Health Sciences Association of Alberta v Alberta College of Paramedics, 2016 ABQB 723

Court of Queen’s Bench of Alberta Citation: Health Sciences Association of Alberta v Alberta College of Paramedics, 2016 ABQB 723 Date: 20161222 Docket: 1503 19424 Registry: Edmonton Between: Health Sciences Association of Alberta and Angela Mark Plaintiffs - and - Alberta College of Paramedics Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] The Alberta College of Paramedics (“ACP”) applies for

summary judgment (dismissal) of the action commenced by the Plaintiffs, the Health Sciences Association of Alberta (“HSAA”) and Angela Mark, a paramedical technician. HSAA and Ms. Mark cross-apply for

summary judgment in their application for a declaration that the ACP acted outside its authority when, as part of the registration renewal process for paramedics, it obliged Alberta’s paramedical technicians to complete a form requiring answers to the following questions: i. In the last 23 months, have you had a negative police interaction which resulted in permanent entry into a police database, been investigated, charged or convicted of an indictable or

summary offense? Are you the subject of a court order, or have you disobeyed a court order or have you had a judgment of fraud against you in Canada or another country? ii. Have you in the last 12 months been affected, and/or receiving treatment/counselling for a physical, medical, or mental health condition or disorder that impairs your ability and sustainability to safely, competently and independently provide professional service? iii. Have you, in the last 12 months, been affected by an addiction to alcohol, drugs or other chemicals that impairs your ability and

suitability to safely, competently and independently provide professional service? [ 2 ] ACP asserts that it had the necessary statutory authority to require answers to the questions, did so, and applies for

summary dismissal of HSAA’s declaration application on three bases: (

a) Lack of jurisdiction by this Honourable Court to determine disputes which are governed by a collective agreement or statutory regime, including the Health Disciplines Act , RSA 200, c. H-2 (the “ HD Act ”) and the Emergency Medical Technicians Regulation , AR 48/93 (the “ EMT Regulations ”) and the Personal Information Protection Act , SA 2003, c. P-6.5 (“ PIPA ”); (

b) The Plaintiffs have no standing to bring the action; and (

c) The claim is moot and the Plaintiffs have suffered no damages. Background [ 3 ] ACP is the governing body of Alberta’s paramedical technicians and professionals. Its authority comes from the Health Disciplines Act , RSA 2000 c H-2 (the “ HAD ”). [ 4 ] HSAA is a labour union and is the certified bargaining agent for approximately 3,200 paramedics in Alberta’s various health care sectors. In order to practise as a paramedic in Alberta, the paramedic must be registered with ACP. [ 5 ] Angela Mark is a paramedic and has been registered with ACP since 2003.

She is employed by Alberta Health Services and by virtue of her employment is a member of HSAA. [ 6 ] For 2016, ACP revised its registration renewal form to require answers to the questions recited above. A “yes” answer requires the applicant to provide details on the form. [ 7 ] In December, 2015 Ms. Mark completed the renewal form, answering “yes” to one of the questions. ACP emailed her asking additional questions relating to the “yes” answer and the details initially provided by Ms. Mark. [ 8 ] Ms. Mark refused to answer the further questions.

Despite her refusal, her registration was renewed for 2016. [ 9 ] Ms. Mark takes the position that the form she was required to complete to effect the renewal of her registration is not the form prescribed by the Minister under the HDA and regulations, and she seeks the following relief: 1. A declaration that ACP has acted ultra vires its jurisdiction by requiring its Members, including Mark to complete and submit the Renewal Form; 2. An Order prohibiting the ACP from asking the Questions and the Ensuing Questions; 3.

An Order prohibiting the ACP from cancelling, restricting or refusing to renew the registration of Mark or of any other Paramedic on the basis of i. any information arising from the Renewal Forms; or ii. any Paramedic’s refusal to answer the Questions or the Ensuing Questions; and 4. Costs. [ 10 ] HSAA and Ms. Mark (the “Plaintiffs”) issued a statement of claim on December 22, 2015 seeking the above relief. A statement of defence was filed by ACP on January 12, 2016. ACP filed an application for

summary judgment (dismissal) on January 22, 2016, and the Plaintiffs filed their application for

summary judgment on January 22, 2016. By agreement, the applications were set down for a special chambers hearing on September 22, 2016. [ 11 ] I heard the applications then and reserved decision. Position of parties Plaintiffs [ 12 ] Even though the Plaintiffs are respondents in ACP’s application and are essentially cross-applicants, I will deal with their

positions first, as that gives context to ACP’s application for

summary dismissal. [13] The Plaintiffs’ joint position is straightforward.

They argue that an administrative body such as ACP only has the power givento it by its home statute, citing Harris v Law Society (Alberta), (SCC), [1936] SCR 88, which principle has beenrepeatedly confirmed including the Supreme Court of Canada’s more recent decision in New Brunswick (Board of Management) vDunsmuir, 2008 SCC 9. [14] The Plaintiffs cite Nwobosi v College of Physicians & Surgeons (Alberta), (1982), 1982 ABCA 61 , 18 Alta LR (2d)289 (ABCA), to support their position that strict statutory compliance by the regulatory authority is required in matters affecting aperson’s professional status (at paragraph 5). [15] Ex Parte Goodwin et al, (1961), (NB CA), 27 DLR (2d) 667 (NBSCAD), is also cited.

