Kelleher v Alberta (Director of SafeRoads), 2021 ABQB 517

Court of Queen’s Bench of Alberta Citation: Kelleher v Alberta (Director of SafeRoads), 2021 ABQB 517 Date: Dockets: 2101 04125; 2101 04426; 2101 05409; 2101 05410; 2101 05435; 2101 06213; 2101 07259 Registry: Calgary Between: Docket: 2101 04125 James Daniel Kelleher Applicant - and - Director, SafeRoads Alberta, Brenda Lucki, Commissioner, Royal Canadian Mounted Police, Cst. Mathieu Quimper, Lake Louise Detachment, Royal Canadian Mounted Police Respondents And Between: Docket: 2101 04426 Tejpreet Singh Ghuman Applicant - and - Director of SafeRoads Alberta, A.

Koshi, Adjudicator, SafeRoads Alberta, Brenda Lucki, Commissioner, Royal Canadian Mounted Police, and Cst. Keileigh Acker, Strathmore Detachment, Royal Canadian Mounted Police Respondents

And Between: Docket: 2101 05409 Keith Robert Harnum Applicant - and - Director of Saferoads Alberta, Brenda Lucki, Commissioner, Royal Canadian Mounted Police, and Cst. Kurtis Milbrandt, Olds Detachment, Royal Canadian Mounted Police Respondents And Between: Docket: 2101 05410 Joseph Bohdan Lozynsky Applicant - and - Director of SafeRoads Alberta, Brenda Lucki, Commissioner, Royal Canadian Mounted Police, and Cst. Trevor Skappak, Red Deer Detachment, Royal Canadian Mounted Police Respondents And Between: Docket: 2101 05435 John Edward Walker Applicant - and - Director of SafeRoads Alberta, Mark Neufeld, Chief Constable, Calgary Police Service, and Cst. Jessica Gilson

Respondents And Between: Docket: 2101 06213 John Stephen Wells Applicant - and - Director of SafeRoads Alberta, Brenda Lucki, Commissioner, Royal Canadian Mounted Police, and Cst. Andreas Zultner, Red Deer Detachment, Royal Canadian Mounted Police Respondents And Between: Docket: 2101 07259 Robin Kent Erskine Applicant - and - Director of SafeRoads Alberta, Mark Neufeld, Chief Constable, Calgary Police Service, and Cst. Danielle Green, Calgary Police Service Respondents _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________

I. Introduction - SafeRoads Alberta Accelerated Review Procedure [ 1 ] On December 8, 2021, the SafeRoads Alberta Tribunal was created by the SafeRoads Alberta Regulation , Alta Reg 224/2020 , as authorized by the Provincial Administrative Penalties Act , SA 2020, c P-30.8 [ PAPA ]. The SafeRoads Alberta Tribunal conducts reviews of Traffic Safety Act , RSA 2000, c T-6 [ TSA ] “Notices of Administrative Penalty” that impose sanctions such as licence suspensions, vehicle seizures, and fines for disqualifications for driving: TSA

Part 4. The purpose of the legislation is to provide a simplified, consistent, proportionate, and expedient mechanism to evaluate the validity of Notices of Administrative Penalty: PAPA s 2. SafeRoads Alberta Adjudicators issue formal reported written decisions in response to TSA reviews (SafeRoads Alberta Decisions). [ 2 ] SafeRoads Alberta Decisions are subject to judicial review by the Court of Queen’s Bench of Alberta: PAPA s 24.

While the usual period in which to file and serve a judicial review is six months ( Alberta Rules of Court , Alta Reg 124/2010 Rule 3.15(2)), judicial reviews of SafeRoads Alberta Decisions must be filed and served not later than 30 days after the date the SafeRoads Alberta Decision is received by the Applicant ( PAPA s 24(2)). [ 3 ] SafeRoads Alberta has now issued over 500 decisions. Since January 2021, over 50 applications challenging SafeRoads Alberta Decisions have been filed in the Court of Queen’s Bench of Alberta. These currently filed applications are scheduled to be heard between July 2021 and May 2022.

Judicial reviews of SafeRoads Alberta Decisions are each being scheduled for a one-day hearing. [ 4 ] Review by the Court’s Legal Counsel, at my request, has determined that a large proportion of the SafeRoads Alberta judicial review Applications are prima facie substantively defective due to inadequate pleadings. Challenges to SafeRoads Alberta Decisions have also been filed using incorrect Court forms.

In light of these issues, the Court has determined that a special process known as the SafeRoads Alberta Accelerated Review Procedure should be implemented on an interim basis to triage valid challenges to SafeRoads Alberta Decisions, in the interest of balancing efficient allocation of Court resources and the important need for persons subject to Notices of Administrative Penalty to have access to court proceedings that review the SafeRoads Alberta process and its results. [ 5 ] The SafeRoads Alberta Accelerated Review Procedure extends the Alberta Court of Queen’s Bench application of its inherent jurisdiction to better manage problematic and potentially problematic litigation.

