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
September 14, 2026
This Week’s Highlights
Cleary v Alberta (Director of SafeRoads), 2026 ABKB 662
- While in some circumstances serving the NAP can constitute proper written advice with regard to the Roadside Appeal, it is likely to be insufficient in situations where no oral advice was provided and the Recipient was not informed of the information on the Roadside Appeal form.
C00511055A – Dodds
- Where material discrepancies in evidence exist, decision makers may not rely on inferences to resolve the discrepancy. Where a review of the records in totality leaves an Adjudicator uncertain as to which ASD was used for a breath test, the Adjudicator cannot be satisfied that the Recipient was provided the required documents associated with said ASD.
1. NAP Review
Cleary v Alberta (Director of SafeRoads), 2026 ABKB 662
Facts
Mr. Cleary (The Recipient) was driving his motorcycle when a police officer pulled him over for an expired license plate. The officer formed a belief that the Recipient was operating the motorcycle while impaired and demanded a breath sample, which resulted in a ‘FAIL’ reading. This resulted in the officer issuing a Notice of Administrative Penalty (NAP) and the officer providing the Recipient with a bundle of papers to review. Notably, the officer mentioned a roadside appeal through which the Recipient could voluntarily provide a second breath sample in the hopes that the result would be different. The Recipient declined to undertake said appeal.
The Recipient challenged the NAP on cancellation grounds under section 4(f)(viii) of the SafeRoads Regulation (Regulation), specifically:
- That the officer did not advise the recipient in writing of the right to a roadside appeal under section 88.11 of the Act and the recipient was unaware of that right;
The Recipient provided that he did not read the paperwork carefully so they did not understand the process nor did they realize they had a right to a roadside appeal. The Recipient provides that the roadside appeal form was not provided in the bundle of documents he received and that the officer provided no explanation of the right to a roadside appeal.
Upon initial Judicial Review, the Adjudicator found the Recipient not being provided the Roadside Appeal form to be ‘inconsistent’ with her experience as an adjudicator as the form is ‘often printed alongside the NAP and seizure notice as they all form part of the paperwork.’ As such, the Adjudicator found that the Recipient had the Roadside Appeal Form provided to them.
The Adjudicator further found that, even if the Roadside Appeal Form was not provided, the NAP itself contained sufficient information to allow the Recipient to ‘make an informed decision based on his awareness.’
Analysis
On Judicial Review Justice Hollins held that the Adjudicator took judicial notice of the fact that Roadside Appeal Forms are often printed alongside other paperwork provided to a Recipient. This knowledge was used to attack the Recipient’s credibility and to prefer the Adjudicator’s own version of events over the Recipient’s testimony.
Justice Hollins’ position was that administrative decision-makers are subject to the same rules as courts are in terms of employing judicial notice. As such, it was not reasonable for the Adjudicator to draw on her own knowledge of what was typically included in the ‘bundle of papers’ provided to the Recipient for the purpose of rejecting his evidence in the absence of any contradictory evidence on the record. Any decision based on this finding was unreasonable. (See para 14)
Justice Hollins found that since service of the Roadside Appeal Form was based on the improper judicial notice, the only remaining evidence was that the Recipient did not receive it, and given the Adjudicator had accepted that the officer provided no oral advice or explanation of the Roadside Appeal, the only indication of the right to a Roadside Appeal received by the Recipient was the NAP itself. However, in this case the NAP alone was insufficient to satisfy the roadside requirements.
As a result the NAP was cancelled.
C00511055A – Dodds
Facts
Where an Approved Screening Device is used in issuing a NAP on a Recipient, the Director is required to provide the following records under Section 2 of the Regulation upon review:
- Under 2(c)(i), the expiry date of the last annual maintenance performed on the ASD; and
- Under 2(c)(ii), the date of the last calibration of the ASD and the calibration expiry.
In this case, there were two contradictory sets of records provided with regards to the ASD used for the Roadside Appeal, specifically:
- Information on the Advanced projects Information System concerning the ASD that indicates the serial number of the ASD used for the Roadside Appeal to be ‘279077’ with a calibration date of August 12, 2026, calibration expiry date of September 12, 2026 and a service expiry date of September 12, 2026.
- A photograph of an ASD uploaded to the SafeRoads Alberta portal in which the month of March is visible and the first two digits of the serial number to be ‘17’.
Analysis
The Adjudicator was faced with a material discrepancy which could not be satisfied by the evidence at hand. Further, the officer did not provide any information regarding the discrepancy. The Adjudicator followed Korecki in coming to a determination on this issue, which provides that Adjudicators are not permitted to resolve any evidentiary gaps using inference.
Given the evidentiary gap and the inability to determine which records pertained to the ASD used for the Roadside Appeal, the Adjudicator found they were not satisfied the required records under 2(c)(i) and 2(c)(ii) for the Roadside Appeal ASD were not provided. As such, the Adjudicator cancelled the NAP.
2. Lawyer’s Corner
The Cleary decision holds that adjudicators cannot assume particular forms were provided to a recipient. If a recipient says he has not been provided a required form, there must be positive evidence that they have; otherwise, the recipient’s evidence should prevail.
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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Rory Ziv and Ziv Law Group are Alberta’s trusted impaired driving lawyers, focused on defending Immediate Roadside Sanctions (IRS) and criminal impaired charges across the province. Known for their deep understanding of both administrative and criminal impaired driving law, they deliver rigorous defence strategies and timely appeal filings.