Emmons v Alberta (Workers' Compensation Board), 2023 ABKB 27

Court of King’s Bench of Alberta Citation: Emmons v Alberta (Workers' Compensation Board), 2023 ABKB 27 Date: 20230116 Docket: 2102 00072 Registry: Drumheller Between: John Emmons Plaintiff/Respondent - and - Alberta (Workers' Compensation Board) Defendant/Applicant _______________________________________________________ Reasons for Decision of the Honourable Justice C.M. Jones _______________________________________________________ I. Introduction [ 1 ] This application arises out of a protracted dispute.

The Applicant, Alberta (Workers’ Compensation Board) (“WCB”) seeks to bring to an end the latest action brought against it by the Respondent, John Emmons. The WCB seeks to have that action struck or summarily dismissed. It also seeks a vexatious litigation order against Mr. Emmons. II. Background [ 2 ] Mr. Emmons suffered a workplace injury on January 14, 2000 (the “Accident”). He filed an injury claim with the WCB (the “Claim”). The Claim was approved in respect of a right shoulder injury in 2000.

The WCB asserts that over the course of its administration of the Claim, it has rendered adjudicative decisions, paid compensation and provided medical aid to Mr. Emmons in accordance with the Workers’ Compensation Act , RSA 2000, c W-15 (the “ WCA ”), the Workers’ Compensation Regulation , AR 325/2002 (the “ Regulation ”) and WCB policy. [ 3 ] In 2006, Mr. Emmons advised the WCB that he was having cognitive issues, which he believed might have been caused by the Accident. He was referred to specialists, including Dr. Hoyte, a neurologist, and Dr. King, a neuropsychologist. [ 4 ] Dr.

Hoyte prepared a Neurological Assessment report dated February 10, 2006. Under “Impression”, it stated “Probable early dementia”. In a letter dated May 16, 2006, Dr. Hoyte stated “As before, the diagnosis is likely probable dementia”. [ 5 ] In a letter regarding an assessment on August 26, 2006, Dr. King stated, “The prominent behavioral changes that his wife described and the modest difficulties with executive functioning that he showed in his assessment may point to an early front temporal

dementia”. [ 6 ] The WCB also retained two independent medical professionals, Dr. Lima and Dr. Rose. Both concluded that the medical evidence did not support Mr. Emmons’ assertion that he had suffered a brain injury at the time of the Accident. [ 7 ] The WCB’s claims adjudicator denied Mr. Emmons’ head injury claim on August 26, 2006 (the “WCB Decision”). [ 8 ] Mr. Emmons was not happy with the WCB Decision and sought a review pursuant to

section 9.4 of the WCA . [ 9 ] On September 14, 2007, the WCB’s Dispute Resolution Decision Review Body (“DRDRB”) decided against Mr. Emmons’ review (the “DRDRB Decision”). The DRDRB Decision was authored by Mr. Richard Pougnet and responded quite extensively to Mr. Emmons’ request that the claim denial be reviewed. It reviewed the background to the Accident and the treatment Mr. Emmons received for his injured shoulder. It referred to Mr. Emmons’ subsequent assertion that he suffered a brain injury as a result of the Accident.

The DRDRB noted that the WCB had engaged a medical consultant, who was unable to relate closed head brain injury to the Accident. The DRDRB noted that there was no indication of Mr. Emmons hitting his head at the time of the Accident. [ 10 ] Mr. Emmons was advised that he had twelve months to appeal the DRDRB Decision to the WCB’s Appeals Commission.

Section 13.2(8) of the WCA provides that: The Appeals Commission shall not accept an appeal from a decision under

section 9.4 unless a written notice of appeal is received within one year from the date the appropriate review body made its decision. [Emphasis added.] [ 11 ] Mr. Emmons did not appeal the DRDRB Decision within one year. Some years later, his wife, Maria Farmer, provided additional information to the WCB that she apparently believed should have been considered by the DRDRB. On May 10, 2011, Mr. Pougnet responded to that information and reiterated the DRDRB’s findings, stating as follows: You believe these reports confirm a closed head brain injury occurred at the time of the work accident.

On the other hand, I was unable to conclude that there was a reasonable explanation why twelve assessing and treating doctors along with one medical consultant and a neuropsychologist did not suspect a work related closed head brain injury between 2000 and 2005. [ 12 ] Years later, Mr. Emmons sought an extension of the one-year statutory time limitation to appeal the DRDRB Decision. That application proceeded to a documentary hearing on August 17, 2021. On September 22, 2021, the Appeals Commission rendered a decision (the “AC 2021 Decision”) denying Mr.

Emmons’ request for an extension of time to appeal the DRDRB Decision. [ 13 ]

Section 13.2(9) of the WCA provides that the Chief Appeals Commissioner or delegate may extend the one-year time limit for appeal if there is a justifiable reason for the delay.

