Norheim v Chief Judge of the Provincial Court of Alberta, 2021 ABQB 465

Court of Queen’s Bench of Alberta Citation: Norheim v Chief Judge of the Provincial Court of Alberta, 2021 ABQB 465 Date: 20210617 Docket: 1903 19290 Registry: Edmonton Between: The Honourable D. C. Norheim, Judge of the Provincial Court of Alberta Applicant/Respondent to this Application - and - The Chief Judge of the Provincial Court of Alberta Respondent/Applicant on this Application Minister of Justice and Solicitor General of Alberta Intervener as of Right/Applicant on this Application _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice E.C.

Wilson _______________________________________________________ I. Introduction [ 1 ] The Chief Judge of the Provincial Court of Alberta (the “ Chief Judge ”) and the Minister of Justice and Solicitor General of

Alberta (the “ Attorney General ”) jointly apply to strike three actions filed by the Honourable D.C. Norheim, Judge of the Provincial Court of Alberta (“ Judge Norheim ”). [ 2 ] All three actions flow from the Chief Judge’s decision, pursuant to s. 9.24 of the Provincial Court Act , RSA 2000, c P-3 , not to reappoint Judge Norheim for another year as a part-time judge. II.

Background [ 3 ] Judge Norheim had been a sitting Provincial Court Judge and upon mandatory retirement applied for and was approved to continue as a part-time judge pursuant to s. 9.23 of the Provincial Court Act . [ 4 ] His term of office as a part-time judge was due to expire on September 29, 2019 when he turned 72 years of age. [ 5 ] In April, 2019, he sought the Chief Judge’s approval to sit as a part-time judge for a further one year term per s. 9.24(4) of the Provincial Court Act . [ 6 ] The Chief Judge’s authority to grant such an approval and the considerations he is to take into account are set out in s. 9.24(5): (5) ...The Chief Judge may approve a person to continue in office as a judge under subsection (3), (3.1) or (4) if (

a) the Chief Judge determines that approving that person to continue in office under subsection (3), (3.1) or (4) will enhance the efficient and effective administration of the Court ... [ 7 ] By letter dated August 14, 2019, then Chief Judge Matchett advised that he was exercising his discretion not to renew Judge Norheim’s appointment.

The Chief Judge wrote, in part, the following: [...] I come to this conclusion after careful consideration of the recommendation of your Assistant Chief Judge, [Judge Schaffter] review of FTR and transcripts from a number of your scheduled court appearances over the past year, and expressions of deep concern that have come to me from members of the bar and from other Judges regarding your publicly expressed personal views on certain issues, as well as your treatment of both counsel and individuals who appear before you in Court.

You have demonstrated attitudes and publicly expressed personal views regarding Indigenous accused, female victims of domestic assault, and consent in sexual assault cases which cause significant concerns for the perception of trial fairness before you. On numerous occasions you have also spoken to those who appear before you in a way that can only be described as rude and bullying. [...] Regretfully, I have concluded that your continued service on this Court would not enhance its effective and efficient administration.

I do thank you for your past service and wish you the best in your future endeavours. [ 8 ] A subsequent discussion involving the Chief Judge, Assistant Chief Judge Shaffter and Judge Norheim led the Chief Judge to reconsider, but on August 27, 2019, by way of email, he confirmed his earlier decision not to reappoint Judge Norheim. [ 9 ] Both the August 14, 2019 letter and the August 27, 2019 email are attached to Judge Norheim’s affidavit filed with this Court. [ 10 ] In the parlance of the Judicature Act , RSA 2000, c J-2 , the Chief Judge’s decision relating to Judge Norheim’s request for reappointment as a part-time judge is defined to be an “administrative decision”: see s. 41.1(1)(a)(i2).

