Fitzpatrick v College of Physical Therapists of Alberta, 2018 ABQB 989

Court of Queen’s Bench of Alberta Citation: Fitzpatrick v College of Physical Therapists of Alberta, 2018 ABQB 989 Date: 20181204 Docket: 1501 11502 Registry: Calgary Between: Marilyn Fitzpatrick and Westbrook Physiotherapy Clinic Ltd. Plaintiffs/Respondents - and - The College of Physical Therapists of Alberta, Dianne Millette, Cathy Sveen and Julie Moylan Defendants/Appellants _______________________________________________________ Reasons for Decision of the Honourable Madam Justice M.H. Hollins _______________________________________________________ [ 1 ] Ms.

Fitzpatrick is a licensed physiotherapist and the Westbrook Physiotherapy Clinic Ltd. is her solely-owned clinic business. This matter concerns an investigation of the Plaintiffs by the College of Physical Therapists of Alberta (the “College”). The individual defendants are employees or agents of the College who were involved with the investigation of Ms. Fitzpatrick or the disciplinary proceedings brought as a result of that investigation. The Plaintiffs have sued the Defendants for damages arising from what they say was a negligent and abusive investigation. [ 2 ] The Defendants brought an application for

summary judgment, which the presiding Master in Chambers granted in part. He refused to grant

summary judgment in respect of the College, Ms. Millette (the Registrar of the College), Ms. Sveen (one of the investigators) and Ms. Moylan (a member of the disciplinary panel). Those parties have appealed that portion of his Judgment, along with his Order allowing the Plaintiff to amend her Statement of Claim. [ 3 ] Although Ms. Fitzpatrick had counsel at the Masters’ Chambers hearing, she was unrepresented on this appeal. When the

parties appeared in this Court on the date scheduled for their Special Chambers Application, Ms. Fitzpatrick applied for an adjournment which I denied. I allowed the Defendants/Appellants to proceed with their oral argument as scheduled. I allowed Ms. Fitzpatrick the opportunity to make oral submissions in court and to file written materials at a later time, which she did. The Investigation and Disciplinary Proceedings [ 4 ] On May 7, 2008, the College received a complaint from the Insurance Bureau of Canada (“IBC”) on behalf of six insurance companies. The complaint alleged that Ms.

Fitzpatrick was improperly reassessing patients as having Whiplash Associated Disorder (“WAD”) III after those patients had initially been assessed as WAD I or II [1] . The complaint also alleged that MS. FITZPATRICK was believed to be receiving some form of payment from the lawyer to whom she had referred all these patients although the IBC conceded that there was no evidence thereof. There followed a subsequent and similar complaint from ING Canada. [ 5 ] Both complaints were assigned by the College to two investigators, of which Ms. Sveen was one. In June and July of 2008, the Registrar Ms.

Millette advised Ms. Fitzpatrick of the complaints and of the scope of the College’s investigation which was initially confined to the allegations of inappropriate upgrading of diagnoses. In January of 2009, the Plaintiff was advised that the scope of the investigation had been broadened to include her charting practices and her relationship with the lawyer in question. [ 6 ] Following the investigation, which included the review by and opinion of an industry expert, the College laid four charges of misconduct against MS.

FITZPATRICK on June 1, 2010, paraphrased as follows: Count #1: improperly upgrading the diagnosis for a number of patients; Count #2: upgrading the diagnosis for a number of patients without taking proper care to ensure that the diagnosis was correct; Count #3: failing to adequately or properly maintain patient charts; and Count#4: inappropriate correspondence with and/or billing practices involving a lawyer. [ 7 ] The hearing of these matters took place in late 2010 and early 2011, after which the five-member disciplinary panel (the “Panel”) allowed the College to withdraw Count #1 for lack of evidence but found the three other charges proven and imposed sanctions on Ms.

Fitzpatrick. That decision was rendered by the Panel on March 3, 2011. It released a subsequent decision on June 29, 2011 on sanctions and costs. [ 8 ] Ms. Fitzpatrick appealed the decision of the Panel to the College’s Council, which, on December 7, 2011, upheld the decision of the Panel with minor variations on how the sanctions would be implemented. Ms. Fitzpatrick appealed the decision of the Council to the Alberta Court of Appeal. On June 29, 2012, the Court of Appeal released its reasons on Ms. Fitzpatrick’s appeal from the Council.

