Association of Professional Engineers and Geoscientists of Alberta v Drover, 2021 ABQB 511

Court of Queen’s Bench of Alberta Citation: Association of Professional Engineers and Geoscientists of Alberta v Drover, 2021 ABQB 511 Date: 20210705 Docket: 1603 21383 Registry: Edmonton Between: Association of Professional Engineers and Geoscientists of Alberta Respondent/Applicant - and - David Howard Drover Applicant/Respondent _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I.

Introduction [ 1 ] On December 22, 2016, on application by the Association of Professional Engineers and Geoscientists of Alberta [APEGA], I ordered, among other things, that David Howard Drover [Mr. Drover] was prohibited from taking certain steps without leave of the Alberta Court of Queen’s Bench: 1. making complaints to APEGA about members of APEGA, and 2. commencing proceedings against, or filing evidence concerning: ... APEGA, members of APEGA and anyone involved in the discipline proceedings against Mr. Drover, whether as witness, investigator,

employee of APEGA, counsel to APEGA or any of its Committees or member of any committee of APEGA, their colleagues and families ... [ 2 ] Paragraph 3(

d) of the December 22, 2016 Order specifies how Mr. Drover may seek leave by: i. Providing an unfiled and/or unsworn copy of the complaint, affidavit, application or other document to the Court of Queen's Bench, to the attention of The Honourable Associate Chief Justice J. D. Rooke; ii. Attaching to such submissions to a copy of this Order; iii. Providing a copy of such submissions and notice to the counsel of record to APEGA in these proceedings; iv.

Providing that any unfiled and/or unsworn affidavits and documents comply with any applicable Alberta Rules of Court and/or any applicable Practice Note or Notice to the Profession. [ 3 ] On June 23, 2021, my judicial assistant received an email from Mr. Drover that states: ... as per your communication dated February 4, 2020 forwarded below please bring the following FAIT seeking leave of the Honourable ACJ Rooke respecting APEGA et al ( as identified in the FIAT ) and the attached supporting affidavit filed with the Supreme Court BC in APEGA v.

Drover on April 16, 2021 and sworn on April 22, 2021 . [ 4 ] Attached to the email were four documents. The first is titled “Fiat”, and appears to be an unsigned draft order by myself for the following: Leave of the Honourable Associate Chief Justice J.D. Rooke to file in the Court of Queens Bench of Alberta along with “any affidavits or evidence” and commence “any appeal, action, application or proceeding with respect to APEGA, members of APEGA and anyone involved in the APEGA discipline proceedings against Mr.

Drover dating back to August 2016, whether as a witness (which includes but not limited to any employee/director of Aston Bay and any employee or Director of EmerEx O&G or any Director or shareholder of Acapella), or as an APEGA investigator namely the APEGA Director of Investigation at APEGA(current or former), also including employees or Directors of Executives of APEGA, and former employees/Directors of APEGA dating back to January 2014, counsel to APEGA (including RMRF and Ms.

Finlay and senior partners in RMRF) or any of APEGA’s Committees or member of any committee of APEGA” in Alberta. [ 5 ] Two documents in the June 23, 2021 bundle appear to relate to an action before the British Columbia Supreme Court: APEGA v Drover , Vancouver Registry Docket No. L-170091. The first is a “Requisition” filed on March 13, 2017 that registered the December 22, 2016 order for enforcement in British Columbia. The second document is a 74-page Affidavit of Mr. Drover that is not marked as filed. From this Affidavit it appears that Mr.

Drover has been found in contempt of court in British Columbia, and is now facing a punishment step in relation to that contempt. [ 6 ] The final document is a May 2, 2017 letter from counsel for APEGA’s Appeal Board concerning emails sent by Mr. Drover and the status of an appeal decision of the APEGA Discipline Committee. [ 7 ] I am treating Mr. Drover’s email and attached documents as a request for leave to file documents and/or initiating proceedings in the Alberta Court of Queen’s Bench. II.

Test for Leave to File [ 8 ] “... [A] person subject to court access control is presumed to engage in illegitimate litigation unless the Court is satisfied otherwise. ...”: Re Thompson , 2018 ABQB 87 at para 19 , aff’d 2018 ABCA 111 , leave to appeal to SCC refused, 38204 (14 February 2019). [ 9 ] Permission to initiate litigation or continue stayed litigation both test the merit of court activities on the same standard.

