Fitzpatrick v Physiotherapy Alberta College, 2017 ABQB 453

Court of Queen’s Bench of Alberta Citation: Fitzpatrick v Physiotherapy Alberta College, 2017 ABQB 453 Date: 20170726 Docket: 1501 11502 Registry: Calgary Between: Marilyn Fitzpatrick Plaintiff - and - Physiotherapy Alberta College, The College of Physical Therapists of Alberta, Dianne Millette, Cathy Sveen, Melissa Merritt, Leanne Loranger, Dianne Zaayac, Jo-Anne Ogle, Julie Moylan, Greg Cutforth, Ron Crossley, Grant Irwin, Tress Gibson, Candis Whittall, Krishna Prasanna, and Erica Farrell Defendants _______________________________________________________ Memorandum of Decision of A. R. Robertson , Q.C., Master in Chambers _______________________________________________________

Introduction [ 1 ] These applications arise out of disciplinary proceedings brought by a professional college against the plaintiff. Ms. Fitzpatrick sues the College’s registrar, the investigators, as well as the individual members of the discipline committee and the Council appeal panel, in association with those disciplinary proceedings. [ 2 ] The defendants apply to have the claim summarily dismissed pursuant to rule 7.3 or struck out pursuant to rule 3.68. They also asked to have the disclosure rules in

Part 5 of the Alberta Rules of Court suspended pending this application. That temporary suspension was agreed to by the plaintiff. [ 3 ] The plaintiff applies to amend the statement of claim to add her physiotherapy clinic as a plaintiff, to increase the amount of damages claimed, and to identify more clearly the causes of action upon which she sues. [ 4 ] For the reasons set out below, I grant the

summary dismissal of the claim as to certain individuals but not as against the College, the registrar, one investigator, and one member of the hearing panel. I allow the amendments, but subject to a requirement that the amended claim be re-drafted to address the

summary dismissal of part of the claim. Overview [ 5 ] The allegations of professional misconduct arose under the legislation that was in place prior to May 8, 2011 when the Physical Therapy Profession Act , RSA 2000 C P-14 (“ PTPA ”) was replaced by provisions in the Health Professions Act , RSA 2000, c. H-7 (“ HPA ”). [ 6 ] The change in legislation is relevant primarily because of the provision protecting participants in the disciplinary proceedings.

Both Acts allow defences based on “good faith”, but the wording of the similar provisions in the two Acts is somewhat different. [ 7 ] The defendants argue that most of the claims are statute-barred because of the passage of time. In this regard, the question is whether the cause (or causes) of action, if there is a cause of action, arose at the time of the commencement of the proceedings, the completion of the first hearing, or the expiry of the appeals. This matter has been to the Court of Appeal of Alberta on two separate occasions.

The matter was referred back by the Court of Appeal for re-consideration of the sanction in light of a partial reversal on appeal, and then a further appeal to the Court of Appeal as to the sanctions. [ 8 ] The defendants also argue that in addition to the statutory immunity available to them under the PTPA and/or HPA , the causes of action relied upon by Ms. Fitzpatrick are not supported by the facts. Therefore, the claim should be summarily dismissed under rule 7.3. [ 9 ] The defendants argue that the claim should be struck pursuant to rule 3.68 for these reasons: (

a) the statement of claim discloses no reasonable claim and the allegations have no merit in law; (

b) the action constitutes an abuse of process and an improper collateral attack on the decisions made by the professional association in accordance with the legislation; and (

c) the allegations are res judicata as a result of the hearings and appeals already held. [ 10 ] Ms. Fitzpatrick argues that the disciplinary process was flawed. Of significance is the fact that she was initially told by an investigator that she was being investigated for alleged “kickbacks” to a lawyer involved in motor vehicle accident claims.

This allegation was not part of the formal list of counts against her once they were enunciated in the Notice of Hearing, although the allegation had been referenced in the complaint letter that led to the investigation. [ 11 ] She further argues that the very basis of the complaint that was made that began the process – that she was “over-diagnosing” patients for personal gain - was never proven, although the Discipline Committee allowed that complaint.

It was upheld on appeal within the College, but the Court of Appeal set that finding aside because the evidence did not support it. [ 12 ] The allegations of kickback and the allegations of “over-diagnosing” are said to have been improperly repeated outside the disciplinary process and they have damaged her professional reputation and thus her income. [ 13 ] She argues that this was not done in good faith – that the evidence suggests that there was another agenda at play. Therefore, the immunity provisions do not protect the defendants.

History [ 14 ] The initial complaint was made by the Insurance Bureau of Canada (the “IBC”) on behalf of six insurance company members of the IBC.

