Ghuman v Alberta (Director of SafeRoads), 2021 ABQB 651

Court of Queen’s Bench of Alberta Citation: Ghuman v Alberta (Director of SafeRoads), 2021 ABQB 651 Date: 20210817 Docket: 2101 04426 Registry: Calgary Between: 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 _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I.

Introduction [ 1 ] On July 7, 2021, this Court, in a decision reported as Kelleher v Alberta (Director of SafeRoads), 2021 ABQB 517 [ Ghuman #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 April 9, 2021 by Tejpreet Singh Ghuman [Mr. Ghuman]. Mr. Ghuman’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. Ghuman, his Application challenged a March 10, 2021 SafeRoads Alberta decision reported as Ghuman

(Re), 2021 ABSRA 157. In Ghuman #1, I concluded, at paras 17-18, that the April 9, 2021 filing was a prima facie abuse of the Courtbecause 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 allegedlyillegally 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: Ghuman #1 at para 9. [4] Mr.

Ghuman 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. Ghuman.Counsel for Commissioner Brenda Lucki and Cst. Keileigh Acker of the Royal Canadian Mounted Police [RCMP Respondents]submitted a Written Submission on August 3, 2021. Counsel for the Director of SafeRoads Alberta and A.

Koshi [Director] alsosubmitted a Written Submission, dated August 3, 2021. [6] The deadline has passed for Mr. Ghuman to make a Written Reply per Ghuman #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 certain specific allegations as to what were the errors in theSafeRoads Alberta decision. Counsel for the Director submits that the candidate Amended Originating Application now providesadequately particularized allegations, correcting the defects identified in Ghuman #1. [9] I agree in part. Certain parts of the candidate Amended Originating Notice remain an abuse of the Court. Paragraph 7 of thecandidate Amended Originating Notice states: The Adjudicator erred in law, and decided unreasonably, when they determined that Cst.

Acker had reasonable suspicion to ground theASD breath demand; This claim is a bald allegation, provides no particulars as to where and how the Adjudicator erred, and what would be a basis for why theAdjudicator should have reached a differ, reasonable decision. Paragraph 7 is rejected. [10] Paragraph 10 of the candidate Amended Originating Application alleges a breach of Charter s 8: The Adjudicator erred in law, and decided unreasonably, when they determined that Cst. Acker must act in bad faith to make out aCharter

section 8 breach/egregious unfairness; The Supreme Court of Canada in Mackay v Manitoba instructs that a foundation of facts or alleged facts is an absolute requirement forany Charter-related allegation. The candidate Amended Originating Application provides no explanation at all as to what was theCharter s 8 “breach/egregious unfairness”.

Paragraph 10 is also rejected because it makes nothing but bald pleadings, and that does notsatisfy the requirements for a valid pleading. [11] Similarly, paragraph 11 fails to particularize a factual or alleged factual basis for Charter ss 8-9 breaches: The Adjudicator erred in law, and decided unreasonably, when they determined that Cst. Acker’s breach of the Recipient’s sections 8and 9 Charter rights did not affect the relevance or reliability of the unlawfully obtained breath sample evidence; [12] Furthermore, paragraph 11 makes no sense. Charter s 8 prohibits unreasonable searches and seizures.

Charter s 9 prohibitsarbitrary detention or imprisonment. The result of a test that determined a blood alcohol concentration will remain equally relevant andreliable regardless of whether that data was the product of an illegal search. The nature of a search does not alter the physical realitymeasured by a device. Similarly, the purported illegal character of a detention (presuming that is what the unparticularized Charter s 9claim in paragraph 11 is about), has nothing to do with whether a blood alcohol measurement is relevant or reliable.

I order Paragraph 11is removed from the candidate Amended Originating Application. [13] Paragraph 12 of the candidate Amended Originating Application reads The Adjudicator erred in law, and decided unreasonably, when they failed to proportionately balance the Recipient’s sections 8 and 9Charter rights with the regime’s statutory mandate; [14] This paragraph again alleges only further bald allegations, perhaps pointing to what presumably are the paragraph 11unidentified breaches of unparticularized Charter rights. Again, the candidate Amended Originating Application provides no factual or

alleged factual foundations for those claims. Similarly, the Adjudicator’s error and unreasonableness are unidentified. Paragraph 12 invokes “proportionality”, but provides no basis to evaluate whether the alleged Charter ss 8 and 9 breaches was serious or not, or the circumstances of those purported breaches. Paragraph 12 is therefore rejected. [ 15 ] I note, in addition, that Mr. Ghuman’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 Notice, and nothing at all is mentioned about Charter ss 7 and 10, means, per Mackay v Manitoba , that Mr. Ghuman may not advance allegations in his judicial review that his Charter rights were breached, since allegations that involve Charter rights must be pled and particularized. B. Parties [ 16 ] Counsel for the RCMP Respondents argues there is no basis for the RCMP Respondents to be involved in this matter. That makes Mr. Ghuman naming the RCMP Respondents as Respondents an abuse of the Court and the RCMP Respondents.

