The Defendant applied for permission to argue on Appeal that a specific issue in Lausen v Alberta (Director of SafeRoads), 2023 ABCA 176 (“Lausen”) should be reconsidered under Rules 14.46 and 14.72. The Application was dismissed.

The proposed issue for reconsideration was whether under subsection 4(e)(v) of the SafeRoads Alberta Regulation, AR 224/2020 it was “necessary for recipients of an administrative penalty to be issued or advised of a notice of administrative penalty before they are said to be aware of their right to a roadside appeal”.

Rule 14.46 states that an Application to reconsider a previous Decision of the Court of Appeal must be filed and served and must be returnable prior to the filing of, and prior to the deadline for filing, the Applicant’s Factum. Rule 14.27 clarifies that no party may argue that a prior precedential Decision of the Court should be reconsidered unless permission has been obtained under Rule 14.46. The test for reconsideration had been recently discussed in Peters v Atchooay, 2021 ABCA 237. The aim is not to determine whether the previous case was “wrongly decided; ... only ... to determine whether [it] should be reconsidered”.

Leave to reconsider a binding precedent is granted only in very limited circumstances due to policy considerations that require “certainty and stability of the trial process, finality in litigation, and judicial economy”. There are six factors that are relevant to determine whether leave for reconsideration should be granted: (i) the age of the Decision, (ii) whether the Decision created settled expectations or resulted in cases being decided in a particular way, (iii) the treatment of the issue by other Appeal Courts, (iv) whether binding statute or authority has been overlooked, (v) whether the Decision has “some simple, obvious, demonstrable flaw”, and (vi) whether the Decision was a Memorandum of Judgment delivered from the bench or a reserved, circulated one.

Lausen was a recent unanimous Decision of the Court. It set out a practical, reasonable procedure for the issuance of a notice of administrative penalty to a suspected impaired driver. The Defendant wanted reconsideration of whether “awareness of the right to a roadside test is impossible where the driver has not yet been issued or advised of the notice of administrative penalty”. The Court found that the statement sought to be reconsidered was not a general statement of law but a conclusion on the facts of that case. Accordingly, the Application for reconsideration was dismissed and the parties were free to argue that Lausen could be distinguishable on its facts.