Freeman v Association of Professional Engineers and Geoscientists of Alberta, 2021 ABQB 682

Court of Queen’s Bench of Alberta Citation: Freeman v Association of Professional Engineers and Geoscientists of Alberta, 2021 ABQB 682 Date: 20210826 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. 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. Mr. Freeman’s alleges that his PhD training was therefore useless, and that APEGA should pay Mr. Freeman 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 to 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 or 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 APEGA 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. [ 7 ] 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. APEGA provided several documents, including: 1) those relating to information requests by Mr. Freeman to the Office of the Information and Privacy Commissioner of Alberta; 2) documents that are part of the CNRL Action; and 3) documents involved in a third lawsuit filed 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 concluded in a Decision reported as Freeman v Association of Professional Engineers and Geoscientists of Alberta , 2021 ABQB 556 [ Freeman #3 ] that 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. Mr. Freeman was therefore invited to provide an up to ten-page Written Submission that answered 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 exhausted his 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 that involve CNRL and the University of Alberta in that lawsuit? [ Freeman #3 at para 27 .]

[ 9 ] Freeman #3 provided Mr. Freeman 14 days to provide his Written Submission: Freeman #3 at para 28 . Mr. Freeman on July 20, 2021 requested an extension of that deadline to accommodate Mr. Freeman’s vacation plans. That extension was granted to August 22, 2021. On August 14, 2021, the Court received a four-page Written Submission from Mr. Freeman. APEGA submitted a Written Reply on August 20, 2021. That completed the CPN7 process. I now proceed to determine whether Mr.

Freeman’s APEGA Statement of Claim should be struck out as an abuse of the Court. [ 10 ] During this period, the U of A Action was also subject to a CPN7 review ( Freeman v University of Alberta , 2021 ABQB 543 [ Freeman #1 ]), and then struck out on multiple bases as an abuse of process ( Freeman v University of Alberta , 2021 ABQB 612 [ Freeman #2 ]). II. CPN7 Analysis [ 11 ] Freeman #3 identified five separate bases for why the APEGA Statement of Claim is a prima facie abuse of process. Mr. Freeman’s Written Submission responded to each of these five issues. A.

APEGA is Immunized by Legislation [ 12 ] Freeman #3 , at paras 14-16 , reviews how Section 82(1) of the Engineering and Geoscience Professions Act , RSA 2000, c E- 11 [ EGPA ] appears to exclude potential liability by APEGA to Mr. Freeman: 82(1) No action lies against (

a) any person conducting a preliminary investigation, a member of the Discipline Committee, the Practice Review Board, the Investigative Committee, the Appeal Board, the Council or the Board of Examiners, the Registrar, the Association or any person acting on 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. Mr. Freeman was requested to explain why that is not the case. [ 13 ] In his Written Submissions, Mr. Freeman indicates his lawsuit is valid because “I believe APEGA did not act ‘in good faith’”, and APEGA ‘did not purport to act under this Act ...’”. Mr.

Freeman continues that he is “... prepared to prove with solid evidence ...” these points, citing paragraphs 39 and 41 of the APEGA Statement of Claim. [ 14 ] Counsel for APEGA responds that Mr. Freeman has not pled that APEGA engaged in “bad faith”. The only time “bad faith” appears in the APEGA Statement of Claim is in a complaint directed against CNRL. The only claim against APEGA is negligence, and ordinary negligence is not bad faith: Trosin v ScotiaMcLeod , 2005 ABCA 410 at para 14 . APEGA observes that it is too late for Mr.

Freeman to advance pleadings that include a bad faith claim against APEGA. [ 15 ] I agree with and adopt APEGA’s submissions. APEGA Statement of Claim paragraphs 39 and 41 are not a basis for a “bad faith” allegation. I, further, note that in Fitzpatrick v The College of Physical Therapists of Alberta , 2020 ABCA 164 at para 17 , the Alberta Court of Appeal concluded that displacing the presumption of regularity and good faith conduct requires a “high degree of malfeasance”. Mr. Freeman’s claims to not meet that threshold. [ 16 ] I, therefore, conclude on a first independent basis, that Mr.

Freeman’s APEGA Statement of Claim is a hopeless proceeding, since APEGA is immune to the lawsuit pled by Mr. Freeman’s Statement of Claim, on the basis of EPGA s 82(1). B. Collateral Attack [ 17 ] Freeman #3 at paras 17-20 reviews the rules that prohibit re-litigation, or collateral attack, of settled issues. Specifically, Freeman #3 observes that Mr. Freeman’s APEGA Statement of Claim complains of illegal action by CNRL and the University of Alberta, both which are now rejected given the CNRL Action has been struck out ( Freeman #1 at paras 13-17 ), as has the U of A Action ( Freeman #2 ). [ 18 ] Mr.

