Freeman v Association of Professional Engineers and Geoscientists of Alberta, 2021 ABQB 556

Court of Queen’s Bench of Alberta Citation: Freeman v Association of Professional Engineers and Geoscientists of Alberta, 2021 ABQB 556 Date: 20210720 Docket: 2101 02141 Registry: Calgary Between: Tony Freeman Plaintiff - and - APEGA (The Association of Professional Engineers and Geoscientists of Alberta) Defendant _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I. Introduction [ 1 ] On February 28, 2021, Tony Freeman [Mr.

Freeman] filed with the Court a Statement of Claim that named the Association of Professional Engineers and Geoscientists of Alberta [APEGA] as the Defendant [APEGA Statement of Claim]. The APEGA Statement explains that Mr. Freeman was at one point an employee of Canadian Natural Resources Limited [CNRL], but Mr. Freeman

was dismissed from that job. Mr. Freeman alleges that he was fired because CNRL was engaged in improper practices, and Mr. Freeman was a “whistleblower” about that. Mr. Freeman subsequently entered into an agreement with CNRL to settle possible claims by Mr. Freeman against CNRL, thought Mr. Freeman subsequently alleged that agreement was coerced. [ 2 ] During his employment with CNRL, Mr. Freeman was a professional engineer and a member of APEGA. In a report to APEGA, Mr. Freeman alleged that CNRL was engaged in improper conduct. Mr. Freeman also alleges that CNRL interfered with Mr.

Freeman obtaining employment with the University of Alberta. [ 3 ] The APEGA Statement of Claim claims APEGA had a duty to Mr. Freeman since Mr. Freeman was a member of that organization, and that Mr. Freeman’s whistleblowing actions were required by Mr. Freeman’s professional obligations as a member of APEGA. Mr. Freeman alleges APEGA was negligent, failed to protect Mr. Freeman, leaked personal information including Mr. Freeman’s identity, and failed to reconcile “[c]ontraditory labour and energy laws in the province. ...”. Mr.

Freeman alleges that APEGA’s failure to address corrupt practices in Alberta in relation to oil and gas production means it is impossible for him or others like him to have a career in Alberta, which means his PhD training was useless, and that APEGA should pay for the costs of that training, and Mr. Freeman’s “... costs to transition to another career.” [ 4 ] Mr. Freeman also alleges that APEGA’s misconduct compromised a lawsuit that Mr. Freeman filed against CNRL in 2017: the Freeman v Canadian Natural Resources Ltd Alberta Court of Queen’s Bench Docket 1701 00665 Action [CNRL Action]. Mr.

Freeman alleges APEGA should have been obliged to pay a security for costs order in the CNRL Action, and that APEGA should “... fully [take] over the CNRL Action and provide me with any and all supports that is necessary ...”. Mr. Freeman also alleges APEGA should order CNRL pay him “... up to $500,000 in damages for unprofessional conducts”, though that claim is not one of the APEGA Statement of Claim listed remedies. [ 5 ] On this basis Mr.

Freeman seeks remedies including: 1. an unspecified amount of general damages, past lost income, future lost income, costs to “... transition into a career where it would be ok to be concerned about liability and public ...”, aggravated damages, punitive damages, and: Wallace damages, and, or compensation for being a victim of: crime, bad faith conduct, unprofessional conduct, misrepresentation, negligence, tort, breach of trust, and breach of privacy laws 2. that APEGA: ... must choose to either: a.

Become de facto the Plaintiff in CNRL Action and take full responsibility on my behalf in the CNRL Action and to provide full support to me in CNRL Action, including hiring a full-time lawyer, pay all the security for costs required within CNRL Action, or add defendants, start new Actions if necessary, and accept liability for the final costs awards to CNRL (if any). Specifically, APEGA must post a Security for Costs in the amount of $15,000 no later than June 1st, 2021; b.

Alternatively, or if APEGA misses the June 1st, 2021 deadline for Security for Costs, or if they are unsuccessful in the CNRL Action, they must pay the sum of $500,000 in compensation for the damages I have suffered as a result of my whistleblower activities; 3. “APEGA must produce or allow for inspection of all records related to me in their possession”. [ 6 ] On July 6, 2021, by letter, Counsel for AGEPA referred the APEGA Statement 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. APEGA takes the position that the May 10, 2021 Statement of Claim is an abusive process that is hopeless, outside the Court’s jurisdiction, and a collateral attack and/or duplicative proceeding. [ 7 ] APEGA’s letter attaches several additional documents: 1. APEGA’s Statement of Defence to the APEGA Statement of Claim; 2. an Office of the Information and Privacy Commissioner of Alberta “Request for Review/Complaint Form” submitted by Mr.

