Repa v (Alberta) Director of SafeRoads, 2022 ABKB 731

Court of King’s Bench of Alberta Citation: Repa v (Alberta) Director of SafeRoads, 2022 ABKB 731 Date: 20221103 Docket: 2101 00893 Registry: Calgary Between: Eric Repa Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice R.W. Armstrong _______________________________________________________ [ 1 ] The SafeRoads administrative regime was implemented to improve safety on Alberta roads through the imposition of administrative driving suspensions on drivers who are impaired by alcohol or drugs.

It provides an alternative to criminal prosecution for contraventions of impaired driving laws.

When police officers exercise their discretion to proceed by way of the SafeRoads administrative regime, they may issue a Notice of Administrative Penalty (NAP) which results in administrative sanctions in the form of fines and license suspensions rather than criminal prosecution with the attendant risk of imprisonment. [ 2 ] When a NAP is issued, the Provincial Administrative Penalties Act , RSA 2000, c P-30 .8 ( PAPA ) and the Provincial Administrative Penalties Regulation , Alta Reg 217/2020 , provide for a review of the NAP by a SafeRoads Adjudicator.

On review, an Adjudicator may confirm the NAP or cancel it on the grounds set out in s 4 of the SafeRoads Alberta Regulation , Alta Reg 223/2020 ( SAR ). [ 3 ] Decisions of SafeRoads Adjudicators are subject to judicial review. [ 4 ] Eric Repa seeks judicial review of an Adjudicator’s decision to confirm the NAP that was issued to him pursuant to s 88.1(1)

of the Traffic Safety Act , RSA 2000, c T-6 ( TSA ). I. Facts and Procedural Background [ 5 ] On the night of December 1, 2020, Sheriff Nelson was participating in a Checkstop operation at 20 th Avenue and 20 th Street in Bowden, Alberta. Sheriff Nelson observed a vehicle stop approximately one block away from the Checkstop location and then turn off 20 th street onto 19 th avenue. Sheriff Nelson proceeded to locate the vehicle and conducted a traffic stop. Mr. Repa was the driver of the vehicle and Sheriff Nelson read him the Mandatory Alcohol Screening (MAS) demand. [ 6 ] Mr.

Repa provided a breath sample into an Approved Screening Device (ASD) and the ASD registered a “FAIL.” [ 7 ] Sheriff Nelson provided information to Mr. Repa about a second test. The information was printed on a form referred to as a tearaway sheet. After being provided with the tearaway sheet, Mr. Repa confirmed that he wanted a second test. [ 8 ] Mr. Repa provided a second breath sample into a different ASD. The second sample again resulted in a “FAIL.” [ 9 ] When Mr. Repa provided breath samples into the ASDs, he had chewing tobacco in his mouth.

It was the same chewing tobacco he had been using at the time he consumed beer earlier in the evening. At no time during the traffic stop did Sheriff Nelson ask Mr. Repa if he had anything in his mouth or ask Mr. Repa to spit out the chewing tobacco before providing the breath samples. [ 10 ] Mr. Repa applied to have the NAP cancelled. On December 14, 2020, an oral review was conducted by a SafeRoads Adjudicator. On December 21, 2020, the Adjudicator confirmed the NAP, having found that Mr. Repa had not established any of the grounds necessary to cancel the NAP set out in s 4 of the SAR and having found that Mr.

Repa was not subject to egregious unfairness. II. The Adjudicator’s Decision [ 11 ] The NAP was issued to Mr. Repa on the grounds that Mr. Repa had, within 2 hours after ceasing to operate a motor vehicle, a blood alcohol concentration that is equal to or exceeds 80 milligrams of alcohol in 100 millilitres of blood, contrary to s 88.1(1)(

b) of the TSA . [ 12 ] The grounds upon which an Adjudicator may cancel a NAP issued in relation to s 88.1(1)(

b) of the TSA are set out in s 4(

f) of the SAR . In Repa (Re) , 2020 ABSRA 1 (the Decision), at para 4 , the Adjudicator identified the grounds relevant to Mr. Repa’s review. The grounds raised in the review are set out in sections 4(f)(iii), (iv) and (ix) and they may be summarized as follows:

Section 4(f)(iii): that the Director did not provide complete records to the recipient as required by

section 12 of PAPA .

