Rempel v Alberta (Director of SafeRoads), 2023 ABKB 478

Court of King’s Bench of Alberta Citation: Rempel v Alberta (Director of SafeRoads), 2023 ABKB 478 Date: 20230821 Docket: 2101 15694 Registry: Calgary Between: Samuel Peter Rempel Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice M.H. Bourque _______________________________________________________ I. Introduction [ 1 ] This is an application for judicial review of the decision of adjudicator S.

LaPerle (“ Adjudicator ”) to uphold a Notice of Administrative Penalty (“ NAP ”) issued to the Applicant pursuant to the Traffic Safety Act , RSA 2000 c T-6 and SafeRoads Alberta Regulation , AR 224/2020 . The NAP was issued to the Applicant on October 7, 2021 and the Applicant sought an oral review on October 12, 2021. The review was conducted on October 26, 2021 and the Adjudicator issued her decision to not cancel the NAP on November 8, 2021.

II. Background [ 2 ] On October 7, 2021, at approximately 9:04 pm, the Applicant was driving his vehicle when an off-duty peace officer, Cst. Perkins, observed the Applicant’s vehicle completely cross the centre line into an oncoming traffic lane before making a turn. Cst. Perkins followed the Applicant’s vehicle and contacted an on-duty peace officer, Cst. Jaszczyszyn, to report what he had observed. Cst. Perkins followed the Applicant home and witnessed him park his vehicle. He stayed on the phone with Cst. Jaszczyszyn, who was attempting to catch up to his location. Cst. Perkins advised Cst.

Jaszczyszyn that the driver had pulled into a driveway of the Applicant’s residence (“ Residence ”). [ 3 ] At 9:13 pm, Cst. Jaszczyszyn arrived at the Residence and observed the Applicant heading to the right side of the garage as well as the Applicant’s vehicle parked in the driveway. Another on-duty officer, Cst. Hack, arrived a few minutes later, at which time Cst. Jaszczyszyn walked up to the garage. Cst. Jaszczyszyn approached the Applicant, who was in his garage sitting in a chair, holding a glass of alcohol in his hand. [ 4 ] According to Cst.

Jaszczyszyn’s notes, the Applicant “appeared intoxicated as he had a strong odor of liquor emanating from his breath and had bloodshot eyes”. Cst. Jaszczyszyn made an ASD demand. As the Applicant indicated to Cst. Jaszczyszyn that he had just consumed alcohol, Cst. Jaszczyszyn waited 15 minutes before taking the Applicant’s breath sample. [ 5 ] During that time, the Applicant apologized for driving head on with traffic and said that he was flustered as he had just dealt with a homeless female who had caused him problems. The breath sample produced a FAIL reading. Cst.

Jaszczyszyn explained the option for a second test, which the Applicant declined. Cst. Jaszczyszyn served the Applicant with the NAP. [ 6 ] In his supporting affidavit for the oral review, the Applicant explained that earlier that evening, at approximately 6:30 pm, he arrived home from work, played with his dogs, and then took his prescribed doses of gabapentin and indomethacin, which he uses to relieve nerve pain.

He also took medication for gastric reflux. [ 7 ] Half an hour later, the Applicant spoke with his wife and learned that the Butterball turkey which he purchased for Thanksgiving could not be used because of his daughter’s dairy allergy. He then went to Save-On Foods to purchase groceries and a new turkey. He completed the grocery purchase at 7:46 pm, according to the timestamp on the receipt. He went home and called a co- worker Brenda to see whether he might be able to donate the Butterball turkey.

She suggested he take it to Wapiti House. [ 8 ] The Applicant looked up the address for Wapiti House and drove to the area where it was located but had difficulty finding it. He eventually arrived at approximately 8:15 pm, when he was approached by several individuals who guided him to the front door. He gave the turkey to staff and left by the same door, at which point he struck up a conversation with an individual named Sarah who had previously directed him to the front door, and her boyfriend. According to him, the conversation lasted some 30 minutes during which he says he offered to help fix their vehicle.

During that time, another client from the house punched Sarah. The Applicant explained that he intervened and stopped the altercation. [ 9 ] The Applicant then left Wapiti House and was mildly confused as to how to exit the area. He says he entered into what he thought to be a turning lane and, seeing his obvious error, tried to correct himself as safely as possible. He admitted to turning into the wrong lane of traffic as observed by Cst. Perkins. [ 10 ] The Applicant then drove directly home. He deposes to it being late and hoping to get to sleep right away.

