Useless Appendices: Kolner v Alberta (Director of SafeRoads), 2024 ABKB 456

As is well known, the appendix is a useless body part*. In Kolner v Alberta (Director of SafeRoads), 2024 ABKB 456, Bokenfohr J had to consider the legal utility of an appendix. It turns out that an appendix fares no better in administrative law than it does in the popular imagination.

I have noted in a previous post that decisions of roadside penalty adjudicators in Alberta are accompanied by an appendix setting out the role of the adjudicator, including a discussion of the need to balance Charter values with statutory objectives. (On the relevance of the Charter to roadside penalties, see this post). But this appendix was not sufficient to save the adjudicator in this instance:

It is obvious from the Adjudicator’s reasons that the Adjudicator did not understand or appreciate the values that underlie the right to counsel as guaranteed by Charter s 10(b). The Adjudicator did not grapple with the difficulty raised by the fact that the Officer was conducting a criminal investigation when he arrested the Applicant and advised him of his right to counsel, and then concluded the investigation with service of the NAP, which suggests a concurrent administrative investigation. It was not “odd” that the Applicant was advised that he had a right to a lawyer. This was required by law when the Applicant was arrested. The Adjudicator did not consider specifically the implications that flowed from the Applicant’s arrest, including whether the Applicant was required to decide about an appeal test without having the opportunity to contact counsel. The manner in which the adjudicator considered the Charter s 10(b) issue raised, including the related fact findings, reflects analytical shortcomings that are not merely superficial or peripheral to the merits of the decision. They go the heart of the Applicant’s complaint about being denied an opportunity to contact counsel before being put to his decision about an appeal test… (at para. 71).

Put simply, an adjudicator must be responsive to Charter values (and everything else that is relevant to the matter) in the operative part of their analysis. Sticking generic legal analysis in the appendix will not be sufficient to meet the requirements of responsive reasonableness review.

* To my surprise, I learned whilst doing extensive research for this wisecrack, this folk wisdom is now being challenged. Good thing I still have mine!

This content has been updated on September 5, 2024 at 15:18.