Lozynsky v Alberta (Director of SafeRoads), 2021 ABQB 654

Court of Queen’s Bench of Alberta Citation: Lozynsky v Alberta (Director of SafeRoads), 2021 ABQB 654 Date: 20210817 Docket: 2101 05410 Registry: Calgary Between: Joseph Bohdan Lozynsky Applicant - and - Director of SafeRoads Alberta, Brenda Lucki, Commissioner, Royal Canadian Mounted Police, and Cst. Trevor Skappak, Red Deer 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 [ Lozynsky #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 5, 2021 by Joseph Bohdan Lozynsky [Mr. Lozynsky]. Mr. Lozynsky’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. Lozynsky, his Application challenged an unreported SafeRoads Alberta decision. In Lozynsky #1, Iconcluded, at paras 17-18, that the May 5, 2021 filing was a prima facie abuse of the Court because that document failed to provideadequate 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: Lozynsky #1 at para 9. [4] Mr.

Lozynsky 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.Lozynsky. Counsel for Commissioner Brenda Lucki and Constable Trevor Skappak of the Royal Canadian Mounted Police [RCMPRespondents] submitted a Written Submission on August 3, 2021.

Counsel for the Director of SafeRoads Alberta [Director] alsosubmitted a Written Submission, dated August 3, 2021. [6] The deadline has passed for Mr. Lozynsky to make a Written Reply per Lozynsky #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,in whole 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 Lozynsky #1. [9] I agree in part. Certain parts of the candidate Amended Originating Notice remain an abuse of the Court. [10] First, Mr. Lozynsky’s pleadings are internally inconsistent and therefore illogical.

Succinctly, the scheme under Traffic SafetyAct, RSA 2000, c T-6 [TSA] provides that if a driver fails a demanded alcohol breath sample device test, then the driver receives a Noticeof Administrative Penalty pursuant to TSA s 88.1. Once a Notice of Administrative Penalty is issued, the driver may elect to conduct a“Roadside Appeal” (TSA s 88.11), which is providing a breath sample using a second different alcohol breath sampling device to confirmthe result of the first failed test.

If the second sample does not result in a fail result on the second device, then the Notice ofAdministrative Penalty is cancelled. [11] Paragraph 8 of the candidate Amended Originating Application implies that Mr. Lozynsky did not provide a first breathsample. Instead, paragraph 8 appears to allege that Mr. Lozynsky did not provide any breath sample at all. That was allegedly lawful,because Mr. Lozynsky had “... a valid excuse for not providing a sample ... his Covid-19 concerns ...”.

Paragraph 8 then claims that theAdjudicator was wrong to have rejected this “valid excuse”. [12] Paragraph 10 then states: The Adjudicator erred in law, and decided unreasonably when they applied the standard of willful blindness to the statutorily mandatedobligation on Cst. Skappak to inform the Recipient of the right to a second test; The SAARP process is a method of conducting a Rule 3.68 process. When conducting a Rule 3.68 analysis, the Court accepts pled factsas accurate and true, except where alleged facts are bald allegations, or in exceptional cases where the alleged facts are on their faceabsurd.

That means I must accept as correct the paragraph 8 claim that Mr. Lozynsky had a valid excuse to not provide breath samples todetect bodily alcohol concentration, and that excuse had something to do with COVID-19. [13] That makes the paragraph 10 allegation hopeless. Mr. Lozynsky alleges he had a reasonable excuse to provide no breathsamples at all. That means Mr. Lozynsky, according to his own pled facts, would never reach the threshold of having a right to a TSA s88.11 “Roadside Appeal”. Furthermore, that Roadside Appeal would be impossible anyways. Mr.

Lozynsky, by his own pleadings,could not provide a breath sample because of “his Covid-19 concerns”, which were “valid”. [14] Since Rule 3.68 presumes pled facts are accurate, and paragraph 8’s facts eliminate the basis for the paragraph 10 allegation,paragraph 10 is rejected as a hopeless and abusive pleading. [15] The Supreme Court of Canada in Mackay v Manitoba instructs that a foundation of facts, or alleged facts, is an absoluterequirement for any Charter-related allegation.

