Millar v (Alberta) Director of SafeRoads, 2023 ABKB 55

Court of King’s Bench of Alberta Citation: Millar v (Alberta) Director of SafeRoads, 2023 ABKB 55 Date: 20230130 Docket: 2103 12569 Registry: Edmonton Between: Joshua Millar Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice R.W. Armstrong _______________________________________________________ I. Background [ 1 ] Late on the night of June 20, 2021, the Applicant, Joshua Millar, was in a serious motor vehicle accident. Mr.

Millar was travelling east on 114 Avenue at 46 Street in Edmonton, Alberta when he crossed into oncoming traffic. The police described the accident as a high-speed, head-on collision. [ 2 ] Police attended the scene of the accident and Mr. Millar was issued a Notice of Administrative Penalty (“NAP”) pursuant to s 88.1(1) of the Traffic Safety Act , RSA 2000, c T-6 (the “ TSA ”) on the basis that Mr. Millar operated a motor vehicle while his ability to do so was impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug. [ 3 ] On July 14, 2021, Mr.

Millar submitted his request for a review, having been granted leave to do so notwithstanding that his request was late. The review proceeded on July 22, 2021.

[ 4 ] At the review, Mr. Millar raised 4 grounds upon which the NAP ought to have been cancelled. First, he argued the NAP was invalid due to non-compliance with s 28 of the Provincial Administrative Penalties Act , SA 2020, c P-30.8 (“ PAPA ”) and that an invalid NAP could not have been properly served. Second, Mr. Millar argued that the evidence did not support a finding that he operated a motor vehicle while his ability to do so was impaired to any degree by alcohol or a drug. According to Mr. Millar, there was no evidence of alcohol in Mr. Millar’s body. Third, Mr.

Millar argued that his s 8 and 9 Charter rights were breached. Finally, Mr. Millar argued the NAP ought to be cancelled because he did not receive disclosure as required by s 2(

h) of the SafeRoads Alberta Regulation , Alta Reg 224/2020 (the “ Regulation ”). Specifically, Mr. Millar argued that the alcohol concentrations in the samples of blood that were taken from him following the accident ought to have been disclosed to him. [ 5 ] On August 6, 2021, the Adjudicator confirmed the NAP and issued written reasons for the decision. Mr. Millar now seeks judicial review of that decision. II. The Adjudicator’s Decision [ 6 ] The Adjudicator provided a brief account of the events leading up to the issuance of the NAP.

The Adjudicator then went on to the relevant grounds in the Regulation upon which an NAP may be cancelled on review. At para 3 of the decision, the Adjudicator said: This Review raises the following grounds: a.

Section 4(e)(ii): that a NAP was not served on the Recipient [Mr. Millar]; b.

Section 4(e)(iii): that the Director did not provide complete records to the Recipient as required by

Section 12 of PAPA ; and c.

Section 4(e)(iv): that the Recipient’s ability to operate a motor vehicle was not impaired to any degree by alcohol or a drug or a combination of alcohol and a drug. [ 7 ] With respect to the Charter issues raised by Mr. Millar, the Adjudicator noted a lack of jurisdiction to find Charter breaches and grant Charter remedies. The Charter arguments were, however, considered by the Adjudicator in relation to the grounds for cancellation of the NAP raised by Mr. Millar as well as part of the assessment of the overarching duty of fairness owed to Mr.

Millar. [ 8 ] The Adjudicator found that the NAP was properly served on Mr. Millar. Despite there being a discrepancy between the date on the paper NAP given to Mr. Miller and the date on the Administrative Penalty Information System (“APIS”), the Adjudicator held that the discrepancy did not impact Mr. Millar’s right to fair notice of the matter in issue.

At para 9 of the decision, the Adjudicator said: Although Counsel for the Recipient argues the NAP consists of two parts, that being the paper NAP and the entry on APIS, the reason for specifying the date of occurrence is to ensure the procedural fairness requirement that a recipient receives fair notice of the matter in issue. The Recipient has not convinced me that the police were talking about a different occurrence on a different day entirely, of which the Recipient was unaware.

