NORHEIM v CHIEF JUDGE OF THE PROVINCIAL COURT OF ALBERTA, 2021 ABQB 465
3.15: Originating application for judicial review
3.68: Court options to deal with significant deficiencies
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”) applied to strike three Actions filed by the Honourable D.C. Norheim, Judge of the Provincial Court of Alberta (“Judge Norheim”). All three Actions flowed from the Chief Judge’s decision not to reappoint Judge Norheim for another year as a part-time Judge pursuant to section 9.24 of the Provincial Court Act, RSA 2000, c P-3 (the “PCA”).
In April 2019, the Chief Judge informed Judge Norheim that he would not be reappointed for another year as a part-time Judge (the “Decision”). The Decision was defined as an administrative decision according to the section 41.1(a)(i2) of the Judicature Act, RSA 2000, c J-2 (the “Act”). Judge Norheim then made a complaint to the Alberta Judicial Council, which dismissed the complaint (the “Council Decision”). Judge Norheim did not seek Judicial Review of the Council Decision within the six-month limitation period set out in Rule 3.13(2). Instead, Judge Norheim filed: (1) an Originating Application for Judicial Review of the Decision; (2) a Notice of Constitutional Question seeking a declaration that section 9.24(4) of the PCA was unconstitutional; and (3) an Amended Notice of Constitutional Question seeking a declaration that sections 9.23 and 9.24 of the PCA were unconstitutional (collectively, the “Three Actions”).
The Court considered the Applicants’ Application to strike the Three Actions pursuant to Rule 3.68(2)(d) on the basis that they were an abuse of process. The Court first determined that Judge Norheim was entitled to seek Judicial Review of the Council Decision but did not do so.
The Court noted that one category of abuse of process is re-litigating settled issues regardless of the litigant’s motive. Wilson J. determined that the Three Actions were an attempt to re-litigate the Council Decision. The Court determined that this was not an appropriate circumstance where re-litigation was necessary to enhance the credibility and integrity of the judicial system. Wilson J. also determined that the Three Actions were a collateral attack on the Council Decision. As a result, the Court dismissed the Three Actions pursuant to Rule 3.68.View CanLII Details