Louw v. Hamelin-Chandler, 2011 ABQB 517

Court of Queen ’ s Bench of Alberta Citation: Louw v. Hamelin-Chandler, 2011 ABQB 517 Date: 20110816 Docket: 1103 09352 Registry: Edmonton Between: Deon F. Louw Applicant - and - Frances Hamelin-Chandler Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ Introduction [ 1 ] By originating application Edmonton neurosurgeon Dr.

Deon Louw seeks an order that the Court of Queen's Bench screen future complaints against him to the College of Physicians and Surgeons (CPSA) on account of alleged harassment by one Cheryl Hamelin-Chandler. Ms. Hamelin-Chandler is the former guardian and now executor of the estate of the late Jimmy Hamelin, once Dr. Louw's patient at the Workers Compensation Board ("WCB"). Dr. Louw also seeks a form of restraining order against Ms. Hamelin-Chandler. For reasons which follow I decline to give the orders sought. Background

[ 2 ] The history of what gives rise to this application is straightforward, the implications of giving the orders sought much less so. [ 3 ] Jimmy Hamelin sustained on-the-job injuries September 13, 1997. Many records before the court set out his injuries and treatment for them. The parties do not entirely agree on what the records mean, or if they are all the relevant records. On my review of what is before the court, it is obvious many more records exist, relevant or otherwise. [ 4 ] Briefs filed by the parties scrutinize the available records and debate their meaning.

No one seriously asks the court to make findings regarding injuries or treatment. I am asked however to make findings regarding Ms. Hamelin-Chandler's complaints which arise essentially from the records - she had no dealings directly with Dr. Louw - and from her numerous dealings with the CPSA. With that in mind, the medical records before the court chronologically reveal as follows: September 13, 2007 Mr. Hamelin sustained injuries. October 5, 2007 First record of Dr. Louw's attendance upon Mr.

Hamelin; under the heading "diagnosis" reference to a "diagnosed T2 fracture", "poor performance cognitively and has high pain levels"; numerous consultations suggested. October 10, 2007 Radiological report concluding no fracture at the thoracic spine. November 6, 2007 Radiological report concluding no abnormality at the thoracic spine. November 26, 2007 WCB Return to Work Assessment signed by Dr. Louw; on further evaluation, no abnormalities noted at the thoracic spine; comments re: "exquisitely positive Waddell's signs"; Mr. Hamelin's request for narcotic medication not recommended.

May 30, 2008 Medical Status assessment signed by Dr. Louw; nothing stated re: thoracic spine; much stated re: invalidity of Mr. Hamelin's presentation, and Dr. Louw's belief that Mr. Hamelin was demonstrating drug-seeking behavior. August 18, 2009 Grey Nuns Community Hospital Discharge

Summary; as to the thoracic spine, numerous mid-back pain complaints, reference to numerous thoracic spine issues, comment that x-rays showed mild anterior wedging of T2 and T3 vertebral bodies. December 21, 2010 WCB Second Opinion; "fractures of the vertebral bodies of T2, T3 and T4 are present... they are compatible with a mechanism of axial loading, such as the patient's [September13, 2007] fall".

Under the heading "Discussion", the comment: "On the basis of the CT scans performed the day of injury, the patient unequivocally had acute fractures in the superior endplates of T2 to T4 inclusive… it is somewhat surprising to me that these fracture were entirely negative on a routine bone scan performed 2 months after the injury." And under the heading "Summary", the comment:

"This patient unequivocally had acute mild vertebral fractures in the T2 to T4 that are visible on the CT scan obtained on the day of his injury." [ 5 ] On the basis of these apparently divergent records and reports I will conclude as little as possible: on September 13, 2007 Mr. Hamelin sustained a thoracic spine injury the diagnosis of which has been problematic; some records point clearly to fractures at the thoracic spine, while others suggest no abnormalities; as to Mr.

Hamelin, he was a patient whose clinical presentation gave pause regarding both diagnosis and treatment, particularly as to pain-relieving medications. Overall the records leave several questions unanswered. [ 6 ] It is fair to say that Ms. Hamelin-Chandler had some of these and perhaps other records in mind when she initiated her various complaints against Dr. Louw since mid-2009. It is to her multiple inquiries and complaints that I will now turn. [ 7 ] The evidence before the court discloses the following complaint chronology: July 29, 2009 CPSA Complaint Reporting Form against Dr. Louw, signed by Ms.

