Tarnow v Alberta (Director of SafeRoads), 2021 ABQB 602

Court of Queen’s Bench of Alberta Citation: Tarnow v Alberta (Director of SafeRoads), 2021 ABQB 602 Date: 20210729 Docket: 2104 00338 Registry: Grande Prairie Between: Kelly Tarnow Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ I. Introduction [ 1 ] On April 1, 2021, Mr. Tarnow was issued a Notice of Administrative Penalty [the April NAP] pursuant to Traffic Safety Act , RSA 2000, c T-6 , s 88.1(1) [ TSA ] after Mr.

Tarnow failed a roadside screening of his blood alcohol content. NAPs impose sanctions such as licence suspensions, vehicle seizures, and fines for disqualifications for driving: TSA

Part 4. [ 2 ] Mr. Tarnow elected to challenge the April NAP by a review before the SafeRoads Alberta Tribunal. SafeRoads Alberta is a

comparatively new administrative tribunal, having been created on December 8, 2020 by the SafeRoads Alberta Regulation , Alta Reg 224/2020 , as authorized by the Provincial Administrative Penalties Act , SA 2020, c P-30.8 [ PAPA ]. SafeRoads Alberta is designed to provide a simplified, consistent, proportionate, and expedient mechanism to evaluate the validity of NAPs: PAPA s 2. SafeRoads Alberta Adjudicators issue written decisions in response to TSA reviews. In the case of Mr. Tarnow’s April NAP, his review was rejected by the SafeRoads Alberta Adjudicator.

The April NAP was confirmed on May 3, 2021, in a decision reported as Tarnow (Re) , 2021 ABSRA 331 . [ 3 ] Mr. Tarnow was issued a second NAP on May 23, 2021 [the May NAP]. PAPA sets a seven-day deadline to initiate a review of a NAP by SafeRoads Alberta. Mr. Tarnow missed that deadline.

PAPA s. 20 provides that a NAP recipient may within 12 months file a “request for a late review”, and that the Director of SafeRoads Alberta may grant permission to conduct a late review “... if the Director is satisfied that the recipient has prescribed exceptional circumstances ...”. “[E]xceptional circumstances” are defined in Provincial Administrative Penalties Regulation , Alta Reg 217/2020 , s 10(2) [ PAPR ]: (

a) circumstances in which the recipient was unaware of the notice of administrative penalty, if on becoming aware of it the recipient took prompt action to notify the Director; (

b) circumstances in which the recipient experienced physical or mental incapacity rendering the recipient unable to respond to the notice of administrative penalty within the time provided by

section 7 of the Act, if on regaining capacity the recipient took prompt action to notify the Director; (

c) circumstances in which the recipient experienced unforeseen and unavoidable events rendering the recipient unable to respond to the notice of administrative penalty within the time provided by

section 7 of the Act, if the recipient took prompt action to notify the Director. [ 4 ] Mr. Tarnow made a request for late review of the May NAP. That was denied by the Director of SafeRoads Alberta on June 14, 2021. [ 5 ] PAPA s. 24 states that decisions of the SafeRoads Alberta Director and Adjudicators are subject to judicial review before the Court of Queen’s Bench. Decisions by the SafeRoads Alberta Director and Adjudicators are tested on a standard of reasonableness: PAPA s 24(3). [ 6 ] Mr.

Tarnow has filed two judicial review applications with this Court: • Tarnow v Director of SafeRoads Alberta , Docket 2104 00338, filed June 1, 2021, challenging Tarnow (Re) , 2021 ABSRA 331 , and • Tarnow v Director of SafeRoads Alberta , Docket 2104 00359, filed June 15, 2021, challenging the June 14, 2021 decision of the Director to dismiss Mr. Tarnow’s application for a late review of the May NAP. [ 7 ] Mr. Tarnow has also applied for an interim stay of the NAPs pending completion of the two judicial reviews. That stay application was heard on July 5, 2021. These Reasons relate to the stay application. II.

The TSA NAP Penalty Scheme [ 8 ] The TSA

Part IV creates the NAP scheme, which involves multiple prohibitions and penalties.