It deals withmembership requirements for the Institute of Public Accountants. The Appeal Division held there: 13 The power given the council by s. 9 of the Act to adopt by-laws providing for the terms and conditions of membership in the Institutecannot be taken to embrace authority to effect changes in the qualifications for certificated membership prescribed by s. 13, somethingwhich the Legislature alone can do.

The by-law, of which the sole purpose is to alter the statutory qualifications, is clearly ultra vires. [16] Here, section 24(1) of the HDA states: 24(1) A registered member shall submit to the registrar annually by the date prescribed in the regulations an application for renewal ofregistration in the form prescribed by the Minister. [17] The “form prescribed by the Minister” is provided in

section 5 of the Emergency Technicians Regulation, AR 48/93. Thatsection states: 5 In accordance with

section 24 of the Act, the Registrar shall annually renew the registration of a registered member if, with respect toan area of practice, (

a) the registered member has, (

i) in the case of an Emergency Medical Responder or an Emergency Medical Technician-Ambulance, within the 2 years immediatelypreceding the date of submission of the application for renewal of registration, (

A) satisfactorily completed basic life support-basic rescuer certification, (

B) been employed in a manner that indicates the person is competent to provide Emergency Medical Responder or basic life supporthealth services, as the case may be, and (

C) obtained 120 educational credits as determined by the College and approved by the Board, or (ii) in the case of an Emergency Medical Technologist-Paramedic, (

A) within the 4 years immediately preceding the date of submission of the application for renewal of registration, satisfactorilycompleted an advanced life support re-certification examination prescribed by the Board, (

B) within the 2 years immediately preceding the date of submission of the application for renewal of registration, been employed in amanner that indicates the person is competent to provide advanced life support health services, and (

C) within the 2 years immediately preceding the date of submission of the application for renewal of registration, obtained 120educational credits as determined by the College and approved by the Board, (

b) the registered member has completed and submitted the applicable forms prescribed by the Minister, and (

c) the registered member has paid the renewal of registration fee prescribed in the by-laws. [18] Forms are appended to the Ministerial Order that enacted the Emergency Medical Technicians Forms Regulation, AR 518/87.Form 3 is described in

section 1(

c) as the form “to be used for an application for renewal of registration”. [19] That particular form makes no reference to the three questions added to the renewal application form in 2015. [20] The Plaintiffs’ argument is simple. The form for 2016 asks for more information than does the “prescribed form”.

Thus theapplicant need not provide the information as a condition of his or her application for renewal being considered, and the failure toprovide that information on the renewal application form cannot be used as a reason to deny renewal of registration. [21] The Plaintiffs also argue that HSAA has the standing to bring this application on behalf of Ms. Mark and its members. Theyalso argue that this matter is suitable for

summary disposition. ACP [22] ACP seeks

summary dismissal of the Plaintiffs’ claim for declaratory relief. They do so on a number of bases:

(

a) That the Plaintiffs do not have standing to bring the action because neither has a private interest standing; Ms. Mark sufferedno damage and the claim is therefore moot; (

b) That the Court has no jurisdiction to deal with the matter because of the provisions of the HAD, which provides for anappeal process in registration matters; (

c) That the Court has no jurisdiction to deal with the matter because of the provisions of the Collective Agreement betweenHSAA and Ms. Mark’s employer, which mandate a grievance procedure; and (

d) That declaratory relief is not appropriate because it would have no practical effect. [23] ACP cites a number of cases in support of these arguments: Scenic Acres Community Assn. v Calgary (City), 2015 ABQB 586; Reece v Edmonton (City), 2011 ABCA 238; Professional Institute of Public Service of Canada v Canada, (2012), (ON CA), 62 OR (3d) 682 (ONCA); and Peter Lehmann Wines Ltd. v Vintage West Wine Marketing Inc., 2015 ABQB 481. [24] On the merits of the Plaintiffs’ claim, ACP states that the form used for the 2016 renewal application is not ultra vires,relying on the duties of the ACP to ensure the safety and competence of paramedics, which it says “aligns with the legislative intent ofthe HDA”. [25] ACP also relies on the

Interpretation Act, RSA 2000 c I-8 and BK v Alberta (Child & Family Services), 2012 ABQB 329,which held that deviations from the prescribed form are not relevant if they “do not affect the substance” of implementing the legislator’sintention” (at paragraph 28). [26] As for the test for

summary judgment, ACP argues that the Plaintiffs have not established that they are entitled to the reliefsought in their application. They cite 1214777 Alberta Ltd v 480955 Alberta Ltd, 2014 ABQB 301, relating to remedies. [27] With respect to ACP’s application for

summary judgment (dismissal), ACP notes that in 2016, no paramedic was deniedrenewal of membership for failure to complete the questions referenced above. [28] They ask that the Plaintiffs’ action be dismissed pursuant to Rule 3.68 on the basis that the Court has no jurisdiction, theaction is an abuse of process, the Plaintiffs lack standing and the issues are moot. [29] Alternatively, ACP seeks

summary dismissal under Rule 7.3(1). They cite a large number of authorities in support of thesearguments: Scenic Acres Community Assn. v Calgary (City), 2015 ABQB 586, 2015 CarswellAlta 1739; Peter Lehmann Wines Ltd. v Vintage West Wine Marketing Inc., 2015 ABQB 481, 2015 CarswellAlta 1417; K(B.) v Alberta (Child & Family Services), 2012 ABQB 329, 2012 CarswellAlta 1069; Weber v Ontario Hydro, 1995 SCC 108; Bisaillon v Concordia University, 2006 SCC 19; Regina Police Assn. v.