Section 4(f)(iv): that the recipient did not within 2 hours of ceasing to operate a motor vehicle have a blood alcohol concentration equal to or exceeding 80 milligrams of alcohol in 80 millilitres of blood.

Section 4(f)(ix): that the recipient immediately requested a roadside appeal under

section 88.11 of the TSA and the officer failed to provide the recipient an opportunity to undergo a test in accordance with

section 88.11 of the TSA . [ 13 ] The Adjudicator also considered whether the NAP should be cancelled for egregious unfairness to Mr. Repa. [ 14 ] With respect to the first ground, the Adjudicator found that all relevant records were provided to Mr. Repa. While the redacted police narrative was provided late, only three days prior to the scheduled review date, the Adjudicator concluded that the required disclosure obligations had been met and the grounds to cancel the NAP pursuant to s 4(f)(iii) of the SAR had not been established. [ 15 ] The second ground advanced by Mr.

Repa was that the ASD readings were inaccurate due to the presence of residual mouth alcohol at the time the breath samples were provided. According to Mr. Repa, the chewing tobacco in his mouth, which was the same tobacco that he had been chewing when he consumed alcohol earlier in the evening, was the source of residual alcohol in his mouth when he provided his breath samples, and that residual mouth alcohol caused the “FAIL” results on the ASDs rather than his actual blood alcohol levels. [ 16 ] At the Oral Review, Mr. Repa referred to the ASD Operator’s Manual. At page 9 of the Manual is a

section titled “Preliminary Subject Questioning.” The relevant portion of the

section states: A test is taken immediately unless the officer believes that the subject has recently consumed alcohol or tobacco. A test on a subject shall not be conducted until 15 minutes after the time the officer believes alcohol has last been consumed. This is to ensure the elimination of any possible “mouth alcohol” effects. ... Any other substance in the mouth should be removed and testing can take place immediately. Nothing other than alcohol will affect the accuracy of the device ... [ 17 ] In response to Mr.

Repa’s submission that the chewing tobacco may have been the source of mouth alcohol resulting in an inaccurate reading, the Adjudicator said, at para 23 of the Decision: The police narrative is silent on the topic of preliminary questions. There is no obligation to ask preliminary questions unless it is

indicated by the circumstances. In this case, there is no evidence before me that shows the peace officer knew the Recipient had the chewing tobacco in his mouth. The question I need to ask myself, is not whether police procedure was followed, but whether the Recipient has met his onus of establishing that the breath samples were tainted by mouth alcohol. The Recipient has not provided any scientific evidence to satisfy me that chewing tobacco is capable of absorbing alcohol or that it can retain alcohol for any period of time. [ 18 ] The Adjudicator concluded that Mr.

Repa failed to meet the burden of proof on him to establish the ASD “FAIL” readings were the result of mouth alcohol retained in the chewing tobacco. Accordingly, the Adjudicator dismissed the second ground for review. [ 19 ] The third ground for review advanced by Mr. Repa was that the second breath test was not taken “immediately” as required by the TSA . The Adjudicator determined that the second breath test was administered 21 minutes after it was requested and that was in accordance with s 88.11 of the TSA .

The Adjudicator therefore declined to cancel the NAP on the basis that the officer failed to provide the recipient an opportunity to undergo a test in accordance with

section 88.11 of the TSA . [ 20 ] The final issue addressed by the Adjudicator was the overarching issue of fairness. At paras 34 and 37 of the Decision, the Adjudicator said: Having considered the facts underlying the alleged Charter breaches for their effect on the relevance and reliability of the evidence, I turn now to my residual task of determining if the NAP should be cancelled because the circumstances are so egregiously unfair that they outweigh the public interest in traffic and public safety promoted by the immediate roadside sanction scheme of the TSA . ...

