McDonald v Alberta (Director of SafeRoads), 2021 ABQB 751

Court of Queen’s Bench of Alberta Citation: McDonald v Alberta (Director of SafeRoads), 2021 ABQB 751 Date: 20210921 Docket: 2103 04683 Registry: Edmonton Between: Heather McDonald Applicant - and - The Director, SafeRoads Alberta, the Attorney General of Canada, 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 McDonald v Alberta (Director of SafeRoads) , 2021 ABQB 562 ( McDonald #1 ), applied the SafeRoads Alberta Accelerated Review Procedure (SAARP) to an Originating Application, that was filed by Heather McDonald (Ms. McDonald) on February 18, 2021. The Originating Application challenged a SafeRoads Alberta Decision reported as McDonald (Re) , 2021 ABSRA 163 .

[ 2 ] In McDonald #1 , I concluded, at paras 16-18 , that the Originating Application was a prima facie abuse of the Court because that document failed to provide adequate pleadings: ... The Application at paragraph one provides no indication at all as to how the SafeRoads Alberta Adjudicator “... failed to meaningfully address the impact of the Provincial Administration Penalties Regulation on the admissibility of evidence.” What evidence? What was the failure? How was the failure “meaningful”? Similarly, paragraph two is a bald allegation. What was the inadmissible evidence?

What was the Adjudicator’s error? ... The constitutional challenge at paragraph four appears to fail to satisfy the Mackay v Manitoba requirement for pleading a claim of constitutional invalidity. Is this a Charter remedy? If so, what Charter

section or sections is involved? Or is this some other form of constitutional complaint? [ 3 ] Ms. McDonald 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 Ms. McDonald.

Counsel for the Director of SafeRoads Alberta (Director) provided Written Submissions concerning the validity of the candidate Amended Originating Application on August 17, 2021. No Written Submissions were received from the Respondents the Attorney General of Canada and the Minister of Justice and Solicitor General of Alberta. Reply Submissions were received from Ms. McDonald on August 24, 2021. That completes the SAARP process: McDonald #1 at para 21 . II. Analysis [ 5 ] My analysis of the potential validity of the candidate Amended Originating Application, and the arguments by the parties, has several parts.

A. Pleadings [ 6 ] The candidate Amended Originating Application expands on the allegations included in the original Originating Application, and, more specifically, now claims the SafeRoads Alberta Adjudicator erred because: 1. documents relied upon by the Adjudicator were not signed, or made “under oath”, and therefore were inadmissible; 2. without the inadmissible evidence there was no evidence that Ms. McDonald had operated a motor vehicle while impaired or with a prohibited blood alcohol concentration; 3. relevant evidence was not disclosed to Ms. McDonald; and 4.

SafeRoads Alberta tribunal proceedings are procedurally unfair because Ms. McDonald was prohibited from making a recording of the hearing. [ 7 ] The Director takes the position that much of the new pleadings introduced in the candidate Amended Originating Application are evidence or argument, which is not a proper component of pleadings. The Director also argues that the “no recording” issue is unrelated to the Adjudicator’s decision, or a basis to argue the Adjudicator reached an incorrect result that should be quashed. [ 8 ] Counsel for Ms.

McDonald disagrees, and argues on a point-by-point basis that the expanded pleadings were appropriate to meet the issues identified by the Court in McDonald #1 . However, with the no recording issue, Ms. McDonald acknowledges that this question is, in a sense, hypothetical, since this purported defect would be pursued only if Ms. McDonald concluded that the hearing recording and record provided by the Director was incomplete and/or inaccurate. [ 9 ] Respectfully, I reject the Director’s argument concerning the first three issues.

First, the SAARP process provides a way for deficient pleadings to be corrected, most often because the original application relied only on bald allegations. Ms. McDonald 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 Ms. McDonald’s judicial review.

I agree with Strekaf J, 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 ABCA 341 . Strekaf J, 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.) [ 10 ] I also conclude that r 13.6(2)(

a) of the Alberta Rules of Court Alta Reg 124/2010 , 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. [ 11 ] 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 . [ 12 ] However, I agree with the Director that the no recording issue is improperly pled. First, there is an alternative administrative

remedy available to Ms. McDonald. She may, upon receipt of the record for the SafeRoads Alberta March 11, 2021 tribunal proceeding,apply to the Court for an Order that the Director supply an adequate, accurate record. This process adheres to the principle that a litigantmust exhaust their administrative remedies prior to seeking a judicial remedy (Al-Ghamdi v Alberta, 2017 ABQB 684 at paras 126-128,aff’d 2020 ABCA 81, leave to appeal to SCC refused, 39389 (25 February 2021)), and litigating otherwise is an abuse of the Court.Second, this premature argument also is being conducted without relevant facts.

Counsel for Ms. McDonald is correct that he has nofactual basis to argue the no recording SafeRoads Alberta rule has denied his client in procedural fairness. This argument is purelyhypothetical. [13] Further, even though Ms. McDonald argues this is not a Charter (The Constitution Act, 1982, being

Schedule B to the CanadaAct 1982 (UK), 1982, c 11) question, more accurately, the no recordings means procedural unfairness argument advanced in thecandidate Amended Originating Application necessarily has a Charter aspect because: 1) Ms. McDonald is arguing that a SafeRoadsAlberta procedure creates fatal procedural unfairness, and 2) quashing the SafeRoads Alberta decision must then result. Proceduralfairness during administrative processes is a facet of the Charter s 7: Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817.

