Walker v Alberta (Director of SafeRoads), 2021 ABQB 657

Court of Queen’s Bench of Alberta Citation: Walker v Alberta (Director of SafeRoads), 2021 ABQB 657 Date: 20210817 Docket: 2101 05435 Registry: Calgary Between: John Edward Walker Applicant - and - Director of SafeRoads Alberta, Mark Neufeld, Chief Constable, Calgary Police Service, and Cst. Jessica Gilson, Calgary Police Service 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 [ Walker #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 John Edward Walker [Mr. Walker]. Mr.Walker’s Application was one of seven Applications filed by the same lawyer between March 26 and June 8, 2021 that challengeddecisions of SafeRoads Alberta. Each application contained identical allegations. [2] In the case of Mr. Walker, his Application challenged an April 23, 2021 SafeRoads Alberta decision reported as Walker(Re), 2021 ABSRA 287.

In Walker #1, I concluded, at paras 17-18, that the May 11, 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: Walker #1 at para 9. [4] Mr.

Walker 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. Walker.Counsel for Chief Constable Mark Neufeld and Cst. 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. Walker to make a Written Reply per Walker #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 Walker #1. [9] I agree in part, but find that certain pleadings in the candidate Amended Originating Application remain inadequatelyparticularized, or are otherwise defective, and therefore an abuse of the Court.

Paragraph 9 states: The Adjudicator erred in law, and decided unreasonably, in failing to cancel the NAP on the ground that the Recipient was not given anopportunity to a roadside appeal in accordance with s. 88.11 of the Traffic Safety Act and by considering the second test to be valid asper the statutory mandate in the TSA and PAPA; [10] Succinctly, the scheme under Traffic Safety Act, RSA 2000, c T-6 [TSA] provides that if a driver fails a demanded alcoholbreath device test, then the driver receives a Notice of Administrative Penalty pursuant to TSA s 88.1.

Once a Notice of AdministrativePenalty is issued, the driver may elect to conduct a “Roadside Appeal” (TSA s 88.11), which is providing a breath sample using a seconddifferent alcohol breath device to confirm the result of the first failed test. If the second sample does not result in a fail result on thesecond device, then the Notice of Administrative Penalty is cancelled. [11] Mr. Walker’s candidate amended pleadings indicate there was a second test. Mr. Walker alleges that second test was not an“appeal in accordance with s. 88.11 of the Traffic Safety Act. ...”.

There is no explanation of why that is the case, or what, somehow,distinguished that second text from a legally mandated TSA s 88.11 “appeal”. The Court and Respondent Director cannot make ameaningful response to this allegation. Paragraph 9 is rejected. [12] Paragraph 10 reads: The Adjudicator in confirming the NAP erred in law, and decided unreasonably, in failing to find that the ASD breath sample evidencewas collected in a manner inconsistent with s. 8, 9 and 10(

b) of the Charter and was therefore unreliable evidence or that it wasegregiously unfair to rely upon it; [Emphasis in original.] [13] This is the only occasion in the candidate Amended Originating Application that mentions any Charter provisions. TheseCharter-related claims fail to meet the absolute requirement identified by the Supreme Court of Canada in Mackay v Manitoba that anyCharter-related allegation is pled to establish a factual foundation for that claim. Here, no particulars are pled at all. Paragraph 10contains nothing but bald allegations. How is the evidence unreliable?

How was it “egregiously unfair” to rely on it? It is not even clearwhether Mr. Walker is alleging a breach of those rights, or some other argument. Proposed Paragraph 10 is also rejected. [14] Similarly, paragraph 11 is also nothing but bald allegations, both in failing to identify the purported misconduct of anunnamed officer, but also how the Adjudicator’s decision was an error in law, and unreasonable:

The Adjudicator erred in law, improperly exercised their discretion, and decided unreasonably when they determined the officer’s conduct did not amount to egregious unfairness and by finding the second test/roadside appeal was done voluntarily. Paragraph 11 is rejected. [ 15 ] I note, in addition, that Mr. Walker’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 means, per Mackay v Manitoba , that Mr.

Walker may not advance other allegations that his Charter rights were breached in his judicial review, since allegations that involve Charter rights must be pled and particularized. In addition to my comments concerning paragraph 10, I note that Mr. Walker has made no allegations at all concerning Charter ss 7, 10(

a) or 10(c). B. Parties [ 16 ] Counsel for the CPS Respondents argues there is no basis for the CPS Respondents to be involved in this matter. That makes Mr. Walker naming the CPS Respondents as Respondents an abuse of the Court and the CPS Respondents. The CPS Respondents identify two 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 CPS Respondents observe that the original Walker Application included this paragraph: The Peace Officer in issuing the Notice of Administrative Penalty erred in law and acted unreasonably. [ 18 ] That paragraph was deleted from the candidate Amended Originating Application.

The candidate Amended Originating Application does not directly implicate the CPS Respondents, but instead paragraph 11 implies an unnamed officer did something wrong. I have already commented on the deficiencies in that claim. The CPS Respondents say, and I agree, they are not involved or implicated in the candidate Amended Originating Application. [ 19 ] Counsel for CPS Respondents indicates the CPS Respondents have identified this issue, requested Mr. Walker remove the CPS Respondents from this matter, and informed Mr.

Walker that the CPS Respondents would seek costs since they have been forced to respond to legal proceeding where there is no basis for the CPS Respondents to be named as parties. [ 20 ] Counsel for the Director agrees with the CPS Respondents’ submissions on this point, indicating that part of the remedy sought in the Walker 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. [ 21 ] 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 Walker (Re) , 2021 ABSRA 287 decision, and a serious abuse of the Court: Unrau v National Dental Examining Board , 2019 ABQB 283 at para 619 . [ 22 ] I therefore order that while Mr.

Walker 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 13 to remove the text “... quash the decision of the Peace Officer and ...”. C. Ancillary Issues [ 23 ] 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 11, 2021, should instead be used.

I agree. [ 24 ] 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.

Walker from advancing a claim at his judicial review on the basis of purported breach(es) of rights identified in that legislation. [ 25 ] 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 [ 26 ] I order that Counsel for Mr.

Walker 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. Walker’s judicial review is struck out pursuant to Rule 3.68 without further court Order. [ 27 ] The interim stay imposed in Walker #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. [ 28 ] I have concluded that Mr. Walker’s involving the CPS Respondents in this matter was, from the first, an abuse of the Court and the CPS Respondents. Mr.

Walker and his Counsel were aware of this defect, and that the CPS Respondents would seek costs for being illegitimately forced to respond to Mr. Walker’s challenge to the SafeRoads Alberta decision. Further, I find it relevant and aggravating that when Mr. Walker had the opportunity to correct this abusive conduct in his response to Walker #1 , he did not do so. [ 29 ] Given these factors, I order that Mr. Walker pay each of the CPS Respondents $1,000 in costs forthwith. [ 30 ] Counsel for the Director will prepare the Order giving effect to this Memorandum of Decision. Mr.

Walker’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 John Edward Walker 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. Jessica Gilson, Calgary Police Service