Freeman v University of Alberta, 2021 ABQB 543

Court of Queen’s Bench of Alberta Citation: Freeman v University of Alberta, 2021 ABQB 543 Date: 20210715 Docket: 2101 05892 Registry: Calgary Between: Tony Freeman Plaintiff - and - University of Alberta and Canadian Natural Resources Limited Defendants _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I. Introduction [ 1 ] On May 10, 2021, Tony Freeman [Mr.

Freeman] filed with the Court a Statement of Claim that named the University of Alberta [U of A] and Canadian Natural Resources Limited [CNRL] as Defendants [Lawsuit #2]. Succinctly, Mr. Freeman alleges two stages of wrongdoing: 1. Mr. Freeman alleges he was wrongly terminated as an employee of CNRL because Mr. Freeman was a “whistleblower” who had identified and was disclosing that CNRL was attempting to evade disclosure of environmental harm caused by its activities. 2. After ceasing to be employed by CNRL, Mr. Freeman was employed as a researcher by the U of A. Mr.

Freeman anticipated his job would be indefinite, but instead his contract ended after three months. Mr. Freeman alleges that CNRL interfered with his U of A

employment, and that resulted in the U of A not continuing to employ Mr. Freeman. [ 2 ] Mr.

Freeman in the Lawsuit #2 Statement of Claim demands disclosure of documents, and a lump sum of $500,000 from either U of A or CNRL for lost income, pain and suffering, bad-faith termination, “Aggravated damages”, “Punitive damages”, “Wallace damages”, and “unprofessional conduct, misrepresentation, negligence, tort, and breach of privacy laws”. [ 3 ] On July 6, 2021, Counsel for CNRL by letter referred the Lawsuit #2 Statement of Claim as a candidate Apparently Vexatious Application or Proceeding [AVAP] pursuant to Civil Practice Note No. 7 [CPN7] paragraph 6.

I am designated to receive and review potential CPN7 processes in Southern Alberta. CNRL takes the position that the May 10, 2021 Statement of Claim is vexatious, a collateral attack on a previous now terminated lawsuit, and makes allegations that are hopeless. [ 4 ] CNRL’s letter attaches several additional documents: 1. CNRL’s Statement of Defence in Lawsuit #2; 2. documents relating to a previous lawsuit (Alberta Court of Queen’s Bench Docket No. 1701 00665) between Mr. Freeman and CNRL [Lawsuit #1]:

a) the Freeman v Canadian Natural Resources Limited , 2018 ABQB 310 decision of Master Farrington;

b) an Order of Master Farrington, dated July 5, 2018, ordering

summary dismissal of parts of Mr. Freeman’s Statement of Claim against CNRL, and amending the Statement of Claim;

c) the post-July 5, 2018 Amended Statement of Claim; and

d) an Order of Master Prowse, dated January 20, 2021, staying the Docket 1701 00665 action until Mr. Freeman paid into Court $15,000 as security for costs, and that if no such payment was made by June 1, 2021, then the lawsuit is struck out entirely; 3. A Statement of Claim file filed by Mr. Freeman on February 16, 2021, against the Association of Professional Engineers and Geoscientists of Alberta [APEGA], assigned Alberta Court of Queen’s Bench Docket No. 2101 02141; and 4. the Freeman v Kooiman , 2019 ABQB 857 decision of Master Mason. [ 5 ] After review of Mr.

Freeman’s Lawsuit #2 Statement of Claim, and the documents provided by CNRL, I conclude Mr. Freeman’s Lawsuit #2 Statement of Claim exhibits characteristics of abusive litigation, is an AVAP, and should be subject to a CPN7 “show cause” document-based review. II. CPN7 [ 6 ] CPN7 is a practice implemented by the Court to better manage litigation that, on its face, appears to be unmeritorious, has no prospect of success, or is otherwise abusive and vexatious.

