Al-Ghamdi v College and Association of Registered Nurses of Alberta, 2017 ABQB 685

Court of Queen’s Bench of Alberta Citation: Al-Ghamdi v College and Association of Registered Nurses of Alberta, 2017 ABQB 685 Date: 20171115 Docket: 1404 00719, 1504 00215, 1504 00592, 1504 00687 Registry: Grande Prairie Docket: 1404 00719 Between: Dr. Mohammed Al-Ghamdi Applicant - and - College and Association of Registered Nurses of Alberta Respondent - and between - Docket: 1504 00215 Dr. Mohammed Al-Ghamdi, Dr. Camille Torbey and Dr. Timothy Jordan Applicants - and - Canadian Medical Protective Association Respondent - and between - Docket: 1504 00592

Dr. Mohammed Al-Ghamdi Applicant - and - Dr. Theman the registrar College of Physicians and Surgeons of Alberta Respondent - and between - Docket: 1504 00687 Dr. Mohammed Al-Ghamdi Plaintiff - and - Canadian Medical Protective Association, Bennett Jones law firm, Simon Johnson, Gowling law firm, Walter McKall, James R.

Sproule, Jan Doe and John Doe Defendants Corrected judgment: A corrigendum was issued on November 30, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.H. Goss _______________________________________________________ Table of Contents Introduction . 4

Summary of these four actions and the present applications . 4 Action 1404 00719 (719) 4 Action 1504 00215 (215) 4 Action 1504 00592 (592) 4

Action 1504 00687 (687) 5 Gowling’s application to strike . 5 Mr. Johnson’s application under r 3.28 . 6 Bennett Jones’ application to strike . 6 Mr. McKall’s application to strike . 6 The CMPA’s application for

summary dismissal 6 Appendices . 6 Preliminary applications . 6 Analysis . 7 Dr. Al-Ghamdi’s submissions . 7 Legal principles . 9 Action 719 . 9

Summary dismissal application . 9 The vexatious litigant application . 16 Action 215 . 19 Action 592 . 19 Was the application filed and served in time? . 19 Does the application name the correct parties and were they properly served? . 21 Action 687 . 24 Gowling’s application to strike under r 3.68 . 24 Simon Johnson’s application under r 3.28 . 27 Bennett Jones’ application to strike under r 3.68 . 27 Walter McKall’s application to strike . 29 CMPA’s applications to strike in Action 215 and for

summary dismissal in Action 687 . 32 Costs . 41 Conclusion . 44 Introduction [ 1 ] This decision concerns applications to strike or summarily dismiss claims in four actions brought by Dr. Al-Ghamdi, and is the second decision arising from multiple applications set down by Justice Hillier, the Case Management Judge of ten actions commenced by Dr. Al-Ghamdi. I heard these applications in April and August, and I am releasing both decisions concurrently: the April applications are decided in Al Ghamdi v Alberta , 2017 ABQB 684 ( Al Ghamdi

Summary dismissal/strike application #1) and the August applications are set out in these Reasons ( Al Ghamdi

Summary dismissal/strike application # 2). The surrounding facts are set out in the Al Ghamdi

Summary dismissal/strike application #1 and I will not repeat them here.

Summary of these four actions and the present applications Action 1404 00719 (719) [ 2 ] Dr. Al-Ghamdi sought judicial review of a decision by the Complaint Review Committee (the Committee) of the College and Association of Registered Nurses of Alberta (CARNA) dismissing his complaints under the Health Professions Act , RSA 2000, c H- 7, in regards to four nurses he worked with. He alleged that the investigator did not interview witnesses he asked to have interviewed, that the process was unfair and biased, and that he was not given an extension by the Committee while he sought disclosure of the Investigator’s Report.

[ 3 ] CARNA now seeks to summarily dismiss the judicial review application under r 7.3(1)(

b) of the Rules of Court, supported by the affidavits of Jacqueline Bunn and Georgeann Wilkin. It further seeks a declaration that Dr. Al-Ghamdi is a vexatious litigant and an order prohibiting Dr. Al-Ghamdi from instituting further proceedings against CARNA without the Court’s permission. Action 1504 00215 (215) [ 4 ] Dr. Al-Ghamdi [1] brought what appears to be a judicial review application against the Canadian Medical Protective Association (CMPA), raising the same issues as those set out in the Statement of Claim in Action 1504 00687 (Action 687), (discussed below). CMPA applies for

summary dismissal of the Originating Application arguing that the CMPA’s decisions are not subject to judicial review. In the course of oral argument, Dr. Al-Ghamdi suggested that this application might be converted to be heard as an application for an injunction within the civil claim, Action 687) but he has not made that application formally. Action 1504 00592 (592) [ 5 ] Dr. Al-Ghamdi applied to the College of Physicians and Surgeons of Alberta (the College) to include family practice in his registration. The Assistant Registrar denied that application, and Dr.

Al-Ghamdi sought a review of that decision by the Review Panel of the Appeals Committee of the Council of the College (the Review Panel) under s 31(1) of the HPA . The Review Panel confirmed the Assistant Registrar’s decision. Dr. Al-Ghamdi sought judicial review of these decisions, naming in the style of cause, “Dr. Theman the Registrar College of Physicians and Surgeons of Alberta.” [ 6 ] The College raised two preliminary issues and on October 26, 2015, Justice Nation directed these two issues be determined first. Justice Hillier directed that they be determined with these applications: (

a) Whether Dr. Al-Ghamdi’s originating application was filed more than six months after service on him of the document entitled “Decision of the Review Panel of the Appeals Committee of the Council of the College of Physicians and Surgeons of Alberta” dated February 2015. (

b) Whether Dr. Al-Ghamdi’s originating application names the proper party (or parties) as respondent(s), and has been properly served on the persons specified in Rule 3.15(3). Action 1504 00687 (687) [ 7 ] Dr. Al-Ghamdi sued the following defendants: (

a) CMPA and James R. Sproule, the former Managing Director of CMPA, alleging that they failed to act in good faith when refusing to appoint another lawyer to represent him in his legal matters, and alleging further broad allegations of acting negligently and in bad faith, breaching trust and fiduciary duties, conspiracy and making false statements. (

b) Walter McKall, a lawyer who acted for Dr. Al-Ghamdi in several matters, alleging failure to act in a timely fashion, bad faith, breach of trust, breach of fiduciary duties, acting for him when in a conflict of interest, and conspiracy. (

c) Gowlings law frim ( sic) (properly described as Gowling WLG (Canada) LLP (Gowling) alleging negligence, bad faith, breach of trust, and conflict of interest, and conspiracy against Dr. Al-Ghamdi; (

d) Simon Johnson, a lawyer who acted for Dr. Al-Ghamdi, alleging failure to act in a timely fashion, bad faith, breach of trust, breach of fiduciary duties, acting for him when in a conflict of interest, and conspiracy. (

e) Bennett Jones Law Firm (properly described as Bennett Jones LLP), alleging negligence, bad faith, breach of trust and conflict of interest. Gowling’s application to strike [ 8 ] Gowling seeks to strike the claims against it under r 3.68, asserting that the pleadings do not assert any material facts to establish the pleaded causes of action, that there are insufficient particulars, and the claims are bound to fail because they do not establish a duty of care, there is no trustee relationship, there is no fiduciary relationship, and no breach of any duty. Mr. Johnson’s application under r 3.28 [ 9 ] Mr.

Johnson swears that he was never served with the Statement of Claim and applies to set aside the Notice in Default that Dr. Al-Ghamdi obtained by relying on an affidavit of service by registered mail that was signed for by someone other than Mr. Johnson. Mr. Johnson further seeks an Order under r 3.28 that no further action be taken against him because he was not served with the Statement of Claim within one year of its filing.

Bennett Jones’ application to strike [ 10 ] Bennett Jones also applies to strike the Claims against it, because there are no material facts pleaded that could support any cause of action, the pleadings lack sufficient particularity, and the causes of action alleged are bound to fail. Mr. McKall’s application to strike

[ 11 ] Mr. McKall applies to strike the claims against him under r 3.68, asserting that the pleadings reveal no reasonable cause of action, are frivolous, vexatious, improper, and an abuse of process. The CMPA’s application for

summary dismissal [ 12 ] The CMPA applies under r 7.3 for

summary dismissal of the action against it and Dr. Sproule, supported by an affidavit by Dr. Sproule, asserting that the CMPA is not an insurer and its decision to no longer provide legal assistance to Dr. Al-Ghamdi is discretionary, and not subject to a private cause of action. Appendices [ 13 ] I have attached the originating documents in these actions because I believe this will help clarify the issues as I analyze them, rather than quoting extensively from the pleadings.