Regina Police Commrs., 2000 SCC 14; Transalta Utilities Corporation v Young Estate, 1997 ABCA 349; Quebec (C.D.P.D.J.) v Quebec (P.G.), 2004 SCC 39; Amalgamated Transit Union, Local 583 v Calgary (City of), 2007 ABCA 121; Allen v Alberta, 2003 SCC 13; Calgary (City) v International Association of Fire Fighters (Local 225), 2012 ABQB 90; Fufa v University of Alberta, 2012 ABQB 594; Denos Pawn and Sales Ltd. v Winnipeg (City), 2007 MBQB 256; Calgary (City) and CUPE (Lindland), Re, 2008 CarswellAlta 2520; Borowski v Canada (Attorney General), 1989 CarswellSask 465; Bahcheli v Alberta Securities Commission, 2007 ABCA 166; Real Estate Council of Alberta v Henderson, 2007 ABCA 303; Alberta Liquor Store Association v Alberta (Gaming and Liquor Commission), 2006 ABQB 904;

Toronto Dominion Bank v Real Estate Council of Alberta, 2002 ABQB 69 , 2002 ABQB 0069; Kolody v Alberta, 2016 ABQB 36; Reece v Edmonton (City), 2011 ABCA 238, leave to appeal to SCC refused, 2012 CanLil 22074 (SCC); Lameman vAlberta, 2013 ABCA 148; Windsor v Canadian Pacific Railway, 2014 ABCA 108; Hryniak v Mauldin, 2014 SCC 7; Maxwell v Wal-Mart, 2014 ABCA 383; WP v Alberta, 2014 ABCA 404; 1214777 Alberta Ltd v 480955 Alberta Ltd, 2014 ABQB 301; Sandhu v Siri Guru Nanak Sikh Gudwara of Alberta, 2015 ABCA 101; Borowski v Canada (Attorney General), (SCC), 1989 CarswellSask 241, 1989 CarswellSask 465, [1989] 1 S.C.R. 342; Alberta Legislation, (UK JCPC), 1938 CarswellAlta 92, [1938] 3 W.W.R. 337; McKenzie v British Columbia (Ministry of Public Safety & Solicitor General), 2007 CarswellBC 2501, 2007 BCCA 507, leave toappeal to SCC denied 2008 CarswellBC 824, 2008 CarswellBC 825, [2007] C.S.C.R.

No. 601; Larouche v Alberta (Former Court of Queen’s Bench Chief Justice), 2015 CarswellAlta 33, 2015 ABQB 25; and Pestrak v Denoon, 2000 CarswellMan 430, 2000 MBCA 79, [2000] 10 W.W.R. 387. Analysis [30] Some of the issues initially facing the parties have been resolved by the passage of time between the scheduling of the specialchambers application in March, 2016 and it being able to be heard in September, 2016. [31] ACP confirmed that no one has been refused renewal of registration on the basis of non-completion of the challenged sectionsin the form.

No one has lost his or her job as a paramedic as a result of the form, and no one has been put on unpaid leave by theiremployer because of non-completion of the challenged sections in the form. Ms. Mark has not suffered any loss as a result of her refusalto answer questions arising out of her completion of the challenged sections when she applied for renewal. [32] In some ways, issues relating to the consequences of the form have become moot. Mootness is, however, not a bar toadjudication.

It is a reason for the Court to decline to decide a matter, but the application of the doctrine of mootness is a discretionarymatter. [33] The competing applications raise a number of interesting issues, including the underlying dispute as to the extent to which astatutory body can itself change a “prescribed form” as well as the status of HSAA to bring this application for declaratory relief onbehalf of some of its members, including the co-plaintiff. [34] I will deal with the following issues:

a) Should the Court decline to deal with the Plaintiffs’ application on the basis of mootness?

b) Do the Plaintiffs have the necessary status to commence and maintain their application for a declaration?

c) Should the Court decline jurisdiction because of the appeal processes in the HAS?

d) Should the Court decline jurisdiction because of the collective agreement between HSAA and AHC?

e) Is the renewal application form for 2016 ultra vires ACP?

f) Is this matter appropriate for

summary proceedings?

g) What relief, if any, should be granted? Mootness [35] ACP argues that the Plaintiffs’ claims are moot, as no one’s registration status has been impacted by the disputed provisionsin the 2016 renewal application form. In particular, Ms. Mark has not been adversely affected and has suffered no loss or damage.Further, they argue that registration renewal issues are to be dealt with under the appeal process in the HDA, and that any employment

issues are to be dealt with by grievance under the collective agreement between Ms. Mark’s employer and her union. [ 36 ] I will deal with the latter two issues separately under Heading 3. [ 37 ] The leading authority on mootness is Borowski v Canada (Attorney General) , 1989 CarswellSask 465 at paragraph 16 : 16 The approach in recent cases involves a two-step analysis. First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic.

Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term “moot” applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the “live controversy” test.