Section 13.2(10) provides that there is no appeal from a decision made under subsection (9). [ 14 ] The Delegate of the Chief Appeals Commissioner carefully considered the history of Mr. Emmons’ claim and concluded: (

a) Mr. Emmons had been given proper notice of the DRDRB Decision. (

b) While the question of what is a justifiable reason for delay is open to

interpretation, the statute is clear in stating the Appeals Commission shall not accept a request for appeal outside of the one-year limitation. (

c) It follows that waiving the one-year deadline must be based on exceptional circumstances. Justifiable reasons for delay must be significant. (

d) Mr. Emmons had not shown, with supporting documents, justifiable reasons, or any other factors, to grant an extension of time to appeal the DRDRB Decision. III. Litigation History [ 15 ] The present action is the fourth action brought by Mr. Emmons in respect of these events. To place the WCB’s application before me into its proper context, it is necessary to review the previous actions and their outcomes. A. Action 1 [ 16 ] As noted above, Mr. Emmons did not exercise his statutory right to appeal the DRDRB Decision to the Appeals Commission in accordance with

section 13.2 of the WCA . Instead, on October 23, 2007, he filed a Statement of Claim in Action Number 0703 13576 (“Action 1”). [ 17 ] Mr. Emmons named five defendants: Dr. Vacy-Lyle, the WCB, Correctional Services Canada, the PSAC Union, and the USGE Union. Dr. Vacy-Lyle provided Mr. Emmons with medical treatment. Correctional Services Canada was his employer. The WCB was charged with responsibility for administering claims relating to workplace injuries on behalf of Mr. Emmons’ employer. The PSAC Union was the bargaining agent for Mr.

Emmons and the USGE Union was his representative under his collective agreement. [ 18 ] Mr. Emmons alleged in his Statement of Claim that he had suffered not only shoulder, arm and hand injuries but also a brain injury for which the WCB had refused to approve medical treatment. [ 19 ] Mr. Emmons sought damages on behalf of himself and Ms. Farmer. However, he did not claim the damages one ordinarily would expect in a personal injury action, such as special damages, general damages, and damages for loss of income or loss of

housekeeping. Instead, Mr. Emmons sought a fine against Dr. Vacy-Lyle for allegedly failing to provide the WCB with injury reports in a timely fashion. He sought substantial aggravated damages against the WCB, Correctional Services Canada, the PSAC Union and the USGE Union. He also sought substantial punitive damages on behalf of himself and his wife, but did not specify against whom those damages should be awarded. [ 20 ] On August 27, 2010, Justice B.A.

Browne, formerly of this Court, struck the Statement of Claim in Action 1 on the grounds that it disclosed no cause of action and there was no genuine issue to be tried. Justice Browne concluded that this Court did not have jurisdiction to review the DRDRB Decision by appeal or judicial review and that the Court must defer to the review bodies created by the WCA . [ 21 ] The Court of Appeal dismissed Mr. Emmons’ request to late file an appeal.

The Court of Appeal found that the WCB is protected by a privative clause in s. 17(2) of the WCA and has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under the WCA or the Regulation , including the issues advanced by Mr. Emmons in Action 1. Decisions of the WCB on said matters are final and conclusive and are not open to question or review in any court.

Section 13.1 provides the Appeals Commission exclusive jurisdiction to hear appeals from the DRDRB. Accordingly, Action 1 enjoyed no prospect of success. B. Action 2 [ 22 ] On September 13, 2012, Mr. Emmons filed a Statement of Claim in Action Number 1203 13674 (“Action 2”) with the WCB as the sole Defendant. Mr. Emmons again sought significant aggravated and punitive damages. While the basis of Action 2 is not clear from the Statement of Claim, Mr. Emmons appears to have disputed the WCB’s use of Dr. Hoyte’s report and letter indicating “likely probable dementia”.

Paragraphs 12, 14 and 15 of the Statement of Claim read as follows: The Defendants The Workers’ Compensation Board of Alberta abused their powers and authority in stating and proving that they had a confirmed diagnosis of Dementia, when in fact they did not. The Defendants continue to claim that the Plaintiff has Dementia, and refuses to acknowledge that it has been proven that the Plaintiff shows no signs of Dementia or Alzheimer’s. … The Defendants have abused their power and authority in stating to the Plaintiff that he has Dementia, and has refused to provide any documentation to prove their diagnosis to him.

The Defendants also refuse to discuss or explain this to the Plaintiff, as the Defendants claim they are accountable to no one. The Plaintiff feels that he has the right to have his medical records corrected that he does not have Dementia. The Workers’ Compensation Board has refused to acknowledge that, and the Appeal Commission based their decision on the information provided by the Workers’ Compensation Board of Alberta. [ 23 ] Action 2 then underwent a few twists and turns. The WCB brought an application to have it struck pursuant to Rule 3.68 of the Alberta Rules of Court (the “ Rules” ).

The WCB took the position that it had exclusive jurisdiction to deal with Mr. Emmons’ claims through the DRDRB and the Appeals Commission. [ 24 ] On December 17, 2012, an Applications Judge considered Mr. Emmons’ assertions that the WCB effectively had concluded that he had dementia and that this determination was not made in good faith and had had a devasting effect on his life. The Applications Judge suggested that perhaps Mr. Emmons should have brought an application for judicial review.

The WCB disagreed and argued that even if it had made a wrong decision, that decision needed to be reviewed within the scheme dictated by the WCA . The Applications Judge refused to strike the Statement of Claim, but stayed Action 2 “until all the processes available under the WCB have been exhausted”. [ 25 ] The WCB appealed and the matter came before Justice Acton of this Court on June 7, 2013. The WCB argued that the claim really was about an incorrect finding of fact based on Dr. Hoyte’s statement and should be resolved within the WCB’s processes.

Justice Acton declined to characterize any error in the WCB’s use of Dr. Hoyte’s report as a wrongful finding of fact, finding instead that the true nature of Mr. Emmons’ claim was in defamation. She directed Mr. Emmons to amend his Statement of Claim to reflect the possibility that the WCB had wrongfully published to others that he was suffering from dementia. [ 26 ] Mr. Emmons revised his Statement of Claim, the WCB revised its Statement of Defence and the matter proceeded to a hearing.