The Originating Application in Action 719 is attached as Appendix A to these Reasons; the Originating Application in Action 215 is attached as Appendix B to these Reasons, the Originating Application in Action 592 is attached as Appendix C to these Reasons; and the Statement of Claim in Action 687 is attached as Appendix D to these Reasons. Appendix E is excerpts from Health Professions Act , RSA 2000, c H-7. Preliminary applications [ 14 ] As in the April applications, Dr. Al-Ghamdi again made a number of preliminary applications, beginning with an application for an adjournment.

He argued that there was a lot of material to understand and deal with in a very short period of time. The Applicants noted that the affidavits and applications were all filed and served by January at the latest, and some of the material was filed and served even earlier. The briefs were filed in compliance with the case management order and consistent with the general rules for filing briefs for Special Chambers.

Further, Hillier J made it quite clear in two case management letters (dated December 16, 2016 and March 21, 2017) and a January 17, 2017 case management order that these applications were peremptory on all parties and that there would be no adjournments. [ 15 ] I refused the application, finding that there was no basis for an adjournment, given Hillier J’s directions and the fact that he had also granted Dr. Al-Ghamdi several days’ extension from the usual rule for filing his response briefs. [ 16 ] Dr. Al-Ghamdi also raised four concerns about the Defendant, Simon Johnson: (

a) Simon Johnson’s affidavit dealing with setting aside the notice in default was filed late on March 6, rather than January 6, the date Hillier J had set for filing all materials related to setting aside noting in default. Justice Hillier excused the late filing of the affidavit in his March 21, 2017 letter. I accordingly dismissed this concern and allowed the affidavit to be considered. (

b) Dr. Al-Ghamdi also complained that Mr. Johnson’s application to set aside the noting in default should have been heard in April with the other applications to set aside noting in default. However, Justice Hillier, as the case management judge, ordered that it be heard with these applications. I found no reason to change this. (

c) Dr. Al-Ghamdi served an appointment to question Mr. Johnson on his affidavit, and was informed that he should either provide conduct money or forward his questions in writing. Dr. Al-Ghamdi did not send the questions to Mr. Johnson’s counsel, but instead asked for Mr. Johnson’s address. That request was not answered. Upon follow-up, Dr. Al-Ghamdi was told by Mr. Johnson’s counsel that he was now out of time for questioning under the time limits set by Hillier J. I noted that the affidavit was short, only five paragraphs, and that Dr. Al-Ghamdi did not provide the questions to counsel as required.

Admittedly, counsel for Mr. Johnson did not reply to Dr. Al-Ghamdi indicating why she could not provide the address. I decided that the matter would proceed and deal with this problem in the costs award. (

d) On August 1, 2017 Mr. Johnson’s application was amended, without leave of Justice Hillier, to add consequential relief (a declaration under r 3.28 that no further action could be taken against Mr. Johnson because he was not served with the Statement of Claim in time). Counsel for Mr. Johnson indicated that having only recently taken on the file, she was unaware of Justice Hillier’s order that any new applications required a fiat. Moreover, the declaration is nothing more than confirmation of the operation of the rule. I concluded that I would hear the application, since Dr. Al-Ghamdi was familiar with the issues raised, having dealt with them in Al- Ghamdi

Summary dismissal/strike application #1 and would not be unduly prejudiced. Any issues arising could be addressed with costs. Analysis Dr. Al-Ghamdi’s submissions [ 17 ] I have chosen to set out the bulk of Dr. Al-Ghamdi’s submissions separately from the overall analysis because he generally failed to address the issues raised by the Applicants. However, I have included his directly relevant submissions within the analysis later in these Reasons. [ 18 ] Dr.

Al-Ghamdi’s written submissions begin with a lengthy narrative of facts, only some of which appear in the pleadings, and only some of which are supported in the affidavits filed in these actions. Most of his allegations are irrelevant to these applications, as they deal with matters not at issue here, date from periods well outside the limitation periods for these actions and applications, and reference people who are not defendants in these actions. The most relevant assertions deal with his interactions with Mr.

McKall, but some of these were never pleaded or attested to in affidavit evidence, at least not with the same particularity.

[ 19 ] Dr. Al-Ghamdi goes on to make more detailed allegations regarding his conflicts with the nurses about whom he complained to CARNA, but even if these allegations were supported by affidavit evidence, they are irrelevant to the question of whether his judicial review of CARNA’s Complaint Review Committee should be struck.

Evidence is only admissible in a judicial review application for five purposes ( Alberta Liquor Store Association v Alberta (Gaming and Liquor Commission ), 2006 ABQB 904 at para 41 : • to show bias or a reasonable apprehension of bias, • where the facts in support of the allegation do not appear on the record; • where breaches of natural justice will not be apparent on the record; • to address issues such as standing; and • where the tribunal appealed from made no, or an inadequate, record, affidavits may be allowed to show what evidence was placed before the tribunal. [ 20 ] The evidence of what the nurses did or said giving rise to Dr.

Al-Ghamdi’s complaint is not relevant to any of the above questions. [ 21 ] Similarly, the facts surrounding the College’s decision to not include family practice in his license are immaterial in these applications; the issues here are whether the Originating Application was filed within the limitation period and whether the Originating Application named the appropriate respondents and whether they were served. [ 22 ] Dr. Al-Ghamdi asserted that there was no contract with CMPA to provide insurance, but at the same time asserted that CMPA promised to provide unlimited coverage.

He argues that the nature of the relationship among him and CMPA and the lawyers appointed by CMPA must be addressed, and asks the Court to combine the two actions into one: the first a civil action for damages and the second an application for an injunction compelling CMPA to provide legal services to him. He has not filed an application seeking that relief. Moreover, what is at issue in these applications is whether the judicial review application should be struck and whether the civil action should be summarily dismissed. None of these submissions directly address these issues.

If the applications to dismiss and strike are not granted, then Dr. Al-Ghamdi could conceivably bring such an application. [ 23 ] Dr. Al-Ghamdi makes a number of allegations about his relationship with Mr. Johnson, none of it directly relevant to the application before me. He suggests that it is necessary to review the relationship between himself, Mr. Johnson and Gowling, but this is not responsive to Mr. Johnson’s application to set aside the default notice or order that no further action be taken against him. [ 24 ] Some of Dr.

Al-Ghamdi’s argument appears to be relevant to the applications under Action 667, such as suing the Crown (not a party in these actions), suing multiple defendants because they signed a petition against him (not an allegation in these actions), suing Mr. Bernardo (a defendant in Action 667, not in any of these actions) and the Field application for contempt. These submissions may be directed towards the Applicants’ submission that Dr. Al-Ghamdi has engaged in vexatious litigation. Dr.

Al-Ghamdi seems to consider these allegations a personal attack, but vexatious litigation is a term of art describing a pattern of litigation behaviour. To the extent that Dr. Al-Ghamdi’s submissions here are re-litigating the issues in the April applications, I will not deal with them. To the extent they are related to the vexatious litigation application, those matters, like obeying Justice Tilleman’s order, refusing to pay costs, failing to be candid with Justice Simpson, and misleading the Court of Appeal, were decided or dealt with in other venues will not be re-litigated here. [ 25 ] Dr.

Al-Ghamdi then addresses the question of natural justice and the duty to be fair, but his argument begins by raising the suspension of his hospital privileges – that decision is not at issue in these applications. The three judicial review applications at issue here are the CARNA Complaint Review Committee decision to dismiss his complaint, the College’s decision to not include family practice in his license, and the CMPA decision to no longer fund any legal representation. Dr.

Al-Ghamdi then sets out the general law on the nature of the duty to be fair and the principles of natural justice, but he does not apply those principles to the applications at issue here. Legal principles [ 26 ] I extensively discussed the legal principles applicable to applications to strike under r 3.68, applications for

summary judgment under r 7.3, and applications under r 3.28 in Al- Ghamdi

Summary dismissal/strike application #1 . Hillier J discussed the principles underlying applications to open up noting in default in the Al-Ghamdi v Alberta, 2017 ABQB 169 (the Default Notice decision ). I will not repeat those discussions. Action 719 [ 27 ] CARNA seeks

summary dismissal of Dr. Al-Ghamdi’s judicial review application, a declaration under s 23.1 of the Judicature Act RSA 2000, c J-2, that Dr. Al-Ghamdi is a vexatious litigant, and an order that Dr. Al-Ghamdi be prohibited from instituting further proceedings against CARNA without the Court’s permission.