The question I must answer, is whether the Recipient was subjected to egregious unfairness, such that it outweighs the statutory purpose of the Immediate Roadside Sanction scheme in promoting public and traffic safety. I find that he was not. He has not provided sufficient evidence to satisfy me that the alleged failure of the peace officer to ask the preliminary questions resulted in egregious unfairness. He has also not satisfied me that the operation of the Legislation surmounts ( sic ) to egregious unfairness. [ 21 ] Having determined there were no grounds to cancel the NAP and that Mr.

Repa had not been subjected to egregious unfairness, the Adjudicator confirmed the NAP. III. Issues [ 22 ] On judicial review, Mr. Repa did not pursue the issue relating to the late disclosure of Sheriff Nelson’s police narrative. The remaining issues for determination are:

a) Whether the Adjudicator’s finding that Mr. Repa’s ability to drive a motor vehicle was impaired, based on the ASD readings, was reasonable;

b) Whether the Adjudicator’s decision that the roadside appeal was administered in accordance with the TSA was reasonable;

c) Whether the Adjudicator acted unreasonably by failing to properly consider the Charter when determining whether the duty of fairness owed to Mr. Repa was discharged; and

d) Whether the Director’s failure to provide disclosure in accordance with s 2 of PAPA ought to result in cancellation of the NAP. This issue was not raised before the Adjudicator. IV. Standard of Review [ 23 ] While Mr.

Repa has framed his application for judicial review on some grounds described as errors of law, the applicable standard of review for all issues raised in this judicial review is reasonableness. [ 24 ] The presumptive standard for the review of administrative decisions, such as a decision of a SafeRoads Adjudicator, is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at paras 16-17 ( Vavilov ) . [ 25 ] The presumptive reasonableness standard may be rebutted where a contrary legislative intention is expressed.

A legislature may signal an intent that an appellate standard of review applies by including, for example, a statutory appeal mechanism. There is no such legislative intention expressed in PAPA. Section 24(3) confirms that the applicable standard of review is reasonableness.

It states: 24(2) A decision or order of the Director or adjudicator may be questioned or reviewed by way of an application for judicial review seeking an order in the nature of certiorari or mandamus if the application is filed with the Court of Queen’s Bench and served on the Director or adjudicator no later than 30 days after the date on which the decision or order was received by the applicant. 24(3) On an application for judicial review under subsection (2), the standard of review is reasonableness. [ 26 ] The presumptive standard of review may also be displaced where there are issues of central importance to the legal system as a whole at stake.

There are no such questions at issue in this review. Furthermore, decisions of Adjudicators appointed to review NAPs are entitled to deference: Wilson v BC (Superintendent of Motor Vehicles) , 2015 SCC 47 at para 17 . [ 27 ] Recent decisions involving judicial review of decisions from SafeRoads Adjudicators have all concluded that the applicable standard of review is reasonableness: see for example Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 at para 26 ; Rose v Alberta (Director of SafeRoads) , 2022 ABQB 297 at para 35 ; Cornforth v Alberta (Director of SafeRoads) , 2022 ABQB 341 at paras

25-31 ; Lawrence v Alberta (Director of SafeRoads) , 2022 ABQB 343 at paras 27-28 ; Norman v Alberta (Director of SafeRoads) , 2022 ABQB 420 at para 16 , Harris v Alberta (Director of SafeRoads) , 2022 ABQB 470 at para 17 . V. Analysis

a) Was the Adjudicator’s finding that Mr. Repa’s ability to drive a motor vehicle was impaired reasonable? [ 28 ] Mr. Repa argues that prior to taking a breath sample from him, Sheriff Nelson ought to have asked him if he had anything in his mouth. Sheriff Nelson should then have required Mr. Repa to spit out his chewing tobacco before the breath test. The failure to take these steps prior to administering the breath test could have resulted in a breath sample contaminated by mouth alcohol resulting in a false “FAIL” reading. According to Mr.