IBC had apparently initially attempted to make a complaint but the College would not accept it because the complaint had not been made by a patient. [ 15 ] The office of the Superintendent of Insurance became involved at the request of IBC and recommended in a letter of December 17, 2007 that the College complete a review and investigation and that the College provide the Superintendent of Insurance with the results. [ 16 ] IBC then made another attempt at making the complaint, dated May 7, 2008.

The complaint specifically stated that “there is no evidence to support the beliefs [of ‘kickbacks’] at this time.” [ 17 ] The College appointed two investigators by letter of May 9, 2008, only two days later.

[ 18 ] The Registrar, Dianne Millette did not write to Ms. Fitzpatrick to tell her of the complaints until June 17, 2008, about five weeks later. [ 19 ] The formal steps commencing the process did not involve investigating “kickbacks”. [ 20 ] However, before receiving the Registrar’s June 17 letter, Ms. Fitzpatrick received a telephone call from Cathy Sveen, one of the investigators who had been retained. On June 19 she called the Registrar and left a message expressing concern. [ 21 ] Ms. Sveen had apparently told Ms. Fitzpatrick that Ms. Fitzpatrick had been accused of taking “kickbacks” from lawyers.

As mentioned, the complaint letter from IBC specifically said that there was no evidence that IBC had of any “kickbacks”. [ 22 ] The Registrar deposes that Ms. Fitzpatrick “was initially uncooperative with the investigation”, although the facts make it clear that the investigator’s initial contact with her would have been a complete surprise, because although the investigator was appointed five weeks before she was contacted, Ms. Fitzpatrick was unaware that there was any investigation before receiving the telephone call from the investigator.

As well, subsequent communications make it clear that she intended to cooperate but wanted to make sure that (

a) clients’ confidential information was protected, and (

b) the insurance industry was not to be involved, possibly compromising clients’ confidential information since the insurance industry had an obvious financial interest. [ 23 ] In light of the letter of November 17, 2007 from the office of the Deputy Superintendent of Insurance to the College, the possible involvement of the insurance industry would appear to have been a legitimate concern of Ms. Fitzpatrick.

The correspondence suggests that the investigation resulted from that request, and the Deputy Superintendent of Insurance had asked for a report. [ 24 ] No evidence was ever found of any kickbacks, and the lawyer in question was never investigated. [ 25 ] The investigators, after communications between counsel for the College and counsel for Ms. Fitzpatrick, expanded the scope of the investigation on January 6, 2009 to include two more concerns, being (

a) whether the charting contained in the files provided by Mrs. Fitzpatrick met the College’s standards, and (

b) whether there was an inappropriate relationship between Ms. Fitzpatrick and the lawyer including “the appropriateness of the billing practices” and written communications between Ms. Fitzpatrick and the lawyer. [ 26 ] After receiving a preliminary report from the investigators, which I discuss below, the Registrar revised the terms of investigation to describe the complaint in the Notice of Hearing to include these new points, and ultimately Ms. Fitzpatrick was disciplined for something different than the core of the original complaint.

The allegation of “kickbacks” was not one of the counts listed in the Notice of Hearing, unless it can be considered as being included in the reference to “the appropriateness of the billing practices”. [ 27 ] A second complaint was then presented by ING Insurance, on January 27, 2009, similar in nature to the IBC complaint. However, on February 24, 2009 – less than a month after submitting its complaint – ING Insurance contacted the college requesting to withdraw its complaint.

The College responded that there was no process for withdrawing a complaint once it had been made. [ 28 ] The College expanded the investigation to cover both complaints. [ 29 ] Ms. Fitzpatrick argues that the entire process has been motivated by ill will, not good faith, and that the facts when viewed as a whole demonstrate that there was another agenda at play. She feels that she has been specifically targeted for reasons not clear to her, and it is inappropriate to summarily dismiss the claim at this stage.

She wants to be able to look further into the case. [ 30 ] Her desire to look further is heightened because the defendants also asked for a suspension of the disclosure obligations set out in

Part 5 of the Rules of Court until after this decision has been rendered. Accordingly, she argues that her ability to advance her claim is being impaired by this refusal to disclose information which she believes will tend to demonstrate the merits of her claim. [ 31 ] In particular, she gave evidence in cross-examination of a report that she received from a banker, whose identity she did not disclose. She said that he told her that Julie Moylan, one of the members of the Discipline Committee that dealt with the counts brought before them, reported that Ms.