On a balance of probabilities, I am satisfied that the paper NAP served to the Recipient, effectively notified the Recipient of the date of the relevant events in question. The Recipient has not satisfied me that he was not served a copy of the NAP at the relevant time. The Recipient has not proven this ground to cancel. [ 9 ] Dealing with the second ground, the Adjudicator noted that in addition to receiving the NAP, Mr. Millar was arrested for impaired driving. A demand to provide blood samples was issued, he complied with that demand and the police took the samples. Mr.

Millar was then released pursuant to an “Appearance notice for impaired driving with further charges pending results.” [ 10 ] The Adjudicator determined that the blood samples and the results of any tests conducted on those samples related to potential further criminal charges and not to the issuance of the NAP. Accordingly, the Adjudicator found that the blood test results were not factually related to the provincial sanction and therefore did not have to be disclosed pursuant to s 12 of PAPA . [ 11 ] The Adjudicator then went on to consider Mr.

Millar’s argument that his ability to operate a motor vehicle was not impaired to any degree by alcohol or a drug or a combination of alcohol and a drug. The Adjudicator summarized the evidence of impairment which included a strong smell of alcohol on Mr. Millar, that Mr. Millar was slurring his words and had difficulty following instructions issued by police, as well as the serious accident caused by Mr. Millar veering into oncoming traffic. The Adjudicator rejected Mr.

Millar’s contention that the slurring of words and difficulty following instructions were due to his injuries as there was no evidence adduced to support it. At para 19 the Adjudicator concluded: I find on a balance of probabilities, the Recipient has not satisfied me that his ability to operate a motor vehicle was not impaired to any degree by alcohol, drug or a combination thereof at the time of operation. [ 12 ] Finally, the Adjudicator considered whether Mr. Millar’s right to fairness was breached.

At para 23 of the decision, the Adjudicator said: There is no evidence before me that would cause me to believe that the officer’s investigation was not carried out in good faith. The officer attended a collision where EMS and fire personnel stated the Recipient smelled of alcohol and showed extensive signs of impairment. The officer noted his own observations of slurring words and struggling to follow directions.

The officer was mindful of the Recipient’s wellbeing and issued a blood demand rather than a breath demand “as per his injuries.” In the case before me, I find nothing to suggest the officer’s conduct was inappropriate and it certainly did not rise to a level of egregiousness that would outweigh the public interest in traffic and public safety. [ 13 ] Having found no basis upon which the NAP could be cancelled, the Adjudicator confirmed the NAP.

III.

Standard of Review [ 14 ] Pursuant to s 24(3) of PAPA , the standard of review applicable on an application for judicial review of a decision of an adjudicator is reasonableness. [ 15 ] The reasonableness standard of review has consistently been applied on applications for judicial review of the decisions of SafeRoads adjudicators: see for example: Wildman v Alberta (Director of SafeRoads) , 2022 ABKB 756 at para 8 ; Weinkauf v Alberta (Director of SafeRoads) , 2022 ABKB 752 at para 25 ; Bettenson-Miller v Alberta (Director of SafeRoads) , 2022 ABKB 693 at para 4 ; Roh v Alberta (Director of SafeRoads) , 2022 ABQB 586 at para 23 ; Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 at para 26 ; and Rose v Alberta (Director of SafeRoads) , 2022 ABQB 297 at para 35 . [ 16 ] I am satisfied that the applicable standard of review is reasonableness.

The Supreme Court of Canada described the role of the court when conducting a review on the reasonableness standard in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at para 15 : In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified, What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place.

IV. Issues [ 17 ] The issues raised in this application for judicial review are: A. Did the Adjudicator make unreasonable and unsupportable findings of fact? B. Did the Adjudicator properly discharge the duty of fairness owed to Mr. Millar? C. Was the Adjudicator’s decision that the NAP complied with s 28 of PAPA and was properly served on Mr. Millar unreasonable? D. Did the Adjudicator provide sufficient reasons for the decision rendered? V. Analysis A. Did the Adjudicator make unreasonable and unsupportable findings of fact? [ 18 ] Mr.