He explained that he has difficulty sleeping more than a few hours a night, and wanted to be refreshed when his family arrived the next day. He deposes to knowing that a large amount of alcohol in a short timeframe in addition to his medication would provide the desired effect “very quickly”. He says that he was sitting in his garage and was preparing to head off to bed and that the interaction between his medication and alcohol would cause “an almost immediate response”.

He says that is when the police officers arrived at the door. [ 11 ] In the interaction with police, the Applicant says that he was fully able to function and that he did not dispute or disagree with the driving infraction observed by Cst. Perkins. He says he got up from his chair and met the officers at the door, at which point they instructed him to put down his glass of alcohol, which he did, and they advised that he was suspected of driving under the influence of alcohol. After the 15-minute wait time, he provided a breath sample, which he acknowledges was a fail.

He explains that the fail was due to the amount of alcohol he just consumed. He also says that he declined the second test because he “knew given the amount of alcohol [he] had just consumed would surely be the same result.” [ 12 ] After receiving the NAP, he provided police officers with the key to his vehicle. When the officers returned to their vehicles on the street, the Applicant says that he offered his spare key, which the officers did not require.

He says he walked back to the house, at which point he “found that the full effects of [his] medication mixed with alcohol were taking effect” and that he was having difficulty walking and had to sit on the ground. He says that after confirming that nothing further was required, he returned to the Residence and went to bed as he originally had intended. [ 13 ] In his affidavit, the Applicant deposes that “at the time [he] drove to and from the Wapiti House [he] had not consumed any alcohol that day” and that it was only after he returned home that he consumed 6 ounces of alcohol.

He further says that “prior to consuming that 6 ounces of alcohol just before the police officers arrived, [he] had not consumed any alcohol whatsoever that day” and that he verily believed that at the time he was operating his vehicle his blood alcohol concentration would have been zero. [ 14 ] At the oral hearing, the Applicant’s evidence largely mirrors his affidavit evidence. His oral evidence briefly touched on his activities that day. He confirmed that he did not have any alcohol during the day. He explained that at 6:45 pm, he took his prescription doses of gabapentin, indomethacin and pantoprazole.

He explained the use of each medication in his particular circumstances. Regarding the interaction of gabapentin and alcohol, he explained that their interaction makes the feeling of intoxication pronounced and almost immediate, which was the effect he was looking for because he wanted to go straight to bed upon arriving home.

III. Adjudicator’s Decision [ 15 ] Following the oral review, the Adjudicator issued reasons for decision in which she decided that the grounds to cancel the NAP were not made out.

The Adjudicator correctly stated that the burden of proof lay on the Applicant to establish all grounds necessary to cancel the NAP and that required the Applicant to do so on a balance of probabilities. [ 16 ] The Adjudicator correctly identified the grounds upon which the Applicant relied and the requirements (at para 5): This ground to cancel the NAP in effect recognizes an exemption against the usual restriction against having a BAC of at least 80 mg% within 2 hours of operating a motor vehicle.

To establish this ground to cancel, the Recipient must prove all of the following on a balance of probabilities: a. that alcohol was consumed after operation; b. that at the time of consumption, the Recipient had no reasonable expectation that a sample of breath or blood would be required; and c. that the post-operation alcohol consumption is consistent with a BAC of less than 80 mg% at the time of operation. [ 17 ] The Adjudicator accepted the Applicant’s evidence that he had consumed 6 ounces of alcohol in the garage when he arrived home.

The Adjudicator also accepted that the Applicant did not know that his driving error had been observed by an off-duty police office and accordingly, also accepted the Applicant’s submission that he did not anticipate that police would be investigating him, or that the police would attend the Residence.

As such, the Adjudicator accepted that the Applicant had no reasonable expectation that a sample of breath or blood would be required. [ 18 ] However, the Adjudicator did not accept that the Applicant had met his onus to establish the last element, writing (at para 12): However, I am not satisfied that the Recipient has met

part

c) of the test before him. He has established post-operation consumption of alcohol, but I am not satisfied that his BAC was 80 mg% or less at the time he was driving. Cst. Jaszczyszyn entered the Recipient’s garage at about 9:15 pm and did not report seeing him drink any more alcohol after that point. The Recipient was observed driving by Cst. Perkins at 9:04 p.m. The Recipient’s consumption of the “6 ounces” of alcohol would have had to occur between 9:05 p.m. and 9:15 pm.

