Huffman v Alberta (Director of SafeRoads), 2021 ABQB 597

Court of Queen’s Bench of Alberta Citation: Huffman v Alberta (Director of SafeRoads), 2021 ABQB 597 Date: 20210729 Docket: 2103 02803 Registry: Edmonton Between: Michael Huffman Respondent - and - The Government of Alberta A.K.A. Saferoads Alberta A.K.A. Alberta Transportation Applicant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This matter was heard in morning chambers, but the parties subsequently provided some written materials for the Court’s consideration.

This is an application by the Government of Alberta A.K.A. Saferoads Alberta A.K.A. Alberta Transportation for

summary dismissal of the Respondent Michael Huffman’s [“Huffman”] Originating Application for Judicial Review. [ 2 ] The Applicant, The Government of Alberta AKA Saferoads Alberta AKA Alberta Transportation [“Alberta”], applies for

summary dismissal of the Judicial Review application of Huffman pursuant to rs 7.2(

a) and 7.3(1)(

b) of the Alberta Rules of Court , which allow the Court to give judgment when admissions of fact are made in a pleading and otherwise on the grounds that there is no merit to a claim.

[3] Huffman had applied for a written review of a Notice of Administrative Penalty issued to him under the Traffic Safety Act,RSA 2000, c T-6. The review took place on January 4, 2021, and the adjudicator who conducted the review issued his decision onJanuary 18, 2021, which confirmed the Notice of Administrative Penalty issued to the Respondent. [4] Section 24(2) of the Provincial Administrative Penalties Act, SA 2020, c P-30.8 (the “Act”) states as follows:

(2) A decision or order of the Director or adjudicator may be questioned or reviewed by way of an application for judicial reviewseeking an order in the nature of certiorari or mandamus if the application is filed with the Court of Queen’s Bench and served on theDirector or adjudicator no later than 30 days after the date on which the decision or order was received by the applicant. [5] Within s 24(2) of the Act, the 30 day statutory time limitation is calculated from the date the applicant receives theadjudicator’s decision.

By way of agreed facts in this application, it is clear the Respondent was outside the 30 day time limitation byapproximately two weeks. [6] Huffman argues that this late filing was not his fault or the fault of his legal counsel, but rather was a result of the processadopted by this Court with respect to e-filing, which mandated processing delays beyond the control of the Respondent and/or his legalcounsel. [7] The Court notes that the e-filing process delays that were occurring still allowed legal counsel to serve parties with unfiledcopies at the time of filing, followed by filed copies once they were received.

At no time did Huffman’s counsel serve the Applicant withan unfiled copy of the application and, accordingly, the Applicant was given no notice of the claim prior to March 4, 2021, which wasbeyond the February 18, 2021 agreed deadline.

Huffman argues that the Applicant has suffered no prejudice as a result of the lateservice, so service can be deemed good and sufficient. [8] However, there is no provision in the Act to extend the 30 day time limit to file and serve a Judicial Review application sogiven that Huffman’s Judicial Review application was not filed and served within the 30 day limitation to do so under s 24(2) of the Act,it is out of time. [9] This Court cannot extend or shorten a statutory time limit unless the statute gives it that power: Kehewin Cree Nation vMulvey, 2013 ABCA 294. The Respondent argues that Kehewin deals with the

interpretation of the limitation period in Provincial Courtregarding general litigation, and does not deal with administrative law, so therefore has no application to the present matter. However,this is not a tenable argument as Kehewin applies in all statutory time limit situations where the statute itself does not specificallyauthorize an extension. [10] Huffman further argues that s 24(1) of the Act creates a privative cause which purports to entirely remove the jurisdiction ofthis Court to hear a judicial review, given that all relevant prerogatory writs are prohibited.

The Respondent argues that such privativeclauses affect the standard of review for purposes of actual judicial review, but they do not bar judicial review, and that unlike in civillitigation between parties, the legislature cannot limit common law prerogative writs.

Within 24(2) of the Act, the legislature created astatutory right of appeal, for which the only prerogative writs that one can seek under s 24(2) are certiorari or mandamus. [11] Huffman argues that the Supreme Court of Canada has clearly and consistently held that such privative causes do not prohibitjudicial review: Metropolitan Life Insurance Co v International Union of Operating Engineers, (SCC), (SCC), [1970]SCR 425, at paras 15-18 and paras 25-27.

Conclusion [12] Huffman’s Supreme Court of Canada Metropolitan Life case authority deals with a different fact situation than the presentone in that the jurisdiction of the Adjudicator and the present s 24(2) provisions do not prevent any review of the alleged errors based oncertiorari or otherwise.

In the present matter, the Act specifically allows for judicial review, however, Huffman failed to bring himselfwithin those provisions by not effecting any kind of service within the time period specified. [13] The Respondent, by attempting to rely on the “common law”, is indeed seeking the same remedy that he would have beenentitled to had he met the provisions of s 24(2) of the Act. Therefore, the Respondent cannot do indirectly what his own actions [orinaction] prevented him from doing indirectly.

There is no difference from the available remedies under the common law prerogativewrits, and the remedies available under s 24(2), because they are the same remedies. [14] As for Huffman’s other argument about the Court frustrating his service efforts, this Court, like all other courts and tribunals,governs and determines its own process, particularly during unprecedented times such as the Court has been facing with the COVID-19pandemic.

This Court mandated that the Respondent’s counsel should serve on opposing counsel unfiled documents, so that propernotice can at least be initiated within an appeal period, which can then be finalized subsequently when those documents are actuallyreturned filed. In this case the Respondent made no effort to serve any document or notice on Alberta.

Accordingly, there is no basis thatexists to deem service good and sufficient since there was no service at all, attempted or otherwise by Huffman. [15] Accordingly, the Respondent’s Judicial Review application was not filed and served within the 30 day limitation to do sounder s 24(2) of the Act, and it is out of time pursuant to our Court of Appeal decision in Kehewin, irrespective of whether there was anyprejudice to the other side. [16] There will be an Order granting

summary dismissal of the Originating Application for Judicial Review in its entirety, pursuantto rr 7.2 and 7.3 of the Alberta Rules of Court.

Heard on the 7 th day of July, 2021. Dated at the City of Edmonton, Alberta this 29 th day of July 2021. Donald Lee J.C.Q.B.A. Appearances: Rachelle Roberts for the Applicant, Government of Alberta Alan Pearse for the Respondent, Michael Huffman