RVB v AL, 2012 ABQB 100

Court of Queen ’ s Bench of Alberta Citation: RVB v AL, 2012 ABQB 100 Date: 20120213 Docket: 1101 11255 Registry: Calgary Between: RVB Plaintiff - and - Dr.

AL, AL Professional Corporation, Alberta Health Services operating as the Peter Lougheed Centre, College of Physicians and Surgeons of the Province of Alberta, Her Majesty the Queen in Right of Alberta as represented by the Minister of Justice and the Attorney General of Alberta, and the Chief of Police Rick Hanson Defendants Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of J.T. Prowse, Q.C.

Master in Chambers _______________________________________________________

[ 1 ] This issue in this case is whether a plaintiff can sue a regulator, alleging that his injury was caused or contributed to by the regulator’s failure to properly carry out its function. [ 2 ] The plaintiff, Mr. RVB, asserts that while he was a patient of Dr. AL, he was sexually assaulted by Dr. AL. Mr. RVB asserts that various complaints had earlier been made about Dr. AL to Dr. AL’s regulator, the College of Physicians and Surgeons (the “College”). He sues the College alleging that, if the College had properly investigated those earlier complaints, it would have revoked Dr.

AL’s licence to practice medicine, thereby preventing the assaults on Mr. RVB. [ 3 ] The College is applying under Rule 3.68(2)(

b) to strike the Statement of Claim for failure to disclose a reasonable claim. In this type of an application, the allegations of Mr. RVB are to be treated as accurate. In other words, the allegations have not been proven, but will be accepted as true for the purpose of this application only. The leading case: Cooper v Hobart [ 4 ] In 2001 the Supreme Court of Canada issued its decision in Cooper v Hobart , 2001 SCC 79 , 2001 CarswellBC 2502, 206 D.L.R. (4 th ) 193, [2002] 1 W.W.R. 221. It considered claims by investors against a regulator, the Registrar under British Columbia’s Mortgage Brokers Act .

The investors asserted that financial irregularities involving a broker had come to the Registrar’s attention in August of 1996, but it did not suspend the broker’s licence until October of 1997. Losses incurred between those two dates were said to be due to the negligence of the regulator in not revoking the licence earlier. The Supreme Court of Canada dismissed the claim, ruling that the Registrar owed no duty under private law to the investors. While the losses to the investors may have been forseeable, there was insufficient proximity between the investors and the Registrar to found a duty of care.

Cooper v Hobart applied in Alberta in the Nettie decision [ 5 ] The Cooper decision was applied in the Alberta decision of Nettie v Stiles , 2010 ABQB 14 , 2010 CarswellAlta 44, 23 Alta.L.R. (5 th ) 104, [2010] 8 W.W.R. 492. In Nettie , an attempt was made to certify a class action against, amongst other defendants, the Alberta College and Association of Chiropractors (“ACAC”).

As a part of that certification process, the court was required to determine whether the proposed proceedings disclosed a cause of action against the ACAC. [ 6 ] Applying Cooper, the court in Nettie ruled that there was no cause of action against the ACAC. The court examined the governing statute, the Health Professions Act , and determined that there was insufficient proximity between the proposed class action plaintiffs and the ACAC. [ 7 ] The Nettie decision causes difficulty for Mr.

RVB, the plaintiff in this action, because the defendant he is suing, the College, is also governed by the Health Professions Act . As the analysis of the Health Professions Act in Nettie reached a conclusion that no private law cause of action exists against ACAC, why would not the same conclusion apply to Mr. RVB’s proposed action against the College? Distinguishing Nettie based on whether the claim is an attack on a regulator ’s policy decision [ 8 ] Counsel for Mr.

RVB asserts that in Nettie , the gist of the action was an attempt by the proposed class action plaintiffs to challenge the ACAC’s policy decision in approving certain treatment procedures, which the plaintiffs asserted were too risky. In this case, Mr. RVB is not attacking the College’s policies, but rather its conduct in investigating whether its member, Dr. AL, was conducting himself properly. [ 9 ] I do not find this suggested distinction of Nettie to be persuasive.

In Cooper , the Supreme Court of Canada declined to recognize a cause of action likewise based on assertions that the Registrar under the Mortgage Brokers Act had failed to properly

investigate and regulate a particular broker. Distinguishing Nettie because it did not deal with a failure to investigate complaints [10] Four years after dismissing claims against a regulator in Cooper, the Supreme Court of Canada allowed a plaintiff’s claim against a regulator in Finney v Barreau du Quebec, 2004 SCC 36 , [2004] SCC 36, 2004 CarswellQue 1337, 240 D.L.R. (4th)410, 24 C.C.L.T. (3d) 1, 321 N.R. 361.

What led to the different result in Finney? [11] Finney was decided under the Civil Code of Quebec, but the court observed in its decision that the defendant would likewisehave been liable at common law. [12] In Finney a client complained to the Barreau, the regulator of lawyers in Quebec, about the incompetence of her lawyer. TheBarreau did not investigate the complaint in a timely and proficient manner. As a result the client sued the Barreau and was awardeddamages at trial.

This award was upheld by the Supreme Court of Canada. [13] It seems that the lack of proximity, which prevented the plaintiffs from establishing a private law cause of action in Cooper,was overcome by the fact that the plaintiff in Finney established a direct and proximate relationship with the regulator through the complaints process. [14] While Nettie did not involve a failure to investigate complaints, Justice Belzil made the following comment on Finney atparagraph 17 of his decision: “In [Finney], the Supreme Court of Canada accepted that in exceptional circumstances, a course of dealingsbetween a plaintiff and a statutory regulator may create a relationship of proximity”.

The course of dealings between Mr. RVB and the College [15] There was no course of dealings between Mr. RVB and the College. He never complained to the College about Dr. AL’sconduct. [16] However, the pleadings assert that other patients and colleagues of Dr. AL had complained about his conduct to the College, butnothing was done. Counsel for Mr.

RVB argues that, once complaints are made to a regulator like the College, then a relationship ofproximity sufficient to support a cause of action is created, not only with respect to the complainant, but to other patients of the physicianin question. [17] In other words, it is asserted that Mr. RVB can shelter his cause of action under the complaints made by other patients andcolleagues. Is this an arguable proposition? In my view it is. I have not been provided with any case law which supports this proposition,but neither have I been cited case law to the contrary.

Onus of proof [18] As indicated at the outset, the College has brought this application to strike the claim against it pursuant to Rule 3.68(2)(b). Bothsides agree that the application to strike should only succeed where it is plain and obvious and beyond doubt that the Statement of Claimdiscloses no reasonable claim. [19] It is not appropriate to strike out a claim on a preliminary application simply because the claim is novel.

Novel claims should betested in the context of a trial: Rewega (Next Friend of) v Rewenga, 2005 ABCA 365, 2005 CarswellAlta 1555, 380 A.R.224.Accordingly I dismiss the College’s application to strike the claim against it.

Costs [ 20 ] If counsel cannot agree as to costs, they should approach me within 30 days for a ruling in that regard. Heard on the 08 th day of February, 2012. Dated at the City of Calgary, Alberta this 13 th day of February, 2012. J.T. Prowse, Q.C. M.C.C.Q.B.A. Appearances: Michael G. Massicotte Borden Ladner Gervais for the Applicant / Defendant College of Physicians & Surgeons of Alberta Richard H. Edwards Anatoliy Vlasov Pipella Law for the Respondent / Plaintiff RVB