Cote v Alberta (SafeRoads), 2021 ABQB 313

Court of Queen’s Bench of Alberta Citation: Cote v Alberta (SafeRoads), 2021 ABQB 313 Date: 20210420 Docket: 2103 00058 Registry: Edmonton Between: Anissa Cote Respondent - and - A. Baker, Adjudicator, or Designate, at SafeRoads Alberta and Alberta Justice and Solicitor General and Attorney General for Canada Applicant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice G.S. Dunlop _______________________________________________________ 1. Introduction

[ 1 ] A. Baker, Alberta Justice and the Solicitor General (the “Crown”) apply for

summary dismissal of Anissa Cote’s originating application on the grounds it was served the day after a thirty-day limitation period expired. Ms. Cote submits that the limitation period is not thirty days, but six months, and that even if the limitation period is thirty days, service one day late may be excused. Alternatively, she submits that the period during which the Court was not accepting documents for filing should not be counted in calculating the thirty days.

The issues are what limitation period applies, whether I have the authority to permit the application to proceed if it has been served after the limitation period expired, and which days count in calculating the limitation period. 2. Background [ 2 ] On December 5, 2020, a peace officer issued a notice of administrative penalty, including an immediate driver’s license suspension, to Ms. Cote which she appealed on December 7, 2020. An adjudicator, Ms. Baker, heard the appeal on December 17, 2020 and issued her decision dismissing the appeal and upholding the notice of administrative penalty on December 21, 2020.

Ms. Cote received Ms. Baker’s decision on December 21, 2020. Ms. Cote submitted her originating application for judicial review and notice of constitutional challenge for filing to this Court on January 13, 2021 and received a filed copy from the Court on January 19, 2021. Ms. Cote served the originating application on Ms. Baker and the other respondents on January 21, 2021, thirty-one days after she received Ms. Baker’s decision. 3. Limitation Period [ 3 ] Reading Ms. Cote’s originating application and notice of constitutional challenge together, it is clear that Ms.

Cote’s wishes to argue both that the adjudicator’s decision was unreasonable, which is the standard of review created by s. 24(3) of the Provincial Administrative Penalties Act , SA 2020, c. P-30.8 , and that s. 24(3) and certain other provisions of the Act and other legislation are unconstitutional. The originating application enumerates five remedies: three declarations of constitutional invalidity, plus certiorari quashing Ms. Baker’s decision and mandamus reinstating her driver’s license. [ 4 ] There are several paths of legal reasoning by which Ms.

Cote may be entitled to a remedy with respect to the adjudicator’s decision and the suspension of her license. One path would be a finding that the adjudicator’s decision was unreasonable. Another would be a finding that the legislation applied by the adjudicator or the peace officer, or both, is unconstitutional. There may be others. [ 5 ] Because the remedies Ms. Cote seeks include mandamus and certiorari with respect to the adjudicator’s decision and declarations against the adjudicator, rule 3.15 requires that she commence her action by way of an originating application for judicial review.

Rule 3.15(2) creates a limitation period of six months from the date of the adjudicator’s decision, within which Ms. Cote must file and serve her originating application. Ms. Cote filed and served within six months. [ 6 ] S. 24 of the Act limits prohibits review of an adjudicator’s decision except by way of application for judicial review seeking certiorari or mandamus, and creates a thirty-day limitation period within which the application must be filed and served. Ms.

Cote filed within thirty days but served on the thirty-first day. [ 7 ] The Crown submits that because s. 24(1) of the Act prohibits any review of an adjudicator’s decision except pursuant to s. 24(2), which contains the thirty-day limitation period, any constitutional challenge to a decision or to the Act must also be brought within 30 days. The Crown cites no authority for that proposition. [ 8 ] I do not agree that s. 24 of the Act sets a thirty-day time limit for challenges to the constitutional validity of the Act . It simply does not say that.

It sets a thirty-day time limit for reviews of adjudicator’s decisions, pursuant to

section 24 of the Act . That is part, but not all of what Ms. Cote is seeking. She is also, and more fundamentally, seeking constitutional relief. Any limitation on this Court’s ability to grant constitutional relief must be express: CEP, Local 707 v Alberta (Labour Relations Board) 2004 ABQB 63 at para. 120 . [ 9 ] Ms.

Cote’s application for constitutional relief is a distinct cause of action which is not subject to the thirty-day limitation period for reviewing an adjudicator’s decision under the Act : ATA v Alberta (Information and Privacy Commissioner) 2013 ABQB 106 at para 35 – 36 . [ 10 ] I find that the thirty-day limitation period in the Act applies to Ms. Cote’s claim for judicial review of the adjudicator’s decision, but not to her claim for constitutional relief. The six-month limitation period in rule 3.15(2) may or may not apply. I need not decide that question because Ms. Cote filed and served within six months. 4.

Extending the Thirty-Day Deadline [ 11 ] The facts of this case are sympathetic. Ms. Cote’s originating application was filed within thirty days of the adjudicator’s decision. But for an oversight in Ms. Cote’s lawyer’s office, the originating application would also have been served within that period. It was served only one day late. The Crown suffered no prejudice. [ 12 ] Ms. Cote submits that rule 1.5 gives me the authority to cure her failure to serve in time.

Case authority binding on me is clear that I cannot do that: Blomer v Workers Compensation Board 2020 ABCA 334 at para. 39 ; Kehewin Cree Nation v Mulvey 2013 ABCA 294 at para 11 . 5. Counting the Thirty-Day Deadline [ 13 ] Ms. Cote submitted a supplemental brief on March 26, 2021. The Crown did not reply. In the supplemental brief, Ms. Cote

submits that the period when she was unable to file her documents because the Court was not accepting documents for filing should not be included in calculating the thirty-day deadline. She submits that period was December 21, 2020 to January 12, 2021. I am not sure the Court was closed for filing for that long, but I accept it was closed for filing for at least one day, which would be sufficient for Ms. Cote to have met the deadline, were I to accept this argument. I do not accept this argument because

section 22 of the

Interpretation Act , RSA 2000, c. I-8 , comprehensively addresses the calculation of time and s. 22(2) extends time in the case of office closures only if the last day in the period is a day when the office is closed. The fact that some of the days in a limitation period are holidays is irrelevant to the calculation of the period: Kormant v Enbridge Pipelines (Woodland) Inc 2016 ABQB 631 at para. 24 . By the same reasoning, closure of the office where documents are to be filed or served is irrelevant, unless the last day in the period is a day when the office is closed. 6. Disposition [ 14 ] The Crown seeks

summary dismissal of Ms. Cote’s originating application in its entirety. I have the authority to grant

summary dismissal of all or part of a claim or one claim among several claims pled: rule 7.3(3). [ 15 ] Given that the originating application was served outside the thirty-day limitation period, and that this Court has no authority to extend that period, Ms. Cote’s application for judicial review pursuant to s. 24 of the Act has no merit. I grant the Crown’s application for

summary dismissal of that part of Ms. Cote’s application. The thirty-day limitation period in s. 24(2) of the Act does not apply to applications for constitutional relief, so I dismiss the Crown’s application for

summary dismissal of the part of Ms. Cote’s application which seeks constitutional relief. [ 16 ] The parties may speak to costs, if they are in issue, no later than June 30, 2021. Heard on the 16 th day of March, 2021. Dated at the City of Edmonton, Alberta this 20 th day of April, 2021. G.S. Dunlop J.C.Q.B.A. Appearances: Michael Power Alberta Justice and Solicitor General for the Applicant/Defendant Shannon Gunn Emery Gunn Law Group for the Respondent/Plaintiff