A complaint about an administrative decision is defined as a “complaint”: see s. 41.1(1)(b). The procedure for Judge Norheim to follow in order to properly complain about this administrative decision is specified in s. 41.1(3) of the Judicature Act :

(3) Where a judge or a justice of the peace wishes to make a complaint, that person shall make the complaint to the Judicial Council. [ 11 ] On September 12, 2019, Judge Norheim made his complaint to the Alberta Judicial Council (the “ Judicial Council ”). [ 12 ] In its October 22, 2019 decision, the Judicial Council described Judge Norheim’s complaint as being two-fold: (

i) that the Chief Judge had followed the wrong statutory process when deciding not to reappoint Judge Norheim ; and (ii), in any event, the process which was followed was procedurally unfair. [ 13 ] The Judicial Council dismissed Judge Norheim’s complaint and upheld the decision of the Chief Judge. [ 14 ] Judge Norheim never sought judicial review of the decision of the Judicial Council.

The six month limitation has long passed and thus Judge Norheim is barred from challenging it by judicial review: see Alberta Rules of Court , Alta Reg 124/2010 , 3.15(2). [ 15 ] But what he did do was file the three now impugned actions – two filed prior to and one after the Judicial Council decision. All of them challenge the Chief Judge’s decision not to reappoint Judge Norheim as a part-time judge. [ 16 ] The three actions filed by Judge Norheim are as follows: A. An Originating Application for Judicial Review filed September 20, 2019.

[ 17 ] That application was self-described as being in the nature of certiorari and mandamus which sought to quash the Chief Judge’s decision and to order the Chief Judge to reappoint Judge Norheim (paragraphs 1 and 12). [ 18 ] Judge Norheim claimed that the Chief Judge’s decision not to reappoint Judge Norheim was procedurally unfair (paragraphs 7 and 10) and/or offended the principles of natural justice (paragraph 10) as well as having contravened unspecified provisions of both the Provincial Court Act and the Judicature Act (paragraph 11). [ 19 ] Alternatively, if the Chief Judge’s decision was found to be in accordance with the provisions of the Provincial Court Act and the Judicature Act , Judge Norheim claimed that those provisions were in breach of s. 15(1) of Canadian Charter of Rights and Freedoms , The Constitution Act, 1982 (the “ Charter ”) and should be declared to be of no force or effect pursuant to s. 52 of The Constitution Act as the provisions allegedly limit judicial independence of judges over 70 years and remove procedural protections for judges over 70 years (paragraph 11). [ 20 ] Judge Norheim also sought an injunction preventing the Chief Judge’s decision from taking effect until the Judicial Council had made a determination on his complaint filed September 12, 2019 (paragraph 13). [ 21 ] For completeness, I note that Judge Norheim never sought a hearing for any application for an injunction.

B. Notice of Constitutional Question filed October 3, 2019 [ 22 ] The second action being challenged was filed by Judge Norheim on October 3, 2019. The stated purpose of this action was to serve as a Notice of Constitutional Question (paragraph 2). [ 23 ] This action sought a declaration that s. 9.24(4) of the Provincial Court Act was unconstitutional as being contrary to s. 15(1) of the Charter .

If the declaration of unconstitutionality could not be granted, Judge Norheim was content, in the alternative, to receive s. 24(1) Charter relief, the nature of which was not explained, but such relief could include a constitutional exemption for himself. From what particular portion of s. 9.24(4) he was seeking constitutional exemption was not specified in his Notice. C. Amended Notice of Constitutional Question filed November 19, 2019 [ 24 ] The third Judge Norheim action being challenged was filed November 19, 2019. It was an action which amended the October 3, 2019 Notice of Constitutional Question.

In this amended action Judge Norheim asked the Court to declare all of s. 9.23 and s. 9.24 of the Provincial Court Act unconstitutional, allegedly being contrary to both s. 15, as well as s. 11(

d) of the Charter . The alternative Charter relief sought in the second action remained unaltered. [ 25 ] As between these three actions Judge Norheim wants this Court to: (

i) Quash the Chief Judge’s decision not to reappoint him as a part-time judge; (ii) Order the Chief Judge to reappoint him as a part-time judge; (iii) Declare that ss. 9.23 and 9.24 of the Provincial Court Act are unconstitutional; and (iv) In the alternative, to grant some type of constitutional exemption. D. The Striking Actions [ 26 ] Both the Chief Judge and the Attorney General ask that all three actions filed by Judge Norheim be struck. [ 27 ] They argue that they are an abuse of process and, in particular, constitute a collateral attack upon the decision of the Judicial Council. [ 28 ] Relying upon Rule 3.68(2)(

d) they say that is both plain and obvious and that the record fairly shows that these three actions are an abuse of process and all must therefore be struck. [ 29 ] Judge Norheim’s position is that his pleadings are simply a motion challenging the Chief Judge’s decision not to reappoint him, which motion is authorized by s. 9.1(7) of the Provincial Court Act , which is referenced at s. 41.1(2) and s. 41.2(2) of the Judicature Act and, therefore, are properly before the Court. [ 30 ] In addition, his pleadings which argue that the Chief Judge’s decision was based upon statutory provisions which should be declared unconstitutional is a claim that the Judicial Council was legally unable to adjudicate and could only be dealt with in this Court.

