Vatter v Alberta (Director of Saferoads), 2023 ABKB 596

Court of King’s Bench of Alberta Citation: Vatter v Alberta (Director of Saferoads), 2023 ABKB 596 Date: 20231023 Docket: 2203 02278 Registry: Edmonton Between: Cheryl Lee Vatter Applicant - and - Director of Saferoads Alberta Respondent _______________________________________________________ Endorsement of the Honourable Justice Peter Michalyshyn _______________________________________________________ Judicial Review from the decision of Adjudicator M Culo Dated the 4 th day of January, 2022 (Contravention #: A15015825O) [ 1 ] Cheryl Lee Vatter (Applicant) has applied for judicial review of the Adjudicator’s decision to uphold a Notice of Administrative Penalty (NAP) issued on December 4, 2021.

The Applicant pleads the Adjudicator was unreasonable when finding she had failed to establish the Director provided incomplete records to her upon application for review of the NAP as required by s 12 of the Provincial Administrative Penalties Act , SA 202, c P-30.8 ( PAPA ) and s 2 of the SafeRoads Alberta Regulation , Alta Reg 224/2020 ( SAR ). [ 2 ] At the time of the Applicant’s request for a review of the NAP, SAR s 2(c)(

i) required that, upon application for review of a NAP, the Director must provide to an Applicant, among other things, the date of the last annual maintenance performed on any approved

screening device (ASD) used as the basis for the issuance of the NAP. On December 14, 2021, SAR s 2(c)(

i) was amended. The amended provision now requires the Director to disclose the expiry date of the last annual maintenance performed on any ASD used as the basis for the issuance of the NAP.

That provision was not in effect on the date the NAP was issued on the Applicant or on the date the Applicant applied for review of the NAP. [ 3 ] On receipt of the Applicant’s application for review, the Director disclosed the expiry date of the last annual maintenance performed on the ASD used as the basis for the issuance of the NAP, but not the date of the last annual maintenance performed on that ASD. [ 4 ] The Applicant did not specifically plead in front of the Adjudicator the Director’s failure to disclose the date of the last annual maintenance performed on the ASD used as the basis for issuing the NAP.

The Director submits that this constitutes a new issue on judicial review, and it would be inappropriate for the Court to consider it: Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 at paras 22 – 26 . [ 5 ] In Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 , the Applicant did not plead in front of the Adjudicator a failure to disclose complete records as required by SAR s 2(c). The reviewing Court declined to consider the issue on the basis that the Applicant could have but did not raise the issue in front of the Adjudicator.

In Dorn v Alberta (Director of SafeRoads) , 2021 ABQB 757 , the Court found that the Applicant was entitled to add to their Originating Application an allegation that challenged the Adjudicator’s decision on the issue of complete records because the issue had been sufficiently raised in front of the Adjudicator: para 9. [ 6 ] In this case, while the Applicant did not specifically argue that the Director failed to disclose what is required under SAR s 2(c), the Applicant did raise in front of the Adjudicator the issue of a failure to provide complete records pursuant to PAPA s 12.

The allegation before the Adjudicator was that the Director failed to disclose pursuant to SAR s 2 generally, and specifically with respect to certain records under SAR ss 2(

b) and 2(h). [ 7 ] The law with respect to what is to be disclosed to meet the requirement of SAR s 2(

c) has been evolving both under the common law and the legislation. The legislation changed in the midst of the Applicant’s application for review before the Adjudicator and the common law changed in the course of the judicial review before this Court. Procedural fairness requires that I consider the issue in light of those changes. This is not a de novo hearing on the issue. The Adjudicator made a finding that the Applicant received complete records sufficient for the Applicant to know the basis for the issuance of the NAP and the case to be met: Vatter (Re) , 2022 ABSRA 2 at para 21 .

Given the specific legislative changes and the evolving common law, that finding was unreasonable. [ 8 ] If an ASD is used as the basis for issuing the NAP, the Director discloses the maintenance or service expiry date for the last annual maintenance performed on that ASD.

In Korecki v Director, SafeRoads Alberta and Minister of Justice and Solicitor General of Alberta (November 25, 2021), Red Deer No 2110 00831 [ Korecki ], the Court found that it was unreasonable for the Adjudicator to infer the date of last annual maintenance from the maintenance or service expiry date for the ASD that was used as the basis for issuing the NAP.

In Jones v Alberta (Director of SafeRoads) , 2023 ABKB 350 [ Jones ], the Court considered material in the SafeRoads Technical Materials Library that outlines inspection and maintenance requirements for ASDs and explains how the date of last annual maintenance could be inferred from the maintenance or service expiry date for an ASD.

The Court found that it was unreasonable for the Adjudicator to infer the date of last annual maintenance performed on the ASD used as the basis for issuing the NAP with this combined information because there was no evidence that the RCMP’s training and practices actually adhered to the ASD inspection and maintenance requirements as outlined in the SafeRoads Technical Materials Library. [ 9 ] In this case, the Director has conceded that it failed to disclose to the Applicant the date of the last annual maintenance performed on the ASD used as the basis for issuing the NAP to the Applicant on December 4, 2021.

What was disclosed was the maintenance or service expiry date of the last annual maintenance performed on that ASD. The Director argues that on the date of the Applicant’s review before the Adjudicator on December 23, 2021, the statutory requirements for disclosure in SAR s 2(c)(

i) had been met pursuant to the change in legislation that came into effect on December 14, 2021. [ 10 ] The Applicant argues that the legislation that should be applied is the one that existed on the date the NAP was issued to the Applicant (December 4, 2021) and the date that the Applicant applied for review of the NAP (December 7, 2021), not on the date that the Applicant’s review was heard. [ 11 ] I agree with the Applicant.

As such, the Applicant has shown that the Director failed to provide to the Applicant the date of the last annual maintenance for the ASD used as the basis for issuing the NAP as required by SAR s 2(c)(i). The decisions in Jones and Korecki are both persuasive and binding on me: R v Sullivan and R v Chan , 2022 SCC 19 .

As such, the Adjudicator’s finding that the Applicant had been provided with complete records within the prescribed legislated time frames was unreasonable. [ 12 ] With respect to remedy, SAR s 4(e)(iii) requires an Adjudicator to cancel a NAP when the Applicant shows on a balance of probabilities that the Director did not provide complete records to the Applicant pursuant to PAPA s 12 and SAR s 2. There is no discretion on an Adjudicator to impose a different remedy. If I were to send this matter back for a rehearing, the outcome would be inevitable.

Therefore, I direct that the NAP issued on the Applicant on December 4, 2021 be cancelled. [ 13 ] It is unnecessary to address other arguments raised by The Applicant in the hearing of the matter on April 19, 2023. Heard on the 19 th of April 2023. Further written submissions of counsel August 23, September 7, September 22, and October 16, 2023. Dated at the City of Edmonton, Alberta this 23 rd of October, 2023.

Peter Michalyshyn J.C.K.B.A. Appearances: Lisa M Trach for the Applicant Eden C Maher for the Director