Woodworth v Alberta (Director of SafeRoads), 2021 ABQB 695

Court of Queen’s Bench of Alberta Citation: Woodworth v Alberta (Director of SafeRoads), 2021 ABQB 695 Date: 20210831 Docket: 2101 06839 Registry: Calgary Between: Konnor Woodworth Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I.

Introduction [ 1 ] On July 8, 2021, in a decision reported as Woodworth v Alberta (Director of SafeRoads) , 2021 ABQB 528 [ Woodworth #1 ], I applied the SafeRoads Alberta Accelerated Review Procedure [SAARP] to an Originating Application [Application], that was filed on June 30, 2021 by Konnor Woodworth [Mr. Woodworth]. The Application challenged a SafeRoads Alberta Decision issued on May 28

2021, reported as Woodworth (Re) , 2021 ABSRA 283 . [ 2 ] In Woodworth #1 , I concluded at paras 16-18 that the June 30, 2021 filing was a prima facie abuse of the Court because that document failed to provide adequate pleadings: ... The Application makes only bald allegations. For example, paragraph one indicates that judicial review is sought for whether “a legal and proper approved screening device demand” was made. Was the demand illegal? Improper? How was the demand illegal and/or improper? Who made the demand? When? ... Similarly, paragraph three appears to challenge that Mr.

Woodworth’s right to “a second test” was infringed. What is the “second test”? How was that right infringed? Was this an error in procedure? A failure to follow legislation? [ 3 ] Mr. Woodworth 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. Woodworth 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. Woodworth. Counsel for the Director of SafeRoads Alberta submitted a Written Submission, dated August 19, 2021. A Written Reply from Counsel for Mr. Woodworth was received on August 25, 2021. [ 5 ] That completes the SAARP process: Woodworth #1 at para 21 . 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 and Mr.

Woodworth’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 appears to raise three separate issues which are pled to varying degrees, Mr. Woodworth: 1. was denied his right to provide a second breath alcohol test sample after Mr. Woodworth refused to provide an alcohol breath concentration sample when a demand was made to Mr.

Woodworth; 2. had a reasonable basis to not provide an alcohol concentration breath sample, and, therefore, is not liable for any penalty, and 3. was denied “... a right to contact counsel before being compelled to participate with any police demands. ...”. [ 8 ] Counsel for the Director acknowledges in the Written Submission that Mr. Woodworth’s candidate Amended Statement of Claim is an adequate pleading that largely addresses the issues in Woodworth #1 . I generally agree, with the follow exceptions. [ 9 ] First, Mr. Woodworth’s pleadings are internally inconsistent and therefore illogical.

Succinctly, the scheme under Traffic Safety Act , RSA 2000, c T-6 [ TSA ] provides that if a driver fails a demanded alcohol breath sample device test, then the driver receives a Notice of Administrative Penalty, pursuant to TSA s 88.1. Once a Notice of Administrative Penalty is issued, the driver may elect to conduct a “Roadside Appeal” ( TSA s 88.11), which is providing a breath sample using a second different alcohol breath sampling device to confirm the result of the first failed test.

If the second sample does not result in a fail result on the second device, then the Notice of Administrative Penalty is cancelled. [ 10 ] Paragraph 5 of the candidate Amended Originating Application explicitly states Mr. Woodworth never provided a first breath sample. That refusal was allegedly lawful, because Mr. Woodworth had “... a reasonable excuse for failing to provide a sample of his breath into an ASD. ...”. Paragraph 7 then claims that the Adjudicator was wrong to have rejected this “valid excuse”. [ 11 ] The SAARP process is a method of conducting a Rule 3.68 process.

When conducting a Rule 3.68 analysis, the Court accepts pled facts as accurate and true, except where alleged facts are bald allegations, or in exceptional cases where the alleged facts are on their face absurd. That means that I must accept as correct the paragraph 5 claim that Mr. Woodworth refused to provide a breath sample, and the paragraph 7 claim that Mr. Woodworth had a valid excuse to not provide breath samples to evaluate his bodily alcohol concentration. [ 12 ] That makes the paragraph 6 allegation hopeless. Mr. Woodworth alleges he had a reasonable excuse to provide no breath samples at all.

