Irwin v Buote, 2016 ABQB 530

Court of Queen’s Bench of Alberta Citation: Irwin v Buote, 2016 ABQB 530 Date: 20160923 Docket: 1603 01472 Registry: Edmonton Between: Dr. James Irwin Plaintiff - and - Dr. Phil Buote and the Alberta Veterinary Medical Association Defendants _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I. Introduction [ 1 ] Dr.

James Irwin was the owner and responsible veterinarian at the West Edmonton Veterinary office and was a registered member of the ABVMA. [ 2 ] On November 10, 2014 the Alberta Veterinary Medical Association (ABVMA) suspended Dr. Irwin’s licence for alleged incapacity. [ 3 ] On December 18, 2015, the Alberta Court of Appeal found that the ABVMA had denied Dr. Irwin procedural fairness and overturned the decision to suspend his licence ( Irwin v Alberta Veterinary Medical Association , 2015 ABCA 396 , 609 AR 299 ). [ 4 ] Shortly after the Court of Appeal released its decision, Dr.

Irwin filed a claim for damages, alleging negligence, reckless indifference and bad faith against the ABVMA and Dr. Phil Buote, the ABVMA Complaints Director. [ 5 ] The Defendants, Dr. Buote and the ABVMA, argue that the claims against them are based solely on allegations arising from

the regulatory proceedings undertaken by the ABVMA. They ask the Court to dismiss or strike out the Statement of Claim on the bases that the majority of the claims are barred by the express wording of the Veterinary Profession Act , RSA 2000, c V-2 ( VPA ), and that the allegations in the Statement of Claim are inadequate to support those claims that are not statute barred. II. Background A. Legislative Context [ 6 ] The VPA authorizes the ABVMA to regulate the practice of veterinary medicine in the Province of Alberta. Dr. Buote is the ABVMA’s Complaints Director.

His powers as Complaints Director are set out in the VPA and its regulations. [ 7 ] The VPA provides that the ABVMA is required to regulate matters pertaining to its member’s capacity to practice.

Section 65.1 outlines the statutory regime for addressing issues regarding a member’s incapacity. The term “incapacitated” is defined in s. 1 (d.3) of the VPA . [ 8 ] Under s. 65.1(1) of the VPA , if the Complaint’s Director or the Complaint Review Committee (CRC) has grounds to believe that a registered veterinarian is incapacitated, the Complaint’s Director or the CRC may refer the matter to a committee designated by the ABVMA Council. [ 9 ] The ABVMA Practice Review Board (PRB) is the committee designated by the Council to hear incapacity-related matters. [ 10 ] A registered veterinarian who is the subject of a review by the PRB may appeal a decision or order to the ABVMA Council. B.

Section 65.1 Proceedings concerning Dr. Irwin [ 11 ] In February 2014, Dr. Buote began to receive communications by e-mail and telephone regarding Dr. Irwin’s conduct at his veterinary office. The complaints related to allegations of substance abuse and sexual harassment. Dr. Buote met with Dr. Irwin in February and June 2014 to discuss these allegations. During their first meeting, Dr. Irwin advised Dr. Buote that he had Tourette’s syndrome. Dr. Buote noted this in his referral of Dr. Irwin’s matter to the PRB. [ 12 ] Following his meetings with Dr.

Irwin and his review of the communications that he received, Dr. Buote referred his concerns regarding Dr. Irwin to the PRB. He did so pursuant to s 65.1(1) as he was of the view that he had grounds to believe that Dr. Irwin was incapacitated. [ 13 ] The PRB met on October 30, 2014 and reviewed the memorandum and supporting materials provided by Dr. Buote, which outlined his reasons for the referral. The PRB then ordered (PRB Order

I) that Dr. Irwin: a. attend for a physical and mental examination with Dr. Leo Elwell on November 13, 2014, at the Lifemark Health Institute; b. cease practicing veterinary medicine immediately and until such time a report was received by the PRB from the Life Mark Health Institute so that it could determine whether Dr. Irwin was incapacitated. [ 14 ] In compliance with PRB Order I, Dr. Irwin underwent an independent medical examination on November 13, 2014. [ 15 ] Following his examination of Dr. Irwin, Dr. Elwell produced a report dated November 13, 2014 (the IME Report). The IME Report states that Dr.

Irwin admitted to using opioids and specifically, had recently used Dilaudid. Dr. Elwell affirmed that the dosage of Dilaudid that Dr. Irwin admitted to using would knock someone out who had not developed a tolerance to the medication through repeated use. Additionally, the IME Report states that Dr. Irwin had sourced medications from a friend. [ 16 ] Dr. Elwell diagnosed Dr. Irwin with a substance use disorder and recommended in-patient treatment and certain post- treatment care related to maintenance and drug monitoring. Dr. Elwell also opined that Dr.

