Kolbina v Alberta (Director of SafeRoads), 2021 ABQB 653

Court of Queen’s Bench of Alberta Citation: Kolbina v Alberta (Director of SafeRoads), 2021 ABQB 653 Date: 20210817 Docket: 2101 05432 Registry: Calgary Between: Irina Anatolievna Kolbina Applicant - and - Director of SafeRoads Alberta, Mark Neufeld, Chief Constable, Calgary Police Service, and Cst. Patrick Urblik 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 Kolbina v Alberta (Director of SafeRoads) , 2021 ABQB 535 [ Kolbina #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 May 11, 2021 by Irina Anatolievna Kolbina [Ms. Kolbina]. Ms.

Kolbina’s Application was one of nine Applications (see also Kelleher v Alberta (Director of SafeRoads) , 2021 ABQB 517 ) filed by the same lawyer between March 19 and June 8, 2021 that challenged decisions of SafeRoads Alberta. Each application contained identical allegations. [ 2 ] In the case of Ms. Kolbina, her Application challenged an April 26, 2021 SafeRoads Alberta decision reported as Kolbina (Re) , 2021 ABSRA 280 . In Kolbina #1 , I concluded, at paras 15-16 , that the May 11, 2021 filing was a prima facie abuse of the Court because that document failed to provide adequate pleadings:

Both 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: Kolbina #1 at para 9. [4] Ms.

Kolbina 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 28, 2021, received a candidate Form 7 Amended Originating Application from Counsel for Ms. Koblina.Counsel for Chief Constable Mark Neufeld and Cst. Patrick Urblik of the Calgary Police Service [CPS Respondents] submitted aWritten Submission on August 5, 2021.

Counsel for the Director of SafeRoads Alberta [Director] also submitted a Written Submission,dated August 10, 2021. [6] The deadline has passed for Ms. Kolbina to make a Written Reply per Kolbina #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 somewhat more specific allegations as to what were the errors inthe SafeRoads Alberta decision. Counsel for the Director submits that the candidate Amended Originating Application now providesadequately particularized allegations, correcting the defects identified in Kolbina #1. [9] I agree for the most part. However, I order that paragraph 10 of the candidate Amended Originating Application be deletedas it is illogical and a hopeless allegation.

The paragraph in question reads: The Adjudicator erred in law, and decided unreasonably, when they determined that Cst. Urblik’s breach of the Recipient’s sections10(

b) Charter rights did not affect the relevance or reliability of the unlawfully obtained breath sample evidence; [10] This allegation makes no sense. Charter s 10(

b) reads: Everyone has the right on arrest or detention ... to retain and instruct counsel without delay and to be informed of that right; [11] Presuming for the purposes of this matter that whether Ms. Kolbina was aware or not of a right to access counsel, or wasimpeded in exercise of that right, whether or not Ms. Kolbina has spoken to a lawyer would have no effect on whether a breath sample toidentify blood alcohol concentration was relevant to Ms. Kolbina meeting the criteria for a Notice of Administrative Penalty, or whetherthe test that determined a blood alcohol concentration was or was not reliable.

Talking to a lawyer does not change a physical realitymeasured by a device. I order paragraph 10 is removed from the candidate Amended Originating Application. [12] Second, I conclude that paragraph 11 fails to provide the adequate particulars for a valid Charter claim. That paragraph reads: The Adjudicator erred in law, and decided unreasonably, when they failed to proportionately balance the Recipient’s

section 10(b)Charter rights with the regime’s statutory mandate; [13] This is a bald allegation. What about the Adjudicator’s decision was unreasonable? Ms. Kolbina’s candidate AmendedOriginating Notice provides almost no particulars of Constable Urblik’s alleged breach of Ms. Kolbina’s Charter s 10(

b) rights, contraryto Mackay v Manitoba. How did that breach happen? Did Constable Urblik omit a Charter notice? What did Constable Urblik dowrong? When did that occur in the interactions between Constable Urblik and Ms. Kolbina? Paragraph 11 invokes “proportionality”, butprovides no basis to evaluate whether the alleged Charter s 10(

b) breach was serious or not, or the circumstances of that breach. [14] I note, in addition, that Ms. Kolbina’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, means, per Mackayv Manitoba, that Ms. Kolbina may not advance allegations that his Charter rights were breached, since allegations that involve Charterrights must be pled and particularized. B.

Parties [15] Counsel for the CPS Respondents argues there is no basis for the CPS Respondents to be involved in this matter. That makesMs. Koblina naming the CPS Respondents as Respondents an abuse of the Court and the CPS Respondents. The CPS Respondentsidentify that the Provincial Administrative Penalties Act, SA 2020, c P-30.8 at s 24(2) sets the scope of the parties in a SafeRoads Albertajudicial review to “... the Director or the adjudicator ...”. [16] Counsel for CPS Respondents indicate the CPS Respondents have identified this issue, requested Ms. Kolbina remove the

CPS Respondents from this matter, and informed Ms. Koblina that the CPS Respondents would seek costs since they have been forced to respond to a matter where there is no basis for the CPS Respondents to be named as parties. [ 17 ] Counsel for the Director agrees with the CPS Respondents’ submissions on this point, indicating that part of the remedy sought in the Koblina 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 CPS Respondents in the original Application and the candidate Amended Originating Application is frivolous and vexatious. [ 18 ] I agree with the CPS Respondents and Director. Including the CPS Respondents in the original Application and the candidate Amended Originating Application is an abuse of the Court and the CPS Respondents.

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 , Alta Reg 224/202. A challenge at the Alberta Court of Queen’s Bench “... to quash the decision of the Peace Officer ...” is a collateral attack on the Kolbina (Re) , 2021 ABSRA 535 decision, and an abuse of the Court: Unrau v National Dental Examining Board , 2019 ABQB 283 at para 619 . [ 19 ] I therefore order that while Ms.

Koblina is permitted to file an Amended Originating Notice, that Amended Originating Notice must: 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 [ 20 ] The Director has also identified several other issues. First, the candidate Amended Originating Application states its return date is August 17, 2021. The Director says the original Application’s return date, May 11, 2021, should instead be used.

I agree. [ 21 ] 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 Ms.

Kolbina from advancing a claim at his judicial review on the basis of purported breach(es) of rights identified in that legislation. [ 22 ] 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 [ 23 ] I order that Counsel for Ms.

Kolbina shall file the candidate Amended Originating Application and Notice to Obtain Record of Proceedings received by the Court on July 28, 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 Ms.

Kolbina’s judicial review is struck out pursuant to Rule 3.68 without further court Order. [ 24 ] The interim stay imposed in Kolbina #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. [ 25 ] I have concluded that Ms. Kolbina’s involving the CPS Respondents in this matter was, from the first, an abuse of the Court and the CPS Respondents. Ms. Koblina and her Counsel were aware of this defect, and that the CPS Respondents would seek costs for being illegitimately forced to respond to Ms.

Kolbina’s challenge to the SafeRoads Alberta decision. Further, I find it relevant and aggravating that when Ms. Koblina had the opportunity to correct this abusive conduct in her response to Koblina #1 , she did not do so. [ 26 ] Given these factors, I order that Ms. Koblina pay each of the CPS Respondents $1,000 in costs forthwith. [ 27 ] Counsel for the Director will prepare the Order giving effect to this Memorandum of Decision. Ms. Kolbina’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 Irina Anatolievna Kolbina Michael A. Power 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. Patrik Urblik, Calgary Police Service