Part IV covers a variety of circumstances that may result in a licence suspension. Mr. Tarnow was issued NAPs under TSA s 88.1. That provision creates a multi- part penalty: 1. an immediate 90-day licence suspension, 2. a further subsequent one year, three year, or lifetime licence suspension, the duration of that suspension depending on whether the contravention was the first, second, or third or more instance of that misconduct, 3. a 30-day vehicle seizure, and 4. a fine. [ 9 ] The TSA , PAPA , and PAPR provides for no challenge to the 90-day suspension, except by judicial review in this Court.

The one year, three year, and lifetime suspensions are, however, reviewable under an additional procedure.

When the 90-day license suspension expires, and the one year, three year, or lifetime licence suspension begins, the person subject to the suspension may apply to the Register of Motor Vehicle Services “... to set aside operation of the suspension ...” ( TSA s 88.1(7)), and instead operate motor vehicles that are equipped with an alcohol-sensing interlock device for that second suspension period ( TSA s 88.1(8)). [ 10 ] The Director entered an affidavit of Carole Aippersbach, the Acting Director of SafeRoads Alberta, sworn July 2, 2021, that further explains the operation of TSA ss 88.1(7-8).

A driver subject to a NAP may apply for the interlock device program after 60 or more days of the 90-day initial licence suspension have been completed. A second prerequisite for the alcohol sensing device interlock program is that the driver must complete the “Planning Ahead” course that is offered by the Alberta Motor Association. [ 11 ] Mr. Tarnow’s April NAP resulted in a 90-day suspension that ended on June 30, 2021. After that date, Mr. Tarnow’ additional one year licence suspension may be substituted by a requirement that Mr. Tarnow use an alcohol-sensing interlock device. Mr.

Tarnow’s May NAP also resulted in a second 90-day suspension. That period ends August 21, 2021, and will be followed by a further three-year licence suspension that may be “set aside” and replaced by a TSA ss 81.1(7-8) interlock device requirement.

[12] At the hearing of the stay application, Mr. Tarnow’s counsel advised that Mr. Tarnow was registered for the July 14th course. III. Stay Pending Judicial Review A.

The Law [13] Alberta Rules of Court, Alta Reg 124/2010, s 3.23 permits the Court to stay operation of a decision that is pending judicialreview, unless “... the stay would be detrimental either to the public interest or to public safety”. [14] The Parties agree that RJR-MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311, is theleading authority regarding whether an interim stay of the NAPs should be ordered prior to the two judicial reviews. The Alberta Courtof Appeal recently, in Millington v Millington, 2021 ABCA 256 at para 9, restated the three-part test in this manner: ...

The party seeking the stay has the burden of showing: 1) There is a serious question to be tried, meaning that there is an arguable issue that is not frivolous and vexatious; 2) There will be irreparable harm if the stay is not granted; and 3) The balance of convenience favours granting the stay. [15] Counsel for the Director of SafeRoads Alberta concedes the first requirement of the RJR-MacDonald Inc v Canada(Attorney General) test has been satisfied in this case. Therefore, in the analysis that follows, I will not review Mr. Tarnow’s grounds forjudicial review and the merit of those.

In certain instances these are legal arguments; other complaints by Mr. Tarnow relate to theweight and relevance of facts and evidence. Given the Respondent’s admission, the relative merit of Mr. Tarnow’s judicial reviews isbetter left to the full hearing(

s) of those matters, particularly where the weighing of evidence is implicated. [16] Instead, I will focus on the second and third questions in the interim stay test. I conclude that these determine the outcome ofMr. Tarnow’s application for a stay. B. The Parties’ Submissions 1. Mr. Tarnow [17] Mr. Tarnow argues he faces irreparable harm if he is not granted an interim stay. In an affidavit sworn on June 3, 2021, Mr.Tarnow explains that his job is to sell modular homes, and “[a] huge part” of that job is to visit remote locations with clients and toconduct post-delivery inspections. Mr.

Tarnow deposes he needs a valid driver’s licence for his job. In brief, Mr. Tarnow says hisirreparable harm is economic injury, or the potential of economic injury. [18] In relation to irreparable harm, Mr. Tarnow says the RJR-MacDonald Inc v Canada (Attorney General) says irreparableharm may be reduced to the question of whether or not money can compensate for the alleged harm. Mr. Tarnow argues that is never thecase for a loss of driving privileges.

