Smit v Alberta (Director of Saferoads), 2023 ABKB 508

Court of King’s Bench of Alberta Citation: Smit v Alberta (Director of Saferoads), 2023 ABKB 508 Date: 20230907 Docket: 2203 03916 Registry: Edmonton Between: Inge Marli Smit Applicant (Respondent) - and - Director of Saferoads Alberta Respondent (Applicant) _______________________________________________________ Memorandum of Decision of the Honourable Justice N. Whitling _______________________________________________________ I.

Introduction and Overview [ 1 ] In these reasons, I will refer to the Applicant, Inge Marli Smit, who is the Respondent on the present application, as the Applicant, and I will refer to the Respondent, the Director of SafeRoads Alberta, as the Director. [ 2 ] These reasons address an application by the Director for an Order staying a certain aspect of my interlocutory decision of July 25, 2023, reported as Smit v Alberta (Director of SafeRoads) , 2023 ABKB 435 (the “Decision”), pending the Director’s appeal of that Decision.

In particular, the Director seeks a stay of that part of the Decision which allowed the Applicant’s application for judicial review on the ground that the Director had failed or refused to provide the Applicant with a copy of any video or audio recordings of the

events at issue, or alternatively to advise her that no such recordings exist. [ 3 ] In find that this application must be denied. The part of the Decision that the Director now seeks to stay does not order the Director or any other party to do anything, and does not direct or allow the continuation of any legal proceedings or enforcement measures. Consequently, there is nothing to stay.

This court’s authority “to stay proceedings or enforcement of a decision pending appeal” pursuant to r. 14.48 of the Alberta Rules of Court , AR 124/2010 does not include an authority to suspend the precedential effect of a decision as a matter of stare decisis .

Even if such an authority did exist, a stay pending appeal cannot be used for the purpose of strengthening the appellant’s legal position in separate legal proceedings involving parties who are not presently before the court. [ 4 ] Further, and in any event, the Director has failed to establish that the absence of a stay pending appeal would cause irreparable harm to the Director or to the general public, or that the balance of convenience favours a stay. [ 5 ] The application is, therefore, denied. II.

The Aspect of the Decision of July 25, 2023, that the Director Seeks to Stay [ 6 ] The Decision of July 25, 2023, was rendered in the context of an application for judicial review and a separate but related application for relief pursuant to s. 24(1) of the Charter . In those applications, the Applicant sought an order setting aside a Notice of Administrative Penalty or “NAP” that had been issued against her by the police following a roadside investigation for impaired driving.

The net effect of the NAP was to disqualify the Applicant from operating a motor vehicle in the Province of Alberta, and to impose a fine of $1,000. [ 7 ] The aspect of the Decision that the Director now seeks to stay pending appeal is set out at

Part VII, paragraphs 46-102. The net effect of that

Part VII is encapsulated in the two concluding paragraphs, which read: G. Conclusions on the Fourth Ground of Judicial Review [101] In conclusion, I find that the Director acted unreasonably in failing to disclose any video recordings of the events in question, or alternatively, to advise that no such evidence existed, and that the Adjudicator acted unreasonably in conducting the review before him without the benefit of any such evidence that may have existed. [102] The Applicant’s fourth ground of judicial review is allowed. [ 8 ] It will be noted that the language of

Part VII does not order the Director or any other party to do or refrain from doing anything. [ 9 ] In the following

Part VIII of the Decision, at paragraphs 103-181, I overruled a preliminary objection by the Director to the hearing of the Applicant’s Charter application, and I directed that that aspect of this matter must proceed to a hearing and determination. Significantly for present purposes, the Director has not appealed that aspect of the Decision, and has not sought a stay of the Applicant’s Charter application pending the appeal.

Hence, the present stay application does not seek to suspend this or any other legal proceeding. [ 10 ] Further, given that the Applicant’s Charter application has not yet been resolved, the nature of the remedy to be granted to the Applicant in this proceeding, if any, was not determined in the Decision.

Its final paragraph reads: [184] The remedy to be granted to the Applicant (i.e. a new hearing before an Adjudicator, an order setting aside the NAP, or some other remedy) will be determined after the hearing and determination of the Applicant’s Charter application. [ 11 ] Hence, the present stay application does not seek to suspend the implementation or effect of any substantive relief as between the parties. To this point, none has been granted. III.

The Director’s Evidence [ 12 ] In her Affidavit filed in support of the present application, the Director states that prior to the Decision, law enforcement agencies did not provide video or audio recordings as a standard disclosure item, nor did they provide advice as to whether such evidence existed.