Paragraph 11 of the candidate Amended Originating Application alleges breaches ofCharter ss 8-9, but provides no explanation at all of how those breaches allegedly occurred:

The Adjudicator erred in law, and decided unreasonably, when they determined that Cst. Skappak’s breach of the Recipient’s sections 8 and 9 Charter rights did not affect the relevance or reliability of the unlawfully obtained breath sample evidence; [ 16 ] Furthermore, paragraph 11 makes no sense. Charter s 8 prohibits unreasonable searches and seizures. Charter s 9 prohibits arbitrary detention or imprisonment. The result of a test that determined a blood alcohol concentration will remain equally relevant and reliable regardless of whether or not that data was the product of an illegal search.

The nature of a search does not alter the physical reality measured by a device. Similarly, the purported illegal character of a detention (presuming that is what the unparticularized Charter s 9 claim in paragraph 11 is about), has nothing to do with whether a blood alcohol measurement is relevant or reliable.

I order Paragraph 11 is removed from the candidate Amended Originating Application. [ 17 ] 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 9 Charter rights with the regime’s statutory mandate; [ 18 ] This paragraph again alleges only further bald allegations, perhaps pointing to what presumably are the paragraph 11 unidentified 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. [ 19 ] I note, in addition, that Mr. Lozynsky’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. Lozynsky 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 [ 20 ] Counsel for the RCMP Respondents argues there is no basis for the RCMP Respondents to be involved in this matter. That makes Mr.

Lozynsky 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 ...”. [ 21 ] Second, the RCMP Respondents characterize the remedy sought by Mr. Lozynsky, “... to quash the decision of the Peace Officer ...”, as a collateral attack on the SafeRoads Alberta decision.

The Provincial Administrative Penalties Act and SafeRoads Alberta Regulation , Alta Reg 224/202 legislative scheme provides that Mr. Lozynsky may challenge the validity of his Notice of Administrative Penalty before the SafeRoads Alberta tribunal. Mr. Lozynsky exercised that right, and that claim 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.

Lozynsky has collaterally attacked the SafeRoads Alberta tribunal decision that confirmed the Notice of Administrative Penalty. [ 22 ] Third, the original Lozynsky Application included this paragraph: The Peace Officer in issuing the Notice of Administrative Penalty erred in law and acted unreasonably. [ 23 ] 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. [ 24 ] Counsel for RCMP Respondents indicates the RCMP Respondents have identified this issue, and requested Mr. Lozynsky remove the RCMP Respondents from this matter. [ 25 ] Counsel for the Director agrees with the RCMP Respondents’ submissions on this point, indicating that part of the remedy sought in the Lozynsky 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 Respondents in the original Application, and the candidate Amended Originating Application, is frivolous and vexatious. [ 26 ] I agree with the RCMP Respondents and Director. Including the RCMP Respondents in the original Application and the candidate Amended Originating Application is an abuse of the Court and the RCMP 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 . A challenge at the Alberta Court of Queen’s Bench “... to quash the decision of the Peace Officer ...” is a collateral attack on the SafeRoads Alberta decision, and a serious abuse of the Court: Unrau v National Dental Examining Board , 2019 ABQB 283 at para 619 . [ 27 ] I therefore order that while Mr.

Lozynsky 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

[ 28 ] 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, May 27, 2021, should instead be used. I agree. [ 29 ] 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.

Lozynsky from advancing a claim at his judicial review on the basis of purported breach(es) of rights identified in that legislation. [ 30 ] 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 [ 31 ] I order that Counsel for Mr.

Lozynsky 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.

Lozynsky’s judicial review is struck out pursuant to Rule 3.68 without further court Order. [ 32 ] The interim stay imposed in Lozynsky #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. [ 33 ] I have concluded that Mr. Lozynsky involving the RCMP Respondents in this matter was, from the first, an abuse of the Court and the Respondents. Mr. Lozynsky and his Counsel were aware of this defect. The RCMP Respondents were forced to respond to Mr.

Lozynsky’s challenge to the SafeRoads Alberta decision. Further, I find it relevant and aggravating that when Mr. Lozynsky had the opportunity to correct this abusive conduct in his response to Lozynsky #1 , he did not do so. [ 34 ] Given these factors, I order that Mr. Lozynsky pay each of the RCMP Respondents $1,000 in costs forthwith. [ 35 ] Counsel for the Director will prepare the Order giving effect to this Memorandum of Decision. Mr. Lozynsky’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 Joseph Bohdan Lozynsky Rachelle K. Roberts Alberta Justice and Solicitor General for the Respondent Director of SafeRoads Alberta Tessa la Bastide Attorney General of Canada for the Respondents Brenda Lucki, Commissioner, Royal Canadian Mounted Police, and Cst. Trevor Skappak, Red Deer Detachment, Royal Canadian Mounted Police