ET v Rocky Mountain Play Therapy Institute Inc, 2016 ABQB 108

Court of Queen ’ s Bench of Alberta Citation: ET v Rocky Mountain Play Therapy Institute Inc, 2016 ABQB 108 Date: 20160219 Docket: 1201 07908 Registry: Calgary Between: E.T. Plaintiff - and - Rocky Mountain Play Therapy Institute Inc. and Ken Kwan Defendants - and - I.T. Third Party Corrected judgment: A corrigendum was issued on May 25, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madame Justice J. Strekaf _______________________________________________________ I.

Introduction [ 1 ] This appeal arises in an action commenced by ET against Ken Kwan and his employer, Rocky Mountain Play Therapy Institute Inc., alleging breach of contract, defamation and negligence arising out of a retainer by ET in May 2011 to have Mr. Kwan provide psychological counselling services for ET’s son M, who was then 6 years old. ET appeals a decision of Master Mason dated June 22, 2015 in which she: 1. granted Mr. Kwan’s application for leave to file an Amended Statement of Defence to plead justification;

2. directed Alberta Child and Family Services (“CFS”) to produce its entire unredacted file concerning M for her review to determine what portions should be produced in this action, guided by s. 126.11(9) of the Child, Youth and Family Enhancement Act ; 3. concluded that six records from M’s school counselling file (“Counselling File”) that were produced in a proceeding commenced against Mr. Kwan by the College of Alberta Psychologists were relevant and material to the issues in this action and could be disclosed by Mr.

Kwan in a Supplemental Affidavit of Records; and 4. directed that ET, within 30 days, review all of the relevant documentation he may have in hard copy or electronically and disclose any further relevant and material records that are or have been under his control in a sworn Affidavit of Records. II. Background [ 2 ] The background to this appeal is clearly and concisely set out in the following excerpt from paras 1 to 6 of the Master’s decision, which I adopt: 1.

In the spring of 2011, the plaintiff retained Ken Kwan to provide psychological counselling services for his six year-old son, M The plaintiff advised Mr. Kwan that M had been having emotional outbursts and expressing anxiety and reluctance about attending school, following time spent in his mother's custody. He further advised that M had told him that his mother had left him alone in the house. Mr. Kwan had several sessions with M and issued a written report on November 16, 2011. 2. On June 21, 2012, the plaintiff, ET commenced this action against Mr.

Kwan and his employer, Rocky Mountain Play Therapy Institute Inc. ET alleges that Mr. Kwan breached the contract for his services, that Mr. Kwan defamed him in the course of and after providing his services, and was negligent. 3. The defamation portion of the claim alleges that Mr. Kwan made verbal statements as well as written statements in his November 16, 2011 report suggesting that ET "coached" his son to make untrue, negative statements about his mother's parenting. ET alleges that the verbal statements were published to staff at M's school and to Child and Family Services on May 17th and 18th, 2011.

He alleges further verbal publications occurred to Child and Family Services after these two days, on June 6th, September 14th and October 13, 2011. ET pleads that Mr. Kwan had no reasonable and probable grounds for believing the contents of the coaching allegations that he reported to Child and Family Services. 4. Mr. Kwan denies making the publications, and alternatively pleads that if he made them, they were not capable of bearing any defamatory meaning. He pleads consent by ET to the preparation and publication of his written report, and qualified privilege. Mr.

Kwan also denies that ET suffered any damages, and alleges that ET's reputation could not have been diminished any further, as it has already been lowered due to ET's own actions. 5. ET also made a complaint to the College of Alberta Psychologists ("CAP") in regard to Mr. Kwan and a hearing was scheduled on four charges. Mr. Kwan pled guilty to two of the charges. The other two charges were withdrawn. 6. Mr.