A court may nonetheless elect to address a moot issue if the circumstances warrant. [ 38 ] I dealt with mootness in Peter Lehmann Wines Ltd v Vintage West Marketing Inc. , 2015 ABQB 481 . In that case, I considered the Court’s jurisdiction under

section 11 of the Judicature Act to grant declaratory orders. There, I concluded that granting the declaratory order sought would “not appear to serve any meaningful purpose” (at paragraph 79), and I declined to grant certain declarations applied for by the applicant. [ 39 ] When the Plaintiffs commenced the action, the issues were not moot. Ms. Mark faced uncertain consequences from her refusal to provide information to her professional body.

Her employment depended on her membership renewal with ACP. [ 40 ] Since then, her membership was renewed, her employment was unaffected and the ACP has gained control over its own forms. [ 41 ] Some of the issues in this case are arguably moot in that there are no obvious “live” issues between the parties, at least with respect to the 2016 renewal form and process. There is, however, an ongoing relationship between Ms. Mark and ACP.

She is a member of some 14 years’ standing, and requires ongoing membership to maintain her employment as a paramedic with her current employer or any other employment as a paramedic in Alberta. She is also a member of HSAA, and is owed some duties by them, including a duty of fair representation. [ 42 ] HSAA has no formal relationship with ACP, although many of ACP’s members are also members of HSAA. This case would appear to be somewhat novel as it involves a professional member who is in conflict with her professional association and not directly with her employer.

The employment status of the member, and many other HSAA members, is impacted by the actions of ACP. [ 43 ] It is not too remote to think that ACP may take steps that impact HSAA’s members. The instant case resulted from concerns over what consequences there may be to an HSAA member as a result of registration renewals. Ms. Mark submitted her application in mid-December. She faced the potential of non-renewal, which may have threatened her employment. [ 44 ] Time was of the essence, and her union commenced proceedings on her behalf.

Unfortunately, the union’s status or ability to do so has been placed in doubt by ACP. It took nine months to arrange a hearing to bring these issues before a judge. [ 45 ] In my view, if there is not a determination of HSAA’s ability to bring an action and application such as these on behalf of a member (and other potentially affected members), the next time an issue comes up, the underlying issue may well have become moot before HSAA’s status has been determined.

It is useful to proceed to determine the issue of status, as well as the technical or procedural objections brought by ACP to this action and application. [ 46 ] I have no information as to what the 2017 renewal application form contains, or as to the status of legislative changes that may affect the “prescribed form” or the renewal process.

Again, it is not beyond reasonable foreseeability that ACP may continue to request information such as that sought in the 2016 renewal application form, and it is also foreseeable that the refusal to provide information may result in consequences, or at least uncertainty, for members who refuse to provide the information. [ 47 ] Borowski sets out a two-part analysis: [ 48 ] Firstly, is there a live controversy? Secondly, if there are no live issues, the Court still has an underlying discretion to decide the merits of the case.

The exercise of discretion requires (1) recognition of the adversary system and the need for the parties to have a “full stake in the outcome”; (2) recognition of the scarcity of judicial resources and the proper use of those resources; and (3) consideration of the proper role of the Court in its proper law-making function. [ 49 ] As for the live controversy, it seems to me that there are at least two live controversies. The first is the capacity or status of HSAA to intervene on behalf of members in their dealings with their professional body.

The second is the ability of a statutory body to depart from “prescribed forms”.

Neither of these issues has been resolved, and because of the ongoing nature of the relationships here, the issues remain live. [ 50 ] It can be seen from the above that I consider there are useful purposes for the declarations sought here (one way or the other) such that I conclude I should exercise a discretion in favour of considering the application here on the merits. [ 51 ] If I am incorrect on this analysis, or am stretching the boundaries beyond their reasonable limits, I still consider it appropriate to exercise a discretion in deciding these issues.

I do not think that either side has pulled any punches in the arguments presented, either in writing or at the application itself. HSAA wishes these issues to be decided now; ACP wants to put them off for a later date and another dispute. This matter has all the earmarks of a full adversarial process. [ 52 ] Judicial economy might have been served by an application in advance of the special chambers application to have the Court decline to hear the matter.

By the time the parties completed their briefs and argued their cases at the special application, there were no judicial resources left to save, other than my time in considering and writing this decision. As can be seen from the time it has taken me

to write this decision, this matter did not delay other decisions from being made by me. Indeed, judicial economy favours decisions on these issues, so that the parties do not have to wait for another opportunity to litigate these same issues, and another judge in another proceeding does not have to hear the same arguments. [ 53 ] Finally, I do not see that a decision on these issues steps beyond the proper law-making function of a judge. In many ways, that is what declaratory relief is about: to assist parties with ongoing relationships and solve future problems.

Health Professionals Act [ 54 ] ACP also argues that the current prescribed form may be redundant, as the paramedics have been transitioned from the HAD to the Health Professionals Act , RSA 2000, c H-7 . The ACP is now able to create and use its own forms. [ 55 ] At the hearing of the application, ACP advised that the Paramedics Profession Regulation, AR 151/2016 had just been approved under the Health Professions Act effective September 15, as a result of Order in Council 147/2016. [ 56 ]