The majority found the decision on Count #2 to be unreasonable and vacated that conviction, upholding the findings on Counts #3 and #4. Ms. Fitzpatrick was denied leave to appeal to the Supreme Court of Canada. [ 9 ] On October 1, 2013, the Panel reassessed Ms. Fitzpatrick’s sanctions in light of the Court of Appeal’s decision. Ms. Fitzpatrick appealed that reassessment to the Council and from there to Court of Appeal, also unsuccessfully. The final decision of the Court of Appeal on the reassessed sanctions was released March 9, 2015. [ 10 ] She then brought this Action on September 30, 2015.

As mentioned, the presiding Master in Chambers granted the Defendants’

summary judgment motion in part and allowed the Plaintiff to amend her Statement of Claim. The Defendants have appealed from that decision, asking this Court to grant

summary judgment on the whole of the Plaintiffs’ claim. [ 11 ] As an aside, although referenced in Ms. Fitzpatrick’s material on this appeal, the College brought further proceedings against Ms. Fitzpatrick for an alleged failure to comply with the reassessed sanctions on Counts #3 and 4. Ms. Fitzpatrick has appealed those findings again to the Council and further to the Court of Appeal, which decision is outstanding at this time.

Standard of Review and Evidentiary Basis of Appeal [ 12 ] An appeal from the Master is often described to and by this Court as an appeal de novo, notwithstanding that the wording of Rule 6.14(3) clearly describes an appeal from the Master to this Court as an appeal “on the record”. The continuing description of these appeals as de novo in the face of a Rule that says otherwise seems to trace back to the decision of Cote, JA in Bahcheli v. Yorkton Securities [2012] ABCA 166 where he said: “The big issue in this judgment is the standard of review on appeal from a master to a judge.

Terminology is not completely consistent for the standard of review which was adopted by the Alberta Courts before the new Rules came into force. It is sometimes called non- deferential, and sometimes called an appeal de novo . But more commonly the term used is “correctness”…”; para.3. [ 13 ] It should be noted that Justice Cote’s reasons were expressly directed to the standard of review – now settled to be correctness – and not to the permissible evidentiary basis, or more plainly, the mechanics of these appeals.

In fact, he clearly distinguishes the standard of review on appeal from the evidence considered on appeal at paragraph 10 of his Reasons.

These concepts, while separate, are obviously linked and that was, in fact, Justice Cote’s point; if you have the ability to amplify the record from below and the appeal is thus based on something different than the evidence before the Master, the standard of review cannot be higher than correctness. [ 14 ] With respect to my colleagues, I do not read Justice Cote’s words as saying that an appeal from the Master to our Court is an automatically an appeal de novo but rather that the low threshold for the introduction of new evidence on appeal [2] means that the true “appeal on the record” will be the exception rather than the rule.

[ 15 ] Because appellants can amplify the record relatively easily and because the standard of review does not require deference to the Master’s decision, I agree that it looks less like an appeal on the record and more like an appeal de novo . But it is not. [ 16 ] Black’s Law Dictionary defines an appeal de novo as “a new hearing of a matter, conducted as if the original hearing had not taken place”. That does not properly describe appeals from the Masters. In addition to the clear wording of the Rule, I say this for the following reasons: (

a) There would be no reason to speak of any standard of review at all if the appeal were truly de novo ; (

b) Rule 6.14 still contains a test, albeit relatively easily satisfied, for adding new evidence to the record before the Master, which would be moot if the appeal were truly de novo ; and (

c) If the appeal were truly de novo , I could ignore the proceedings before the Master, including the Transcript of Proceedings which appellants are obligated to provide. Further, I could also ignore the Masters’ reasoning completely which is different than saying that he or she was correct or incorrect. [ 17 ] In this case, there was an application to add new evidence to the record. The Defendants applied to introduce the Affidavit of Ms. Moylan, against whom Ms. Fitzpatrick made some allegations in her cross-examination on Affidavit that had not been particularized in her Statement of Claim.