Summary dismissal application The application [ 28 ] Dr. Al-Ghamdi complained to CARNA under HPA about the conduct of four nurses, who he said acted unprofessionally. Georgeann Wilkin, CARNA’s Acting Complaints Director (the Complaints Director) appointed an investigator to conduct investigations into each complaint. Upon review of each of the investigation reports, the Complaints Director dismissed all four complaints, finding

there was insufficient evidence of unprofessional conduct. Dr. Al-Ghamdi then requested review of the Complaints Director’s decision by the Complaint Review Committee (the Committee). The Committee met to review the Complaints Director’s decisions and in each case found that the dismissal decision was reasonable. [ 29 ] Dr. Al-Ghamdi then filed an application for judicial review of the Committee’s decision and an application to examine witnesses in order to use the subsequent transcripts as evidence in the judicial review. Dr. Al-Ghamdi’s Originating Application sets out the complaints he raised against the nurses, and then alleges that: (

a) CARNA’s investigator did not interview a witness Dr. Al-Ghamdi asked to have questioned; (

b) The Complaint Director was biased and based her decision on information she received from a third party; (

c) The Hearing Director refused to disclose the information used by the Complaint Director to make the decision; (

d) The Hearing Director refused to give Dr. Al-Ghamdi an extension until he received that disclosure; and (

e) The process was unfair and biased and lacked natural justice. The Legislation [ 30 ] The relevant provisions of the HPA are set out in Appendix E to this decision. In

summary, complaints are made under s 54. Under s 55(2), the Complaints Director is given broad discretion to deal with complaints including: • s 55(2)(a): encouraging resolution; • s 55(2)(b): referring the complaint to an alternative complaint resolution process; • s (55)(2)(d): conducting an investigation or appointing an investigator to conduct an investigation; and • s 55(2)(

e) and (f): dismissing the complaint if satisfied the complaint is frivolous or vexatious or if satisfied there is insufficient evidence of unprofessional conduct. [ 31 ] Under s 55(3), the Complaints Director must give notice to the complainant of a dismissal under (

e) or (

f) and inform them of the right to apply for a review to the Committee. [ 32 ] If the matter is investigated, ss 61-68 set out the procedure.

Section 61 sets out the rights of the complainant and the investigated person during the investigation; s 63 sets out the investigator’s powers; and s 66 sets out the steps to be taken upon completion of the investigation. Under s 66(3), on reviewing the investigator’s report, the Complaints Director must either refer the matter to the hearings director for a hearing or dismiss the complaint, if “ in the opinion of the complaints director ” the complaint is trivial or vexatious, or there is insufficient or no evidence of unprofessional conduct (emphasis added).

Section 67 provides that the complaints director must notify the complainant and the investigated person in writing of the action taken under s 66(3) and, if the complaint is dismissed, must give reasons and notify the complainant in writing of the right to apply to the hearings director for a review under s 68. [ 33 ] Under s 68, a complainant may apply to the hearings director for a review by the Complaints Review Committee of the Complaints Director’s dismissal under either ss 55 or 67.

Section 68(2) specifies that the Investigator’s Report must be given to the Committee; it does not permit or require the provision of the Investigator’s Report to the complainant or the investigated person. [ 34 ] Under s 68(4) the Committee has the discretion to accept submissions orally or in writing. Section 68(5) provides the Committee with wide discretion on completion of the review.

It may order a referral to hearing, further investigation, or it may confirm the complaint’s dismissal if, in its opinion, the complaint is trivial or vexatious, or if there is insufficient or no evidence of unprofessional conduct. Finally, under s 68(6), the Committee must give the complainant and the investigated person written notification, with reasons, of the action taken under subsection (5). Evidence in this application [ 35 ] Dr. Al-Ghamdi filed an affidavit in support of his application for judicial review and his application to cross-examine witnesses.

He did not file an affidavit in reply to CARNA’s application for

summary dismissal. On May 4, 2015, Hillier J, as case management justice, ordered that Dr. Al-Ghamdi’s affidavits, filed on or before December 31, 2014 in the following actions, 1404 00589, 1404 00720, 1404 00661 and 719, “shall form part of the materials available for consideration by the Justice hearing the merits of the four subject judicial reviews.” I have before me only the affidavit in Action 719, and Dr. Al-Ghamdi made no reference in his submissions to the affidavits in the other three actions. In the absence of any submissions on the question, I take Hillier J’s order as including these other affidavits in the subject judicial review applications, but not in this

summary judgment application. [ 36 ] Dr. Al-Ghamdi’s affidavit affirms that he complained to CARNA about the actions of two nurses. In the affidavit, he alleges that one of these nurses acted outside her scope of practice, blackmailed him “by informing that [he] had reported her to CARNA, and that her staff created a hostile workplace for him.” He accuses a second nurse of blocking his patient from access to surgery, of being evasive and abusive, of being a difficult person and a friend of the first nurse he had reported to CARNA.

He further alleges that this nurse hid equipment so that there was a delay in his patient’s surgery. He then alleges that these two nurses accused him of falsely threatening the second nurse, and then used their connections and authority to influence other staff to write a petition saying they would not work with him. [ 37 ] Dr. Al-Ghamdi’s affidavit then names a third nurse, a close friend of the first nurse and “a notorious person,” as the person

who was behind the petition. He then accuses a fourth nurse of telling the mother of a child patient that the child’s surgery would not happen unless she changed surgeons. He concludes the affidavit saying: The CARNA complaints director failed to investigate the matter of my complaint and dismissed the complaint. The hearings director failed to extend the time for the hearing and to provide disclosure to submit proper appealing, and failing to consider an oral hearing due to issues of credibility.

Furthermore, the hearings director suppressed critical evidence that affected the review committee’s decision. [ 38 ] I note here that Dr. Al-Ghamdi’s affidavit does not provide any evidence to support the allegations in the application that the Complaint Director was biased or that the process was unfair, biased and lacked natural justice. Nor are there any specifics as to who or what evidence was allegedly suppressed, nor as to what information was obtained from which third party. [ 39 ] Ms. Wilkin swore an affidavit, filed January 3, 2017, in support of CARNA’s application for

summary dismissal and to have Dr. Al-Ghamdi declared a vexatious litigant. [ 40 ] Ms. Wilkin’s affidavit provides the following information: On August 16, 2013, Dr. Al-Ghamdi filed a complaint alleging that four registered members had engaged in unprofessional conduct, and Ms. Wilkins appointed an investigator to conduct four separate investigations into the conduct of each. The investigation involved numerous interviews of witnesses and the review of background documents provided to the investigator by Dr. Al-Ghamdi. The Investigator prepared four separate and lengthy reports and provided them to Ms.

Wilkin, She then reviewed the investigator’s reports and attachments and concluded, in accordance with s 66(3)(

b) of HPA , that there was insufficient evidence of unprofessional conduct. [ 41 ] As required under HPA , Ms. Wilkin wrote Dr. Al-Ghamdi, giving him notice that she was dismissing his complaints because there was insufficient evidence of unprofessional conduct (letters dated February 7, 2014, February 24, 2014 and February 25, 2014). The letters also informed Dr. Al-Ghamdi that under s. 68 of the HPA , he could apply to the Complaint Review Committee for a review of her decision. Dr. Al-Ghamdi sought review of each of the four decisions. [ 42 ] The Committee invited written submissions from Dr.

Al-Ghamdi and the investigated members. At the time, Dr. Al-Ghamdi was represented by a lawyer, and his counsel sought and obtained an extension of time to submit his written materials to the Committee. Dr. Al-Ghamdi, through his counsel, consented to the Committee hearing all four review requests on the same day by the same tribunal members. Dr.

Al-Ghamdi’s counsel also unsuccessfully sought disclosure of the four investigation reports; the Hearing Director refused disclosure because CARNA’s By-law 29 only permits disclosure of the investigation report to investigated members and only for the purposes of a hearing. [ 43 ] In May 2014, the Committee met and reviewed the investigation reports, Ms. Wilkin’s dismissal decisions and notices, Dr. Al-Ghamdi’s request for review, and the written submissions from the investigated members and Dr. Al-Ghamdi. The Committee concluded that Ms.

Wilkin’s decisions were reasonable and disclosed reasons that met the test for adequate reasons. The Committee wrote Dr. Al-Ghamdi on July 2, 2014, confirming its decision to dismiss the complaints because there was insufficient evidence of unprofessional conduct. Dr. Al-Ghamdi was also provided with written reasons for each decision, as required under the HPA . [ 44 ] Ms. Wilkin deposes that the “complaints were investigated unbiasedly, fairly, thoroughly and in accordance with the CARNA’s obligations under the HPA and its Bylaws. There is no merit to Dr.

Al-Ghamdi’s claim that the process was unfair, biased and lacked procedural fairness.” Should this application be summarily dismissed? [ 45 ] CARNA asserts that Dr. Al-Ghamdi’s grounds for judicial review have no merit and that it is entitled to

summary dismissal on the basis of the uncontested facts before the Court. [ 46 ] CARNA argues that Dr.

Al-Ghamdi, as a complainant, is not a party to the disciplinary process, and therefore only has standing to seek judicial review on issues related to procedural fairness: Friends of the Old Man River Society v Assn of Professional Engineers, Geologists and Geophysicists of Alberta, 2001 ABCA 107 at paras 42-49 , leave to appeal ref’d [2001] SCCA No 366; Mitten v College of Alberta Psychologists, 2010 ABCA 159 at para 17 ; Tran v College of Physicians and Surgeons of Alberta, Complaint Review Committee, 2017 ABQB 337 at paras 17-20 . [ 47 ] A complainant in a professional discipline matter is limited to seeking relief for breaches of procedural fairness and cannot seek substantive review of the decision.

