Legal Insights, Case Trends & Updates from Ziv Law Group
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Rory Ziv, B.A. (hons), L.L.B., L.L.M.
Brett Leon Van Damme, B.A., J.D
July 13, 2026
This Week’s Highlights
- New issues may be raised on judicial review in exceptional circumstances, pursuant to the discretion of the judicial review justice, with consideration to the following factors:
- 1. The courts should not interfere with issues that were at first instance entrusted, legislatively, to administrative decision-makers.
- 2. That applies with particular significance where the administrative decision-maker has specialized functions or expertise;
- 3. Where raising the issue for the first time on judicial review may unfairly prejudice the opposing party; and
- Where an initial test is conducted on an ‘Approved Instrument’ (AI), s. 88.11(2)(b) requires the Roadside Appeal to be conducted on an AI, not an ASD.
- The inverse is not true, s. 88.11(2)(a) states that where the initial test was performed on an ASD, the Roadside Appeal can be conducted on a different ASD, OR an AI.
1. NAP Review
Winchester-Bremner v Alberta (Director of SafeRoads), 2026 ABCA 186
This case considers the issue of introducing new issues on judicial review and the circumstances in which introducing new issues is permissible. The Alberta Court of Appeal found there are exceptional circumstances in which new issues may be raised on Judicial Review (see para 12). In this instance, even if the issue were permissible to be introduced at the judicial review stage, the evidentiary record was insufficient to determine the issue.
Facts
On June 5, 2023 at 11:28 am, the Recipient was the subject of a traffic stop. The attending officer administered a test using an ASD (approved screening device) and the Recipient blew a ‘fail’. Upon being provided an opportunity for a Roadside Appeal at 12:15pm, the Recipient blew another fail. Notably, no evidence is available on the record regarding whether the Appellant was notified in writing of the right to a Roadside Appeal or how such an appeal would be conducted prior to the officer administering the Roadside Appeal.
The issues raised on review were whether the Director provided the Recipient with complete records related to the ASD and whether the Recipient’s right to fairness was breached by relying on the provided records. The Adjudicator determined that the ASD records were authenticated by a statement from the officer declaring the truth of the contents, that the photographs had not been altered, that the manner of signification was sufficient and that it was not unfair to the Recipient to rely on them.
The Recipient sought further judicial review. Between the occurrence of the judicial review and the aforementioned initial review, the Alberta Court of Appeal issued the decision in Lausen v Alberta (Director of SafeRoads), 2023 ABCA 176, which was still under review at the time of the Recipient’s initial review. This decision provides that drivers must be properly informed to the right to a roadside appeal prior to the sample being taken. The Recipient sought to raise this issue for the first time at the JR stage, despite not having done so at the initial review. (Because Lausen was not yet law).
On JR, the Justice did not allow the Recipient to raise this new issue. They found that the Recipient could have raised the issue at the initial review while the decision was under reserve in the Court of Appeal as to preserve his right to do so at the JR.
The Recipient brought an appeal of the JR decision to the Alberta Court of Appeal arguing two errors:
- 1. It was an error to not allow the Recipient to raise the Lausen issue on review; and
- 2. It was an error to conduct a de novo hearing into the matter of authentication, rather than reviewing the adjudicator’s decision on the standard of reasonableness, and further incorrectly finding that the ASD records had been lawfully authenticated.
Ruling
The leading authority on whether new issues can be raised on judicial review of administrative decisions is Alberta (Information and Privacy Commissioner) v Alberta Teachers, 2011 SCC 61. The decision of Montpetit v Alberta (Director of SafeRoads), 2025 ABCA 154, applied the Alberta Teachers factors to the SafeRoads administrative scheme. This decision provides that, while permitting new issues to be raised on judicial review is exceptional, the judicial review justice has the discretion to do so with consideration of the following factors from Alberta Teachers:
- 1. The courts should not interfere with issues that were at first instance entrusted, legislatively, to administrative decision-makers;
- 2. That applies with particular significance where the administrative decision-maker has specialized functions or expertise;
- 3. Where raising the issue for the first time on judicial review may unfairly prejudice the opposing party; and
- 4. Where there is not an adequate evidentiary record to consider the issue.