As that evidence was relevant and material to the claims against Ms. Moylan, which allegations expressly figured into the disposition of the

summary judgment application before the Master, I allowed that application. [ 18 ] Therefore, my task is to determine whether the Master’s decision to refuse

summary judgment in part was a correct decision, albeit with consideration of the new evidence allowed. The Test for

Summary Judgment [ 19 ] At the date of this writing, there is some uncertainty about the precise language with which to describe the test for

summary judgment. Two recent cases of the Alberta Court of Appeal may be interpreted as applying different standards; Whissell Contracting Ltd. v Calgary (City) , 2018 ABCA 204 and Stefanyk v Sobeys Capital Inc ., 2018 ABCA 125 . The former case says that the moving party’s position must be unassailable or so compelling that the likelihood of defeat is very low while the latter case says that

summary judgment may be granted where the record is such that it is just and fair to decide summarily if the moving party has proven its case on a balance of probabilities. [ 20 ] The Plaintiffs, on this appeal, repeatedly point to the fact that they have not yet had document or oral discovery. The Defendants respond that MS. FITZPATRICK, while represented by counsel, agreed to waive discovery until the conclusion of the

summary judgment motion. [ 21 ] The Plaintiff is required to put her “best [evidentiary] foot forward” in defending a

summary judgment application; Windsor v. Canadian Pacific Railway , 2014 ABCA 108 at para.21. It appears, although perhaps not expressly, that the Presiding Master had some sympathy with Ms. Fitzpatrick’s argument that she believed that the evidence to support her claims would be forthcoming in the discovery process, notwithstanding that she opted to defend the

summary judgment motion without obtaining further information first. [ 22 ] While I am similarly not unsympathetic to the idea that the Plaintiffs are defending this motion at an early stage, I am also mindful of the fact that the Defendants have proceeded on the basis of the agreement made between the parties at the outset of this application and while Ms. Fitzpatrick was still represented by counsel.

There would be, in my view, some procedural unfairness in allowing both parties to proceed to this stage on that basis, only to have me ignore their agreement on discovery. [ 23 ] Further, these Claims are necessarily referenced, largely if not entirely, to previous, related proceedings. The evidence around the disciplinary process followed here is well known to both parties and I believe has been more than adequately put before this Court by both parties.

Accordingly, I believe that I have a record that is sufficient to make a determination that is fair in this case without requiring the parties to revisit all these facts through further document production and Questioning. As to the standard of proof required, I will adopt the Whissel test which will require the Defendants to establish that their defences are unassailable or so compelling that Ms. Fitzpatrick’s chances of success at trial are very low.

I myself would have employed the regular civil burden of proof, namely a balance of probabilities as was done in Stefanyk , supra , which I believe is appropriate once the determination has been made that the record is complete and clear. However, because that jurisprudence remains unsettled at the time of this writing, I adopt the higher threshold out of an abundance of caution.

The Claims [ 24 ] The Plaintiffs’ Action is for a number of alleged torts; negligent investigation, malicious prosecution, misfeasance in public office, abuse of process and intentional infliction of mental distress and economic loss (the “Claims”). All the claims except the claim of negligent investigation were set out in the original Statement of Claim and the negligent investigation claim was added as a result of Ms.

Fitzpatrick’s amendment application before the Master. [ 25 ] The facts upon which the Plaintiffs’ Claims are founded, as laid out in paragraph 75 of the Amended Statement of Claim, may be described as follows: (

a) The complainants had no standing to make their complaints; (

b) The College improperly and without basis expanded its investigation beyond the original complaints;

(

c) The complaints were not well-founded and not supported by the evidence before the Panel; (

d) The investigation was improperly motivated and illegitimate; and (

e) The Defendants acted with malice and without good faith; [ 26 ] As mentioned above, Ms. Fitzpatrick also deposed to additional facts regarding an alleged conflict of interest of Ms. Moylan, specifically that while sitting as a member of the Panel, she had an interest in acquiring or brokering the sale of Ms. Fitzpatrick’s business. [ 27 ] The Defendants applied for

summary judgment on all Claims on the following grounds: (

a) The Claims are statute-barred under the Limitations Act , RSA 2000, c.L-12; (

b) The Claims have no merit because: a. the Claims cannot overcome the Defendants’ statutory or common law immunity extended to their actions in the disciplinary proceedings, taken in good faith; b. alternatively, the Claims are an abusive attempt to re-litigate the same issues as were before those bodies; or c. alternatively, the Claims are a collateral attack on the decisions of the Panel, Council and Court of Appeal in the disciplinary proceedings; or d. alternatively, there is no evidence to support the Claims. [ 28 ] The presiding Master rejected the Defendants’ arguments, at least in respect of the four Defendants remaining in this Action.

