Nussbaumer v SafeRoads Alberta (Director), 2023 ABKB 427

Court of King’s Bench of Alberta Citation: Nussbaumer v SafeRoads Alberta (Director), 2023 ABKB 427 Date: 20230622 Docket: 2103 16197 Registry: Calgary Between: Michael Lee Nussbaumer Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice R.W. Armstrong _______________________________________________________ Background [ 1 ] On September 17, 2021, the Applicant, Michael Lee Nussbaumer travelled from High Prairie to Edmonton, Alberta where he was scheduled to receive a Covid 19 vaccination at 4:00 p.m.

A common parking lot served the vaccination centre and an adjacent liquor store. [ 2 ] Mr. Nussbaumer arrived early for his appointment and parked in the lot near the vaccination centre. He suffers from needle

anxiety and was therefore nervous about getting vaccinated. To calm his nerves, he went to the liquor store and purchased a bottle of redwine, which he consumed. He then returned to the liquor store and purchased a second bottle of red wine. He attended his vaccinationappointment and then returned to his car where he consumed approximately ½ of the second bottle of red wine. He sat in the driver’sseat. He was feeling unwell so he started his car so that he could roll down the window. [3] Mr. Nussbaumer had a friend in Edmonton who he was planning to see if time permitted.

He sent her the following messageson SnapChat as he sat in his car: I’m thinking I might have to get a hotel so I prob be here tomorrow as well I don’t think I’m. Good to drive rn ima bus it [4] Mr. Nussbaumer passed out in his vehicle. A passerby called police. Police attended at approximately 6:19 p.m. Uponattending, the police noted a large puddle of red vomit that smelled of alcohol next to the car door. They observed an empty bottle of redwine and a half empty bottle of red wine on the passenger seat of the vehicle. The vehicle was running, and Mr. Nussbaumer was passedout in the driver’s seat.

The police woke Mr. Nussbaumer and arrested him for impaired operation of a motor vehicle. He was cautionedand chartered and transported to a police station where he provided two breath samples pursuant to a demand read to him. [5] Rather than charge Mr. Nussbaumer criminally, the police exercised their discretion and issued a NAP pursuant to s 88.1 ofthe Traffic Safety Act, RSA 2000, c T-6 (the “TSA”) on the basis that they had reasonable grounds to believe that Mr. Nussbaumeroperated a motor vehicle while his ability to do so was impaired to any degree by alcohol. [6] Mr. Nussbaumer sought a review of the NAP.

The review was conducted on October 6, 2021. The Adjudicator issued adecision dated October 18, 2021, confirming the NAP. Mr. Nussbaumer now seeks judicial review of the Adjudicator’s decision. Issues [7] There are two grounds set out in the SafeRoads Alberta Regulation, Alta Reg 224/2020 (the “Regulation”) upon which theNAP may be cancelled that are at issue in this judicial review. 1. s 4(e)(i) – that Mr.

Nussbaumer did not operate the motor vehicle; and 2. s 4(e)(iii) – that the Director did not provide complete records to the Recipient as required by s 12 of the Provincial AdministrativePenalties Act, SA 2020, c P-30.8 (“PAPA”). Standard of Review [8] The parties agree that the applicable standard of review is reasonableness. The Court of Appeal of Alberta recentlyconfirmed the applicable standard of review is the deferential standard of reasonableness: Lausen v Alberta (Director of SafeRoads),2023 ABCA 176 at para 37. Preliminary Application to Adduce Fresh Evidence [9] Mr.

Nussbaumer seeks to introduce fresh evidence for the purpose of this judicial review. The evidence that Mr.Nussbaumer seeks to introduce are copies of the text messages he sent to his friend with the time stamps. This evidence existed prior tothe review but it was not adduced before the Adjudicator due to an oversight on the part of Mr. Nussbaumer’s counsel. [10] Mr. Nussbaumer argues that the evidence is necessary because the Adjudicator had concerns about the timing of the events ofSeptember 17, 2021. At para 11 of the decision, the Adjudicator said: In the absence of evidence from the Recipient [Mr.

