Barton v Alberta (Director of SafeRoads), 2023 ABKB 93

Court of King’s Bench of Alberta Citation: Barton v Alberta (Director of SafeRoads), 2023 ABKB 93 Date: 20230221 Docket: 2201 13600 Registry: Calgary Between: Tamara Barton Plaintiff - and - Director of SafeRoads Alberta Defendant _______________________________________________________ Reasons for Decision of the Honourable Justice M.H. Bourque _______________________________________________________ [ 1 ] On December 5, 2022, Ms. Barton applied for a Stay of the Notice of Administrative Penalty issued to her on October 1, 2022 (the “NAP”), which was issued on that latter date, for contravention of s. 88.1(1) (

a) of the Traffic Safety Act , RSA 2000 c T-6 (“ TSA ”). For the following reasons, her application is dismissed. Background Facts [ 2 ] By way of background, shortly after midnight on October 1, 2022, a peace officer was conducting an Alberta Checkstop program at Crowchild Trail and Kensington Road NW, in Calgary. After stopping Ms. Barton and conducting a mandatory alcohol screening demand test, the peace officer issued the NAP to Ms. Barton on the ground that she operated a motor vehicle while her ability to do so was impaired. Ms.

Barton denied consuming any alcohol, but upon undergoing a mandatory alcohol screen test, she provided a sample that registered a “Fail”. The officer conducting the test described Ms. Barton as uncooperative and that, to provide the sample, she required 17 attempts on 6 separate tubes, despite three demonstrations by the police. [ 3 ] As a result of the NAP, Ms.

Barton is subject to the following administrative penalties: a. suspension of her operator’s licence for an immediate period of 90 days; b. suspension of her operator’s licence for a further period of one year subject to use of an alcohol-sensing device described in s. 88.1(7) and (8) of the TSA ; c. seizure of her vehicle for 30 days, not including any impound fees, whether paid or outstanding, chargeable to Ms. Barton arising

from the vehicle seizure; d. monetary fine of $1000 and any applicable surcharges; and e. completion of mandatory education required by the Registrar. [4] Ms.

Barton applied for a written review of the Notice of Administrative Penalty, in which she raised the following grounds: a. her ability to drive was not impaired by alcohol; b. she was not advised of her right to counsel prior to being compelled to provide a breath sample; c. she was not advised of the nature of the investigation; d. she was placed under arrest; e. she was not informed that she had the right to an immediate roadside appeal and was not afforded an opportunity to provide asecond sample; f. she did not receive any written advice or paperwork until after she was released from police custody; and g. she was not provided with any video related to the investigation. [5] After conducting a review on October 24, 2022, the Adjudicator rendered their decision on October 28, 2022 confirming theNotice of Administrative Penalty: Re Barton, 2022 ABSRA 1612. [6] On November 23, 2022, Ms.

Barton filed an Originating Application and Charter Application in which she seeks thefollowing remedies: a. a declaration that her rights as guaranteed by

section 7 of the Charter were breached and that the NAP should be canceledpursuant to section 24(1) of the Charter; b. a finding that the decision of the Adjudicator was unreasonable and an error in law, with the result that the NAP should bequashed and canceled; c. alternatively, an order that the NAP be quashed and returned for rehearing in front of a different adjudicator; d. costs and such other further relief as the Court deems fit. [7] On the same date, Ms. Barton filed an application for stay pending judicial review in respect of the NAP. [8] The question before me is whether a stay should be granted.

Test for Interim Stay [9] The test for a stay is laid out in RJR-McDonald v. Canada (Attorney General), (SCC), [1994] 1 SCR 311(RJR-McDonald):

a) There is a serious issue or issues to be determined;

b) Irreparable harm will be suffered if the stay is not granted; and

c) The balance of convenience favours the granting of the stay. [10] As noted by Justice Ross in Trca v. Alberta (Director of SafeRoads), 2022 ABQB 85, where government authority isinvolved, as it is in this case, the public interest is a special factor forming part of the consideration at both the second and third stages ofthe test. Serious Issue [11] The Applicant submits that she has a “very strong argument” that there was a “clear violation” of her

section 7 and 10(b)rights and that she was never informed of her right to an immediate roadside appeal of the NAP. The Respondent concedes that there is aserious issue or issues to be determined. Irreparable Harm [12] In RJR-McDonald, the Supreme Court of Canada stated that irreparable harm refers to the nature of the harm that will occurif the stay is not granted, rather than the magnitude and that it is harm which either cannot be quantified in monetary terms or whichcannot be cured, usually because one party cannot collect damages from the other. [13] Citing Chandler v.