Millar argues that the Adjudicator ought not have relied on the affidavit sworn by Kerry Lynne Blake found in the SafeRoads Technical Materials Library (the “Blake Affidavit”) because she is not licensed to practice medicine and because there was no evidence regarding Mr. Millar’s blood alcohol level that could be compared to the indicia set out in the Blake Affidavit. Finally, Mr.

Millar argues that the Adjudicator’s conclusion that he was operating a motor vehicle while impaired by alcohol was unsupported by any facts. [ 19 ] In response, the Director argues that the Adjudicator could rely on the Blake Affidavit because it formed part of the SafeRoads Technical Material Library and Ms. Blake was offering her expert technical opinion on blood alcohol levels and their effect on impairment.

The Director also argued that it was reasonable for the Adjudicator to rely on the Blake Affidavit as evidence of some of the indicia of impairment that exist when an individual is intoxicated, that is when they have a blood alcohol content more than 150 mg%. In response to Mr. Millar’s argument that the finding he was operating a motor vehicle while impaired by alcohol was unsupported by any facts, the Director argues that the Adjudicator did justify the findings in the reasons for decision with reference to the specific evidence that supported the findings.

According to the Director, the Adjudicator’s decision was therefore intelligible, transparent, and supported by the record. [ 20 ] Dealing first with Mr. Millar’s submissions regarding the Blake Affidavit, it is true that the Adjudicator relied on it as part of the basis to conclude that Mr. Millar failed to establish that his ability to operate a motor vehicle was not impaired.

At para 19 of the decision, the Adjudicator said: The Recipient did not dispute that he smelled “strongly of alcohol” as police reported and did not explain where this odour came from such that I would be convinced it was not from consumption. Additional to the unexplained collision, I also have the police evidence that the Recipient was “slurring his words and struggling to follow directions.” The Recipient did not provide any medical evidence or documentation for the Review to support this claim that his injuries may have caused these signs.

The SafeRoads Library document M-5 – Impairment and Effects of Driving Ability (exhibit F of E1 Affidavit of Kerry Lynne Blake) states, “At higher BACs (150 mg% and above), the term “intoxication” better describes the situation, where motor dysfunction is evidence such as slurred speech, loss of balance and staggering.

At these levels people begin to make gross driving errors, such as weaving, driving on the wrong side of the road, driving at night with no lights, and driving too fast or too slow.” Although there is no specific mention of loss of balance or staggering, there is the evidence of an unexplained collision and a strong smell of alcohol coming from the Recipient who was slurring his words and struggling to follow directions.

Looking at the evidence as a whole, I find on a balance of probabilities, the Recipient has not satisfied me that his ability to operate a motor vehicle was not impaired to any degree by alcohol, drug or a combination thereof at the time of operation.

[ 21 ] Mr. Millar claims that the Adjudicator was not entitled to rely on the information contained in the Blake Affidavit because it consists of medical information, and she is not qualified to provide medical information. Mr.

Millar argues that the contents of the Blake affidavit are medical in nature and that it purports to be medical information because it is found under the “Medical” heading in the SafeRoads Technical Materials Library. [ 22 ] The Blake Affidavit and other information contained in the SafeRoads Technical Materials Library are admissible in SafeRoads Review proceedings pursuant to s 4 of PAPA which states: The Director may, in accordance with the regulations or the regulations under a prescribed enactment, establish and maintain publicly accessible scientific, technical or medical information and documents in any format, which may be relied on as evidence in a review. [ 23 ] Medical information is defined in s 1(

i) of PAPA as “... information provided or created by a person who is licensed or authorized by law to practise medicine in the place where the person practices.” [ 24 ] Mr. Millar’s argument is based on the placement of the Blake Affidavit under the “Medical” heading of the SafeRoads Technical Materials Library rather than a considered evaluation of the contents of the Affidavit. According to Mr. Millar’s reasoning, placement of the Blake Affidavit under the “Medical” heading precludes the information in that affidavit from being considered anything other than medical information. [ 25 ] Mr.