I am not satisfied that the Recipient’s consumption of “6 ounces” of alcohol in, at most, 10 minutes, is entirely responsible for the level of impairment witnessed at his home and in his driving. [ 19 ] In making this finding, the Adjudicator pointed to the lack of medical or scientific evidence to support the Applicant’s claim that his level of impairment observed was due to the interaction of the 6 ounces of alcohol with his prescribed medication.

Moreover, the Adjudicator reasoned that even if the Applicant’s level of intoxication was caused by the effect he claimed, this did not constitute positive evidence that the Applicant did not consume alcohol prior to driving, or that his BAC was not at least 80 mg% at the time. The Adjudicator pointed to Cst. Perkins’ observations of a significant and dangerous driving error committed by the Applicant when he completely crossed the centre line of the roadway and proceeded into oncoming traffic and to Cst.

Perkins’ observation that the Applicant’s vehicle drifted “slowly back and forth in its lane, moving to one lane edge and drifting back to the other side on the route home. The Adjudicator described the Applicant’s level and indicia of impairment upon meeting with Cst. Jaszczyszyn as significant. The Adjudicator then stated not being convinced that “this was due to only post-operation consumption of alcohol” and rejected the Applicant’s argument that he would have made more driving errors if he had been as extremely intoxicated as he was by the time police left the Residence.

Based on this reasoning, the Adjudicator found that the Applicant had not established that he had a BAC of less than 80 mg% at the time of driving. IV. Issues [ 20 ] The issues on this judicial review are as follows: a. Was it unreasonable for the Adjudicator to disregard the Applicant’s narrative explaining that he had not consumed any alcohol at the time of driving, despite the Applicant’s affidavit and viva voce evidence before the Adjudicator? b. Was it unreasonable for the Adjudicator to require the Applicant to provide medical or scientific evidence in support of his narrative? c.

Was it unreasonable for the Adjudicator to have determined that the Applicant had a blood alcohol concentration equal to or greater than 80 milligrams of alcohol in 100 millilitres of blood at the time of operation of the vehicle? V. Standard of Review [ 21 ] The parties agree that the standard of review is reasonableness: Provincial Administrative Penalties Act, SA 2020, c P-30.8 , s 24(3) (“ PAPA ”). This statutory standard of review aligns with the presumptive standard of review set out in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 [ Vavilov ] at para 23 .

More generally, Vavilov sets out the framework for assessing whether an administrative decision is reasonable. Neither party argued that this application for judicial review invites a review on a standard of correctness ( Vavilov , paras 53-72 ). [ 22 ] Assessing an administrative decision for reasonableness requires judicial restraint and respect for the distinct role of administrative decision makers. The focus of a reasonableness review is on the decision made, including the decision maker’s reasoning

process and the outcome ( Vavilov , at paras 75 and 83 ). A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker ( Vavilov , at para 85 ).

Reasonableness concerns itself with the existence of justification, transparency and intelligibility ( Vavilov , at para 86 ). [ 23 ] Administrative decision makers’ reasons must not be assessed against a standard of perfection and there is no need for a decision to include all the arguments, statutory provisions, jurisprudence or other details that a reviewing judge would have preferred ( Vavilov , at para 91 ).

Reasons must be read holistically and contextually ( Vavilov , at para 97 ). [ 24 ] The burden of demonstrating that an administrative decision-maker’s decision is unreasonable lies with the party challenging the decision. A reviewing court must be satisfied that the decision contains serious shortcomings that are sufficiently central or significant and that the decision cannot be said to exhibit the requisite degree of justification, intelligibility, and transparency ( Vavilov , at para 100 ). [ 25 ] A reasonable decision is one based on reasoning that is both rational and logical.

The reviewing court must be able to trace the reasoning without encountering any fatal flaws in its overarching logic. The court should satisfy itself that there is a line of analysis that could have reasonably led the decision maker to their ultimate conclusion on the evidence before them. That said, a reviewing court should not embark on a line-by-line treasure hunt for error.