Kwan now applies for the following relief: permission to use six records from M's school counselling file that he obtained through the CAP proceeding, in this litigation; leave to amend his defence to allege truth/justification in response to the defamation allegations; the production by Child and Family Services of its complete, un-redacted file concerning M; that ET be compelled to answer undertakings 8 and 11 given at questioning; and if necessary, the variation or setting aside of an order granted by Master Prowse on May 21, 2014 relating to the production of M's school records. III.

Standard of Review and Record [ 3 ] The Court of Appeal in Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 , 524 AR 382 stated that the standard of review on an appeal from a Master on all issues is correctness. [ 4 ] Rule 6.14(3) of the Rules of Court provides that an appeal from a Master’s order is an appeal on the record of proceedings before the Master and additional evidence that is relevant and material in the opinion of the judge hearing the appeal. No additional affidavit evidence was filed by either party in this case.

ET filed a document entitled Addition to Plaintiff Brief on January 13, 2016 that attached a document published by Alberta Health Services dealing with Subpoenas. Mr. Kwan does not object to that document being referred to on this appeal. IV. Analysis [ 5 ] ET is representing himself on this appeal. Much of his brief and portions of his oral submissions related to issues that will be before the trial judge, which are beyond the scope of this appeal, and therefore will not be addressed by me. ET alleges that the Master was biased against him and that this tainted her decision.

I will first address the allegations of bias and then review the three aspects of the order granted by the Master raised before me on this appeal. 1. Bias [ 6 ] ET submits that the Master was biased in her decision; he used inflammatory language to characterize her as ignoring “serious child abusing crimes” and glorifying “the illegal actions and criminal conduct of the defendants”. I have reviewed the transcripts from the hearings conducted before the Master on February 23, 2015, March 30, 2015 and May 14, 2015, her detailed 13 page written

decision issued on June 22, 2015 and the briefs and submissions on this appeal. The onus is on a party alleging bias to demonstrate thatthe conduct gave rise to a reasonable apprehension of bias, being a “leaning, inclination, bent or predisposition toward one side oranother or a particular result”: Nazarewycz v Dool, 2009 ABCA 70, 448 AR 1 at para 63. I see no indication on the materials before meof any bias on the part of Master Mason in her conduct of this matter. 2. Amendment of the Statement of Defence [7] The Master granted Mr.

Kwan leave to amend his Statement of Defence to plead truth or justification in response to theallegations in the Amended Statement of Claim that Mr.

Kwan defamed ET by publishing a statement that ET coached M to lie or speaknegatively about M’s mother’s parenting. [8] The Master correctly applied the low threshold adopted in this jurisdiction that the Court will usually permit pleadings to beamended unless they are hopeless, doing so would cause injustice or prejudice not compensable in costs, a limitation has passed or therewas an element of bad faith associated with the failure to plead the amendments in the first place: Dow Chemical Canada Inc v NovaChemicals Corp, 2010 ABQB 524, 495 AR 338 at paras 20 – 21. [9] It is recognized that a defendant in a defamation action who initially does not plead justification and subsequently discoversparticulars of this defence should be permitted to amend its defence: Parkland Chapel Ltd v Edmonton Broadcasting Co (1964), (AB KB), 48 WWR 303 (Alta SC) at para 48.

The Master correctly concluded that Mr. Kwan had met the low evidentiarythreshold to justify an amendment. Whether that defence will be successfully established is a matter to be determined at trial. 3. Use of School Records from the CAP Proceeding [10] The Master concluded that Mr. Kwan was at liberty to use in this action six records that he had obtained in the course of theproceeding arising from the complaint made by ET to CAP.

She reviewed the documents, five of which were letters authored by ET(dated April 14 and 28 (2), May 10 and 19, 2011) and directed to M’s school counsellor, teacher and/or principal relating to M’semotional issues. The sixth document was a page of counselling notes that appeared to record statements made by M to Ms. Taylor, theschool counselor. The Master noted that neither M’s mother nor any of the parties who produced the records by compulsion in the CAPproceeding objected to their use. She determined that the records were relevant and material to the issues in this litigation, includingwhether Mr.

