McClintock v Alberta (Director of SafeRoads), 2021 ABQB 910

Court of Queen’s Bench of Alberta Citation: McClintock v Alberta (Director of SafeRoads), 2021 ABQB 910 Date: 20211115 Dockets: 2103 11666, 2103 12004 Registry: Edmonton Between: Docket 2103 11666 Darren McClintock Applicant - and - The Director of SafeRoads Alberta Respondent And between: Docket 2103 12004 Justin Samuel Maters Applicant - and - The Director of SafeRoads Alberta Respondent

_______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] On July 16, 2021 and August 17, 2021, two substantially identical Originating Applications were filed with Court. Each seek judicial review of a SafeRoads Alberta tribunal decision: McClintock v Director of SafeRoads Alberta , Docket 2103 11666 ( McClintock Action ); Maters v Director of SafeRoads Alberta , Docket 2103 12004 ( Maters Action ).

The basis for these judicial reviews as pled in the two Originating Applications is essentially the same: Basis for this Claim: 1. The adjudicator in this case "E. Wosu", acting for the Director of administering the Provincial Administrative Penalties Act erred in law when [they / she/he] dismissed a review of Notice of Administrative Penalty "NAP" (the NAP was confirmed). 2. The applicant is seeking an order in the nature of certiorari and/or mandamus. Remedy sought 3.

That the adjudicator's decision be reversed and the NAP be canceled. [ 2 ] Counsel for the Director of SafeRoads Alberta (Director) on November 5, 2021 by letter referred the McClintock Action and Maters Action for review as Apparently Vexatious Applications or Proceedings (AVAPs) pursuant to Civil Practice Note No. 7 (CPN7), paragraph 6. I have received and examined that referral since I am the judge assigned to review the AVAPs filed in Edmonton at the Court of Queen’s Bench.

CPN7 is reviewable on-line at https://www.albertacourts.ca/qb/areas-of-law/civil/practice-notes. [ 3 ] I have reviewed the McClintock Action and Maters Action Originating Applications, and conclude that these filings are AVAPs because the Originating Applications have elements that Courts identify as characteristics of hopeless and abusive proceedings. On that basis, I conclude the McClintock Action and Maters Action Originating Applications should be subject to a CPN7 show-cause document-based review under r 3.68 of the Alberta Rules of Court , AR 124/2010 . That means I have decided that Mr. McClintock and Mr.

Maters must file Written Submissions setting out why their Originating Applications should not be struck out because they are significantly deficient. II. CPN7 [ 4 ] The Court implemented CPN7 to better manage litigation that, on its face, appears to be unmeritorious, has no chance of success, or is otherwise abusive and vexatious.

CPN7 is intended to provide litigants with a timely, proportionate, and cost-effective response: Unrau v National Dental Examining Board , 2018 ABQB 874 ( Unrau #1 ). [ 5 ] If, on initial review by the Court, an AVAP appears to have no merit, have no prospect of success, or is otherwise abusive and vexatious, then the Court issues a first written decision that identifies the apparent issue or issues that may be a basis to strike out the AVAP under r 3.68 of the Alberta Rules of Court . [ 6 ] The party who filed the AVAP is then given an opportunity to, within 14 days, provide to the Court a Written Submission of up to a total of 10 pages in length that responds to, and demonstrates why, the AVAP is a legitimate action and should be permitted to continue.

The Written Submission must be clearly addressed “To the Attention of” the Justice who initiates the CPN7 process, and must also be served on the other parties to the litigation. [ 7 ] CPN7 is not to be used for “close calls”. The Court only intervenes when the defect(

s) in question are “apparent on the face of the pleading”, and the suspect pleadings are “clearer cases of abuse”: Unrau #1 at paras 22 and 24 . [ 8 ] The Court only considers restricted forms of evidence when it conducts a CPN7 review because this process has a very narrow focus and operates to examine a single document and its content: Ubah v Canadian Natural Resources Limited , 2019 ABQB 347 at paras 24-48 ( Ubah #2 ). There are exceptions to that rule.

For example, the Court may examine other documents in the same proceeding that are related to the suspect filing ( Ubah #2 at para 35 ), or documents and records that are evidence that the AVAP is an attempt to litigate an issue that has already been decided or closed ( Ubah #2 at para 45 ). III. Analysis [ 9 ] The McClintock Action and Maters Action Originating Applications share a common apparent issue: inadequate pleadings.