However, if a decision maker’s reasons, read holistically, fail to reveal a rational chain of analysis or if it is based on an irrational chain of analysis is unreasonable ( Vavilov , at paras 102-103 ). [ 26 ] Decision makers can assess and evaluate evidence before them and reviewing courts generally should not interfere with their factual findings, including reweighing and reassessing evidence.

That said, a reasonable decision must be justified in light of the facts and decision makers must take the evidentiary record and the general factual matrix that bears on its decision into account and their decision must be reasonable in light of them.

A decision may be unreasonable where there has been a fundamental misapprehension of the evidence or a failure to account for the evidence ( Vavilov , at paras 125-126 ). [ 27 ] Although decision makers are not expected to respond to every argument or to make explicit findings on each constituent element leading to their final determination, decision makers are nonetheless required to meaningfully grapple with those key issues and central arguments raised by the parties ( Vavilov , at para 128 ). VI. Analysis A.

Position of the Parties [ 28 ] The Applicant argues that the Adjudicator’s decision to uphold the NAP is unreasonable because while she found the Applicant to be credible in respect of the first two factual pre-conditions in the ground for cancellation, she ignored credible and uncontested evidence given by the Applicant in his affidavit and at the oral review hearing with respect to the third.

According to the Applicant, to do so was inconsistent with the earlier findings of credibility. [ 29 ] In that regard, the Applicant argues that the Adjudicator ignored his evidence regarding the ingestion of medication 2.25 hours earlier, the combination of which, according to the Applicant, creates an almost immediate impairing effect. He argues that his evidence on this point was detailed and undisputed. He argues that there was no reason for the Adjudicator to disbelieve or fail to give weight to this evidence. Regarding the irregular driving behaviour noted by Cst.

Perkins, he argues that it can be explained by the highly unusual and upsetting experience at the homeless shelter that occurred just before he drove home and that he was tired.

In sum, he argues that the Adjudicator had no reason to disbelieve the portion of the Applicant’s evidence of the effects of the interaction of alcohol and his medication when the Adjudicator accepted the balance of his evidence stretching back to 6:30 pm. [ 30 ] Secondly, the Applicant takes issue with the Adjudicator’s holding that he needed to provide medical or scientific evidence to support his claim that the level of impairment as observed by police was due to the interaction of the alcohol with his medication.

In that regard, he argues that the Adjudicator failed to properly account for the evidence of his personal experience of combining alcohol with the medications, which he says was included in a sworn affidavit and was considered credible and uncontested. He further argues that the Adjudicator confused the absence of medical or scientific evidence with the police evidence of the significant driving error and the drifting back and forth in his lane as evidence supporting the conclusion that his BAC was at or over 80 mg% while driving.

Lastly, he points to the fact that the Adjudicator completely ignored the sworn evidence and testimony at the hearing wherein he stated that he had not consumed any alcohol at all that day prior to his final arrival at home. [ 31 ] Thirdly, the Applicant takes issue with what he argues was the Adjudicator’s pre-occupation with the degree of impairment observed by police and the minor driving issues after the significant driving error and the Adjudicator’s failure to address the context and explanations provided by the Applicant in his evidence.

He takes further issue with the language used: “I am not convinced” when the Adjudicator rejected the submission that the Applicant’s level and indicia of impairment observed by the police was only due to post- driving consumption of alcohol. He argues that the Adjudicator did not provide any reason for rejecting the totality, context and detail of the Applicant’s evidence, particularly given that the Applicant was only required to establish on a balance of probabilities that he had not consumed alcohol prior to his final arrival at home.

Though he cites no authority for the proposition, he argues that the use of the words “I am not convinced” implies that the Adjudicator ascribed a burden that is more akin to proof beyond a reasonable doubt than proof on a balance of probabilities. [ 32 ] Relying on subsection 18(3) and (4) of PAPA , the Director argues that the Adjudicator has the authority to reject evidence, or to place little to no weight on it. The Director characterizes the Adjudicator’s finding that the Applicant failed to establish the third condition as one of fact to which deference is owed.