Consequently, the Director did not disclose video or audio recordings for “the vast majority” of NAP reviews. [ 13 ] The Director goes on in her Affidavit to express the concern that many NAPs will be set aside in the context of other proceedings involving other drivers where no video or audio recordings or advice as to their existence have been produced.

The Director lists six specific cases in which NAPs have already been cancelled on that basis. [ 14 ] The Director goes on to explain in her Affidavit that in carrying out its operations, the SafeRoads program uses an online program known as the Advanced Projects Information System (“APIS”) to disclose information to recipients.

As of August 1, 2023, the APIS portal is set up to accept audio and video recordings but “is limited to 10 files of five gigabytes each”, and she opines that “present capacity will not be sufficient to allow for uploads of audio and video recordings on any files involving large volumes of video”. The Director goes on to state that system and storage upgrades to the APIS system will be required, “but the extent and timeline for upgrades is unclear at this time and will require further assessment and consultation with the policing services and community peace officer entities”.

The Director also states that the review and disclosure of video and audio recordings is resource intensive, since care must be taken not to disclose sensitive information.

IV. The Applicant’s (Respondent’

s) Evidence [ 15 ] In response to this application, the Applicant has filed the Affidavit of Daryl Lang, case manager who administers case files at the Gunn Law Group, being the office of the Applicant’s legal counsel. Mr. Lang states that their office received video disclosure or advice that no video exists in the context of several files that were opened prior to the Decision, and that on occasion, their office has uploaded their own video recordings to the APIS portal for use in SafeRoads proceedings. [ 16 ] Mr.

Lang’s Affidavit also addresses the disclosure of video recordings in the month immediately following the release of the Decision as follows: 13. I have checked our records and found that since August 1, 2023, our office had 12 IRS hearings that went ahead. Only three of those files were not compliant with the Smit Decision. There was video provided in five of the cases. The remaining four cases included a notation from the officers that there was, at minimum, no video to provide. [ 17 ] Exhibit ‘D’ to Mr.

Lang’s Affidavit indicates that in one case where the police disclosed a video file depicting the entire interaction between the police and the recipient of a NAP, including audio, its volume was 1.15 Gb. V. The 60-Day Legislative Override [ 18 ] On August 8, 2023, being two weeks after the Decision of July 25, 2023, the Minister of Transportation and Economic Corridors prospectively overrode

Part VII of the Decision for 60 days by enacting the SafeRoads Alberta Amendment Regulation , AR 111/2023, in a Special Issue of the Alberta Gazette , the entirety of which reads: Alberta Regulation 111/2023 Traffic Safety Act SAFEROADS ALBERTA AMENDMENT REGULATION Filed: August 8, 2023 For information only: Made by the Minister of Transportation and Economic Corridors (M.O. 26/23) on August 8, 2023 pursuant to

section 188.1(

f) of the Traffic Safety Act. 1 The SafeRoads Alberta Regulation (AR 224/2020 ) is amended by this Regulation. 2

Section 2 is amended by striking out “The Director shall” and substituting “Subject to

section 2.1, the Director shall”. 3 The following is added after

section 2: Exception 2.1(1) For greater certainty, notwithstanding

section 2(h), the Director is not required to (

a) provide photographs, video or audio recordings, or any transcript created from video or audio recordings, if any, to a recipient, or (

b) confirm whether or not any records exist except those provided by the Director under

section 2.

(2) This

section expires 60 days immediately after it comes into force. [ 19 ] The above regulation remains in effect until October 7, 2023. The stay now sought by the Director would address the between October 8, 2023, and the determination of the Director’s appeal of the Decision. VI. Analysis [ 20 ] The Director seeks a stay pending appeal pursuant to two alternative procedural mechanisms. [ 21 ] Firstly, the Director requests a “modification” of the Decision pursuant to r. 9.13 (

b) of the Alberta Rules of Court , AR 124/2010 , which reads: Re-opening case 9.13 At any time before a judgment or order is entered, the Court may (

a) vary the judgment or order, or (

b) on application, and if the Court is satisfied there is good reason to do so, hear more evidence and change or modify its judgment or order or reasons for it. [ 22 ] Alternatively, the Director seeks a stay pending appeal pursuant to r. 14.48 :

Stay pending appeal 14.48 An application to stay proceedings or enforcement of a decision pending appeal may be made (

a) to the judge who made that decision, or (

b) to a single appeal judge, whether or not the application was made to the judge who made the decision, and whether or not thatapplication was granted or dismissed. [23] In my view, this application is, in substance, an application for a stay pending appeal, and as such is properly governed by thetest applicable to r. 14.48. The Court of Appeal has emphasized that r. 9.13 should be used sparingly.