In Mitten , the Court of Appeal noted (at para 17): While the role of the complainant in discipline proceedings at the investigative stage is limited, the statute does afford the complainant some rights. The College and the investigated psychologist may be the only full parties at that stage, but the claimant is clearly a participant in the appeal of the decision not to proceed to hearing. The Act specifically gives that right of appeal to the complainant.

What the obiter comments in Friends of the Old Man River signify is that the complainant cannot turn the appeal of the decision not to proceed to a hearing into a surrogate hearing on the merits. [ 48 ] In Tran , Ross J was dealing with the same disciplinary process at issue here, under the HPA , and she extensively reviewed the previous jurisprudence on the complainant’s role in professional disciplinary matters, concluding (at para 25): I conclude that the Applicant’s standing is limited to issues of procedural unfairness before the Committee.

The Applicant is not entitled to seek review of the reasonableness of the Committee’s decision on the merits. [ 49 ] In Friends of Old Man River (at paras 46 and 49), Mitten (at para 16 ), and Tran (at para 30 ), the duty of fairness owed to a complainant was said to be limited and at the low end of the scale. This is because the proceedings do not involve a final determination of complainants’ rights and do not expose them to prosecution or put their reputations, property, or liberty in jeopardy. [ 50 ] Essentially Dr.

Al-Ghamdi’s first four allegations relate to the conduct of the investigation into his complaints: who the

investigator interviewed (or did not interview); the source of information relied on in the course of the investigation; the HearingDirector’s refusal to provide the investigator’s reports; and the Hearing Director’s refusal to grant a hearing extension, pending theprovision of those reports. Investigator did not interview Dr.

Al-Ghamdi’s proposed witnesses [51] The investigatory stage of disciplinary hearings are not subject to judicial review because at this stage the decision to proceedwith a complaint is akin to prosecutorial discretion: Friends of the Old Man River at paras 36-37 and 41-42: Although called an “appeal”, the right conferred on a complainant by s. 49(3) is no more than a right to have the decision of theDiscipline Committee terminating an investigation reviewed by Council. It is, in our view, simply an extension of the investigativeprocess... ...

The decision of Council to uphold the termination of an investigation is a discretionary one. In deciding whether or not toproceed with a disciplinary hearing, Council must consider not only the interests of the complainant but also the rights of the investigatedperson and its responsibility as the governing body of a self-governing profession... ... Under the investigative process contained in

Part 5, a complainant is not made a party either to the investigation or the disciplinaryprocess itself. The only parties are the Association and the member whose conduct is under investigation.... The discretion exercised by Council is analogous to prosecutorial discretion in the criminal process. With respect to the review by thecourts of prosecutorial discretion, L'Heureux-Dubé J. said in R v.

Power, (SCC), [1994] 1 S.C.R. 601, 89 C.C.C. (3d)1, at 15, that it “is especially ill-suited to judicial review”. (emphasis added) [52] See also Mitten at para 18; UAlberta Pro-Life v Governors of the University of Alberta, 2017 ABQB 610 at para 31. [53] The investigator had no obligation to interview the witnesses proposed by Dr. Al-Ghamdi. As noted by Ross J in Tran (atpara 23), a complainant to a professional regulatory body: ... has the same interest as any member of the public: an interest in ensuring that members of the profession meet the standards set by thegoverning body.

It is the role and the obligation of the professional regulator, not the complainant, to ensure that standard is met. [54] Further, as noted by Topolniski J in Al-Ghamdi v Peace Country Health Region, 2015 ABQB 155 at para 70 (HRC judicialreview), aff’d 2017 ABCA 31, leave to appeal ref’d 2017 SCCA No 112, the investigator controls her process and is not required to“question every potential witness and turn over every stone.” [55] I conclude that the allegation that the investigator did not interview Dr. Al-Ghamdi’s proposed witnesses has no likelyprospect of success on judicial review, because (

a) the investigatory stage is not subject to judicial review; and (

b) even if it was, therewas no breach of the duty to be fair. I conclude there is no merit to this claim and no likelihood of success of judicial review on thisground. Information from a third party [56] Dr. Al-Ghamdi argued that the Complaint Director relied on information obtained from a third party, but cites no reason whythis would be inappropriate or breach the duty to be fair. Neither the application nor the affidavit explains who this alleged third party is,but in submissions Dr. Al-Ghamdi suggested that it was inappropriate for CARNA to receive information from the College.

He cites noauthority for this proposition. I conclude there is no merit to this claim and no reasonable prospect of success on this ground. The Investigator’s Report [57] Dr. Al-Ghamdi also alleges that refusing to provide the Investigator’s Report and to grant an extension pending the provisionof the Report breached the duty of procedural fairness. However, under the HPA, the Complaint Director is only required to provide theReport to the Committee. Further, CARNA’s Bylaw 29, made pursuant to s 132(1)(

a) of HPA, provides: The investigation report may be released to the investigated member for the purposes of a hearing before a Hearing Tribunal. [58] Given this statutory framework and Dr. Al-Ghamdi’s limited fairness expectations as a complainant, I conclude that there isno merit to this claim and no prospect of success on this ground. Further, since there is no right to the report, failure to provide anextension because the Report was not provided does not breach any duty of procedural fairness.

I note that the Committee did grant anextension for filing submissions, demonstrating its careful consideration of Dr. Al-Ghamdi’s fairness interests. There is no merit to thisclaim and no likelihood of success on this ground of judicial review. The Complaints Director’s bias [59] The general allegations that the Complaint Director was biased is supported by no evidence, and in any event, her decisioncannot be the subject of this judicial review.

If there was unfairness at the first step, a fair review at the appeal level can cure the defect,and therefore it is the last decision, not an interim decision, that is the subject of review: King v University of Saskatchewan, (SCC), [1969] SCR 678; Harelkin v University of Regina, (SCC), [1979] 2 SCR 561; Hnatiuk v The Societyof Management Accountants of Manitoba, 2013 MBCA 31 at para 78; Actton Transport Ltd v British Columbia (EmploymentStandards), 2010 BCCA 272 at para 56.

This has been variously described as the doctrines of exhaustion, of adequate alternativeremedies, and against fragmentation or bifurcation of administrative proceedings, and as the rules against interlocutory judicial reviews,and premature judicial reviews. These were discussed in CB Powell Ltd v Canada (Border Services Agency), 2010 FCA 61 at para 31

and Al-Ghamdi

Summary dismissal/strike application #1 . [ 60 ] Further, Ms. Wilkin’s decisions were communicated to Dr. Al-Ghamdi by letters dated February 7, 2014, February 24, 2014, and February 25, 2014. Dr. Al-Ghamdi’s application was filed on December 23, 2014, more than six months after the decision. [ 61 ] There is no merit to this claim and no likelihood of success on this ground of judicial review. The process was unfair and biased [ 62 ] Keeping in mind that the mere assertion of a respondent in a pleading is not sufficient to defeat a

summary judgment application ( 776826 Alberta Ltd. (c.o.b. BudweiserMotorsports Park) v Ostrowercha , 2015 ABCA 49 at para 11 ), and that both parties must put forth their strongest case ( Composite Technologies v Shawcor Ltd , 2017 ABCA 160 at para 77 ), Dr. Al-Ghamdi has led no evidence of bias or unfairness beyond the bare assertions in his Application and Affidavit. [ 63 ] Dr. Al-Ghamdi’s affidavit alleges that the “hearings director failed... to provide a disclosure to submit proper appealing ( sic ) ...

Furthermore, the hearings director suppressed critical evidence that affected the review committee’s decision.” It is unclear what this is in reference to, but I suspect it may be related to the investigator’s reports, which I have already determined were not required to be produced to Dr. Al-Ghamdi. Further, the Committee was entitled to receive the Investigator’s Reports, and according to Ms. Wilkin’s affidavit, they were provided to them. This evidence does not support the allegation of unfairness. [ 64 ] Dr.

Al-Ghamdi’s affidavit also complains that there was no oral hearing, suggesting that questions of credibility mandated an oral hearing. Section 68(4) gives the Committee the discretion to determine whether the review be conducted through written or oral submissions. Given this discretion and the limited nature of procedural fairness to be accorded to a complainant, I conclude that there is no merit to this ground of judicial review and no likelihood of success. Substantive merits of the decision [ 65 ] Dr.

Al-Ghamdi spent some time in his submissions addressing the definition of unprofessional conduct set out in the HPA , arguing that the Complaints Director and the Committee had no discretion in determining whether the conduct complained of constituted unprofessional conduct in light of the findings of fact. This argument is directed at the substantive merits of the decision, and the law is clear that Dr. Al-Ghamdi has no standing to challenge the Committee’s decision on this ground. [ 66 ] Dr.

