McKinney v Alberta (Director of SafeRoads), 2021 ABQB 754

Court of Queen’s Bench of Alberta Citation: McKinney v Alberta (Director of SafeRoads), 2021 ABQB 754 Date: 20210921 Docket: 2103 03502 Registry: Edmonton Between: Denny Lane McKinney Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I.

Introduction [ 1 ] On July 20, 2021, this Court, in a decision reported as McKinney v Alberta (Director of SafeRoads) , 2021 ABQB 560 ( McKinney #1 ), applied the SafeRoads Alberta Accelerated Review Procedure (SAARP) process to an Originating Application filed on March 16, 2021 by Denny Lane McKinney (Mr. McKinney). Mr. McKinney’s Originating Application challenged a decision of the SafeRoads Alberta tribunal reported as McKinney (Re) , 2021 ABSRA 70 .

[ 2 ] In McKinney #1 , I concluded at paras 16-17 that the Originating Application was a prima facie abuse of the Court because the Originating Application failed to provide adequate pleadings: ... The Application’s alleged bases are only bald allegations. The Application does not identify what records defects are alleged. The Application provides no explanation of the basis to disagree with the SafeRoads Alberta Decision’s conclusion(

s) that Mr. McKinney had a blood alcohol level over “08”, and/or why Mr. McKinney was not impaired. The Application does not 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.

McKinney 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 July 30, 2021, received a candidate Amended Originating Application from Counsel for Mr. McKinney. Counsel for the Director of SafeRoads Alberta (Director) made a Written Submission, dated August 12, 2021. A Written Reply was received from Mr. McKinney on August 18, 2021. That completes the SAARP process: McKinney #1 at para 20 . II.

Analysis [ 5 ] The candidate Amended Originating Application is an unusual hybrid document that goes outside the appropriate content of a civil litigation pleading, and instead also makes legal arguments. Some of those arguments are then duplicated in Mr. McKinney’s Written Reply. A. Pleadings [ 6 ] The Director argues that the candidate Amended Originating Application: 1) has not responded to the deficiencies identified in McKinney #1 and continues to advance bald allegations; 2) includes evidence, which is prohibited by r 13.6(2)(

a) of the Alberta Rules of Court , Alta Reg 124/2010 ; 3) includes legal argument; and 4) does not seek judicial review remedies. [ 7 ] Counsel for Mr. McKinney disagrees with the Director’s analysis, the law cited by the Court in McKinney #1 on what defines fatally inadequate pleadings, and the appropriate test for abusive proceedings. Counsel for Mr. McKinney has previously advanced the same argument concerning what threshold ought to be applied by this Court when conducting a SAARP procedure.

I adopt Associate Chief Justice Rooke’s response in Mierke v Alberta (Director of SafeRoads) , 2021 ABQB 664 at para 10 and Rvachew v Alberta (SafeRoads) , 2021 ABQB 665 at para 14 : ... [The applicant] 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 Counsel for [the applicant] has concluded that Rule 3.68 applies a “beyond a reasonable doubt” test ... 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 . [ 8 ] Beyond that, I agree with the Director that the candidate Amended Originating Application has a range of issues. [ 9 ] First, paragraphs 2, 3 and 9 make bald allegations that Mr. McKinney’s blood alcohol concentration was not at an illegal level, and that Mr. McKinney was not driving while impaired.

Paragraph 9 makes this claim “... as per the accused’s affidavit”. There is no “accused”. This is a judicial review of a civil tribunal procedure. Does this accused’s affidavit passage indicate it relies on information in an affidavit deposed by Mr. McKinney? If so, that affidavit is irrelevant to evaluating the merit of pleadings in a r 3.68 of the Alberta Rules of Court process: r. 3.68(3) of the Alberta Rules of Court . Paragraphs 2, 3, and 9 are therefore rejected. [ 10 ] Paragraph 8 states: ... the IRS was defective on its face. Specifically, the director provided no evidence that IRS: (

a) has “a statement indicating that there may be additional conditions for reinstatement of the recipient s operator’s licence” as required by Saferoads Alberta Regulation s. 10 (a)(ii) (

b) has “the website address for Saferoads Alberta” as required by Saferoads Alberta Regulation s. 10 (a)(v) [ 11 ] The candidate Amended Originating Application does not indicate what an “IRS” is. The cited SafeRoads Alberta Regulation , Alta Reg 224/2020 provisions relate to a “notice of administrative penalty”. That Regulation makes no mention of an IRS. IRS nowhere appears in the other legislation also cited by Mr.

McKinney’s candidate Amended Originating Application: the Traffic Safety Act , RSA 2000, c T-6 [ TSA ], and “PAPA”, which I am assuming means the Provincial Administrative Penalties Act , SA 2020, c P-30.8 . Furthermore, the potentially relevant legislation does not include any defined items in the

Interpretation provisions that are spelled so that they may be reduced to form the acronym IRS. I conclude paragraph 8 does not provide a basis on which the Court and Respondent

may make a meaningful response. Paragraph 8 is rejected. [12] Paragraphs 4-6 say Mr. McKinney was advised by police “... that he had the option of taking a second test on the instrumentpresented. ...”. I am presuming what that “second test” means is the “Roadside Appeal” provided for by TSA s 88.11, though thatprovision is never mentioned in the candidate Amended Originating Application. The candidate Amended Originating Application thencontinues to allege that: ... the officer strongly discouraged the applicant from doing a second test, stating that “it would not change much.” ...