Fitzpatrick would be ready to sell her physiotherapy clinic. This is said to have occurred after much of the disciplinary proceedings had been completed. Ms. Moylan is said to have previously inquired of Ms. Fitzpatrick, prior to the complaints being advanced, as to whether she would be willing to sell her clinic. Ms. Fitzpatrick sees these events as connected. Hearsay Evidence Elicited in Cross-Examination [ 32 ] In oral argument I questioned whether the evidence of the information from the banker was properly before the Court because Ms.

Fitzpatrick had not provided specific information as to the source of the knowledge. Rule 13.18(2) requires that when an affidavit is sworn on the basis of information and belief, the source of the information must be disclosed in the affidavit. I questioned whether that approach applied to information brought out in cross-examination, where a belief is identified, but the source is not disclosed. Both parties subsequently provided written submissions. [ 33 ] The case law relied upon to support the argument that the evidence is not admissible is directly based on rule 13.18 or its predecessor, rule 305.

There appears to be no authority directly on point. [ 34 ] Rule 13.18 specifically deals with affidavits. Parties should not be entitled to put forward “evidence” of others without any clear indication of whose evidence it is and without saying that the deponent believes it (unless the statement is put forward merely for the fact that it was said, in which case the belief is that the statement was made, not that it was true).

When a deponent to an affidavit has the opportunity to craft the evidence in advance for a chambers application (not one in support of an application that may dispose of all or part of the claim, in which case rule 13.18(3) applies) the requirement is a proper one. [ 35 ] But different considerations apply when the witness is cross-examined. When asked about a fact or belief, the witness is entitled to give her answer and expect that it will be in the record to be relied on. It is not her obligation to insist that the cross-examiner

follow up with more questions to make sure that the evidence is fully supported. [ 36 ] In fairness to counsel for the defendants, he did follow up to a great extent. The evidence about Ms. Moylan was disclosed in response to an open-ended question at page 57 of the transcript, “Is there anything else that you can point to, Ms. Fitzpatrick?” The question was specifically directed to an assertion that the defendants had disclosed information about the proceedings to “one or more lawyers”. Ms.

Fitzpatrick then gave the evidence, in some detail, about a bank manager who had made a proposal for a buyer for her facility “because he had heard that I would be ready to sell from Julie Moylan, who was on the discipline hearing.” [ 37 ] Counsel then asked several questions (pages 57 through 63) and brought out that the relevance of this evidence is that Ms. Moylan had expressed an interest in buying Ms. Fitzpatrick’s facility before the investigation, and that Ms. Fitzpatrick had raised this early on in an argument asserting bias. [ 38 ] Ms.

Fitzpatrick offered to have counsel call the bank himself to verify her evidence that she was at the meeting (page 57 line 24 to 25). However, he never asked the questions what bank it was, or who the bank manager was. Those are the missing pieces of information. [ 39 ] In my view, after hearing from counsel on the point, rule 13.18(2) is specific in its application, and evidence brought out in cross-examination is not subject to the same requirement for an application such as this.

The question was asked whether there was anything else she could point to in connection with her assertion that the defendants had improperly disclosed the proceedings to lawyers, but the evidence in the affidavit upon which the question was based was not limited to lawyers but rather to “unfounded allegations of kickbacks”. Assuming that Ms. Fitzpatrick’s belief is true, the evidence was properly given in light of the open-ended nature of the question. The evidence raises issues that are problematic for the defendants, who carry the burden on this application.

Limitations and Related Proceedings [ 40 ] In oral argument I brought to the attention of counsel Ewing v Allen , 2015 ABQB 264 , because it seemed that it might apply to the arguments about the limitations issue. The argument advanced by the defendants is that the facts were known to Ms. Fitzpatrick well over two years prior to the filing of her statement of claim and therefore her claim is statute-barred.

The defendants argue that she was not entitled to, or required to, wait for the outcome of the appeals before suing. [ 41 ] Her response is that her claim was not known to warrant bringing a proceeding until the last Court of Appeal decision. The limitation runs from the discovery of the injury, not the discovery of a cause of action: SunGro Horticulture Canada Ltd v Abe’s Door Service Ltd , 2006 ABCA 243 , 63 Alta. L.R. (4 th ) at para. 11.

Until the disciplinary proceedings, including all appeals, had been completed, it would have been premature to commence a proceeding for malicious prosecution, negligence and abuse of process. [ 42 ] In Ewing v Allen , the claim arose from an assertion that Ms. Ewing’s first lawyer had made errors in her handling of her divorce. She said that she was told that by her second lawyer. Based on that, she sued her former husband, then waited 3.5 years before filing her claim in negligence against her first lawyer.

