Saretzky v Alberta (Director of Saferoads), 2023 ABKB 446

Court of King’s Bench of Alberta Citation: Saretzky v Alberta (Director of Saferoads), 2023 ABKB 446 Date: 20230726 Docket: 2203 00066 Registry: Edmonton Between: Blair Saretzky Applicant - and - Director of Saferoads Alberta Respondent _______________________________________________________ Endorsement of the Honourable Justice Peter Michalyshyn _______________________________________________________ Judicial Review from the decision of Adjudicator M Nowak Dated the 22 day of November, 2021 (Contravention # A15287333O) [ 1 ] Blair Saretzky has applied for judicial review of the Adjudicator’s decision to uphold a Notice of Administrative Penalty (NAP) issued on October 23, 2021.

Saretzky pleads the Adjudicator was unreasonable when finding he had failed to establish that he had not been advised in writing of his right to a roadside appeal before the roadside appeal was administered as required by s 88.11 of the Traffic Safety Act , RSA 2000, c T-6 ( TSA ) and s 4(f)(viii) of the SafeRoads Alberta Regulation , Alta Reg 224/2020 ( SAR ). [ 2 ] On October 23, 2021, a NAP was issued to Saretzky after he provided three breath samples into an approved screening device (ASD), the third of which registered a “Fail” reading.

[ 3 ] On October 28, 2021, Saretzky applied for an oral review of the NAP: Saretzky (Re) , 2021 ABSRA 1208 . The Adjudicator found Saretzky had not established a ground to cancel the NAP on the basis of not being advised in writing of his right to a roadside appeal before he declined to participate in a “second test.” [ 4 ] In Lausen v Alberta (Director of SafeRoads) , 2023 ABCA 176 ( Lausen ), the Court found that the SafeRoads legislation did not intend for a driver to be advised and aware of the right to a roadside appeal only after the driver has provided or declined to provide a second sample of breath.

If a driver does not receive anything in writing about his right to a roadside appeal until after the “second test,” the ground to cancel under SAR s 4(e)(

v) is established.

Section 4 (e)(

v) applies to contraventions of s 88.1(1)(

a) of the TSA (driving while the ability to operate a motor vehicle is impaired by alcohol or a drug or a combination of the two).

Section 4 (f)(viii) includes the same wording as s 4(e)(

v) but applies to contraventions of s 88.1(1)(

b) of the TSA (within 2 hours of ceasing to operate a motor vehicle, the driver has a BAC that equals or exceeds 80 mg of alcohol in 100 mL of blood). [ 5 ] The Director has conceded that Lausen is determinative of the Saretzky matter. The Director notes that Saretzky was offered his right to the roadside appeal (ie, that “second test”) only before he received written notice of his right to appeal, as outlined in the NAP. Based on that concession, I find that the Adjudicator’s decision to uphold the NAP was unreasonable.

The judicial review is therefore allowed. [ 6 ] With respect to remedy, SAR s 4(f)(viii) requires an Adjudicator to cancel a NAP when the Applicant shows on a balance of probabilities that the officer did not advise the Applicant in writing of the right to a roadside appeal under s 88.11 of the TSA and the Applicant was unaware of that right. There is no discretion on an Adjudicator to impose a different remedy. [ 7 ] The Director has conceded that there is only one remedy available to the Applicant, that being that the NAP should be cancelled.

Therefore, I direct that the NAP issued on the Applicant on October 23, 2021 be cancelled. [ 8 ] It is unnecessary to address other arguments raised by Saretzky in the hearing of the matter on January 31, 2023. I acknowledge with thanks the considerable efforts of both counsel to keep the court advised of case law developments since the original hearing. [ 9 ] Should the parties be unable to agree on costs, I will accept written submissions by not later than 60 days from the date of this decision. Heard on the 31 st day of January, 2023.

Further written submissions of counsel February 2, March 30, April 24, June 26, June 27, July 6 and July 24, 2023. Dated at the City of Edmonton, Alberta this 26th day of July, 2023. Peter Michalyshyn J.C.K.B.A. Appearances: Shannon Gunn Emery for the Applicant Jas Sadhra for the Director