Nussbaumer] or his friend, it is difficult to comprehend how much time elapsedbetween the messages, how long this indecisiveness lasted, and how long it was until police arrived before the risk was minimized. [11] Mr. Nussbaumer argues that the test to adduce fresh evidence in this judicial review is the 4-part test set out in R v Palmer, (SCC), [1980] 1 SCR 759: 1. Whether the evidence, by due diligence, could have been introduced at trial; 2. Whether the evidence is relevant in the sense that it related to a decisive or potentially decisive issue in the case; 3.

Whether the evidence is credible in the sense that it is reasonably capable of belief; and 4. Whether the evidence, if believed, could reasonably, when taken with other evidence introduced, be expected to have affected theresult. [12] Mr. Nussbaumer asserts that all the elements of the test have been met; however, the Director argues that the Palmer test isnot the correct test for adducing fresh evidence in a judicial review. According to the Director, the test that applies in a judicial review isset out in Alberta Liquor Store Association v Alberta (Gaming and Liquor Commission), 2006 ABQB 904 at paras 40-42.

In that case,the Court said the general rule is that a judicial review must be conducted on the record that was before the decision maker and thatadditional evidence may only be adduced on judicial review in exceptional cases. The exceptions to the general rule are limited to cases

where the fresh evidence is required to: 1. Show bias or a reasonable apprehension of bias, where the facts in support of the allegation do not appear on the record; 2. To demonstrate breaches of the rules of natural justice which are not apparent from the record; 3. Background information for issues such as standing; or 4. When the tribunal makes no record, or the record is inadequate. [ 13 ] I agree with the Director that the correct test for adducing fresh evidence on a judicial review is the test articulated in the Alberta Liquor Store decision.

A court sitting on judicial review plays a fundamentally different role than a court sitting on appeal and the test for adducing fresh evidence must account for the court’s function when it engages in judicial review. [ 14 ] The general rule is that fresh evidence is not permitted on judicial review. The Court must assess a tribunal’s decision in light of the material that was before the tribunal. It is not the role of the court to decide the matter on its merits. That is the tribunal’s role.

On judicial review, the court “reviews the legality, rationality and fairness” of what the decision maker did: Gorgulu v Canada (Citizenship and Immigration) , 2023 FC 23 at para 26 . The legality, rationality and fairness of the decision maker’s decision must be assessed given the information that was before the decision maker. [ 15 ] Exceptions to the general rule must be applied in such a manner as to not confuse or conflate the respective roles of the administrative decision maker and the reviewing court: Gorgulu at para 27 .

In other words, the court should not make an exception to the general rule where it places the reviewing court in the position of a fact finder determining the merits of the matter. [ 16 ] In support of the application to adduce fresh evidence, Mr. Nussbaumer’s former counsel swore an affidavit. In that affidavit he states that Mr. Nussbaumer provided him with 2 copies of the text messages in question, one that was time stamped and one that was not. Counsel appended the screenshots without the time stamps as he did not notice the timestamps on the other copies.

The timestamps were inadvertently left out of the materials that went before the adjudicator. [ 17 ] The Director notes that inadvertence is not an exception to the general rule that no fresh evidence is allowed. The Director is correct in this regard; however, the case law does say that the categories of exceptions are not closed: see for example Gorgulu at para 28 .

Considering, without deciding, that counsel error or inadvertence may be a permissible ground to adduce fresh evidence on a judicial review, the inclusion of the fresh evidence must still not offend the general rule and the respective roles of administrative decision maker and reviewing court. [ 18 ] In this case, Mr. Nussbaumer seeks to have additional evidence introduced regarding the timing of the text messages to his friend.