Her explanation for the delay was that it was not until her second lawyer obtained her first lawyer’s complete file from storage that she learned new facts that related to this assertion, but she did not make it clear what that new information was. It was in this context that Master Hanebury made this statement: “Related litigation that has not come to a conclusion does not stop the limitations from running.

The governing factor is the timing of the acquisition of the material facts that give rise to the claim”. [ 43 ] A careful analysis therefore discloses a significant difference in the facts in Ewing v Allen and this case. The “related litigation” here was not simply parallel proceedings; it was the litigation over the exact process that Ms. Fitzpatrick says was carried on with an improper motive. [ 44 ] In addition, here Ms. Fitzpatrick refers to the evidence, about the bank manager and Ms.

Moylan’s alleged assertion that she was willing to sell her clinic, in support of her claim – that information was learned within two years of the claim being advanced and thus not beyond the limitation period. That information is said to be part of the factual matrix that caused her to sue, because it is said to shed some light on the ill-will and improper motive that is said to have guided the disciplinary college throughout – that there was another agenda at play. [ 45 ] It is important to note here that the College was not entirely successful throughout the process.

The focus of the investigation changed during the investigative process and the ultimate discipline was for actions less severe than was originally its focus. If the assertion of the inquiry starting with an unauthorized investigation into supposed “kickbacks” is correct, then there was an important change in focus from the beginning to the end. [ 46 ] The Court of Appeal summarized the proceedings at paragraphs 2 and 3 of its decision reported at 2015 ABCA 95 : [2] This appeal has a long history. Ms.

Fitzpatrick, a licensed physiotherapist of thirty years experience, was the subject of a complaint from the Insurance Bureau of Canada on behalf of six motor vehicle insurers. The thrust of the complaint was “disproportional diagnosis” of certain patients with a serious whiplash-associated disorder. It was also alleged that Ms. Fitzpatrick improperly communicated and took instructions from her patients’ lawyer in respect of their legal proceedings resulting from motor vehicle accidents. Four charges were brought and a hearing ensued over a period of seven days.

She was acquitted on one count, but found guilty of three others, one of which was successfully appealed and quashed. [3] All that remained were charges 3 and 4 which this Court ordered be re-sanctioned by the College. The remaining charges were a failure to maintain patient charts and the alleged impropriety of seeking guidance from her patient’s lawyer. [Emphasis added.] [ 47 ] When the process first began, it was based upon the two complaints from IBC and ING.

These complaints were, as summarized by the Court of Appeal in its first decision (reported at 2012 ABCA 207 ) at paragraph 224, as expressing the concern that

Ms. Fitzpatrick was diagnosing a disproportionate number of patients with Whiplash Associated Disorder level III (“WAD III”) when those patients had previously been diagnosed with a lesser level of injury and that most of those patients were being represented by the same lawyer in legal proceedings. The later ING complaint was focused on the alleged over-diagnosing WAD III injuries. [ 48 ] The IBC complaint included the suggestion of “kickbacks” but it also stated that there was no evidence in support. The investigation process at that point seems to have been somewhat unfocussed.

The appointment of the investigators simply referred to the IBC complaint. It did not otherwise set out a scope of the investigation. That may explain why there was a reference to a complaint of kickbacks in the initial telephone call, but it is acknowledged that that was not the complaint being investigated. [ 49 ] In the result, the final outcome was sanctions for “offences” that were less serious than was originally set out. The central allegation of improper diagnoses failed. [ 50 ] It may fairly be said that Ms.

Fitzpatrick’s claim could not properly have been made until the process was over and “the dust had settled”. Until it was over, Ms. Fitzpatrick did not know what she was dealing with. [ 51 ] With this in mind, the limitations argument presented by the defendants is not sufficiently clear to allow

summary dismissal. I do not make a final decision as to the limitations defence, merely that I cannot dismiss summarily on this ground. The Preliminary Investigation Report [ 52 ] The preliminary report provided by the two investigators was very sparse. It contained no evidence of patients being improperly classified as WAD III, no evidence of kickbacks, and no evidence of improper dealings with the lawyer. [ 53 ] The report, dated January 5, 2010, is included in the evidence of Ms. Millette as an exhibit. It contains no conclusion, and it is merely a

summary of correspondence, other interactions, an interview with Ms. Fitzpatrick, and excerpts of various quotations from persons either interviewed or who expressed comments in writing. [ 54 ] Based on this sparse report, on March 11, 2010 Ms. Millette, the College’s Registrar, decided to refer the matters to the discipline committee for the purposes of a disciplinary hearing. [ 55 ] However, Ms. Millette did not forward a copy of the investigative report to counsel for Ms.