Section 25 of the Regulation states: 25 A regulated member who is applying for renewal of the member’s practice permit must provide evidence of (

a) having practised the paramedic profession in a manner and to an extent the Registrar or Registration Committee considers to demonstrate current competency, within the 2 years immediately preceding the date the Registrar receives the renewal application, (

b) continuing to meet the requirements set out in sections 12 to 14, and (

c) having met the requirements of sections 20 and 21. [ 57 ] No form is prescribed. Sections 12-14 of the Regulation state: 12(1) An applicant for registration as a regulated member must provide evidence of having good character and reputation by submitting one or more of the following as requested by the Registrar: (a) 2 written references from colleagues which, if applicable, may be from colleagues from other jurisdictions in which the applicant is or was registered with an organization responsible for the regulation of paramedics; (

b) a statement by the applicant as to whether the applicant (

i) is currently undergoing an investigation or is subject to an unprofessional conduct process, (ii) has ever been disciplined, or (iii) has ever had any conditions imposed on the applicant’s practice by a regulatory body responsible for the regulation of the paramedic profession in a jurisdiction other than Alberta or by a regulatory body responsible for the regulation of any other profession in Alberta or another jurisdiction; (

c) a statement by the applicant as to whether the applicant has ever pleaded guilty to or been found guilty of a criminal offence in Canada or an offence of a similar nature in a jurisdiction outside Canada for which the applicant has not been pardoned; (

d) the results of a current criminal records check; (

e) any other relevant information required by the Registrar or Registration Committee.

(2) The Registrar or Registration Committee may require the applicant to authorize the Registrar or Registration Committee to contact any regulatory body responsible for the regulation of the paramedic profession in a jurisdiction other than Alberta, or responsible for the regulation of any other profession in Alberta or another jurisdiction, to confirm the veracity and particulars of the applicant’s statement under subsection (l)(b).

(3) In determining whether an applicant for registration as a regulated member is of a good character and reputation, the Registrar or Registration Committee may consider information other than that submitted by the applicant under subsection (1), including information from a regulatory body referred to in subsection (2), only if the Registrar or Registration Committee gives the applicant sufficient particulars of that other information and a reasonable opportunity to respond to the information.

Other requirements 13(1) An applicant for registration as a regulated member must be reasonably proficient in English to be able to engage safely and competently in the practice of the paramedic profession.

(2) An applicant may be required by the Registrar or Registration Committee to demonstrate proficiency in the English language in accordance with the requirements approved by the Council.

(3) An applicant for registration as a regulated member must, on the request of the Registrar or Registration Committee, submitevidence satisfactory to the Registrar or Registration Committee confirming the member’s fitness to practise the paramedic profession. Liability Insurance 14 An applicant for registration as a regulated member must provide evidence of having the type and amount of professional liabilityinsurance required by the Council. [58] ACP now has control over its own forms.

No details have been provided to me as to what information ACP has decided torequire its members to provide in support of applications for membership renewal. Counsel for ACP infers that it will be the same ascontained in the 2016 membership renewal application form. [59] In my view, this development does not alter the relevance of some of the relief sought by the Plaintiffs. Ms. Mark refused toanswer certain questions asked of her. She is entitled to know if she was correct in refusing to provide answers, or not. [60] ACP cites Reference re Alberta Bills, (UK JCPC), [1938] 3 WWR 337 (PC), McKenzie v.

BritishColumbia (Ministry of Public Safety & Solicitor General), 2007 BCCA 507 and Pestrak v Denoon, 2000 MBCA 79, in the context ofthe repeal of the Emergency Medical Technicians Regulation, AR 48/98. I do not see that these decisions affect the discretion that existsunder the authority of Borowski and its two-step analysis. [61] I am mindful of Watson JA’s remarks in Larouche v Alberta (Former Court of Queen’s Bench Chief Justice), 2015 ABQB25 at paras 51 and 54: [51] But where the remedy sought is declaratory, it often has the essential nature of being abstract to begin with.

The sort of judicialself-discipline referred to in the mootness authorities is also reflected in the existence of discretion not to make a declaration about thelegality of a past event which is clearly unlikely to recur, or which is a matter of such low significance that even if it does occur thatinvestment in judicial resources to develop an answer to the issue would be inconsistent with the practical as well as foundational role ofthe courts to declare what the law is in a way that is useful and not spurious. [54] Put another way, it is not the role of courts to provide advisory opinions about prospective but purely inchoate legal developmentpossibilities.

Nor is it the role of the courts to provide a form of adjudicative solace to assuage a sense of grievance, howsoever burning,of litigants over trivial inconveniences in their interactions with legal institutions. As Lamer CJC observed in a different context inDelgamuukw v British Columbia, (SCC), [1997] 3 SCR 1010 at para 186: “Let us face it, we are all here to stay.” It isthe ordinary lot of mankind to be bumped in the jostling of life.

So the fact that the applicant may have personally suffered some form ofa set-back in his attempt to process a motion to adjust the terms of the judicial interim release order does not itself, according to therespondents, provide any reasonable basis for not declaring his applications moot. [62] There is an ongoing relationship between Ms. Mark and ACP. ACP will soon begin (if it has not already done so) the processof developing new forms under its new Regulation. ACP’s members, including Ms. Mark, have an interest in the information they willbe required to provide.

They have legitimate concerns about being required to provide personal information that might otherwise beprotected by human rights legislation and privacy legislation. The introduction of the 2016 form was a new process and Ms. Mark’sobjection to it may not be the last word on the subject. I do not see that the fallout from the new form should be described as a “bump inthe jostling of life”, so as to make any questioning of it moot. Status or standing [63] There is a difference between Ms.

Mark’s status or ability to seek declaratory relief against her professional association, andher union’s status to intervene in issues that may affect the employment of some of its members. [64] Subject to ACP’s arguments about appeals under the HSA and the provisions of the collective agreement between HSAA andAHS, I see nothing wrong with Ms. Mark commencing an action for a declaration that her professional association is not entitled to seekcertain information from her in conjunction with her application for a renewal of membership. [65] ACP says that neither plaintiff has “private interest standing”.

