Rvachew v Alberta (SafeRoads), 2021 ABQB 665

Court of Queen’s Bench of Alberta Citation: Rvachew v Alberta (SafeRoads), 2021 ABQB 665 Date: 20210819 Docket: 2101 01983 Registry: Calgary Between: Katherine Natalia Rvachew Applicant - and - Alberta Transportation AKA Saferoads Alberta Respondent _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I.

Introduction [ 1 ] On February 24, 2021, this Court, in a decision reported as Rvachew v Alberta (Director of SafeRoads) , 2021 ABQB 527 [ Rvachew #1 ], applied the SafeRoads Alberta Accelerated Review Procedure [SAARP] to an Originating Application that was filed on February 24, 2021 by Katherine Natalia Rvachew [Ms. Rvachew]. Ms. Rvachew’s Application challenged an unreported February

decision of the Director of SafeRoads Alberta. [ 2 ] In Rvachew #1 , I concluded, at paras 17-18 , that the February 24, 2021 filing was a prima facie abuse of the Court because that document failed to provide adequate pleadings: How did SafeRoads Alberta “fail”? Is this complaint that Ms. Rvachew made a late application for a SafeRoads Alberta appeal, and that appeal was refused? What is the “discretion”? Was the “discretion” not exercised, or exercised wrongly? If the latter, what was the reason the late SafeRoads Alberta appeal should have proceeded? How far was Ms. Rvachew out of time?

Why was what SafeRoads Alberta did wrong? [ 3 ] Ms. Rvachew 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 8, 2021, received a candidate Amended Originating Application from Counsel for Ms. Rvachew. Counsel for the Director of SafeRoads Alberta [Director] also submitted a Written Submission, dated August 3, 2021. Counsel for Ms.

Rvachew 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 Ms. Rvachew’s judicial review. Succinctly, the candidate Amended Originating Application states that Ms.

Rvachew, in a timely manner, used the SafeRoads Alberta “Portal” website to initiate an appeal and upload her materials. The second step was confirmed when the “Portal” website reported that the upload had been completed. The Director subsequently refused to hold a hearing based on the error that no materials were uploaded by Ms. Rvachew. Ms. Rvachew asked the Director approve a late hearing, Ms. Rvachew provided her materials a second time, but the Director refused that request. Ms. Rvachew says that refusal was unreasonable. [ 7 ] On that basis, Ms.

Rvachew seeks return of her driver’s licence, or a SafeRoads Alberta hearing of her challenge to the original Notice of Administrative Penalty. [ 8 ] Counsel for the Director takes the position that the candidate Amended Originating Application does not adequately respond to the deficiencies identified in Rvachew #1 , and that I should refuse to permit filing of the candidate Amended Originating Application. [ 9 ] Respectfully, I disagree.

First, the Director acknowledges that the new particulars could be a basis for a valid judicial review, but argues that the candidate Amended Originating Application does not identify why the Director’s decision was unreasonable. I reject this reasoning. SAARP is a method to conduct a Rule 3.68 process. When conducting a Rule 3.68 analysis, facts that are pled, here in the candidate Amended Originating Application, are presumed to be true, unless those are bald unparticularized allegations, or in the unusual scenario where pled claims are simply absurd. [ 10 ] Here, I am required to presume that what Ms.

Rvachew has pled is accurate. She says she followed the SafeRoads Alberta process using its website, but the Director rejected what would appear to be a technical or documentary defect in SafeRoads Alberta’s mechanisms. That kind of allegation does not require additional explanation as to what was unreasonable.

Saying A is B, incorrectly, is clearly unreasonable. [ 11 ] The Director also argues that the candidate Amended Originating Application: 1. does not provide full citations for relevant legislation, 2. contains evidence rather than alleged facts, in breach of Rule 13.6(2)(a), and 3. seeks remedies that are not framed as judicial review remedies, rather than the judicial review remedies provided for by legislation pursuant to Provincial Administrative Penalties Act , SA 2020, c. P-30.8 , s 24(2). [ 12 ] In her Written Reply, Ms.

