Harnum v Alberta (Director of SafeRoads), 2021 ABQB 652

Court of Queen’s Bench of Alberta Citation: Harnum v Alberta (Director of SafeRoads), 2021 ABQB 652 Date: 20210817 Docket: 2101 05409 Registry: Calgary Between: Keith Robert Harnum Applicant - and - Director of SafeRoads Alberta, Brenda Lucki, Commissioner, Royal Canadian Mounted Police, and Cst. Kurtis Milbrandt, Olds 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 [ Harnum #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 30, 2021 by Keith Robert Harnum [Mr. Harnum]. Mr. Harnum’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. Harnum, his Application challenged an April, 2021 SafeRoads Alberta decision reported as Harnum (Re) , 2021 ABSRA 313 . In Harnum #1 , I concluded, at paras 17-18 , that the April 30, 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 not identified. The nature of the allegedly illegal “collection” is not identified. The Applications do not identify what

section or sections of

the 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: Harnum #1 at para 9. [4] Mr.

Harnum 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. Harnum.Counsel for Commissioner Brenda Lucki and Constable Kurtis Milbrandt of the Royal Canadian Mounted Police [RCMP Respondents]submitted a Written Submission on August 3, 2021.

Counsel for the Director of SafeRoads Alberta [Director] also submitted a WrittenSubmission, dated August 3, 2021. [6] The deadline has passed for Mr. Harnum to make a Written Reply per Harnum #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 Harnum #1. [9] I agree in part. Certain parts of the candidate Amended Originating Notice remain an abuse of the Court.

Paragraph 9 of thecandidate Amended Originating Notice states: The Adjudicator erred in law, and decided unreasonably, when they used unfounded extraneous evidence from personal experience toexplain a significant technical defect in police-provided ASD documentary evidence; This claim is a bald allegation. What was the “unfounded extraneous evidence”? Why was it “unfounded extraneous evidence”? What isthe “significant technical defect”? Why was the Adjudicator’s step(

s) illegal and unreasonable? Paragraph 9 is rejected. [10] I note, in addition, that Mr. Harnum’s candidate Amended Originating Application cites Charter ss 7-10 as “Applicable Actsand regulations”. The fact that no Charter-related particulars are pled in the candidate Amended Originating Notice, and nothing at all ismentioned about Charter ss 7-10, means, per Mackay v Manitoba, that Mr. Harnum may not advance allegations in his judicial reviewthat his Charter rights were breached, since allegations that involve Charter rights must be pled and particularized. B.

Parties [11] Counsel for the RCMP Respondents argues there is no basis for the RCMP Respondents to be involved in this matter. Thatmakes Mr. Harnum naming the RCMP Respondents as Respondents an abuse of the Court and the RCMP Respondents. The RCMPRespondents identify three points. First, Provincial Administrative Penalties Act, SA 2020, c P-30.8 at s 24(2) sets the scope of theparties in a SafeRoads Alberta judicial review to “... the Director or the adjudicator ...”. [12] Second, the RCMP Respondents characterize the remedy sought by Mr.

Harnum, “... to quash the decision of the PeaceOfficer ...”, as a collateral attack on the Harnum (Re), 2021 ABSRA 313 decision. The Provincial Administrative Penalties Act andSafeRoads Alberta Regulation, Alta Reg 224/202 legislative scheme provides that Mr. Harnum may challenge the validity of his Noticeof Administrative Penalty before the SafeRoads Alberta tribunal. Mr. Harnum exercised that right, and that claim was rejected. Whatremains now is a potential judicial review of the SafeRoads Alberta decision. In effect, by demanding this Court “... quash the decision ofthe Peace Officer ...”, Mr.

Harnum has collaterally attacked the Harnum (Re), 2021 ABSRA 313 decision. [13] Third, the original Harnum Application included this paragraph: The Peace Officer in issuing the Notice of Administrative Penalty erred in law and acted unreasonably. [14] 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 RCMP Respondents.

The RCMP Respondentsare not involved or implicated in the candidate Amended Originating Application. [15] Counsel for RCMP Respondents indicates the RCMP Respondents have identified this issue, and requested Mr. Harnumremove the RCMP Respondents from this matter. [16] Counsel for the Director agrees with the RCMP Defendants’ submissions on this point, indicating that part of the remedysought in the Harnum 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 RCMP Defendants in the original Application, and thecandidate Amended Originating Application, is frivolous and vexatious.

[ 17 ] 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 Harnum (Re) , 2021 ABSRA 313 decision, and a serious abuse of the Court: Unrau v National Dental Examining Board , 2019 ABQB 283 at para 619 . [ 18 ] I therefore order that while Mr. Harnum 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 15 to remove the text “... quash the decision of the Peace Officer and ...”. C.

Ancillary Issues [ 19 ] 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, June 15, 2021, should instead be used. I agree. [ 20 ] 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.

Harnum from advancing a claim at his judicial review on the basis of purported breach(es) of rights identified in that legislation. [ 21 ] 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 [ 22 ] I order that Counsel for Mr.

Harnum 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.

Harnum’s judicial review is struck out pursuant to Rule 3.68 without further court Order. [ 23 ] The interim stay imposed in Harnum #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. [ 24 ] I have concluded that Mr. Harnum’s involving the RCMP Respondents in this matter was, from the first, an abuse of the Court and the Respondents. Mr. Harnum and his Counsel were aware of this defect. The RCMP Defendants were forced to respond to Mr. Harnum’s challenge to the SafeRoads Alberta decision.

Further, I find it relevant and aggravating that when Mr. Harnum had the opportunity to correct this abusive conduct in his response to Harnum #1 , he did not do so. [ 25 ] Given these factors, I order that Mr. Harnum pay each of the RCMP Respondents $1,000 in costs forthwith. [ 26 ] Counsel for the Director will prepare the Order giving effect to this Memorandum of Decision. Mr. Harnum’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 Keith Robert Harnum Rachelle K. Roberts Alberta Justice and Solicitor General for the Respondents Director of SafeRoads Alberta, and A. Koshi Adjudicator, SafeRoads Alberta Tessa la Bastide Attorney General of Canada for the Respondents Brenda Lucki, Commissioner, Royal Canadian Mounted Police, and Cst. Kurtis Milbrandt, Olds Detachment, Royal Canadian Mounted Police