These cause “tremendous inconvenience”, potentially “serious hardship”, and have “anoverwhelming punitive impact”: Sahaluk v Alberta (Transportation Safety Board). [19] Mr. Tarnow cites Chandler v British Columbia (Superintendent of Motor Vehicles), 2018 BCCA 120, and Balderston vBritish Columbia (Superintendent of Motor Vehicles), 2006 BCCA 138, for the proposition that administrative driving prohibitionsinherently result in irreparable harm. Mr.

Tarnow observes that, in instances where this principle was not applied, the driver subject to alicence suspension had made a late challenge to their driving prohibition. [20] Mr. Tarnow also argues the third factor, balance of convenience, favours him. Mr. Tarnow submits that, if he is successful inhis judicial review, there will be no way to compensate him for his illegal loss of rights. Mr. Tarnow submits that, if the stay is notgranted, he will be forced to serve his full suspension. That is unfair, as there is no detriment to the public interest.

At worse, Mr.Tarnow’s sanction will be delayed, not avoided: Thomson v Alberta (Transportation and Safety Board), 2003 ABCA 322. Mr. Tarnowsubmits that, as this authority is binding on this Court, stay applications should be granted whenever those are sought in response to anadministrative driver’s licence suspension. 2. The Director of SafeRoads Alberta [21] The Director argues that Mr. Tarnow has not established irreparable harm.

First, the Director points out that Sahaluk vAlberta (Transportation Safety Board) does not relate to whether a license suspension results in irreparable harm, but instead that caseaddressed the third part of the RJR-MacDonald Inc v Canada (Attorney General) test. [22] Similarly, the Director submits that the passages cited by Mr. Tarnow in Chandler v British Columbia (Superintendent ofMotor Vehicles) relate to a separate question in relation to irreparable harm: whether the failure to issue an interim stay rendered anappeal pointless, or “nugatory”.

The Director also cites Budial v British Columbia (Superintendent of Motor Vehicles), 2020 BCSC2093, which concluded that the fact an appeal removed a driving prohibition from a driving record is a meaningful appeal result. TheDirector argues the same is true for Mr. Tarnow. If Mr. Tarnow is successful in his judicial reviews, then Mr. Tarnow would have hisdriving record cleared, be reimbursed PAPR s. 4 fines, and no longer be required to participate in mandatory education courses. Beyondthat, the Director notes that it is very unlikely that Mr.

Tarnow’s judicial review would not be completed outside that period, so the“nugatory review” issue is either irrelevant or secondary.

[ 23 ] The Director cites Canadian case law that has concluded that a driver’s licence suspension does not usually cause inconvenience that causes irreparable harm, and the same is true for interruptions in employment, except, possibly, loss of a job: Budial v British Columbia (Superintendent of Motor Vehicles) ; Dickson v British Columbia (Superintendent of Motor Vehicles) , 2020 BCSC 184 ; Janecki v British Columbia (Superintendent of Motor Vehicles) , 2017 BCSC 1405 ; Yazdanfar v College of Physicians and Surgeons of Ontario , 2012 ONSC 2422 ; Wallace v British Columbia (Superintendent of Motor Vehicles) , 2017 BCSC 1903 . [ 24 ] The Director points out factual issues with Mr.

Tarnow’s claims, which are described as vague and speculative. In particular, the Director observes that Mr. Tarnow has not lost his job, nor is there any evidence that his income has been affected. Mr. Tarnow has been subject to a complete license suspension for three months, and his employer has been able and willing to accommodate that. [ 25 ] Furthermore, the Director points out that the two-part licence suspension scheme created by TSA s 88.1 means that, after the mandatory initial 90-day licence period, Mr. Tarnow has an alternative.

He may seek to have his one- and three-year licence suspensions replaced by being required to operate his motor vehicle(

s) with an alcohol detection interlock device. That means that Mr. Tarnow can drive for employment and other purposes, if Mr. Tarnow elects to take this less intrusive step. That lesser step also protects the public. The Director submits that Mr. Tarnow cannot meet his onus to establish irreparable harm in this context, particularly in light of the special factor - public interest - as identified in Thomson v Alberta (Transportation and Safety Board) , 2003 ABCA 322 at para 12 . [ 26 ] As for the balance of convenience, the Director again stresses the implications of the public interest.

