Gill v Alberta (Director of SafeRoads), 2021 ABQB 874

Court of Queen’s Bench of Alberta Citation: Gill v Alberta (Director of SafeRoads), 2021 ABQB 874 Date: 20211103 Docket: 2103 11340 Registry: Edmonton Between: Shardbeer Gill Plaintiff/Applicant - and - The Director – SafeRoads Alberta Defendant/Respondent _______________________________________________________ Endorsement of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A.

Introduction [ 1 ] A driver whose license was suspended under the SafeRoads Alberta legislation and program seeks an interim stay of the suspension, citing (primarily) irreparable harm caused by expense and inconvenience associated with installing and using ignition interlock devices in two vehicles needed for his employment. [ 2 ] The Director argues that the cited expense and inconvenience does not constitute irreparable harm here.

[3] The Director is right, as explained below. Accordingly, the stay application is dismissed. B. Key facts [4] Per his stay application, “[o]n June 9, 2021, the applicant received an Immediate Roadside Suspension … pursuant to section88.1 of the Traffic Safety Act ….” [5] Per the Director, that suspension includes or included these elements: • immediate 90-day license suspension; and • further license suspension and “requirement for an alcohol-sensing device” (discussed further below) for “a further period of oneyear.” [6] On June 14, 2021, Mr.

Gill filed an application to review that suspension. [7] The review was conducted on June 25, 2021; it was denied on July 8, 2021. [8] On August 6, 2021, he filed an originating application for judicial review of that decision. [9] By the Director’s calculations, the 90-day suspension expired on September 7, 2021, and the further-one-year suspensionwill expire September 7, 2022. [10] Mr. Gill’s understanding is that the judicial review will not be heard until May 2022. [11] On September 30, 2021, Mr.

Gill filed an application for an interim stay of the license suspension (among other relief). [12] That application came before me in civil chambers on October 19, 2021. [13] It was common ground that the stay application is governed by Rule 3.23 (stays in context of judicial-review applications) andthat the three-factor test in RJR-MacDonald Inc v Canada (Attorney General), (SCC) applies (serious question to betried; irreparable harm if stay not granted; and balance of convenience favours granting the stay). [14] The Director acknowledges the existence of a serious question to be tried here. [15] On irreparable harm, Mr.

Gill gave the following evidence (per his affidavit sworn and filed August 20, 2021): • [on June 9, 2021, I was] “working as a package delivery driver for [a delivery company]; • As a result of my license suspension, I have lost my employment as a contactor with [that company]. Also, due to a seriousmedical injury suffered in October of 2019, I have been required to attend medical appointments frequently (approximately once amonth) and continue to take prescriptions to manage my pain. I attend my pharmacist to obtain prescription drugs on a weekly basis.

Ithas become far more difficult for me to attend medical appointments and drive to the pharmacist to [fill] my prescriptions; • I understand that I will eventually be given access to an ‘Interlock Device’ which I can pay to have installed in my car and thenpay on a monthly basis to rent and maintain in my vehicle; • Based on reviewing the ‘Smart Start Alberta’ website and the operator’s manual for the Interlock Device, I understand that thesedevices require that I provide a breath sample into the device every time I start the vehicle, and I will periodically need to providerandom samples while driving to confirm my sobriety.

I understand that failure to provide these samples can ‘lock out’ the vehicle andrender it inoperable. I have heard that these can malfunction at times and provide false readings. I understand that a lockout canrequire my vehicle to be towed to a Smart Start location to be fixed. • I understand that I can return to my employment with [delivery company] as a sub-contractor once I obtain [presumably re-obtain] a [non-suspended] class 5 drivers’ license.

I have obtained a letter from my prior employer confirming this. [Exhibit A]; • Based on my previous employment, I expect that I will be working approximately 5 shifts a week, and working fromapproximately 8:00 am – 5:00 pm daily, though some busy days require that I work until 9:00 pm or longer. On average I workedapproximately 40-45 hours per week before my license was suspended.

My performance and compensation are judged largely on myability to quickly delivered the assigned goods; • My work often involves leaving my vehicle idling while I physically drop off the package, and I am concerned that theInterlock Device may demand a sample of my breath while I am away from the vehicle, potentially resulting in a lockout discussedabove; • On some occasions I have utilized my family-owned pick-up truck to deliver larger packages. Deliveries of this naturegenerally provide greater compensation.

