, he did not elaborate on his argument and has not satisfied me that his position is especially strong. [37] I conclude that Mr. Musaskapeo has nothing more than an arguable case on the judicial review application.

This is not anexceptional circumstance in which a “relaxed test” applies because of a clear case or where his position is disproportionately strongerthan that of the Director such that the balance might be tipped in favour of a stay.

b) Irreparable harm [38] Irreparable harm is that which “either cannot be quantified in monetary terms or which cannot be cured, usually because oneparty cannot collect damages from the other”: RJR at 341. The Court considers “whether a refusal to grant relief could so adverselyaffect the applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does not accord with theresult of the interlocutory application”: RJR at 341. [39] At this stage of the inquiry, the Court considers the nature of the harm, rather than its magnitude: RJR at 341.

The extent ofthe harm is assessed when weighing the balance of convenience: Kalia v Real Estate Council of Alberta, 2021 ABQB 959 at para 54[Kalia]. [40] The operation of a motor vehicle is a licensed activity that remains subject to regulation and control for the protection of thepublic: R v Dedman, [1985] 2 SCR 2, (SCC) at paras 68-69 [Dedman]. It is not a fundamental freedom or aconstitutionally protected right: Thomson v Alberta (Transportation and Safety Board), 2003 ABCA 112 at para 14; Dedman at paras68-69.

Accordingly, some financial expense and inconvenience may be imposed on a licensee to advance the public interest. [41] Modest financial loss and inconvenience caused by an operator’s licence suspension, without more, is usually not irreparableharm: Tarnow at paras 52-56; Gill at paras 19-21; Janecki v British Columbia (Superintendent of Motor Vehicles), 2017 BCSC 1405;Wallace v British Columbia (Superintendent of Motor Vehicles), 2017 BCSC 1903 at paras 8-11 [Wallace].

Something more than thenormal inconvenience resulting from the driving prohibition must be shown: Budial v British Columbia (Superintendent of MotorVehicles), 2020 BCSC 2093 at para 17 [Budial]. [42] Where the actual harm is financial, “clear and compelling evidence is required because the nature of the harm allows it to beproven by concrete evidence”: Newbould v Canada (Attorney General), 2017 FCA 106 at para 29; Kalia at para 53.

The evidence mustbe “at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay isgranted”: Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 at para 31.

Evidence of hypothetical or merelypossible harm is not sufficient: Budial at para 18; Rogina v British Columbia (Superintendent of Motor Vehicles), 2012 BCSC 840 atparas 20-21. [43] Loss of employment can constitute irreparable harm: Wallace at paras 8-10; Oughtred v British Columbia (Superintendent ofMotor Vehicles), 2013 BCSC 1821 at paras 20-22 [Oughtred]; Gill at paras 19-21. [44] The Director submits: “Financial loss alone does not meet the test for irreparable harm.” This statement was adopted in Gill,although without discussion. In my view, the statement is an oversimplification.

Substantial financial loss that cannot be recovered, and

which is adequately proven, has long been recognized as irreparable harm in various contexts, including the suspension of motor vehicleoperators’ licences: Budial at para 17; Oughtred at paras 19-20; Van Bree v British Columbia (Superintendent of Motor Vehicles),2015 BCSC 1224 at para 19 quoting from RJR at 341. [45] Mr. Musaskapeo deposes that he lives in Bruderheim, Alberta, but works in Fort McMurray, and drives approximately 400kilometres between his home and work. He believes that if he cannot recover his operator’s licence, he will “undoubtedly lose [his] job”as a welder.

He does not explain the reason for his belief. [46] Attached to his Affidavit is a letter from his employer dated November 3, 2021 stating that while “not necessary as arequirement of his employment, it would be very beneficial if [Mr. Musaskapeo] had his driver’s license so he could drive his weldingequipment and materials from the shop to the field for install.” The letter confirms that Mr. Musaskapeo is a long-term employee andconsidered a “valuable asset” to the employer. [47] The employer’s letter was completed 2 ½ months after Mr. Musaskapeo’s licence was suspended. Consequently, I infer thatMr.

Musaskapeo maintained his employment and continued to serve as a valuable employee despite the loss of his licence. His belief thathe will lose his job is unfounded based on those facts. It appears to be nothing more than speculation, lacking the “particularity” andcompelling evidence required to meet his evidentiary burden. [48] Mr. Musaskapeo submits that he is also challenged by not having an operator’s licence in a small town with “very fewservices.” However, he does not identify any specific hardship he has experienced or will continue to suffer.

He bears the evidentiaryonus, but has not explained how the loss of his operator’s licence causes more than inconvenience. As examples of these omissions, heoffers no details about the impact on his mobility, any specific adverse impact on his access to basic services, including services he hasbeen unable to access, or negative consequences for others who are dependent on him. [49] Mr. Musaskapeo also has the ability to mitigate any substantial harm by using the interlock device program and requestingthat the Registrar of Motor Vehicle Services suspend the operation of the One-year Suspension.