Irwin was not able to continue working as a veterinarian and that he may be able to resume working once he had completed the proposed treatment. [ 17 ] Dr. Irwin did raise with Dr. Elwell his Tourette’s syndrome and the IME Report provides an overview and analysis of the information provided by Dr. Irwin to Dr. Elwell. [ 18 ] Dr. Irwin also underwent a drug testing screen and the toxicology report following the screen confirmed that Dr.

Irwin tested positive for certain substances. [ 19 ] Following its receipt of the IME Report and the toxicology report, the PRB met on December 18, 2014 and ordered (PRB Order II) that:

a) Dr. Irwin, within 60 days of the date of the Order, commence attending at a residential addictions treatment facility as recommended by Dr. Elwell;

b) the Order of October 30, 2014 suspending Dr. Irwin from the practice of veterinary medicine continue until such time as the PRB was satisfied that he was no longer incapacitated; and

c) in the event that Dr. Irwin did not comply with the Order, the matter would be referred to the Complaints Director for professional conduct proceedings.

[ 20 ] In accordance with s. 65.1(7) of the VPA , Dr. Irwin appealed PRB Orders I and II to the Council. The appeal was heard by the Council. [ 21 ] Dr. Irwin advanced three grounds of appeal: a. the ABVMA had no jurisdiction to compel him to attend the examination with Dr. Elwell because he was suspended at the time of the examination; b. Dr. Buote’s conclusion that he had grounds to believe the Dr. Irwin was incapacitated did not coincide with the bases for his decision; and c. the IME Report contained inaccurate facts and omissions. [ 22 ] The appeal from the PRB Orders was heard on February 3, 2015.

The Council issued its written reasons on February 17, 2015. The Council upheld PRB Order I and rejected Dr. Irwin’s arguments that the ABVMA had no jurisdiction and that Dr. Buote’s had no bases to believe that Dr. Irwin was incapacitated and to refer the matter to the PRB. Finally, the Council dismissed Dr. Irwin’s argument that the IME Report contained inaccurate facts and omissions. [ 23 ] The Council also upheld PRB Order II and ordered that Dr. Irwin’s suspension continue until such time as he proceeded with the treatment recommended by Dr. Elwell and was deemed by the PRB to no longer be incapacitated. C.

Appeal of Council’s Order [ 24 ] Dr. Irwin brought an application before a single judge of the Court of Appeal to stay the Council’s order. A stay was granted on May 21, 2015 ( Irwin v Alberta Veterinary Medical Association , 2015 ABCA 176 ). Dr. Irwin then returned to practice. [ 25 ] The Court of Appeal heard the merits of Dr. Irwin’s appeal on October 9, 2015 and concluded that the Council’s decision violated Dr. Irwin’s right to procedural fairness. It affirmed that Dr. Irwin was entitled to additional notice of the information provided to Dr. Buote and to the materials containing that information.

It also found issues regarding the merits of the Council’s decision upholding the PRB’s orders. There is no suggestion in the Court’s decisions that either the ABVMA or Dr. Buote acted in bad faith. D. Statement of Claim [ 26 ] On January 26, 2016, Dr. Irwin issued the Statement of Claim in the within action alleging that: a. Dr. Buote suspended Dr. Irwin pursuant to s. 65.1(1) of the VPA charging incapacity (para 3); b. the Council cited a “paucity of evidence” on the part of Dr.

Irwin and upheld the decision of the PRB (para 6); c. the decision to suspend him was negligent and it harmed his reputation and practice (paras 13-18); d. the Defendants acted in bad faith when they proceeded under s. 65.1 of the VPA (para 19); and e. the Defendants were recklessly indifferent by proceeding when they knew or ought to have known that Dr. Irwin’s Tourette’s Syndrome did not cause incapacity and by proceeding “in a manner against the natural principles of justice ...” (paras 20-21). III. Issues [ 27 ] The Court must determine the following issues: a.