A person subject to court access restrictions must: 1. establish reasonable grounds for the litigation, and 2. depose fully and completely as to the facts and circumstances surrounding the proposed claim or proceeding. ( Re Thompson , 2018 ABQB 87 at paras 19 , 27; VWW v Wasylyshen , 2013 ABQB 327 at para 42 , aff’d 2014 ABCA 121 ). [ 10 ] This threshold, which must be established on a balance of probabilities, is not a high one, and in many ways parallels the test for

summary judgment: Re Thompson , 2018 ABQB 87 at paras 19 , 26.

The person subject to court access leave restrictions is expected to put his or her “best foot forward” to establish the basis to initiate or continue an action: Re Thompson , 2018 ABQB 87 at paras 26-27. [ 11 ] The documents necessary to seek leave are an affidavit to provide evidence, and, in the case of a new action, application, or other litigation step, a copy of the proposed filing: e.g., Re Moore , 2018 ABQB 261 ; Latham (Re) , 2018 ABQB 906 . [ 12 ] Leave may be granted in part: Latham (Re) , 2018 ABQB 906 ; Belway v Lalande-Weber , 2017 ABCA 108 at para 10 , leave to appeal to SCC refused, 37708 (21 December 2017). [ 13 ] Leave submissions to initiate or continue litigation may also be rejected: 1. where the materials do not satisfy the criteria set out in the court access restriction order ( Re Gauthier , 2018 ABQB 99 ; Re Botar ,

2018 ABQB 193 ; Thompson v Alberta Labour Relations Board , 2018 ABQB 220 , leave to appeal to SCC refused, 38267 (31 January 2019); Re Thompson , 2018 ABQB 355 , leave to appeal to SCC refused, 38266 (31 January 2019)); 2. if the submissions exhibit indicia of abusive litigation ( ET v Calgary Catholic School District No 1 , 2017 ABCA 349 at para 12 , leave to appeal to SCC refused, 38081 (8 November 2018); Alberta Treasury Branches v Hok , 2018 ABQB 316 ; Thompson v Alberta Labour Relations Board , 2018 ABQB 220 ; Re Botar , 2018 ABQB 193 ; Trinity Place Foundation of Alberta v Templanza , 2019 ABQB 45 ; Onischuk (Re) , 2019 ABQB 229 ; Fletcher v Davidson & Williams LLP , 2019 ABQB 396 ; Ubah v Canadian Natural Resources Limited , 2021 ABQB 208 ; Knutson (Re) , 2021 ABQB 367 ); 3. where the abusive litigant refuses to provide the proposed filing ( Re Thompson , 2018 ABQB 355 ; Onischuk (Re) , 2019 ABQB 229 ); 4. where the abusive litigant provides false information ( Re Gauthier , 2018 ABQB 99 ); and 5. where the abusive litigant fails to provide materials that are required to evaluate the proposed litigation step, such as an appeal transcript ( Alberta Treasury Branches v Hok , 2018 ABQB 316 ).

III. Analysis A. Leave to File is Rejected [ 14 ] I reject Mr. Drover’s leave to file application on several bases. [ 15 ] First, Mr. Drover’s leave to file application does not satisfy the criteria of the December 22, 2016 Order. He was required to provide an unfiled copy of his proposed filing or filings. The Court cannot respond to a leave to file application where it does not have the proposed lawsuit, application, affidavit, or so on: Re Thompson , 2018 ABQB 355 ; Onischuk (Re) , 2019 ABQB 229 . [ 16 ] Second, Mr. Drover was instructed to provide “submissions” as to whether his proposed litigation is valid.

He did not do so. That means Mr. Drover has not displaced the presumption that his proposed filings are an abuse of the Court: Re Thompson , 2018 ABQB 87 at para 19 , aff’d 2018 ABCA 111 , leave to appeal to SCC refused, 38204 (14 February 2019). [ 17 ] Third, Mr. Drover has not otherwise established that his proposed litigation has a reasonable basis and is not an abuse of the Court. He has not “put his best foot forward”, but instead left the Court with no basis to evaluate his proposed litigation. B. Updating Mr.

Drover’s Court Access Restrictions and the Leave to File Procedure [ 18 ] This Court’s approach to abusive litigants and prospective litigation gatekeeping has undergone considerable development and evolution since 2016 when Mr. Drover was made subject to court access restrictions.