In JE v Alberta (Workers' Compensation Board) , 2015 ABQB 460 , the Court concluded that the WCB had an unassailable defence to Mr. Emmons’ defamation claim. The Court stated as follows at paras 83 and 84: Apparently, Dr. Hoyte considered Mr. JE’s symptoms in 2006 and concluded that they probably indicated dementia. There is no medical evidence before the Court as to whether or how a definitive diagnosis of dementia would be made. However, to use a legal analogy, if Dr.

Hoyte appeared as an expert in a trial in this court, his use of the term “probable” would support a finding of fact on a balance of probabilities. I find that the WCB employees’ statements that Mr. JE had been “diagnosed with dementia” were substantially true at the time. It is important that I emphasize to Mr. JE that this does not mean that the Court has found that Mr. JE has dementia. That may or may not be the cause of the difficulties he has experienced.

What it does mean is that for the purposes of the legal analysis relating to the claim of defamation, the Court finds that the statements were “substantially true” at the time they were made. [ 27 ] The Court declined to summarily dismiss Mr. Emmons’ claim on the basis of the WCB’s limitations defence. Noting

section 5 of the Limitations Act , RSA 2000, c L-12 , the Court was concerned that Mr. Emmons might be a person “under a disability” against whom the limitation period did not run. [ 28 ] Mr. Emmons appealed but his appeal appears to have been struck for failing to file an appeal record. He applied to the Court

of Appeal to have his appeal restored. In JE v Alberta (Worker’s Compensation Board) , 2016 ABCA 177 , Veldhuis JA noted at paras 8 and 9: This application hinges on the factor of the arguable merits of the appeal. The applicant has failed to identify any errors in the decision of the chambers judge. His issue is with the medical diagnosis generated by one or more doctors during the various assessments relating to his claim for WCB compensation. As found by the chambers judge at para 75 of her decision ( 2015 ABQB 460 ): In this lawsuit, this Court cannot and shall not decide whether or not Mr. JE has dementia.

I note that he sought in his initial Statement of Claim to have the cause of his cognitive issues confirmed through recourse in civil court. And regardless of how long this lawsuit persists, this Court will never have jurisdiction in the context of this litigation to examine the various diagnoses and pronounce on the cause of Mr. JE’s cognitive difficulties. Nothing has changed in the submissions before me to suggest there is any arguable merit to the appeal in this case. This appeal could never succeed, and it would be a waste of the parties’ resources to restore this appeal.

The proper administration of justice requires this matter be concluded. C. Action 3 [ 29 ] On November 8, 2013, Mr. Emmons filed a Statement of Claim in action number 1303 16024 (“Action 3”). The defendants were the WCB, the Appeals Commission, and Shahnaz Hudani and Richard Pougnet, both of whom were employees of the WCB. Mr.

Emmons stated this at paragraph 13 of the Statement of Claim: The Plaintiff states that all of the Defendants acted maliciously and intentionally depriving him of medical treatment, causing him further damage to his disability and omitted medical information to ensure that he would not have any fair hearings. [ 30 ] Mr. Emmons alleged that WCB employees made decisions without taking into account a psychologist’s report that stated that his treatment plan would involve “cognitive restructuring”.

He seems to have believed that the term “cognitive restructuring” supported his claim to have suffered traumatic brain injury. He claims to have suffered “repairable” damages to his speech and cognitive abilities. [ 31 ] Mr. Emmons believes WCB actors concealed this report. He sought significant compensatory damages as well as exemplary, aggravated and punitive damages. [ 32 ] The WCB claims that Action 3 was never served and was “dismissed administratively”. In his Affidavit filed April 25, 2022, Mr. Emmons confirms that this Statement of Claim was never served.

However, he asserts that, because it was never adjudicated on, no issues of res judicata arise in respect of the claims asserted therein. D. The Present Action [ 33 ] On October 4, 2021, Mr. Emmons filed a Statement of Claim in action number 2102-00072 (the “Present Action”). As discussed further below, he is not satisfied with the manner in which the WCB has corrected its records in response to directions from the Office of the Information and Privacy Commissioner (the “Privacy Commissioner”). 1. Background [ 34 ] On February 14, 2014, Mr.

Emmons made a request to the WCB under the Freedom of Information and Protection of Privacy Act , RSA 2000, c F-15 (“ FOIP ” ), seeking correction of personal information in four records. He stated as follows: The Workers’ Compensation Board claims and states that Dr. […] has diagnosed me with dementia. This information has been forwarded to Ministries of the Alberta Government. At this point [this] has to stop, I should not be forced to live with the [stigma] of a diagnosis that I do not have.

I should not be subject to being told by the Ministry of the Alberta Government that I have a degenerative disease I do not have. [ 35 ] Mr. Emmons claimed that these four records indicated that Dr. Hoyte had diagnosed him with dementia. However, in a letter to the WCB dated March 26, 2014, Dr. Hoyte noted that his May 18, 2006 report indicated “the diagnosis is likely probable dementia” and stated that, “On review of my file I can confirm that I did not make a definitive diagnosis of dementia in this patient.” [ 36 ] In response to Mr.