That strategic approach has previously been engaged in response to substantially defective habeas corpus Applications ( Latham v Her Majesty the Queen , 2018 ABQB 69 , habeas corpus Application struck out 2018 ABQB 141 , aff’d 2018 ABCA 267 , leave to appeal at SCC refused, 38437 (14 March 2019)), and apparently vexatious civil filings via Civil Practice Note No. 7 [CPN7] ( Unrau v National Dental Examining Board , 2018 ABQB 874 ; Ubah v Canadian Natural Resources Limited , 2019 ABQB 347 , aff’d 2021 ABCA 5 ). [ 6 ] In light of the SafeRoads Alberta judicial review process being a new procedure, subject to different timing requirements, and in the interests of access to justice, timely resolution of proceedings, and the efficient allocation of Court resources, challenges to SafeRoads Alberta Decisions that appear to have substantive defects will be subject to the SafeRoads Alberta Accelerated Review Procedure.

This document-based review process is initiated by a step one written Court decision, so that the Applicant or Applicants may: 1. discontinue their challenges to the SafeRoads Alberta Decisions in a timely manner, so as to efficiently use litigant, judicial, and Court resources; or 2. submit an amended judicial review Application that challenges a SafeRoads Alberta Decision; or 3. make submissions to establish that their pleadings that challenge a SafeRoads Alberta Decision constitute a valid action, and should not be struck out pursuant to Rule 3.68 of the Alberta Rules of Court . [ 7 ] This Decision is a SafeRoads Alberta Accelerated Review step one decision for seven identical challenges to SafeRoads Alberta Decisions.

II. Applications Challenging SafeRoads Alberta Decisions [ 8 ] Between March 26, 2021 and June 8, 2021, the Court received seven largely identical documents, titled “Originating Application - Notice of Appeal/Reference Under an Enactment” (Application(s)), filed in the above seven actions by the same counsel. These seven Applications pertain to different parties, and the styles of cause above reproduce their forms as found in the individual filings. [ 9 ] The Applications were filed using Form 5, pursuant to Rule 3.2 of the Alberta Rules of Court .

However, instead, Forms 7 and 8 pursuant to the Alberta Rules of Court should be used. [ 10 ] Each of the Applications have the same identical five-paragraph alleged basis for the Application: 1. The Adjudicator in confirming the Immediate Roadside Sanction erred in law, and decided unreasonably, in failing to find that the evidence was collected in a manner which was inconsistent with the Canadian Charter of Rights and Freedoms ; 2. The Adjudicator erred in law, and decided unreasonably, in failing to find that there had been egregious unfairness in the investigation; 3.

The Adjudicator erred in law, and decided unreasonably, in failing to cancel the Immediate Roadside Sanction;

4. The Peace Officer in issuing the Notice of Administrative Penalty erred in law and acted unreasonably; 5. Such further and other grounds as counsel may advise. [11] The Applications seek an Order quashing driving restriction, fines, obligations to attend courses, and also seek refunds ofvehicle impound fees. [12] On July 6, 2021, the Applications were referred to me by Court Legal Counsel for a SafeRoads Alberta Accelerated ReviewProcedure. III.

The Applications are Prima Facie Defective [13] All seven of the Applications appear to have a common defect: inadequate pleadings that make each of the proceedings aprima facie abuse of the Court’s processes. [14] An Application or Statement of Claim sets the issues to which the opposing party must respond, and alerts that party to thecase it must meet: Whiten v Pilot Insurance Co, 2002 SCC 18 at para 87. Proper pleadings require more than simply bare assertions, or“bald allegations” of wrongdoing: GH v Alcock, 2013 ABCA 24 at para 58; Mancuso v Canada (National Health and Welfare), 2015FCA 227 at paras 16-20.

Pleadings must provide a basis for the Court and other litigants to make a meaningful response, and indicate tothe responding parties the “... who, when, where, how and what gave rise to its liability.”: Mancuso v Canada (National Health andWelfare) at para 19.

The Supreme Court of Canada, in Mackay v Manitoba, (SCC), [1989] 2 SCR 357, 61 DLR (4th)485, instructed that a factual foundation, or an alleged factual foundation, is an absolute requirement for pleadings that seek potentialrelief pursuant to the Canadian Charter of Rights and Freedoms. [15] The Applicants cannot file inadequate pleadings and then either supplement those claims, or expect the Respondents to “fill inthe blanks”: Mancuso v Canada (National Health and Welfare) at para 20.