Millar further argues that the content of the Blake Affidavit and more specifically, the information in the exhibit appended to the Blake Affidavit titled “Impairment and Effects of Driving Ability,” is medical in nature. According to Mr. Millar, the Adjudicator cannot rely on the information in the Blake Affidavit that is of a medical nature because Ms. Blake is not qualified to give opinion evidence about medical matters. [ 26 ] I do not accept Mr.

Millar’s argument that the Adjudicator was not entitled to rely on the Blake Affidavit. [ 27 ] First, the fact that the Blake Affidavit was located under the “Medical” heading in the SafeRoads Technical Materials Library is not determinative of anything. The Technical Materials Library is loosely organized under several headings including “Operational Procedures,” “Blood Urinalysis,” “Medical,” “Expert Evidence,” and “Other.” It is the substance of the materials, not their placement in the library, which determines their proper characterization. [ 28 ] As conceded by Mr.

Millar, not all the documents under the “Medical” heading are medical information. Document M-2 is not medical information as it deals with the effect of mouth alcohol on an approved screening device. It is more properly characterized as technical information. Its validity and admissibility as technical information is not affected by its placement in the SafeRoads Technical Materials Library. Similarly, if the Blake Affidavit is properly characterized as technical information, its location in the SafeRoads Technical Materials Library does not affect that characterization. [ 29 ] Second, while I agree that Ms.

Blake is not qualified to provide medical information as that term is defined in PAPA , she is qualified to provide technical information on the effects of alcohol on driving ability. [ 30 ] Ms. Blake has been accepted as an expert in criminal impaired driving matters. In R v Bookout , 2017 SKQB 41 , the court considered a

summary conviction appeal where the issue was the independence of the Crown’s expert witness, Ms. Blake. The court described Ms. Blake and her qualifications as follows: Ms. Blake is a forensic alcohol specialist employed by the Royal Canadian Mounted Police [RCMP] at the National Forensic Laboratory Services in Edmonton, Alberta. She has been so employed since 1979 (although she took several years off to raise children from 1991- 1997). Her curriculum vitae was filed by consent at trial.

It discloses that she has a Bachelor of Science (Honours) degree in biochemistry from the University of Guelph and has taken extensive courses and been involved in significant research projects. She has testified as an expert on numerous occasions in the Court of Queen’s Bench for Saskatchewan, the Court of Queen’s Bench of Alberta, the Provincial Court of Saskatchewan, the Provincial Court of Alberta, the Supreme Court of the Yukon Territories and the Supreme Court of the Northwest Territories.

She has been qualified to provide opinion evidence in several alcohol related areas including “the absorption, distribution and elimination of alcohol from the human body.” [ 31 ] Ultimately, at para 22 of the decision, the court determined that Ms. Blake was “eminently qualified” to give opinion evidence in those specified areas. [ 32 ] In R v Fauolo , 2016 ABPC 192 , Ms.

Blake was qualified to give expert opinion evidence on the “...absorption, distribution and elimination of alcohol from the human body, the effect of alcohol on the human body, and the effect of alcohol consumption on the ability of an individual to operate a motor vehicle.” In R v Diep , 2005 ABQB 65 , Ms.

Blake was accepted by both the Crown and the defence as well-qualified to speak to absorption, distribution, and elimination of alcohol in the body and its effects. [ 33 ] Being a licensed physician is not a pre-requisite for having the necessary education, training, and expertise to give opinion evidence with respect to the effects of alcohol on the human body. Ms. Blake has repeatedly been qualified as an expert to give opinion evidence of the same nature as is found in the SafeRoads Technical Materials Library. I am satisfied that the content of the Blake Affidavit is technical information that Ms.

Blake is qualified to provide and is information upon which the Adjudicator is entitled to rely. [ 34 ] I am also satisfied that the Adjudicator’s reliance on the Blake Affidavit was reasonable. [ 35 ] Mr. Millar alleges that the Adjudicator improperly relied on the Blake Affidavit by referring to indicia of impairment in people with a blood alcohol concentration more than 150 mg% when the Adjudicator had no evidence of Mr. Millar’s actual blood alcohol concentration. In fact, what the Adjudicator did was go through the evidence from the first responders present at the scene of Mr.