Kwan had reasonable and probable grounds for the coaching allegations he reported to CFS, the availability of the defenceof qualified privilege, and whether ET’s reputation could have been lowered by the statements. She found that neither Master Prowse’sConsent Order of April 28, 2014 that limited production by the School Board to communications on May 17 and 18, 2011 nor theprovisions of the Freedom of Information and Protection of Privacy Act (“FOIPP”) precluded use of the records. [11] ET argues on several grounds that the records were improperly or illegally obtained.

First, he submits that production of therecords was inconsistent with a Consent Order granted by Master Prowse on May 21, 2014 which provided that the “Calgary CatholicSchool Board shall disclose … any records of communications between Ken Kwan and the following individuals at the St Brigid School:(

a) Judy Yurchuk, (

b) Paula Nardini, or (

c) Rosanna Taylor, on or about 17 or 18 May 2011”. [12] While the two proceedings have some overlapping issues, they have different functions and do not involve identical parties.This action is a civil lawsuit commenced by ET against Rocky Mountain Play Therapy Institute Inc. and Ken Kwan, who third partiedM’s mother. The Consent Order was an interlocutory order dealing with production of records in the action in a different context thanwas before Master Mason.

The Consent Order did not constitute a determination that records not identified in and required to beproduced by that Order could not be used in this action. It merely determined what records were required to be produced by the SchoolBoard at that stage of the proceedings. [13] The CAP proceeding was a disciplinary proceeding before a Hearing Tribunal commenced by CAP against Mr. Kwanpursuant to the Health Professions Act. The Consent Order did not limit Mr. Kwan’s right to take steps to defend himself in the CAPproceeding.

Master Mason correctly concluded that the Consent Order in this action did not preclude Mr. Kwan from seeking productionof records from the Counselling File in the course of defending himself in the CAP proceeding or from seeking to use the records in thisaction. [14] Second, ET submits that the records were produced “illegally” in the CAP proceeding. Ms.

Taylor was served on September10, 2014 with a Notice to Attend and Produce pursuant to s 73 of the Health Professions Act, which states: 73 The investigated person may call any person, including the complainant, as a witness and give to any person, including thecomplainant, a notice to attend or a notice to attend and a notice to produce at the hearing any document, substance or thing related to thesubject-matter of the hearing. [15] Prior to the hearing, the Counselling File was produced by the School Board to Mr.

Kwan’s counsel, with the knowledge ofcounsel for CAP, on the basis that a sealing order would be sought at the hearing. The hearing did not proceed on October 15, 2014, asMr.

Kwan entered into an agreement with counsel for CAP pursuant to which he pled guilty to inadequate note-taking with respect to hiscontact with CFS and to failing to ensure he had ongoing informed consent, in exchange for withdrawal of the balance of the chargesagainst him. [16] The Master found at para. 45 that production of the Counselling File in advance of the scheduled hearing, rather than by Ms.Taylor at the hearing, was not “untoward or improper, or the subject of a conspiracy as ET asserts.

Rather, it appears to be a reasonableapproach to facilitate an efficient hearing and possibly avoid the need for the attendance of the witness. These are not nefarious butlaudable aims”. [17] It is this production prior to rather than at the hearing that ET contends is illegal. While the records were produced in advance,they were relevant and presumably would have been produced at the hearing had it proceeded. Where a subpoena has been issued and

documents covered by the subpoena are produced in advance to counsel for the purposes of the proceeding, without objection by any of the parties to the proceeding, I do not consider that production to be “illegal” or arising out of conduct by Mr. Kwan. I am satisfied that the records were documents that Mr.