Freeman, received April 24, 2019; 3. a second Office of the Information and Privacy Commissioner of Alberta “Request for Review/Complaint Form” submitted by Mr. Freeman, dated August 16, 2019, and accompanying letter; 4. a letter of the Office of the Information and Privacy Commissioner of Alberta to Mr. Freeman, dated April 29, 2021; 5. several documents from the CNRL Action:

a) a Statement of Claim filed on November 16, 2020 by Mr. Freeman naming CNRL as Defendant,

b) an Affidavit of Mr. Freeman, sworn on November 16, 2020,

c) a January 20, 2021 Order of Master Prowse imposing a $15,000 security for costs order on Mr. Freeman, and instructing that if security for costs was not paid into court by June 1, 2021, then the CNRL Action would be immediately struck in full, and 6. a Statement of Claim filed on May 10, 2021 by Mr. Freeman naming the University of Alberta and CNRL as Defendants [U of A Action]. [ 8 ] After review of Mr. Freeman’s APEGA Statement of Claim, and the documents provided by APEGA, I conclude Mr.

Freeman’s APEGA 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 [9] CPN7 is a practice implemented by the Court to better manage litigation that, on its face, appears to be unmeritorious, has noprospect of success, or is otherwise abusive and vexatious.

This practice is intended to provide a timely, proportionate, and cost-effectiveresponse to the litigants: Unrau v National Dental Examining Board, 2018 ABQB 874 [Unrau #1]. [10] If, on initial review by the Court, the pleading appears to be unmeritorious, has no prospect of success, or is otherwise abusiveand vexatious, then the Court issues a first written decision that identifies the apparent issue(

s) which may be a basis to apply Rule 3.68and strike out the pleading. The party who filed the pleading is then given an opportunity, within 14 days, to provide the Court with aWritten Submission of up to a total of ten pages in length that responds to, and demonstrates why, the pleading is a legitimate action andshould be permitted to continue. The Written Submission must be served on the other parties to the litigation. [11] CPN7 is not for “close calls”, but instead the Court intervenes by this mechanism when the defect(

s) in question are “apparenton the face of the pleading”, and the suspect pleadings are “clearer cases of abuse”: Unrau #1, at paras 22, 24. Only restricted forms ofevidence are considered by the Court when it conducts a CPN7 review, since this process has a very narrow focus, and operates toexamine 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 thesuspect filing [Ubah #2 at para 35], or documents and records that are evidence that the AVAP is an attempt to litigate an issue that hasalready been decided or closed [Ubah #2 at para 45]. III CPN7 Analysis [12] Mr. Freeman’s APEGA Statement of Claim exhibits a number of apparent potential issues. A.

Preliminary Issue - Status of the Documents Supplies by APEGA [13] CPN7 is a process that focuses on the legal deficiencies of a single document, and CPN7 therefore does not usually considerother court filings or decisions, except where those are relevant to whether a person has engaged in re-litigation, or otherwise has nolegal right to pursue a party or subject. After review of the additional documents that were supplied by APEGA, in addition to theAPEGA Statement of Claim, I conclude that these items are relevant to the question of whether Mr. Freeman has engaged in collateralattack(

s) upon other proceedings and conducted duplicate proceedings. That is a basis for me to consider those materials. B. APEGA is Immunized by Legislation [14] APEGA is authorized and empowered by the Engineering and Geoscience Professions Act, RSA 2000, c E-11 [EGPA]. Thekeystone of Mr. Freeman’s APEGA Statement of Claim is that Mr. Freeman was injured by the negligent action of APEGA. [15] Section 82(1) of the EGPA reads: 82(1) No action lies against (

a) any person conducting a preliminary investigation, a member of the Discipline Committee, the Practice Review Board, theInvestigative Committee, the Appeal Board, the Council or the Board of Examiners, the Registrar, the Association or any person actingon the instructions of any of them, or (

b) any member, officer or employee of the Association for anything done by that person or body in good faith and in purporting to act under this Act, the regulations or the bylaws. [16] EGPA s 82(1) appears to exclude liability by APEGA. Mr. Freeman is requested to explain why that is not the case. C.

Collateral Attack and Alternative Remedy [17] 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. [18] 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.] [19] Mr. Freeman’s APEGA Statement of Claim litigation is either directly related to, or in some instances potentially overlapswith, Mr. Freeman’s other court and tribunal activities. Mr. Freeman complains that he is the target of illegal action by CNRL and theUniversity of Alberta. It appears Mr. Freeman’s current complaints about his contractual relationships with CNRL and the University ofAlberta were rejected in the CNRL Action.

Those claims are also apparently duplicated in the U of A Action Statement of Claim. [20] The APEGA Statement of Claim appears to offend the Supreme Court of Canada’s rule in Cahoon v Franks, (SCC), [1967] SCR 455 that “... there is only one cause of action for a single wrongful or negligent act and damages resulting from thesingle tort must be assessed in the one proceeding ...”. That means it appears Mr. Freeman is attempting to challenge issues that werealready determined by this Court, and that Mr. Freeman did not appeal. [21] Second, Mr.

