T.P. v Dr. B, 2016 ABQB 158

Court of Queen ’ s Bench of Alberta Citation: T.P. v Dr. B, 2016 ABQB 158 Date: 20160316 Docket: 1201 10685 Registry: Calgary Between: T.P. Plaintiff - and - Dr. B. Defendant Restriction on Publication Identification Ban – See the Family Law Act ,

section 100. By Court Order, there is a ban on publishing information that may identify the children or guardians in this matter. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Reasons for Judgment of J.T. Prowse , Master in Chambers _______________________________________________________ [ 1 ] The defendant Dr. B was disciplined by his professional association for unprofessional conduct. The question is whether he

is also liable for damages to the plaintiff T.P. [2] Dr. B interviewed T.P.’s 13 year old daughter at the behest of her father but without the knowledge or consent of her motherT.P., notwithstanding that T.P. was her guardian with the sole legal authority to give or withhold consent. [3] Dr. B then prepared a report recommending that T.P.’s primary caregiver be her father. This report was used by the girl’sfather in an attempt to obtain custody of the daughter. In the end, and following a bilateral assessment report ordered by the court, T.P.consented to an order implimenting the change that Dr.

B had recommended in his report, namely, that the father have primary care ofthe daughter. [4] T.P. complains that, without Dr. B’s unauthorized report, the father may not have been able to persuade the court to order abilateral assessment report, and the father may never have been able to obtain primary custody of the daughter. She brings this action fordamages to compensate her for legal expenses incurred in the custody dispute as well as emotional trauma resulting from the contestedcustody proceedings. Dr. B has applied for

summary dismissal of the claim. [5] Dr. B. admitted to unprofessional conduct before the College of Alberta Psychologists, which made the following findingsconcerning Dr. B: (

i) he provided psychological services to the 13 year old daughter without taking any steps to obtain court documentation whichcould inform the analysis of which party was authorized to provide informed consent on behalf of the daughter. (ii) he failed to sufficiently document the informed consent process ... particulars of which include failure to sufficiently documentone or more of the following: a. the purpose and nature of his professional services, b. likely benefits and risks, c. likely consequences of non-action, d. the option to refuse services or withdraw at any time, and e. how to rescind consent if desired. (iii) he inappropriately undertook his own child protection investigation. (iv) he rendered a professional opinion regarding the daughter’s custody and/or access arrangements without any professional contactwith her mother, particulars of which include: a. advising the father’s lawyer that he supported the daughter changing her residence to live with her father in another province where thefather lived, and b. recommending to the father’s lawyer that the daughter’s visits with her mother be supervised and monitored. (

v) he inappropriately delayed reporting his child protection concerns for 3 days until after he had provided his professional opinionto the father’s lawyer concerning custody and/or access. [6] T.P.’s claim against Dr. B alleges that as a result of the issuance of his report: (

i) Family court proceedings ensued in which she incurred numerous unnecessary expenses, including legal fees and fees forpsychologist reports. (ii) She suffered pain, emotional distress, anxiety and other medical ailments. (iii) She incurred costs for her own resulting medical ailments and stress. [7] Dr. B seeks

summary dismissal of T.P.’s claim pursuant to Rule 7.3 of the Alberta Rules of Court. He cites in support of hisapplication the leading Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7 , [2014] 1 S.C.R. 87. [8] Dr. B’s position is that the facts in this case and the law to be applied are sufficiently established that this Court candetermine the matter summarily. The onus of proof which Dr. B. must achieve in order to obtain

summary dismissal was recentlydescribed by the Court of Appeal in Whitecourt Power Limited Partnership v. Elliott Turbomachinery Canada Inc., 2015 CarswellAlta1379, 2015 ABCA 252 (Alta. C.A.) as follows: In light of the Supreme Court's decision in Hryniak v Mauldin, 2014 SCC 8, [2014] 1 S.C.R. 87 and decisions of this court sinceHryniak,

summary judgment is no longer denied solely on the basis that the evidence discloses a triable issue. Rather, the court askswhether there is any issue of merit that genuinely requires a trial or, conversely, whether the claim or defence is so compelling that thelikelihood it will succeed is very high such that it should be determined summarily. A second consideration is whether examination ofthe existing record can lead to an adjudication and disposition that is fair and just to both parties. See generally W.P. v. Alberta, 2014ABCA 404 at para 26, 7 Alta LR (6th) 319; Windsor v.

