Antonio v Alberta (Director of SafeRoads), 2021 ABQB 756

Court of Queen’s Bench of Alberta Citation: Antonio v Alberta (Director of SafeRoads), 2021 ABQB 756 Date: 20210922 Docket: 2103 00134 Registry: Edmonton Between: Jorge Manuel Antonio Applicant - and - Alberta (The Director - Provincial Administrative Penalties Act / Registrar of Motor Vehicles) Respondent _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I.

Introduction [ 1 ] On July 21, 2021, this Court, in a decision reported as Antonio v Alberta (Director of SafeRoads) , 2021 ABQB 564 ( Antonio #1 ), applied the SafeRoads Alberta Accelerated Review Procedure (SAARP) to an Originating Application, that was filed by Jorge Manuel Antonio (Mr. Antonio) on January 27, 2021. The Originating Application challenged a SafeRoads Alberta Decision reported as Manuel Antonio (Re) , 2021 ABSRA 13 .

[ 2 ] In Antonio #1 , I concluded, at paras 16-17 , that the Originating Application was a prima facie abuse of the Court because that document failed to provide adequate pleadings: ... The Application provides no explanation or particulars of the alleged error “in law” by the Adjudicator. 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.

Antonio 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 26, 2021 received a candidate Amended Originating Application from Counsel for Mr. Antonio. Counsel for the Director of SafeRoads Alberta (Director) provided Written Submissions concerning the validity of the candidate Amended Originating Application on August 6, 2021. Counsel for Mr.

Antonio requested a time extension to make Reply Submissions, which was granted. Those Reply Submissions were received from Mr. Antonio on August 27, 2021. That completes the SAARP process: Antonio #1 at para 18 . II. Analysis [ 5 ] The candidate Amended Originating Application makes a number of additional allegations that challenge the Adjudicator’s decision: 1) Mr. Antonio was provided an opportunity to provide a second breath sample as authorized by Traffic Safety Act , RSA 2000, c T- 6 , s 88.11 ( TSA ), but Mr.

Antonio now alleges that the police officer who offered that test said: “If you provide a second breath sample and fail you will be charged criminally.” The candidate Amended Originating Application states this was a breach of Charter s 8 or 12 rights, or outside the TSA scheme, and therefore illegal. 2) The Adjudicator should have cancelled Mr.

Antonio’s Notice of Administrative Penalty because the alcohol breath sample device that was used to collect a demanded first breath sample was outside its calibration period, and the Adjudicator “... failed to make mention of this in her written decision ...”. 3) The Adjudicator failed to advise Mr. Antonio at the SafeRoads Alberta hearing that the Adjudicator “... had jurisdiction to Consider Charter interests.” [ 6 ] The Director argues the candidate Amended Originating Application should be refused as deficient. Counsel for Mr. Antonio disagrees. My evaluation of the Director’s and Mr.

Antonio’s submissions, and the candidate Amended Originating Application, has several aspects. A. Pleadings [ 7 ] The Director argues two general points: that Mr. Antonio should not be permitted to make new arguments or advance new evidence in a judicial review. Counsel for Mr.

Antonio responds that is too narrow a description of the limits on evidence in a judicial review, citing r 3.22 of the Alberta Rules of Court , Alta Reg 124/2010 , and arguing the plenary jurisdiction of reviewing courts means this judicial review should continue to a full hearing. [ 8 ] I agree in part with the Director that the candidate Amended Originating Application is not a proper pleading. In doing so I am to a degree expanding upon the usual SAARP process, which is a method to conduct a r 3.68 of the Alberta Rules of Court process.

Rule 3.68 of the Alberta Rules of Court is a procedure that focuses on the content of a pleading, here the candidate Amended Originating Application. However, both the Director and Counsel for Mr. Antonio have also argued whether the factual basis for Mr. Antonio’s judicial review is, or is not, adequately provided by a January 15, 2021 Affidavit sworn by Mr. Antonio in support of his original Originating Application. Whether the factual basis for a proceeding is adequate is conducted via the rr 7.2-7.3 of the Alberta Rules of Court

summary judgment procedure. [ 9 ] I could defer to a future formal

summary judgment proceeding the questions and argument put before me in relation to whether or not the candidate Amended Originating Application, combined with Mr. Antonio’s Affidavit, is a valid proceeding.

However, in the interests of judicial economy, and since both parties have argued these issues, I conclude I should proceed and address the question of whether or not the candidate Amended Originating Application should, or should not be filed, in relation to the proposed “second breath sample”, and the alcohol breath sample calibration period defect issues. [ 10 ] First, I reject the second breath sample claim as set out in paragraphs 5-8 of the candidate Amended Originating Application. Reading the candidate Amended Originating Application, and the January 15, 2021 Affidavit, shows that Mr.

Antonio never raised this specific alleged factual illegality in his SafeRoads Alberta hearing. Mr. Antonio deposes: ... what I did not inform the adjudicator of ... was that if I provide a second breath sample and fail, he will charge me criminally “I will give you a criminal record.” As a result of this threat, I declined to provide a second breath sample. [ 11 ] The Affidavit is explicit that the Director is correct that Mr. Antonio did not provide this evidence to the Adjudicator. That means the Adjudicator therefore did not respond to or evaluate this alleged issue, or Mr.

