Mierke v Alberta (Director of SafeRoads), 2021 ABQB 664

Court of Queen’s Bench of Alberta Citation: Mierke v Alberta (Director of SafeRoads), 2021 ABQB 664 Date: 20210819 Docket: 2101 02670 Registry: Calgary Between: Michael Mierke Applicant - and - Her Majesty the Queen -Director of SafeRoads Alberta Respondent _______________________________________________________ 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 Mierke v Alberta (Director of SafeRoads) , 2021 ABQB 530 [ Mierke #1 ], applied the SafeRoads Alberta Accelerated Review Procedure [SAARP] to an Originating Application that was filed on March 10, 2021 by Michael Mierke [Mr. Mierke]. Mr. Mierke’s Application challenged an unreported March 1, 2021 decision of SafeRoads

Alberta. [ 2 ] In Mierke #1 , I concluded, at paras 16-17 , that the March 10, 2021 filing was a prima facie abuse of the Court because that document failed to provide adequate pleadings: The Application does not identify at all what error or errors were made by the SafeRoads Adjudicator. The Application provides no information at all on why the SafeRoads Alberta Decision was wrong, let alone “patently unreasonable”. This pleading does not appear to provide the “who, when, where, how and what” of the judicial review’s claims. [ 3 ] Mr.

Mierke was given 14 days to either: 1) discontinue the Application, 2) submit a candidate Amended Originating Application, or 3) provide an up to ten-page Written Submission to explain why the Originating Application is a valid action. [ 4 ] The Court, on July 19, 2021, received a candidate Amended Originating Application from Counsel for Mr. Mierke. Counsel for the Director of SafeRoads Alberta [Director] also submitted a Written Submission, dated August 3, 2021. Counsel for Mr. Mierke then submitted a Written Reply on August 9, 2021. [ 5 ] That completes the SAARP amended application procedure.

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 [ 6 ] The candidate Amended Originating Application provides additional particulars that describe the basis of Mr. Mierke’s judicial review. Succinctly, the candidate Amended Originating Application states that the SafeRoads Alberta Adjudicator was wrong to reject that Mr. Mierke had a reasonable excuse for not having provided a breath sample on January 28, 2021.

That alleged reasonable excuse was a combination of physical exertion, a pre-existing medical condition, and that Mr. Mierke was at that time suffering from COVID-19. [ 7 ] Counsel for the Director takes the position that the candidate Amended Originating Application does not adequately respond to the deficiencies identified in Mierke #1 , and that I should refuse to permit filing of the candidate Amended Originating Application.

The Director argues that the candidate Amended Originating Application: 1. still does not adequately particularize the alleged errors made by the SafeRoads Alberta Adjudicator, nor provide full citations for relevant legislation, 2. contains evidence rather than alleged facts, in breach of Rule 13.6(2)(a), and 3. seeks common law judicial review remedies, rather than the judicial review provided for by legislation pursuant to Provincial Administrative Penalties Act , SA 2020, c. P-30.8 , s 24(2). [ 8 ] In his Written Reply, Mr.

Mierke disputes that the pleadings still do not provide a basis for a meaningful response by the Court and Director. [ 9 ] I respectfully disagree with the Director, and instead conclude that Mr. Mierke has satisfied the minimum pleadings requirements set by Canadian law, and, therefore, order that Counsel for Mr. Mierke shall file the conditional Amended Originating Application.

The critical components that I identify in the conditional Amended Originating Application are as follows, the conditional Amended Originating Application: 1. indicates a specific alleged error by the Administrator: whether the evidence that Mr. Mierke presented at the SafeRoads Alberta hearing was a basis to support a reasonable excuse; and 2. what the evidence that Mr. Mierke produced at the SafeRoads Alberta hearing was, and how that evidence is relevant to the question of whether Mr.

Mierke had a reasonable basis to refuse to provide a breath sample. [ 10 ] Beyond that, I do have several additional observations. First, Mr. Mierke relies on Alberta Adolescent Recovery Centre v Canadian Broadcasting Corporation , 2012 ABQB 48 as the authority for the Rule 3.68 test and the threshold for review of candidate problematic filings under that Rule . This decision of Justice Martin, then of this Court, no longer reflects the current law in Canada.

Subsequent to this 2012 decision, the Supreme Court of Canada in Hryniak v Mauldin , 2014 SCC 7 instructed that trial courts must engage in a “culture shift” away from strict formalism towards proportionate civil litigation. That includes Rule 3.68 procedures: Al- Ghamdi v College and Association of Registered Nurses of Alberta , 2020 ABCA 81 at paras 16-17 , see also HOOPP Realty Inc v The Guarantee Company of North America, 2015 ABCA 336 ; PricewaterhouseCoopers Inc v Perpetual Energy Inc , 2021 ABCA 16 . It appears Counsel for Mr.

Mierke has concluded that Rule 3.68 applies a “beyond a reasonable doubt” test (see Written Reply at para 10). That, too, is false. There are only two standards of proof in Canada, and in civil matters the only standard of proof is on a balance of probabilities: FH v McDougall , 2008 SCC 53 at para 49 . [ 11 ] That said, I do conclude that Mr. Mierke has, on a balance of probabilities, established a basis for his judicial review that passes a Rule 3.68 review. [ 12 ] The Director has observed, and Mr.

Mierke acknowledges, that the citations for certain litigation pled in the candidate Amended Statement of Claim are incomplete. I order Counsel for Mr. Mierke shall update the candidate Amended Statement of Claim to provide complete citations for clarity. [ 13 ] The candidate Amended Originating Application also states its return date is November 17, 2021. The Director says the original Application’s return date, April 16, 2021, should instead be used. I agree.

III. Conclusion [ 14 ] I order that Counsel for Mr. Mierke shall file the candidate Amended Originating Application 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 is filed as instructed in this Decision by that deadline, then Mr.

Mierke’s judicial review is struck out pursuant to Rule 3.68 without further court Order. [ 15 ] The interim stay imposed in Mierke #1 at para 18 is vacated without further court Order once the Amended Originating Application is filed within the 14-day deadline. [ 16 ] No costs result from the Mierke v Director of SafeRoads Alberta SAARP process. Counsel for Mr. Mierke will prepare the Order giving effect to this Memorandum of Decision. Dated at the City of Calgary, Alberta this 19 th day of August, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Alan Pearse for the Applicant Michael Mierke Rachelle K.

Roberts Alberta Justice and Solicitor General for the Respondent Director of SafeRoads Alberta