An Application or Statement of Claim sets the issues to which the opposing party must respond, and alerts that party of the case it mustmeet: Whiten v Pilot Insurance Co, 2002 SCC 18 at para 87. Proper pleadings require more than simply bare assertions, or “baldallegations” of wrongdoing: GH v Alcock, 2013 ABCA 24 at para 58; Mancuso v Canada (National Health and Welfare), 2015 FCA227 at paras 16-20.

Pleadings must provide a basis for the Court and other litigants to make a meaningful response, and indicate to theresponding parties the “... who, when, where, how and what gave rise to its liability.”: Mancuso v Canada (National Health andWelfare) at para 19. The Supreme Court of Canada, in Mackay v Manitoba, (SCC), [1989] 2 SCR 357, 61 DLR (4th)485, instructed that a factual foundation, or an alleged factual foundation, is an absolute requirement for pleadings that seek potentialrelief pursuant to the Canadian Charter of Rights and Freedoms. [10] Mr. McClintock and Mr.

Maters cannot file inadequate pleadings and then either supplement those claims, or expect theRespondent to “fill in the blanks”: Mancuso v Canada (National Health and Welfare) at para 20. A lack of specificity is not merely atechnical defect, but goes to the core of the claim: GH v Alcock at para 58, citing AL v Ontario (Minister of Community and SocialServices) (2006), (ON CA), 274 DLR (4th) 431, 218 OAC 150 (Ont CA).

Inadequate pleadings abuse the Court’sprocess because a Respondent cannot defend against unclear and non-specific claims and the Court cannot control the proceedings,identify the proposed argument, or make findings on the relevant facts: Unrau #2 at para 629. [11] The McClintock Action and Maters Action Originating Applications provide no explanation or particulars of how theAdjudicator allegedly “erred in law”.

The Originating Applications do not appear to satisfy the common law requirement that pleadingsmust provide the alleged “who, when, where, how and what” for the reviewing Court and Respondent. [12] I direct Mr. McClintock and Mr. Maters to explain how their Originating Applications provide a basis for the Court andDirector to make a meaningful response. IV. Conclusion [13] The McClintock Action and Maters Action Originating Applications appear to be suitable AVAP candidates for reviewpursuant to CPN7. The Court directs Mr. McClintock and Mr.

Maters to explain how their Originating Application provide a basis forthe Court and Respondents to make a meaningful response. [14] CPN7 now advances to its second step. This step consists entirely of written submissions; there will be no Court appearancesor oral argument. The next steps are: 1) Mr. McClintock and Mr. Maters each have 14 days to each prepare a Written Submission of no more than a total of 10 pages, tobe filed and served, as described in para 3(

b) of CPN7. The Written Submission must be clearly addressed “To the Attention of AssociateChief Justice K.G. Nielsen”. 2) If this Court receives no Written Submission(

s) by that deadline, the Court will make its final decision on whether theMcClintock Action and Maters Action Originating Applications should be struck out in whole or in part under r 3.68 of the Alberta Rulesof Court (see CPN7, para 3(c)). 3) If Mr. McClintock and/or Mr. Maters provide and serve a Written Submission, then the Director has seven days to provide aWritten Reply of up to 10 pages in length (see CPN7, para 3(d)) to each of the Written Submissions. The Written Replies must be clearlyaddressed “To the Attention of Associate Chief Justice K.G.

Nielsen”. 4) After the Court receives the Written Submissions and the Directors’ Written Replies, if any, the Court will make its final decisionon whether the McClintock Action and Maters Action Originating Applications should be struck out in whole or in part, under r 3.68 ofthe Alberta Rules of Court (see CPN7, para 3(e)). [15] Court of Queen’s Bench of Alberta Action Nos. 2103 11666 and 2103 12004 are stayed until further notice. The Court willprepare and serve an Interim Order staying the Actions (see CPN7, para 7). Mr. McClintock’s and Mr.

Maters’ approval of the InterimOrder is not required, pursuant to r 9.4(2)(

c) of the Alberta Rules of Court. Dated at the City of Edmonton, Alberta this 15th day of November, 2021. K.G. Nielsen A.C.J.C.Q.B.A. Appearances:

Geoff R. Green for the Applicants Adam Ollenberger Legal Services Division Alberta Justice and Solicitor General for the Respondent