Axley v Alberta (Director of SafeRoads), 2021 ABQB 685

Court of Queen’s Bench of Alberta Citation: Axley v Alberta (Director of SafeRoads), 2021 ABQB 685 Date: 20210827 Docket: 2101 06235 Registry: Calgary Between: Austin Axley Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I.

Introduction [ 1 ] On July 13, 2021, in a decision reported as Axley v Alberta (Director of SafeRoads) , 2021 ABQB 552 [ Axley #1 ], I applied the SafeRoads Alberta Accelerated Review Procedure [SAARP] to an Originating Application [Application], that was filed on May 27, 2021 by Austin Axley [Mr. Axley]. The Application challenged a SafeRoads Alberta Decision issued on May 10, 2021, reported as Axley (Re) , 2021 ABSRA 365 .

[ 2 ] In Axley #1 , I concluded at paras 15-16 that the May 27, 2021 filing was a prima facie abuse of the Court because that document failed to provide adequate pleadings: The Application pleads no facts at all relating to how the SafeRoads Alberta decision was unfair and/or illegal. All that the Application states is there was something wrong with “the mandatory alcohol screening demand”, and that this illegality and/or unfairness was not correctly addressed in the SafeRoads Alberta Decision. This pleading does not appear to provide the “who, when, where, how and what” of the judicial review’s claims. [ 3 ] Mr.

Axley was given 14 days to either: 1) discontinue the Originating 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 ] Counsel for Mr. Axley requested an extension of time to prepare a candidate Amended Originating Application, which was granted. The Court on August 5, 2021, received a candidate Amended Originating Application from Counsel for Mr. Axley. Counsel for the Director of SafeRoads Alberta submitted a Written Submission, dated August 19, 2021.

A Written Reply from Counsel for Mr. Axley was received on August 25, 2021. [ 5 ] That completes the SAARP process: Axley #1 at para 19 . 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 ] My evaluation of the Director’s submissions, and the candidate Amended Originating Application, has several aspects. A.

Pleadings [ 7 ] The candidate Amended Originating Application expands the allegations as to why the SafeRoads Alberta Adjudicator’s decision was unreasonable. The candidate Amended Originating Application identifies one issue: whether the SafeRoads Alberta Adjudicator was wrong to reject that an eight-minute delay between when Mr. Axley was stopped by a peace officer, and a breath sample demand was made, meant the breath sample demand was not “immediate”, and that breached Mr. Axley’s Charter ss 8, 9, and 10(

b) rights. [ 8 ] Counsel for the Director argues that the candidate Amended Originating Application has a number of defects, namely that it: 1. offends Rule 13.6(2) (

a) of the Alberta Rules of Court , Alta Reg 124/2010 by pleading evidence, and when the improper components of the candidate Amended Originating Application are removed, what remains does not provide the pleadings that would correct the deficiencies identified in Axley #1 ; 2. fails to plead the particulars required to ground a Charter remedy; and 3. seeks a remedy that is not authorized in law. [ 9 ] I agree with some of the issues identified by Counsel for the Director. First, SAARP is a method to conduct a Rule 3.68 procedure that tests the pleadings contents of a civil litigation document.

During a Rule 3.68 analysis, the facts alleged by the document under review are presumed to be accurate and true, unless those allegations are bald and unparticularized, or in the unusual circumstance where the alleged facts are simply absurd. Paragraph 2 of the candidate Amended Statement of Claim says that Mr. Axley was stopped because he was towing a trailer with no licence plate. I must conclude that is correct. The candidate Amended Originating Application does not allege the police officer acted illegally in stopping Mr. Axley on that basis.