He seeks to have that evidence introduced so that I can weigh that evidence, along with the other evidence presented, and come to a different conclusion than the Adjudicator on the question of whether Mr. Nussbaumer posed a realistic risk of danger when he sat in his running vehicle, passed out, having consumed a bottle and a half of red wine. Mr. Nussbaumer’s request offends the rationale behind the general rule as it seeks to place the reviewing court in the position of the fact finder. Rather than assessing the legality, rationality, and fairness of the Adjudicator’s decision, Mr.

Nussbaumer seeks, with the introduction of the fresh evidence, to have me re-weigh the facts and come to a different conclusion. That is not this court’s function and accordingly, his application to adduce fresh evidence in this judicial review is dismissed. Was the Adjudicator’s Decision regarding operation of the vehicle reasonable? [ 19 ] The September 17, 2021 NAP was issued to Mr. Nussbaumer pursuant to s 88.1(1)(

a) of the TSA . That

section applies when a peace officer has reasonable grounds to believe that a driver operated a motor vehicle while the driver’s ability to operate the motor vehicle was impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug. [ 20 ] There is no issue that Mr. Nussbaumer was not driving his vehicle at the relevant time. The issue before the Adjudicator was whether he had care and control of the vehicle pursuant to the analytical framework for care and control set out in R v Boudreault , 2012 SCC 6 . [ 21 ] Mr. Nussbaumer takes issue with the Adjudicator’s decision in three respects.

He argues that there was no evidentiary basis for the Adjudicator to conclude that he had care and control over the vehicle, that the Adjudicator misinterpreted Mr. Nussbaumer’s statement that ‘ima bus it’ as equivocal when it was clearly an unequivocal statement of his intention to take a bus instead of drive and that the Adjudicator incorrectly applied a presumption that Mr. Nussbaumer was in care and control of the vehicle because he was sitting in the driver’s seat when the police found him. [ 22 ] Mr.

Nussbaumer asserts that an impaired person cannot be convicted of having care and control of a vehicle if that person satisfies the court that he or she had no intention of driving. There must be something more than the driver in the driver’s seat and that something more is a “realistic risk of danger to persons or property”: Boudreault at paras 38-39 . [ 23 ] Mr. Nussbaumer argues that there was no evidence of any realistic risk of danger to persons or property. He asserts that the only evidence before the Adjudicator was his unequivocal plan to take a bus and get a hotel for the night.

It was therefore unreasonable for the Adjudicator to find that Mr. Nussbaumer did have care and control over his vehicle when the police found him passed out in it. [ 24 ] An administrative decision maker’s decision will be reasonable where the decision is based on logical and rational reasons. So long as the analysis undertaken by the administrative decision maker rationally links the evidence and law to the conclusion ultimately

arrived at, the decision will be reasonable: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 ,[2019] 4 SCR 653 at para 102. [25] Having reviewed the reasons for decision of the Adjudicator, I am satisfied that the decision that Mr. Nussbaum had care andcontrol of his vehicle while impaired was reasonable.

The Adjudicator sets out a rational and coherent path to the finding that Mr.Nussbaumer did operate (by having care and control) his motor vehicle while his ability to do so was impaired to any degree by alcohol.The Adjudicator’s path to the decision comprises the following steps. [26] First, the Adjudicator considered the meaning of “operate a motor vehicle” and based on the relevant statutory regime and theSupreme Court of Canada’s decision in Boudreault, concluded that the phrase “operate a motor vehicle” includes having care andcontrol of the motor vehicle.

The parties essentially agreed that operating a motor vehicle for the purpose of s 88.1 of the TSA includeshaving care and control of the vehicle. [27] Second, the Adjudicator considered the location and state of the vehicle when the police found it. The Adjudicator found thatthe vehicle was stationary and properly parked in a flat parking stall and concluded that in that state, the vehicle was not a danger topersons or property. The focus of the Adjudicator’s analysis was on whether there was a danger to persons or property having regard toall the circumstances, not just the fact that Mr.