Al-Ghamdi also argued that the Complaints Director erred by immediately referring the matter to investigation and not entering into the alternative dispute resolution process set out in the HPA. I dismiss this argument for two reasons. First, it is a substantive allegation, not a question of procedural fairness. It is the Committee’s decision that is under review. If Dr. Al-Ghamdi’s allegation is that the Committee should have found the Complaint Director erred by not referring the matter to one of the other options under s 55(2), that goes to the merits of the decision, not the question of whether Dr.

Al-Ghamdi was accorded fairness. [ 67 ] Secondly, in any event, s 55(2) provides the Complaints Director with eight purely discretionary choices to deal with the complaint. Dr. Al-Ghamdi has no right to the alternative dispute processes, nor was it unfair of the Complaints Director to not choose one of the other options. [ 68 ] Accordingly, I grant CARNA’s application for

summary dismissal. The vexatious litigant application The legislation and jurisprudence [ 69 ] Sections 23 and 23.1 of the Judicature Act give the Court jurisdiction to grant a vexatious litigant order, both of its own motion or on application. Section 23(2) sets out the following criteria: (

a) persistently bringing proceedings to determine an issue that has already been determined by a court of competent jurisdiction; (

b) persistently bringing proceedings that cannot succeed or that have no reasonable expectation of providing relief; (

c) persistently bringing proceedings for improper purposes; (

d) persistently using previously raised grounds and issues in subsequent proceedings inappropriately; (

e) persistently failing to pay the costs of unsuccessful proceedings on the part of the person who commenced those proceedings; (

f) persistently taking unsuccessful appeals from judicial decisions; (

g) persistently engaging in inappropriate courtroom behaviour. [ 70 ] This list is non-exhasutive: Dahlseide v Dahlseide , 2009 ABCA 375 at para 37 . [ 71 ] Under s 23.1, such an application must be brought on notice to the Minister of Justice and Solicitor General (the Minister). I have no indication in the materials or submissions that this notification was given. I will analyse the application on its merits, and then, if necessary, address the issues raised by CARNA’s apparent failure to give notice to the Minister. [ 72 ] Ms. Wilkin’s affidavit outlines the steps Dr.

Al-Ghamdi took in trying to obtain the Investigation Reports. These steps, along with Dr. Al-Ghamdi’s general conduct of litigation, form the basis for CARNA’s submissions that Dr. Al-Ghamdi be found a vexatious

litigant. Ms. Wilkin deposes that she believes Dr. Al-Ghamdi filed this judicial review application in order to obtain the Investigation Reports to use in his hearings before the College. The following chart sets out Dr. Al-Ghamdi’s actions as described in Ms. Wilkin’s affidavit: DATE January 15, 2015 Mr. Renouf, counsel for CARNA, asks for an adjournment of the application to Special Chambers. February 12, 2015 Dr. Al-Ghamdi replies that he would consider the adjournment after receiving the certified record. December 10, 2015 CARNA receives Notices to Attend and Notice for Production of Documents from Dr.

Al-Ghamdi for Cindy Jones, Sue Chandler, and Georgeann Wilkin (CARNA officials) to attend at a College hearing, asking that CARNA officials bring all documents, emails, charts, meeting minutes, letters about or related to Dr. Al-Ghamdi and any complaint filed or received from Dr. Al-Ghamdi or about Dr. Al-Ghamdi. March 2, 2016 Ms. Wilkin receives a Notice to Attend and Notice for Production of Documents to attend a College hearing on March 8, 2016. The documents asked that she bring “all complaints filed by Dr.

Al-Ghamdi, letter of complaints, Emails, investigation report, communication with individualizes and communication with a third party about Dr. Al-Ghamdi.” (all sic ) April 11, 2016 Dr. Al-Ghamdi appears ex parte in morning chambers before Master Schulz seeking orders for substitutional service. His application included the CARNA officials. In support of this application Dr. Al-Ghamdi affirmed an affidavit in Action 1603 06338. In this affidavit, he made a number of general statements about the persons he was seeking to serve substitutionally.

While those statements were truthful about some of the defendants, they were untrue as they apply to the CARNA officials: that the witnesses were working as health care providers in a hospital; that they work in the operating room; they work different shifts. He further indicated that they were important witnesses in the current procedure (the College hearing). Ms. Wilkin notes that at this point in time, the College had issued an interim order (December 17, 2015) that Dr. Al-Ghamdi could only call one CARNA witness. [ 73 ] In addition to these facts, CARNA points to Dr.

Al-Ghamdi’s litigation history, noting conduct and patterns that it alleges satisfy the criteria. [ 74 ] A litigant’s entire court history is relevant and the Court may take judicial notice of the public record as evidence of a litigant’s misconduct, even when it is in an unrelated proceeding: Thompson v International Union of Operating Engineers Local No 955, 2017 ABCA 193 at para 25 ; Wong v Giannacopoulos , 2011 ABCA 206 at para 10 . [ 75 ] In Al-Ghamdi

Summary dismissal/strike application #1, I noted that Dr. Al-Ghamdi’s conduct of litigation bore many of the hallmarks of vexatious litigation set out in Chutskoff v Bonora , 2014 ABQB 389 , aff’d 2014 ABCA 444 .

In particular, I noted that he had • made bald assertions of egregious misconduct: Chutskoff at paras 92 (9) and 121, Onischuk v Alberta , 2013 ABQB 89 at para 35 ; • commenced multiple and expanding actions expanding the list of defendants and adding lawyers; Chutskoff at para 92 (3); McMeekin v Alberta (Attorney General), 2012 ABQB 144 at paras 31 and 33 ; Koerner v Capital Health Authority , 2011 ABQB 462 at para 21 ; and • sued lawyers that are currently involved in ongoing matters: Correia v Jaycock , 2001 ABQB 299 at para 25 . [ 76 ] I also note Hillier J’s discussion of Dr.

Al-Ghamdi’s litigation conduct in the Default Notice decision (at para 83): Dr. Al-Ghamdi’s actions in pursuit of the noting in default failed every measure of fairness and good faith. He noted defendants in default on December 4, 2015, (the day after Mr. Faulds’ second letter to him), again on December 8, 2015 (the date he offered to extend the time limit briefly for a few parties) and a third time on December 10, 2015 (prior to the expiry of his limited offer of extension, but subsequently extended). [ 77 ] Hillier J expressed additional concerns about Dr. Al-Ghamdi’s conduct, some of which I noted in Al-Ghamdi

Summary dismissal/strike application #1 . These include finding that Dr. Al-Ghamdi: • filed a problematic affidavit rendering its reliability suspect; • appeared ex parte before Justices Tilleman and Simpson, without advising them that some of the parties were represented and had sought notice of any steps he took; • failed to tell Simpson J he had appeared before Tilleman J and had not acted on the order Tilleman J made; • filed affidavits of service that he knew were not accurate; and

• sought to note defendants in default using affidavits he knew were flawed. [ 78 ] I reviewed many of these issues in the

section of the Al-Ghamdi Striking/Summary Judgment #1 on contempt. [ 79 ] CARNA also points to the following: (

a) Repeatedly commencing appeals that are subsequently struck for failure to comply with the Rules of Court: Al-Ghamdi v Alberta, 2016 ABCA 324 ; Al-Ghamdi v Alberta , 2017 ABCA 208 at para 3 ; (

b) Misleading or attempting to mislead the Court, including appearing before Watson JA and asserting he did not receive a letter, when that letter had been referenced in one of his briefs: Al-Ghamdi v Alberta , 2017 ABCA 208 (at para 4 ); (

c) Bringing actions against lawyers who have acted against him, lawyers who have acted for administrative bodies, and lawyers who have acted for him; (

d) Making repeated allegations of conspiracies, intimidation, harassment and racial bias, including the HRC judicial review and the subsequent unsuccessful appeals. [ 80 ] CARNA points to some of the submissions Dr. Al-Ghamdi made to the Committee, using inflammatory language like “gang- like mistreatment and bullying,” “an intentional and ongoing scheme to humiliate, discredit, and professionally ruin Dr. Al-Ghamdi.” Further, CARNA notes that as of October 29, 2013 Dr. Al-Ghamdi had filed 11 complaints with the College about his colleagues, and 10 were dismissed. Dr.

Al-Ghamdi sought review of some of those dismissals and the Review Committee upheld the dismissals. Dr. Al- Ghamdi has also resisted paying costs: Al-Ghamdi v Alberta , 2017 ABCA 151 . [ 81 ] I conclude that there is sufficient evidence in the court record to conclude that Dr. Al-Ghamdi is a vexatious litigant. I will grant the vexatious litigant order sought by CARNA and order that Dr. Al-Ghamdi shall not institute further proceedings against CARNA without the Court’s permission. However, I stay the operation of that order for 30 days in order for notice to be given to the Minister.