It is “not an occasion for the losingparty to advance new argument which he or she simply did not think of before” (Alberta (Child, Youth and Family Enhancement,Director) v BM, 2009 ABCA 258 at para. 11 “BM”) and “was never intended as a vehicle to shore up evidential gaps” (CZ v RB, 2019ABCA 445 at paras. 26-27). Applying the general test to r. 9.13 in BM, the evidence now relied upon could have been prepared andsubmitted earlier based upon an exercise of reasonable diligence. Further, the new evidence is of a general nature and contains noevidence respecting the circumstances of the Applicant’s own case.

Consequently, it would not be “practically conclusive in producingthe opposite result to that earlier pronounced” (BM at para. 12).

In light of these considerations, I decline to reopen the decision on thebasis of r. 9.13. [24] Before turning to the tripartite test applicable to r. 14.48, it is necessary to address the preliminary question of whether therelief sought to be achieved by the Director is available under the rubric of a stay pending appeal. [25] In opposition to the Director’s application, the Applicant argues that since the aspect of the Decision now sought to be stayeddoes not order anyone to do anything, there is nothing to stay.

In Grant Thornton Ltd v Alberta Energy Regulator, 2017 ABCA 278,Wakeling J.A. (in Chambers) considered an application for an order staying a decision of the Court of Appeal pending an application forleave to appeal to the Supreme Court of Canada pursuant to s. 65.1 of the Supreme Court Act, RSC 1985, c S-26, and s. 8 of theJudicature Act, R.S.A. 2000, c. J-2.

In denying the application, he wrote: 70 An applicant for a stay must identify an action authorized by the judgment under appeal that it wants stayed. 71 This necessitates a search of the judgment under appeal for a stayable act. 72 Some orders or judgments do not have a dimension that makes a stay a suitable remedy, whether the appeal is to the Supreme Courtof Canada or an intermediate appeal court. This is because they do not authorize or compel a party to the proceedings or any third partyto do anything. If an order or judgment has this feature, a stay application is unnecessary.

There is nothing to stay. [26] Wakeling J.A. went on to emphasize that the provisions which empowered the Court of Appeal to impose a stay do notcontain any language that could reasonably be construed to justify suspending the precedential effect of the decision (para. 111), and thatthe relief sought was totally inconsistent with the common law doctrine of precedent or stare decisis (para. 114).

Although the decisionwas governed by s. 65.1 of the Supreme Court Act, and s. 8 of the Judicature Act, its rationale is stated to apply to stays pending appealgenerally, “whether the appeal is to the Supreme Court of Canada or an intermediate appeal court” (para. 72). [27] In reply to this argument, the Director submits that she is not presently seeking a stay of the precedential effect of theDecision, but rather seeks a stay of the finding that the proceedings respecting the Applicant were rendered unfair by the absence of theevidence.

A similar argument was addressed by Khullar J.A. (as she then was, in Chambers) in Denis v Sauvageau, 2022 ABCA 166: 15 A stay of proceedings or enforcement of a decision “pending an appeal”, is designed to freeze or stop certain consequences of thedecision until the appeal is decided: Alberta Energy Regulator v Grant Thornton Limited, 2017 ABCA 278 at paras 58-59. It is notdesigned to neutralize or reverse the decision itself pending the outcome of the appeal. 16 So, in this case, Mr. Denis may apply to stay a consequence of the finding of contempt, namely the sanction and costs part of theproceeding.

However, this Court cannot generally stay an actual decision, such as a finding of contempt. Whether that finding stands ornot will be determined in the appeal proper. Clearly, this is what r 14.48(

b) contemplates when it refers to “stay proceedings” or“enforcement of a decision”.

Even if in some circumstances it might be possible or appropriate to stay a decision, rather than theconsequences of the decision, those circumstances do not arise in this case... [28] Other cases addressing this general subject area include Noscenco v Bagayeva, 2015 ABCA 266 at para. 7, Blass v Universityof Regina Faculty Association, 2011 SKCA 48 at para. 7, and Saskatchewan Government and General Employees' Union vSaskatchewan (Environment), 2017 SKCA 31 at paras. 25-26. [29] Against these authorities, the Director relies upon Morton v Canada (Minister of Fisheries and Oceans), 2015 FC 575 atparas. 101-105, where Rennie J. granted a “short suspension of judgment” in the context of a decision which declared certain conditionsof a fishing license to be ultra vires.

This suspension of judgment was granted due to the potential effect of the decision upon otherfishing licenses.