Fitzpatrick until April 28, 2010. [ 56 ] The four specific complaints were not identified clearly until the notice of hearing was prepared on September 8, 2010. Until then, the investigators appear to have been working solely on the basis of the complaint letters from IBC and ING and their own expansion of issues set out in their January 6, 2009 letter. The Notice of Hearing [ 57 ] The Notice of Hearing identified four counts, which I summarize as follows: 1. That Ms.

Fitzpatrick upgraded the diagnosis for “a number of patients” in order to obtain a greater number of treatments and otherwise would have been allowed; 2. In the alternative, that she upgraded the diagnosis for “a number of patients” by increasing the diagnosis without taking appropriate care to ensure that the assignment of the diagnosis was appropriate; 3. That she failed to maintain patient charts in a manner that complied with charting standards expected of physical therapists, with particulars of the requirements specified; 4.

That she prepared correspondence to a lawyer inappropriately seeking guidance from him regarding the assessment and/or treatment of her patients and/or the conduct of her practice, with particulars set out which, notably, did not include a concern about “the appropriateness of billing practices.” [ 58 ] The matter proceeded through a hearing of the discipline committee, which found her guilty on all counts. Ms. Fitzpatrick unsuccessfully appealed that decision to the College Council, which upheld the decision, but gave procedural directions for the implementation of the sanctions.

Later, the Council awarded costs of the hearing against Ms. Fitzpatrick. Partial Reversal in the Court of Appeal [ 59 ] An appeal was brought to the Court of Appeal. (As mentioned, a second appeal was brought later.) In the first appeal to the Court of Appeal, the Court addressed the clarification, at the outset of the hearing, that it was 56 patients whose records were being reviewed and who were alleged to have had “upgraded” diagnoses, and found that neither of the elements of (

a) upgrading the previous diagnosis to WAD II, or (

b) that each inappropriate diagnosis was as a result of not taking proper care, had been proven. [ 60 ] The majority of the Court was critical of the conclusion of over-diagnosing because it was purported to have been proven by statistical evidence only. The College’s decision was that it was “highly improbable that Ms. Fitzpatrick’s patient population varies greatly from the average”. The Court concluded that it was necessary for the discipline committee to determine whether there had been a misdiagnosis in each instance.

The Court did not mean to say that the committee would have to have found that all 56 patients had been misdiagnosed; rather, it only had to find a sufficient number of the 56 patients have been misdiagnosed to amount to the misconduct described in the charge. However, the committee had to make specific findings with respect to individual patients, and that was not done. [ 61 ] As to the charge of failing to comply with charting standards, Ms. Fitzpatrick’s appeal was dismissed. As to the fourth charge, that she inappropriately sought guidance from a lawyer, her appeal was also dismissed.

[ 62 ] In light of the mixed result on appeal, the matter had to be referred back to the College for a review of sanctions. [ 63 ] The second appeal to the Court of Appeal ( 2015 ABCA 95 ) was dated March 9, 2015. It was brought by Ms. Fitzpatrick following the revised sanction order. The appeal was substantially, but not completely, unsuccessful.

The Court was troubled by the decision to the effect that if “concerns” emerge, “the registrar may refer the matter back to a discipline committee for further consideration with respect penalty”, leaving open the prospect of revisiting the question of penalty in respect of the very same charges. [ 64 ] The Court found that the principle of finality would thus be breached, and modified the sanction order to provide that if there were continued concerns then the Registrar may file charges relating to those concerns or take other remedial non-punitive action.

Otherwise, the appeal was dismissed except as to the timing of payment of costs. [ 65 ] It is in this factual context that the defendants apply to have this claim struck under rule 3.68 for failing to disclose a proper claim, and alternatively to have the claim dismissed summarily under rule 7.3. “Good Faith” Immunity [ 66 ] As mentioned, the “good faith” wording varies slightly in the two possibly relevant enactments.