Millar’s unexplained accident, including the smell of alcohol, Mr. Millar’s slurred speech and his difficulty following instructions. The Adjudicator then referenced the Blake Affidavit to confirm that these are all signs of impairment. Importantly, the Adjudicator also noted that Mr. Millar did not offer any evidence upon which an alternate explanation for the indicia of impairment could be based.

[ 36 ] At the Review, Mr. Millar bore the burden of proof to establish that his ability to operate a motor vehicle was not impaired by alcohol or drugs, or a combination of both. The Adjudicator’s reasons demonstrate a consideration of the evidence available at the Review and, with reference to the Blake Affidavit, a logical assessment of that evidence amounting to indicia of impairment. [ 37 ] At the Review and on Judicial Review, Mr. Millar raised several possible alternate explanations for the indicia of impairment; however, he adduced no evidence to support any of those alternate explanations.

While raising such alternate theories in the absence of evidence may be sufficient to raise a reasonable doubt of guilt in a criminal proceeding where the Crown bears the burden of proof, it is not sufficient to meet the burden on someone in Mr. Millar’s position who must establish, on a balance of probabilities, that he was not impaired at the time of the operation of the vehicle. [ 38 ] Under the circumstances, the Adjudicator’s findings of fact with respect to Mr. Millar were reasonable.

They were supported by the evidence that was properly before the Adjudicator, including the Blake Affidavit, and were not refuted by any evidence adduced on behalf of Mr. Millar. B. Did the Adjudicator discharge the duty of fairness owed to Mr. Millar? [ 39 ] Mr. Millar argues that the Adjudicator acted unfairly by relying on the Blake Affidavit without first inviting submission as to its use. Mr.

Millar relies on the case of Schwab v Alberta (Director of SafeRoads) , 2022 ABQB 244 ( “Schwab” ) in support of his argument. [ 40 ] In Schwab , the adjudicator used information about driving times obtained from Google Maps to assess the credibility of the applicant without telling the applicant or inviting submission from the applicant. On review, that was found to be a breach of the principles of natural justice and procedural fairness.

At para 13 of the decision, the reviewing justice said: If the Adjudicator intended to rely on information other than what was provided for the review, the Adjudicator had a duty to (1) inform the Applicant of that information, and (2) give the Applicant an opportunity to argue the admissibility of the information as evidence, and the weight it should be given. [ 41 ] Relying on extrinsic information such as Google Maps is fundamentally different than relying on evidence that forms part of the record or that is admissible in a review pursuant to PAPA .

As set out above, s 4 of PAPA explicitly permits the Director to establish the Technical Materials Library and to rely on the evidence contained in the Technical Materials Library in a review. [ 42 ] Mr. Millar had notice that the Adjudicator may rely on the information in the Technical Materials Library by virtue of s 4 of PAPA . Furthermore, the evidence was available to Mr. Millar in advance of the review as the Technical Materials Library and all the information contained in it is publicly available. [ 43 ] Mr. Millar had notice that whether he was impaired was a key issue on review.

He was notified of that by virtue of the NAP that was issued to him, and which alleged that there were reasonable grounds to believe that he operated a motor vehicle while his ability to do so was impaired to any degree by alcohol or drugs or a combination of alcohol and drugs. Mr. Millar was aware of the existence of the evidence and its potential relevance. It was open to him to address it at the review if he chose to do so.

This is not a case where the Adjudicator relied on information not available to the recipient of a NAP at a review. [ 44 ] The Adjudicator’s duty of fairness did not require the Adjudicator to specifically refer to the Technical Materials Library at the hearing before relying on the materials. PAPA expressly authorizes the Adjudicator to rely on the material in the Technical Materials Library. As Mr.

Millar had access to the information relied on by the Adjudicator prior to the review and as he had notice that the information may be relevant on review given that one of the issues on review was whether he was impaired, Mr. Millar’s right to fairness was not breached. C. Was the Adjudicator’s decision that the NAP complied with s 28 of PAPA and was properly served on Mr. Millar unreasonable? [ 45 ] Mr. Millar argues that for a NAP to be served, it must first be valid.