Antonio’s credibility and reliability. Counsel for Mr. Antonio does not dispute that point. [ 12 ] Judicial review is not a right, but a discretionary remedy: Strickland v Canada (Attorney General) , 2015 SCC 37 at paras 37- 39 . The Supreme Court of Canada was explicit in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 at paras 22-26 , that raising issues for the first time on judicial review is inappropriate. That task should be first conducted

within the expert tribunal, and then the Court may evaluate the issue or not. Attempts to raise new issues for the first time on judicial review is a basis to exercise the Court’s discretion and reject a candidate judicial review. I conclude that paragraphs 5-8 of the candidate Amended Originating Application should be rejected on that basis. [ 13 ] Paragraph 9 of the candidate Amended Originating Application alleges that the Adjudicator erred by not cancelling the Notice of Administrative Penalty because Mr.

Antonio provided a breath sample on a device that “was outside of calibration”, and points to a “calibration sticker” as proof of that. There is no apparent disagreement that Mr. Antonio provided a breath sample using the device in question on December 13, 2020, and that Mr. Antonio failed that test. [ 14 ] A photograph of the calibration sticker in question is Exhibit C of Mr. Antonio’s Affidavit sworn on January 15, 2021.

The critical text of that sticker reads as follows: CALIBRATION DATE: 2020 DEC 10 CALIBRATION EXPIRY DATE: 2020 JAN 10 The italicized text is handwritten, the rest is a pre-prepared printed form. [ 15 ] What Counsel for Mr. Antonio is apparently arguing is that the calibration sticker’s text should be interpreted literally: the device in question was calibrated on December 10, 2020, and that its expiry date was 10 months in the past, before the calibration date. This

interpretation of the information on the calibration sticker leads to an obviously absurd result. The officer who entered this data could not have intended that. [ 16 ] An alternative explanation would be that on December 10, 2020, the officer who calibrated the device intended to note that device’s calibration would expire on January 10, 2021, one month later. [ 17 ] I also note that there is no apparent dispute that Mr. Antonio’s breath sample was collected and found to contain a prohibited concentration of alcohol three days after the calibration date written on the calibration sticker. Mr.

Antonio does not contest the December 10, 2020 calibration step and record. Mr. Antonio has introduced no evidence that three days is beyond the point where a calibrated breath sample device of this type provides accurate readings, nor has he alleged that. [ 18 ] Again, there is no indication this issue was raised before the Adjudicator. I refuse to have this Court take judicial review jurisdiction on that basis. Further, I conclude this proposed ground for judicial review is hopeless and abusive.

Had this been argued before the Adjudicator, it would have been entirely reasonable for the Adjudicator to conclude that the expiry date for the alcohol breath sample device that was used with Mr. Antonio, and that indicated a prohibited alcohol concentration, had a documented expiry date of January 10, 2021. Paragraph 9 of the candidate Amended Originating Application is rejected. [ 19 ] What remains is the allegation in paragraph 10 of the candidate Amended Originating Application that the Adjudicator failed to properly advise Mr.

Antonio of his alleged right to introduce “Charter interests” into the Tribunal’s hearings. The candidate Amended Originating Application claims this is a breach, presumably of some form of procedural fairness, stressing that Mr. Antonio had not retained a lawyer, and was therefore a self-represented litigant (SRL), or “SRL”. [ 20 ] Pintea v Johns , 2017 SCC 23 endorsed that SRLs have a special privileged status and additional procedural rights, as a distinct and vulnerable litigant category. I, therefore, conclude that: 1) Mr.

Antonio’s candidate Amended Originating Application pleads the necessary foundation to raise the issue of inadequate instructions to an SRL by the SafeRoads Alberta Adjudicator during the December 21, 2020 SafeRoads Alberta hearing; and 2) established Canadian law does not mean that claim is hopeless or excluded. [ 21 ] On that basis I approve that the candidate Amended Originating Application should be filed. B. Ancillary Issues [ 22 ] The Director also notes that the candidate Amended Originating Application should provide full citations in paragraphs 15 and 17.

I direct this change also be made prior to filing of the candidate Amended Originating Application. III. Conclusion [ 23 ] I order that Counsel for Mr. Antonio shall file the candidate Amended Originating Application received by the Court on July 26, 2021, with the revisions identified above, by 14 days from the date of this Decision. For clarity, paragraphs 5-9 of the candidate Amended Originating Application are to be deleted and full citations are to be provided in paragraphs 15 and 17 of the candidate Amended Originating Application.

If no Amended Originating Application, as instructed in this Decision, is filed by that deadline, then Mr. Antonio’s judicial review is struck out pursuant to Rule 3.68 of the Alberta Rules of Court without further court Order. [ 24 ] The interim stay imposed in Antonio #1 at para 18 is vacated without further Court Order once the Amended Originating Application is filed within the 14-day deadline.

[ 25 ] No costs result from this SAARP process. Counsel for Mr. Antonio shall prepare the Order giving effect to this Memorandum of Decision. Dated at the City of Edmonton, Alberta thi s 22 nd day of September, 2021. K.G. Nielsen A.C.J.C.Q.B.A. Appearances: Rory Ziv Ziv Law Group for the Applicant Jorge Manuel Antonio Rachelle K. Roberts Alberta Justice and Solicitor General for the Respondent Director of SafeRoads Alberta