No authority is cited suggesting that Ms. Mark does not have aprivate interest in her relationship with her professional association. I see no impediment to her status to commence an action fordeclaratory relief against her professional association. [66] The status of HSAA is a different matter. ACP cites Scenic Acres Community Association v Calgary (City), 2015 ABQB 586.In that case, the Community Association commenced an action challenging a transfer of municipal and school reserves to two schoolregions.

DB Nixon J concluded that the Community Association had no real stake in the proceedings because the action would have nomeaningful difference on the outcome. [67] DB Nixon J dealt with public interest standing, referencing Canada (AG) v Downtown Eastside Sex Workers, 2012 SCC 45.He noted at paragraph 47 that Downtown Eastside recognized a general relaxation of limits on public interest standing, and referencedthe factors identified by Cromwell J for the purposes of analyzing a claim for standing: 48 Even when standing was denied because of this factor, the Court emphasized the need to approach discretionary standinggenerously and not by applying the factors mechanically.

The best example is Canadian Council of Churches. On one hand, the Courtstated that granting discretionary public interest standing "is not required when, on a balance of probabilities, it can be shown that themeasure will be subject to attack by a private litigant" (p. 252). However, on the other hand, the Court emphasized that public intereststanding is discretionary, that the applicable principles should be interpreted "in a liberal and generous manner" and that the otherreasonable and effective means aspect must not be interpreted mechanically as a "technical requirement" (pp. 253 and 256).

[68] Downtown Eastside may well have expanded the role of labour unions in representing the interests of their members outsidethe strict confines of a collective agreement.

Berry v Pulley, 2002 SCC 40, recognizes the ability of a labour union to sue and to be sued,and confirms that they are legal entities “for the purpose of discharging their function and performing their role in the field of labourrelations” (at paragraph 46). [69] ACP cites Reece v Edmonton (City), 2011 ABCA 238, where the Court of Appeal denied the applicants standing to bring anaction against the City for alleged mistreatment of zoo animals (specifically Lucy the elephant).

The chambers judge had concluded thatthe proceedings were an abuse of process. [70] At paragraph 35, the majority stated: [35] The appellants argue that there is no other effective alternative way to bring this issue before the courts. Stating the issue in thatway presupposes that this is a suitable issue for the courts. Whether the City is discharging its operational duties in the care of Lucy is ahotly contested issue. It is not appropriate to expect the courts to take over the animal husbandry of the animals at the City zoo throughthe ability to issue declarations on points of law.

As mentioned, there are other public officials who have that responsibility, and otherappropriate legal procedures to possibly engage if they fail to discharge their duties. [71] That case is not about standing, but rather abuse of process and misuse of the court system. [72] ACP also cites Professional Institute of the Public Service of Canada v Canada, (ON CA), [2002] OJNo 4831 (ONCA), which recognized the ability of the union to bring actions against the government relating to pension surpluses.

Whilethey seek to distinguish it on the basis that the union there had a bargaining relationship with the government and that no suchrelationship exists here, the union in that case had no legal interest in the outcome as it was arguing that the pension surpluses should goto its members. [73] Here, I do not see that there is any other effective alternative way to bring this issue before the courts. By inference, ACP issuggesting that the Court stand back and wait until there has been some arguable harm caused to a member.

In my view, it is a moreeffective way of resolving the issue of whether ACP is entitled to demand private information from a member in the fashion that it did,rather than wait for some arguable harm to have occurred. [74] As well, for an individual, having his or her union get involved in an issue that is relevant to a number of co-workers ratherthan have to bear the extraordinary cost of litigation herself, may be seen as an effective way of bringing the matter before the courts. [75] Alberta Liquor Store Association v Alberta (Gaming and Liquor Commission), 2006 ABQB 904 and Toronto DominionBank v Real Estate Council of Alberta, 2002 ABQB 69, are cited to demonstrate circumstances where the Court has limited accessbecause of the lack of direct impact of the impugned decision or action on the claimant.

These cases predate Downtown Eastside andmust be read in that context. [76] I would certainly not go to the extent of describing HSAA as a busybody or inter-meddler, as was the case of the applicant inAlberta Liquor Store Association. [77] I am satisfied that HSAA has the necessary status or standing to bring and maintain this action and this application. HSA appeal provisions [78] ACP points out that the statutory regime set out in the HSA governs the relationship between Ms.

Mark and her employer, andargues that any employment-related disputes should be dealt with by the provisions of the HSA and should be referred to the HealthDisciplines Board under

section 25 of the HAD. [79] They reference Weber v Ontario Hydro, (SCC), [1995] 2 SCR 929, Regina Police Association v ReginaPolice Commissioners, 2000 SCC 14, Quebec (CDPDJ v Quebec (PG), 2004 SCC 39, Amalgamated Transit Union, Local 583 vCalgary (City of), 2007 ABCA 121, Allen v Alberta, 2003 SCC 13 and Calgary (City) v International Association of Fire Fighters(Local 225), 2012 ABQB 90. [80] ACP submits that the Plaintiffs are attempting to circumvent the legislation and the authority of the Health Disciplines Board.That brings into play the abuse of process provisions in Rule 3.68. [81] As a result, they argue that the claim and the Plaintiffs’ application are an abuse of process, and that the Court does not havejurisdiction to deal with them, citing Fufa v University of Alberta, 2012 ABQB 594. [82] Denos Pawn and Sales Ltd. v Winnipeg (City), 2007 MBQB 256, is cited as support for their argument that since thePlaintiffs have suffered no damages, a claim for declaratory relief should not be allowed.

