McKinney v Alberta (Director of SafeRoads), 2021 ABQB 560

Court of Queen’s Bench of Alberta Citation: McKinney v Alberta (Director of SafeRoads), 2021 ABQB 560 Date: 20210720 Docket: 2103 03502 Registry: Edmonton Between: Denny Lane McKinney Applicant - and - Her Majesty the Queen - Director of SafeRoads Alberta Respondent _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I. Introduction - SafeRoads Alberta Accelerated Review Procedure [ 1 ] On December 8, 2020, 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 80 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: Kelleher v Alberta (Director of SafeRoads) , 2021 ABQB 517 . [ 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 Procedure step one decision for a challenge to a SafeRoads Alberta Decision.

II. Application Challenging SafeRoads Alberta Decision [ 8 ] On March 16, 2021, Denny Lane McKinney filed an Originating Application that initiated a judicial review of a SafeRoads Alberta Decision reported as McKinney (Re) , 2021 ABSRA 70 (Application). [ 9 ] The alleged basis for the Application is: 1. The Director did not provide complete records as per PAPA 12 2.

The Applicant’s blood alcohol level was not at or over “08” and the applicant was not impaired. [ 10 ] The Application seeks “[t]he return of the Applicant’s driver’s license.” [ 11 ] On July 13, 2021, the Application was referred to me by Court Legal Counsel for a SafeRoads Alberta Accelerated Review Procedure. III.

The Application is Prima Facie Defective [ 12 ] The Application appears to have inadequate pleadings that make this proceeding a prima facie abuse of the Court’s processes. [ 13 ] An Application or Statement of Claim sets the issues to which the opposing party must respond, and alerts that party to the case 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) , 2015 FCA 227 at paras 16-20 .

Pleadings must provide a basis for the Court and other litigants to make a meaningful response, and indicate to

the 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. [14] The Applicant cannot file inadequate pleadings and then either supplement those claims, or expect the Respondent 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. [15] 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. [16] The Application’s alleged bases are only bald allegations.

The Application does not identify what records defects are alleged.The Application provides no explanation of the basis to disagree with the SafeRoads Alberta Decision’s conclusion(

s) that Mr.McKinney had a blood alcohol level over “08”, and/or why Mr. McKinney was not impaired. The Application does not appear to satisfythe common law requirement that pleadings must provide the alleged “who, when, where, how and what” for the reviewing Court andRespondent. [17] I conclude that the Application appears to be an abuse of the processes of the Court as it fails to provide an adequate basis forthe Respondent to make a meaningful response or the Court to control the proceedings or make findings. IV.

Conclusion [18] The Application appears to be a suitable candidate for review pursuant to the Court’s SafeRoads Alberta Accelerated ReviewProcedure. Alberta Court of Queen’s Bench Action No. 2103 03502 is stayed pursuant to Rule 3.68(1)(

d) of the Alberta Rules of Court. [19] However, the Applicant has 14 days from the date this Memorandum of Decision is served on him to do one of the following: 1. discontinue his Application; or 2. submit an amended judicial review Application that is not an abuse of the processes of the Court; the amended judicial reviewApplication should be clearly addressed: “To the Attention of Associate Chief Justice Nielsen”; or 3. submit a Written Submission of up to 10 pages that explains how his Application is not an abuse of the processes of the Court byfailing to provide a meaningful basis for a response by the Court and Respondent followed by submissions from the Respondent. [20] If the Applicant elects to submit an amended judicial review Application, then: 1.

The Respondent has 14 days from service of the Amended Application to file and serve a Written Submission of up to 10 pageson whether the amended judicial review Application is proper, or an abuse of the processes of the Court that should not be filed, and theAction should be struck out. The Written Submission should be clearly addressed: “To the Attention of Associate Chief Justice Nielsen”. 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 Nielsen”. 3.

After receipt of the Respondent’s Written Submissions, and the Applicant’s Written Reply, if any, the Court will render its finaldecision on whether the amended judicial review Application should be filed, or the Action struck out as an abuse of the processes of theCourt pursuant to Rule 3.68 of the Alberta Rules of Court. [21] 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 10pages.

The Written Submission should be clearly addressed: “To the Attention of Associate Chief Justice Nielsen”. 2. If no Written Submission is received by the Court by that deadline, the Court will proceed to render its final decision on whetherthe 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 Respondent has seven days to file and serve a Written Replyof up to 10 pages. The Written Reply should be clearly addressed: “To the Attention of Associate Chief Justice Nielsen”. 4.

After receipt of the Applicant’s Written Submission, and the Respondent’s Written Reply, if any, the Court will render its finaldecision on whether the Application should be struck out in whole or in part, pursuant to Rule 3.68 of the Alberta Rules of Court. [22] Counsel for SafeRoads Alberta will prepare the Order giving effect to this Memorandum of Decision. The Applicant’sapproval of that Order is dispensed with, pursuant to Rule 9.4(2)(

c) of the Alberta Rules of Court. Dated at the City of Edmonton, Alberta this 20th day of July, 2021.

K.G. Nielsen A.C.J.C.Q.B.A. Appearances: None