Hamelin-Chandler. February 3, 2010 CPSA letter to Ms. Hamelin-Chandler closing her complaint on the basis the evidence supported that Dr. Louw's care of Mr. Hamelin was medically appropriate. Comment also that: "Having said that, as with many complaints, there are always areas where the performance of the physician, while not falling below the standard of care, could have been better. [The CPSA'S] investigation did identify that there was a communication failure between Dr. Louw and yourself regarding your request for a meeting with Dr. Louw. [The CPSA] also identified that Dr. Louw's documentation of Mr.

Hamelin's narcotic prescription was not ideal." "As a resolution to your complaint, I have followed up with Dr. Louw and provided advice about proper documentation and effective communication. I believe that the feedback your complaint provides and the advice offered by the College will assist Dr. Louw in optimizing the management of future cases." March 10, 2010 Further CPSA Complaint Reporting Form against Dr. Louw, signed by Ms. Hamelin-Chandler, seeking further access to Dr. Louw's records and noting an alleged refusal that he meet with her. April 7, 2010 CPSA letter to Ms.

Hamelin-Chandler dismissing her March 10, 2010 complaint on the basis that under s. 55(2) (

f) of the Health Professions Act "… there is insufficient or no evidence of unprofessional conduct". April 9, 2010 Ms. Hamelin-Chandler re-submitted her March 10, 2010 complaint on the basis that records previously sought were not provided, and in any event appealing the March 10, 2010 complaint dismissal. July 18, 2010 Ms. Hamelin-Chandler made further submissions regarding records she alleged had not earlier been produced. August 16, 2010 Ms. Hamelin-Chandler's appeal from the February 3, 2010 complaint dismissal, was dismissed. November 1, 2010 Further CPSA Complaint Reporting Form against Dr.

Louw signed by Ms. Hamelin-Chandler alleging amongst other things discrimination and offensive conduct and referring to human rights abuse. November 26, 2010 CPSA letter to Ms. Hamelin-Chandler dismissing her November 1, 2010 complaint again on the basis of "…

insufficient of no evidence of unprofessional conduct". December 6, 2010 A complaint review committee of the CPSA was appointed to investigate Ms. Hamelin-Chandler's complaint that Dr. Louw had failed to produce all relevant records. January 17, 2011 The complaint review committee directed that an investigation be undertaken to determine whether Dr. Louw had properly responded to Ms. Hamelin-Chandler's requests for further notes and records. February 17, 2011 Ms. Hamelin-Chandler submitted a further complaint against Dr. Louw which is currently being adjudicated. March 16, 2011 CPSA letter to Dr.

Louw, noting the February 17, 2011 complaint and seeking his response, and noting specifically that: "Although we realize this complaint is similar to Ms. Frances Hamelin-Chandler's previous complaints about you, the enclosed contains additional information and reports not available at the time of the investigation regarding complaint file 090394.1.1." March 21, 2011 In connection with earlier complaints, the complaint review committee dismissed Ms. Hamelin-Chandler's request for a review on the basis no evidence existed to support any of her allegations.

Positions of the Parties [ 8 ] Against this background of diagnosis and treatment, and of complaints history, Dr. Louw seeks orders that (

a) Ms. Hamelin-Chandler be restrained from contacting him, directly or indirectly through co-workers or family; and (

b) that any future complaints regarding his dealings with Mr. Hamelin be "screened" by this Court prior to any CPSA consideration of them. He seeks that the latter order apply also to any related inquiries Ms. Hamelin-Chandler may make of the Office of the Information and Privacy Commissioner (OIPC) and the Human Rights Commission (HRC). [ 9 ] In support of his application Dr. Louw deposes much as to Mr. Jimmy Hamelin's alleged mis-behaviours. Of course Mr. Hamelin is dead and cannot answer. In any event, any evidence regarding his dealings with Dr. Louw is of limited if any relevance. [ 10 ] As to Ms.

Hamelin-Chandler, Dr. Louw says she is obsessed with Mr. Hamelin's affairs. Owing to her "obsession" Dr. Louw says, Ms. Hamelin-Chandler launched a "campaign of harassment" against him in July, 2009. It consisted of, he says, "the filing of repetitive and groundless complaints against me with the CPSA in regard to Mr. Hamelin's care, and my records of that care". [ 11 ] Dr. Louw says he has experienced significant emotional stress dealing with Ms. Hamelin-Chandler's complaints, and with the spectre they will continue. He says he has felt compelled to stop practising at the WCB's Millard Centre.