Emmons’ request, the WCB informed him that it would correct the diagnosis of dementia in certain documents to reflect Dr. Hoyte’s findings accurately. The WCB altered the DRDRB’s May 10, 2011 letter to Ms. Farmer to reflect a diagnosis of “likely probable dementia”, that Dr. Hoyte had not related to the Accident. The WCB also altered, inter alia , an August 14, 2009 letter from the WCB’s government relations manager to the Executive Assistant to the Minister of Employment and Immigration and a March 17, 2009 letter from a WCB government relations advisor to the Minister of Employment and Immigration. [ 37 ] Mr.

Emmons was not happy with this result. He wanted the original letters reissued with the original authors resigning. He also felt that the amendments the WCB made to these records did not reflect the true state of affairs. The letters contained only a reference to dementia, not any other diagnosis or medical opinion. He seems to have felt that these changes merely reflected the WCB’s

interpretation of Dr. Hoyte’s words, rather than the exact words themselves. He wanted changes made to all WCB documents that, in his view, inaccurately stated Dr. Hoyte’s diagnosis. [ 38 ] On March 28, 2017, Teresa Cunningham, Adjudicator with the Privacy Commissioner, issued an extensive analysis of Mr. Emmons’ requests and the WCB’s response and recommended an appropriate course of action for the WCB (“Order F2017-37”). She directed the WCB to determine whether it had kept copies of the original records and, if so, to return them to Mr. Emmons’ file and to link or annotate the relevant statements to Mr. Emmons’ correction request. She made it clear that Order F2017-37 encompassed only the

four records referred to in Mr. Emmons’ correction request. She also made the following recommendation: If the [WCB] has altered other records containing similar information to that which was the subject of the correction request, I recommend that it also retrieve the original records if it can and restore them to the Applicant’s file. [ 39 ] Ms. Cunningham directed the WCB to notify her of its compliance with Order F2017-37. [ 40 ] On May 15, 2017, the WCB advised Ms. Cunningham that it would comply with Order F2017-37. On May 30, 2017, it notified Mr. Emmons that it had done so (the “WCB Correction Decision”).

It provided him with copies of the four records it had annotated and stated: In addition, we are enclosing the original copies of records that were previously corrected/annotated. The original versions have now been restored to your files as recommended by the Adjudicator. [ 41 ] On October 30, 2017, Mr. Emmons wrote to Susan Morgenstern, the WCB’s FOIP Coordinator, stating that he believed the WCB’s review was incomplete and included only selected information. He referred to a letter dated October 19, 2006 from Dr. Hoyte to a Dr.

Kuschke that apparently said, “Please be advised that I have indeed referred the above named for review at the Cognitive Assessment Clinic. Hopefully, they can clarify the diagnosis and treatment.” Mr. Emmons then stated that: If Dr. Hoyte diagnosed Mr. Emmons with dementia, there would be no need to clarify the diagnosis. Also it should be noted that Dr. Hoyte was passing the patient on to the physician at the Cognitive Assessment Clinic, for medical investigation and the treatment. [ 42 ] Mr. Emmons also objected to the omission from his file of Dr.

Hoyte’s March 26, 2014 letter that stated: On review of my file, I can confirm that I did not make a definite diagnosis of dementia in this patient. In fact, given the long duration of the symptoms and the alleged improvement in his conditions, I think it fair to say there is no evidence for a neurologic or any organic cause of his cognitive complaints. [ 43 ] Mr. Emmons claims this additional letter supports his belief that Dr. Hoyte did not diagnose him with dementia. [ 44 ] On November 3, 2017, the WCB wrote to Mr.

Emmons saying, “if you have concerns with the WCB’s compliance with Order F2017-37 you should contact the office of the Information and Privacy Commission and discuss your concerns with their office”. [ 45 ] On November 30, 2017, Ms. Karen Hesson, the Privacy Commissioner’s Registrar of Inquiries wrote to Mr. Emmons and Ms. Farmer, stating: … if you believe that WCB has not complied with Order F2017-37, you may request a review of [the WCB Correction Decision] by completing the attached form.

If you have any questions about how to complete the form, please contact the Intake and Care Review unit of our office. [ 46 ] The WCB states it is unaware of any further steps taken by Mr. Emmons with respect to either Order F2017-37 or the WCB’s Correction Decision. 2. The Claim [ 47 ] Mr. Emmons starts with the assertion that he suffered a traumatic brain injury as a result of the Accident. He alleges that the WCB abused its power and authority in adjudicating the Claim by relying on incorrect medical statements and ignoring further medical evidence.

He claims that the WCB purposefully, intentionally and negligently continues to rely on erroneous information and will not update its files to reflect new information. He asserts that the WCB has a duty under the FOIP Act to ensure that its files are accurate and complete and that: The Defendant has the additional responsibility, when made aware of further or conflicting medical evidence or opinions, to correct their claim file, and to update their decisions based on accurate and complete information. [ 48 ] Mr.

Emmons summarizes his allegations at paragraph 7 of the Statement of Claim: Quite simply, the Defendant has made earlier erroneous decisions based on inaccurate information and decided as an institution to stick with it regardless of the new information discovered or provided, all to the detriment of the Plaintiff. [ 49 ] Mr. Emmons claims that the WCB failed to carry out the “spirit” of Order F2017-37 by making no effort to correct a broader range of documents that he asserts contain incorrect statements based Dr. Hoyte’s erroneous report and letter.

This, he claims, manifests bad faith and has affected his job prospects, income, mental and physical well-being and quality of life. [ 50 ] Mr.