The Alberta Court of Appeal has concluded that: 1. a stay potentially undermines public confidence in a regulatory apparatus ( Merchant v Law Society of Alberta , 2009 ABCA 91 ; Irwin v Alberta Veterinary Medical Association , 2015 ABCA 176 ); and 2. the public interest is critical when considering public safety ( Kristel Homes Ltd v Edmonton (City of) , 2001 ABCA 317 ).

Beyond that, both the Supreme Court of Canada ( Wilson v British Columbia (Superintendent of Motor Vehicles) , 2015 SCC 47 ) and the Alberta Court of Appeal ( Thomson v Alberta (Transportation and Safety Board) , 2003 ABCA 322 ) have recognized that impaired driving results in “... l ives lost and lives shattered ...”, which is less a question of inconvenience, than a factor that is of much greater weight: physical harm. [ 27 ] Furthermore, Mr. Tarnow’s recent conduct affects the balance of convenience: Mr. Tarnow in several months has accumulated two NAPs. That amplifies the potential threat represented by Mr.

Tarnow. [ 28 ] In conclusion, the Director argues that Mr. Tarnow has not satisfied either the irreparable harm or balance of convenience components of the RJR-MacDonald Inc v Canada (Attorney General) three-part test. The Court should therefore deny Mr. Tarnow’s interim leave application. C. Other Decisions of the Alberta Court of Queen’s Bench that Evaluate Pre- Judicial Review Interim Stays of SafeRoads Alberta Decisions [ 29 ] I am not aware of any reported decision of this Court that addresses when an interim stay ought to be granted in response to SafeRoads Alberta confirming a NAP.

However, my decision is not the first of its kind. There have been earlier oral decisions. [ 30 ] The Parties agreed that they would provide, and I should review, transcripts of three oral decisions made by other Alberta Court of Queen’s Bench Justices that addressed whether or not an interim stay ought to be ordered where a person subject to a NAP licence suspension then challenged an unfavourable decision of SafeRoads Alberta. [ 31 ] Neufeld J evaluated an interim stay of a SafeRoads decision in an oral decision, rendered April 12, 2021, in Wagner v SafeRoads Alberta , Docket 2104 00205.

The chief authorities relied on by the applicant were Chandler v British Columbia (Superintendent of Motor Vehicles and Thomson v Alberta (Transportation and Safety Board , 2003 ABCA 322 . Overall, the argument by those applicants is much the same as that of Mr. Tarnow. The driver in the latter was an automobile mechanic who argued he needed to drive for his job. The Director argued that timelines involved in the case law cited by the driver are different.

Justice Neufeld accepted that the first threshold element of the RJR-MacDonald Inc v Canada (Attorney General) was satisfied, and concluded the impact on the driver’s employment meant irreparable harm was faced. Neufeld J concluded that a four-month delay until the full judicial review hearing meant the balance of convenience favoured an interim stay. [ 32 ] In Isley v SafeRoads Alberta , Docket 2104 00222, Wilson J, on May 12, 2021, received arguments that broadly parallel those of the Parties in the present application.

Justice Wilson concluded, citing Chandler v British Columbia (Superintendent of Motor Vehicles) , that irreparable harm would result because the duration of the suspension would mean the judicial review would be meaningless because “... the full prohibition period may be exhausted before the judicial review is heard and determined.” [ 33 ] Justice Wilson concluded society’s interest in immediate enforcement of the driver’s licence suspension is outweighed by the inconvenience and cost of the driver having “... to hire somebody to be his private taxi service.” At worst, if the judicial review was unsuccessful, the sanction against the driver is not eliminated but delayed.

I note Justice Wilson received evidence that access to the alcohol breath detector interlock apparatus alternative remedy would be delayed several months. That is different from the evidence received by affidavit from Ms. Aippersbach. It would appear the delays identified in Isley v SafeRoads Alberta were at least in part a consequence of COVID-19 disruptions and stressors. Those have now been addressed. [ 34 ] On May 18, 2021, Justice Devlin issued an oral decision in relation to two interim stay applications made in Lausen v SafeRoads Alberta , Docket 2101 04992 and Claus v SafeRoads Alberta, Docket 2101 03616.

The Court responded to arguments again similar to those advanced in this proceeding. Justice Devlin noted the important public interest factors at play when responding to impaired driving and its social effects. Justice Devlin distinguished Thomson v Alberta (Transportation and Safety Board , 2003 ABCA

322, and stressed that the particular facts of a suspension situation and driver are very relevant to application of the RJR-MacDonald Incv Canada (Attorney General) test. Justice Devlin concluded the fact-specific attributes for one driver favoured a stay.