Freeman’s claim that APEGA should produce records appears to overlap with his document-related demands tothe Office of the Information and Privacy Commissioner of Alberta “Request for Review/Complaint Form”, so that APEGA Statementof Claim records demand is an abuse of the Court as a duplicate proceeding. Further, the law is clear that it is an abuse of process topursue judicial proceedings without first exhausting the administrative regime: Al-Ghamdi v Alberta, 2017 ABQB 684 at paras 126-128,aff’d 2020 ABCA 81, leave to appeal to SCC refused, 39389 (25 February 2021). That would mean that Mr.

Freeman must first completethe Office of the Information and Privacy Commissioner of Alberta process. Then, if Mr. Freeman disagrees with that result, Mr.Freeman may judicially review the Office of the Information and Privacy Commissioner of Alberta decision at the Alberta Court ofQueen’s Bench. [22] I therefore request Mr. Freeman explain why his APEGA Statement of Claim is not an abuse of the court as a collateral attack,and/or for failing to exhaust his alternative remedies. D. Impossible Remedies [23] Mr. Freeman’s APEGA Statement of Claim identifies two alternative remedies: 1.

APEGA pay security for costs in the CNRL Action, and then become the “de facto” plaintiff in that lawsuit, including hiringcounsel, paying for all expenses, and even initiate new, but undefined, lawsuits, or 2. failure to comply with the first demand, or failure of APEGA in conducting the CNRL Action, means APEGA owes Mr.Freeman $500,000. [24] In common law jurisdictions such as Canada, civil and criminal litigation is “owned” and controlled by the parties to thelitigation: R v Mian, 2014 SCC 54 at para 38; Imperial Oil v Jacques, 2014 SCC 66 at para 25. What Mr.

Freeman proposes in his firstalternative in some ways resembles “subrogation”, the specialized situation where a contract permits or obliges a third party from outsidea legal relationship to “step in to the shoes” of a party and conduct litigation on behalf of that party. The most typical scenario wheresubrogation occurs is when an insurer “steps into the shoes” of the insured: Somersall v Friedman, 2002 SCC 59. Sometimes legislationalso permits this kind of step, for example Consumer Protection Act, RSA 2000, c C-26.3, s 15. Mr.

Freeman’s second identified remedyappears to seek a penalty for APEGA failing to subrogate and pursue his CNRL Action lawsuit, but he shows no legal basis for any rightof subrogation. [25] I ask Mr.

Freeman to identify the common law or legislative basis on which he may force APEGA to act on his behalf as asubrogated substitute plaintiff, and, in the absence of that, impose a penalty on APEGA for its failure to conduct or succeed in the CNRLAction. [26] As I have previously indicated, it appears that decisions in previous court proceedings rejected that CNRL and the Universityof Alberta engaged in illegal dealings with Mr. Freeman. That means the remedy sought by Mr. Freeman appears to be based on claimsthat have already been rejected by the Alberta Court of Queen’s Bench. I request Mr.

Freeman explain why APEGA would owe him$500,000 in relation to the outcome of the CNRL Action when the Court has rejected wrongdoing by CNRL and the University ofAlberta in that lawsuit. IV. Conclusion [27] Mr. Freeman’s APEGA Statement of Claim appears to be a suitable candidate for review per CPN7. The Court therefore seeksa response from Mr. Freeman to five questions: 1. How is APEGA liable to Mr. Freeman given EGPA s 82(1)? 2. How is the APEGA Statement of Claim not an abusive prohibited collateral attack? 3. How is the records production remedy sought by Mr. Freeman not an abuse of the Court given Mr.

Freeman has not exhaustedhis alternative remedies? 4. What is the common law or legislative basis for Mr. Freeman to impose subrogation on APEGA in the CNRL Action? 5. Why should APEGA be liable in relation to the CNRL Action given the Court has rejected Mr. Freeman’s factual allegations thatinvolve CNRL and the University of Alberta in that lawsuit?

[ 28 ] As a result of this analysis, I order that Mr. Freeman’ Alberta Court of Queen’s Bench Docket 2101 02141 Statement of Claim is 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 APEGA has seven days to 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 APEGA’s Written Reply, if any, the Court will render its final decision on whether the Docket 2101 02141 Statement of Claim should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(e)). [ 29 ] The Court has previously instructed counsel for APEGA to prepare and file an interim stay Order of this action, pending completion of the CPN7 process. APEGA should prepare a further Order reflecting this decision for approval of the Court. 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 20 th day of July, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Gregory Sim Field Law for the Defendant