Charter litigation should be conducted with a clear, identified matrix of facts or alleged facts:Mackay v Manitoba, (SCC), [1989] 2 SCR 357, 61 DLR (4th) 485. I, therefore, conclude that the no recording issue is,at this point, an abuse of the Court, on this second, independent, basis. [14] The fourth ground set out in para 6 hereof is rejected, and should be deleted from the candidate Amended Originating Notice.For clarity, this finding does not exclude Ms.

McDonald from subsequently advancing an argument that the SafeRoads Alberta norecording rule has resulted in procedural unfairness to her, but that argument must be grounded on facts that can be tested by the Court,and not as a hypothetical issue. [15] I conclude the other three issues as pled in the candidate Amended Originating Application provide adequate particulars thatcorrect the defects identified in McDonald #1 so that this judicial review may proceed to a full judicial review. B.

Parties [16] The Director observes there is no basis in law or alleged fact for the Attorney General of Canada, and Minister of Justice andSolicitor General of Alberta, to be named as Respondents. Counsel for Ms. McDonald acknowledges in his Written Reply that is correct:there is no basis to include these parties in this judicial review. Counsel for Ms. McDonald then states Ms.

McDonald intends: ... to file a Notice of Discontinuance immediately after completion of the accelerated review procedure, should the pleadings be accepted.Out of an abundance of caution, the Applicant kept the parties the same as the original version of the Originating Application for thepurposes of the accelerated review ... [17] I do not understand this explanation for why Ms. McDonald would continue to include Respondents in litigation where thoseRespondents were acknowledged as being uninvolved third parties, except that this tactic was an attempt to eliminate cost implications toMs.

McDonald for her litigation abuse: naming uninvolved third parties in this judicial review. [18] I direct that the Attorney General of Canada, and Minister of Justice and Solicitor General of Alberta, are removed as partieswhen the candidate Amended Originating Application is filed. I will subsequently indicate costs implications of this step. C.

Ancillary Issues [19] The Director notes several additional issues with the candidate Amended Originating Application, and the Form 8 Notice toObtain Record of Proceedings filed with the initial Originating Application: 1) paragraph numbering in the candidate Amended Originating Application as required by r 13.6(1)(

b) of the Alberta Rules ofCourt; and 2) a replacement Form 8 Notice that removes the Attorney General of Canada, and Minister of Justice and Solicitor General ofAlberta, and mention of Adjudicator M. Culo. [20] I agree with these revisions and direct Counsel for Ms. McDonald to make these changes prior to filing the AmendedOriginating Notice and Amended Notice to Obtain Record of Proceedings. III. Conclusion [21] I direct that Counsel for Ms.

McDonald shall file the Amended Originating Application and Notice to Obtain Record ofProceedings received by the Court on August 3, 2021, with the revisions identified above, by 14 days from the date of this Decision. Ifno Amended Originating Application and Amended Notice to Obtain Record of Proceedings, as directed in this Memorandum ofDecision, is filed by that deadline, then Ms.

McDonald’s judicial review is struck out pursuant to r 3.68 of the Alberta Rules of Courtwithout further Court Order. [22] The interim stay imposed in McDonald #1 at para 19 is vacated without further court Order once the Amended OriginatingApplication and Amended Notice to Obtain Record of Proceedings are filed within the 14-day deadline. [23] This Court has consistently awarded costs against SafeRoads Alberta judicial review applicants who included uninvolved thirdparties in their SAARP candidate Amended Originating Applications: e.g.

Erskine v Alberta (Director of SafeRoads), 2021 ABQB 650;Ghuman v Alberta (Director of SafeRoads), 2021 ABQB 651; Harnum v Alberta (Director of SafeRoads), 2021 ABQB 652; Kolbina vAlberta (Director of SafeRoads), 2021 ABQB 653; Lozynsky v Alberta (Director of SafeRoads), 2021 ABQB 654; Sambrook v Alberta

(Director of SafeRoads) , 2021 ABQB 656 ; Walker v Alberta (Director of SafeRoads) , 2021 ABQB 657 ; Wells v Alberta (Director of SafeRoads) , 2021 ABQB 658 . I see no reason to depart from this approach. I order that Ms. McDonald pay the Attorney General of Canada, and Minister of Justice and Solicitor General of Alberta, $500 each in costs, forthwith. [ 24 ] Counsel for Ms. McDonald will prepare the Order giving effect to this Memorandum of Decision. Dated at the City of Edmonton, Alberta thi s 21 st day of September, 2021. K.G. Nielsen A.C.J.C.Q.B.A. Appearances: Sean P.

Hume Gunn Law Group for the Applicant Heather McDonald Rachelle K. Roberts Alberta Justice and Solicitor General for the Respondent Director of SafeRoads Alberta