Lewis v. Alberta (Transportation Safety Board) et al., 2014 ABQB 412

• Judge: Sullivan, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 11, 2014
• Citations: 2014 ABQB 412;(2014), 592 A.R. 162 (QB)

Lewis v. Alta. (2014), 592 A.R. 162 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JL.064

Gordon Steven Lewis (applicant) v. Alberta (Transportation Safety Board) and Registrar of Motor Vehicle Services (respondents)

(1303 14481; 2014 ABQB 412)

Indexed As: Lewis v. Alberta (Transportation Safety Board) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Sullivan, J.

July 7, 2014.

Summary:

Lewis was issued an administrative licence suspension on the ground that he failed or refused to comply with an approved screening device demand. The suspension was confirmed by the Alberta Transportation Safety Board. Lewis applied for judicial review.

The Alberta Court of Queen's Bench allowed the application and remitted the matter to the Board for reconsideration.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - [See Motor Vehicles - Topic 7225.3 ].

Administrative Law - Topic 625

The hearing and decision - Evidence and proof - Credibility - [See Motor Vehicles - Topic 7240 ].

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - [See Motor Vehicles - Topic 7225.3 ].

Motor Vehicles - Topic 7225.3

Licensing and regulation of drivers - Licence - Suspension of - Administrative or summary suspension (incl. impaired driving incidents) - Lewis was issued an administrative licence suspension on the ground that he failed or refused to comply with an approved screening device (ASD) demand - The Alberta Transportation Safety Board confirmed the suspension - Lewis applied for judicial review, arguing that the Board failed to give full and fair consideration to the issues by not considering whether the ASD demand was made pursuant to s. 254(2)(b) of the Criminal Code (i.e., with a reasonable suspicion that Lewis was driving with alcohol in his body) - The Alberta Court of Queen's Bench noted that the Board referred to the fact that Lewis had admitted to drinking and was driving aggressively - While the Board did not expressly refer to these as grounds to reasonably suspect that Lewis was driving while impaired by alcohol, its reasoning demonstrated that it had considered the issue in accordance with its duty of fairness - In addition, its conclusion that the ASD demand was a fair and proportionate action on the part of the police officer was not patently unreasonable given the evidence of alcohol consumption - See paragraphs 51 to 55.

Motor Vehicles - Topic 7240

Licensing and regulation of drivers - Licence - Suspension of - Appeals and judicial review - Lewis was issued an administrative licence suspension (ALS) on the ground that he failed or refused to comply with an approved screening device demand - The Alberta Transportation Safety Board confirmed the suspension - The Alberta Court of Queen's Bench allowed Lewis' application for judicial review - The Board arbitrarily based its credibility finding and weighed the evidence based on what it reasoned was an inherent trustworthiness of police officers and the inherent dishonesty of people who appealed an ALS - The Board created an unfair burden on Lewis to rebut a presumption of honesty on the part of the officer, and the presumption that Lewis was dishonest - This flawed reasoning was particularly troubling in the context of an ALS appeal where the standard of proof was a balance of probabilities and the benefit of a "tie" went to the appellant - The level of detail in a police officer's notes did not necessarily mean that the detail was accurate or truthful - The Board's decision was manifestly unfair and patently unreasonable - See paragraphs 56 to 74.

Cases Noticed:

R. v. Haydl (2003), 58 W.C.B.(2d) 230 (Ont. C.J.), refd to. [para. 21].

Baker v. Transportation Safety Board (Alta.) (2004), 355 A.R. 144; 2004 ABQB 244, refd to. [para. 21].

Gonzalez v. Driver Control Board (Alta.) et al. (2001), 328 A.R. 111; 2001 ABQB 757, affd. (2003), 330 A.R. 262; 299 W.A.C. 262; 2003 ABCA 256, leave to appeal refused (2004), 330 N.R. 196 (S.C.C.), refd to. [paras. 31, 32].

Thomson v. Transportation and Safety Board (Alta.) - see Gonzalez v. Driver Control Board (Alta.) et al.

Lloyd v. Transportation Safety Board (Alta.) et al. (2012), 546 A.R. 116; 2012 ABQB 443, refd to. [para. 34].

Juneja et al. v. Registrar of Motor Vehicle Services (Alta.) (2008), 459 A.R. 348; 2008 ABQB 573, refd to. [para. 38].

Goold v. Alberta (Office of the Children's Advocate) (2011), 502 A.R. 298; 517 W.A.C. 298; 2011 ABCA 63, refd to. [para. 40].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 42].

Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720 et al. (2012), 437 N.R. 202; 539 A.R. 17; 561 W.A.C. 17; 2012 SCC 65, refd to. [para. 42].

Wright v. College and Association of Registered Nurses (Alta.) (2012), 536 A.R. 349; 559 W.A.C. 349; 2012 ABCA 267, refd to. [para. 43].

Foster v. Transportation and Safety Board (Alta.) (2006), 397 A.R. 82; 384 W.A.C. 82; 2006 ABCA 282, refd to. [para. 50].

Ryan v. Law Society of New Brunswick (2003), 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 50].

R. v. Ishmael (A.A.) (2012), 536 A.R. 229; 559 W.A.C. 229; 2012 ABCA 282, refd to. [para. 54].

R. v. Gilroy (1987), 79 A.R. 318; 3 M.V.R.(2d) 123 (C.A.), refd to. [para. 54].

R. v. Thomas (J.M.) (2008), 461 A.R. 216; 2008 ABQB 610, refd to. [para. 54].

R. v. Orcheski (G.S.) (2011), 517 A.R. 150; 2011 ABQB 280, refd to. [para. 54].

R. v. Chipchar (A.L.), [2009] A.R. Uned. 871; 2009 ABQB 562, refd to. [para. 54].

R. v. Veats (J.A.), [2014] A.R. Uned. 245; 2014 ABQB 203, refd to. [para. 54].

Transportation and Safety Board (Alta.) v. King, [2005] A.J. No. 849 (Q.B.), refd to. [para. 58].

Bond v. New Brunswick (Board of Management) (1992), 129 N.B.R.(2d) 149; 325 A.P.R. 149; 95 D.L.R.(4th) 733 (C.A.), leave to appeal refused (1993), 151 N.R. 398 (S.C.C.), refd to. [para. 60].

Sanchez et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 946; 2008 FC 1336, refd to. [para. 69].

Coitinho et al. v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 596; 2004 FC 1037, refd to. [para. 71].

Counsel:

Robert W. Hladun, Q.C., for the applicant;

Sarah Dolgoy, for the respondent, Registrar of Motor Vehicle Services;

Fiona N. Vance, for the respondent, Alberta Transportation and Safety Board.

This application for judicial review was heard on April 11, 2014, before Sullivan, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on July 7, 2014.