That means Mr. Woodworth, according to his own pled facts, would never reach the threshold of having a right to a TSA s 88.11 “Roadside Appeal”. Since Rule 3.68 presumes pled facts are accurate, and paragraphs 5 and 7’s alleged facts eliminate the basis for the paragraph 6 claim, paragraph 6 is rejected as a hopeless and abusive pleading. [ 13 ] Second, Mr. Woodworth appears to allege his “right to counsel” was denied. How? When? By whom? Paragraph 5 of the candidate Amended Statement of Claim says Mr. Woodworth was “Chartered and cautioned”. How was the “right to counsel” related to that?

The candidate Amended Originating Application makes no indication of the basis of the “right to counsel”. Is this a Charter s 10(

b) right “... to retain and instruct counsel without delay” claim? Charter s 10(

b) is nowhere mentioned in the candidate Amended Statement of Claim, though Mr. Woodworth’s Written Reply does argue: ... The Application is specific in its claims and relates the facts to the claims which require judicial review, and is specific in the facts

that allege Charter breaches, and specifically which Charter breaches are being claimed. ... [Emphasis added.] But there are no Charter claims at all in the candidate Amended Statement of Claim. [14] I conclude that the “right to counsel” claim is not adequately pled, particularly in light of the high standard imposed inMackay v Manitoba, (SCC), [1989] 2 SCR 357, 61 DLR (4th) 485. The candidate Amended Originating Applicationclaim that Mr. Woodworth’s “right to contact counsel” is rejected.

Failure to particularize any Charter claim in the candidate AmendedOriginating Application means any attempt to introduce Charter allegations in this judicial review is contrary to Mackay v Manitoba,and an abuse of process. [15] That leaves the allegation that the SafeRoads Alberta Adjudicator was wrong to conclude that Mr. Woodworth had areasonable excuse for not providing a breath sample pled in paragraph 5 and 7.

On that basis, I conclude that part of the candidateAmended Originating Application is a potentially valid basis for this action to proceed to a full judicial review. [16] The Director also argues that the candidate Amended Originating Application paragraph 9 remedy of an “appeal” is not aremedy authorized in law. I agree with Director that the remedy in the candidate Amended Originating Application is incorrect. ASafeRoads Alberta judicial review is not an “appeal”. Mr.

Woodworth, instead, should frame his claim in certiorari and mandamus, asset 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 warrantsrejecting the entire candidate Amended Originating Application. Instead, Counsel for Mr. Woodworth is instructed to change paragraph 9to reflect the remedies available to Mr. Woodworth. B.

Ancillary Issues [17] The Director has also identified several other issues with the candidate Amended Originating Application: 1) the return date should be June 30, 2021; 2) the case law cited in paragraph 8 is argument and not a proper pleading, and 3) paragraphs 11-15 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. Woodworth to make these changes prior to filing the Amended OriginatingApplication. III. Conclusion [18] I order that Counsel for Mr.

Woodworth 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, asinstructed in this Decision, is filed by that deadline, then Mr.

Woodworth’s judicial review is struck out pursuant to Rule 3.68 of theAlberta Rules of Court without further court Order. [19] The interim stay imposed in Woodworth #1 at para 19 is vacated without further court Order once the Amended OriginatingApplication is filed within the 14-day deadline. [20] No costs result from this SAARP process. Counsel for Mr. Woodworth will prepare the Order giving effect to thisMemorandum of Decision. Dated at the City of Calgary, Alberta this 31st day of August, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Danusia Bourdon For the Applicant Konnor Woodworth Michael A.

Power Alberta Justice and Solicitor General

for the Respondent Director of SafeRoads Alberta.