Should the Statement of Claim alleging causes of action other than bad faith be struck pursuant to Rule 3.68 of the Rules of Court ? b. Should the allegations of bad faith in the Statement of Claim be struck as having been inadequately pled? c. Are the Defendants entitled to

summary judgment? IV. Analysis A. Application to Strike Pleadings [ 28 ] No evidence may be submitted on an application to strike a claim or portions of a claim (Rule 3.68(3)). Therefore, the facts outlined above are not relied on for the purposes of the application to strike pleadings. 1. The Allegations other than Bad Faith

[ 29 ] Rule 3.68(1) provides that if the circumstances warrant and a condition under sub-rule (2) applies, the Court may order that all or any part of a Claim be struck out. Rule 3.68(2)(

b) specifies one of the conditions as being where the commencement document or pleading discloses no reasonable claim. [ 30 ] Claims can only be struck under Rule 3.68(2)(

b) if it is plain and obvious that the pleading discloses no real cause of action. The facts pleaded are deemed to be true for the purposes of the application ( Knight v Imperial Tobacco Canada Ltd , 2011 SCC 42 at para 17 , [2011] 3 SCR 45 ; O’Connor Associates Environmental Inc v MEC OP LLC , 2014 ABCA 140 , [2014] AJ No 441 at paras 13- 16 . [ 31 ] The VPA provides: 65(1) No action lies against (

a) any person conducting a preliminary investigation or a complaint resolution process, a member of the Complaint Review Committee, the Hearing Tribunal, a committee of the Council, the Practice Review Board, the Council or the Registration Committee, the Registrar, the Hearings Director, the Complaints Director, the Association or any person acting on the instructions of any of them, . . . for anything done by the person in good faith and in purporting to act under this Act . . . [ 32 ] In Singh-Boutilier v Ontario College of Social Workers , 2015 ONSC 5297 , [2015] OJ No 4437 , a registered social worker commenced an action against the Ontario College of Social Workers and other parties for damages allegedly resulting from disciplinary proceedings.

The Social Work and Social Services Work Act, 1998 , SO 1998, c 31 provided: 49 No proceeding for damages shall be instituted against the College, the Council, a committee of the College, or an officer, employee, agent or appointee of the College for any act done in good faith in the performance or intended performance of a duty or in the exercise of a power under this Act, a regulation or a by-law, or for any neglect or default in the performance or exercise in good faith of a duty or power. [ 33 ] The plaintiff in Singh-Boutilier advanced claims in tort and bad faith.

The Court held at paras 29-33 that s. 49 barred claims advanced by a social worker under various torts, including the torts of malicious prosecution and negligence, and that it was a complete answer to allegations of negligence, defamation and slander. The pleadings relating to negligence were struck as they did not disclose a reasonable cause of action. [ 34 ] In Conroy v College of Physicians and Surgeons of Ontario , 2011 ONSC 324 , [2011] OJ No 136 a former physician alleged that he was entitled to damages from the College due to its negligent conduct during disciplinary and incapacity-related proceedings.

The College was the body responsible for regulating physicians in Ontario. The Regulated Health Professions Act , 1991, SO 1991, c 18 provided: 38 No action or other proceeding for damages shall be instituted against ... a College ... or a member, officer, employee, agent or appointee of ... a College ... for

an act done in good faith in the performance or intended performance of a duty or in the exercise or the intended exercise of a power under this Act ... for any neglect or default in the performance or exercise in good faith of the duty or power. [ 35 ] The Court in Conroy determined that s. 38 granted the College immunity from suits related to good faith actions taken in the performance of a duty or exercise of a power under the relevant legislation. It was plain and obvious that Dr.

Conroy had no cause of action against the College. [ 36 ] Two of the regulatory functions exercised by the regulating body of many self-governing professions are to bring and maintain disciplinary proceedings against its members, and to ensure the capacity of its active members. In doing so, it fulfills its mandate to serve and protect the public. The legislation governing regulatory bodies typically provides immunity from suit for the good faith regulation of the subject profession to enable the regulator to proceed without concern about incurring liability in exercising its function.

Its ability to deal with any member in need of discipline or a member who may be incapacitated on a timely basis would be significantly impaired and delayed if it were required to continuously look over its shoulder, while acting in good faith, to contemplate whether it may be negligent in some fashion. This would hamper its ability to protect the public. [ 37 ] In his Statement of Claim, Dr. Irwin advances claims based on the conduct of the ABVMA during the incapacity related proceedings under s. 65.1 . In the first 16 paragraphs of his Statement of Claim, Dr. Irwin alleges background facts supporting his claim.

In paras 17 and 18, he alleges that the actions by Dr. Buote, the PRB and the ABVMA were negligent when they opted to suspend him. In paras 20-21 he alleges that the Defendants were recklessly indifferent in proceeding when they knew or ought to have known that his Tourette’s Syndrome did not constitute incapacity and by proceeding “in a manner against the natural principles of justice ...” [ 38 ] The conduct alleged in these paragraphs falls directly within the scope of conduct protected by s. 65 of the VPA . That is, no action lies against Dr.

Buote (the Complaint’s Director), the PRB or the ABVMA for anything done by those parties in good faith while purporting to act under the VPA . [ 39 ] Dr. Irwin argues that the Defendants owed him a private duty of care which is not precluded by statutory immunity. In my view, the restriction of statutory immunity to acts taken in good faith under the VPA is a complete answer to that argument.