It is the Director’s further submission that the finding was fully supported and logically flowed from the record, pointing to Cst. Perkins’s evidence of the Applicant driving dangerously at an intersection and entering the oncoming lane, nearly causing an accident with oncoming traffic and Cst. Perkins’s evidence of observing the Applicant’s vehicle drift from side to side while driving home; Cst. Jaszczyszyn’s evidence of observing, within minutes of the Applicant having driven,

including that the Applicant appeared intoxicated, had a strong odour of liquor emanating from his breath, and had bloodshot eyes. [ 33 ] Regarding the Applicant’s affidavit and oral evidence of pertaining to his personal experience of mixing his prescription medication with alcohol, the Director submits that the Adjudicator’s decision was not unreasonable, pointing to the fact that the Applicant did not provide corroborating or supporting evidence.

In essence, it is the Director’s position that the Applicant did not provide sufficient evidence that would have bolstered the Applicant’s submission that the level of impairment observed by Cst. Jaszczyszyn’s within minutes of arriving at the Residence were caused by the interaction of the 6 ounces of alcohol consumed after operation with his medications taken 2.25 hours earlier.

In that regard, the Director submits that it was not unreasonable for the Adjudicator to weigh and assess the Applicant’s evidence against that of the officers and the surrounding circumstances, and to find that the Applicant’s evidence did not discharge his burden of proof. B. Decision [ 34 ] I am not persuaded that the Adjudicator’s decision was unreasonable. I am satisfied that the Adjudicator’s decision was based on an internally coherent and rational chain of analysis that was justifiable in relation to the evidence before her.

In determining whether the third condition for cancelation of the NAP was met, the Adjudicator was statutorily empowered to determine the weight to be given to the evidence ( PAPA , s. 18(3)) and the Adjudicator’s weighing of evidence is entitled to deference: Vavilov , at para 125 ; Lawrence v. Alberta (Director of SafeRoads) , 2022 ABQB 343 . In that regard, I adopt the reasoning of the British Columbia Court of Appeal in Nagra v.

British Columbia (Superintendent of Motor Vehicles) , 2010 BCCA 154 (at para 27ff ): [27] The fact that a driver provides evidence capable of refuting the BAC test results does not mean that the adjudicator is left in the position of being unable to decide. Whether there is conflicting evidence or not, the adjudicator’s decision will be based on the review record. It is for the adjudicator to decide what evidence in that record to accept, and what to reject. In this respect, I agree with the following from the judgment of Madam Justice Gray in Shadow v.

British Columbia (Superintendent of Motor Vehicles) , 2002 BCSC 790 , 29 M.V.R. (4th) 145: [13] Making findings of fact, including choosing what or who to believe and not believe, and drawing inferences from the evidence, is the responsibility of the adjudicator. If there is some evidence upon which a finding could reasonably be made, this court should not interfere. [Emphasis added.] [28] To hold otherwise would be incompatible with the intent of the legislation.

That there is conflicting evidence in the record does not, in my view, negate an adjudicator’s ability to make the findings necessary to arrive at one of the two decisions available under s. 94.6, even if credibility may be an issue. [29] It should not be forgotten that a peace officer can also issue a 90-day driving prohibition to a driver who fails or refuses, without reasonable excuse, to comply with a breath sample demand: s. 94.1(b). Again, an application for review is governed by ss. 94.4, 94.5, and 94.6.

In order to confirm such a prohibition an adjudicator must be satisfied that it is more probable than not that the driver failed or refused, without reasonable excuse, to comply with the demand: s. 94.6(1)(b).

Conversely, in order to revoke such a prohibition an adjudicator must be satisfied that it is more probable than not that the driver either did not fail or refuse to comply with a demand, or had a reasonable excuse for not complying: s. 94.6(2)(b). [30] The fact that a driver files an affidavit on a review that either disputes that a demand was made, or advances a reasonable excuse for refusing to provide a breath sample, does not mean that an adjudicator cannot find facts sufficient to confirm the prohibition.

Providing there is evidence upon which to reasonably find that a driver failed or refused, without reasonable excuse, to comply with a demand, then an adjudicator can confirm the prohibition, and that decision will withstand scrutiny on judicial review. [emphasis in original] [ 35 ] In this case, the evidence before the Adjudicator included the observations of Cst. Perkins at 9:04 pm of the Applicant driving his vehicle head on into traffic and his subsequent observation of the Applicant’s vehicle drifting slowly back and forth in his lane, which Cst.