Rvachew disputes that the pleadings still do not provide a basis for a meaningful response by the Court and Director. [ 13 ] I respectfully disagree with the Director, and instead conclude that Ms. Rvachew has satisfied the minimum pleadings requirements set by Canadian law, and, therefore, order that Counsel for Ms. Ravchew shall file the proposed Amended Originating Application. [ 14 ] Beyond that, I do have several additional observations. First, Ms.

Rvachew 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 that Counsel for Ms. Ravchew 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 .

[ 15 ] That said, I do conclude that Ms. Rvachew has, on a balance of probabilities, established a basis for her judicial review that passes a Rule 3.68 review. [ 16 ] The Director argues that the manner in which remedies are framed in the candidate Amended Originating Notice is improper. I find that, for clarity, it is preferable to frame the remedy sought by Ms. Rvachew as certiorari (quashing of the Director’s decision) and mandamus (instructing that SafeRoads Alberta conduct a hearing of Ms. Rvachew’s challenge to the Notice of Administrative Penalty). The Written Reply from Counsel for Ms.

Rvachew is very clear on that point: what Ms. Ravchew seeks is a hearing of her challenge. [ 17 ] Judicial review is not a right, but a discretionary remedy: Strickland v Canada (Attorney General) , 2015 SCC 37 at para 37- 39 . From the pleadings I have received, there is no indication that the substantive complaint by Ms. Rvachew as to why the Notice of Administrative Penalty was wrong or invalid has been the subject of review by SafeRoads Alberta. In fact, I have no idea what Ms. Rvachew’s complaint might be. That means the question of whether Ms.

Rvachew’s licence should or should not be suspended has never been investigated in fact and law. [ 18 ] The Supreme Court of Canada in explicit in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 at paras 22-26 , that raising issues for the first time on judicial review is inappropriate. That task should be first conducted within the expert tribunal, and then the Court may evaluate the issue or not.

Raising issues for the first time on judicial review is a basis to exercise the Court’s discretion and reject a candidate judicial review. [ 19 ] I have concluded that it is appropriate that Ms. Rvachew may apply via judicial review for an instruction that the Director have SafeRoads Alberta hear her complaint. However, I refuse to exercise the Court’s discretion to potentially return Ms. Rvachew’s drivers’ licence. The potential basis for that step has not yet been adjudicated before the Tribunal.

I, therefore, agree with the Director that the remedy sought in the candidate Amended Originating Application is overbroad, and should be replaced to: 1. specify the remedy sought is mandamus and certiorari of the Director’s decision to refuse a SafeRoads Alberta hearing of Ms. Rvachew’s complaint, as provided for by Provincial Administrative Penalties Act , SA 2020, c. P-30.8 , s 24(2), and 2. remove return of Ms. Rvachew’s driver’s licence as a potential remedy. [ 20 ] The Director has observed, and Ms.

Rvachew acknowledges, that the citations for certain litigation pled in the candidate Amended Statement of Claim is incomplete. I order Counsel for Ms. Rvachew shall update the candidate Amended Statement of Claim to provide complete citations for clarity. [ 21 ] The candidate Amended Originating Application also states its return date is November 24, 2021. The Director says the original Application’s return date, March 29, 2021, should instead be used. I agree. III. Conclusion [ 22 ] I order that Counsel for Ms.

Rvachew shall file the candidate Amended Originating Application received by the Court on July 19, 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 Ms.

Ravchew’s judicial review is struck out pursuant to Rule 3.68 without further court Order. [ 23 ] The interim stay imposed in Rvachew #1 at para 19 is vacated without further court Order once the Amended Originating Application is filed within the 14-day deadline. [ 24 ] No costs result from the Rvachew v Director of SafeRoads Alberta SAARP process. Counsel for Ms. Rvachew 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 Katherine Natalia Rvachew

Michael A. Power Alberta Justice and Solicitor General for the Respondent Director of SafeRoads Alberta