He alleges the NAP issued to him was not valid because the date on the paper NAP handed to him differed from the date entered on APIS, the online Administrative Penalty Information System. The date on the paper part of the NAP was June 20, 2021, and the date entered into APIS was June 21, 2021. [ 46 ] Mr. Millar relies on two decisions from SafeRoads adjudicators where the adjudicators determined that an incorrect date on a NAP rendered that NAP invalid. In Greaves (Re) , 2021 ABSRA 63 , the incident in question occurred on January 9, 2021.

The NAP indicated an “obviously incorrect” date of November 11, 2021: see para 6. The seizure notice indicated a third incorrect date of January 8, 2021. In assessing the effect of the errors in the dates, the adjudicator in Greaves said at para 9: With respect to

section 28(c), I find that the clearly incorrect date on the Recipient’s NAP does affect the validity of the notice. While there is no mechanism in legislation that allows an adjudicator to cancel the notice on the ground of it being invalid, I find that for a NAP to be considered served on a recipient, that NAP must first be valid. If I find the NAP issued to the Recipient is not valid because it does not comply with

section 28 of PAPA , I find it reasonable to conclude that no valid NAP was served. In this case, I find the NAP that was issued to the Recipient is not valid and therefore a NAP was not served on the Recipient. [ 47 ] A SafeRoads adjudicator reached a similar result in Finstad (Re) , 2021 ABSRA 380 . In Finstad , the NAP was issued to the recipient on April 24, 2021. The date on both the paper copy of the NAP and in APIS was April 25, 2021. The date in APIS was originally entered correctly but then was changed from April 24, 2021 to April 25, 2021 to match the paper NAP: see para 8.

The Adjudicator said, at para 9: After considering the evidence in its totality, I agree with Counsel that the date on the original NAP is a clear error. I find that the correct

occurrence date was April 24, 2021 and therefore the NAP should have been dated April 24, 2021. I find that in order to have beenserved with a NAP, the NAP must be valid and comply with

Section 28 of PAPA. In this case, I find the NAP does not comply withSection 28(

c) of PAPA due t the erroneous date. Therefore, I find a valid NAP was not served on the Recipient. [48] In the present case, the accident that immediately preceded the issuance of the NAP to Mr. Millar occurred just beforemidnight on June 20, 2021. The occurrence time was 22:30. The vehicle seizure occurred ay 00:36 on June 21, 2021. The eventssurrounding the issuance of the NAP started on June 20, 2021 but did not finish until June 21, 2021.

The circumstances of this case arefundamentally different than the circumstances in Greaves and Finstad. [49] In Greaves, the date was clearly wrong and bore no relationship to the actual date of the events. The date on the NAP was 11months off the actual date of the occurrence. This is a substantial and material difference affecting the validity of the NAP.

The recipientwould have no basis upon which to connect the NAP to the events giving rise to the issuance of the NAP due to the disparity in the dates. [50] Another SafeRoads adjudicator distinguished the Greaves decision in a case with facts much more closely resembling thefacts of this case. In Magdy (Re), 2022 ABSRA 16, the traffic stop in question occurred at 11:57 p.m. on December 3, 2021. The NAPindicated a contravention date and time of December 4, 2021at 2:04 a.m. At para 7, the adjudicator in Magdy said: I have reviewed Greaves (Re) and note that I am not bound by previous SafeRoads decisions.

Greaves (Re) is also distinguishable: inGreaves (Re), there was a discrepancy of 11 months in the occurrence date, compared to an alleged discrepancy of two hours in the casebefore me.

The adjudicator in Greaves (Re) also noted irregularities in the officer’s notes that were substantive in nature and createdambiguity as to the identity of who was driving the vehicle in question; no such ambiguity arises in the matter before me. [51] Greaves and Finstad were also distinguished in Gardippe (Re), 2021 ABSRA 875 which was a case like the present onewhere the traffic stop occurred just before midnight and the NAP records alternately referred to the date immediately preceding midnightand the date immediately following midnight.