This practice is intended to provide a timely, proportionate, and cost-effective response to the litigants: Unrau v National Dental Examining Board , 2018 ABQB 874 [ Unrau #1 ]. [ 7 ] If, on initial review by the Court, the pleading appears to be unmeritorious, has no prospect of success, or is otherwise abusive and vexatious, then the Court issues a first written decision that identifies the apparent issue(

s) which may be a basis to apply Rule 3.68 and strike out the pleading. The party who filed the pleading is then given an opportunity, within 14 days, to provide the Court with a Written Submission of up to a total of ten pages in length that responds to, and demonstrates why, the pleading is a legitimate action and should be permitted to continue. The Written Submission must be served on the other parties to the litigation. [ 8 ] CPN7 is not for “close calls”, but instead the Court intervenes by this mechanism when the defect(

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

For example, the Court may examine other documents in the same proceeding that are related to the suspect filing [ Ubah #2 at para 35] , or documents and records that are evidence that the AVAP is an attempt to litigate an issue that has already been decided or closed [ Ubah #2 at para 45] . III CPN7 Analysis A.

Preliminary Issue - Status of the Documents Supplies by CNRL [ 9 ] CPN7 is a process that focuses on the legal deficiencies of a single document, and CPN7 therefore does not usually consider other court filings or decisions, except where those are relevant to whether a person has engaged in re-litigation, or otherwise has no legal right to pursue a party or subject. CNRL’s referral of Lawsuit #2 identifies that issue, and, as the following analysis will indicate, there is apparently merit to that.

That is a basis for me to consider the Lawsuit #1 documents. [ 10 ] However, I do not identify a direct basis for why either the Freeman v Kooiman decision, or Mr. Freeman’s Statement of Claim against APEGA, are directly relevant to the merit of the Lawsuit #2 Statement of Claim. Both these documents are clearly linked to the litigation between Mr. Freeman and CNRL. Freeman v Kooiman concerns litigation steps by Mr. Freeman against the lawyer who represented him in Lawsuit #1. The Freeman v APEGA Statement of Claim also relates to Lawsuit #1, but not in a manner that is

relevant to the potential merit of Lawsuit #2. I therefore have not considered these two documents in the analysis that follows. B. Collateral Attack [11] A collateral attack is a litigation step or proceeding that challenges, directly or indirectly, a prior court decision or result.Collateral attacks are generally prohibited and an abuse of process: British Columbia (Workers’ Compensation Board) v Figliola, 2011SCC 52 at para 28. Collateral attacks subvert “the orderly and functional administration of justice”: Dagenais v Canadian BroadcastingCorp, (SCC), [1994] 3 SCR 835 at 871, 120 DLR (4th) 12.

Any action or application that is identified as a collateralattack should be terminated, immediately: Alberta v Pocklington Foods Inc, 1995 ABCA 111 at para 14. [12] Examples of prohibited collateral attacks include: 1. bringing proceedings to determine an issue that has already been determined by a court of competent jurisdiction, 2. using previously raised grounds and issues improperly in a subsequent proceeding, 3. conducting a proceeding to circumvent the effect of a court order, and 4. conducting multiple proceedings with the same litigation objective. [Unrau v National Dental Examining Board, 2019 ABQB 283 at para 619.] [13] Lawsuit #1 is now terminated.

In Freeman v Canadian Natural Resources Limited, Master Farrington ruled that a releasethat Mr. Freeman signed terminated any potential litigation that resulted from interactions between Mr. Freeman and CNRL thatoccurred up to and including August 4, 2015. The Master concluded at para 42: On the basis of these reasons, I allow CNRL’s

summary dismissal application with respect to all claims pertaining to the employmentrelationship generally up to and including August 4, 2015 as I find that they were released by the August 4, 2015 release. That leavesremaining only claims pertaining to the alleged interference with Mr. Freeman’s attempts to find new employment and any damage tohim in the industry caused by the actions of CNRL after August 4, 2015 ... [14] Mr. Freeman has not appealed that decision, and the corresponding Lawsuit #1 Order of July 5, 2018.