While I examine his reasons in more detail, infra , he appeared primarily concerned with whether there were initially sufficient grounds to investigate Ms. Fitzpatrick and then to refer the matter to a hearing and also with the fact that the investigation expanded beyond its original scope. [ 29 ] For the reasons that follow, I am granting the Defendants’ application and dismissing the remaining claims against them. It follows that, as I am dismissing the claims as amended, I need not deal separately with the Defendants’ appeal from Ms. Fitzpatrick’s application to amend her pleadings. I grant the application for

summary judgment first on the limitations argument. In the alternative, I would have granted the application under Rule 7.3 on the basis that the Defendants are entitled to statutory immunity from the Claims. Limitations Act [ 30 ] The Defendants also argue that the entire claim ought to be dismissed because it is statute-barred under the Limitations Act. I agree. [ 31 ] The presiding Master rejected the Defendants’ limitations arguments, saying that because the scope of the investigation had fluctuated, Ms. Fitzpatrick could not have advanced her claim until the disciplinary process was completed.

He did not indicate the date on which he felt this happened but said the limitations argument was not sufficiently clear to justify a

summary dismissal of the Claims. [ 32 ] The limitations argument depends entirely on when Ms. Fitzpatrick knew or ought to have known that she had a cause of action for negligent investigation. It should be noted that, in defending the allegations of collateral attack, Ms. Fitzpatrick steadfastly maintains that she is not attacking the results of the disciplinary proceedings taken against her. I accept that. However, the logical extension of that argument is that the Claims being made now are separate and distinct from the outcome of the disciplinary proceedings.

In other words, the torts are alleged to have been committed in the Defendants’ initial decision to investigate and then to expand the scope of the investigation, the decision to remit to a hearing and a later claim of conflict of interest at the hearing itself. None of those things required an outcome from the Panel, the Council or the Court of Appeal in order to complete a cause of action. [ 33 ] This Action was filed on September 30, 2015. The Defendants say that the clock starts on June 29, 2012 when the Court of Appeal disposed of her appeal from the disciplinary proceedings.

The Plaintiffs argue that the clock starts when all her appeals as to sanctions were exhausted, on March 9, 2015. [ 34 ] I do not think either of those dates is appropriate under the Limitations Act. If, as the Plaintiff argues and must argue, this is not a re-litigating of the results of the disciplinary proceedings, then the findings of the Court of Appeal were not a necessary fact or part of the Plaintiffs’ claims, all of which relate to the manner in which she was investigated and the manner in which the disciplinary hearing was carried out. That was concluded by March of 2011.

Even if there had been some uncertainty as to the scope of the prosecution, as mentioned by the Master, that did not persist past the Panel hearing stage. [ 35 ] The Plaintiffs cannot succeed on an argument that the disciplinary proceedings had to be completely at an end; Ewing v. Allen , 2015 ABQB 264 at para. 34 . That would only extend the limitation period if there were facts necessary to the cause(

s) of action that remained unknown by reason of that ongoing proceeding. There are not. [ 36 ] The Plaintiffs argue that until the precise sanctions were known, there was no known “injury”. However, sanctions in this context are analogous to quantum of damages, which has been consistently distinguished from the injury itself when dealing with limitations. Even the Plaintiffs’ claim for tortious economic loss cannot await some undefined date on which Ms. Fitzpatrick believes she can accurately crystallize the alleged financial impacts of these proceedings on her business, if she possesses the facts sufficient to allege that some damage has occurred.

[37] In fact, if the sanctions had to be completely dealt with in order to “start the clock” on this Action, there would be anargument that the limitations period has still not begun to run. As mentioned, Ms. Fitzpatrick’s compliance with the sanctions arisingfrom these convictions is before the Court of Appeal again at this time.