Repa, the ASD results were not reliable, and it was unreasonable for the Adjudicator to rely on them. [ 29 ] The Director argues that peace officers are not required to conduct preliminary questioning prior to administering a breath test. They are only required to wait 15 minutes after they believe the individual last consumed alcohol to avoid contamination of the sample by mouth alcohol. According to the Director, Mr. Repa’s argument that his breath sample was potentially contaminated by mouth alcohol due to the chewing tobacco, is mere speculation.

The Director submits that the Adjudicator acted reasonably in rejecting Mr. Repa’s argument in the absence of any scientific evidence that alcohol present in the chewing tobacco may have contaminated the breath sample. [ 30 ] In support of the argument, the Director referred to two decisions in which the argument that chewing tobacco rendered ASD results unreliable was rejected. [ 31 ] In R v Henry , 2017 ABPC 286 , the accused had snuff in his mouth when he provided a breath sample into an ASD pursuant to a roadside demand. The accused failed the roadside test.

Prior to administering a subsequent breathalyser test, the breath technician did ask the accused if he had anything in his mouth, whereupon the accused told the technician about the snuff. The technician told him to dispose of it, and then proceeded to obtain two samples of the accused’s breath. [ 32 ] Two factors differentiate the Henry case from the present case. First, in Henry the roadside fail only provided the reasonable and probable grounds that the officers required to issue a breath demand pursuant to s 254(3) of the Criminal Code .

If the accused was ultimately convicted of an offence, it would have been based on the breathalyser results taken after he disposed of the snuff in his mouth, not because of the ASD fail. In Mr. Repa’s case, his conviction, and the imposition of the administrative penalty, was entirely dependent on the reading from the ASD. [ 33 ] Secondly, in Henry the trial judge referred to evidence from the police officers who administered the breath tests on the ASD.

The trial judge accepted the evidence of those officers and found in the circumstances of that case, which involved the accused taking additional snuff immediately before the test, the snuff did not affect the results of the ASD. It is evident from the trial judge’s reasons that she considered what evidence was before her, what evidence was not before her, and she made a considered decision regarding the effect of the snuff on the ASD based on the evidence. [ 34 ] In the present case, the Adjudicator undertook no such analysis of the evidence and particular circumstances of this case.

At para 23 of the Decision, the Adjudicator said: “The Recipient has not provided any scientific evidence to satisfy me that chewing tobacco is capable of absorbing alcohol or that it can retain alcohol for any period of time.” Later, at paragraph 28, the Adjudicator said “... the Recipient has not satisfied me that both breath samples were contaminated by mouth alcohol by virtue of alcohol being present in the chewing tobacco.

I find that the Respondent has not met his burden of proof to satisfy me that the two ASD “FAIL” readings were unreliable. [ 35 ] Unlike in the Henry case, the Adjudicator did not refer to any evidence provided by the police officers, or anyone else, that the presence of chewing tobacco would not render the ASD test results unreliable. While Mr. Repa bears the onus of establishing the ASD results were unreliable, the Adjudicator had an obligation to consider and weigh the circumstances that were present in Mr. Repa’s case before disposing of Mr. Repa’s argument.

The Adjudicator conducted no such analysis or consideration and simply declared that Mr. Repa had not met his burden because he did not adduce scientific evidence. In so doing, the Adjudicator effectively raised the burden on Mr. Repa, requiring him to establish the unreliability of the ASD results with scientific certainty rather than on a balance of probabilities. [ 36 ] In Davidson (Re) , 2019 ABTSB 1454 , the Appellant was issued a license suspension under the TSA after failing a roadside test on an ASD.

The Appellant argued that the breath sample was contaminated by alcohol residue in tobacco that he was chewing at the time he had been drinking and at the time the breath test was administered. [ 37 ] In Davidson , the officer administering the breath test did ask the driver how long it had been since he consumed alcohol. The Board found that the officer turned his mind to the issue of when the Appellant last had alcohol in his mouth.