I do not believe it will be practical or cost-effective to have an Interlock Device installedin both vehicles, as I am not the primary operator of the vehicle. As such I will no longer be able to make these deliveries; • I am concerned that the installation of an Interlock Device will hinder my employment and that I may lose this employmentif I am required to operate my delivery vehicle with an Interlock Device installed; and • The main vehicle that I own is often drive by other members of my household, which includes my father and my wife. They

will also be required to utilize the device while operating the vehicle. Their misuse of the device could also lead to a lockout, which would hinder my employment. [paras 2 and 7-15] [emphasis added] [ 16 ] On the subject of interlock devices, the Director offered this evidence: … under s. 88.1(6), (7) and (8)(

a) of the TSA, a driver may apply to the Registrar of Motor Vehicle Services to set aside the one-year suspension on the condition that their vehicle is equipped with an alcohol-sensing device (i.e. an “interlock” device). Exhibit “B” contains information about Alberta’s ignition interlock program. Drivers may apply for the program when there are 30 days or less left on the initial 90-day suspension. … before the interlock device can be installed, the driver must complete the Planning Ahead course .

As set out in Exhibit “C”, this course is offered through the AMA and there are frequent course offerings at various locations in Alberta, including Edmonton, both in person and remotely. A driver may register in the course at any time after a [Notice of Administrative Penalty] is issued and entered as a suspension on their driving record. … Smart Start Canada offers an optional feature for interlock devices called Smart Idle[TM] which allows users to leave a parked vehicle running for up to 8 hours without having to worry about missing a retest.

Exhibits “D” and “E” contain information about [that feature]. [paras 6-8 of Lynn Varty affidavit sworn October 14, 2021] [ 17 ] After hearing from counsel for Mr. Gill and counsel for the Director, I reserved my decision to review the filed materials and the legislation, as well as a recent decision of Shelley J. ( Tarnow v Alberta (Director of SafeRoads) , 2021 ABQB 602 ) considering a stay-of-suspension request. C.

Legislative backdrop [ 18 ] The governing provision is s. 88.1 of the Traffic Safety Act , reproduced in part below (key parts bolded): 4) If a notice of administrative penalty is issued under this section, (

a) for a first contravention of this section, (

i) the driver is suspended (

A) for an immediate period of 90 days , and (

B) following the expiration of the period in paragraph (A), for a further period of one year , (ii) the peace officer or a person authorized by the peace officer shall seize the driver’s vehicle for 30 days, (iii) the driver is liable to a fine as provided for under the Provincial Administrative Penalties Act for contravention of this

section for the first time, and (iv) in the case of a driver who holds an operator’s licence, the driver is subject to any additional conditions for reinstatement of the licence as set out in the regulations for contravention of this

section for the first time, … 5) The peace officer shall advise the driver of the driver’s right to voluntarily undergo the applicable test, analysis or evaluation referred to in

section 88.11(2). 6) On the expiration of a suspension imposed under subsection (4)(a)(i)(A) …, a person may apply to the Registrar to set aside the operation of the suspension imposed under subsection (4)(a)(i)(B) …. 7) The Registrar may set aside the operation of a suspension imposed under subsection (4)(a)(i)(B) … only on the condition that the person who is subject to the suspension (

a) does not operate a motor vehicle unless the vehicle is equipped with an alcohol-sensing device satisfactory to the Registrar, and (

b) complies with any terms or conditions imposed by the Registrar. 8) The term during which the person must not operate a motor vehicle without an alcohol-sensing device as described in subsection (7) is for a suspension imposed under subsection (4)(a), 12 months ; … 9) Notwithstanding subsection (8), the Registrar may consider and grant or refuse an application for exemption from subsection (8) where it is not feasible for the suspended person to comply with the requirement for the use of an alcohol-sensing device as prescribed in this section.