Some earlier court Orders included litigation gatekeeping provisions that have been enhanced in subsequent court-imposed gatekeeping orders. [ 19 ] One example of this progression is that the Court now recognizes that the language used to define the scope of court access restrictions is critical, and must provide sufficient precision and information.

Court orders that impose filing limits and/or preconditions must be explicit so that those orders can be enforced by the Clerks: Unrau v National Dental Examining Board , 2019 ABQB 283 at paras 782-799 [ Unrau #2 ]. [ 20 ] The December 22, 2016 Order is problematic in that sense. For example, the December 22, 2016 Order prohibits Mr. Drover from initiating litigation against: ... anyone involved in the discipline proceedings against Mr. Drover, whether as witness, investigator, employee of APEGA, counsel to APEGA or any of its Committees or member of any committee of APEGA, their colleagues and families ...

When the Clerks receive and review a candidate Alberta Court of Queen’s Bench filing from a person subject to court access gatekeeping, the Clerks screen whether that filing should or should not be accepted. When the Clerks do that, they do so without information to evaluate, for example, if a named person was an employee of APEGA. That usually means matching names between the existing court access gatekeeping order and the names on the candidate filing. [ 21 ] Furthermore, other language in the December 22, 2016 Order is open-ended. What is a “colleague”? How are “families” defined?

In this sense the December 22, 2016 Order provides imperfect guidance to both potential litigants and Mr. Drover. [ 22 ] The current approach to defining the scope of court access gatekeeping is that a global scope order should be imposed if the protected issues and/or parties cannot be explicitly defined: Tupper v Nova Scotia (Attorney General) , 2015 NSCA 92 at paras 51-56 , 390 DLR (4th) 651, leave to appeal to SCC refused, 38030 (4 October 2018); Unrau #2 at paras 792-797 . [ 23 ] In light of current court practices, I find that the December 22, 2016 Order is not explicit as it should be.

Given that, I conclude the December 22, 2016 Order should be replaced in part to: 1. provide court access gatekeeping that is more effective and enforceable, and 2. to provide further clarification on the process Mr. Drover must follow to submit a valid leave to file application.

Providing clear instruction to Mr. Drover is particularly important since it appears he seeks to initiate some kind of legal process in this Court. [ 24 ] I therefore order: 1. Paragraphs 3(b-

e) of the December 22, 2016 Order in Alberta Court of Queen’s Bench Docket 1603 21383 are vacated immediately and replaced by the conditions imposed in this Decision. 2.

David Howard Drover is prohibited from: i. commencing, or attempting to commence, or continuing, any appeal, action, application, or proceeding in the Alberta Court of Queen’s Bench, and on his own behalf or on behalf of any other person or estate, or ii. making complaints to the Association of Professional Engineers and Geoscientists of Alberta about any member of the Association of Professional Engineers and Geoscientists of Alberta, without an order of the Alberta Court of Queen’s Bench. 3.

To commence or continue an appeal, application, or other proceeding in the Alberta Court of Queen’s Bench, David Howard Drover shall submit an application to the Chief Justice or Associate Chief Justice, or his or her designate: (

i) The Chief Justice or Associate Chief Justice, or his or her designate, may, at any time, direct that notice of an application to commence or continue an appeal, action, application, or proceeding be given to any other person. (ii) Any application shall be made in writing. (iii) Any application to commence or continue any appeal, action, application, or proceeding must be accompanied by an affidavit:

a) attaching a copy of the Order restricting David Howard Drover’s access to the Court of Queen’s Bench of Alberta;

b) attaching a copy of the appeal, pleading, application, or process that David Howard Drover proposes to issue or file or continue;

c) deposing fully and completely to the facts and circumstances surrounding the proposed claim or proceeding, so as to demonstrate that the proceeding is not an abuse of process, and that there are reasonable grounds for it;

d) indicating whether David Howard Drover has ever sued some or all of the defendants or respondents previously in any jurisdiction or Court, and if so providing full particulars;

e) undertaking that, if leave is granted, the authorized appeal, pleading, application or process, the Order granting leave to proceed, and the affidavit in support of the Order will promptly be served on the defendants or respondents; and