Section 70 of the now- replaced Physical Therapy Profession Act , RSA 200, c. P-14 provided as follows: 70(1) No action lies against (

a) any person conducting a preliminary investigation, a member of the Council or of a committee established by this Act, the Registrar, the College or any person acting on the instructions of any of them, or (

b) any member, officer or employee of the College for anything done by that person in good faith and in purporting to act under this Act, the regulations or a bylaw that relates to or is incidental to a professional matter or a matter of public interest that is or may be the subject of a regulation under

section 72. [ 67 ] That provision was in place until May 8, 2011, when the College became governed by the Health Professions Act , RSA 2000, c. H-7, which included

section 126 : 126(1) No action lies against any of the following in respect of anything done or omitted to be done in good faith pursuant to this Act, an order of the Minister, the bylaws or any direction of the council: (

a) a college or a person who is or was an officer, employee or agent of a college; (

b) a person who conducts or has conducted an investigation or an alternative complaint resolution process under

Part 4 or a practice visit; (

c) the council or a person who is or was a member of a counsel, committee or hearing tribunal of a college; (

d) a person who acts on the instructions of or under the supervision of a person referred to in clauses (

a) to (c); [ 68 ] The original discipline committee’s decision on sanction and costs was issued June 29, 2011. The appeal decision within the College was issued December 7, 2011. The first appeal to the Court of Appeal was decided June 29, 2012. [ 69 ] It is apparent that all of the formal hearing steps taken here shortly followed the change in legislation, but the investigation and the decision of the Registrar preceded the change in legislation.

I am not aware of any case addressing which provision might apply in these circumstances. [ 70 ] The earlier legislation provided protection for, “anything done by that person in good faith and in purporting to act under” the applicable rules, and the later legislation provides protection for, “of anything done or omitted to be done in good faith pursuant to” the applicable rules (my emphasis). [ 71 ] For the purposes of this case, there is no need to decide what, if any difference this distinction between the two sections means.

The complaint is not about something that was omitted to be done, but rather things that were done. The Claims Advanced [ 72 ] As to the specific claims advanced, the defendants categorize the claims advanced as follows: (

i) malicious prosecution; (ii) negligent investigation; (iii) the tort of abuse of process; (iv) misfeasance in public office; (

v) intentional infliction of mental distress; and (vi) economic loss. The Arguments by the Defendants

[ 73 ] The defendants argue that there is no evidence of bad faith and that the burden lies on the plaintiff to prove bad faith, not on them to prove that they acted in good faith. [ 74 ] The defendants argue that there is no merit to any of the tort claims listed above, because the evidence simply does not support them.

Arguments are made in law pursuant to each of the individual torts in support of the submission that the critical components of each of the torts have not been proven. [ 75 ] Furthermore, as mentioned above the defendants argue that the claim is statute-barred. [ 76 ] The defendants further argue that the claim is an abuse of process and an improper collateral attack on the disciplinary proceedings. Ms. Fitzpatrick replies that she is not attacking the outcome of the disciplinary proceedings.

She accepts the decisions of the Court of Appeal. [ 77 ] The defendants finally argue that the allegations are res judicata . Ms. Fitzpatrick once again argues that she is not challenging the previous rulings. Credibility [ 78 ] The defendants further argue that the plaintiff’s credibility is in issue, however section 9(3)(

b) of the Court of Queen’s Bench Act , RSA 200 c. C-31 prevents me from making a decision based on credibility, unless the credibility of the deponent has been completely destroyed in cross-examination. Even the defendants do not make that argument, but rather argue that the plaintiff’s credibility “should be seriously questioned.” [ 79 ] In any event, her credibility has not been destroyed by cross-examination.

Some of the examples of supposed conflicts in her evidence are not very persuasive. [ 80 ] For example, she swore that she had been denied registration by the College of Physical Therapists of British Columbia due to the seriousness of the dismissed allegations brought against her in Alberta. In cross-examination she admitted that she had never actually been denied, but rather she withdrew her application when it became clear that the BC college was going to undertake an investigation of her suitability, and proceeding seemed pointless.

I would view that more as clarification than as contradiction, even though strictly it is a contradiction. [ 81 ] As well, she swore that she had seen a 30% decline in motor vehicle accident patients resulting from the disciplinary process, and in cross-examination admitted that that was an estimate rather than a precise calculation. This is the sort of detail and clarity that is often elicited in cross-examination. I do not see it is a contradiction. [ 82 ] The defendants argue that in cross-examination Ms.

Fitzpatrick admitted that she does not know whether she formed an opinion about the subject matter of the complaint based on the phone call from the investigator or based on a subsequent discussion with the Registrar, or both. However, the Registrar’s own evidence includes a memo to file dated June 20, 2008 which is a transcription of a voicemail message left for the registrar by Ms. Fitzpatrick on June 19. It specifically says that she was told by the investigator that she understood that the complaint included “the accusation that I take kickbacks from lawyers”. [ 83 ] In cross-examination, Ms.