III. Analysis [ 31 ] Judge Norheim challenged the Chief Judge’s decision not to reappoint him following two processes: (

i) through a complaint to the Judicial Council pursuant to s. 41.1(3) of the Judicature Act ; (ii) through a Notice of Motion to this Court pursuant to s. 9.1(7) of the Provincial Court Act . A. Complaint to the Judicial Council

[32] As earlier described, Judge Norheim’s complaint was that the decision not to reappoint him was procedurally unfair andinconsistent with the Provincial Court Act. He wanted the Judicial Council to reverse the Chief Judge’s decision not to reappoint. [33] The Judicial Council’s decision dealt with a number of points raised by Judge Norheim and the Chief Judge. I am satisfiedthat the brief of the Chief Judge before me, at paragraph 19, accurately reflects the Judicial Council’s decision: 19. More particularly the Judicial Council held that: a.

The appointment process for part-time judges under the Provincial Court Act survives constitutional scrutiny because there is apresumption that the Chief Judge acts exclusively out of consideration for the interests of the Court and the administration of justice; b. The availability of a complaint to the Judicial Council provides a safeguard for matters relating to the administration of the Court thatcould impinge on judicial independence; c.

Candidates for judicial reappointments pursuant to the Provincial Court Act are not “judges” for the purposes of the disciplinaryprocess in the Judicature Act because they are merely candidates for a future judicial office; d. Applicants under

section 9.24 of the PCA do not have a right or entitlement to hold office after their term of appointment expires; e. An appropriate level of procedural fairness was extended to the Applicant; f. There was nothing on the record to show that the Chief Judge exercised his discretion on inappropriate grounds; and g.

The Chief Judge was entitled to consider how the Applicant had discharged his functions in court when determining if hisreappointment would enhance the efficient and effective administration of the Court. [34] The Judicial Council found there was no basis to disturb the Chief Judge’s decision not to reappoint Judge Norheim anddismissed his complaint. [35] Judge Norheim did not apply for judicial review of the Judicial Council’s decision and, accordingly, that decision is final. [36] But the failure to seek judicial review was not due to oversight or forgetfulness.

It apparently was a conscious decision.However, Judge Norheim’s explanations for not seeking judicial review are somewhat at odds with each other. [37] For example, at paragraph 8 of his written submissions, he points to the privative clause in s. 41.2 of the Judicature Act aspreventing any judicial review: The Judicial Council Decision is not subject to judicial review, pursuant to s. 41.2 of the Judicature Act. [38] While the privative clause does purport to preclude any judicial review, that is not the law.

For at least the last 40 years, caselaw has held that no privative clause enacted by any Legislature can remove a Superior Court’s jurisdiction to review actions anddecisions of administrative bodies.

Judicial review is constitutionally guaranteed: Crevier v Quebec (AG) (SCC), [1981]2 SCR 220; Dunsmuir v New Brunswick 2008 SCC 9 at para 31; and Canada (Citizenship and Immigration) v Vavilov 2019 SCC 65 atpara 24. [39] Further, judicial review is not restricted to reviewing only those matters over which the Judicial Council had jurisdiction.Judicial review can also be combined with an application for other relief including Charter relief, which the administrative body mayhave been incompetent to consider: Gramaglia v Alberta (Government Services Minister) 2007 ABCA 93 at paras 37-41. [40] I am satisfied, therefore, that Judge Norheim was legally entitled to seek judicial review of the Judicial Council’s decision andto seek Charter relief in that judicial review. [41] In oral submissions, counsel for Judge Norheim appeared to resile from his written submission.