British Columbia (Superintendent of Motor Vehicles), 2018 BCCA 120, Ms. Barton’s counsel arguesthat the British Columbia Court of Appeal reaffirmed in 2018 that irreparable harm will occur in all cases of driving prohibitions, if astay is not granted, the applicant will have served the entire prohibition prior to the hearing, which would render the matter nugatory. This approach has found favour in Alberta: Trca, Tarnow v. Alberta (Director of SafeRoads), 2021 ABQB 60; Zarysky v. Alberta

(Director of Saferoads) , 2022 ABQB 142 . [ 14 ] Ms. Barton has filed two affidavits in support of her application for a stay. [ 15 ] In the first, she says that she is employed full time as a Human Resources Business Partner with Canada Post and is required to drive throughout Calgary in the course of her employment. She says that she is expected to travel to various sites to provide in person guidance and direction to management on various human resources issues, though she does not particularize any instances of being unable to travel because of the suspension of her operator’s licence.

She says that since receiving the NAP, she has been unable to meet her employment responsibilities and has been advised that if this continues, she will be subject to severe repercussions. Again, other than this statement, no particulars are offered. She also says that she is the single mother to a 14-year old son who is actively involved in two basketball leagues in Calgary, and that between practices and games, he is scheduled to be in various parts of the city at least 6 times per week.

As an example, she says that on Saturdays, he is typically scheduled to play 3 games at different gyms and that he has had to miss games and practices because of her inability to drive him or make alternate arrangements. [ 16 ] In the second, she says that she has received notice from her insurer TD insurance that her vehicle insurance coverage will be canceled effective January 31, 2023, which she says is as a result of the NAP being issued against her. The registered letter confirms as much in that it says that the policy is not being renewed because Ms.

Barton does not hold a valid operator’s license to operate a private passenger vehicle in Canada. [ 17 ] The Crown submits that Ms. Barton has failed to provide clear, non speculative, and particularized evidence of her irreparable harm and that in the impaired driving context, irreparable harm is an especially difficult threshold to meet, requiring more than simply the existence of licence suspension and attendant consequences. Even modest losses that can be mitigated are not enough.

The Crown submits that in the context of employment loss, inconvenience short of loss of employment does not rise to the level of irreparable harm. Crown counsel argues that Ms. Barton cannot rely on harms that could be mitigated by Ms. Barton using the Alberta Ignition Interlock Program and taking the Planning Ahead course. [ 18 ] I am satisfied that Ms. Barton has met the test for irreparable harm. Although I was not advised whether Ms.

Barton’s application for judicial review had been scheduled, it is unlikely to be heard in 2023, meaning that she likely will have served the entirety of her administrative suspension either by the time the judicial review is heard or decided. Unlike in other decided cases, Ms. Barton did not delay in bringing her application for a stay. That said, I found her evidence of harm in the employment context was sparse, lacked particulars, was uncorroborated by employer documentation, and was somewhat speculative.

She also does not provide any evidence that the harms associated with her employment or her son’s basketball cannot be mitigated. To be clear, like Justice Ross in Trca , in satisfying myself that Ms. Barton has met the test for irreparable harm, I so find solely on the basis that her application for judicial review and Charter challenge will be largely nugatory by the time the application is heard and decided. Balance of Convenience [ 19 ] In considering the balance of convenience, Ms.

Barton submits that this step of balance of convenience involves weighing society’s interest in timely enforcement of the driving suspension against the inconvenience and the costs to her if the suspension is not stayed. If she is successful, she will have served a suspension that she was not legally required to serve and that there is no way to compensate her for that.

She argues that the only possible detriment to the public interest is that the serving of her remaining suspension will be postponed pending the decision of the Court on the merits of her application for judicial review. [ 20 ] In support of her argument, Ms. Barton cites the stay decision of Justice Wittman (as he then was), in Thomson v.

Alberta (Transportation and Safety Board) , 2003 ABCA 322 , a case dealing with a constitutional challenge to the then existing traffic safety legislation, wherein he stated: [24] I agree that the deterrence sought through the ALS program will be reduced by the delay resulting from a stay should the decision be upheld; but it will be postponed rather than eliminated. This consideration must be balanced against the rights and interests which the applicants seek to assert in opposition to the legislative scheme. The stay is temporary.