In the otherinstance, a stay was not warranted because the evidence of hardship was limited, and the driver’s licence suspension would shortly bemitigated as the driver could access the interlock program. [35] At the hearing of the application, I was also advised that Justice Inglis had, in an unidentified and unreported case, granted astay until the applicant had had a reasonable opportunity to complete the “Planning Ahead” course and to arrange for the installation ofthe interlock device.

As I was not provided with a transcript in relation to that decision, I do not have details concerning the evidence andarguments that were before her. IV. Analysis [36] Prior to my specific analysis, I share the observations of other justices who, in their oral decisions, emphasized that thestructure of the impaired driving testing and penalty apparatus being reviewed is not a criminal proceeding or process. The NAP andSafeRoads Alberta review created by the Alberta Legislature is an administrative tribunal regime that operates to regulate motor vehicleoperation.

That fact has several implications. [37] First, the NAP procedure and SafeRoads Alberta reviews are similar to other motor vehicle operation and regulationprocesses. There is no presumption of innocence in play that results from the risk of a criminal sanction. Instead, the scheme created byPAPA, PAR, and the TSA is a regulatory scheme. [38] Driving motor vehicles is a regulated activity. That is nothing new, nor is the regulation of driving a motor vehicle commonlyviewed as intrusive or oppressive. In Alberta, a person must have a driver’s licence to legally operate a motor vehicle on public streets.

InAlberta, a person must register their motor vehicle before it is legal to take that vehicle on the road. In Alberta, a person must maintain aminimum amount of insurance to use a motor vehicle. Why has Alberta mandated these steps? For a variety of policy reasons. [39] Driver’s licences are issued to persons who have demonstrated basic safe proficiency to operate motor vehicles. That keepsuntrained and unsafe drivers off the road.

Similarly, motor vehicle insurance serves a public purpose by assuring that, in the event of amotor vehicle collision or other injurious incident, the persons harmed by a negligent driver are compensated for their injuries. [40] These are harm mitigation steps. So are steps that restrict and/or structure the driving activities of persons who are identifiedas operating motor vehicles while intoxicate. These legislative schemes have the same underlying public objective: regulating aneconomically and personally important activity while protecting public and individual safety.

Motor vehicles are a risk to those who usethem. Driver’s licences do not simply protect the public. Licencing driving activities protects the driver as well. An unsafe driver is a riskto all on the road, including the unsafe driver. [41] Next it is important to identify what is not a protected right in Canada. The Supreme Court of Canada has made it very clearthat there is no constitutional right to uninterrupted and unconditional use of motor vehicles.

In R v Dedman, (SCC),[1985] 2 SCR 2 at paras 68-69, 20 DLR (4th) 321, Le Dain J concluded: ... it is convenient to refer to the right to circulate in a motor vehicle on the public highway as a "liberty". ... however, that the right is nota fundamental liberty like the ordinary right of movement of the individual, but a licensed activity that is subject to regulation and controlfor the protection of life and property. ... ...

The right to circulate on the highway free from unreasonable interference is an important one, but it is, as I have said, a licensedactivity subject to regulation and control in the interest of safety. ... [Emphasis added.] [42] Following on the above statement, Chief Justice Fraser, in Thomson v Alberta (Transportation and Safety Board), 2003ABCA 112 at para 14, concluded that: ... nothing in the subsequent decisions of the Supreme Court of Canada that would lead to the conclusion that driving a car on a publichighway constitutes a fundamental life choice sufficient to engage s. 7. [43] The Supreme Court of Canada has been very clear as to where using a motor vehicle falls in the hierarchy of human activitiespotentially subject to state regulation.

What the Supreme of Canada is also very clear about is the impact of impaired motor vehicleoperation on Canadian society as a whole. In Wilson v British Columbia (Superintendent of Motor Vehicles) at para 36, Moldaver J,writing for the Court, endorsed what Cory J wrote in R v Bernshaw, (SCC), [1995] 1 SCR 254, at para 16, twentyyears earlier: 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. Justice Moldaver concluded: “... driving prohibitions are an important tool for confronting and reducing the devastating effects ofimpaired driving ...”. [44] The “devastating” implications of impaired driving are relevant to the values protected by Charter s 7: life, liberty, andsecurity of the person.