Verville J in Hok v Alberta , 2016 ABQB 335 and 2016 ABQB 651 , leave to appeal refused 2017 ABCA 63 , made a similar order giving 30 days’ notice to both the Minister and Ms. Hok. Action 215 [ 82 ] This is a judicial review application against CMPA. There were originally two other applicants, but they have withdrawn. The issues raised here are duplicative of the claims against CMPA in Action 687 and will be addressed there. Action 592 Was the application filed and served in time? [ 83 ] Action 592 is Dr.

Al-Ghamdi’s judicial review of the Review Panel’s decision to not include family practice in his registration. [ 84 ] The Review Panel rendered its decision on February 27, 2015, and, according to her affidavit, Marian Albright, Executive Assistant to the Registrar of the College, emailed the Review Panel’s decision to Dr. Al-Ghamdi on February 27, 2015 at 8:30 am. Dr.

Al-Ghamdi filed his application for judicial review of the decision on September 18, 2015, more than six months after the date of the decision. [ 85 ] Justice Nation heard the College’s preliminary objections on October 26 and ordered that the preliminary questions of whether the application was filed and served on time and whether the proper parties were named and served be heard in special chambers. She further ordered Dr. Al-Ghamdi to file an affidavit by November 1, 2015 detailing how and when he became aware of the Review Panel’s decision. [ 86 ] Dr.

Al-Ghamdi affirmed two affidavits deposing to the date he received the decision: March 27, 2015 (exactly one month after the decision was emailed to him). In the first affidavit (filed October 30, 2015), he stated that the email: ...seemed to have gone into the spam box for whatever reason (either this email or another one from the college, but I am not sure, as I recall finding one email from the college in my spam box. I cannot be 100% certain if it was this one but with a high probability, I can say it was). It may also just have arrived late.

I do not know or recall exactly, but I recall I found it when I was doing a search on my emails.... I do not recall having received this email or seen it before; otherwise I would have replied to it on the same day. [ 87 ] Dr. Al-Ghamdi’s second affidavit, filed December 22, 2015, states positively that the February 27, 2015 email ended up in his spam folder. He goes on to describe what he alleges to be an error in the email header that activated the spam software to identify it as spam. The affidavit did not include any evidence of this error. [ 88 ] Rule 3.15 provides:

(2) Subject to rule 3.16, an originating application for judicial review to set aside a decision or act of a person or body must be filed and served within 6 months after the date of the decision or act, and rule 13.5 does not apply to this time period.

(Emphasis added) [89] Six months after the date of the decision would be August 27, 2015. On its face, the application was filed out of time. [90] However, Dr.

Al-Ghamdi argues that the time runs from the time he received the decision. [91] The College argues that the new rule differs from the former R 753.11 by specifying that the limitation runs from “the date ofthe decision.” The old rule read: 753.11(1) Where the relief sought is an order to set aside a decision or act, the application for judicial review shall be filed and servedwithin six months after the decision or act to which it relates. [92] Under R 753.11, the jurisprudence held that if the tribunal was statutorily required to give notice of its decision (and under s32(3) of the HPA, the Review Committee is required to do so), the time began to run from the date of service of the decision or the datethe applicant received a copy of the decision.

In Bowen v Council of City of Edmonton (1977), (AB CA), 75 DLR(3d) 131 at 134 (ABCA), time began to run when the appellant received notice of the decision by mail. In Transcanada Energy Ltd vAlberta (Energy), 2009 ABQB 717 at para 12, Justice Hunt-McDonald held that time began to run when the applicants received noticeof the Minister’s decision. Dr. Al-Ghamdi also relied on Transcanada Energy Ltd and Edmonton (City) v LA Ventures Inc, 1999ABQB 649, for the same general propositions.

The College notes that these decisions all dealt with R 753.11, not r 3.15. [93] The Court of Appeal in a more recent decision, Athabasca Chipewyan First Nation v Alberta (Minister of Energy), 2011ABCA 29, leave to appeal ref’d 2011 SCCA No 128, directly addressed the question of whether the limitation period in R 753.11 beganto run when the applicant received the decision or when the decision-maker provided notice, stating at paras 27-28: In Alberta, Rule 753.11 has been strictly construed.

Unless there is a clear and stated obligation to provide notice of a decision, the six-month limitation runs from the date of the decision. If there is a clear obligation to provide notice then the limitation runs from the datenotice is given ... [citations omitted], the Supreme Court confirmed that when a limitation runs from an event which clearly occurs,without the regard to the injured party’s knowledge, the discoverability principle does not apply. In our view, the Legislature intended the limitation to operate without regard to the potential applicant’s knowledge.

The rule isoperative upon the “decision or Act” occurring, not the date the decision or act is communicated to potential parties. (Emphasis added) [94] Similarly, in Peressini v The Chief of the Commission and Tribunals of the Human Rights Commission and the City ofMedicine Hat, Action No. 1408 00239, 9 March 2015, Miller J held that the date ran from the date of the actual decision (Transcript,3/17-20; 3/33-38), relying on Athabasca Chipewyan. [95] This makes logical sense; a limitation period requires some certainty, and the date notice is given is more certain than when apotential applicant opens his or her email, checks their fax machine, or looks in their spam folder.

As Veit J noted in Johannessen v TheAppeals Commission (1995), (AB KB), 175 AR 34 (QB) at para 34: The rules establish a six month limit within which a motion for judicial review must be brought. This limitation reflects a policy decisionto the effect that, when a properly constituted tribunal makes a decision, that decision is binding; any challenge of that decision must bemade promptly because the rights and responsibilities of many persons may be affected by the decision. All of those people who aredirectly and indirectly affected by such a decision cannot be left in limbo indefinitely.

There must be closure, finality, so that everyonecan move on. It is therefore important to set aside or challenge a position within six month of the day when the decision is issued.(Emphasis added) [96] I conclude that the limitation period runs from the date notice was given, which was February 27, 2015. [97] However, even if the limitation runs from the time the Applicant received the decision, on Dr. Al-Ghamdi’s own evidence, itwas received on his computer on February 27, 2015. According to the Court of Appeal, it is not a question of the potential applicant’ssubjective knowledge. Dr.

Al-Ghamdi could not extend the limitation period by failing to open the email or, for that matter, regular mailif the decision was sent by regular mail. [98] Moreover, Dr. Al-Ghamdi is well out of time to seek judicial review of the earlier decision by the Assistant Registrar, madeAugust 11, 2014.

Does the application name the correct parties and were they properly served? [99] The College alleges that: • the wrong parties were named as respondents; and • the application was not properly served on the persons specified under r 3.15(3). [100] On the first point, the College says the style of cause clearly identifies a single person: Dr. Theman, who was the Registrar ofthe College of Physicians and Surgeons. [101] Dr. Al-Ghamdi argues that he made a technical error in failing to place a comma between “Dr. Theman the registrar” and“College of Physicians and Surgeons.” His intention was to name both Dr.

Theman and the College. Further, he argues one can only suea corporate body, and therefore he could not name the Review Panel as it is not a proper respondent.

[102] While the style of cause appears to name only Dr. Theman, it is clear from the first paragraph of the application who Dr. Al-Ghamdi intended to name. Paragraph 1 reads: A. Dr. Al-Ghamdi has applied to the Registrar to correct his license. B. The registrar and the college council unfairly refused to do so. C. So this is an application to appeal the decision of the Registrar (Dr. Theman) and the college Council regarding correcting Dr. Al-Ghamdi’s license to reflect the scope of his practice and his education (all sic). [103] I do not consider the technicality of an error in the style of cause to be critical.

The body of the Originating Application makes itclear that Dr. Al-Ghamdi was seeking judicial review of Dr. Theman’s decision and of the “college Council’s” decision. [104] But Dr. Theman did not make the initial decision; Dr. Reed did. In any event, that decision was reviewed by the Review Panelof the Council Appeals Committee of the Council of the College of Physicians and Surgeons. As discussed earlier, interim decisionssubject to review by a superior body are not subject to judicial review. Moreover, Dr.

Reed rendered her decision on August 11, 2014,and the judicial review was filed September 18, 2015, well outside of the six-month limitation period. Dr. Theman should not have beennamed. [105] Further, Dr. Al-Ghamdi served only the College and the Minister of Justice and Solicitor General. Under r 3.15(3), the partiesto be served are: (

a) the person or body in respect of whose act or omission the remedy is sought, (

b) the Minister of Justice and Solicitor General...; (

c) and every person or body directly affected by the application. (Emphasis added) [106] The College asserts that the application has never been served on the members of the Review Panel. Our Court of Appeal hasapplied r 3.15, and its predecessor R 753.11, strictly, and failure to serve these persons is fatal because the Court has no jurisdiction toextend the limitation period: Athabasca Chipewyan First Nation; Heikkila v Alberta (Workers’ Compensation Board, AppealsCommission), 2003 ABQB 544.