10) On an application referred to in subsection (9), the Registrar may set aside the requirement for the use of an alcohol-sensing device, and instead impose a further period of suspension or another term or condition that will, in the opinion of the Registrar, ensure public safety. 11) Where the operation of a suspension imposed under subsection (4)(a)(i)(B) … has been set aside by the Registrar on the condition that a person does not operate a motor vehicle unless the vehicle is equipped with an alcohol-sensing device, the Registrar may rescind the setting aside of the suspension if the alcohol-sensing device with which the person’s vehicle has been equipped registers a warn or a fail . [emphasis added] D.

Application of stay principles here [ 19 ] As noted, the focus is on irreparable harm, specifically (per Mr. Gill) the suspension’s impact on his (driving-based) employment and the expense, inconvenience and uncertainty of the interlock option. [ 20 ] Here are the Director’s responses on that subject (per its brief filed October 14, 2021): The Applicant bears the onus of establishing that he will experience irreparable harm if he is not granted a stay. The threshold that the Applicant must meet is high.

The normal inconvenience arising from a licence suspension is not sufficient, nor is a hypothetical harm (Janecki v British Columbia (Superintendent of Motor Vehicles), 2017 BCSC 1405 , Dickson v British Columbia (Superintendent of Motor Vehicles), 2020 BCSC 184 at para 21 , and Budial v British Columbia (Superintendent of Motor Vehicles), 2020 BCSC 2093 at para 17 Budial). The inconveniences the Applicant claims do not rise to the level of irreparable harm Financial loss and inconvenience alone do not meet the test for irreparable harm .

In Yazdanfar v College of Physicians and Surgeons of Ontario , 2012 ONSC 2422 , the Court rejected the physician’s argument that an interim suspension of her authorization to practice would result in irreparable harm because it would reduce her clinic’s profits, hurt her reputation, and result in loss of income, stating at para 64: … some financial loss alone is insufficient. Irreparable harm in this context means more than financial loss or inconvenience. Otherwise, the threshold would always be met when a physician’s license is revoked or suspended.

Further, in addition to being more than an inconvenience or some loss, for harm to be considered irreparable the Court in Wallace v British Columbia (Superintendent of Motor Vehicles) , 2017 BCSC 1903 stated that an applicant must show that the licence suspension will cause them to no longer be employed (see paras 8-11). In the context of impaired driving , irreparable harm is an especially difficult threshold to meet given the important public safety [objective], particularly when financial loss or economic injury is alleged.

As stated by Justice Shelley in the recent Court of Queen’s Bench decision in Tarnow : [53] As I have previously reviewed, Mr. Tarnow’s assertion of irreparable economic harm cannot be the basis of a legal right to do whatever work he chooses, in the manner he so elects . That counterbalances against the public purpose of the PAPA, TSA, and SafeRoads Alberta apparatus: the safety and health of both the public and Mr. Tarnow. The latter are interests protected by the Charter. … [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 consequences of 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 application ought to be refused. Public interest outweighs economic injury. The Applicant admits that he has access to an alcohol-sensing device which would allow him to continue driving.

The availability of this device negates the Applicant’s allegation of irreparable harm, because he has the ability to eliminate the alleged harms and inconveniences by applying to the Registrar of Motor Vehicle Services to set aside the 12-month portion of the suspension on the condition that his vehicle is equipped with an alcohol-sensing device (see B Affidavit for information on the interlock program). The installation of such a device would allow the Applicant to drive . There is no evidence before the Court that the Applicant has taken any steps to apply for the interlock program.

Nor is there any evidence before the Court that an alcohol-sensing device would not allow him to carry out the duties and responsibilities of him employment. In order to have the alcohol-sensing device installed in his vehicle and have the ability to drive, the Applicant must complete the requisite Planning Ahead course . He has had the ability to register for the course since the issuance of his NAP (see exhibit “C” of the Respondent’s affidavit). There is no evidence that he has done so or taken any steps to register for the course.