Freeman, in his Written Submission, makes arguments that his current litigation has basically nothing to do with his now rejected allegations against CNRL and the University of Alberta. He says the APEGA litigation is something different, blaming APEGA for him losing income, and arguing that his lawsuit against APEGA “... can raise awareness across the engineering community about rights and responsibilities of professional engineers ...”. Mr. Freeman also says he discontinued his litigation against CNRL, a claim that was rejected in Freeman #2 at paras 23-24 . Mr.

Freeman concludes “[i]t would be a childish mistake” to conclude his action against APEGA duplicates his allegations and remedies in the CNRL and U of A Actions. [ 19 ] APEGA submits that Mr. Freeman’s arguments as to why his APEGA Statement of Claim is not a collateral attack on other proceedings are difficult to understand and unclear, but what is obvious is that Mr. Freeman is challenging the correctness of a number of completed processes, including the disciplinary process by APEGA against CNRL, and Mr. Freeman’s now terminated lawsuits against CRNL and the University of Alberta. Even if Mr.

Freeman seeks different remedies, his current litigation is based on the same underlying alleged misconduct. That means his APEGA Statement of Claim is a collateral attack on earlier court findings that dismissed the alleged illegal conduct in question. [ 20 ] I conclude that Mr. Freeman has not rebutted my findings in Freeman #3 that the APEGA Statement of Claim is ultimately

grounded in Mr. Freeman’s allegations against his former employers CNRL and the University of Alberta. Paragraphs 42-63 explicitly relate to Mr. Freeman’s allegations against CRNL and how CNRL purportedly mistreated Mr. Freeman. The Statement of Claim states APEGA is therefore liable to Mr. Freeman in relation to his lawsuit(

s) against CNRL: ... I plead that it is APEGA's responsibility to pay the Security for Costs above and to fully took over the CNRL Action and provide me with any and all supports that is necessary because the CNRL Action is solely about unprofessional conduct by CNRL that APEGA has already verified too. ...

APEGA has powers that significantly help the progress of the case such as ordering UofA and CNRL to produce certain records that they are withholding, ordering CNRL to withdraw the requirement to sign a Dishonest Letter, or to require them to utilize their professional liability insurance and even ordering them to pay up to $500,000 in damages for unprofessional conducts, ... I plead that APEGA has a duty to protect members who are practicing according to APEGA requirements and whistleblower obligations.

I plead this honorable Court to require APEGA to fulfil that obligation by undertaking the rest of the CNRL Action and providing legal support and compensation, or otherwise, compensating me for the damages I have suffered, [ 21 ] Furthermore, at para 66, the APEGA Statement of Claim explicitly bases its remedies on Mr. Freeman’s lawsuits against his former employer CNRL. The employment-related allegations made in Mr. Freeman’s other, now dismissed, lawsuits are either aspects of, or a basis for, his remedies in the APEGA Statement of Claim. [ 22 ] This Court has concluded that Mr.

Freeman’s claims against CNRL and the University of Alberta have no merit. Yet, this is the ultimate foundation for Mr. Freeman’s entire APEGA Statement of Claim and its remedies. I conclude that Mr. Freeman has not rebutted that the APEGA Statement of Claim is a collateral attack on his previous and now dismissed CRNL and U of A Actions. That is a second independent basis on which to terminate Mr. Freeman’s litigation as an abuse of the Court. C. Premature Court Remedy [ 23 ] Freeman #3 at paras 21-22 asks how Mr.

Freeman’s demand for records from APEGA does not overlap or duplicate his document-related demands to the Office of the Information and Privacy Commissioner of Alberta “Request for Review/Complaint Form”, so that the APEGA Statement of Claim records demand is an abuse of the Court as: 1) a duplicate proceeding; and 2) a premature claim, given Mr. Freeman could seek judicial review of Office of the Information and Privacy Commissioner of Alberta processes and their outcomes. [ 24 ] Mr.

Freeman responds that his APEGA Statement of Claim seeks “records related to me”, which is different from “records about me”, for which, he alleges, the latter are the subject of his Office of the Information and Privacy Commissioner or Alberta proceedings. Further, Mr. Freeman concludes the Office of the Information and Privacy Commissioner of Alberta process is “unproductive”, given Mr. Freeman can, instead, obtain a court order against APEGA. [ 25 ] APEGA responds that there is no difference between records “related to” and “about” an individual, and that the legislative regime that Mr.

Freeman calls “unproductive” can generate binding orders. I agree with, and adopt, APEGA’s submission. The fact that Mr. Freeman might prefer a court procedure to one conducted by an administrative government body is not a basis to circumvent a scheme legislated and implemented by the Legislature. [ 26 ] My conclusion means that Mr. Freeman’s document disclosure remedy is a second collateral attack on a different process, and also premature litigation of an issue properly addressed via a different tribunal mechanism. That conclusion is another basis to strike out Mr.

Freeman’s APEGA Statement of Claim as an abuse of process. D. Impossible Remedies [ 27 ] 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 hiring counsel, 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. [ 28 ] In Freeman #3 , I observed, at paras 24-26 , that what Mr.