That case actually holds that declaratory reliefmay be appropriate where there is no damage claim and declaratory relief affords a complete remedy (see paragraph 21). [83] The answer to these objections by ACP is that there is nothing to appeal to the Health Disciplines Board.

The HealthDisciplines Board has no authority over ACP and has no jurisdiction to become involved in a registration dispute between ACP and oneof its members. [84] ACP also cites Bahcheli v Alberta Securities Commission, 2007 ABCA 166 and Real Estate Council of Alberta vHenderson, 2007 ABCA 303, arguing that the Plaintiffs’ claims are an attempt to get around statutory restrictions on appeal rights.Again, there is no decision of the Health Disciplines Board to appeal from, and no jurisdiction to put the central issue here before theHealth Disciplines Board.

[85] This objection to jurisdiction fails. Collective agreement issues [86] ACP argues that the matter is governed by the collective agreement between Ms. Mark and HSAA. That submission appearsto be grounded in the fact situation Ms. Mark faced when she refused to respond to ACP’s questions. She feared that her employer wouldsuspend her if her registration was not renewed. If those fears had played out, Ms.

Mark may have had a grievance that might have beendealt with under the collective agreement, but by the time of the application, the issues had diminished into two fundamental ones: thestatus to challenge the form and whether the form could be used for registration renewal purposes. [87] ACP’s position is that any impact on Ms.

Mark’s employment is governed by the collective agreement, and as such, disputesare to be governed by its terms. [88] It cites the test set out in Weber v Ontario Hydro, (SCC), [1995] 2 SCR 929, Bisaillon v ConcordiaUniversity, 2006 SCC 19, and Regina Police Association v Regina Police Commissioners, 2000 SCC 14, as requiring matters where the“essential character” of the dispute arises “expressly or inferentially from the

interpretation, application, administration or violation of thecollective agreement” to be dealt with under the collective agreement (at para 48 of Weber). [89] The rub is that Ms. Mark’s employer, AHS, has done nothing to affect her employment. That was the potential consequence ofany delay in renewal or refusal of Ms. Mark’s renewal application, but that never transpired. [90] Ms. Mark’s real issue is with ACP, and not her employer. There is nothing that can be done to assist her under the collectiveagreement, and in reality the only way Ms.

Mark can address her concerns about ACP’s actions is to commence some sort of proceedingagainst it. Judicial economy, and common sense, suggests that in a situation such as this, it is far better to seek a declaration as to rightsthan to wait until the shoe falls and causes harm to someone. [91] The collective agreement has no relevance to these issues, other than to tie HSAA to Ms. Mark and her concerns with herprofessional association. [92] I do not see that the collective agreement is a bar to Ms.

Mark’s right to pursue this process, nor does it affect HSAA’s abilityto seek declaratory relief for some of its members. [93] Ms. Mark’s employer has nothing to do with the dispute, such that Transalta Utilities Corporation v Young Estate, 1997ABCA 349 is of no assistance here. [94] It argues that although HSAA has no bargaining relationship with ACP, there is a letter of understanding between AHS andHSAA dealing with a procedure to address situations where a paramedic is directed to “perform duties which may contravene herregulated standards of practice”.

ACP argues that the concern over renewal falls within the collective agreement and should be addressedby the processes specified in it. [95] All the letter of understanding says about ACP is “the Parties may consult with the applicable college regarding the issue”.ACP is not a party to the agreement.

There has been no direction to perform duties which may contravene the standards of practice, andthere has been no allegation of any failure by AHS to consult. [96] In my view, the letter of understanding is irrelevant to the issues, and in any event it has no way of bringing ACP to the tableto discuss the renewal process. [97] This objection to jurisdiction fails. Renewal form itself [98] K(

B) v Alberta (Child & family Services, 2012 ABQB 329, holds that compliance with prescribed forms is not necessary ifdeviations do not impact the substance. The issue in that case was the effect of the Director of Child Welfare “ticking” the wrong box ona notice form sent to the applicant mother. The applicant argued that the Director had lost jurisdiction over the child because of thisirregularity.

The Director argued that no prescribed form existed to accomplish what was intended. [99] Veit J held at paragraphs 27 to 29: [27] In other words, the Director’s form of application was scrupulous in attempting to be as clear as possible about the route whichthey chose: not the s. 18 route, but the route provided in s. 32. Unfortunately, it appears that there is no form which has been developedfor use with s. 32 and which sets out the choices that are available under that section. [28] As to the reference to a “prescribed form”, the

Interpretation Act reminds us that forms are there to assist in the working out ofthe legislator’s intention, and that deviations from the form that do not affect the substance should be ignored. [29] Here, the ticking of the ss. 21 and 34 box might have been incorrect; a more correct use of the form might have been a solereference to s. 18, as that would presumably draw in a reference to s. 34.