Nussbaumer was in the driver’s seat. [28] Third, the Adjudicator turned to the question of Mr. Nussbaumer’s intentions. The Adjudicator went through the textmessages from Mr. Nussbaumer to his friend and decided that, taken as a whole, the evidence from the text messages was insufficient forMr. Nussbaumer to meet the burden on him to demonstrate that he did not operate his motor vehicle when he was impaired to any degreeby alcohol. Having reviewed the text messages, the Adjudicator articulated the reasons why the text messages were not sufficient tosatisfy the burden of proof on Mr. Nussbaumer.

At para 11, the Adjudicator said: Of particular concern are the words “might” and “think”. These words are not decisive in nature and indicate that the Recipient may, ormay not enter into the action. ... While the Recipient argued that his alternate plan was to use the bus to go to a hotel, at no time did theRecipient actually leave his vehicle to find a bus or bus route. Further, the Recipient did not describe where he would go to catch a bus orwhat bus would possibly take him to a hotel, especially given he was ill.

As the onus resides with the Recipient, I am not satisfied, on abalance of probabilities, that the Recipient’s plan would not be abandoned such that the Recipient would attempt to drive, perhaps to finda hotel.

Given that the Recipient was exhibiting acute intoxication and levels of stupor, I find that the Recipient posed a realistic risk ofdanger and I find that the Recipient was in care of control of the motor vehicle at the time alleged by the police. [29] The Adjudicator’s decision specifically refers to the “something more” that the Supreme Court of Canada referenced inBoudreault, that is, the realistic risk of danger. It is only after engaging in all three of these analytical steps that the Adjudicatorconcludes Mr. Nussbaumer did pose a realistic risk of danger to persons or property. [30] Mr.

Nussbaumer argues that it was unreasonable for the Adjudicator to conclude there was a realistic risk of danger given Mr.Nussbaumer’s unequivocal statement ‘ima bus it.’ This argument ignores the Supreme Court of Canada’s instruction in Boudreault thatthe assessment of risk of danger depends on two considerations: first, whether the plan was objectively concrete and reliable; and second,whether it was in fact implemented by the accused. A key finding in the Boudreault case was that the accused had called a taxi to comepick him up. The plan in question, to take a taxi, had been implemented.

There is no evidence in this case upon which such a findingcould be made. [31] In this case, the Adjudicator outlined concerns with respect to the objective concreteness of the plan. There was no evidencethat Mr. Nussbaumer knew what bus to take or that there was a bus route that would get him to a hotel. He was ill at the time. Thelogistics of the plan were not sufficiently concrete and reliable for the Adjudicator to conclude there was no realistic risk of danger.Secondly, there was no evidence in this case that Mr. Nussbaumer’s plan had been implemented in any way.

Even if his statement ‘imabus it’ was unequivocal in its subjective intention at the time it was sent, that is not the test. The test in Boudreault requires anobjectively concrete and reliable plan and implementation is a factor in considering whether the realistic risk of danger has beenmitigated by the plan. [32] Reading the Adjudicator’s decision as a whole, in light of the surrounding circumstances, I find the Adjudicator’s decision onthe issue of operation of a motor vehicle while impaired is cogent, rational, and coherent.

The Adjudicator did not misapprehend theevidence nor did the Adjudicator rely on a presumption of care and control due to Mr. Nussbaumer’s presence in the driver’s seat. TheAdjudicator’s focus was properly on the issue of whether there was a realistic danger to person or property in all the circumstances andthe reasons provided support the Adjudicator’s ultimate finding on that issue. For these reasons, the application to set aside theAdjudicator’s decision pursuant to s 4(e)(

i) is dismissed. Was the Adjudicator’s decision that the Director was notrequired to provide records relating to the approved instrumentreasonable? [33]