Kwan was entitled to have access to in order to address the CAP Proceedings, which arose out of a complaint made by ET The subject of allegations of misconduct is entitled, and can reasonably be expected, to take steps to respond to the complaint. [ 18 ] The Alberta Court of Appeal in Edmonton (Police Service) v Alberta (Law Enforcement Review Board) , 2014 ABCA 267 , 580 AR 165 at para 41 recognized that a form of implied quasi-undertaking exists in respect of documents in a disciplinary hearing that precludes their use without a court order or specific permission from the tribunal. [ 19 ] Having been provided with those records in connection with the CAP Proceeding, Mr.

Kwan was at liberty to seek relief from the implied undertaking, which he did by application before Master Mason. The Master concluded that the records were relevant and material to the issue in this litigation and that the “public interest in seeing justice done in this litigation outweighs the privacy interest of the participants in the CAP proceeding”, an assessment with which I agree. [ 20 ] Third, Master Mason considered whether disclosure of the Counselling File breached any provisions of FOIPP.

In so doing, she considered the decision of Justice Slatter (as he then was) in Alberta (Director of Child Welfare) v CHS , 2005 ABQB 695 , 385 AR 119. Master Mason correctly noted that this was not a case subject to

Part 1 of FOIPP where records were sought by way of an access to information request. She correctly concluded that disclosure of the records in the context of the CAP Proceeding was permissible pursuant to ss 3(

c) and (

d) and 40(1)(

f) and (

g) of FOIPP. [ 21 ] The Master correctly concluded that Mr. Kwan should be at liberty to use these records in this action. If there are confidentiality concerns associated with how those records should be treated at trial, those can be raised with the trial judge in due course. 4. Production of the CFS File [ 22 ] The Master directed that the entire unredacted CFS file be produced for her review. She noted that an extract from that file suggested that during the time that Mr. Kwan was counselling M that he had been communicating with CFS about whether ET had been coaching M to speak negatively about his mother.

This is a central issue in this litigation in which ET alleges that Mr. Kwan defamed him to CFS. ET refused a request at questioning to produce an unredacted version of this file from inception to December 5, 2011. ET did not, and does not, object to CFS providing its unredacted records from May 17, 2011 when it is alleged that Mr. Kwan made his first publication to CFS but takes the position that earlier portions of the file are irrelevant. Mr.

Kwan submits that the earlier portions of the file contain information about earlier coaching behavior that would be probative of the issues between the parties. [ 23 ] Master Mason concluded that the excerpt from the file that was before her was “open to the

interpretation that Child and Family Services had already concluded as a result of past involvement with the family that ET had coached his son prior to contact with Mr. Kwan. This suggests that earlier records in the file are relevant, material and likely to advance Mr.

Kwan’s position as to whether Child and Family Services had already formed the opinion that ET was coaching his son to speak negatively about his mother….” [ 24 ] As a result, I am satisfied that she correctly concluded that the contents of the file likely are relevant and material to the issues in the litigation and that it was appropriate that it be produced for the Master’s review, guided by s 126.11(9) of the Child, Youth and Family Enhancement Act .

In my view, that is an appropriate approach that balances the privacy concerns of M and the public and private interest in having litigation determined on its merits. 5. Supplemental Affidavit of Records [ 25 ] No submissions were made in the written materials or oral submissions regarding this aspect of Master Mason’s order. In any event, there is nothing before me that indicates that it was not appropriate in the circumstances and I am satisfied that it was. V. Conclusion [ 26 ] The appeal is dismissed.

If the parties are unable to agree on how costs of this appeal should be addressed, each party is at liberty to provide written submissions to me within 30 days. Heard on the 2 nd day of February, 2016. Dated at the City of Calgary, Alberta this 19 th day of February, 2016.

J. Strekaf J.C.Q.B.A. Appearances: E.T., Self-Represented for the Plaintiff Domenic S. Venturo, Q.C. and Michelle I. Commance Scott Venturo LLP for the Defendant, Ken Kwan _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madame Justice J. Strekaf _______________________________________________________ The name of the corporate defendant in the style of cause has been changed to add “Inc.”