The RCMP Respondents identify three points. First, Provincial Administrative Penalties Act , SA 2020, c P-30.8 at s 24(2) sets the scope of the parties in a SafeRoads Alberta judicial review to “... the Director or the adjudicator ...”. [ 17 ] Second, the RCMP Respondents characterize the remedy sought by Mr. Ghuman, “... to quash the decision of the Peace Officer ...”, as a collateral attack on the Ghuman (Re) , 2021 ABSRA 157 decision. The Provincial Administrative Penalties Act and SafeRoads Alberta Regulation , Alta Reg 224/202 legislative scheme provides that Mr.

Ghuman may challenge the validity of his Notice of Administrative Penalty before the SafeRoads Alberta tribunal. Mr. Ghuman exercised that right, and that right was rejected. What remains now is a potential judicial review of the SafeRoads Alberta decision. In effect, by demanding this Court “... quash the decision of the Peace Officer ...”, Mr.

Ghuman has collaterally attacked the Ghuman (Re) , 2021 ABSRA 157 decision. [ 18 ] Third, the original Ghuman Application included this paragraph: The Peace Officer in issuing the Notice of Administrative Penalty erred in law and acted unreasonably. [ 19 ] That paragraph was deleted from the candidate Amended Originating Application. The candidate Amended Originating Application makes no allegations at all, of any errors, wrongdoing, or misconduct, by the RCMP Respondents.

The RCMP Respondents are not involved or implicated in the candidate Amended Originating Application. [ 20 ] Counsel for RCMP Respondents indicates the RCMP Respondents have identified this issue, and requested Mr. Ghuman remove the RCMP Respondents from this matter. The RCMP has twice offered a consent order to remove the RCMP Respondents on a without costs basis, without any response from Mr. Ghuman.

The RCMP Respondents states that offer should have weight as a Calderbank offer when imposing costs, citing Holizki Estate v Alberta (Public Trustee) , 2009 ABQB 260 at paras 44-47 . [ 21 ] Counsel for the Director agrees with the RCMP Defendants’ submissions on this point, indicating that part of the remedy sought in the Ghuman candidate Amended Originating Application is overbroad. The request “... to quash the decision of the Peace Officer ...” must be deleted.

The Director takes the position that including the RCMP Defendants in the original Application and the candidate Amended Originating Application is frivolous and vexatious. [ 22 ] I agree with the RCMP Defendants and Director. Including the RCMP Defendants in the original Application and the candidate Amended Originating Application is an abuse of the Court and the RCMP Defendants. SafeRoads Alberta is the mechanism to dispute the conduct of the peace officer who issued a Notice of Administrative Penalty, and the legality of that Notice: Provincial Administrative Penalties Act ; SafeRoads Alberta Regulation .

A challenge at the Alberta Court of Queen’s Bench “... to quash the decision of the Peace Officer ...” is a collateral attack on the Ghuman (Re) , 2021 ABSRA 157 decision, and a serious abuse of the Court: Unrau v National Dental Examining Board , 2019 ABQB 283 at para 619 . [ 23 ] I therefore order that while Mr. Ghuman is permitted to file an Amended Originating Notice, that Amended Originating Notice must: 1. delete the RCMP Respondents as parties; and 2. further amend paragraph 14 to remove the text “... quash the decision of the Peace Officer and ...”. C.

Ancillary Issues [ 24 ] The Director has also identified several other issues. First, the candidate Amended Originating Application states its return date is August 5, 2021. The Director says the original Application’s return date, April 22, 2021, should instead be used. I agree. [ 25 ] The Director observes that the SafeRoads Alberta Adjudicator, A. Koshi, does not need to be named as a Respondent. I agree, and direct that the filed Amended Originating Application remove Mr.

Koshi as a Respondent. [ 26 ] Third, 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.

Ghuman from advancing a claim at his judicial review on the basis of purported breach(es) of rights identified in that legislation. [ 27 ] 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 RCMP

Respondents from this matter, I agree this further revision should occur. III. Conclusion [ 28 ] I order that Counsel for Mr. Ghuman 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.

Ghuman’s judicial review is struck out pursuant to Rule 3.68 without further court Order. [ 29 ] The interim stay imposed in Ghuman #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. [ 30 ] I have concluded that Mr. Ghuman’s involving the RCMP Respondents in this matter was, from the first, an abuse of the Court and the Respondents. Mr. Ghuman and his Counsel were aware of this defect, and rejected an offer to remove the RCMP Respondents on a no-costs basis.

The RCMP Defendants were forced to respond to Mr. Ghuman’s challenge to the SafeRoads Alberta decision. Further, I find it relevant and aggravating that when Mr. Ghuman had the opportunity to correct this abusive conduct in his response to Ghuman #1 , he did not do so. I accept the RCMP Respondents’ offer should be classified as a Calderbank offer, and that elevated costs awards are appropriate on that basis. [ 31 ] Given these factors, I order that Mr.

Ghuman pay each of the RCMP Respondents $1,500 in costs forthwith. [ 32 ] Counsel for the Director will prepare the Order giving effect to this Memorandum of Decision. Mr. Ghuman’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 Tejpreet Singh Ghuman Rachelle K. Roberts Alberta Justice and Solicitor General for the Respondents Director of SafeRoads Alberta, and A. Koski Adjudicator, SafeRoads Alberta. Tessa la Bastide Attorney General of Canada for the Respondents Brenda Lucki, Commissioner, Royal Canadian Mounted Police, and Cst. Keileigh Acker, Strathmore Detachment, Royal Canadian Mounted Police