Any harm the Applicant has suffered since September 7, 2021 is of his own doing as he has had access to a remedy that restores his legal use of a motor vehicle 6 and also balances the need for public safety and for his own safety (see Tarnow at para 58 ). The Applicant raises several matters concerning the alcohol-sensing device which he alleges create additional hardships:

(

a) he has “ heard that these devices can malfunction at times and provide false readings”; (

b) he is concerned that the alcohol-sensing device will demand a retest while he leaves his vehicle idling to drop off packages; and (

c) he is concerned that other people driving the vehicle with the alcohol sensing device may misuse the device . The Applicant has not provided any evidence to substantiate his claims that the device will malfunction, that the time available for a retest (six minutes) is insufficient for him to drop off packages, or that other people will misuse the device. In any event, none of these issues rise to the level of irreparable harm. Instead, they are normal inconveniences that any user of an alcohol-sensing device may face.

In addition, Alberta’s contracted service provider for alcohol-sensing devices, Smart Start Canada, offers an option called Smart IDLE [TM] (see Exhibits “D”, “E”, and “F” of the Respondent’s affidavit). This option allows drivers to suspend requests for retests while a vehicle is idling . If the Applicant is concerned that six minutes is not enough time for him to drop off a package at a location, he can opt to have Smart IDLE[TM] included with his alcohol-sensing device.

The availability of this option means that there should be no concerns about the device requesting a retest while the Applicant delivers packages . The Applicant also argues that it is not practical or cost-effective to install an alcohol-sensing device on an additional vehicle (a pick-up truck) used to deliver larger packages. This is an economic decision for the Applicant to make and does not rise to the requisite level of harm: an “assertion of irreparable economic harm cannot be the basis of a legal right to do whatever work he chooses, in the manner he so elects” ( Tarnow at para 52 ).

While the Applicant has detailed some concerns he has with the installation of an alcohol-sensing device, he has provided no information to show how such a device would negatively affect his employment. The Applicant has therefore failed to demonstrate any risk of harm, let alone irreparable harm, if a stay is not granted . [paras 10 and 13-24] [emphasis added] [ 21 ] I accept, and adopt, the Director’s submissions on irreparable harm. [ 22 ] The keys here are that: • Mr.

Gill can restart his delivery job if the suspension is lifted; • the suspension may be lifted if he takes the course in question and pursues the interlock option; • per the Director’s authorities, the expense of installing that option does not qualify as irreparable harm; • same for the expense of installing it on a second vehicle; • in any case, Mr.

Gill did not give evidence that full-time use by him of the family truck, with his own vehicle left for other family members to use, is unworkable here i.e. that he necessarily needs to use two vehicles to perform his work; • in any case, he did not give evidence of how often he needs to use the truck (once a day? once a week? once a month? some other frequency?); • he also did not give evidence of being unable to afford to buy any (even second-hand, high-mileage) truck or other larger-capacity vehicle to perform all of his delivery work (even on a short-term basis i.e. re-selling it once the suspension is over) i.e. that he necessarily has to go the two-vehicle-route to handle all of his delivery work; • the fact his apparent offence did not involve alcohol consumption (and, by extension, the fact that an interlock device may not in fact be necessary to address the risk posed by his impugned conduct here) are not relevant on irreparable harm; • worries about how interlock devices may malfunction or be inadvertently engaged by other drivers are speculative and thus insufficient to anchor, or boost, his claim of irreparable harm; • same for predictions of inconvenience, especially given the available “idling” option here; • same for predictions of employment loss anchored on those speculative worries; and • Mr.

Gill’s 90-day suspension is over, meaning the path to an interlock device (one or two) is open. [ 23 ] Mr. Gill has failed to discharge his onus to show irreparable harm here. [ 24 ] As a result, I do not need to consider the balance-of-convenience branch of the RJR test. E. Conclusion [ 25 ] With no irreparable harm shown, the test for an interim stay is not met. [ 26 ] Accordingly, I dismiss the stay application. [ 27 ] If the Director seeks costs, her costs submission (1-page maximum) is due by close of business on November 12, 2021, with Mr.

Gill having until the same time on November 19, 2021 to reply (same page limit).

[ 28 ] I thank both counsel for their helpful submissions. Heard on the 19 th day of October, 2021. Dated at Edmonton, Alberta this 3 rd day of November, 2021. Justice M. J. Lema J.C.Q.B.A. Appearances: Graham Rapson Beresh Law for the Plaintiff/Applicant Nathaniel Gartke Alberta Justice and Solicitor General for the Defendant/Respondent Director