Wells v Alberta (Director of SafeRoads), 2021 ABQB 658

Court of Queen’s Bench of Alberta Citation: Wells v Alberta (Director of SafeRoads), 2021 ABQB 658 Date: 20210817 Docket: 2101 06213 Registry: Calgary Between: John Stephen Wells Applicant - and - Director of SafeRoads Alberta, Brenda Lucki, Commissioner, Royal Canadian Mounted Police, and Cst. Andreas Zultner, 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 [ Wells #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 18, 2021 by John Stephen Wells [Mr. Wells]. Mr. Wells’ 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. Wells, his Application challenged a May 4, 2021 SafeRoads Alberta decision reported as Wells (Re) , 2021 ABSRA 351 . In Wells #1 , I concluded, at paras 17-18 , that the May 18, 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 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: Wells #1 at para 9. [4] Mr.

Wells 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. Wells.Counsel for Commissioner Brenda Lucki and Constable Andreas Zultner 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. Wells to make a Written Reply per Wells #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 Wells #1. [9] Respectfully, I disagree.

The candidate Amended Originating Notice remain an abuse of the Court, and should be rejected onthat basis. [10] Succinctly, the scheme under Traffic Safety Act, RSA 2000, c T-6 [TSA] provides that if a driver fails a demanded alcoholbreath sample device test, then the driver receives a Notice of Administrative Penalty pursuant to TSA s 88.1. Once a Notice ofAdministrative Penalty is issued, the driver may elect to conduct a “Roadside Appeal” (TSA s 88.11), which is providing a breath sampleusing a second different alcohol breath sampling device to confirm the result of the first failed test.

If the second sample does not resultin a fail result on the second device, then the Notice of Administrative Penalty is cancelled. [11] Paragraphs 7 and 8 of the candidate Amended Originating Application reads: 7. The Adjudicator erred in law, and decided unreasonably, by relying on the ASD breath sample result which was unlawfully obtainedby Cst. Zultner when the officer then issued the NAP on the basis of a belief that the Recipient’s blood alcohol concentration was at/over80 mg% instead of the Impairment ground for which the officer originally arrested the Recipient. 8.

The Adjudicator erred in law, improperly exercised their discretion, and decided unreasonably, in failing to find that the ASD breathsample result was collected in a manner inconsistent with s. 8, 9 and 10 (

b) of the Charter and by determining that the ASD breathsample result occurred independent of Cst. Zultner’s conduct insofar as the result did not rely on anything the officer did. These are the only allegations in the Wells candidate Amended Originating Application. “ASD” is not defined in the candidate Amended Originating Application, but for the purposes of my analysis I am going to presume Mr.Wells and his Counsel mean “approved screening device”, as defined in TSA s 88.11(1)(c). This is a device that measures blood alcoholconcentration via a breath sample.

In a Rule 3.68 analysis, the Court accepts pled facts as accurate and true, except where alleged factsare bald allegations, or in exceptional cases where the alleged facts are on their face absurd. [12] Combining the pleadings in paragraphs 7 and 8, it appears Mr. Wells says he provided a breath sample, and the result of thatwas what the TSA calls a “fail”, indicating Mr. Wells had a “... blood alcohol concentration ... at/over 80mg% ...”.

If so, then the Noticeof Administrative Penalty was, by definition, valid, since “... [t]he peace officer shall issue a notice of administrative penalty to the driver...”: TSA s 88.1(2). The “Impairment ground” (whatever that was - its nature is not pled) is therefore irrelevant to satisfying the criteriafor a TSA s 88.1 Notice of Administrative Penalty. Mr. Wells pleadings say he failed a blood alcohol concentration breath test.

He,therefore, by law, must receive a Notice of Administrative Penalty. [13] Paragraph 8 on an apparently related note says: “... by determining that the ASD breath sample result occurred independent ofCst. Zultner’s conduct insofar as the result did not rely on anything the officer did.” I have no idea what this means, so this is a furtherbasis to reject paragraph 8 as not providing a basis for a meaningful Court and Respondent response. [14] Furthermore, the allegations of alleged illegality, to the degree I can discern them, are simply bald allegations. How was thebreath sample “unlawfully obtained”?