This illustrates the logic of restricting the facts which must beknown by the claimant to those which found the cause of action itself, not to an inquiry into the breadth of the injury alleged. [38] The law requires claimants to proceed once an injury is known, which I believe was as soon as the Panel concluded thehearing. Regardless of the outcome of any appeals from the decision of the Panel, the Claims arise from the manner in which theinvestigation and the hearing process was undertaken and completed. Accordingly, the Claims were brought out of time and should bestruck on that basis.

Statutory Immunity [39] The Defendants say they are immune from prosecution of the Claims under the statutory or common law immunity extendedto the College and its agents. I will note here that although common law immunity was cited by the Defendants, no argument waspresented as to the content of such a duty or whether it might vary from the statutory immunity examined here.

Consequently, I deal onlywith the statutory immunity relied upon by the Defendants. [40] Specifically, they rely upon s.70 of the Physical Therapy Profession Act, RSA 2000, c.P-14 (the “PTPA”) and s.126 of itssuccessor legislation, the Health Professions Act, RSA 2000, c.H-7 (the “HPA”). The latter was enacted on May 8, 2011, shortly afterthe disciplinary hearings before the Panel were concluded but before they released their reasons. Because of this statutory immunity, theDefendants say that the Plaintiffs’ Claims cannot succeed and should be dismissed. [41]

Section 70 of the PTPA, as it then was, read 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, theRegistrar, the College or any person acting on the instructions of any of them, or (

b) any member, officer of 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 isincidental to a professional matter or a matter of public interest that is or may be the subject of a regulation under

section 72. [42]

Section 126 of the HPA covered the same actors for “anything done or omitted to be done in good faith pursuant to thisAct…”. For our purposes, both statutes effectively provide the same statutory immunity. There is no question that all the individualDefendants fall within this

section and it follows that if none of the Claims can succeed against the individual Defendants as the agentsof the corporate Defendant, the latter is effectively immunized under the same provision. [43] At first glance, legislative provisions that make it difficult for citizens to sue bodies like the College might seem unfair. Butthe rationale for statutory immunity is plain. The work of these bodies would be difficult to undertake if every person aggrieved by adecision could, in addition to or instead of pursuing their legitimate avenues of appeal, sue the individuals involved in making thedecision.

Beyond making it difficult for these bodies to do their mandated work, one can imagine the difficulty in staffing these types ofroles without some protection from lawsuits. [44] This was recognized in the Supreme Court of Canada case of Ernst v. Alberta Energy Regulator, 2017 SCC 1. In that case, theEnergy Regulator claimed immunity under its statute, which the Court agreed foreclosed any possible Charter claim against it. The Courtsaid: The rationales underlying the common law and statutory immunity for quasi-judicial and regulatory decision-makers fall into two maininterrelated categories.

First, immunity from civil claims permits decision-makers to fairly and effectively make decisions by ensuringfreedom from interference, which is necessary for their independence and impartiality: Morier, at pp. 737-38, citing Garnett v.Ferrand (1827), 6 B. & C. 611, 108 E.R. 576 (Eng. K.B.), at pp. 581-82, and Fray v. Blackburn (1863), 3 B. & S. 576, 122 E.R.217(Eng. K.B.).

Second, immunity protects the capacity of these decision-making institutions to fulfill their functions without thedistraction of time-consuming litigation. (para. 51) By protecting judicial and quasi-judicial decision-makers from having to defend their decisions against damages suits, the immunitysimultaneously strengthens public confidence in the legal system, preserves impartiality, both in fact and in perception, and closes offroutes of collateral attack. See MacKeigan v.

Hickman, (SCC), [1989] 2 S.C.R. 796 (SCC), at pp. 828-30 (para. 54) The “Bad Faith” Exception to Statutory Immunity [45] Although the immunity provision at issue in Ernst, supra did not have a requirement that the regulator act in good faith toavail itself of the statutory protection of that provision, the sections of the PTPA and HPA being relied on here by the Defendants dohave that requirement.