The Supreme Court of Canada has been explicit: It is clear ... that the common law must be interpreted in a manner which is consistent with Charter principles. This obligation is simplya manifestation of the inherent jurisdiction of the courts to modify or extend the common law in order to comply with prevailing social

conditions and values. ... [Hill v Church of Scientology of Toronto, (SCC), [1995] 2 SCR 1130 at para 91.] Impaired driving means people end up dead, injured, and incarcerated. Impaired driving is a “no win” situation.

That is the “socialcondition” of impaired driving. [45] That is the public interest engaged when applying the second and third stages of the RJR-MacDonald Inc v Canada(Attorney General) interim stay test: the physical safety of the public, including the person who is subject to a driver’s licencesuspension. [46] The second interest raised consistently in the SafeRoads Alberta judicial review interim stay applications reviewed above isthe negative consequence of a driver’s licence suspension on employment and economic activity.

Again, it is worthwhile to examine howCanadian law views a possible “right to work”, or “right to economic activity”. [47] The Canadian Constitution does not protect economic, employment, and property rights. If that had been intended, the Charterwould have made that explicit: Bassett v Canada (Government) (1987), (SK CA), 35 DLR (4th) 537 at para 61, 53Sask R 81 (Sask CA). In Reference re ss 193 and 195.1(1)(

C) of the Criminal Code (Man.), (SCC), [1990] 1 SCR1123, 56 CCC (3d) 65, Lamer J concluded Charter, s 7 does not create an economic right “... to exercise their chosen profession ...”,which in this case was prostitution. [48] Justice Major, in Siemens v Manitoba (Attorney General), 2003 SCC 3 at paras 45-46, rejected an argument that legislationwhich prohibited video lottery terminal games in a Manitoba town breached Charter s 7 because that impeded the appellant’s choice ofprofession and location of work.

Justice Major responded: However, as a brief review of this Court’s Charter jurisprudence makes clear, the rights asserted by the appellants do not fall within themeaning of s. 7. The right to life, liberty and security of the person encompasses fundamental life choices, not pure economic interests.... ...

The ability to generate business revenue by one’s chosen means is not a right that is protected under s. 7 of the Charter. [Emphasis added.] [49] Even more directly relevant to the case at hand is United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City of),2002 ABCA 131, outcome reversed on other grounds 2004 SCC 19.

Wittman JA (as he then was), concluded that Charter s 7 was notbreached by municipal bylaws that required taxi licences. [50] The Parties do not dispute the importance of public interest in the RJR-MacDonald Inc v Canada (Attorney General)interim stay test at the second and third steps of that process: Thomson v Alberta (Transportation and Safety Board), 2003 ABCA 322at para 12. I will now proceed to consider those two steps. A. Irreparable Harm [51] The onus is on Mr.

Tarnow to establish he would experience irreparable harm if he was not granted an interim stay of the twoSafeRoads Alberta decisions that upheld NAPs issued against him. I find he has not done so. I make this finding on two separate andindependent bases. [52] Ultimately what Mr. Tarnow is arguing is potential economic injury. I agree with counsel for the Director that Chandler vBritish Columbia (Superintendent of Motor Vehicles) is not relevant in this situation. There is no realistic prospect that Mr. Tarnow’sright to judicially review the SafeRoads Alberta decisions will prove “nugatory”. Mr.

Tarnow will almost certainly have a full judicialreview hearing (if he so chooses) within the period he is subject to the second, and probably both, NAPs. [53] As I have previously reviewed, Mr. Tarnow’s assertion of irreparable economic harm cannot be the basis of a legal right to dowhatever work he chooses, in the manner he so elects. That counterbalances against the public purpose of the PAPA, TSA, andSafeRoads Alberta apparatus: the safety and health of both the public and Mr. Tarnow.

The latter are interests protected by the Charter. [54] I stress that, in evaluating and reaching my conclusion in relation to economic impact, and the Charter protected values of life,liberty, and security of the person, I have considered the relative impact of impaired driving on Canadians. That is a balancing exercise,and specific to this particular risk scenario. [55] There are activities regulated by Canadian governments that do not have such a dramatic health and safety effect, whenlegislation and regulations are breached.