At para 15, the adjudicator in Gardippe said: As I found the NAP was valid, I find the Recipient had a reasonable opportunity to respond to the issue. I find it reasonable as well thatthe Recipient would be aware of and informed of the date the contravention occurred by having been served the NAP at the relevanttime. I do not find that the date on the Driver Copy is an erroneous date, as is found in the decisions cited by Counsel for the Review. InFinstad, the date entered was incorrect altogether (August 24 instead of August 25), and there was no indication that a cross over fromnight to morning was a factor.

In Greaves, again there was an obvious entering of incorrect date wherein the dates of November 11,January 8 and January 9 were all found within the NAP and seizure notice and were accompanied by other typographical errors, callinginto question the reliability of the whole of the evidence. This is not the case here. [52] While I am not bound by any SafeRoads adjudicator decisions, I find the reasoning in Gardippe persuasive given thesimilarity to the facts of this case. [53] In the present case, there was no ambiguity created by the date on the paper NAP and the date entered into APIS. The eventthat Mr.

Millar had to respond to was not in any way obscured by the fact that the date on the paper NAP was June 20 and the date inAPIS was June 21, 2021. The dates are different on the paper NAP and in APIS simply because of the cross over from night to morning.The difference was a matter of approximately two hours between 10:30 p.m. on June 20, 2021 and 12:36 a.m. on June 21, 2021. The dateon the paper copy of he NAP that Mr. Millar received was correct.

For these reasons, the conclusions reached by the Adjudicator at para9 of the decision that “... the paper NAP served to the Recipient, effectively notified the Recipient of the date of the relevant events inquestion...” and that “[t]he Recipient has not proven this ground to cancel” were reasonable. D. Did the Adjudicator provide sufficient reasons for the decision rendered? [54] An administrative decision maker’s decision must be transparent, intelligible, and justified: Vavilov at para 15.

Later in thatdecision, at paras 127-128, the Supreme Court of Canada set out the standard expected of an administrative decision maker’s reasons: The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for thecentral issues and concerns raised by the parties.

The principle that the individual or individuals affected by a decision should have theopportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: Baker[Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817], at para. 28. The concept ofresponsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makersdemonstrate that they have actually listened to the parties.

Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis”(Newfoundland Nurses [Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62],at para. 25), or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” (para. 16).To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlesslycompromise important values such as efficiency and access to justice.

However, a decision maker’s failure to meaningful grapple withkey issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive tothe matter before it. In addition to assuring parties that their concerns have been heard, the process of drafting reasons with care andattention can alert the decision maker to inadvertent gaps and other flaws in its reasoning: Baker, at para. 39. [55] The main complaint levied by Mr. Millar against the Adjudicator is that the Adjudicator did not address a series of caseauthorities he relied on in argument.

More specifically, Mr. Millar argues that the Adjudicator did not address the authorities he relied onin relation to the smell of alcohol as an indicator of alcohol consumption, the authorities relating to an accident causing indicia ofimpairment and the authorities relating to the validity of the NAP. [56] While the Adjudicator did not specifically address each of the authorities referred to by Mr. Millar, the reasons for decision dodemonstrate that the Adjudicator was alive to the issues and dealt with those issues in a meaningful way.

[ 57 ] With respect to the issue of the smell of alcohol, the cases Mr. Millar relied on were criminal law cases. The criminal law is fundamentally different from the administrative law that applies to a SafeRoads review in terms of the party bearing the burden of proof and the standard of proof. In criminal law cases, the Crown bears the burden to prove a charge against an accused beyond a reasonable doubt. At a SafeRoads review, the burden is on the recipient of the NAP to demonstrate a ground to cancel the NAP on a balance of probabilities. The criminal law cases relied on by Mr.

Millar have little or no relevance in these proceedings and the Adjudicator did not have to refer to and distinguish each case. [ 58 ] Mr. Millar’s main submission regarding the smell of alcohol was that the smell could have come from alcohol in the car or something other than consumption by him. The Adjudicator summarized the argument in this regard at para 18 of the decision and then went on to deal with it, noting that Mr. Millar had not led any evidence in support of his theory that the smell of alcohol could have come from somewhere other than consumption.