That means I must conduct the Rule 3.68 analysis under the presumption that Mr. Axley was stopped and detain in a lawful manner. [ 10 ] Charter s 9 prohibits arbitrary detention and imprisonment. I therefore reject Mr. Axley’s allegation that his Charter s 9 rights were breached. His own pleadings establish Mr. Axley was lawfully detained. The alleged Charter s 9 breach is therefore rejected. [ 11 ] Charter s 10(

b) guarantees that “[e]veryone has the right on arrest or detention ... to retain and instruct counsel without delay and to be informed of that right”. The candidate Amended Originating Application provides no factual or alleged factual basis that implicates Charter s 10(b). I therefore conclude there is no basis in the proposed pleadings to substantiate a Charter s 10(

b) breach. That claim is also rejected. [ 12 ] That leaves the alleged Charter s 8 breach, which is that an eight-minute delay in demanding a breath sample means that the demand is not “immediate”, and, therefore, is an “unreasonable search or seizure”. Here, I respectfully reject the Director’s Rule 13.6(2) (

a) argument. [ 13 ] First, the SAARP process provides a way for deficient pleadings to be corrected, most often because the original application relied only on bald allegations. Mr. Axley has the opportunity to provide the additional alleged facts and claims to potentially provide a valid application so that the Court and Director understands and can respond to Mr. Axley’s judicial review.

I agree with Justice Strekaf, who in Alberta v Altria Group, Inc , 2015 ABQB 390 at paras 21 , 52, concluded that “... [t]he line between [facts and evidence] is often difficult to draw ...”, citing Can-Air Services Ltd v British Aviation Insurance Co (1988), 1988 ABCA 341 . Justice Strekaf, at para 21, then summarized the issue in this manner: ... Material facts are facts upon which the party pleading relies for its claim, whereas evidence consists of the manner by which those facts are to be proved ... The distinction between the two is often a question of degree.

Expert report or opinion is evidence, not material fact, and therefore need not be particularized ... [Citation omitted.]

[ 14 ] I also conclude that Rule 13.6(2) (

a) of the Alberta Rules of Court should be interpreted in light of the Rule 1.2 general purpose provisions of the Alberta Rules of Court , that impose a functional and efficiency requirement on parties to litigation and their conduct.

Framed in that context, if some of the candidate Amended Originating Application crosses the ill-defined line between fact and evidence, then deleting those extraneous elements, with the effect of defeating a proceeding, is unlikely an appropriate litigation management step. [ 15 ] Put another way, if the candidate Amended Originating Application is “edging across the line”, that is not an injury to the Director.

What is more important is that pleadings serve their critical function: setting out the issues to which the opposing party must respond, and alerting that party to the case it must meet: Whiten v Pilot Insurance Co , 2002 SCC 18 at para 87 . [ 16 ] I, therefore, conclude that the candidate Amended Originating Application does not offend Rule 13.6(2) (

a) of the Alberta Rules of Court , and that what Mr. Axley now pleads responds to the issues identified in Axley #1 . [ 17 ] I agree with Director that the remedy in the candidate Amended Originating Application is incorrect. A SafeRoads Alberta judicial review is not an “appeal”. Mr. Axley, instead, should frame his claim in certiorari and mandamus , as set by Provincial Administrative Penalties Act , SA 2020, c P-30.8 , s 24(2). However, I do not classify that as a fatal error that warrants rejecting the candidate Amended Originating Application. Instead, Counsel for Mr.

Axley is instructed to change paragraph 7 to reflect the remedies available to Mr. Axley. B. Ancillary Issues [ 18 ] The Director has also identified several other issues with the candidate Amended Originating Application: 1) the return date should be June 21, 2021; 2) the case law cited in paragraph 5 is argument and not a proper pleading, and 3) paragraphs 8-12 should include complete statute citations and relevant sections of that legislation that are relied upon. I agree with these revisions and instruct Counsel for Mr. Axley to make these changes prior to filing the Amended Originating Application. III.

Conclusion [ 19 ] I order that Counsel for Mr. Axley shall file the Amended Originating Application received by the Court on August 5, 2021, with the revisions identified above, by 14 days from the date of this Decision. If no Amended Originating Application, as instructed in this Decision, is filed by that deadline, then Mr.

Axley’s judicial review is struck out pursuant to Rule 3.68 of the Alberta Rules of Court without further court Order. [ 20 ] The interim stay imposed in Axley #1 at para 17 is vacated without further court Order once the Amended Originating Application is filed within the 14-day deadline. [ 21 ] No costs result from this SAARP process. Counsel for Mr. Axley will prepare the Order giving effect to this Memorandum of Decision. Dated at the City of Calgary, Alberta this 27 th day of August, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Danusia Bourdon For the Applicant Austin Axley Michael A.

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