MacDougall v Alberta (Director of SafeRoads), 2021 ABQB 692

Court of Queen’s Bench of Alberta Citation: MacDougall v Alberta (Director of SafeRoads), 2021 ABQB 692 Date: 20210831 Docket: 2103 07015 Registry: Edmonton Between: Todd MacDougall Applicant - and - The Director, SafeRoads Alberta and The Minister of Justice and Solicitor General of Alberta Respondents _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I.

Introduction [ 1 ] On July 20, 2021, this Court, in a decision reported as MacDougall v Alberta (Director of SafeRoads) , 2021 ABQB 561 ( MacDougall #1 ), applied the SafeRoads Alberta Accelerated Review Procedure (SAARP) process to an Originating Application filed on May 14, 2021 by Todd MacDougall (Mr. MacDougall). Mr. MacDougall’s Application challenged a decision of the SafeRoads Alberta tribunal reported as MacDougall (Re) , 2021 ABSRA 254 .

[ 2 ] In MacDougall #1 , I concluded at paras 16-18 that the Originating Application was a prima facie abuse of the Court because the Originating Application failed to provide adequate pleadings: ... The Application does not appear to provide the minimum pleadings to permit a meaningful response. For example, at paragraph 1, the Application does not explain what are the Criminal Code provisions to which “proper reference” should be made. What is “proper reference” is also not indicated or explained.

I note that the Application does not identify the Criminal Code as an applicable act or regulation for this judicial review. ... Similarly, in paragraph two, how did “the officer’s actions” undermine the “right to a roadside appeal”. Who was “the officer”? What evidence of Todd MacDougall was ignored? What evidence of “the officer” was ignored? What was the unreasonable conclusion reached by the Adjudicator? The Application does not therefore appear to satisfy the common law requirement that pleadings must provide the alleged “who, when, where, how and what” for the reviewing Court and Respondent. [ 3 ] Mr.

MacDougall 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 ] The Court, on August 3, 2021, received a candidate Amended Originating Application from Counsel for Mr. MacDougall. Counsel for the Director of SafeRoads Alberta and the Minister of Justice and Attorney General of Alberta (Director) made a Written Submission, dated August 17, 2021. The deadline for a Written Reply by Mr. MacDougall has now passed.

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 [ 5 ] My evaluation of the Director’s submissions, and the candidate Amended Originating Application, has several aspects. A. Pleadings [ 6 ] The candidate Amended Originating Application expands the allegations as to why the SafeRoads Alberta Adjudicator’s decision was unreasonable to identify two issues, that the Adjudicator: 1. was wrong to conclude that Mr.

MacDougall had received a proper breath sample demand given the alleged lack of evidence on that point, and contrary evidence by Mr. MacDougall; and 2. erred in concluding that Mr. MacDougall had an adequate opportunity to seek a roadside appeal given Mr. MacDougall’s circumstances. [ 7 ] Counsel for the Director argues that the candidate Amended Originating Application offends r 13.6(2)(

a) of the Alberta Rules of Court , Alta Reg 124/2010 by pleading evidence and/or argument, 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 MacDougall #1 . [ 8 ] Respectfully, I reject the Director’s argument. 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.

MacDougall 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. MacDougall’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.) [ 9 ] I also conclude that r 13.6(2)(

a) of the Alberta Rules of Court should be interpreted in light of the r 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. [ 10 ] 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 . [ 11 ] I, therefore, conclude that the candidate Amended Originating Application does not offend r 13.6(2)(

a) of the Alberta Rules of Court , and that what Mr. MacDougall now pleads responds to the issues identified in MacDougall #1 . The candidate Amended Originating Application is approved for filing, subject to certain items identified below. B. Parties [ 12 ] Counsel for the Director observes that the candidate Amended Originating Application continues to name the Minister of Justice and Solicitor General of Alberta (Minister) as a Respondent. The Director advises that Counsel for Mr. MacDougall has agreed that the Minister should not be named in this action.

[ 13 ] I order that Mr. MacDougall delete the Minister as a Respondent in the Amended Originating Application. C. Ancillary Issues [ 14 ] The Director has also identified several other issues: 1) the title of the new document should be “Amended Originating Application for Judicial Review”; 2) the Amended Originating Application should be divided into consecutively numbered paragraphs, pursuant to r 13.6(1)(

b) of the Alberta Rules of Court ; 3) the candidate Form 8 should be re-titled “Amended Notice to Obtain Record of Proceedings”; and 4) the candidate Form 8 should delete a passage giving notice to the SafeRoads Alberta Adjudicator. [ 15 ] I agree with these revisions and instruct Counsel for Mr. MacDougall make these changes prior to filing the Amended Originating Notice and Amended Notice to Obtain Record of Proceedings. III. Conclusion [ 16 ] I order that Counsel for Mr.

MacDougall shall file the Amended Originating Application and Notice to Obtain Record of Proceedings received by the Court on August 3, 2021, with the revisions identified above, by 14 days from the date of this Memorandum of Decision. If no Amended Originating Application and Amended Notice to Obtain Record of Proceedings, as instructed in this Memorandum of Decision, is filed by that deadline, then Mr.

MacDougall’s judicial review is struck out pursuant to r 3.68 of the Alberta Rules of Court without further court Order. [ 17 ] The interim stay imposed in MacDougall #1 at para 19 is vacated without further Court Order once the Amended Originating Application and Amended Notice to Obtain Record of Proceedings are filed within the 14-day deadline set out herein. [ 18 ] No costs result from this SAARP process. Counsel for Mr. MacDougall will prepare the Order giving effect to this Memorandum of Decision. Dated at the City of Edmonton, Alberta thi s 31 st day of August, 2021. K.G. Nielsen A.C.J.C.Q.B.A.

Appearances: Frank N. Carbonaro Stuffco Law for the Applicant Todd MacDougall Rachelle K. Roberts Alberta Justice and Solicitor General for the Respondents Director of SafeRoads Alberta, and Minister of Justice and Solicitor General of Alberta