Olnick v Alberta (Director of Saferoads), 2024 ABKB 84

Court of King’s Bench of Alberta Citation: Olnick v Alberta (Director of Saferoads), 2024 ABKB 84 Date: 20240214 Docket: 2203 01723 Registry: Edmonton Between: Matthew Olnick Applicant - and - Director of Saferoads Alberta Respondent _______________________________________________________ Endorsement of the Honourable Justice Peter Michalyshyn _______________________________________________________ Judicial Review from the decision of Adjudicator K.

Bokhari Dated the 04 th day of January, 2022 (Contravention #: A15927741O) [ 1 ] Matthew Olnick has applied for judicial review of the Adjudicator’s decision to uphold a Notice of Administrative Penalty (NAP) issued on December 4, 2021. Olnick pleads the Adjudicator was unreasonable when finding he had failed to establish the Director provided incomplete records to him 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(c)(ii) of the SafeRoads Alberta Regulation , Alta Reg 224/2020 ( SAR ).

At the time of Olnick’s request for a review of the NAP, these two sections 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, 2020, s 2(c)(iii) of SAR was changed. The new provision now requires the Director to disclose the expiry date of the last annual maintenance performed on any ASDs used as the basis for the issuance

of the NAP. That provision was not in effect on the date the NAP was issued on Olnick or on the date Olnick applied for review of the NAP. [ 2 ] On receipt of Olnick’s application for review, the Director disclosed the expiry date of the last annual maintenance performed on the ASDs used as the basis for the issuance of the NAP, but not the date of the last annual maintenance performed on those ASDs.

The Adjudicator found, on the basis of the Affidavit of Kerry Lynn Blake in the Technical Materials Library, that it was reasonable to infer that the date of the last annual maintenance performed on those ASDs was exactly one year prior to the expiry date of the last annual maintenance performed on those ASDs. [ 3 ] The Director has conceded that it failed to disclose to the Applicant the date of the last annual maintenance performed on the ASDs used as the basis for issuing the NAP to the Applicant on December 4, 2021. Based on that concession, I find that the Adjudicator’s decision was unreasonable.

The judicial review is therefore allowed. [ 4 ] With respect to remedy, s 4(e)(iii) of SAR 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 those sections. There is no discretion on an Adjudicator to impose a different remedy. [ 5 ] 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 December 4, 2021 be cancelled. [ 6 ] It is unnecessary to address other arguments raised by Olnick in the hearing of the matter on May 12, 2023. Heard on the 12 th day of May, 2023. Further written submissions of counsel June 12 and 13, 2023. Dated at the City of Edmonton, Alberta this 14 th day of February, 2024. Peter Michalyshyn J.C.K.B.A. Appearances: Y Rory Ziv for the Applicant Anastasia Yevtushenko for the Director