Erskine v Alberta (Director of SafeRoads), 2021 ABQB 650

Court of Queen’s Bench of Alberta Citation: Erskine v Alberta (Director of SafeRoads), 2021 ABQB 650 Date: 20210817 Docket: 2101 07259 Registry: Calgary Between: Robert 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 [ 1 ] On July 13, 2021, this Court, in a decision reported as Kelleher v Alberta (Director of SafeRoads) , 2021 ABQB 517 [ Erskine #1 ], applied the SafeRoads Alberta Accelerated Review Procedure [SAARP] to a document titled “Originating Application - Notice of Appeal/Reference Under an Enactment” [Application], that was filed on June 8, 2021 by Robin Kent Erskine [Mr. Erskine]. Mr. Erskine’s Application was one of seven Applications filed by the same lawyer between March 26 and June 8, 2021 that challenged decisions of SafeRoads Alberta.

Each application contained identical allegations. [ 2 ] In the case of Mr. Erskine, his Application challenged a May 18, 2021 SafeRoads Alberta decision reported as Erskine (Re) , 2021 ABSRA 375 . In Erskine #1 , I concluded, at paras 17-18 , that the June 8, 2021 filing was a prima facie abuse of the Court because that document failed to provide adequate pleadings: 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 rights is notidentified. The nature of the allegedly illegal “collection” is not identified. The Applications do not identify what

section or sections ofthe Charter have allegedly been breached. That appears inconsistent with the standard required by [Mackay v Manitoba, (SCC), [1989] 2 SCR 357, 61 DLR (4th) 485], as well as the common law requirements for adequate civil pleadings. [3] The Application was also filed in the incorrect form: Erskine #1 at para 9. [4] Mr.

Erskine was given 14 days to either: 1) discontinue the Application, 2) submit a candidate Amended OriginatingApplication in the correct form, or 3) provide an up to ten-page Written Submission to explain why the Originating Application is a validaction. [5] The Court, on July 21, 2021, received a candidate Form 7 Amended Originating Application from Counsel for Mr. Erskine.Counsel for Chief Constable Mark Neufeld and Constable Danielle Green of the Calgary Police Service [CPS Respondents] submitted aWritten Submission on July 29, 2021.

Counsel for the Director of SafeRoads Alberta [Director] also submitted a Written Submission,dated August 3, 2021. [6] The deadline has passed for Mr. Erskine to make a Written Reply per Erskine #1 at para 21. Nothing has been received. I,therefore, now proceed to evaluate whether the candidate Amended Originating Application should be approved for filing, or rejected, inwhole or in part, as an abuse of the Court’s processes. II. Analysis [7] My evaluation of the Respondents’ submissions, and the candidate Amended Originating Application, has several aspects. A.

Pleadings [8] The candidate Amended Originating Notice now includes specific allegations as to what were the errors in the SafeRoadsAlberta decision. Counsel for the Director submits that the candidate Amended Originating Application now provides adequatelyparticularized allegations, correcting the defects identified in Erskine #1. [9] I agree. I note, in addition, that Mr. Erskine’s candidate Amended Originating Application cites Charter ss 7-10 as“Applicable Acts and regulations”.

The fact that no Charter-related particulars are pled in the candidate Amended Originating Noticemeans, per Mackay v Manitoba, that Mr. Erskine may not advance allegations in his judicial review that his Charter rights werebreached, since allegations that involve Charter rights must be pled and particularized. B. Parties [10] Counsel for the CPS Respondents argues there is no basis for the CPS Respondents to be involved in this matter. That makesMr. Erskine naming the CPS Respondents as Respondents an abuse of the Court and the CPS Respondents. The CPS Respondentsidentify two points.

First, Provincial Administrative Penalties Act, SA 2020, c P-30.8 at s 24(2) sets the scope of the parties in aSafeRoads Alberta judicial review to “... the Director or the adjudicator ...”. [11] Second, the CPS Respondents observe that the original Erskine Application included this paragraph: The Peace Officer in issuing the Notice of Administrative Penalty erred in law and acted unreasonably. [12] That paragraph was deleted from the candidate Amended Originating Application.

The candidate Amended OriginatingApplication makes no allegations at all, of any errors, wrongdoing, or misconduct, by the CPS Respondents. The CPS Respondents arenot involved or implicated in the candidate Amended Originating Application. [13] Counsel for CPS Respondents indicates the CPS Respondents have identified this issue, requested Mr. Erskine remove theCPS Respondents from this matter, and informed Mr.