It therefore appears thatthe component of the Lawsuit #2 Statement of Claim that relates to the termination of Mr. Freeman’s contract with CNRL is a collateralattack on Freeman v Canadian Natural Resources Limited. [15] The post-Freeman v Canadian Natural Resources Limited Lawsuit #1 Amended Statement of Claim states at para 16(b): After termination of the Freeman’s employment, CNRL has interfered with his ability to find alternative employment by engaging in thefollowing conduct ...

In late August 2015, CNRL blocked Freeman’s pending employment at the University of Alberta GeomechanicsResearch Group, which was funded in part by CNRL. ... [16] The Lawsuit #1 Amended Statement of Claim continues to allege that CNRL has caused Mr. Freeman to be unable to findwork, that Mr. Freeman has experienced mental and physical distress, bad faith by CNRL, unfair labour practices by CNRL, and loss ofpast and future income. Mr. Freeman sought in total $2.16 million in damages. [17] Lawsuit #1 is now terminated. Mr.

Freeman on January 20, 2021 was ordered to pay into Court $15,000 in security for costsby June 1, 2021. The January 20, 2021 Order states at para 3: If the security for costs are not paid in full by June 1, 2021, this Action will be dismissed in its entirety without further application to, orOrder of, this Honourable Court. Mr. Freeman did not make that payment, and so Lawsuit #1 terminated on June 1, 2021. [18] The complaint against CNRL in relation to Mr. Freeman and the U of A in Lawsuit #2 appears to be a collateral attack on theoutcome of Lawsuit #1.

Both Lawsuit #1 and #2 combine some kinds of contract and tort liability. That means Lawsuit #2 appears tooffend the Supreme Court of Canada’s rule in Cahoon v Franks, (SCC), [1967] SCR 455 that “... there is only onecause of action for a single wrongful or negligent act and damages resulting from the single tort must be assessed in the one proceeding...”. That proceeding would be Lawsuit #1, which is now terminated. [19] I ask Mr. Freeman to indicate how the Lawsuit #2 Statement of Claim is not a collateral attack on the now terminated Lawsuit#1. IV. Conclusion [20] Mr.

Freeman’s Lawsuit #2 Statement of Claim appears to be a suitable candidate for review per CPN7. The Court thereforeseeks a response from Mr. Freeman as to why the Lawsuit #2 Statement of Claim is not a collateral attack on the now terminatedLawsuit #1 proceeding? [21] As a result of this analysis, I order that Mr. Freeman’ Alberta Court of Queen’s Bench Docket 2101 05892 Statement of Claimis stayed. CPN7 now advances to its second step. 1. Mr. Freeman has until 14 days after this decision is filed to file and serve a Written Submission of no more than a total of 10 pages,

pursuant to CPN7, para 3(b). The Written Submission should be clearly addressed: “To the Attention of Associate Chief Justice Rooke”. 2. If no Written Submission is received by the Court by that deadline, the Court will proceed to render its final decision on whether the Statement of Claim should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(c)). 3. If Mr. Freeman provides and serves a Written Submission, then the Defendants each have seven days to each make a Written Reply of up to a total of 10 pages in length (CPN7, para 3(d)).

The Written Reply should be clearly addressed: “To the Attention of Associate Chief Justice Rooke”. 4. After receipt of Mr. Freeman’s Written Submission, and the Defendants’ Written Replies, if any, the Court will render its final decision on whether the Docket 2101 05892 Statement of Claim should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(e)). [ 22 ] The Court will prepare and serve the Order staying this Action. Mr. Freeman’s approval of that Order is dispensed with, pursuant to Rule 9.4(2)(c). Mr.

Freeman may be served this Decision and the corresponding Order by email to: ttfreeman@gmail.com. Dated at the City of Calgary, Alberta this 15 th day of July, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Gina A. Ross Burnet, Duckworth & Palmer LLP for the Defendant Canadian Natural Resources Limited