Perkins would have been observed between 9:04 pm and the time of the Applicant’s arrival at the Residence. The Adjudicator had the evidence of Cst. Jaszczyszyn’s narrative, according to which Cst. Perkins observed Cst. Jaszczyszyn arriving at the Residence just as “the driver was getting out and going into the garage”, that at 9:13 pm, he observed the Applicant heading to the right side of the garage, that he subsequently approached the garage approximately 2 minutes later with Cst. Hack, and after calling the Applicant over, Cst.

Jaszczyszyn observed that the Applicant “appeared intoxicated as had had a strong odor of liquor emanating from his breath and had bloodshot eyes”. [ 36 ] The Adjudicator also had the Applicant’s evidence regarding his non-consumption of alcohol prior to ceasing to operate his motor vehicle and the Applicant’s evidence regarding the interaction of alcohol and medications.

She fairly summarized his evidence on that point in paragraphs 9 and 10 of her decision, but it is clear from her reasoning in paragraph 12 that she did not believe the Applicant’s evidence, reasoning that the Applicant’s consumption of the 6 ounces of alcohol would have had to occur in at most 10 minutes and that within that timeframe, in the absence of independent medical or scientific evidence, she was not satisfied that the level of impairment observed could be explained by the Applicant’s explanation of his personal experience combining his medication and alcohol. [ 37 ] In my view, the Adjudicator’s findings were not unreasonable given the evidence before her and I see no reason to interfere with her findings. [ 38 ] I do not accept that the Applicant’s submission to the effect that because the Adjudicator accepted the Applicant’s evidence regarding the first two conditions, the Adjudicator should have treated the Applicant’s evidence on the third more favourably or given it more weight.

The Adjudicator’s task is to consider, assess and weigh the evidence on each point and to make findings accordingly. I am

not aware of any rule of evidence that says if a witness’s evidence is accepted on two points, their evidence on the third must also be accepted or given greater weight. Moreover, that the Applicant met the first two conditions was not particularly controversial or in dispute. With respect to post-operation consumption, Cst. Jaszczszyn waited 15 minutes before administering the breath test, implying at the very least that the officer believed that post-operation consumption had occurred.

Similarly, the Applicant’s affidavit evidence on the second condition consisted of a one-line statement: “I did not know that an off-duty police officer had witnessed the driving infraction and I did not know that a uniformed officer would be attending at my house later that evening” and his oral evidence was similarly brief and uncontradicted. There was nothing in the police evidence to suggest otherwise.

That the Adjudicator summarily accepted that the first two conditions had been met in the instant circumstances is not particularly surprising given the absence of any evidence to the contrary. [ 39 ] I also do not accept the Applicant’s submission that the Adjudicator ignored the Applicant’s evidence regarding the Applicant’s ingestion of medications 2.25 hours earlier and the effects it has on him when mixed with alcohol. The Adjudicator fairly described that evidence at paragraph 10 of her reasons.

However, the Adjudicator’s task was to assess and weigh the Applicant’s evidence of non-consumption and effects of interaction between alcohol and his medication with all of the other evidence that was on the record. In my view, the Applicant’s evidence regarding the effects of combining alcohol and his medication was inherently self-serving and it was not unreasonable in the circumstances for the Adjudicator to require some corroboration of these effects through objective evidence that may have been readily available from, for instance, the dispensing pharmacy.

In my view, it was not unreasonable for the Adjudicator to disbelieve the Applicant’s ultimate issue evidence regarding the interaction of alcohol and the prescription drugs, particularly given the more objective evidence of observations of the Applicant’s potential impairment, including the observations that preceded the Applicant’s alcohol consumption.

The Applicant had the burden of proof and it was not unreasonable for the Adjudicator to have found that he had failed to meet it. [ 40 ] Lastly, I am not persuaded by the Applicant’s argument that the Adjudicator’s use of the words “I am not convinced” resulted in her applying an elevated burden of proof. A fair and balanced reading of the Adjudicator’s reasons does not disclose any indicia that she erred in assessing and weighing the evidence on the standard of balance of probabilities. VII. Disposition [ 41 ] The application for judicial review is dismissed. Heard on the 1 st day of June, 2023.

Dated at the City of Calgary, Alberta this 21 st day of August, 2023. M.H. Bourque J.C.K.B.A. Appearances: M. Ian Savage for the Applicant Eden C. Maher for the Respondent