CPR, 2014 ABCA 108 at para 16, 572 AR 317. Breach of the code of conduct of a professional association [9] A cause of action for damages does not arise simply because Dr. B. has acted in a way which has resulted in a sanctionagainst him by his professional association.

[ 10 ] This is confirmed in the decision of N. (

M) v. Froberg , 2009 ABQB 145 where the plaintiff, the father of two children, sued the defendant psychologist for damages arising from reports prepared by the defendant psychologist at the request of the mother. [ 11 ] The defendant had been found guilty by her professional association of failing to meet minimum professional standards, and in particular, failing to comply with

section 6 of the Alberta Psychologists Code of Conduct which provided that: Psychologists rendering a formal professional opinion about a person that has implications for that person's legal or civil rights (for example, about the fitness of a person in a custody hearing) shall not do so without direct and substantial professional contact with or a formal assessment of that person. [ 12 ] Notwithstanding this breach of the Code of Conduct, the father’s suit for damages against the defendant psychologist was dismissed because: (

i) There was no duty of care in negligence owed to the plaintiff, (ii) There was no fiduciary duty of care owed to the plaintiff, and, (iii) The defendant was entitled to witness immunity Attempts to distinguish the decision in N. (

M) v. Froberg [ 13 ] The only difference between the situation in Froberg and the situation here is that, in Froberg , the defendant psychologist had started out treating the two children of the plaintiff. It was only later when the plaintiff father applied for custody that the defendant psychologist was asked, by the mother, to prepare reports for use in the custody proceedings. In the present case, Dr.

B was retained from the outset to prepare a report for use in anticipated custody proceedings. [ 14 ] This minor difference in facts is not sufficient to trigger a different outcome in law. [ 15 ] In the context of considering witness immunity, the Court in Froberg emphasized that the relevant aspect of the case before it was, as in the case before me, the liability of a psychologist arising from the preparation of a report as the request of the other spouse for use in custody proceedings.

The Court stated as follows: 49 This situation is somewhat unique because although the Defendant appears to have the qualifications to attend in Court as an expert witness, she was not originally retained in that capacity, and did not appear to anticipate that her involvement may become necessary in possible proceedings.

Because of the Plaintiff's initiation of access proceedings and the mother's desire to respond to them through the use of the Defendant's experience with the children, the Defendant was drawn into the litigation process. 50 The Plaintiff's argument is that since the Defendant was retained in the context described above, witness immunity does not apply to the reports which she authored and provided to the mother's counsel for use in the Plaintiff's application.

It is the issuance of these reports for known use in Court proceedings which is argued to trigger the Defendant’s liability. (emphasis added) [ 16 ] In Froberg , as in the case before me, the custody proceedings resulted in a court ordered bilateral assessment which came to the same conclusion, so far as custody is concerned, as the report initially prepared by the defendant psychologist. There was no evidence in either Froberg or in this case that the defendant psychologist was careless in the preparation of their report or motivated by malice.

Conclusion [ 17 ] I agree with the reasoning and outcome in Froberg and I am bound by it. As a result, I allow the application by Dr.B to have the proceedings against him summarily dismissed. Costs may be spoken to. Heard on the 08 th day of March, 2016. Dated at the City of Calgary, Alberta this 16 th day of March, 2016.

J.T. Prowse M.C.C.Q.B.A. Appearances: Peter G. Nieswandt Nieswandt Law for the Plaintiff Eugene J. Bodnar Norton Rose Fulbright Canada LLP for the Defendant