This alleged statement by the unnamed officer purportedly discouraged Mr. McKinney, and Mr. McKinney did not undergo RoadsideAppeal, and “... [gave] up one of the only procedural safe guards that he had in this system.” Mr. McKinney then in paragraph 6 states“... there is no material difference between not offering a second sample, and offering one but discouraging the accused to do it. ...”.Again, I note Mr. McKinney is not a criminal accused, nor from the available record was he ever a criminal accused.

The TSA andSafeRoads Alberta procedures are civil litigation. [13] The candidate Amended Originating Application says this “discouraging” comment is: ... a breach of PAPA, the Traffic Safety Act, the accused’s rights under Natural Justice and

section 7, 8, 9 and 10(

b) of the Charter. The Supreme Court of Canada in Mackay v Manitoba, (SCC), [1989] 2 SCR 357, 61 DLR (4th) 485 ruled that anyallegation of a breach of The Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11) (Charter) must beaccompanied by a particularized factual or alleged factual foundation. The allegations here, as far as they are developed in the candidateAmended Originating Application, are that Mr. McKinney was denied an opportunity to volunteer a breath sample.

That does notimplicate any of the four Charter provisions listed: • Charter s 7 - life, liberty, and security of the person: none of which is identified as relevant in any sense; • Charter s 8 - security against unreasonable search and seizure: here there was no allegedly illegal search or seizure; nothing wasillegally or unreasonable “demanded”; • Charter s 9 - no arbitrary detention or imprisonment: again, neither is relevant or implicated by the facts as pled; and • Charter s 10(b) - the right to retain and instruct counsel: again not pled in any way, nor relevant to the alleged improper stateaction. [14] I, therefore, conclude that while there may be some basis to argue that Mr.

McKinney’s legislative rights to provide a TSA s88.11 Roadside Appeal are implicated by the alleged factual scenario, there is no basis for any Charter claim. The alleged Charterbreaches are simply unrelated to the alleged facts. I reject the Charter and Charter rights being implicated in paragraphs 4 and 6. Inaddition, all of paragraph 5 is both prohibited argument and irrelevant. [15] Paragraph 7 of the candidate Amended Originating Application claims that the Adjudicator erred by not concluding that thedocumentary record for the alcohol sensing device that recorded Mr.

McKinney’s breath sample as a fail was inadequate, pursuant theSafeRoads Alberta Regulation, since: Although these documents purport to establish when the next maintenance should take place, the actual date of the last annualmaintenance is absent. In a r 3.68 of the Alberta Rules of Court process adequately pled facts are presumed to be true. I, therefore, conclude this specificallegation is adequately particularized and should proceed to a full judicial review. [16] Paragraphs 14-15, 19-20 are rejected as argument.

I also note that this Court does not derive its authority from divine orecclesiastical sources, but rather the Canadian Constitution and unwritten constitutional traditions and principles inherited from the UK. [17] Paragraph 18 is rejected since the candidate Amended Originating Application does not raise any valid grounds that implicatethe Charter and Charter rights. The fact that no Charter-related particulars are pled in the candidate Amended Originating Notice, perMackay v Manitoba, means that Mr. McKinney may not advance allegations in his judicial review that his Charter rights were breached. B.

Ancillary Issues [18] 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) the candidate Amended Originating Application states the initial hearing date is “To be assigned”, but should read April 12,2021; 2) the judicial review remedy in paragraphs 10-11 should conform to those provided by Provincial Administrative Penalties Act, s24; 3) paragraph 17 does not provide a full citation for the TSA; and 4) the candidate Amended Originating Application, and a replacement Form 8 Notice, should correct the Respondent’s name to“Director of SafeRoads Alberta”. [19] I agree with these revisions and instruct Counsel for Mr.

McKinney make these changes prior to filing the Amended

Originating Notice and Amended Notice to Obtain Record of Proceedings. III. Conclusion [ 20 ] I direct that Counsel for Mr. McKinney shall file the Amended Originating Application received by the Court on August 3, 2021, and an Amended Notice to Obtain Record, with the revisions identified above, by 14 days from the date of this Memorandum of Decision.

For clarity, paragraphs 2-3, 5, 8-9, 14-15, 18-20 are to be removed from the filed Amended Originating Application, along with all mentions of Charter rights in paragraphs 4 and 6. [ 21 ] If no Amended Originating Application and Amended Notice to Obtain Record of Proceedings, as instructed in this Memorandum of Decision, are filed by that deadline, then Mr.

McKinney’s judicial review is struck out pursuant to r 3.68 of the Alberta Rules of Court without further Court Order. [ 22 ] The interim stay imposed in McKinney #1 at para 18 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. [ 23 ] No costs result from this SAARP process. Counsel for Mr. McKinney shall 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: Alan Pearse for the Applicant Denny Lane McKinney Michael A. Power Alberta Justice and Solicitor General for the Respondent Director of SafeRoads Alberta