Emmons refers to the Canada Revenue Agency’s alleged acceptance of a request for a disability tax credit, stating: The Defendant came back with a statement that although the cognitive issues were incorrectly attributed to dementia, they still refused to acknowledge that the Plaintiff suffers from a brain injury. [ 51 ] He seeks an Order directing the WCB to make any and all corrections, annotations, additions and deletions to his file necessary to be accurate and complete and to comply with the spirit of Order F2017-37 and the FOIP Act . He also seeks general damages of $500,000 and punitive damages of $500,000.

IV. Analysis

[ 52 ] In this application, the WCB seeks various forms of relief. First, it asks that I strike the Present Action pursuant to Rule 3.68. Alternatively, the WCB seeks

summary dismissal of the Present Action pursuant to Rule 7.3 on the grounds that it is barred by a limitations period. [ 53 ] In addition, the WCB seeks a vexatious litigation order barring Mr. Emmons from instituting further proceedings on behalf of himself or any other person without permission of the Court, pursuant to

section 23.1 of the Judicature Act , RSA 2000, c J-2 . A. Application to Strike [ 54 ] The WCB cites the conditions for striking set out in Rules 3.68(2)(

c) and (d): The conditions for the order are one or more of the following: ... (

c) a commencement document or pleading is frivolous, irrelevant or improper. (

d) a commencement document or pleading constitutes an abuse of process. [ 55 ] It also contends that the Present Action should be struck as res judicata . 1. Applicable Principles [ 56 ] An application to strike a claim pursuant to Rule 3.68 is subject to certain constraints: (

a) The application must proceed on the assumption that the pleaded facts are true unless they are manifestly incapable of being proven; (

b) No evidence is admissible on the application; (

c) The claimant must plead the facts upon which it relies in making its claim, and cannot rely on the possibility that new facts may emerge as the case progresses; and (

d) The claimant need not prove the facts pleaded at the time of the motion but they must be pleaded: Al-Ghamdi v Alberta , 2017 ABQB 684 at para 107 . [ 57 ] That said, while material facts pleaded are assumed to be true for the purpose of a Rule 3.68 application, the Court will not presume facts that are absurd, highly implausible, or patently ridiculous: Al-Ghamdi at paras 114-120 . [ 58 ] The test for striking under Rule 3.68 is whether the claim has a reasonable prospect of success: R v Imperial Tobacco Canada Ltd , 2011 SCC 42 at para 21 .

However, the applicant need not show beyond a reasonable doubt that the plaintiff’s claim will fail: Ernst v Alberta (Energy Resources Conservation Board) , 2014 ABCA 285 at para 15 . [ 59 ] Courts should err on the side of caution when considering this test in the context of novel, but arguable claims: Grenon v Canada Revenue Agency , 2017 ABCA 96 at para 6 . Nevertheless, not every claim deserves a trial and needless litigation should be avoided: Riccioni v Law Society of Alberta , 2017 ABQB 261 at para 150 . 2.

Jurisdiction [ 60 ] The WCB argues that this Court is not the appropriate venue to challenge its compliance with Order F2017-37. If Mr. Emmons was dissatisfied, he should have sought a further review by the Privacy Commissioner as indicated in Ms. Hesson’s November 30, 2017 letter. The WCB’s position is that the Present Action is an attempt to circumvent the prescribed process and is therefore improper. [ 61 ] The WCB also asserts that the affidavits filed by Mr. Emmons and Ms. Farmer demonstrate that the true purpose of the Present Action is to relitigate Mr. Emmons’ claim to have suffered a brain injury.

It argues that the Present Action is another attempt to procure judicial review of the WCB Decision, which falls within the exclusive jurisdiction of the WCB and its review bodies pursuant to the WCA . [ 62 ] Mr. Emmons argues that, while he chose not to pursue reconsideration of the WCB Correction Decision as indicated by Ms. Hesson, the Present Action represents a request to have the FOIP Act followed. He argues that the WCB did not maintain accurate records, that he has suffered injury as a result of this default and that he should be compensated. [ 63 ] I note that

section 73 of the FOIP Act provides that an Order of the Privacy Commissioner is final and is enforceable as a judgment of this Court. Section 74(3) of the FOIP Act provides that an application for judicial review of an order of the Privacy Commissioner must be made not later than 45 days after the person making the application is given a copy of the Order. Neither the WCB nor Mr. Emmons sought judicial review of Order F2017-37. [ 64 ] I am satisfied that Mr. Emmons knew what he had to do if he disagreed with the WCB Correction Decision. I agree with the WCB that it was improper for Mr.

Emmons to pursue the matter in this Court instead of following the appropriate procedure. [ 65 ] The WCB also claims that Mr. Emmons effectively is attempting to litigate his claim of a workplace brain injury in this Court rather than appealing the DRDRB Decision in accordance with the WCA . It argues that because this Court is not the proper forum, the

Present Action is “frivolous, irrelevant or improper” and is an abuse of process. [ 66 ] I am reluctant to characterize Mr. Emmons’ claim in the Present Action as frivolous, though a claim against the WCB for damages arising from failure to maintain proper records may be novel. I am mindful of the fact that a novel claim should not be struck if there is any reasonable prospect that it will succeed: Ernst v EnCana Corp , 2014 ABQB 672 ; Ohhavji Est v Woodhouse 2003 SCC 69 . Were it unclear whether the WCB might be liable, I would not strike Mr.