Fitzpatrick said at page 12, “Upon receiving that [phone call], it became apparent – whether it was because of communication from [the investigator] or from the communication from the registrar, but it became apparent at that time that there had been a complaint from the Insurance Bureau of Canada, and I became aware that the foundation of the complaint was that I was receiving kickbacks.” [ 84 ] Counsel for the defendants then asked, “So your evidence now is that you’re not sure if it was the call from [the investigator] or your discussion with the registrar when you understood the subject matter of the complaint?” [ 85 ] That is not a fair characterization of her evidence.

Her voicemail message had said nothing about the complaint by IBC. She had just testified about when she knew that IBC was involved . However, she responded in cross-examination saying, “it could have been either, or it could have been both.” [ 86 ] I read this as indicating a small amount of confusion by Ms. Fitzpatrick in cross-examination, resulting from an inaccurate re- stating of her evidence embedded in the question asked by counsel. This is not a contradiction by her that puts her credibility in serious doubt.

Analysis [ 87 ] As the style of cause discloses, the plaintiff has sued both “The College of Physical Therapists of Alberta”, as well as “Physiotherapy Alberta College”. Under the previous legislation, the College was known as, “The College of Physical Therapists of Alberta”, and when the Health Professions Act was enacted, it was brought under that legislation. The reference to “Physiotherapy Alberta College” has not been explained in the materials before me.

However, there is clearly only one College, and no one is confused by the possible incorrect naming of it in the style of cause. [ 88 ] As to the rest of the defendants, there is no evidence respecting any of the individual defendants other than (

a) the Registrar (Dianne Millette), (

b) the member of the disciplinary committee (Julie Moylan) and (

c) the investigator (Cathy Sveen) who made the reference to an investigation into “kickbacks, that might possibly take them out of the “good faith” immunity created by the legislation. [ 89 ] Provisions in legislation that provide immunity for decision-makers require the plaintiff to show “a clear departure from a duty imposed upon an official by statute” for there to be liability: Condominium Corporation No. 9813678 v Statesman Corporation , 2009 ABQB 148 beginning at paragraph 68 , and the cases cited there.

[90] On a

summary judgment application, each party is to put their best foot forward, and based upon the record the Court is todetermine if there is any issue of merit that genuinely requires a trial. With respect to the various members of the disciplinary committeeand the Council that heard the appeal, with the exception of Ms. Moylan, there is no issue that genuinely requires a trial. The evidencesuggests nothing more than the fact that they were performing their duties under the applicable legislation.

The fact that their decisionsdid not completely stand up on appeal does not demonstrate bad faith. [91] With respect to the Registrar, there is at least an arguable case that her decision to send the matter to the disciplinary hearinghad no basis in fact on some of the counts listed.

The sparse preliminary investigation report hardly supports the reference to thehearing, for the reasons discussed above. [92] If the matter had gone on to the hearing, the appeal, and then the subsequent appearances before the Alberta Court of Appeal,and the complaints as described in the Notice of Hearing were completely upheld, then it would be no doubt that this claim is simply acollateral attack on those proceedings. [93] However, that is not what happened. The fundamental concern expressed in the original complaint that began the process wasthe allegation of misdiagnosing patients for Ms.

Fitzpatrick’s personal gain. That is a very serious allegation that was not upheld,because it was never proven. [94] The investigator’s initial contact asserting that the complaint was about “kickbacks”, being something raised by IBC, when itwas not part of the investigation and when the complaint letter specifically said there was no evidence of it, is of concern. [95] The request by the Deputy Superintendent of Insurance for a report on the outcome is troubling. Why would theSuperintendent have any interest in the outcome?

I understand why it would speak for the insurance industry to argue that insurers hadstanding to make a complaint, but the interest in the outcome of this case is concerning. It tends to suggest that there was a discussionabout Ms. Fitzpatrick taking place within the insurance industry, and this seems to have been an attempt to draw the College in to it.

Ittends to suggest that there is merit to her complaint about the impact on her business. [96] Furthermore, the “issue creep” that appears to have resulted from the sparse preliminary investigation report that led to thefour counts set out in the Notice of Hearing that was created approximately nine months later, is of some concern, particularly in light ofthe assertion by the Registrar that Ms. Fitzpatrick was “initially uncooperative” with the investigator at a time when Ms. Fitzpatrick wasunaware of the existence of an investigation is troubling.

The assertion about being “initially uncooperative” at least overstates thecase. Subsequent correspondence between counsel indicate her willingness to cooperate but legitimate concerns were identified. [97] These factors leave open, at least to argument if not to a factual conclusion after a full hearing, that once the process ofinquiring into Ms. Fitzpatrick’s practice had begun, issues were added and modified to reduce the prospect of a complete dismissal of thecomplaints and to justify the Registrar’s actions.