As long as the Defendants properly fulfill their public duty under the legislation in good faith, individual members have no cause for complaint. [ 40 ] In my view, it is clear that actions in negligence and reckless indifference are barred by s. 65(1) of the VPA . Dr. Irwin alleges that the Defendants were negligent in carrying out duties authorized by the VPA , the primary purpose of which is clearly to protect the public. It is therefore plain and obvious that the Statement of Claim discloses no reasonable claim, or cause of action, in either negligence or reckless indifference.

These claims must be struck out pursuant to Rules 3.68(1) and 3.68(2)(b). 2. The Allegation of Bad Faith

[ 41 ] Section 65(1) provides immunity only for actions taken in good faith. [ 42 ] In para 19 of his Statement of Claim, Dr. Irwin pleads that Dr. Buote, the PRB and the ABVMA acted in bad faith when they proceeded to suspend him under s 65.1 of the VPA . [ 43 ] In order to proceed with a claim in bad faith, it is incumbent upon the pleading party to include particulars.

A bare allegation of bad faith is inadequate without sufficient facts pleaded in support, and without some particulars ( Walton International Group Inc v Rockyview , 2007 ABCA 21 at para 12 citing Tottrup v Alberta (Minister of Environmental Protection) , 2000 ABCA 121 at para 11 ). [ 44 ] Bad faith implies dishonesty, ill will, malice, or improper or ulterior motives. [ 45 ] The paragraphs preceding para 19 include allegations to the effect that the Defendants did not take adequate steps to address the impact of Dr. Irwin’s Tourette’s Syndrome in acting under s. 65.1 of the VPA .

In my view, the allegations preceding para 19, without more, do not strengthen the bald allegation of bad faith in para 19. [ 46 ] In Conroy , the Court held that Dr. Conroy had not properly pled bad faith as he had failed to provide full particulars of such bad faith. Accordingly, that aspect of his claim was also struck. [ 47 ] I am satisfied that in this case, the allegation of bad faith in the Statement of Claim issued by Dr. Irwin is inadequate. It too must be struck out. B. Application for

Summary Judgment [ 48 ] In the event that I wrong in striking the allegation of bad faith in para 19, I will consider the

Summary Judgment Application. [ 49 ]

Summary judgment is to be granted whenever there is no genuine issue requiring trial: Windsor v Canadian Pacific Railway Ltd , 2014 ABCA 108 at para 13 , 572 AR 317 , Hryniak v Mauldin , [2014] 1 SCR 87 , 2014 SCC 7 . [ 50 ] It is true that the Court of Appeal was critical of the fact that certain procedural steps were not taken and indeed overturned the decision to suspend his licence on that basis. It also found that Council’s decision was unreasonable. However, lack of procedural fairness and unreasonableness in decision making do not, without more, amount to bad faith.

Otherwise, any judicial finding of procedural unfairness or unreasonableness in the context of a judicial review would render the statutory immunity nugatory. Dr. Buote and Dr. Dalton, Registrar of the ABVMA, filed affidavits deposing that they undertook their duties under the VPA in good faith. Their affidavit evidence is unchallenged on this point. [ 51 ] Attached to the affidavit of Dr. Dalton is the IME Report of a psychiatrist. As part of a comprehensive consideration of Dr. Irwin, it addresses his history of Tourette’s syndrome and the medications he had been prescribed for it.

While the Court of Appeal was critical of the manner in which the Defendants proceeded under s. 65.1 , the evidence indicates that Dr. Irwin’s Tourette’s syndrome was not simply ignored. [ 52 ] In the event that I am wrong in concluding that para 19 of the Statement of Claim should not be struck, then

summary dismissal of the claim based on bad faith is warranted. V. Conclusion [ 53 ] Those portions of the Statement of Claim issued by Dr. Irwin alleging causes of action other than bad faith are hereby stuck pursuant to Rules 3.68(1) and 3.68(2)(

b) as disclosing no reasonable claim. The allegation of bad faith is struck as the pleading in that regard is inadequate. [ 54 ] If I am wrong in concluding that para 19 of the Statement of Claim should not be struck, the bad faith claim is summarily dismissed. VI. Costs [ 55 ] If the parties are unable to agree on costs, they may bring the matter before me within 30 days of the date of this decision. Heard on the 23 rd day of September, 2016. Dated at the City of Edmonton, Alberta this 23 rd day of September, 2016.

Eric F. Macklin J.C.Q.B.A. Appearances: H. Kim Doniger of Verhaeghe & Boisvert for the Plaintiff Karen A. Smith Gabriel Joshee-Arnal of Parlee McLaws LLP for the Defendants