For example, the Bee Act, RSA 2000, c B-2, regulates the importation, ownership, management,and control of bees in Alberta. Bees are a potential safety hazard. People die of bee stings. However, the frequency of lethal or seriousbee-related injury in Alberta is not such that it would likely outweigh the economic interests of a bee keeper who seeks an interim staypending a court’s determination that relates to the hypothetical beekeeper’s business. Charter s 7, and interpreting legislation anddeveloping the common law, is relevant in this scenario.

The potential risk to the public is protected by that aspect of the CanadianConstitution, but when it comes to bees, the public threat would not likely counterweigh significant economic interest, if that interest wasestablished by admissible evidence. [56] Another way of stating my conclusion is that the consequences of impaired driving to the public - including to Mr. Tarnow -are of a different, and possibly unique, degree than is usually considered when applying the irreparable harm step of the RJR-MacDonald Inc v Canada (Attorney General) test.

Canadian courts of all levels have stressed the tragic and preventable consequencesof impaired driving. I note in R v Bernshaw the Supreme Court of Canada stated no other illegal conduct causes as much death and

injury as operating motor vehicles while impaired. In 2015, Moldaver J confirmed nothing had changed. The magnitude of that specific public interest issue, and that Mr. Tarnow seeks to resume unlimited driving privileges, is the first basis on which I conclude that Mr. Tarnow’s interim stay application ought to be refused. Public interest outweighs economic injury. [ 57 ] The second basis on which I conclude Mr. Tarnow has not proven on a balance of probabilities that he would experience irreparable harm if he is not granted a stay is that Mr. Tarnow has not established a factual basis for that.

I accept the Director’s arguments that Mr. Tarnow’s affidavit is not sufficient to support that conclusion. I find that the allegations of “tremendous inconvenience” and “overwhelming punitive impact” are not substantiated by Mr. Tarnow’s affidavit evidence. [ 58 ] Like Justice Devlin, I also find that the duration of Mr. Tarnow’s ongoing licence suspension is a factor for this fact-based analysis. Mr. Tarnow’s initial 90-day mandatory suspensions end in less than a month. Mr. Tarnow has not provided any evidence to establish his work situation is “brittle”.

Instead, his continuing employment indicates the opposite. I conclude I should consider the limited outstanding time remaining in the first licence suspension of the May NAP, since Mr. Tarnow may request that the Registrar of Motor Vehicles set aside his driver’s licence suspension. Mr. Tarnow may instead use the interlock program. In short, I conclude Mr. Tarnow’s potential irreparable damages ends with the 90-day suspension under his May NAP. Any economic harm after that to Mr.

Tarnow is his own doing, because he has access to a remedy that both restores his legal use of motor vehicles and also balances the need for public and Mr. Tarnow’s personal safety. C. Balance of Convenience [ 59 ] I also find Mr. Tarnow has not demonstrated that the balance of convenience favours an interim stay of his NAPs pending judicial review.

I conclude balance of convenience should be evaluated in relation to two time periods: 1. during the initial TSA s 88.1 90-day licence suspensions, and 2. the following one- and three-year licence suspensions that may be “set aside” by the Director of Motor Vehicles, and replaced by a breath alcohol detection interlock requirement. [ 60 ] In coming to my conclusions, I apply many of the same factors discussed in the irreparable harm step, including: 1. Mr. Tarnow’s inconvenience is economic injury, or hypothetical economic injury; 2. Mr.

Tarnow’s affidavit evidence is a weak basis to establish economic injury, or hypothetical economic injury; and 3. balancing the public and Mr. Tarnow’s interests ought to be interpreted in light of the Charter s 7 factors implicated by the negative consequences of impaired driving, and that the interests that Mr. Tarnow says are infringed have a lower legal weight in Canada than safety, including not just that of the public, but Mr.

Tarnow himself. [ 61 ] The Director has pointed out that the Court of Appeal has concluded that one aspect of public interest that should be addressed when evaluating a stay of a regulatory scheme is the degree to which public confidence is compromised by failure to enforce that regulatory scheme: Merchant v Law Society of Alberta , 2009 ABCA 91 ; Irwin v Alberta Veterinary Medical Association , 2015 ABCA 176 .