Because “... the ASD breath sample result was collected in a manner inconsistent with s. 8, 9 and10 (

b) of the Charter”? What was “inconsistent” in the breath sample collection? The candidate Amended Originating Applicationprovide no information at all on that. The Supreme Court of Canada in Mackay v Manitoba instructs that a foundation of facts, or allegedfacts, is an absolute requirement for any Charter-related allegation. Paragraph 8 fails that criterion, and is, therefore, a pleading that is an

abuse of the Court. [ 15 ] Paragraphs 7 and 8 are the only parts of the candidate Amended Originating Notice that make any substantive allegation that the Wells (Re) , 2021 ABSRA 351 was wrongly decided. Since I have rejected all substantive allegations that are the basis of Mr. Wells’ judicial review, I, therefore, conclude that the candidate Amended Originating Application should be entirely rejected. As a consequence, the Wells Docket 2101 06213 judicial review is struck out, entirely, pursuant to Rule 3.68.

Both the original and candidate amended applications are hopeless and abusive filings. [ 16 ] I note, in case I am incorrect in that conclusion, that Mr. Wells’ 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(

a) and 10(c), means, per Mackay v Manitoba , that Mr. Wells 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 [ 17 ] Counsel for the RCMP Respondents argues there is no basis for the RCMP Respondents to be involved in this matter. That makes Mr. Wells 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 ...”. [ 18 ] Second, the RCMP Respondents characterize the remedy sought by Mr. Wells, “... 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.

Wells may challenge the validity of his Notice of Administrative Penalty before the SafeRoads Alberta tribunal. Mr. Wells 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.

Wells has collaterally attacked the Wells (Re) , 2021 ABSRA 351 SafeRoads Alberta tribunal decision that confirmed the Notice of Administrative Penalty. [ 19 ] Third, the original Wells Application included this paragraph: The Peace Officer in issuing the Notice of Administrative Penalty erred in law and acted unreasonably. [ 20 ] 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. [ 21 ] Counsel for RCMP Respondents indicates the RCMP Respondents have identified this issue, and requested Mr. Wells remove the RCMP Respondents from this matter. [ 22 ] Counsel for the Director agrees with the RCMP Respondents’ submissions on this point, indicating that part of the remedy sought in the Wells 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. [ 23 ] 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 Wells (Re) , 2021 ABSRA 351 SafeRoads Alberta decision, and a serious abuse of the Court: Unrau v National Dental Examining Board , 2019 ABQB 283 at para 619 . [ 24 ] If I had concluded that the candidate Amended Originating Notice should be filed, then I would have, in any case, ordered that Amended Originating Notice must: 1. delete the RCMP Respondents as parties; and 2. further amend paragraph 10 to remove the text “... quash the decision of the Peace Officer and ...”. C.

Ancillary Issues [ 25 ] The Director has also identified several other issues. Again, in an excess of caution, and in the event I was wrong to strike out Mr. Wells’ judicial review for failing to advance any valid basis for a judicial review, I will address these ancillary issues. First, the candidate Amended Originating Application states its return date is August 6, 2021. The Director says the original Application’s return date, June 16, 2021, should instead be used.

I agree. [ 26 ] 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.

Wells 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, if Mr. Wells’ judicial review does continue. III. Conclusion [ 28 ] The Wells v Alberta (Director of SafeRoads Alberta) judicial review is struck out pursuant to Rule 3.68. The May 18, 2021 filing was an abuse of the Court and the Respondents.

The candidate Amended Originating Application submitted pursuant to Wells #1 is also an abuse of the Court. Its filing is rejected and refused. Mr. Wells is ordered to pay the Director $1,000 in costs, forthwith. [ 29 ] I have concluded that Mr. Wells involving the RCMP Respondents in this matter was, from the first, an abuse of the Court and the Respondents. Mr. Wells and his Counsel were aware of this defect. The RCMP Respondents were forced to respond to Mr. Wells’ challenge to the SafeRoads Alberta decision. Further, I find it relevant and aggravating that when Mr.

Wells had the opportunity to correct this abusive conduct in his response to Wells #1 , he did not do so. [ 30 ] Given these factors, I order that Mr. Wells pay each of the RCMP Respondents $1,000 in costs, forthwith. [ 31 ] Counsel for the Director will prepare the Order giving effect to this Memorandum of Decision. Mr. Wells’ 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 Stephen Wells 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. Andreas Zultner, Red Deer Detachment, Royal Canadian Mounted Police