However, the objective of the Act has in no way beenundermined by this administrative act; on the contrary, this choice on the form provides, if anything, more information to the familyabout what the Director is doing. [100] ACP argues that paramedics have not lost any substantive rights as a result of what they describe as the “competency

questions”. They describe the questions as relating to safety and competence. That may be the case, but the questions also raise the spectre of human rights issues (health) as well as privacy issues (health and criminal record). I note that Ms. Mark has apparently complained to the Alberta Privacy Commissioner under the provisions of the Personal Information Protection Act , SA 2003, c P-6.5 . [ 101 ] ACP also argues that forms are not required to be prescribed by the Minister.

It cites Kolody v Alberta , 2016 ABQB 360 , which holds: 50 I am satisfied that the use of the term “may” in the legislation is indeed permissive, and implies that the power need not be exercised by the Minister. I do not agree the use of the term in the context of the legislation requires the Minister to issue commercial licences, or to consider licences on an individual basis as the Applicants suggest is required by Lac La Biche , above. 51 The wording of the licensing provisions provides some guidance in determining whether the Minister is authorized to no longer issue individual permits to commercial fishery.

The term “may” with respect to the issuance of licences in sections 12 and 13 of the Act is considered to be permissive and empowering (see, s. 28(2) (c),

Interpretation Act , RSA 2000, c 1-8). 52 The use of the term “may” to confer a power normally indicates that the recipient of the power has discretion whether or not to exercise that power ( Alberta (Minister of Justice ) v. Sykes , 2011 ABCA 191 , 505 A.R. 380 (Alta.

C.A.), cited in R Sullivan, Sullivan on the Construction of Statutes , 6th ed (Markham, Ontario: LexisNexis Canada, 2014) at paras 4.70 to 4.74). [ 102 ] Here, the Minister has prescribed a renewal application form, which is required to be submitted as a condition of renewal. [ 103 ] This is not a situation where the Minister has not prescribed a form, but rather a situation where the Minister has occupied the field.

I do not think there is any scope to suggest that the ACP can ignore the Minister’s form and prescribe its own form. [ 104 ] To suggest that the deviations from the prescribed form are not substantive ignores the potential human rights and privacy issues arising from the “competency questions”. Veit J does not talk about losing substantive rights as a result of changes to a prescribed form, but rather talks of deviations “affecting the substance” of the form. [ 105 ] Here, the prescribed form has no questions relating to health or criminal conduct.

Adding such significant topics certainly affects the substance of the form. [ 106 ] There is no regulatory basis for a review of a member’s health or conduct as part of the renewal process. These may be matters of competency or discipline, or both. I do not doubt that the ACP has a responsibility to ensure the continued competency of paramedics, and to take appropriate disciplinary action if a member’s conduct discredits the profession. [ 107 ] However, the current regulatory framework for renewals does not permit the ACP to require, as a condition of renewal, that the information be provided.

It may well be able to get the information in other ways, but I do not see that it can, at present, use the renewal process as a means to gather information. [ 108 ] I conclude that gathering the information requested by the “competency questions” is an improper addition to the prescribed renewal form. For renewal purposes at the present time, a member is only required to provide the information in the prescribed form. [ 109 ] I leave it to another day as to whether the ACP can require members to answer the “competency questions”. Appropriateness of

summary judgment [ 110 ] ACP argues that its application for

summary dismissal of the action should succeed on the basis of its jurisdictional and status arguments, as well as on the merits. As such they argue that the test in Lameman v Alberta , 2012 ABCA for abuse of process should be applied: it is plain and obvious that the Plaintiffs’ action will fail. [ 111 ] I have already dealt with the jurisdictional and status arguments and have concluded that the Court has the necessary jurisdiction to consider declaratory relief here, and should exercise a discretion to do so.

There is no impediment to the relief claimed by virtue of the appeal provisions of the HDA, or the existence of the collective agreement between Ms. Mark’s employer and HSAA. [ 112 ] I have also concluded on the merits that there was no statutory authorization for ACP to require information not contained in the prescribed form as part of the membership renewal process. [ 113 ] As such, it is not necessary for me to deal with ACP’s arguments as to why they should succeed on

summary dismissal under the authority of Windsor v Canadian Pacific Railway , 2014 ABCA 108 , and the other cases cited on the tests for use of

summary judgment processes following Hryniak v Mauldin , 2014 SCC 7 . [ 114 ] Nor do I need to deal with the Plaintiffs’ cases, as I have concluded that there is no genuine issue for trial. There is no conflicting evidence in any material respect. No novel or emerging areas of law are engaged.

Summary judgment processes are entirely appropriate here. Relief I am satisfied that the Plaintiffs are entitled to the following declaration: ACP has acted ultra vires its jurisdiction by requiring its members, including the Plaintiff Ms. Mark, to complete and submit the renewal form used for 2016. [ 115 ] No other relief is necessary or appropriate, as there is no evidence of any pursuit of Ms. Mark for failing to answer the

supplemental questions asked of her, or that her or any other member’s registration was cancelled, or that renewal was restricted or refused on the basis of information provided in the renewal form or refusal to answer the questions in the form or supplemental questions. Costs [ 116 ] If the parties are unable to agree on costs, they may provide written submissions to me within 45 days from the date of this decision. Heard on the 22 nd day of September, 2016. Dated at the City of Edmonton, Alberta, this 22 nd day of December, 2016. Robert A. Graesser J.C.Q.B.A. Appearances: Kelli Lemon Seveny Scott for the Plaintiffs Amy-Lynn Smith Gowling WLG (Canada) LLP for the Defendant