Cote JA, in Kristel Homes Ltd v Edmonton (City of) at para 12, observed this calculation is altered when the potential impact of an interim stay affects “... the possibility or likelihood of someone being seriously injured or killed ...”. I agree these are relevant factors. [ 62 ] I conclude that, when one combines the public interest in enforcing a safety-focussed regulatory scheme, with the unique harm caused by impaired motor vehicle operation as indicated in R v Bernshaw , strong evidence is needed to displace that public interest. Economic injury arguments, in my opinion, will rarely meet that standard.

I conclude that the public’s confidence in the TSA NAP and SafeRoads Alberta regime would be undermined if I were to grant Mr. Tarnow an interim stay of his NAPs because he claimed that the NAPs were affecting his employment, and the result was Mr. Tarnow harmed himself or others as a consequence of a future impaired driving incident. [ 63 ] These are general points. The balance of convenience analysis should also be fact- and scenario-specific. I also conclude that Mr. Tarnow should be denied an interim stay of his NAPs, specifically, because Mr.

Tarnow: 1. has introduced weak evidence of economic harm, or more accurately, hypothetical economic harm, and 2. Mr. Tarnow has had two NAPs imposed within a short period. [ 64 ] In relation to the remainder of the May NAP 90-day driver’s licence suspension, I conclude the limited duration remaining of that prohibition is a relevant consideration when balancing the weights of convenience. The impending end-point of that prohibition also weighs in favour of continuing the May NAP, until that period is complete. [ 65 ] I conclude that no interim stay of the May NAP 90-day driver’s licence suspension is appropriate.

My conclusion on this point should not be viewed as a general one; i.e. that an interim stay would never be appropriate where the target was the initial 90-day suspension resulting from a TSA s 88.1 NAP. There may well be cases in which the specific facts of the case lead to the granting of a stay during that period, as was apparently the outcome in the decision of Justice Inglis referred to in oral argument. In the case of Mr.

Tarnow, however, the balance of convenience favours that the May NAP 90-day driver’s licence suspension remain in effect. [ 66 ] I make broader findings in relation to the TSA s 88.1 NAP one, three, and lifetime driver’s licence suspensions.

When one balances the powerful public interest in minimizing the harm caused by impaired motor vehicle operation, against the availability of a comparatively non-intrusive step that permits safe motor vehicle operation by a person who was the target of a NAP, the balance of convenience will almost inevitably favour that an interim stay of a TSA 88.1 one, three, or lifetime driver’s licence suspension is denied.

[ 67 ] The Alberta Legislature has provided a mechanism to permit the regulated re-entry onto Alberta roads of persons who are subject to a NAP as a result of having been found operating motor vehicles while having an illegal concentration of alcohol in their bodies.

The interlock program balances the public’s right to life and safety with the safe re-introduction of persons who have a record of impaired motor vehicle operation. [ 68 ] I conclude that, barring exceptional circumstances, an interim stay should not be granted where a driver who has been subject to a NAP does not pursue access to the ignition interlock alternative to their one-year, three-year, or lifetime TSA s 88.1 suspension in a timely manner. The availability of this alternative remedy very strongly favours the public interest over the minimal inconvenience of a person subject to a NAP.

Put another way, if a person who has been found to operate a motor vehicle while impaired elects to not take advantage of the interlock program, then their injury and inconvenience is self-inflicted. [ 69 ] I therefore conclude that Mr. Tarnow has not established that the balance of convenience favours a stay of either NAP. V. Conclusion [ 70 ] Mr. Tarnow’s application to stay the operation of the April and May NAPs pending his judicial reviews is denied. I understand that Mr. Tarnow plans to apply to the Registrar of Motor Vehicles for the interlock program once he has completed the “Planning Ahead” course.

Doing so is an important step to mitigate potential future harm. I commend Mr. Tarnow for doing so. [ 71 ] Since the Director was successful in this application, I order Mr. Tarnow to pay the Director $1,000 in costs, forthwith. Counsel for Mr. Tarnow is instructed to prepare a draft order reflecting this decision. Heard on the 5 th day of July, 2021. Dated at the City of Edmonton, Alberta this 29 th day of July, 2021. D.L. Shelley J.C.Q.B.A. Appearances: Timothy Foster Q.C. Foster Iovinelli Beyak Kothari for the Applicant Kelly Tarnow Rachelle K.

Roberts Alberta Justice and Solicitor General Legal Services Division for the Respondent Direct of SafeRoads Alberta