Rather than arguing that hewas prevented from pursuing judicial review, he submitted that he had no reason to pursue it at all. [42] Counsel combined that with the submission that Judge Norheim was not really attacking the decision of the Judicial Council,collaterally or otherwise. Indeed, he said, Judge Norheim neither disagreed with, nor challenged the decision of the Judicial Council. [43] With respect, that is somewhat disingenuous.

Putting aside the complaints of constitutional infirmity, Judge Norheim’spleadings before this Court assert the same alleged deficiencies on the part of the Chief Judge as he had complained about to the JudicialCouncil. The Judicial Council found there to be no basis to Judge Norheim’s complaint and upheld the Chief Judge. But by arguing thosesame complaints about the Chief Judge in this Court, it is clear and obvious that Judge Norheim does not agree with the Chief Judge’sdecision and, by extension, does not agree with the Judicial Council’s decision.

No other rational explanation is possible. [44] In the result, regardless of the reason why judicial review was not sought by Judge Norheim, the decision of the JudicialCouncil is final and stands unimpaired. [45] I turn now to an assessment of two of the grounds for the Striking Action: abuse of process and collateral attack. I will thenbriefly deal with the other two grounds: issue estoppel and mootness B. Abuse of Process [46] In Reece v Edmonton (City) 2011 ABCA 238, the Court said at paragraph 16:

Abuse of process is a compendious principle that the courts use to control misuses of the judicial system. Abuses of process can arise inmany different contexts, and there is no universal test or statement of law that encompasses all of the examples. [47] One category of abuse of process germane to this case pertains to the attempted relitigation of settled issues, regardless of thelitigant’s motive. [48] In Toronto (City) v CUPE 2003 SCC 63 [Toronto], the Court said the following concerning re-litigating and motive atparagraph 46: A desire to attack a judicial finding is not in itself an improper purpose.

The law permits that objective to be pursued through variousreviewing mechanisms such as appeals or judicial review. Indeed reviewability is an important aspect of finality. A decision is final andbinding on the parties only when all available reviews have been exhausted or abandoned. What is improper is to attempt to impeach ajudicial finding by the impermissible route of relitigation in a different forum. Therefore, motive is of little or no import. [49] The doctrine of abuse of process concentrates on the integrity of the adjudicative process.

There can be no assumption thatrelitigation will produce a more accurate result. If it produces the same result, than relitigation was a waste of time, money andresources. If it produces a different result, “the inconsistency, in and of itself, will undermine the credibility of the entire judicial process,thereby diminishing its authority, its credibility and its aim of finality”: Toronto para 51. [50] These are precisely the reasons why the Chief Judge and the Attorney General move to strike.

Judge Norheim clearly seeks torelitigate the same issues which were decided by the Judicial Council against Judge Norheim. He wants the Chief Judge’s decisionquashed ab initio and have this Court impose a contrary decision – his reappointment. Such a result clearly would contradict the decisionof the Judicial Council to uphold the Chief Judge’s decision. It is an abuse of process to relitigate that matter. [51] Of course, there will be circumstances where relitigation is necessary in order to enhance the credibility and integrity of thejudicial system.

The case of Toronto, at paragraphs 52 and 53 provide examples – where the first proceeding was tainted by fraud ordeceit; where fresh, new evidence conclusively impeaches the original result; or where the original proceeding reflects rather indifferent,less committed interests of the parties because the stakes at that time were so minor as compared to the situation at the time ofrelitigation. [52] Cleary, there are no such exceptions present here to permit the relitigation of the Judicial Council’s decision, nor of the ChiefJudge’s decision for that matter. C.

Collateral Attack [53] While this is a specific example of an abuse of process, it has its own, somewhat different focus. [54] The seminal decision of Wilson v The Queen (SCC), [1983] 2 SCR 594 provides the working definition atpage 599: ...a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation,or nullification of the order or judgment. [55] The focus of a collateral attack is on “the order itself and its legal effect”: Toronto, para 34. [56] The collateral attack rules apply to Court orders, but also to administrative tribunal decisions: In that context the more specific objective is to balance fairness to the parties with the protection of the administrative decision-makingprocess, whose integrity would be undermined by too readily permitting collateral attack or relitigation of issues once decided.