In support of that order, Rennie J. relied upon Canada (Attorney General) v Bedford, 2013 SCC 272 at paras. 166-169which dealt with the suspension of a declaration of invalidity of legislation pursuant to such foundational cases as Reference reManitoba Language Rights, (SCC), [1985] 1 SCR 721 and Schachter v Canada, (SCC), [1992] 2S.C.R. 679. [30] I am not aware of any legal authority in Alberta for the issuance of a “suspension of judgment” comparable to that issued inMorton, and in my view, the use of such an order to stay the precedential effect of a decision pending an appeal would be contrary to theaforementioned decisions of the Court of Appeal.

Such an order is not comparable to suspending a declaration of invalidity of legislationand consequently derives only indirect or analogous support from such decisions as Bedford. [31] I note that in the above passage from Denis, Khullar J.A. allowed that “it might be possible or appropriate to stay a decision,

rather than the consequences of the decision” in some future case. Further, as Smith J.A. noted in Bessette v British Columbia (AttorneyGeneral), 2018 BCCA 59 at paras. 20-23, the restrictive approach adopted by Wakeling J.A. in Grant Thornton is arguably contrary tothat adopted by Rothstein J. in Baier v Alberta, 2006 SCC 38 at paras. 12-13.[1] But even under the more expansive approach in Baier,an interim order may only be issued to preserve the rights and interests of the parties to the appeal in order to preserve the efficacy of theappellant’s right of appeal.

There is no authority which suggests that a stay pending appeal may be granted for the purpose ofstrengthening the appellant’s legal arguments against unrelated parties in separate legal proceedings.

That result may only be achieved bya successful appeal or by the enactment of new legislation. [32] If I am wrong in my conclusion that a stay pending appeal is not available to the Director, I find that the Director has notsatisfied the irreparable harm or balance of convenience requirements of the tripartite test in RJR-MacDonald Inc v Canada (AttorneyGeneral), (SCC), [1994] 1 SCR 311 for the following reasons. [33] Firstly, the evidence of both parties confirms that the APIS portal is already capable of disclosing a large volume of video andaudio files (50 Gb per case), and that video recordings or a statement as to their non-existence were provided in 9 out of 12 cases dealtwith by the Gunn Law Office in the month following the release of the Decision.

In one of those cases, the video file produced throughthe APIS portal respecting the entire interaction with the recipient, including audio, was 1.15 Gb. Statements in the Director’s Affidavitto the effect that “the present capability will not be sufficient to allow for uploads of audio and video recordings on any files involvinglarge files of video” (para. 14(c)) and related statements respecting a supposed inability on the part of law enforcement to produce suchmaterials (e.g. paras. 15(

h) final sentence and 15(

j) second sentence) are flatly contradicted by this evidence. [34] Further, contrary to the advice received by the Director as summarized at para. 8 of her Affidavit, the Decision does not holdthat the NAP must be automatically cancelled in every case where no existing video or audio recordings have been produced. TheDecision was fact-specific. It turned upon, among other things, the fact that no explanation or justification for the lack of production hadbeen provided by either the Director or the police. Instead, the police had simply ignored the Applicant’s production request.

TheAdjudicator had then dismissed the Applicant’s complaint on this point in brief reasons which did not grapple with the substance of theconcerns it raised. In any future case where the production of any such evidence is truly impossible or impractical, an explanation couldbe provided by the police or the Director, and its merits assessed by the adjudicator in light of such considerations as the significance ofthe absent evidence to the matters at issue. VII. Conclusions [35] In conclusion, I find that the Director’s application must be denied.

This court’s authority “to stay proceedings or enforcementof a decision pending appeal” pursuant to r. 14.48 of the Alberta Rules of Court does not include an authority to suspend the precedentialeffect of a decision as a matter of stare decisis.

Even if such an authority did exist, a stay pending appeal cannot be used for the purposeof strengthening the appellant’s legal position in separate legal proceedings involving parties who are not presently before the court.Each of those proceedings must be assessed on their own merits. [36] Further, and in any event, the Director has failed to establish that the absence of a stay pending appeal would cause irreparableharm to the Director or to the general public, or that the balance of convenience favours a stay. [37] The application is denied. [38] The Director is, of course, at liberty to renew this application before the Court of Appeal.

Heard on the 6th day of September, 2023. Dated at the City of Edmonton, Alberta this 7th day of September, 2023. N. Whitling J.C.K.B.A. Appearances: Shaheer Meenai for the Respondent (Applicant) Shannon Gunn Emery for the Applicant (Respondent)