The Plaintiffs therefore argue that the Defendants are not entitled to immunity, either under statute or commonlaw, because they have not acted in good faith. [46] The Master agreed that there were triable issues concerning the Defendants’ good faith, or lack thereof, on two issues; Ms.Millette’s decisions, as Registrar, to embark upon and then expand the scope of the investigation and secondly, Ms. Moylan’s allegedconflict of interest. I will deal with each of these in turn.

[ 47 ] The Plaintiffs take issue with the fact that it was not a client but rather a group of insurance company representatives that began the ball rolling with the initial complaints. While the Master did not ascribe any particular weight or import to this, he did note the Plaintiffs’ complaints regarding the standing of the complainant, IBC. The Defendants say that the College has no ability to refuse to investigate a complaint simply because of who made it or even their motivations for doing so.

That approach seems to be borne out by the wording of ss.54 - 55 HPA . [ 48 ] The Master also noted that IBC admitted when laying the complaint that it believed that Ms. Fitzpatrick was receiving some form of payment but had no evidence. Does that mean that if the College investigates without an evidentiary foundation, it is acting in bad faith? First of all, there did exist some evidentiary foundation, namely the pattern of alleged over-diagnosing and the fact that these were all sent to the same lawyer.

Moreover, the Defendants say that there is no requirement that a complainant present evidence in order for the College to be obligated to consider the complaint. Again ss.54-55 HPA only require that a complaint be in writing. Although the Registrar “may” dismiss the complaint if there is insufficient or no evidence, that determination is clearly discretionary. [ 49 ] The Master characterized the preliminary report of the investigators as “sparse”. The Defendants disagree with this characterization, as do I.

Exhibit “I” to the Affidavit of Dianne Millette was a report from one of the initial investigators dated November 18, 2008,which is several months after the initial complaints were received but before the January, 2009 decision to expand the investigation. It is 18 pages long and includes charts and notes comparing 50 different patients, identified by number and comparing symptoms and diagnoses, along with reproductions of communications regarding these patients. [ 50 ] While looking at Ms.

Fitzpatrick’s patient charts and related correspondence, the investigator and the expert found what they believed was evidence of improper charting and a possibly inappropriate referring relationship with a lawyer. That the preliminary investigative results resulted in an expansion of the scope of the investigation is not surprising, considering those results. More importantly, this was completely within the authority of the College and is in no way actionable.

Section 62 of the HPA clearly delineates between the investigation of an original complaint and the subsequent investigation of other conduct: 62(1) An investigator may investigate a complaint.

(2) In the course of an investigation under subsection (1), an investigator may investigate matters that are related to the conduct of the investigated person that could give rise to a finding of unprofessional conduct. [ 51 ] In January of 2009, the Defendant Ms. Sveen called Ms. Fitzpatrick to advise that the investigation into her practice was being expanded to include, inter alia , her relationship with the lawyer to whom she was referring patients. In her cross-examination, Ms. Fitzpatrick said that she was told in that conversation that the College was going to investigate allegations of “kickbacks”.

The Master expressed concern with the use of that phrase, which I agree is inflammatory. However, Ms. Fitzpatrick was never asked whether Ms. Sveen actually used the word “kickbacks” or whether Ms. Fitzpatrick was paraphrasing the conversation. Either way, that is not evidence of bad faith but at most, a poor choice of words, assuming it was Ms. Sveen who used that word. The actual charge was that of inappropriate correspondence and/or billing practices with the lawyer in question. The investigation, as MS.

FITZPATRICK was advised, was into the nature of that relationship including the financial aspect thereof. [ 52 ] I therefore do not agree with the Master that there is any basis for denying Ms. Millette or Ms. Sveen the statutory protections against this prosecution found in the PTPA and HPA. [ 53 ] The Master also found that the allegations regarding Ms. Moylan’s pecuniary interest in Ms. Fitzpatrick’s business took her out of the statutory and common law protections available to those acting in the disciplinary process in good faith.

Presumably this was because he felt that this allegation of bias could not be proven one way or the other. However, going back to Ms. Fitzpatrick’s obligation to put her “best foot forward”, it must be noted that she never raised this allegation in her pleadings or even in her Affidavit. At the hearing itself in 2010, she initially raised a concern about Ms. Moylan’s participation but withdrew that objection and proceeded with the Panel as drawn. [ 54 ] This allegation against Ms. Moylan arose spontaneously at Ms. Fitzpatrick’s cross-examination on her Affidavit, where Ms.