Danyluk vAinsworth Technologies 2001 SCC 44 , [2001] 2 SCR 460 at para 21 [Danyluk]. [57] The collateral attack rule aims at protecting the fairness and integrity of the justice system. “It prevents a party from using aninstitutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through thedesignated appellate or judicial review route”: Worker’s Compensation Board v Figliola 2011 SCC 52 , [2011] 3 SCR 422 atpage 438.

The collateral attack rule precludes collateral attacks being brought, as here, on constitutional grounds: Carpenter FishingCorp v Canada 2002 BCCA 611 at para 8. As was explained in Grenon v Canada 2007 ABQB 403 at para 28: A collateral attack occurs when a litigant commences a proceeding (including a constitutional challenge), other than one expresslyprovided for the purpose of attacking a judicial order, that would have the result of varying, nullifying or rendering nonsensical an orderor decision made in a prior proceeding involving the litigant.

The case law indicates that when determining if a proceeding is a collateralattack, the court is not limited to the stated purpose of the second proceeding; it can examine the result of that proceeding. [58] Simply claiming that he is not seeking to undermine the Judicial Council’s decision does not really get Judge Norheimanywhere. The key question is whether permitting Judge Norheim’s action to proceed threatens to render the Judicial Council’s decision,which was not appealed, “non sensical”: Ernst & Young Inc v Central Guaranty Trust Company 2006 ABCA 337 at para 50.

I find thatwould clearly be the result here if Judge Norheim’s actions were allowed to proceed after he chose not to seek judicial review of theJudicial Council’s decision. [59] Potentially a permissible collateral attack could be launched after consideration of the five non-exhaustive “Maybrun factors”when assessing legislative intent: R v Consolidated Maybrun Mines Ltd (SCC), [1998] 1 SCR 706 at paras 45-49; R v

Bird 2019 SCC 7 at para 32 ; and Skrypichayko v Law Society of Alberta 2020 ABQB 461 at paras 60-64 . However, Judge Norheim does not ask I do so. [ 60 ] However, having reviewed the applicable “Maybrun factors”, I find a prima facie case of an impermissible collateral attack upon the decision of the Judicial Council should Judge Norheim’s action be allowed to proceed.

In that regard, I adopt as part of my reasons the entirety of paragraph 45 of the written submissions of the Attorney General. [ 61 ] Judge Norheim’s written response to the allegations of an abuse of process and impermissible collateral attack were to say nothing directly about them. There is not even a specific denial. [ 62 ] But the combination of written and oral submissions indicates a belief that he has a statutory right to be in this Court to challenge the decision of the Chief Judge and to raise his constitutional complaints.

Further, the decision of the Judicial Council and the fact that it was not the subject of a judicial review, presents no impediment he says, to his statutory right to present his complaints to this Court. [ 63 ] At paragraph 9 of his written submissions, Judge Norheim asserts that the Judicial Council decision is, in fact, irrelevant because he can properly challenge the Chief Judge’s decision upon the authority of s. 9.1(7) of the Provincial Court Act which reads: 9.1

(7) Where the Chief Judge makes any decision or takes any action with respect to a matter referred to in subsection (5) or (6) or any other matter relating to the administration of the Court, that decision or action is not subject to any type of judicial review by a superior court unless that decision or action is, in the opinion of a superior court, patently unreasonable or not within the powers, duties or jurisdiction of the Chief Judge. [ 64 ] I understood counsel to say that the Originating Notice was filed by Judge Norheim pursuant to this authority. [ 65 ] I have some reservations that this provision supports this type of Originating Notice.

The decision or actions of the Chief Judge referenced in ss. 9.1 (5) and (6) are all related to the Chief Judge’s supervisory duties including duty and case assignments to judges, designating which court facilities can be used by particular judges and designating court sittings.

These items and any other court administration matters fall within s. 9.1 (7) of the Provincial Court Act . [ 66 ] At first blush therefore, complaints about administrative decisions in s. 9.1(7) would not seem to extend to complaints about decisions by the Chief Judge affecting the complement of judges – be they full-time, part-time or supernumerary judges.