Section 12 of PAPA requires the Director to provide the recipient of a NAP with relevant records as prescribed in theregulations or the regulations of a prescribed enactment. The TSA is a prescribed enactment and s 2(

d) of the Regulation says theDirector shall provide the following records to a recipient on receipt of an application for review: 2(

d) if an approved instrument was used as the basis for issuing the notice of administrative penalty, (

i) A copy of the subject test record relating to the test of the recipient,

(ii) The date of the last annual maintenance performed on the approved instrument, (iii) The certificate of the analyst certifying the alcohol standard used by the approved instrument, (iv) The alcohol standard change form relating to the last change of the alcohol standard used by the approved instrument and its related print-outs, (

v) If a certificate of qualified technician was produced, the certificate of qualified technician relating to the testing of the recipient; and (vi) If an operational checksheet was produced, the operational checksheet related to the testing of the recipient. [ 34 ] It is not disputed in this case that none of these records relating to the use of an approved instrument were provided to Mr. Nussbaumer. [ 35 ] Nor is it disputed that the NAP issued to Mr. Nussbaumer was on the basis that the peace officer had reasonable grounds to believe that Mr.

Nussbaumer operated a motor vehicle while his ability to do so was impaired by alcohol. The police could have issued the NAP based on the approved instrument results, but they did not. [ 36 ] The basis for the reasonable grounds to believe that Mr. Nussbaumer operated a motor vehicle while his ability to do so was impaired by alcohol was overwhelming. There was a large puddle of red colored vomit outside his car door that smelled of alcohol. He was passed out when the police approached. There were two bottles of red wine on his passenger seat – one empty and the other ½ consumed. When the police woke Mr.

Nussbaumer, there was drool coming from his mouth, tinged the color of red wine. His breath smelled of alcohol. His speech was slow. He admitted to feeling unwell. [ 37 ] Having made the decision to issue the NAP based on reasonable grounds to believe that Mr. Nussbaumer’s ability to operate his vehicle was impaired by alcohol, the requirement to provide documents relating to the use of the approved device does not apply. The case that Mr. Nussbaumer must meet is the case involving the peace officer’s reasonable grounds for believing Mr.

Nussbaumer was impaired by alcohol. [ 38 ] The belief, on reasonable grounds, that Mr. Nussbaumer was impaired by alcohol was formed by police during their encounter with Mr. Nussbaumer in the parking lot, before any approved device was utilized to ascertain blood alcohol concentration. The police set out the reasonable grounds to believe that Mr. Nussbaumer’s ability to operate a motor vehicle was impaired in the Contravention Details document. The use of the approved device and any readings obtained from the approved device are not referred to in the “reasonable grounds to believe”

section of the report. There is no evidence that the results obtained from the approved device factored into the assessment of whether the police had reasonable grounds to believe that Mr. Nussbaumer operated his motor vehicle when his ability to do so was impaired. [ 39 ] While s 2(

h) of the Regulation also provides for the production of “any other relevant records and representations of the officer,” for the foregoing reasons, the results of the approved instrument are not relevant to the issue of whether the police had reasonable grounds and therefore the information regarding the use of the approved instrument did not need to be provided to Mr. Nussbaumer by the Director. [ 40 ] The Adjudicator’s decision that Mr. Nussbaumer did not establish the ground to cancel the NAP pursuant to s 4(e)(iii) of the Regulation is reasonable. Conclusion [ 41 ] Mr.

Nussbaumer has not established that the Adjudicator’s decision was unreasonable. The Adjudicator identified the appropriate test and clearly articulated the reasons why he was satisfied that Mr. Nussbaumer presented a realistic risk of danger to property or persons in the circumstances. Furthermore, the Director was not required to provide records relating to the use of an approved device when the NAP was issued based on reasonable grounds to believe Mr.

Nussbaumer operated his motor vehicle when his ability was impaired by alcohol as opposed to based on a blood alcohol content equal to or exceeding 80 milligrams of alcohol in 100 millilitres of blood. [ 42 ] Mr. Nussbaumer’s application for judicial review is dismissed. Heard on the 22 nd day of June. Dated at the City of Calgary, Alberta this 22 nd day of June 2023 . R.W. Armstrong J.C.K.B.A.

Appearances: Zachary Al-Khatib Liberty Law LLP for the Applicant Kristy Vogelesang Emery Jamieson LLP for the Respondent