Schwab v Alberta (Director of SafeRoads), 2021 ABQB 564

Court of Queen’s Bench of Alberta Citation: Schwab v Alberta (Director of SafeRoads), 2021 ABQB 564 Date: 20210720 Docket: 2103 07018 Registry: Edmonton Between: Timothy George Schwab Applicant - and - 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 April 27, 2021, Timothy George Schwab filed an Originating Application that initiated a judicial review of a SafeRoads Alberta Decision reported as Schwab (Re), 2021 ABSRA 305 (Application). [ 9 ] The alleged basis for the Application is: 1. The Applicant received an Immediate Roadside Sanction (IRS). He appealed to the Director of Saferoads who upheld the suspension. The basis for the claim is that the Adjudicator (Director) made several errors as follows:

a) An error in law in holding that it did not matter that a second test on a different device was not offered to the accused because the accused never asked for a second test;

b) An error in law and breach of natural justice because the Adjudicator went outside the scope of the evidence by deciding to do his own 'google search' after the evidence was presented to him;

c) An error in law and breach of natural justice by deciding that a certain class or type of witness is less worthy of belief;

d) An error in law by concluding that the Applicant was in care and control of his vehicle;

e) An unreasonable finding of fact that the Applicant was provided with an opportunity to provide a second sample (on a different device), in writing, after he had already been issued a Notice of Administrative Penalty.

f) By relying on evidence from the "Saferoads Alberta Technical Library" without informing the Applicant he would be using same. [ 10 ] The Application seeks that “... the Appeal be allowed and the NAP be canceled.”

[11] On July 16, 2021, the Application was referred to me by Court Legal Counsel for a SafeRoads Alberta Accelerated ReviewProcedure. 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 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. [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 makes bald allegations.

For example, in paragraph 1(a), what was the “error in law”? What are the alleged“who, when, where, how and what” of this alleged defect? [17] In paragraph 1(b), why was conducting a “google search” wrong? What did the Adjudicator find via a “google search”? Whatinformation, if any, did the “google search” relate to? Was that “evidence”, or something else? How did that information affect theSafeRoads Alberta Decision so that the Decision allegedly is “[a]n error in law and a breach of natural justice”? [18] Paragraph 1(

c) does not appear to identify either an “[error] in law” or a “[breach] of natural justice”. What is the “certainclass or type of witness”? Is Mr. Schwab one such individual? Or someone else? On what basis does the Applicant say the Adjudicatorengaged in this error? [19] Paragraph 1(

d) is nothing but a bald allegation. There are no particulars to satisfy the alleged “who, when, where, how andwhat” of this claim. [20] Paragraph 1(

e) appears to involve two documents, a Notice of Administrative Penalty, and something else. The circumstancesin which these documents are implicated in the SafeRoads Alberta Decision is unidentified. The Application does not indicate whatfinding was made by the Administrator, nor why it was “unreasonable”. [21] Why was Mr. Schwab unaware that the Administrator would be relying on evidence from the “Saferoads Alberta TechnicalManual”? What is the “Technical Manual”? What information from the “Technical Manual” was relied upon in the SafeRoads AlbertaDecision?

The Application does not indicate how that information affected the decision outcome, or how the “Technical Manual” isrelevant to that decision. [22] 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 [23] 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 07018 is stayed pursuant to Rule 3.68(1)(

d) of the Alberta Rules of Court. [24] 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. [25] 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 the

Action 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 clearly addressed: “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 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 . [ 26 ] 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 Nielsen”. 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 Respondent has seven days to file and serve a Written Reply of 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 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 . [ 27 ] Counsel for SafeRoads Alberta will prepare the Order giving effect to this Memorandum of Decision. The Applicant’s approval 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 thi s 20 th day of July, 2021. K.G. Nielsen A.C.J.C.Q.B.A. Appearances: None