Emmons’ Statement of Claim: Harrison v XL Foods 2014 ABQB 431 . [ 67 ] However, I am also mindful of the comments of the Court of Appeal in its decision in Action 1. In Emmons v Alberta (Workers’ Compensation Board) , 2010 ABCA 393 , the Court of Appeal stated as follows at paras 4 and 5: By virtue of s. 17 of the [ WCA ], the respondent has exclusive jurisdiction to administer all matters under the [ WCA ] and is protected by a privative clause (s.17(2)).

This Court has determined that the issues advanced by the applicant in his statement of claim are within the exclusive jurisdiction of the respondent... [Citations omitted.] The applicant’s action is barred by the Act; therefore his appeal enjoys no prospect of success.

The application to file his appeal late is dismissed. [ 68 ] The Court of Appeal placed some emphasis on clause 17(2) of the WCA , which provides: No proceedings by or before the Board shall be restrained by injunction, prohibition or other process or proceedings in any court or are removable by certiorari or otherwise into any court, nor shall any action be maintained or brought against the Board, any employee or officer of the Board or any member of the board of directors in respect of any act or decision done or made in the honest belief that it was within the jurisdiction of the Board . [Emphasis added.] [ 69 ] This clause appears to be an absolute bar to Mr.

Emmons’ claim in the Present Action, in the absence of evidence that the WCB acted without honest belief in its jurisdiction. There is nothing in the material before me to suggest this. [ 70 ] The Legislature has sent a clear message in the WCA . Workplace injury disputes are to be resolved by the WCB and its review bodies and not, except in limited circumstances, by the Court. [ 71 ] Further, a statute may bar suits alleging that a statutory body or tribunal member has a private law duty of care to an individual: Ernst v Alberta Energy Regulator , 2017 SCC 1 .

In my view, section 17(2) of the WCA is such a bar. [ 72 ] Pursuant to s. 13.4(1) of the WCA , Mr. Emmons could have appealed a decision of the Appeals Commission to this Court on a question of law or jurisdiction. Section 17(2) of the WCA is no bar to such an appeal or to an application founded on reasonable apprehension of bias or want of procedural fairness: Dot Motor Inns Ltd v Alberta (Appeals Commission of the Workers’ Compensation Board) , 2002 ABQB 431 . Mr. Emmons has not chosen either of these paths. [ 73 ] The history of this litigation demonstrates that what Mr.

Emmons wanted all along was recognition of and compensation for an alleged brain injury. When those were not forthcoming, he commenced civil proceedings. In the Present Action, he seeks compensation through the application of policies and procedures specified in the WCA . However, section 21(1) of the WCA provides that “No action lies for recovery of compensation under this Act and all claims for compensation shall be determined by the Board.” [ 74 ] In my view, Mr.

Emmons seeks to do indirectly what the WCA prohibits him from doing directly by recasting a claim for compensation for brain injury as a failure on the part of the WCB to maintain adequate records. Such efforts rise to the level of an abuse of process. 3. Res Judicata [ 75 ] The WCB also asserts that the Present Action is an abuse of process because the claims within it are res judicata . It argues that Mr.

Emmons’ assertions of highhanded and abusive conduct by the WCB “without regard for the truth” reveal a further attempt to obtain judicial review of the DRDRB Decision, rather than appealing it to the Appeals Commission. It asserts that the Present Action is an attempt to relitigate matters already decided in prior actions before this Court. [ 76 ] Mr. Emmons disputes that res judicata applies. He argues that his previous actions were fundamentally different from the Present Action. Action 1 sought damages against the WCB for failure to compensate him properly for an alleged brain injury.

Action 2 was a defamation action. Action 3 was never served and is therefore simply a nullity. The Present Action is premised on alleged breach of duty to maintain accurate records. Mr. Emmons contends that res judicata cannot apply because Order F2017-37 and the WCB Correction Decision were not before the Court when Actions 1 and 2 were litigated.

He argues that he must be allowed to pursue his claim regarding the WCB’s statutory duty to maintain accurate and complete information regarding his claim. [ 77 ] The Court of Appeal has recognized that relitigating the same question between the same parties is a great evil: Tanner v McDonald , 2000 ABCA 206 . However, res judicata arises only if the question was fundamental to some earlier decision: Tanar Ind v Outokumpu Ecoenergy Inc , 1999 ABQB 597 .

Only if it is clear that a statement of claim raises a cause of action previously litigated between the parties and finally decided may it be struck: Wavel Ventures v Constantini 2003 ABCA 193 . While res judicata can apply to a matter not raised in a prior proceeding, it is not sufficient that the matter could have been raised before. The test is whether it should have been raised before: Hnatiuk v Assured Dev , 2012 ABCA 97 . [ 78 ] The causes of action pleaded in Action 1 and Action 2 are, on the surface, different from those advanced in the Present Action. But are they substantively different?

Put another way, is the Present Action a collateral attack on the decisions in Actions 1 and 2? [ 79 ] Mr. Emmons is self-represented. The Court needs to exercise some restraint in applying doctrines of issue estoppel and cause

of action estoppel to his actions, especially when the boundaries that define the application of these doctrines are not always clear. [ 80 ] Though I am inclined towards the view that Mr. Emmons could and should have raised the issue of the WCB’s record as part of Action 2, I am not prepared to conclude that his failure to do so amounts to cause of action estoppel. Action 2 alleged the tort of defamation based on Mr. Emmons’ assertions that the WCB maintained and disseminated false and inaccurate records.