See also F Prins Potatoes Ltd v Agriculture Financial Services Corporation, 2015 ABQB 335(respondents served after expiry of the limitation period); Raczynska v Alberta (Human Rights Commission), 2015 ABQB 494 at paras76-77 (the employer respondent was not named or served within the limitation period). [107] Dr. Al-Ghamdi argues that only a legal entity can be served and that the legal entity is the College.

Further, he suggests that “itis never heard of to sue each member of the tribunal.” He cites no authority for this proposition. [108] The College, on the other hand, notes that although non-legal entities cannot be sued in an action for damages, such entities mayhave their proceedings reviewed by judicial review: Northern Pipeline Agency v Perehinec, (SCC), [1983] 2 SCR 513.

In Principles of Administrative Law (6th ed) by David Phillip Jones, QC and Anne S. de Villars, QC (Toronto: Carswell, 2014) at p684, the authors note: In the public law context of the prerogative remedies, however, the legal personality of the respondent is irrelevant. After all, theprerogative remedies supervise the exercise of statutory power. If Parliament has seen fit to grant such powers to boards, tribunals orother entities that are not legally persons, that fact alone is sufficient to permit the courts to recognize their existence for the purpose ofthe prerogative remedies. [109] In Dr.

Al-Ghamdi’s October 30, 2015 affidavit, he noted that Dr. Reed, (he says as the acting Registrar) was “the personrepresenting the opposition party (Registrar with counsel) arguing against my position.” One cannot be both the decision-maker and aparty. In fact, the Review Committee, not the College, was the decision-maker. Dr.

Al-Ghamdi did not serve the Review Committee orthe members of the committee, each of whom were clearly identified in the reasons for their decision. [110] In Heikkila, the applicant served the Workers Compensation Board, not the Workers Compensation Appeals Commission, thebody that heard appeals from decisions by the Workers Compensation Board. At para 38: It is perplexing to see how one could have been aware of Rule 753.01, 753.09 and 753.11 and fail to serve the very body whosedecision was being sought to be overturned. With all due respect (and sympathy), it appears to me that Mr.

Calvert simply was notaware that the Appeals Commission should have been named and served. This is not a case of naming or serving the wrong “person”.The right “person” was not named and was not served within the requisite time period. (emphasis added) [111] The Alberta jurisprudence has repeatedly held that the correct administrative tribunal must be both named and served within thesix-month limitation period: Baker v Drouin, 2017 ABQB 204; Ruhl v Alberta (Human Rights Commission), 2015 ABQB 513 at paras17-18, and Yuill v Alberta (Workers’ Compensation Appeals Commission), 2016 ABQB 369 at para 74.

Further examples includeChandler v Alberta Association of Architects (1987), (AB KB), 77 AR 34 (QB); var’d 1988 ABCA 336 , 92AR 161, where the Alberta Association of Architects, the Complaint Review Committee, and each of its members were named asrespondents. Similarly, in Tran, under the same HPA legislation at issue here, the Complaint Review Committee was specifically namedas the Respondent. [112] This is consistent with the purpose of the Originating Application and the Rule; parties must be able to identify whose decisionis the subject of the judicial review. The Originating Application here does not do so.

The style of cause refers to Dr. Theman, who didnot make the decision at issue, and arguably, the College, which also did not make the decision and which was one of the parties before

the Review Panel. [ 113 ] The body of the Originating Application refers to the “college council.” The “college council” did not make the decision under review; the “Review Panel of the Appeals Committee of the Council of the College of Physicians and Surgeons” did. The body making the decision was clearly set out in the Decision (see Exhibit A in the Albright affidavit). I conclude it was necessary to name and serve the Review Panel of the Appeals Committee of the Council of the College of Physicians and Surgeons.

Action 687 [ 114 ] The CMPA is a voluntary non-profit mutual defence organization that provides legal resources for Canadian doctors, including retaining and paying lawyers for legal services required by doctors related to their medical practice. Over the years, Dr. Al-Ghamdi retained several lawyers through the CMPA to deal with the many legal matters that arose. He raised concerns about the skill and possibility of conflicts of interest of these lawyers, and asked the CMPA to replace lawyers he grew disenchanted with. Eventually, CMPA, acting through Dr.

Sproule, refused to appoint any more lawyers to act for him, claiming that its bylaws allow it discretion as to whether to do so. The Defendants have all applied to strike or summarily dismiss Dr. Al-Ghamdi’s claims against them. Gowling’s application to strike under r 3.68 [ 115 ] The Statement of Claim identifies “Gowaling” as “a law firm providing legal advice for CMPA to help physicians and acting as a general counsel for CMPA” (all sic ).

The Claim further states that as general counsel for CMPA, Gowling gives advice to CMPA “medical officers” to pass on to the physicians who have consulted with CMPA about a legal issue, and Gowling may assist with drafting a response to less significant inquiries or complaints. In more serious situations, the general counsel will contact a suitable lawyer and CMPA pays for that lawyer. These are the only facts pleaded about Gowling or general counsel. [ 116 ] The claim then alleges that “Gowalling” acted negligently, in bad faith, in breach of trust and in a conflict of interest.

The Claim further alleges that Gowling conspired against Dr. Al-Ghamdi. [ 117 ] It is clear that these pleadings must be struck. It is not even clear from the pleadings whether Gowling was retained to act for Dr. Al-Ghamdi, and in fact it would be a reasonable inference to conclude that its client was the CMPA. Thus the pleadings do not even address whether Gowling owed any duty to Dr. Al-Ghamdi. Even if the Court were to assume that there was a relationship between Dr.

Al-Ghamdi and Gowling, there are no facts to support the allegations of negligence; there are no pleaded facts that Gowling gave any advice or took any action on behalf of Dr. Al-Ghamdi, let alone any basis to find causation for any harm. None of the elements of a negligence cause of action are pleaded. [ 118 ] Next, there is no stand-alone cause of action for bad faith: ( Alberta v Elder Advocates of Alberta Society , 2011 SCC 24 , at para 78 ; RVB Managements Ltd v Rocky Mountain House (Town) , 2014 ABQB 51 at para 104 , aff’d 2015 ABCA 188 ).

Further, allegations of bad faith must be pleaded specifically ( Tottrup v Alberta (Minister of Environment) , 2000 ABCA 121 ; Walton International Group Inc v Rocky View (Municipal District No 44), 2007 ABCA 21 at para 12 ; Irwin v Buote , 2016 ABQB 530 at para 43 ). “Bad faith implies dishonesty, ill will, malice, or improper or ulterior motives” ( Irwin , para 44 ). There are no facts here from which one could infer any of these motives. [ 119 ] Next, the elements of breach of trust were recently summarized in 1021018 Alberta Ltd v Bazinet , 2015 ABQB 151 at para 46 : 1.

A trust relationship existed between the plaintiff and trustee; 2. A particular duty under the trust was owed to the plaintiff by the trustee; 3. The trustee breached that duty; and 4. The breach caused injury to the plaintiff. [ 120 ] Further r 3.17 requires particulars when pleading breach of trust. [ 121 ] There is nothing in the pleadings to support even the claim that Gowling was in a trustee relationship with Dr. Al-Ghamdi, let alone any particulars of a breach. [ 122 ] Then, the Claim alleges a conflict of interest, but does not describe the conflict or in what way Gowling acted to cause harm to Dr.

Al-Ghamdi in favour of someone else. Again, conflict of interest is not a stand-alone cause of action: Lozinik v Sutherland, 2012 ABQB 440 at para 56 . [ 123 ] Finally, Dr. Al-Ghamdi alleges conspiracy. The elements of the cause of action were set out in the Al-Ghamdi

Summary dismissal/strike application #1, but explained briefly, to establish the tort of conspiracy, a plaintiff must have acted with others with the predominant purpose of causing injury to the plaintiff, or if the conduct was unlawful, the conduct was directed at the plaintiff, and the defendant knew or ought to have known that the plaintiff would likely be injured and he was ( McDonald & Bychkowski Ltd (CMB Insurance Brokers) v Lougheed , 2015 ABQB 792 .

Nothing in the pleadings support either of these; there is only the bare allegation of conspiracy. [ 124 ] Further, conspiracy pleadings must set out the parties to the conspiracy, the purpose of the conspiracy, the act on which the conspiracy is based and the damages flowing from it ( Hovsepian v Westfair Foods Ltd , 2001 ABQB 700 at para 105 ; McDonald at para 33). None of these elements are pled. [ 125 ] I conclude that the Statement of Claim against Gowling does not disclose a reasonable cause of action and I strike it under r

3.68(2)(b). [ 126 ] In his submissions, Dr. Al-Ghamdi suggested that deficiencies could be cured by amendment. Gowling was served with the Statement of Claim on September 22, 2016, and filed its Statement of Defence on October 11, 2016. It brought its application to strike the Statement of Claim as disclosing no reasonable cause of action and as frivolous, irrelevant, improper or an abuse of process on December 23, 2016. The Application clearly set out the alleged deficiencies in the Statement of Claim, but it was not until the hearing of this application, eight months after the Application was filed, that Dr. Al-Ghamdi proposed bringing an application to amend. In Al- Ghamdi

Summary dismissal/strike application #1 , I concluded that it was contrary to the principles set out in the Rules of Court for achieving timely and cost-effective dispute resolution to permit Dr. Al-Ghamdi to delay the proceedings at this point by seeking to amend the Statement of Claim in those actions. [ 127 ] In any event, if I were to consider Dr.