At para 37 of its decision, the Board said: “This was not a case where the officer failed to ask any relevant questions regarding possible contaminates that may bring into question the ASD’s reliability.” [ 38 ] In Mr. Repa’s case, the officer did fail to ask any relevant questions prior to administering the breath test, or at least there was no evidence before the Adjudicator that any such questions were posed.

Having no evidence that Sheriff Nelson did anything to ascertain the presence of contaminants, the Adjudicator then failed to conduct any analysis of the other circumstances of the case in order to demonstrate the basis upon which the decision that the ASD results were reliable was reached. [ 39 ] The Adjudicator is required to consider all the circumstances of Mr. Repa’s case in relation to the reliability of the ASD

results in determining whether he has met the burden on him to overturn the NAP. Those circumstances include the same chewing tobacco in Mr. Repa’s mouth at the time his breath samples were provided as was in his mouth when he was consuming alcohol, the taste of alcohol in his mouth when he provided the samples and the requirement in the ASD operators manual that there be nothing in the mouth of an individual providing a breath sample. Rather than consider these factors, the Adjudicator determined Mr.

Repa could not succeed in the absence of scientific evidence on the issue. [ 40 ] The Adjudicator’s reasons for decision in this matter do not demonstrate a reasonable analysis on the issue of the reliability of the ASD results. The importance of reasons from an administrative decision maker was identified in the Vavilov decision starting at para 79: Reasons explain how and why a decision was made. They help to show affected parties that their arguments have been considered and demonstrate that the decision was made in a fair and lawful manner.

Reasons shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power ... [ 41 ] Reasons are the window through which a reviewer may determine whether the administrative decision under review is one that falls within a range of possible reasonable outcomes.

As the Supreme Court of Canada said at para 84 of Vavilov , “A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion ....” [ 42 ] In this case, the Adjudicator’s reasons do not demonstrate a consideration of all the factors relating to the reliability of the ASD results.

The Adjudicator dismissed the ground of appeal due to the lack of scientific evidence without first considering the evidence and circumstances that were present. Simply referring to the lack of scientific evidence was insufficient in light of all the circumstances of this case. [ 43 ] The lack of analysis of the factors present is particularly remarkable given there was no evidence to the contrary provided by the peace officer as there was in the Henry matter.

The circumstances of this case, taken in their totality, ought to have caused the Adjudicator to consider whether mouth alcohol was more likely than not to have contaminated the results. The Adjudicator’s reasons are devoid of any such consideration. The Adjudicator simply dismissed the argument raised by Mr. Repa on the basis that he did not provide scientific proof that the tobacco contaminated the breath results. This was unreasonable on the part of the Adjudicator. [ 44 ] It was also unreasonable of the Adjudicator to place the onus of ensuring the proper administration of the breath test on Mr. Repa.

At paragraph 23 of the Decision, the Adjudicator said: “In this case, there is no evidence before me that shows the peace officer knew the Recipient had the chewing tobacco in his mouth.” The lack of evidence referred to by the Adjudicator is entirely a result of the peace officer’s failure to inquire. [ 45 ] In this case, Sheriff Nelson did not conduct any questioning of Mr. Repa before administering the breath test. Mr. Repa had no reason to know what information he ought to be disclosing prior to the test or that he was required to advise the officer if he had something in his mouth.

The officer, as a result of his training and experience, ought to have known the importance of ensuring there was nothing in Mr. Repa’s mouth when the breath test was administered. Reversing that onus and placing the responsibility on Mr. Repa was unreasonable. [ 46 ] It is not the job of someone who is required to provide a breath sample into an ASD to know what is required to obtain a reliable reading. It is the peace officer’s job to ensure that the correct conditions necessary to obtain a reliable result on the ASD are present. This may require them to ask questions.