Fitzpatrick testified that at some point after the disciplinary hearing was completed, she heard from her banker that Ms. Moylan had said to the banker that Ms. Fitzpatrick would “be ready to sell” her clinic, implying that Ms. Moylan was motivated to find Ms. Fitzpatrick guilty on the counts charged and subject to sanction, presumably to devalue her clinic practice and leave it susceptible to purchase. [ 55 ] There was, as mentioned, no evidence from Ms. Moylan before the Master at the first instance. However, this Court had the benefit of an Affidavit from Ms.

Moylan in which she provides her first hand evidence categorically denying any such conversation with any banker. Ms. Moylan deposes that she did make an inquiry directly to Ms. Fitzpatrick in 2007 about purchasing her clinic, before any of these complaints against Ms. Fitzpatrick arose. Ms. Fitzpatrick was not interested in selling and Ms. Moylan never broached the subject again. While I suspect that Ms. Fitzpatrick’s initial objection to Ms. Moylan sitting on the Panel may have arisen from Ms. Moylan’s 2007 inquiry into purchasing Ms.

Fitzpatrick’s practice, that objection was voluntarily withdrawn and understandably so, given that 3 or 4 years had elapsed with no further consideration of the subject. [ 56 ] Ms. Fitzpatrick’s story about the conversation with the banker, which is at least double hearsay, included no specifics, despite counsel requesting them.

She could not specify a time frame nor identify the person with whom she said this conversation occurred, all of which meant that none of this was verifiable nor would it be evidence available for trial. [ 57 ] Given her failure to include this alleged conversation in her Statement of Claim or Affidavit, the lack of any specifics whatsoever and the fact that she agreed to have Ms. Moylan sit on the panel, there is simply no “air of reality” to this allegation against Ms. Moylan. She is also therefore entitled to the protections of the PTPA and HPA and there are therefore no claims against Ms.

Moylan which require a trial. Rule 7.3

[ 58 ] Given my findings on the issues above, either of which is fatal to the Plaintiffs’ Claims, I do not intend to address the remaining arguments of the Defendants in much detail. [ 59 ] I would not have dismissed the Plaintiffs’ Claims as an abuse of process. Ms. Fitzpatrick has throughout maintained that she is not challenging the results of the disciplinary process but rather the process. Based on the nature of the Claims, the Master accepted that argument and so do I.

In fact, it was a necessary finding to dismissing the Claims based on a limitation period that ran separately for Claims arising from the process as opposed to the result. [ 60 ] On the Defendants’ argument that the Plaintiffs’ Claims should be dismissed as they have failed to prove each element of each tort alleged, that is not the test for

summary dismissal. The Plaintiff must only show some evidence creating a triable issue. [ 61 ] For example, the Defendants argue that the Plaintiffs’ Claims of negligent misrepresentation are hopeless because there is no duty of care in this context. They cite the case of O(

J) v Alberta , 2013 ABQB 693 as authority for the fact that the only body which owes a duty of care during an investigation is the police. This case does not say that at all. In O(J) , supra Graesser, J declined to impose a duty of care on the offices of child welfare for policy reasons; paras. 91-97. This is not a child welfare case.

As a somewhat fledging tort, its application is not so certain as to foreclose the Plaintiff’s claim on these grounds. [ 62 ] In the final analysis, these arguments under Rule 7.3 must cede to my findings that the Limitations Act bars the Plaintiffs’ Claims or alternatively, that the statutory immunity available to all the remaining Defendants means that the Plaintiffs’ attempts to impose liability on them on the grounds pleaded (as amended) are hopeless and will fail. Conclusion [ 63 ] The Defendants’ appeal from the July 25, 2017 decision of the Master is allowed.

The parties may speak to costs if they cannot agree. Heard on the 1 st day of March, 2018 With additional materials submitted on April 30 th , 2018 and May 31 st , 2018. Dated at the City of Calgary, Alberta this 4 th day of December, 2018. M.H. Hollins J.C.Q.B.A. Appearances: Gregory D. Sim for the Defendants

Marilyn Fitzpatrick, self-represented for the Respondents