Erskine that the CPS Respondents would seek costs since they have been forced torespond to a matter where there is no basis for the CPS Respondents to be named as parties. [14] Counsel for the Director agrees with the CPS Respondents’ submissions on this point, indicating that part of the remedysought in the Erskine candidate Amended Originating Application is overbroad. The request “... to quash the decision of the PeaceOfficer ...” must be deleted.

The Director takes the position that including the CPS Respondents in the original Application and thecandidate Amended Originating Application is frivolous and vexatious. [15] I agree with the CPS Respondents and Director. Including the CPS Respondents in the original Application and the candidateAmended Originating Application is an abuse of the Court and the CPS Respondents.

SafeRoads Alberta is the mechanism to dispute theconduct of the peace officer who issued a Notice of Administrative Penalty, and the legality of that Notice: Provincial AdministrativePenalties Act; SafeRoads Alberta Regulation, Alta Reg 224/202. A challenge at the Alberta Court of Queen’s Bench “... to quash thedecision of the Peace Officer ...” is a collateral attack on the Erskine (Re), 2021 ABSRA 517 decision, and a serious abuse of the Court:Unrau v National Dental Examining Board, 2019 ABQB 283 at para 619. [16] I therefore order that while Mr.

Erskine is permitted to file an Amended Originating Notice, that Amended Originating Noticemust: 1. delete the CPS Respondents as parties; and

2. further amend paragraph 12 to remove the text “... quash the decision of the Peace Officer and ...”. C. Ancillary Issues [ 17 ] The Director has also identified several other issues. First, the candidate Amended Originating Application states its return date is August 12, 2021. The Director says the original Application’s return date, June 8, 2021, should instead be used. I agree. [ 18 ] Second, the Director observes that the candidate Amended Originating Application references the Alberta Bill of Rights , RSA 2000, c A-14 as a relevant “Applicable Act”, but does not cite any sections of that legislation.

I conclude that including the Alberta Bill of Rights , in itself, does not require changes to the candidate Amended Originating Application. Instead, like the Charter , the fact the candidate Amended Originating Application makes no mention of a breach or involvement the Alberta Bill of Rights means that the rules of pleadings prohibit Mr.

Erskine from advancing a claim at his judicial review on the basis of purported breach(es) of rights identified in that legislation. [ 19 ] Finally, the Director submits the style of cause of the candidate Form 8 Notice to Obtain Record of Proceedings should be revised from “The Director of SafeRoads Alberta et al” to “The Director of SafeRoads Alberta”. Since I have eliminated the CPS Respondents from this matter, I agree this further revision should occur. III. Conclusion [ 20 ] I order that Counsel for Mr.

Erskine shall file the candidate Amended Originating Application and Notice to Obtain Record of Proceedings received by the Court on July 21, 2021, with the revisions identified above, by 14 days from the date of this Decision. If no Amended Originating Application and Notice to Obtain Records of Proceedings, as instructed in this Decision, is filed by that deadline, then Mr.

Erskine’s judicial review is struck out pursuant to Rule 3.68 without further court Order. [ 21 ] The interim stay imposed in Erskine #1 at para 19 is vacated without further court Order once the Amended Originating Application and Notice to Obtain Records of Proceedings are filed within the 14-day deadline. [ 22 ] I have concluded that Mr. Erskine’s involving the CPS Respondents in this matter was, from the first, an abuse of the Court and the CPS Respondents. Mr. Erskine and his Counsel were aware of this defect, and that the CPS Respondents would seek costs for being illegitimately forced to respond to Mr.

Erskine’s challenge to the SafeRoads Alberta decision. Further, I find it relevant and aggravating that when Mr. Erskine had the opportunity to correct this abusive conduct in his response to Erskine #1 , he did not do so. [ 23 ] Given these factors, I order that Mr. Erskine pay each of the CPS Respondents $1,000 in costs forthwith. [ 24 ] Counsel for the Director will prepare the Order giving effect to this Memorandum of Decision. Mr. Erskine’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 Calgary, Alberta this 17 th day of August, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: M. Ian Savage Savage Oykhman Law for the Applicant Robin Kent Erskine Rachelle K. Roberts Alberta Justice and Solicitor General

for the Respondent Director of SafeRoads Alberta Elaine Ahn Legal Counsel Calgary Police Service for the Respondents Mark Neufeld, Chief Constable, Calgary Police Service, and Cst. Danielle Green, Calgary Police Service