COTE v ALBERTA (SAFEROADS), 2021 ABQB 313
1.5: Rule contravention, non-compliance and irregularities
3.15: Originating application for judicial review
7.3: Summary Judgment (Application and decision)
This Decision considered the intersection between a Judicial Review Application under Rule 3.15, and a Judicial Review Application of an adjudicator’s decision pursuant to section 24(3) of the Provincial Administrative Penalties Act, SA 2020, c P-30.8 (the “Act”). The question that the Court had to determine was whether Ms. Cote (the “Applicant”) had to serve and file the Judicial Review Application within the 30 days required by the Act, or if she had six months as set out in the Rules.
In December 2020, a police officer issued an immediate suspension of the Applicant’s driver’s license. The Applicant appealed, and the adjudicator dismissed the appeal and upheld the suspension. The Applicant then filed a Judicial Review Application within 30 days but served it on the Respondents on the 31st day, failing to comply with the 30-day deadline set out in the Act. She was within the six-month limitation period prescribed by Rule 3.15(2). Government counsel argued that an Application could not be served after the 30-day deadline set by the Act and made an Application for Summary Dismissal.
The Judicial Review Application had two parts. The first was a review of the adjudicator’s decision. The second was a constitutional challenge of the Act. Justice Dunlop noted that any limitation on the Court to grant constitutional relief must be express, and noted that the Act created a 30-day limitation period for review of an adjudicator’s decision only. Justice Dunlop found that the constitutional portion of the Judicial Review Application was not subject to the Act’s 30-day limitation period.
With respect to the portion of the Application which asked for a review of the adjudicator’s decision, the Applicant argued that Rule 1.5 permits the Court to cure the failure to serve in time. Justice Dunlop noted two authorities from the Court of Appeal which would not permit His Lordship to cure the late service: Blomer v Workers Compensation Board, 2020 ABCA 334 and Kehewin Cree Nation v Mulvey, 2013 ABCA 294.
His Lordship then dismissed part of the claim, but permitted the part which sought constitutional relief to continue, pursuant to the authority set out in Rule 7.3(3) to dismiss part of the claim.View CanLII Details