While the Present Action also is premised on the assertion that the WCB failed to maintain accurate records, it advances a claim of breach of a statutory duty. [ 81 ] I must also consider whether res judicata can be applied to a decision of an administrative tribunal, such as the WCB. The Alberta Civil Procedure Handbook 2023 states at 3-189: Whether a decision of an administrative tribunal produces res judicata , or issue estoppel, or abuse of process or the bar on collateral attack, is a difficult question.

In general, administrative tribunals create issue estoppel, but not if they decide in a manifestly unfair and improper manner. They must have jurisdiction, but can bind if mistaken.

But the later court has a discretion over the estoppel, and relevant to that are the wording of the relevant Act, its purpose, appeals available, safeguards, expertise, and (especially) possible injustice. [ 82 ] At 3-190, the authors note that “The Workers’ Compensation Board is more like a court and has very full jurisdiction, even exclusive jurisdiction.” [ 83 ] For issue estoppel to apply, there must be a final decision on the same issue involving the same parties. The essence of Mr.

Emmons’ complaint is that the WCB’s records do not reflect his position that he suffered a brain injury as a result of the Accident. The WCB’s obligation to maintain accurate records is incidental to its responsibility to adjudicate on workplace injuries. The WCB has determined that it has complied with that duty and the Privacy Commissioner’s involvement supports that conclusion. Mr. Emmons has chosen not to take advantage of the available review and appeal procedures. Accordingly, I find that the issue of the adequacy of the WCB’s records has been determined and is not subject to challenge in this Court.

I am satisfied that the doctrine of res judicata applies in this case and that the Present Action therefore constitutes an abuse of process. 4.

Rule 3.68(2)(b) [ 84 ] Though the WCB did not refer to this provision, I am of the view based on the above analysis that the Present Action should be struck because it discloses no reasonable cause of action and has no reasonable prospect of success: Paraniuk v Pierce , 2018 ABQB 1015 . [ 85 ] As noted above, section 17(2) of the WCA purports to grant the WCB immunity from any action as long as its decisions and those of its employees and board members were made in the honest belief that they were acting within their jurisdiction and Mr. Emmons offers no evidence suggesting that this was not the case.

Further, as stated by the Court of Appeal in Action 1, section 17(1) provides the WCB with exclusive jurisdiction to determine all matters and questions arising under the WCA . Such determinations are final, conclusive and not subject to Court review. [ 86 ] On its face, the foundation of the Present Action is the WCB’s duty to maintain accurate records. In my view, section 17(1) of the WCA reserves the determination of accuracy to the WCB (in conjunction with the Privacy Commissioner) and operates to insulate the WCB from review of that determination by the Court. [ 87 ] Furthermore, it is clear from Mr.

Emmons’ Affidavit sworn April 25, 2022 that he continues to resist the WCB’s finding that he did not suffer a brain injury.

Section 13.1(1) of the WCA gives the DRDRB and the Appeals Commission exclusive jurisdiction to review that determination. The decisions of those bodies are final, conclusive and not open to question or review by this Court. [ 88 ] Together, these considerations lead me to conclude that Mr. Emmons’ Statement of Claim in the Present Action discloses no reasonable claim and should be struck. B.

Summary Judgment [ 89 ] In the alternative, the WCB argues that Mr. Emmons has brought the Present Action after the expiry of the limitation period in section 3(1) of the Limitations Act , which provides: 3(1) Subject to subsections (1.1) and (1.2) and sections 3.1 and 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim.

[ 90 ] Mr. Emmons wrote to the Privacy Commissioner on October 30, 2017 complaining that the WCB had not complied with Order F2017-37. Therefore, the WCB argues, Mr. Emmons knew no later than October 30, 2017 that the alleged injury for which he claims in the Present Action had occurred and was attributable to the conduct of the WCB. His claims that the WCB’s failure “has had devastating effects on the Plaintiff, his income, and quality of life” and the significant general and punitive damages claimed demonstrate that Mr.

Emmons believed that the alleged injury was sufficiently serious to warrant bringing an action. [ 91 ] Accordingly, the WCB argues that the two-year limitation period under section 3(1) (

a) of the Limitations Act began to run no later than October 30, 2017. The Statement of Claim in the Present Action was filed on October 4, 2021, nearly two years late. The WCB argues that it is entitled to absolute immunity from the claims alleged and to

summary dismissal of the Present Action pursuant to Rule 7.3. [ 92 ] Mr. Emmons argues, first, that the WCB’s failure to maintain proper records is a continuing failure, with the result that the claim is not statute-barred. [ 93 ] Further, Mr. Emmons claims to be a “person under a disability” for purposes of limitations. He notes that, while his claim in Action 2 was dismissed, this Court stated in JE v WCB, 2015 ABQB 460 at para 95 : In my view, the evidence before the Court raises a question as to whether Mr. JE was a “person under a disability” under s. 5 of the Limitations Act for any relevant period time.