A lack of specificity is not merely a technical defect, butgoes to the core of the claim: GH v Alcock at para 58, citing AL v Ontario (Minister of Community and Social Services) (2006), (ON CA), 274 DLR (4th) 431, 218 OAC 150 (Ont CA).

Inadequate pleadings abuse the Court’s process because aRespondent cannot defend against unclear and non-specific claims and the Court cannot control the proceedings, identify the proposedargument, or make findings on the relevant facts: Unrau v National Dental Examining Board, 2019 ABQB 283 at para 629. [16] The Alberta Court of Appeal recently, in Quaye v Law Society of Alberta, 2021 ABCA 167, confirmed the application ofCPN7 to strike out judicial review Applications that fail to provide the minimum adequate pleadings. [17] The seven Applications make identical claims. All are bald allegations.

For example, paragraph 1 claims a Charter breach.The allegedly illegally obtained evidence is not identified. The person or persons who allegedly breached the Applicant’s Charter rightsis not identified. The nature of the allegedly illegal “collection” is not identified. The Applications do not identify what

section orsections of the Charter have allegedly been breached. That appears inconsistent with the standard required by Mackay v Manitoba, aswell as the common law requirements for adequate civil pleadings. [18] I conclude that the Applications appear to be an abuse of the processes of the Court as they fail to provide an adequate basisfor the Respondents to make a meaningful response or the Court to control the proceedings or make findings. IV. Conclusion [19] The seven Applications appear to be suitable candidates for review pursuant to the Court’s SafeRoads Alberta AcceleratedReview Procedure.

Alberta Court of Queen’s Bench Action Nos. 2101 04125, 2101 04426, 2101 05409, 2101 05410, 2101 05435, 210106213, and 2101 07259 Actions are stayed pursuant to Rule 3.68(1)(

d) of the Alberta Rules of Court. [20] However, each of the Applicants has 14 days from the date this Memorandum of Decision is served on them to do one of thefollowing: 1. discontinue his or her Application; or 2. submit an amended judicial review Application (it is not an appeal, at law) that is not an abuse of the processes of the Court; theamended judicial review Application should be clearly addressed: “To the Attention of Associate Chief Justice Rooke”; or 3. submit a Written Submission of up to 10 pages that explains how his or her Application is not an abuse of the processes of theCourt by failing to provide a meaningful basis for a response by the Court and Respondents, followed by submissions from theRespondents. [21] If the Applicant elects to submit an amended judicial review Application, then: 1.

The Respondents have 14 days from service of the Amended Application to each file and serve a Written Submission of up to 10pages on whether the amended judicial review Application is proper, or an abuse of the processes of the Court that should not be filed,and the Action should be struck out. The Written Submission should be clearly addressed: “To the Attention of Associate Chief JusticeRooke”. 2. The Applicant then has seven days to file and serve a Written Reply of up to 10 pages. The Written Reply should be clearlyaddressed: “To the Attention of Associate Chief Justice Rooke”.

3. After receipt of the Respondents’ Written Submissions, and the Applicant’s Written Reply, if any, the Court will render its final decision on whether the amended judicial review Application should be filed, or the Action struck out as an abuse of the processes of the Court pursuant to Rule 3.68 of the Alberta Rules of Court . [ 22 ] I note again that, if an Applicant chooses this alternative, the Amended Application should use Form 7, as the proper mechanism to challenge a SafeRoads Alberta Decision is by judicial review: PAPA , s 24.

The Form 7 judicial review Application should be accompanied by a Form 8 Notice to Obtain Record of Proceedings: Rule 3.18 of the Alberta Rules of Court . [ 23 ] If the Applicant chooses to submit that the current Application is not an abuse of the processes of the Court, then: 1. The Applicant has 14 days from service of this Memorandum of Decision to file and serve a Written Submission of up to 10 pages. The Written Submission should be clearly addressed: “To the Attention of Associate Chief Justice Rooke”. 2.

If no Written Submission is received by the Court by that deadline, the Court will proceed to render its final decision on whether the Application should be struck out in whole or in part, pursuant to Rule 3.68 of the Alberta Rules of Court . 3. If the Applicant provides and serves a Written Submission, then the Respondents each have seven days to file and serve a Written Reply of up to 10 pages. The Written Replies should be clearly addressed: “To the Attention of Associate Chief Justice Rooke”. 4.

After receipt of the Applicant’s Written Submission, and the Respondents’ Written Replies, if any, the Court will render its final decision on whether the Application should be struck out in whole or in part, pursuant to Rule 3.68 of the Alberta Rules of Court . [ 24 ] Counsel for SafeRoads Alberta will prepare the Orders giving effect to this Memorandum of Decision. The Applicants’ approval of those Orders is dispensed with, pursuant to Rule 9.4(2)(

c) of the Alberta Rules of Court . Dated at the City of Calgary, Alberta this 7 th day of July, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: None