Al-Ghamdi’s June 23, 2017 affidavit as providing additional facts to be pled in any proposed amendment, I would still find the claim to be so palpably bad that it would be classified as frivolous, irrelevant, and vexatious. [ 128 ] There are eleven paragraphs in the affidavit dealing with Gowling. Paragraphs 38-39 and 65 speak briefly to Dr. Al-Ghamdi having retained a Gowling lawyer in 2004 or 2005. The Statement of Claim was filed in 2015.

Even if there were facts that gave rise to a cause of action from that retainer (and none are pleaded), the claim is well outside the two-year limitation period. [ 129 ] Paragraphs 60-64 in the affidavit set out the fact that CMPA retains Gowling as its legal counsel to review legal concerns raised by CMPA members, and that on occasion Gowling appoints a lawyer in a member’s province to represent the doctor to provide advice to the member. There is nothing in these paragraphs that give rise to a claim by Dr. Al-Ghamdi. [ 130 ] Paragraphs 66-68 set out the facts that in early summer 2014, Dr.

Al-Ghamdi met with Gowling counsel in Vancouver, where Dr. Al-Ghamdi expressed concerns that the lawyer representing him (at the time, Simon Johnson) was in a conflict of interest because his law firm, Bennett Jones, was representing some of the witnesses and complainants against Dr. Al-Ghamdi. Dr. Al-Ghamdi then asserts Gowling, which was representing someone Dr. Al-Ghamdi had sued in the past in another matter, “refused to acknowledge the conflict.” Nothing here gives rise to a cause of action against Gowling. [ 131 ] First, there is no evidence that Gowling was retained by Dr.

Al-Ghamdi at the time of the meeting; second, despite Dr. Al- Ghamdi’s assertion, there is no factual basis to conclude that anyone was in a conflict of interest. There is nothing in the affidavit that would lead me to believe that any amendments could cure the serious defects in the pleadings. [ 132 ] I find that Dr. Al-Ghamdi’s claim against Gowling is also vexatious, as described in Chutskoff . His claims, pleadings and submissions have included: (

a) bringing proceedings that cannot succeed or have no reasonable expectation to provide relief: Judicature Act , s 23(2)(b); Dykun v Odinshaw , 2000 ABQB 548 at para 42 ; (

b) escalating proceedings by rolling forward grounds and issues into subsequent actions, which is aggravated when this activity creates simultaneous active overlapping actions: ( Dykun at para 42 ; McMeekin v Alberta (Attorney General) , 2012 ABQB 456 at paras 203 , 205); Wong v Leung , 2010 ABQB 628 at para 16 ; (

c) the escalating actions are ‘accumulative’ and new parties, frequently lawyers, are added: Dykun at para 42 ; Big Bear Hills Inc v Bennett Jones Alberta Limited Liability Partnership , 2010 ABQB 764 ; McMeekin v Alberta (Attorney General), 2012 ABQB 456 at paras 203 , 205; Arabi v Alberta , 2014 ABQB 295 at para 104 ; (

d) making unsubstantiated allegations of conspiracy, fraud, and misconduct, including claims of judge and lawyer deception, fraud, perjury, conspiracy, tampering of records and transcripts, and other conspiratorial misconduct made without the positive evidence required to support such allegations (reviewed in Fearn v Canada Customs , 2014 ABQB 114 at paras 73 , 76-78, 85): Onischuk at para 35 ; Koerner at para 21 ; McMeekin v Alberta (Attorney General), 2012 ABQB 625 at paras 27-29 38; (

e) making sensational claims of conspiracies and intimidation, harassment and racial bias: Allen v Gray , 2012 ABQB 66 at para 42 ; VWW v Wasylyshen , 2013 ABQB 327 at para 59 , leave to appeal ref’d 2014 ABCA 121 ; Wong v Giannacopoulos at para 4 ; (

f) filing pleadings that are “replete with extreme and unsubstantiated allegations, and often refer to far-flung conspiracies involving large numbers of individuals and institutions,” “where the allegations may be unfounded in fact or merely speculative, but the language is vitriolic, offensive and defamatory”: Del Bianco v 935074 Alberta Ltd , 2007 ABQB 150 at para 35 ; and (

g) using scandalous or inflammatory language in pleadings or before the court: Wilson v Canada (Revenue), 2006 FC 1535 at para 31 ; McMeekin v Alberta (Attorney General), 2012 ABQB 456 at para 205 ; Onischuk at paras 14, 35 . [ 133 ] I, therefore, also strike the pleadings against Gowling as frivolous, vexatious, and an abuse of process. Simon Johnson’s application under r 3.28 [ 134 ] Dr. Al-Ghamdi purported to serve Mr. Johnson with the Statement of Claim by registered mail, mailing it to Mr. Johnson’s former law firm after he had retired and moved away. The receipt for the registered mail was signed by “M.

Goodnight.” Dr. Al-Ghamdi then swore an affidavit of service based on this receipt and had the clerk note Mr. Johnson in default. It is clear on the face of the affidavit that Dr. Al-Ghamdi did not serve Mr. Johnson. I set aside the default notice, relying on Hillier J’s analysis in the Default Judgment decision in the similar circumstances. Under r 3.28, I also declare that no further action can be taken against Mr. Johnson in this action because he was not served within one year of the filing of the Statement of Claim, and rely on my analysis in the Al-Ghamdi

Summary dismissal/strike application #1 dealing with this issue.

Bennett Jones’ application to strike under r 3.68 [ 135 ] Bennet Jones and Johnson applied to strike out the Claim against them under r 3.68, alleging that there are no pleaded material facts that give rise to a reasonable cause of action, no particulars of any recognized cause of action, and the causes of action pleaded are bound to fail. I have already held that no further action can be taken against Mr.

Johnson under r 3.28, and so the only issue is whether the Statement of Claim raises a cause of action against Bennett Jones. [ 136 ] There are six paragraphs in the Statement of Claim dealing with Bennett Jones and Mr. Johnson. Paragraphs 4 and 5 state that Dr. Al-Ghamdi retained both Bennett Jones and Mr. Johnson, and that both provide medical malpractice advice. Paragraphs 17 and 18 allege that because Mr. Johnson and/or Bennett Jones represented some of the complainants or witnesses in proceedings against Dr. Al- Ghamdi, there was a conflict of interest. Paragraph 19 alleges both that Dr. Al-Ghamdi asked Mr.

Johnson to withdraw because of his concerns about conflict of interest, and that Mr. Johnson failed to act on his file and failed to file an injunction. Paragraph 23 alleges that Bennett Jones and Mr. Johnson acted negligently, acted in bad faith, acted in breach of trust and in conflict of interest, and failed to withdraw when asked to by Dr. Al-Ghamdi. [ 137 ] The only pleaded facts about Bennett Jones are that it is a law firm retained by Dr. Al-Ghamdi (para 4), that Mr. Johnson was from Bennett Jones (paras 17-18), and that Mr.

Johnson and/or Bennett Jones represented persons who were complainants or witnesses against Dr. Al-Ghamdi. In Dr. Al-Ghamdi’s written and oral submissions, he alleged that Bennett Jones was vicariously liable or there was some liability for Bennett Jones because he was a partner. Neither of these were pleaded as a basis for liability. [ 138 ] When pleading negligence, facts supporting the elements of a negligence action must be pleaded: facts that establish that a duty was owed, that a particular act or omission occurred that breached that duty, and that particular damages resulted ( Tottrup at para 11 ).

The elements of negligence were also set out by the Supreme Court of Canada in Mustapha v Culligan of Canada Ltd , 2008 SCC 27 at para 3 , as requiring the plaintiff to demonstrate that the defendant owed the plaintiff a duty of care, the defendant’s behaviour breached the standard of care, the plaintiff sustained damage, and the damage was caused by the defendant’s breach. There are no facts here to establish negligence.

The pleadings assert that Bennett Jones was retained and therefore owed a duty, but no facts are pleaded to establish that Bennett Jones breached the standard of care or that the breach caused damages. [ 139 ] When pleading bad faith, “it is not enough to assert baldly, conclusory phrases... Making bald, conclusory allegations without any evidentiary foundation is an abuse of process”: Merchant Law Group v Canada (Revenue Agency) , 2010 FCA 184 at para 34 . There are no facts pleaded against Bennett Jones suggesting bad faith. [ 140 ] As noted above in the

section dealing with the claims against Gowling, r 3.17 requires that breach of trust claims set out the particulars of the elements of the caus

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