While Montpetit was not decided at the time of JR, the Court found that the JR Justice did recognize he had discretion to consider the Lausen issue and even considered a separate decision summarizing the Alberta Teachers factors. Further, the JR Justice recognized they had an independent discretion to exercise, and was not bound by conclusions reached in other cases. The JR Justice also found it would not have been unethical to raise this issue before the initial adjudicator. Finally, they concluded that the evidentiary record before them provided insufficient evidence to consider and determine the issue.
The Court of Appeal recognized that the JR Justice’s conclusion makes sense, even if the exception above were to apply in this case, the record is insufficient to determine the issue on review. Where a party seeks to introduce a new issue on Judicial Review, the record be sufficient insofar that the new issue can be determined with the evidence available on the record.
Bzdega, C00476221A, June 15, 2026
This case is concerned about how Roadside Appeals are to be conducted when a Recipient provides their initial breath sample into an AI and not an ASD. In short, where the initial breath sample is provided into an AI, the Roadside Appeal must also be conducted with an AI. Where the initial breath sample is provided into an ASD, the Roadside Appeal can be conducted with either a different ASD or an AI.
Facts
On May 20, 2026 around 12:11pm, RCMP officers responded to a reported hit and run near Mini Thni, Alberta. The RCMP located the reported vehicle and initated a traffic stop. The ensuing investigation resulted in the police issuing a NAP to the Recipient under s. 88.1(1)(a), impaired operation, and s. 88.1(1)(b), BAC-Over (BAC greater than or equal to 0.080). The Recipient sought review on the ground found in s. 4(e)(vi) & 4(f)(ix), ‘that the Recipient immediately requested a roadside appeal under Section 88.11 of the TSA and the officer failed to provide the Recipient with an opportunity to undergo a test in accordance with Section 88.11 of the TSA’.
The main argument put forward by the Recipient is that, while the officer did provide a Roadside Appeal, it was done with an ASD, which does not count as a true Roadside Appeal when the initial breath test was conducted on an ‘Approved Instrument’ (AI). The Recipient relies on 88.11(2)(b) which indicates that where an appeal of a NAP is requested by a Recipient, the Recipient shall immediately “where the basis for issuing the [NAP] was an initial test on an [AI], provide a sample of breath that in the opinion of the peace officer is suitable for analysis on an [AI]’.
Police evidence confirms that the Recipient was arrested for impaired operation without an ASD test at the roadside. A breath demand was then made and the Recipient was transported to the detachment to provide breath samples into an AI. After the AI samples, the officer completed the NAP and issued it to the Recipient. The officer then provided the Recipient with the right to a Roadside Appeal, where the Recipient blew an appeal sample into an ASD.
Ruling
The Adjudicator found that an initial test was clearly performed in this case on the AI prior to the NAP being issued. The Adjudicator found that when the officer informed the Recipient they would be charged based on the AI sample results, he may have been speaking about the criminal charge, but found that the AI results, in part, formed the basis for issuing the NAP under both grounds. The Adjudicator found that the officer providing the Recipient the Roadside Appeal with an ASD after the initial test was conducted on an AI to be a mistake in law. Given that mistake, the officer failed to provide the Recipient with the opportunity to undergo the proper Roadside Appeal test pursuant to s. 88.11 of the TSA.
2. Lawyer’s Corner
Winchester-Bremner
This case is a reminder of how important it is to “argue everything”. If you believe you have a strong argument on one issue, do not neglect to put in the remaining issues as well.
Counsel cannot be faulted in this case; at the time of the initial hearing, the law had not been settled on several issues, including roadside appeal procedure. The one legal are that has room for expansion is “egregious unfairness” or Charter violations. Slowly, more adjudicators are granting remedies for Charter violations, but the full scope of this discretion is still applied far too cautiously.
Bzdega
Great result. A simple reminder, especially in administrative law, that the statute means everything. Read it, re-read it, if you think you know it, have it by your side anyway when analyzing a case. I suspect many lawyers or agents would have missed this issue.
Bonus Resources
- SafeRoads Alberta Portal: https://saferoads.alberta.ca
- Alberta Government – Impaired Driving Laws: https://www.alberta.ca/impaired-driving
- CanLII: Key Impaired Driving Cases in Alberta: https:www.canlii.org
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