f) undertaking to diligently prosecute the proceeding. (iv) The Chief Justice or Associate Chief Justice, or his or her designate, may:

a) give notice of the proposed claim or proceeding and the opportunity to make submissions on the proposed claim or proceeding, if they so choose, to: (1) the involved potential parties; (2) other relevant persons identified by the Court; and (3) the Attorneys General of Alberta and Canada;

b) respond to and dispose of the leave application in writing; and

c) hold the application in open Court where it shall be recorded. 2. To make a complaint to the Association of Professional Engineers and Geoscientists of Alberta about any member of the Association of Professional Engineers and Geoscientists of Alberta, David Howard Drover shall submit an application to the Chief Justice or Associate Chief Justice, or his or her designate: (

i) The Chief Justice or Associate Chief Justice, or his or her designate, may, at any time, direct that notice of an application make a complaint to the Association of Professional Engineers and Geoscientists of Alberta about a member of the Association of Professional Engineers and Geoscientists of Alberta be given to any other person. (ii) Any application shall be made in writing. (iii) Any application to make a complaint to the Association of Professional Engineers and Geoscientists of Alberta about any member of the Association of Professional Engineers and Geoscientists of Alberta must be accompanied by an affidavit:

a) attaching a copy of the Order restricting David Howard Drover’s access to complain to the Association of Professional Engineers and Geoscientists of Alberta about any member of the Association of Professional Engineers and Geoscientists of Alberta;

b) attaching a copy of the complaint that David Howard Drover proposes make to the Association of Professional Engineers and Geoscientists of Alberta;

c) deposing fully and completely to the facts and circumstances surrounding the proposed complaint, so as to demonstrate that the complaint is not an abuse of process, and that there are reasonable grounds for it;

d) indicating whether David Howard Drover has ever sued some or all of the defendants or respondents previously in any jurisdiction or Court, and if so providing full particulars;

e) undertaking that, if leave is granted, the authorized complaint to the Association of Professional Engineers and Geoscientists of Alberta, the Order granting leave to proceed, and the affidavit in support of the Order will promptly be served on the Association of Professional Engineers and Geoscientists of Alberta; and

f) undertaking to diligently prosecute the complaint. (iv) The Chief Justice or Associate Chief Justice, or his or her designate, may:

a) give notice of the proposed complaint to the Association of Professional Engineers and Geoscientists of Alberta about a member of the Association of Professional Engineers and Geoscientists of Alberta, and the opportunity to make submissions on the proposed complaint, if it so chooses, to: 1. the involved potential parties; 2. other relevant persons identified by the Court; and 3. the Association of Professional Engineers and Geoscientists of Alberta;

b) respond to and dispose of the leave application in writing; and

c) hold the application in open Court where it shall be recorded. 3. Leave to commence or continue proceedings or complaints may be given on conditions, including the posting of security for costs, and proof of payment of all prior cost awards. 4. An application that is dismissed may not be made again, directly or indirectly. 5. An application to vary or set aside this Order must be made on notice to any person as directed by the Court. 6. The Clerks of the Court of Queen’s Bench of Alberta shall refuse to accept or file any documents or other materials from David Howard Drover unless: (

i) David Howard Drover is a named party in the action in question, and (ii) if the documents and other materials are intended to commence or continue an appeal, action, application, or proceeding, David Howard Drover has been granted leave to take that step by the Court. 7. The approval of David Howard Drover as to the form and content of this Order is not required per Rule 9.4(2)(c). IV. Conclusion [ 25 ] Mr.

Drover’s June 23, 2021 leave to file application is rejected. [ 26 ] The Court access and APEGA complaint gatekeeping provisions in the December 22, 2016 Order in Alberta Court of Queen’s Bench Docket No. 1603 21383 are vacated and replaced with a new Order to clarify the leave to file or complaint process, and to create gatekeeping whose scope is explicit and enforceable. [ 27 ] The Court will prepare and serve the Order giving effect to this decision. Mr. Drover’s approval of that Order is dispensed with pursuant to Rule 9.4(2)(c). Mr.

Drover may be served this Decision and the Order giving effect to this decision by email to: dave_drover@hotmail.com. Dated at the City of Edmonton, Alberta this 5 th day of July, 2021. J.D. Rooke A.C.J.C.Q.B.A.

Appearances: David Howard Drover Self-represented Litigant