Herasemluk v Alberta (Director of SafeRoads), 2022 ABKB 798

Court of King’s Bench of Alberta Citation: Herasemluk v Alberta (Director of SafeRoads), 2022 ABKB 798 Date: 20221129 Docket: 2206 00690 Registry: Lethbridge Between: Nicholas Gary Herasemluk Applicant - and - Director of SafeRoads Respondent _______________________________________________________ Memorandum of Decision of the Honourable Justice J.D. Rooke _______________________________________________________ [ 1 ] On November 22, 2022, Counsel for the Director of SafeRoads Alberta [Director], referred an Originating Application filed by Nicholas Gary Herasemluk [Mr.

Herasemluk] on November 14, 2022 to the Court for review as a candidate Apparently Vexatious Application or Proceeding [AVAP] pursuant to Civil Practice Note No. 7 [CPN7] paragraph 6. I am designated to receive and review potential CPN7 processes in Southern Alberta. [ 2 ] After review of the Originating Application and an Affidavit of Mr. Herasemluk sworn and filed on November 14, 2022, I became concerned that the document(

s) that had been provided by the Director were not the complete filings. On November 23, 2022, Counsel for the Director confirmed that what he had provided to the Court were the entire materials received from Mr. Herasemluk.

[ 3 ] Mr. Herasemluk’s November 14, 2022 materials are confusing. The Originating Application reads, entirely: Basis for the Claim: 1. See Attached. 2. Remedy sought 3. Verbal Judicial Review, with Attached Statements and Doctors Letter. 4. Affidavit or other evidence to be used in support of this application: 5. Statement of Jerry Herasemluk, Letter of Dr. John Meyer. 6. Phone records + proof of purchase of only 3 Drinks [Sic.] [ 4 ] However, there is no “See Attached” document along with the Originating Application. The November 14, 2022 Affidavit points to five exhibits: A.

Statement of Nicholas Gary Herasemluk. B. Statement of Jerry Herasemluk. C. Letter of Dr. John Meyer. D. Phone record of Nicholas Gary Herasemluk. E. Proof of purchase - 3 Drinks at hudsons. [Sic.] These five items are attached to the Affidavit. [ 5 ] However, the Affidavit instead seems to attach an additional document, titled “Basis for this claim”, that reads: Basis for this claim Submitted by Nicholas Gary Herasemluk. November 11, 2022. On Sept 20, 2022 I, Nicholas Herasemluk applied for this written review as per instructions of Cst. Marco Pagliericci of the Lethbridge Police Service.

I had also spoken with 2 RCMP members from the Coaldale RCMP Detachment on how to properly file this review and what was needed for this review process of the NAP. I was advised to submit in writing and outline of the circumstances and to check off the written review request. I wanted to have an oral review, however I was instructed to check off a written review request under the understanding that it would be a combination of written material and the judicator asking questions, and that the judicator would contact me on the date and time of the review at (9:30am on Sept, 29 2022).

I was specifically told not to submit any statements and that the judicator would contact me if they were needed, on the date of the review listed above. That is why in the narrative it specifically says what the witnesses can state and has the telephone number attached. I was told that the judicator would call the telephone numbers provided and ask whatever questions or information needed for this review. Thus, I understood this to be a verbal review with an attached narrative. I would like to emphasize I was specifically told this was the proper process.

On Sept, 29 th 2022 I took the day off of work and we gathered together at 9 am and waited for the judicator to call. After roughly 5 hours of waiting we attempted to contact someone at SafeRoads for information as to when we would receive the call from the judicator. After several attempts and speaking to a number of individuals with SafeRoads, no one seemed to know the proper process or have any information on the process, or contacting anyone further that could assist.

Finally in the late afternoon, we spoke to a wonderful lady at SafeRoads and she indicated that the wrong box was checked for a written review, over the oral review we thought was going to transpire. She said not to worry, the judicator would be making contact with us, within 30 days. Thus we waited. On October 20th I received a written review decision from the judicator in the mail, indicating the decision had been made primarily because there was no attached statements or letters to back up the narrative submitted. Again, We were at a loss.