The ASD operator’s manual mandates that an officer conduct preliminary questioning to determine whether there is anything in the subject’s mouth. This mandate is presented in conjunction with warnings about false positives due to the presence of mouth alcohol. The inference that may be drawn is that foreign objects in the mouth may lead to false positive tests due to the presence of mouth alcohol. None of this was considered by the Adjudicator in the Decision. [ 47 ] For all of these reasons, I find that the decision of the Adjudicator that Mr.

Repa failed to discharge the onus on him to establish that the ASD results were unreliable is unreasonable.

b) Administration of the Roadside Appeal [ 48 ] Mr. Repa argues that the second breath test was not provided to him immediately upon his request and therefore the NAP ought to have been cancelled pursuant to s 4(f)(ix) of the SAR . [ 49 ]

Section 88.11(2) (

a) of the TSA sets out the requirements for a second test applicable in this case. It says: 88.11(2) ... where a driver requests an appeal of that notice of administrative penalty and voluntarily attends immediately at a place designated by the peace officer and accompanies the peace officer to that place, if necessary, the driver shall immediately (

a) where the basis for issuing the notice of administrative penalty was an initial test performed on an approved screening device, provide a sample of breath that in the opinion of the peace officer is suitable for analysis on a different approved screening device, or on an approved instrument, at the discretion of the peace officer. [ 50 ] Mr. Repa argues that the second breath test must be administered immediately and if it is not, then the second breath test amounts to an unreasonable search and seizure contrary to s 8 of the Charter . Mr.

Repa relies on criminal law cases in support of his argument. [ 51 ] As I indicated at para 50 of my decision of Harris , s 88.11 does not place the onus on the police officer to immediately provide a second test on an ASD or an approved instrument. It places the onus on the driver to immediately provide a sample of breath into a different approved screening device. In other words, when an individual requests a second test, they cannot then refuse to immediately provide that second sample upon the second test being administered.

[ 52 ] A short delay may occur before the second test is administered for any number of reasons, including difficulty procuring a second ASD or the necessity of attending at a different location designated by the peace officer. Such delay may prevent the roadside appeal from proceeding immediately after the first test, but the legislation does not require the roadside appeal to be administered immediately after the first test.

It requires the driver to act immediately and provide the sample when presented with the different ASD upon which the roadside appeal will be conducted. [ 53 ] On this issue, the Adjudicator considered the wording of the legislation and concluded that the roadside appeal, which took place just 21 minutes after the initial test, was administered in compliance with s 88.11. The Adjudicator’s finding that Sheriff Nelson provided Mr. Repa with the opportunity to undergo a second breath test in accordance with s 88.11 of the TSA was therefore reasonable and the request for review on this ground is dismissed.

c) Consideration of Charter values [ 54 ] The Adjudicator considered the Charter implications raised by Mr. Repa. In the criminal law context, a delay in the administration of a second breath test might amount to an unreasonable search and seizure because the suspect’s right to counsel may be suspended and a suspect in a criminal investigation is compelled to remain at the scene and provide the second sample. In Mr. Repa’s case, he was not the subject of a criminal investigation and the decision to undergo the second test was voluntary. He was under no obligation to remain and undergo a roadside appeal.

The Charter considerations applicable in the criminal context do not apply to this administrative regime. [ 55 ] It is important to note that Mr. Repa did not challenge the validity of the SafeRoads legislative scheme on the basis that it violates the Charter . In these circumstances, the decision of this court in Isley is instructive.

Following a discussion of two cases that dealt with the Charter compliance of BC legislation similar to the Alberta SafeRoads legislation, the reviewing justice said, at para 55: While Gregory and Wilson dealt specifically with the BC legislation, the same reasoning applies to the Alberta Legislation. Informed consent and informed waiver are not part of the roadside appeal procedure in Alberta.

