Schwab v Alberta (Director of SafeRoads), 2021 ABQB 758

Court of Queen’s Bench of Alberta Citation: Schwab v Alberta (Director of SafeRoads), 2021 ABQB 758 Date: 20210922 Docket: 2103 07018 Registry: Edmonton Between: Timothy George Schwab Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Memorandum of Decision of the Associate Chief Justice K.G. Nielsen _______________________________________________________ I.

Introduction [ 1 ] On July 21, 2021, this Court, in a decision reported as Schwab v Alberta (Director of SafeRoads) , 2021 ABQB 564 ( Schwab #1 ), applied the SafeRoads Alberta Accelerated Review Procedure (SAARP) to an Originating Application. The Originating Application challenged a SafeRoads Alberta Decision reported as Schwab (Re) , 2021 ABSRA 305 . In Schwab #1 , I concluded at paras 16-21 that the

Originating Application was a prima facie abuse of the Court because that document failed to provide adequate pleadings. [ 2 ] Mr. Schwab 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. [ 3 ] The Court on July 27, 2021 received a candidate Amended Originating Application from Counsel for Mr. Schwab.

Counsel for the Director of SafeRoads Alberta (Director) provided Written Submissions concerning the validity of the candidate Amended Originating Application on August 10, 2021. Counsel for Mr. Schwab requested a time extension to make Reply Submissions, which was granted. Those Reply Submissions were received from Mr. Schwab on August 27, 2021. That completes the SAARP process: Schwab #1 at para 25 . II. Analysis [ 4 ] The candidate Amended Originating Application expands on the allegations made as to how the SafeRoads Alberta Adjudicator erred in his decision.

The Director concludes that those amendments address the defects identified in Schwab #1 . I generally agree, and conclude that the candidate Amended Originating Application should be filed, with the following changes. [ 5 ] The Director notes that paragraph 3 seeks that “... the appeal be allowed ...”, but that a judicial review is not an appeal. Counsel for Mr. Schwab agrees that the candidate Amended Originating Application seeks the wrong remedy, and that the relevant legislation provides only for Court review by c ertiorari and/or mandamus . I agree. Mr.

Schwab should frame his claim in certiorari and mandamus , as set by Provincial Administrative Penalties Act , SA 2020, c P-30.8 , s 24(2). Counsel for Mr. Schwab is instructed to change paragraph 3 of the candidate Amended Originating Application to reflect the remedies available to Mr. Schwab. [ 6 ] The Director also notes, and Counsel for Mr. Schwab agrees, that the candidate Amended Originating Application should provide full citations in paragraphs 5-7. I direct this change also be made prior to filing of the candidate Amended Originating Application. III. Conclusion [ 7 ] I order that Counsel for Mr.

Schwab shall file the candidate Amended Originating Application received by the Court on July 27, 2021, with the revisions identified above, by 14 days from the date of this Memorandum of Decision. If no Amended Originating Application, as instructed in this Memorandum of Decision, is filed by that deadline, then Mr.

Schwab’s judicial review is struck out pursuant to r 3.68 of the Alberta Rules of Court , Alta Reg 124/2010 without further court Order. [ 8 ] The interim stay imposed in Schwab #1 at para 23 is vacated without further Order once the Amended Originating Application is filed within the 14-day deadline. [ 9 ] No costs result from this SAARP process. Counsel for Mr. Schwab will 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 Timothy George Schwab Michael A. Power Alberta Justice and Solicitor General

for the Respondent Director of SafeRoads Alberta