Toth v Alberta (Transportation and Safety Board), 2021 ABQB 544

Court of Queen’s Bench of Alberta Citation: Toth v Alberta (Transportation and Safety Board), 2021 ABQB 544 Date: 20210715 Docket: 2001 16065 Registry: Calgary Between: Justin Lee Toth Applicant - and - Alberta Transportation and Safety Board and Registrar of Motor Vehicle Services Respondents _______________________________________________________ Reasons for Decision of the Honourable Madam Justice Janice R. Ashcroft _______________________________________________________ [ 1 ] The applicant, Justin Toth, was driving on a rural road when he was pulled over by the RCMP.

The RCMP officer detected the smell of alcohol and conducted a road side breath test which the applicant failed. The applicant’s driver’s license was suspended for 90 days followed by a one-year suspension. The applicant then appealed the license suspension to the Alberta Transportation Safety Board (the Board) and the Board upheld the suspension. The applicant filed for judicial review of this decision of the Board. [ 2 ] The respondent, the Registrar of Motor Vehicle Services, however, submits that the judicial review was filed outside of the 30-day time limitation mandated in

section 47.1(2) of the Traffic Safety Act . The Registrar maintains that this Court has no jurisdiction to hear the judicial review and as such the judicial review should be struck. [ 3 ] The decision of the Board was made on October 13, 2021 (the Decision) and served on the applicant on October 14, 2021. The applicant applied to the Board for reconsideration of its decision. The Board dismissed the reconsideration application on November 26, 2020 (the Reconsideration Decision).

The applicant’s Originating Application, which seeks relief only with respect to the Decision was filed on December 23, 2020. [ 4 ] The applicant submits that he was required to exhaust all avenues of appeal prior to applying for judicial review and as such it was consistent with administrative law principles to refrain from applying for judicial review until the Reconsideration Decision was released.

The Registrar replies that reconsideration is not an adequate alternative remedy and cites cases where the Court has held that failure of an applicant to avail himself of a reconsideration remedy did not bar an application for judicial review. [ 5 ] In the result, I am persuaded by the arguments of the Registrar of Motor Vehicle Services.

[6]

Section 46 of the Traffic Safety Act, RSA 2000 c T-6, (the version in force at the relevant time) provides for reconsiderationon narrow grounds: 46(1) Where the Board has conducted an appeal and made a decision under this Division, the Board shall on the application of theperson who is the subject of the decision reconsider the decision if in the opinion of the Board the circumstances in respect of the matterhave substantially changed from the time of the decision. [7]

Section 47.1(2) provides for judicial review of “A decision or order of the Board” within a certain time frame: 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 courtby application for judicial review or otherwise, and no order shall be made, process entered or proceedings taken in any court, whetherby way of certiorari, injunction, declaratory judgment, prohibition, mandamus, quo warranto, application to quash or set aside orotherwise, to question, review prohibit or restrain any decision or order of the Board of 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 inthe 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 dateof 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. [8] In sum, the statutory regime sets out a 30-day time limit from the date of the decision, or the date the decision is received bythe applicant, whichever is later, to file and serve a judicial review. [9] The reconsideration provision under the Traffic Safety Act allows reconsideration only if circumstances in respect of thematter have substantially changed since the time of the appeal decision.

Counsel for the Registrar provides, as an example ofsubstantially changed circumstances which may warrant reconsideration, a situation where blood test results became available only afterthe administrative license suspension had been issued. [10] I note there is no date in the legislation limiting the time frame as to when reconsideration must occur. [11] A court may exercise its discretion to refuse judicial review when the applicant has not accessed an adequate alternativeremedy: Harelkin v University of Regina, (SCC), [1979] 2 S.C.R. 561. [12] In Buenaventura Jr. v Telecommunications Workers Union (TWU), 2012 FCA 69, TWU challenged the right of theapplicant to apply for judicial review when it had not availed itself of an application for reconsideration.

The Court refused to dismiss theapplication for judicial review holding that the reconsideration provision in the relevant legislation was not an adequate alternativeremedy (at para 30). The Court emphasized that an important factor in determining whether a statutory process is an adequate alternativeremedy is a consideration of the “initial burden of the decision” and the manner in which the power is likely to be exercised.

Forexample, the Court emphasized that a statutory right of appeal is often a “robust remedy” in that the appeal is heard by a body that isseparate from the initial decision maker and the mandate of the appeal body is to consider the matter de novo. The Court compared thatprocess with one of reconsideration wherein the initial burden of the decision is significant, with the same decision maker reconsideringonly its own decision, and often on limited grounds.

In these circumstances, this reconsideration power would likely not be exercised andshould not be considered an adequate alternative remedy to that of judicial review. [13] The applicant submits that, in this legislative context, the reconsideration provision is analogous to an internal avenue ofappeal in which to allow tribunals to “discover and correct their own errors.” Respectfully, I disagree. Rather, reconsideration pursuant tos. 46 is much narrower. [14] Reconsideration under

section 46 of the Traffic Safety Act is a discretionary process limited to situations where circumstanceshave substantially changed since the date of the original decision.

Given the limited circumstances wherein reconsideration would beappropriate, it is not an adequate alternative remedy that must be engaged prior to judicial review being sought. [15] Counsel makes the point that there is nothing in the Traffic Safety Act that expressly bars an application for judicial reviewwhere reconsideration is sought prior to the filing of an originating application for judicial review. [16] I acknowledge that judicial review of a reconsideration decision, as opposed to simply the original decision, may be sought.Section 46(2) specifically includes the general language: “A decision or order of the Board may be questioned or reviewed...”.[1]However, if the applicant’s

interpretation, that a reconsideration decision extends the time frame to apply for judicial review of theoriginal decision, is accepted, the time limitation for judicial review would be resurrected each time reconsideration is pursued by anapplicant. This would defeat clear legislative intent to set out a definite time frame as to when judicial review may be sought. [17] Filing for and receiving a reconsideration decision does not extend the judicial review period under

section 47 if the applicantis seeking to review the original decision. Judicial review may be sought regarding each of the Decision or the ReconsiderationDecision; however, relief sought with respect to a particular decision must be sought within 30 days of that decision. [18] Lastly, the applicant has argued that the legislators could not have intended the inefficiency of an applicant being required tofile for judicial review at the same time as applying for reconsideration.

While there may be inefficiencies in terms of applying forjudicial review when a reconsideration application is successful and the judicial review discontinued, that is an inefficiency which thelegislature is presumed to have accepted when it mandated the 30-day time limit. Given the limited grounds for reconsideration, as setout in

section 46, it should be anticipated that reconsideration would be used sparingly and was not intended to perform the samefunction as a judicial review. [19] The relief set out in the Originating Application pertains only to the Decision. There is no other application before me. The

application for judicial review is denied as the application was filed outside of the 30 day time frame mandated by s. 47.1(2) of the Traffic Safety Act . [ 20 ] Costs may be spoken to within 30 days if required. [ 21 ] I would like to thank counsel for their helpful submissions. Heard on the 8 th day of June, 2021. Additional written submissions received on June 11, 2021 and June 16, 2021 Dated at the City of Calgary, Alberta this 15 th day of July, 2021. J.R. Ashcroft J.C.Q.B.A. Appearances: David A.S.

Roper for the Applicant Andrea Simmonds for the Respondent, Registrar of Motor Vehicles Natalie Tymchuk for the Alberta Transportation and Safety Board [1] One of the ten grounds in the Originating Application mentions the reconsideration decision: “that the ATSB’s refusal to reconsider their appeal decision without a substantial change in circumstance is inherently unfair”. However, this ground was not argued in either oral or written submissions.