He says he has sustained "significant professional and financial loss" as a result. He goes on to say that owing to Ms. Chandler's actions he has sought medical and psychological assistance and, in future, he states: I believe that the stress which will be caused by having to address [Ms. Hamelin-Chandler's] repetitive, groundless complaints in future may force me from medical practice altogether. [ 12 ] This is all of Dr. Louw’s evidence on these points. No further particulars are offered.

[13] Dr. Louw says that Ms. Hamelin-Chandler's actions have harmed others, in that owing to her actions he has been unable toassist chronic pain and head injury patients at the Millard Centre as a result of the stress and upset inflicted upon him. Dr. Louw says hebelieves Ms. Hamelin-Chandler will make further complaints to the CPSA, and to the Office of the Information and PrivacyCommissioner, and to the Alberta Human Rights Commission. Dr. Louw says he believes Ms.

Hamelin-Chandler will attempt to contacthim directly or indirectly, and will try to harass him, his family, and his colleagues, at his place of work and at his residence. [14] Dr. Louw argues that when assessing the evidence in support of his application the Court should be mindful of the decision inRJR-MacDonald Inc. v.

Canada (Attorney-General) (SCC), [1994] 1 SCR 311 and the tests stated for the granting ofinterim injunctive relief: is there a serious question to be tried; would declining relief cause irreparable harm to the applicant; and of theparties, which would suffer greater harm from the granting or refusal of the orders sought? [15] For her part, Ms. Hamelin-Chandler denies any persistent or improper attempts to contact Dr. Louw. She denies any present orfuture intent to contact him or his co-workers or family. As to her history for complaints to the CPSA, Ms.

Hamelin-Chandler denies thecomplaints have been inappropriate and/or repetitive. And while she denies any current intention to contact Dr. Louw and/or pursuefurther, related complaints, Ms. Hamelin-Chandler argues that a restraining and/ors screening order is unnecessary and inappropriate. [16] Ms. Hamelin-Chandler cites s. 55(2) of the Health Professions Act RSA 2000 c. H-7, which permits a complaints director ofthe CPSA, "if satisfied that the complaint is trivial or vexatious", to dismiss the complaint. Likewise, s. 66(2)(

b) of the Act provides thatfollowing an investigation of a complaint, the complaints director must refer the matter to a hearings director for a hearing, or (

b) dismiss the complaint, if in the opinion of the complaints director (

i) the complaint is trivial or vexatious, or (ii) there is insufficient or no evidence of unprofessional conduct. [17] The CPSA has not dismissed any of Ms. Hamelin-Chandler's complaints on the basis they have been trivial or vexatious. [18] Ms. Hamelin-Chandler challenges this Court's jurisdiction to make the screening order sought. She does not so muchchallenge Dr. Louw's threshold ability to make an appearance in this Court. In his initial materials filed June 28, 2011 Dr. Louw madedetailed submissions with regard to the commencement of his application. Through counsel Ms.

Hamelin-Chandler voiced no particularobjection to this threshold commencement point. The proceeding having been commenced, however, Ms. Hamelin-Chandler challengesthe Court's jurisdiction to make the orders sought, on their merits. [19] Fundamentally it is argued the screening order would interfere with the exclusive statutory obligations of the CPSA as aself-governing body under the Health Professions Act, acting in the public interest, to adjudicate complaints against its members. [20] Dr. Louw denies that he asks the Court to interfere with the CPSA's ability or mandate to consider complaints.

As he puts it inhis brief filed July 21, 2011: If the Court determines that [Ms. Hamelin-Chandler's] complaints are new, Ms. Chandler may make them. If the Court determines thatthe complaints have previously been adjudicated, Ms. Chandler may not make them, [and] the CPSA will not have to waste its timeconsidering them … the Applicant has not attempted to pre-empt the College's ability or mandate to consider complaints, but rather, hassought to preclude Ms. Chandler from bringing the same complaints over and over again in the future. [21] Dr.

Louw also asks the Court to intervene because it has jurisdiction to order costs against Ms. Hamelin-Chandler, should theCourt conclude any new complaint should be screened from going forward. Dr. Louw argues the CPSA's adjudicative bodies are unableto award costs as a deterrent to multiple, repetitive complaints, or to declare a complainant a kind of 'vexatious litigant'. Assuming this isall so, it is equally important that there be evidence as to why it is so. As noted by Ms. Hamelin-Chandler, there is no evidence the CPSAwas given notice of Dr.