The application for leave is the appellants’ last opportunity to have these issues determined. Should they fail, the operation of the ALS program and its deterrent effect will be resumed without any further delays due to litigation. [ 21 ] I note this passage was recently mentioned in the context of an application to a judge of the Court of Appeal to set aside a stay previously granted, on consent, by a single judge of that Court: Lausen v. Alberta (Director of SafeRoads) , 2022 ABCA 313 at para 18 . The application to set aside the stay was dismissed.

In any event, Thomson can be distinguished because it involved a challenge to the constitutionality of the administrative license suspension program in its entirety, which then existed under the TSA . The appeal to the Supreme Court of Canada became moot because the legislator instead opted to repeal the impugned legislation. Pending the application for leave to appeal to the Supreme Court of Canada, Justice Wittman had granted stays in approximately 270 suspension cases. I also do not accept that it is sufficient to tip the balance of convenience in Ms.

Barton’s favour by accepting her counsel’s submission that the public’s interest in timely enforcement of the driving suspension is merely postponed. [ 22 ] In Tunke v. Alberta (Director of SafeRoads) , 2022 ABQB 531 , Justice Feth explained that the third factor weighs the public interest against a stay applicant’s personal interests and that (at para 39): “The public interest weighs heavily in the balance because community members are exposed to material safety risks, even loss of life, caused by impaired driving”.

In that regard (at paras 40 and 41): The balancing exercise also considers the impact of a stay on public confidence in the regulatory regime: Musaskapeo , at para 58-59. When searching for that balance, public confidence prioritizes the prevention of bodily injury and death over economic injury and inconvenience: Tarnow, at para 22. Public confidence in this context means that the regulatory scheme operates in a manner serving public protection while respecting the administration of justice. Consistent enforcement encourages compliance.

However, the public interest is advanced by finding a fair balance between public safety and the interests of a licensee who has not yet exhausted his legal remedies and might be innocent: Musaskapeo , at para 59.

The balancing exercise also examines whether the licensee has taken reasonable steps to mitigate the risk to the public while legal rights are exercised. Mr. Tunke has access to the interlock device program, which provides comfort to the public that his operation of a motor vehicle will not be impaired by alcohol. No adequate explanation has been provided for his failure to fully explore that option, even though he bears the burden of showing that the balance of convenience favours a stay. [ 23 ] In Tarnow v.

Alberta (Director of SafeRoads) , 2021 ABQB 602 , in considering the balance of convenience, Justice Shelley states (at para 62): I conclude that, when one combines the public interest in enforcing a safety-focussed [ sic ] regulatory scheme, with the unique harm caused by impaired motor vehicle operation as indicated in R v Bernshaw , strong evidence is needed to displace that public interest. Economic injury arguments, in my opinion, will rarely meet that standard. I conclude that the public’s confidence in the TSA NAP and SafeRoads Alberta regime would be undermined if I were to grant Mr.

Tarnow an interim stay of his NAPs because he claimed that the NAPs were affecting his employment, and the result was Mr. Tarnow harmed himself or others as a consequence of a future impaired driving incident. [ 24 ] At para 68, she stated: I conclude that, barring exceptional circumstances, an interim stay should not be granted where a driver who has been subject to a NAP does not pursue access to the ignition interlock alternative to their one-year, three-year, or lifetime TSA s 88.1 suspension in a timely manner.

The availability of this alternative remedy very strongly favours the public interest over the minimal inconvenience of a person subject to a NAP. Put another way, if a person who has been found to operate a motor vehicle while impaired elects to not take advantage of the interlock program, then their injury and inconvenience is self-inflicted. [ 25 ] In that decision, Justice Shelley denied the stay because the applicant had introduced weak evidence of economic harm, “or more accurately, hypothetical economic harm” and he had two NAPs issued within a short period. Conclusion [ 26 ] In this case, Ms.

Barton’s evidence of irreparable harm meets the threshold minimally. She has also taken no reasonable steps to mitigate the risk to the public while her legal rights are exercised. She provides no explanation as to why she cannot mitigate the impact of the suspension by applying for and using an interlock device while driving. She provides no evidence that the cost is prohibitive for her or that it is especially punitive to her, even though she bears the burden of showing that the balance of convenience favours a stay. For these reasons, Ms. Barton’s application for a stay is dismissed.

Heard on the 13 th day of January, 2023. Dated at the City of Calgary, Alberta this 21 st day of February, 2023. M.H. Bourque J.C.K.B.A. Appearances: Katherin Beyak for the Plaintiff Eden Maher for the Defendant