He has been eligible to apply for accessto that program since approximately October 13, 2021, but provides no evidence that he has done so or that the Registrar has declined hisrequest. His Affidavit does not provide any reason for failing to take that step. The requirements to participate in the program are notonerous and the expense is only a few hundred dollars, plus a $95 monthly rental fee for the interlock device. [50] The Director has presented evidence of many dates when Mr. Musaskapeo could have taken the Planning Ahead course inEdmonton, not far from Bruderheim.

A reasonable inference is that any financial harm and inconvenience caused by the suspension havenot been sufficient to motivate Mr. Musaskapeo to enrol in the interlock device program or to apply to the Registrar. His inaction speaksto the modest nature of any harm. [51] By not accessing the interlock device program, and having failed to explain his failure to do so, I conclude that Mr.Musaskapeo is the author of any ongoing harm. [52] The evidence fails to meet Mr. Musaskapeo’s burden. Irreparable harm has not been established.

c) Balance of convenience [53] The third factor, sometimes characterized as the balance of inconvenience, weighs the interests of the public against Mr.Musaskapeo’s personal interests. The public interest weighs heavily in the balance, especially where members of the public are exposedto material risks regarding physical safety and loss of life: Kristel Homes Ltd v Edmonton (City of), 2001 ABCA 317 at para 9; Goebel vEdmonton (City Of), 2004 ABCA 86 at para 21; Tarnow at paras 61-62. [54] Judicial notice has been taken of the substantial risks and societal harm associated with impaired driving.

In Wilson v BritishColumbia (Superintendent of Motor Vehicles), 2015 SCC 47 at para 36 [Wilson], the Supreme Court of Canada endorsed theobservations of Justice Cory in R v Bernshaw, [1995] 1 SCR 254, (SCC) at para 16: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, ithas a far greater impact on Canadian society than any other crime.

In terms of the deaths and serious injuries resulting in hospitalization,drunk driving is clearly the crime which causes the most significant social loss to the country. [55] In Wilson, the Court confirmed at para 37: Roadside driving prohibitions are an important tool for confronting and reducing the devastating effects of impaired driving.

Courts haverepeatedly held that driving prohibitions serve the twin purposes of increasing highway safety and deterring impaired driving. [56] As explained in Tarnow at paras 53 and 56, the purpose of the SafeRoads apparatus and the administrative penalties imposedon a licensee, such as Mr. Musaskapeo, is to protect the health and safety of both the public and Mr. Musaskapeo. As a consequence, thepublic interest includes an element of protecting Mr.

Musaskapeo from the risk that he will injure himself or cause his own death, andthe societal costs that flow from those self-inflicted outcomes. [57] The public safety objective in maintaining the integrity of administrative penalties for impaired driving is substantial. [58] Another consideration is the impact of an interlocutory injunction on the public’s confidence in the regulatory scheme:Tarnow at para 61.

The Supreme Court of Canada recognized in RJR, at 346, that public authorities charged with the duty of promotingor protecting the public interest and undertaking regulatory activity pursuant to that responsibility will suffer irreparable harm when theiractions are suspended. [59] Public confidence in this context means that the regulatory scheme operates in a manner serving public protection while

respecting the administration of justice. Consistent enforcement encourages compliance. However, the public interest is advanced by finding a fair balance between public safety and the interests of a licensee who has not yet exhausted his legal remedies and might be innocent. [ 60 ] As noted in Tarnow at para 22 , in finding that balance, public confidence prioritizes the avoidance of bodily injury and death over economic injury.

While personal economic interests might not always be subservient to public safety, those exceptional circumstances will be fact-specific and supported by compelling evidence rather than conjecture. [ 61 ] The balancing exercise also considers whether the licensee has taken reasonable steps to mitigate the risk to the public while legal rights are exercised. Mr. Musaskapeo has access to the interlock device program, which provides comfort to the public that his operation of a motor vehicle will not be impaired by alcohol.

No adequate explanation has been provided for his failure to pursue that option, even though he bears the burden of showing that the balance of convenience favours a stay. [ 62 ] In sum, substantial harm to the public interest would arise if the stay was granted. In contrast, no irreparable harm to Mr. Musaskapeo is shown. [ 63 ] The balance of convenience clearly favours the rejection of his stay application.

Conclusion [ 64 ] After considering all of the factors in the tripartite analysis and having reflected on what is just and equitable in all of the circumstances, I conclude that an interlocutory stay is not warranted. Mr. Musaskapeo’s application is dismissed. [ 65 ] If the parties cannot resolve the issue of costs, they may deliver written submissions to me within 30 days. Heard on the 13 th day of December, 2021. Dated at Fort McMurray, Alberta this 22 nd day of December, 2021. K.S. Feth J.C.Q.B.A.

Appearances: Timothy Dunlap for Shane Musaskapeo Rachelle Roberts Alberta Justice and Solicitor General Legal Services Division for the Director of SafeRoads Alberta