As such, imposing Charter values into the legislation without a constitutional challenge would be dangerous and inconsistent with the intent of the legislation. [ 56 ] The Adjudicator’s consideration of the Charter implications involved in the administration of the roadside appeal and on the overall fairness afforded to Mr. Repa was reasonable. Mr. Repa’s request for review on this ground is therefore dismissed.

d) Disclosure Related to Annual Maintenance of Screening Devices [ 57 ] Mr. Repa argues that the NAP ought to have been cancelled because the Director failed to disclose the date of the last annual maintenance of the ASD. The Director’s failure is grounds to cancel the NAP pursuant to s 4(f)(iii) of the SAR . [ 58 ] Mr. Repa did not raise this argument before the Adjudicator.

Therefore, there is no decision of the Adjudicator on this issue for me to review. [ 59 ] While I have some discretion to consider arguments raised for the first time on judicial review, I am required to exercise that discretion in a manner that does not unduly interfere with the administrative processes implemented by the legislature: Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 at paras 24-25 . [ 60 ] In this case, the issue relating to disclosure and the cancellation of the NAP pursuant to s 4(f)(iii) of the SAR falls squarely within the Adjudicator’s specialized function and expertise.

The argument regarding the Director’s deficient disclosure could have been raised by Mr. Repa before the Adjudicator, but it was not. [ 61 ] Mr. Repa argues that the Adjudicator ought to have identified the issue and cancelled the NAP regardless of whether the issue was expressly raised by Mr. Repa or not. This argument is contrary to s 18(1) of PAPA which places the burden of proof during a review on the party requesting the review. It was not the Adjudicator’s duty or onus to raise potential grounds for cancellation of the NAP. It was the Adjudicator’s duty to consider whether Mr.

Repa met the onus on him to establish that the NAP ought to be cancelled. [ 62 ] This same issue was raised in Isley . In that case, as in this one, the applicant for judicial review raised the deficient disclosure of the Director for the first time on judicial review. At para 68 of the decision, the reviewing justice dismissed the ground of review: In this case, at the time of the hearing in front of the Adjudicator, the Applicant should have known that the disclosure provided did not include the date of the last annual maintenance performed on the ASDs used in the investigation.

It was open to the Applicant to raise this issue before the Adjudicator. Had the Applicant done so, the Adjudicator would have had an opportunity to provide reasons as to whether the Director complied with the regulatory requirement for disclosure, which was well within the purview of the Adjudicator’s authority to determine. Since the Applicant did not make the argument in front of the Adjudicator, there is no decision for the court to review.

It is appropriate to apply the general approach referred to in Alberta Teachers to this case and only consider matters raised before the Adjudicator for review. [ 63 ] I agree with the reasoning in Isley , which was also followed in the decision of Rose , at paras 76-78 . Accordingly, this ground of review is dismissed. VI. Remedy [ 64 ] Having found that the Adjudicator’s decision relating to the reliability of the ASD results was unreasonable, the NAP cannot stand. The appropriate remedy is to quash the decision of the Adjudicator and send it back for a re-hearing by a different Adjudicator.

[ 65 ] While I may decline to send a matter back for re-hearing where the outcome following a re-hearing is inevitable, that is not the case here. While the Adjudicator in this case failed to conduct an analysis of the circumstances and evidence relating to the reliability of the ASD results and was therefore found to have acted unreasonably, a proper examination of all the circumstances and factors of this case may yet yield a range of reasonable possible outcomes.

It is not for me, as reviewer of the Adjudicator’s decision, to now step into the shoes of an adjudicator and conduct the analysis, weigh the various factors and render a decision on the merits of a NAP review. [ 66 ] For the foregoing reasons, the application for judicial review of the Adjudicator’s decision is allowed and the matter shall be remitted back to a SafeRoads Adjudicator for a re-hearing. Heard on the 12 th day of May 2022. Dated at the City of Calgary, Alberta this 3 rd day of November 2022. R.W. Armstrong J.C.K.B.A.

Appearances: Katherin Beyak Foster Iovinelli Beyak Kothari for the Applicant Michael Power Alberta Justice and Solicitor General for the Respondent