Louw's application, for example to address such issues as its ability to seek costs against a member of the publicseeking to have her complaints/appeals adjudicated. Or to address why, when it has the power to dismiss a complaint by a member of thepublic on the basis it is "trivial or vexatious", no such power apparently exists to declare that a member of the public is more generally a

kind of "vexatious litigant". Or to address whether the CPSA, as the regulator of a self-governing profession acting in the public interest, even wants such powers. And not least, to address whether the CPSA would even support the screening order Dr. Louw seeks. Decision [ 22 ] Dr. Louw submits he intends not to preempt the CPSA's ability or mandate to consider public complaints. That however would be the effect of the order he seeks. Any such order would plainly interfere with the CPSA's statutory jurisdiction to deal with Ms. Hamelin-Chandler's complaints/appeals. As is persuasively argued in Ms.

Hamelin-Chandler's brief, in its handling of complaints/appeals the CPSA has not only unique statutory obligations, but indeed has the special expertise, special powers of investigation, full knowledge of relevant history, and special mandate to protect the public. [ 23 ] As to any alleged shortcomings in the CPSA's jurisdiction to deal with costs and/or vexatious litigants, I find no merit to the suggestion that any such shortcomings justify this Court intervening to make orders the effect of which would be to intimidate Ms.

Hamelin-Chandler from pursuing her own statutory rights. [ 24 ] Moving past the CPSA, Dr. Louw has sought similar screening orders to prevent complaints against him through inquiries with the offices of OIPC and HRC. For the same reasons which apply to the CPSA - not to mention the utter lack of evidence of anything allegedly improper on Ms. Hamelin-Chandler's part with regard to OIPC and HRC - those orders sought are declined. [ 25 ] Given my findings to this point, it is strictly-speaking unnecessary to deal with the RJR-MacDonald analysis put forward by Dr. Louw.

I will however make the following observations. [ 26 ] Even if the court had some extraordinary power to screen complaints, and assuming an RJR-MacDonald approach is appropriate, I would find unhesitatingly that Dr. Louw has failed to make a case for anything in the nature of interim injunctive relief. [ 27 ] I would not find a serious question to be tried. As suggested earlier, the question is not whether she was correct, but whether Ms. Hamelin-Chandler had reason to bring her multiple complaints/appeals. The “serious question” therefore not established is whether Ms.

Hamelin-Chandler’s complaints/appeals are so obviously without merit and indeed vexatious – amounting to harassment – that they justify the extraordinary order this Court is called on to make. There is uncertainty in the medical records – if the physicians cannot agree on the records, how then can Ms. Hamelin-Chandler be criticized for asking questions about them? And as to the history of CPSA complaints – it must be remembered that the first complaint resulted in some findings adverse to Dr. Louw, and of course as noted earlier, the CPSA has not found Ms.

Hamelin-Chandler’s subsequent complaints to be trivial or vexatious. [ 28 ] I am even less convinced that the tests of irreparable harm and balance of convenience could be resolved in Dr. Louw's favour. I am mindful of Dr. Louw's uncontradicted affidavit evidence on the question of harm. Given my findings however on the initial part of the RJR-MacDonald test, I will only say that on the facts before me it is difficult to accept at face value that Dr. Louw could reasonably be so affected by Ms. Hamelin-Chandler's actions that he would curtail his practice or indeed seriously consider giving up practice entirely.

Most charitably I can only conclude that Dr. Louw's evidence of harm falls well short of any standard that would justify the relief sought. [ 29 ] Finally as to balance of convenience, the impact of an order preventing Ms. Hamelin-Chandler from fully exercising her statutory rights outweighs any harm to Dr. Louw that I find exists. [ 30 ] It remains to deal with Dr. Louw's application for a restraining order. There is little evidence that Ms. Hamelin-Chandler has sought, or will seek in the future, to have any contact with Dr. Louw directly or indirectly through co-workers or family members.

I have taken into account the evidence of Ms. Hamelin-Chandler's apparent efforts to call Dr. Louw on June 15, 2011. Stacked up against that apparent event is Ms. Hamelin-Chandler's own uncontradicted evidence that she was provided Dr. Louw's cell phone number and what she assumed was a residential address, neither of which she used to access him in any way, shape or form although she had ample opportunity to do so. On that and all of the other evidence before me no restraining order is justified.

[ 31 ] Dr. Louw fails in seeking the orders applied for. I note that in her brief Ms. Hamelin-Chandler seeks full indemnity costs. If the parties are unable to agree, they may speak to costs within 60 days of the release of this memorandum. Heard on the 30 th day of June, 2011. Dated at the City of Edmonton, Alberta this 16 th day of August, 2011. Peter Michalyshyn J.C.Q.B.A. Appearances: William B. Hembroff for the Applicant W. Benjamin Russell for the Respondent