Indeed, those decisions are found in other sections of the Provincial Court Act , namely 9.23, 9.24 and 9.30. [ 67 ] My reservation is reinforced when one notes that the clear, explicit process for a judge to make a complaint about a decision, such as not being reappointed, to the Judicial Council is mandated by 41.1(3) of the Judicature Act . [ 68 ] One might reasonably ask why the Legislature would think it necessary to prescribe two different procedures involving two different bodies for a judge who wished to challenge a Chief Provincial Court Judge’s decision declining to reappoint a part-time judge for another year? [ 69 ] However, as counsel did not raise these issues, they must be put aside for another day. [ 70 ] But, even accepting that Judge Norheim could initially file his Originating Notice pursuant to s. 9.1(7) of the Provincial Court Act does not mean that he can continue litigating upon it, once it is clear that he made the same complaint to the Judicial Council, lost in that venue and chose not to seek judicial review. [ 71 ] The Chief Judge and Attorney General say that he cannot because it is an abuse of process and a collateral attack upon the decision of the Judicial Council. [ 72 ] Does s. 9.1(7) of the Provincial Court Act create some sort of legislated exception to the collateral attack rule or the doctrine of abuse of process? [ 73 ] The answer must be no. [ 74 ] It is nonsensical to suggest that the Legislature would think it appropriate to encourage more, repetitive litigation, when there is judicial review already available for the disaffected litigant. [ 75 ] And how would the encouragement of more litigation square with the Legislature’s deployment of a privative clause in the Judicature Act which, of course, is directed at reducing further litigation? [ 76 ] Accordingly, I am satisfied that s. 9.1(7) of the Provincial Court Act cannot immunize Judge Norheim’s actions in this case from my findings that they are an abuse of process and collateral attack.

D. Issue Estoppel [ 77 ] As it was raised by the Chief Judge, I will briefly deal with it. [ 78 ] There is merit in Judge Norheim’s submission that issue estoppel fails here on the third leg of the test i.e. that the parties to the Judicial Council decision must be the same parties before me: Danyluk , para 25. Before me is the Attorney General, who was not a

party before the Judicial Council. As a result, I will not grant the striking on the basis of issue estoppel – it being redundant, in any event, to my earlier findings. E. Mootness [ 79 ] The Chief Judge submits that Judge Norheim ceased holding office some time ago. He cannot be approved for the additional one year because that time period to do so has expired: s. 9.24(4) of the Provincial Court Act . [ 80 ] If he was successful in establishing that ss. 9.23 and 9.24 were unconstitutional then there no longer is a legislative basis to be reappointed.

And he would have to retire in any event because s. 9.22, which is not challenged, mandates retirement at age 70 years. [ 81 ] In his submissions, counsel for Judge Norheim said that if it was legally impossible to reappoint Judge Norheim, then – assuming a Court found those provisions of the Provincial Court Act violated the constitution – he could seek damages as his Charter relief. [ 82 ] Obtaining damages as Charter relief is not quite the same as seeking a constitutional exemption which is what was plead. Thus, counsel’s submissions are a bit of a surprise.

And that was counsel’s only response to the mootness claim that had been put forward in the Chief Judge’s brief. [ 83 ] Given the absence of any detail or authority for counsel’s claim, in these circumstances, I think it best that I simply set the mootness issue aside. It is, in any event, redundant, to my earlier findings. IV.

Conclusion [ 84 ] I am satisfied that all three actions filed by Judge Norheim are an abuse of process and constitute a collateral attack upon the decision of the Judicial Council, which decision was never challenged upon judicial review. [ 85 ] Accordingly, all three actions are struck. [ 86 ] If the parties are unable to agree upon costs, then I will decide the matter based solely upon written submissions of the parties. Heard on the 1 st day of June, 2021. Dated at the City of Edmonton, Alberta this 17 th day of June, 2021. E.C. Wilson J.C.Q.B.A. Appearances: Mr. J. Casey and Mr. A.

Ollenberger for the Applicant, the Chief Judge of the Provincial Court of Alberta Mr. S. Renouf, QC for the Respondent, the Honourable D.C. Norheim, Judge of the Provincial Court of Alberta Ms. L. McDaniel and Ms. C. Enns

for the Applicant Intervener as of Right, Minister of Justice and Solicitor General of Alberta