Freeman appears to seek is an order that would “subrogate” Mr. Freeman’s lawsuit against his former employer CNRL, so that APEGA would be forced to “step into the shoes” of Mr. Freeman, and conduct Mr. Freeman’s lawsuit, on behalf of Mr. Freeman. I concluded no known common law or legislative basis exists that would permit such a step. [ 29 ] Mr. Freeman, in his Written Submission, says he does not have a common law or legislative basis for APEGA to take over his litigation. Instead, Mr. Freeman says APEGA can sue CNRL, and it could therefore do what Mr.

Freeman has sued for in the APEGA Statement of Claim: “It’s all up to APEGA, I only hold APEGA liable.” [ 30 ] Further, Mr. Freeman says what he seeks is not subrogation: I don’t view this as subrogation, I view this as what was APEGA’s own duty to take a legal action against CNRL, but they asked me to do so. Whether APEGA chooses to take the ownership of the action I have started against CNRL or not, is completely up to APEGA. I personally don’t think CNRL is liable to my claims except to damages that would be allowed under employment law.

However, APEGA disagrees with me and APEGA believes CNRL is liable and not APEGA. I wanted to give APEGA the choice if they truly believe CNRL

is liable, they had a path forward with CNRL action but I have also presented them with an alternate option shall they choose not to undertake the legal action or subrogation (if it is a subrogation), [ 31 ] Bluntly, Mr. Freeman’s statement makes no sense. He says APEGA “asked him” to sue CNRL, when there is no evidence or allegation of that. Mr. Freeman then frames APEGA’s status as a voluntary litigant. That is not what Mr. Freeman demanded in the APEGA Statement of Claim. He sought this Court impose conduct of his litigation on a third party to that dispute. I conclude Mr.

Freeman is misstating his own pleadings in these arguments. [ 32 ] Counsel for APEGA respond that “Mr. Freeman’s submissions ... are difficult to respond to as they are inconsistent with the APEGA Statement of Claim. ...”. Up until now Mr. Freeman has based his allegations on complaints about CNRL and its purported misconduct. Now, Mr. Freeman has apparently said his claims are not about CNRL and its misconduct and the damages that allegedly resulted. [ 33 ] As is apparent from my earlier comments, I agree with Counsel for APEGA. I conclude that Mr.

Freeman has not explained why his demand that the Court impose subrogation upon APEGA, into the now terminated litigation against CNRL, is a not impossible, abusive remedy. [ 34 ] In Freeman #3 at para 26 , I also 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 of Alberta in that lawsuit. Mr. Freeman made no response to that inquiry, other than to say his litigation against CNRL is unrelated to his APEGA Statement of Claim allegations.

I have already dismissed that argument, so I conclude Mr. Freeman has provided no factual basis for that excessive or impossible claim. There is no basis for the sum Mr. Freeman has arbitrarily assigned to APEGA’s purported misconduct. [ 35 ] Mr. Freeman’s failure to provide a basis for his APEGA Statement of Claim remedies is another further independent basis on which I conclude Mr. Freeman’s lawsuit against APEGA is an abuse of the Court and the Defendant. III. Conclusion [ 36 ] I conclude, on multiple independent bases, that Mr.

Freeman has not rebutted the Freeman #3 prima facie conclusions that the APEGA Statement of Claim is a hopeless and abusive proceeding. Accordingly, I order the Docket 2101 02141 Statement of Claim is struck out pursuant to CPN7 para 3(

c) and Alberta Rules of Court , Alta Reg 124/2010 Rule 3.68. [ 37 ] When an action, application, or claim is terminated via the CPN7 process, the usual practice of this Court is to award costs in favour of the litigant who referred the matter to the Court: e.g. Ahad v Calgary Housing Company , 2020 ABQB 450 at para 9 ; Phillips v Kenney , 2020 ABQB 452 at para 9 ; Skrypichayko v Law Society of Alberta , 2020 ABQB 604 at para 43 ; Feeney v Alberta , 2020 ABQB 633 at para 6 . I see no reason to depart from that approach in this instance. Taking into account

Schedule C of the Alberta Rules of Court , I order Mr. Freeman pay APEGA $1,000 in costs, forthwith. [ 38 ] Counsel for APEGA will prepare the Order giving effect to this decision. 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. [ 39 ] In Freeman #2 at para 31 , I very strongly recommended Mr.

Freeman seek professional legal advice in relation to his litigation, since his expanding pattern of abusive litigation risks serious future costs, court-imposed penalties, and court access restriction consequences. I repeat that recommendation. Mr. Freeman should expect more significant and elevated sanctions, and litigation and litigant management steps, if he continues to initiate court proceedings that attempt to re-litigate settled issues. Dated at the City of Calgary, Alberta this 26 th day of August, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Tony Freeman Self-represented Litigant Gregory Sim

Field Law for the Defendant