The parties did not address this issue. [ 94 ] Mr. Emmons argues that, for this reason, the Court would have refused to grant

summary judgment based on a limitations defence and that nothing has changed to alter this line of reasoning. He takes the position that his capacity is an issue for trial. [ 95 ] If I am wrong in my conclusion that the Present Action should be struck pursuant to Rule 3.68, I would grant the WCB’s request for

summary dismissal on the basis that the applicable limitation period has expired. [ 96 ] Mr. Emmons’ Statement of Claim in the Present Action was filed well beyond the expiry of the two-year limitation period, which began no later October 30, 2017, when he wrote to the Privacy Commissioner complaining that the WCB had not complied with Order F2017-37. [ 97 ] Mr. Emmons has provided no evidence that he is a person under a disability as contemplated by

section 5 of the Limitations Act . He has provided no evidence that convinces me he was under a disability that prevented him from appreciating the significance of the factors enumerated in section 3(1) . On the contrary, his determination and inventiveness in attempting to recover compensation for the brain injury he claims to have suffered lead me to conclude that he has acquired significant mastery of Court processes. [ 98 ] I disagree with Mr. Emmons that section 3(3) of the Limitations Act applies. That

section provides: For the purposes of subsections (1)(

b) and (1.1)(b), (

a) a claim or any number of claims based on any number of breaches of duty, resulting from a continuing course of conduct or a series of related acts or omissions, arises when the conduct terminates or the last act or omission occurs; [ 99 ] As noted above, the WCB made the WCB Correction Decision to amend its records following the involvement of the Privacy Commissioner. It is the WCB Correction Decision of which Mr. Emmons complains. While the WCB has refused to make further amendments to its records, this does not constitute a continuing course of conduct. C.

Vexatious Proceedings Order [ 100 ] Though both parties framed their arguments in terms of whether Mr. Emmons should be declared a “vexatious litigant”,

Part 2.1 of the Judicature Act refers to “vexatious proceedings” and I will employ that language in this portion of my decision. [ 101 ] The WCB argues that the criteria for a vexatious proceedings order include those set out in O’Neil v Deacons , 2007 ABQB 754 at para 23 : (

a) The bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding. (

b) Where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious. (

c) It is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings. (

d) In determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action. (

e) The respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings. [ 102 ] The WCB argues that Mr. Emmons’ conduct meets the above tests. He has shown a propensity for filing duplicative proceedings. He has undertaken unnecessary and wholly unsuccessful appeals with no real expectation of relief. Accordingly, the WCB seeks a vexatious proceedings order against Mr. Emmons.

[ 103 ] Citing Jonsson v Lymer , 2020 ABCA 167 , Mr. Emmons claims that the landscape for vexatious proceedings orders has shrunk dramatically. He quotes as follows from paras 12 - 14: Vexatious litigant orders are the most extreme response to inappropriate litigation. Vexatious litigant orders are intended to be extraordinary in nature, and they should only be used when other procedural techniques are ineffective. They are not generally an appropriate method of specific case management.

A vexatious litigant order is not the appropriate response to litigation that is merely lacking in merit, absent a pattern of abuse. Merely because a self-represented litigant uses a process that is not in accordance with the Rules of Court or advances a claim without merit does not mean they are vexatious…. Merely because the self-represented litigant excessively or passionately believes in the merit of his or her cause does not make them vexatious. [ 104 ] Mr. Emmons argues that, when examined in detail, his proceedings are not actually duplicative.

A brief recap of those proceedings will be useful here. [ 105 ] Mr. Emmons was dissatisfied with the WCB Decision and with the DRDRB Decision. Instead of pursing the statutorily prescribed appeal to the Appeals Commission, he chose to launch Action 1, seeking damages against the WCB. That claim was dismissed because it disclosed no cause of action. This should have alerted Mr. Emmons to the importance of following the review and appeal procedures outlined in the WCA . [ 106 ] Next, Mr. Emmons focused on the WCB’s file and its communications with third parties.

He brought Action 2, alleging that those files and communications defamed him by stating he had dementia. That action was dismissed on the merits, the Court having found that the comments in the WCB’s files were substantially true. [ 107 ] Mr. Emmons did not pursue Action 3 and I see no need to discuss it further. [ 108 ] Having failed in Actions 1 and 2 he sought to extend the limitation period within which to launch an appeal to the Appeals Commission.

He also engaged the Privacy Commissioner in an attempt to have his the WCB’s records corrected. [ 109 ] His request for an extension of the appeal period was denied. His FOIP Act request was addressed by both the Privacy Commissioner and the WCB. He was unhappy with that outcome but did not take advantage of the opportunity to have the Privacy Commissioner consider the matter further. Instead, he launched the Present Action. [ 110 ] Had Mr. Emmons believed the Appeals Commission made an error of law or jurisdiction, he could have appealed to this Court. He did not.

He could have pursued judicial review of the decision of the Appeals Commission within the requisite time frame. He did not. [ 111 ] Mr. Emmons appears to have recognized that he will never receive compensation for the brain injury he alleges he suffered through the statutory procedures prescribed in the WCA . Instead, he attempts to circumvent the statutory process, to recast his claim for compensation for the alleged brain injury and to litigate it in this Court. [ 112 ] I am not prepared to exercise my discretion to make a vexatious proceedings order at this time.

But, in light of the pattern of behaviour described above, I wish to make the point that Mr. Emmons treads dangerously close to the line. I hope that this decision serves to caution him that the Court is aware of his pattern of unwillingness to follow statutorily prescribed procedures and to alert him that further attempts to recast the same unsuccessful action and pursue recourse against the WCB may well give rise to different results and more adverse consequences. V. Conclusion [ 113 ] In the result, the Present Action is struck.

If the parties cannot agree on costs, they are to provide me with written submissions, not to exceed five pages in length, within thirty days of the date of this decision. Heard on the 8 th day of December, 2022. Dated at the Town of Drumheller, Alberta this 16 th day of January, 2023. C.M. Jones J.C.K.B.A. Appearances:

John Emmons for the Plaintiff/Respondent Brian J. Murnaghan for the Defendant/Applicant