We contacted SafeRoads asking what to do to submit our statements and how to file a judicial review. They had indicated they do not do this in their office and we [Sic.]

At this point the “Basis for the claim” document appears to end. [ 6 ] Counsel for the Director identifies a number of potential issues with Mr. Herasemluk’s Application, including that the Originating Application does not provide adequate pleadings to permit a meaningful response by the Director, and that the Director was served the November 14, 2022 materials on November 22, 2022, which was too late and out of time: Cote v Alberta (SafeRoads) , 2021 ABQB 313 ; Huffman v Alberta (Director of SafeRoads) , 2021 ABQB 597 . [ 7 ] After review of Mr.

Herasemluk’s Originating Application and other documents, I conclude that that the Originating Application is not an AVAP, and should not be subject to a CPN7 “show cause” document-based review. That said, this does not mean that the Originating Application does not have potential issues, but rather that CPN7 is not the appropriate mechanism to respond to the Originating Application. [ 8 ] The Originating Application, itself, does not provide the necessary “... who, when, where, how and what ...” ( Mancuso v Canada (National Health and Welfare) , 2015 FCA 227 at para 19 ) that identifies on what basis Mr.

Herasemluk challenges the outcome of the SafeRoads Alberta Decision that is part of Mr. Herasemluk’s materials: Herasemluk (Re) , 2022 ABSRA 1539 . However, I conclude the “Basis for this claim” document does provide sufficient information on why Mr. Herasemluk seeks to challenge the SafeRoads Herasemluk (Re) Decision. Herasemluk (Re) explicitly at para 2 states that procedure was a written review. Mr. Herasemluk in the “Basis for the claim” document indicates something else was anticipated, and that Mr. Herasemluk received instructions from someone at SafeRoads Alberta concerning the review process.

That is a sufficient basis for me to determine that Mr. Herasemluk has provided a basis for the Director to make a meaningful response to Mr. Herasemluk’s claim that his SafeRoads Alberta review process was procedurally unfair and/or defective. I make no finding as to the potential merit of that complaint, simply that sufficient basis has been provided to understand and define the scope of that complaint. [ 9 ] The remedy sought could be more explicit. For example, what is not certain is whether “Verbal Judicial Review” means the proceeding at this Court, or that Mr.

Herasemluk seeks to have his SafeRoads Alberta proceeding re-heard, using an oral submission process. I leave that question to be clarified by the parties, if this matter proceeds to a full hearing. [ 10 ] Counsel for the Director has also stated that Mr. Herasemluk served the Originating Application out of time. The available documents confirm that the Herasemluk (Re) Decision was issued on October 14, 2022, and the Originating Application filed on November 14, 2022. That is within the 30-day judicial review limit set by Provincial Administrative Penalties Act , SA 2020, c P-30.8 s 24(2).

I have no evidence on whether the s 24(2) requirement that the judicial review was also “... served on the Director or adjudicator ...” in 30 days. The statement by Counsel in the CPN7 referral letter is not evidence. [ 11 ] Furthermore, this Court does not consider evidence when conducting a CPN7 process, except with very limited exceptions: Ubah v Canadian Natural Resources Limited , 2019 ABQB 347 at paras 24-48 . A limitations period argument is also a defence to a claim, and not a defect in a claim: Limitations Act , RSA 2000, c L-12 s 3.

Combined, this means limitations period arguments are usually incompatible with the CPN7 process: Dous v Viskat Tubular Technologies Inc , 2022 ABQB 395 at para 6 ; Stratkotter v Reitsma , 2022 ABKB 689 at para 4 . [ 12 ] That does not prevent the Director from arguing that Mr. Herasemluk’s Originating Application should be struck out pursuant to the Limitations Act , however an argument of that kind would better fit in a Rule 7.2-7.3

summary judgment application. [ 13 ] I therefore reject the Director’s CPN7 referral. No costs follow from this Decision. Dated at the City of Lethbridge, Alberta this 29 th day of November, 2022. J.D. Rooke A.C.J.C.K.B.A. Appearances: Michael Power Legal Services Division Alberta Justice for the Respondent