That, in turn, suggests that there is at least a basis for a belief that there was anotheragenda at play. The involvement of the Superintendent of Insurance allows a basis for questioning whether the College was taking intoaccount the industry’s perspective, and the request for a report begs the question whether one was provided. [98] The evidence as to Ms. Moylan’s interest in buying Ms. Fitzpatrick’s practice, followed shortly thereafter by the disciplinaryprocess in which she played a key role, followed apparently by a discussion with a banker to the effect that Ms.

Fitzpatrick would now beready to sell, at least raises the possibility that removing Ms. Fitzpatrick from her practice was intended. [99] I do not mean to suggest that there is necessarily any merit to these assertions, but rather that a trial is the appropriate forumfor finding the facts, not a

summary dismissal application. Without at least the opportunity to conduct disclosure under

Part 5 of theAlberta Rules of Court Ms. Fitzpatrick would be left with some evidence for her beliefs but no meaningful opportunity to advance them. [100] A

summary judgment requires the Court to make a decision that is fair and just to both parties. I am unable to do that in respectof all of the defendants as a group, although as explained below I allow the

summary judgment (summary dismissal) as against many ofthem. [101] As to the collateral attack and the arguments about res judicata, Ms. Fitzpatrick accepts the outcome in the Court of Appeal andshe has not applied to set their rulings aside.

Rather, she argues that the initial complaint of over-diagnosing that was advanced againsther, which was central to the case overall, was never proven, and the offensive allegation of kickbacks was never even part of theinvestigation. [102] Her complaint is largely that the process was flawed from the beginning and the allegations about these things were allegedlyrepeated outside the hearing process for an improper purpose, and that caused her significant harm financially. Application to Amend the Claim [103] Ms. Fitzpatrick applies to amend her statement of claim.

Hur v 726913 Alberta Ltd, 2013 ABQB 208 at para. 27,clarifies that where there are cross-applications both for

summary judgment and to amend the claim, the court must hear and decide theapplication to amend before considering

summary judgment. Although this part of my decision appears at the end, it does so for clarityof the reader. The amendment application was a small part of the application as it was presented, and the issues in the applications tostrike and summarily dismiss are entwined in the application to amend. [104] The primary reason for opposing the amendment is the argument that the claim is statute-barred, which is one of the groundsfor refusing an amendment, as set out in Attila Dogan Construction and Installation Co.

Inc v AMEC Americas Limited, 2014 ABCA74 and Dow Chemical Canada Inc v Nova Chemicals Corp, 2010 ABQB 524. I addressed the limitations argument above. [105] A secondary argument to oppose the amendment is that there is no evidence to support the allegation of negligence or negligentinvestigation. The defendants accept that only modest evidence is required to support an amendment, but the proposed amendment musthave some foundation in fact: Canadian Natural Resources Ltd v Arcelormittal Tubular Products Roman S.A., 2012 ABQB 679.

[ 106 ] The difficulty with this argument is that plaintiffs are required to plead facts, not law.

It is not necessary to set out a cause of action specifically by name (although it is helpful to do so), and paragraph 87 of the original statement of claim (particularly the particulars stated in sub-paragraphs (c), (e), (h), and (i)) is sufficient to support an argument that the investigation was done in a negligent fashion. [ 107 ] While the second investigator and the members of the hearing committee and the Council are protected by the “good faith” immunity provisions in the statute, the College itself, the registrar, the investigator who allegedly said the investigation was into “kickbacks”, and the member of the hearing committee who allegedly was interested in having Ms.

Fitzpatrick leave her practice are not able to avail themselves of that defence on a

summary basis for the reasons set out above. [ 108 ] However, as to the individuals other than Ms. Millette and Ms. Moylan, without at least some evidence to substantiate the claim that they were acting in bad faith, the claim must be dismissed. [ 109 ] Accordingly, the amendments are allowed, provided that the claim as against all of the defendants other than the two colleges, as named, Dianne Millette, Julie Moylan and Cathy Sveen is summarily dismissed. This will require a re-drafting of the proposed amended statement of claim to focus on the remaining defendants.

I reserve jurisdiction to rule on the revised amended statement of claim if the parties cannot agree on its form. [ 110 ] The parties may make arrangements to address the Court as to costs if they are not able to agree. Heard on the 23 rd day of May, 2017. Dated at the City of Calgary, Alberta this 25 th day of July, 2017. A. R. Robertson, Q.C., M.C.C.Q.B.A. Appearances: Gregory Sim Field LLP for the Applicants (Defendants) Grant R. Vipond and Taylor Henschel (Student-at-law) Vipond Law for the Respondent (Plaintiff)