In a criminal case, where the burden is on the prosecution to prove consumption beyond a reasonable doubt, raising alternate theories of consumption without evidence to support them may raise a reasonable doubt. In the context of the SafeRoads review where Mr. Millar bears the burden of establishing that he was not impaired, some evidence to support his theory is necessary. The Adjudicator’s reasons demonstrate that Mr. Millar’s arguments were dismissed due to the dearth of supporting evidence. The Adjudicator’s reasons are sufficient to demonstrate that the Adjudicator heard Mr.

Millar’s arguments and considered them and to explain why the arguments were dismissed. [ 59 ] With respect to the cases regarding an accident causing indicia of impairment, again the cases relied on were based on criminal law principles whereby the prosecutor bears the burden of establishing impairment beyond a reasonable doubt. Where Mr. Millar bears the burden and wishes to rely on a theory such as the accident causing his indicia of impairment, there must be some evidentiary foundation for that. In this case there was none. At para 19 of the Adjudicator’s decision, the Adjudicator explained why Mr.

Millar’s argument was rejected: “The Recipient did not provide any medical evidence or documentation for the Review to support the claim that his injuries may have caused these signs [of impairment].” The Adjudicator’s reasons were directly responsive to Mr. Millar’s arguments and provided a clear and cogent reason for the dismissal of those arguments. [ 60 ] With respect to the validity of the NAP, the decisions relied on by Mr. Millar were SafeRoads adjudicator decisions. They were not binding on the Adjudicator and therefore there was no requirement that the Adjudicator distinguish those decisions.

While it may have been preferable for the Adjudicator to state that explicitly, the reasons, when viewed as a whole, demonstrate that the Adjudicator was alive to the issues argued by Mr. Millar in relation to the validity of the NAP. The Adjudicator presented a detailed review of the timing of the events and the issuance of the NAP and the seizure notice. The conclusion that the NAP was valid was based on that evidence and the Adjudicator’s finding that the NAP that Mr. Millar received did, in fact, have the correct date on it.

While the Adjudicator did not specifically reference the Greaves and Finstad cases, at para 9 the Adjudicator did say: “The Recipient has not convinced me that the police were talking about a different occurrence on a different day entirely, of which the Recipient was unaware.” The Adjudicators reasons, including the detailed review of the timeline, demonstrate why she did not accept the arguments that had been successful in the Greaves and Finstad cases. [ 61 ] While the Adjudicator’s reasons cannot be described as exhaustive, they are transparent, intelligible, and justified.

The reasons demonstrate that the Adjudicator was aware of and understood Mr. Millar’s arguments and the reasons are sufficient to demonstrate why those arguments were rejected. That is sufficient to discharge the Adjudicator’s duty of procedural fairness in relation to providing reasons for the decision rendered.

Summary and Conclusion [ 62 ] The Adjudicator’s findings of fact relating to impairment were reasonable and supported by the evidence that included an unexplained accident, a strong smell of alcohol coming from Mr. Millar and other indicia of impairment such as slurred speech and difficulty following directions. [ 63 ] The Blake Affidavit was properly before the Adjudicator as admissible evidence and Mr. Millar had knowledge of and access to that evidence in advance of the review. The Adjudicator’s reliance on the Blake Affidavit did not breach any duty of fairness owed to Mr. Millar. [ 64 ] The NAP served on Mr.

Millar displayed he correct occurrence date of June 20, 2021. The events leading up to the issuance of the NAP occurred close to midnight which accounted for the entry of the date June 21, 2021 in APIS. Under these circumstances, the NAP was valid, and it was properly served on Mr. Millar. [ 65 ] The reasons for decision provided by the Adjudicator were sufficient to discharge the duty of fairness owed to Mr. Millar. [ 66 ] Based on the foregoing, I find nothing unreasonable in the Adjudicator’s decision and I find that the Adjudicator discharged the duty of fairness owed to Mr. Millar.

The application for judicial review is therefore dismissed. Heard on the 8 th day of December 2022. Dated at the City of Edmonton, Alberta this 30 th day of January 2023.

R.W. Armstrong J.C.K.B.A. Appearances: Adam L. Klassen Gunn Law Group for the Applicant Jas Sadhra Emery Jamieson LLP for the Respondent