Docket: 1819 The Board of Chiropractors' Association of Saskatchewan Appellant - v. -, 2011 SKCA 142

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 142 Date: 20111104 Between: Docket: 1819 The Board of Chiropractors' Association of Saskatchewan Appellant - and - Dr. James Pankiw Respondent - and - The Chiropractors’ Association of Saskatchewan Applicant Coram: Lane, Jackson and Richards JJ.A.

Counsel: No one appearing for the Appellant Jay Watson for the Respondent Michael Megaw for the Applicant Application: From: 2009 SKQB 268 Heard: November 4, 2011 Disposition: Application dismissed (orally) Written Reasons: November 21, 2011 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Richards Jackson J.A. [ 1 ] This is an application made in the context of an appeal from a decision of Gabrielson J., which allowed an appeal from the sentence imposed on Dr.

James Pankiw by “The Board of Chiropractors’ Association of Saskatchewan” (hereinafter the “Board”). Justice Gabrielson’s reasons are indexed as 2009 SKQB 268 , 336 Sask. R. 43. [ 2 ] The facts and procedural history leading up to the decision of Gabrielson J. are fully set out in his reasons. By way of brief background, Dr. Pankiw pled guilty to several counts of professional misconduct arising from the saying of distasteful things to and about fellow members, and in some cases, threatening them either directly or obliquely. [ 3 ] As part of the negotiations leading up to Dr.

Pankiw’s guilty plea, his counsel and counsel for the Investigation Committee agreed that a joint sentencing submission would be made to the Discipline Committee and then to the Board. Ultimately, the Board accepted the guilty plea, but did not accept the joint submission as to sentence, and imposed its own sentence. Dr. Pankiw was dissatisfied with this process and the sentence. He appealed the Board’s sentence to the Court of Queen’s Bench. [ 4 ] Gabrielson J. set aside the Board’s sentence, and imposed the sentence arising from the joint submission.

The Board appealed the decision of Gabrielson J. to this Court on July 29, 2009. [ 5 ] The issue, which concerns this Court at this time, arises out of a preliminary application made by the “The Chiropractors’ Association of Saskatchewan” (the “Association”) to amend the Board’s Notice of Appeal. The Association seeks to substitute itself as the appellant, in place of the Board. Some further background is required in relation to this application. [ 6 ] The Board’s appeal from the decision of Gabrielson J. was originally scheduled to be heard on June 1, 2010.

On that day, the panel hearing the appeal expressed its concern about whether the proper party had appealed. The Court’s concern arose out of The Chiropractic Act, 1994 , S.S. 1994, c. C-10.1 (the “ Act ”). The Act refers to two bodies: (

i) the “association”; and (ii) the “board.” Both terms are defined in the Act : 2 In this Act : … (b) “ association ” means The Chiropractors’ Association of Saskatchewan continued pursuant to

section 3; (c) “ board ” means the board of the association; The Board governs, manages and regulates the affairs and business of the Association (see: s. 7(1) of the Act ). The Board is also the body that imposes any penalty or carries out any sanction (see: s. 34 of the Act ). It is the Board that imposed the penalty in this case.

[7] The Notice of Appeal in this Court named “The Board of Chiropractors’ Association of Saskatchewan” as the appellant. The Act,however, vests the right of appeal in the Association and not in the Board: Court of Appeal 43 The association or a member who appeals pursuant to

section 40 may appeal a decision of a judge of the court on a question of lawwithin 30 days of the decision to the Court of Appeal for Saskatchewan. [8] Based on the

definitions in the Act and the specific nature of the right of appeal, on June 1, 2010, the Court requested submissionswith respect to whether the correct entity had appealed the decision of Gabrielson J. The Court also drew counsels’ attention to Casavantv.

Saskatchewan Teachers' Federation, 2005 SKCA 52, [2005] 6 W.W.R. 31 at para. 62 where Richards J.A., speaking for the Court,commented that a reasonable person would readily perceive a lack of impartiality on the part of the administrative tribunal if the samelawyer who prosecuted a complaint subsequently acted for the tribunal on an appeal. [9] After raising the issue of the proper appellant and the issue of the appropriateness of the Board’s counsel prosecuting the appeal,counsel for the Board requested an adjournment sine die.

The Court granted the request. [10] In May of 2011, counsel for the Board withdrew as counsel, and the Association retained its present counsel. [11] The Association now applies to amend the Board’s Notice of Appeal pursuant to Rule 13 of The Court of Appeal Rules to substituteitself as the appellant. Rule 13 reads as follows: Amendment to notice of appeal 13 A notice of appeal or cross-appeal may be amended at any time with leave of the court or a judge. There is no doubt that Rule 13 confirms the Court’s considerable discretion to effect justice in a given case. [12]

Section 43 of the Act, however, provides for a right of appeal that must be exercised: (

i) by the Association; and (ii) within 30days. Unlike some Acts of the legislature, which leave the question of the appeal period to be governed by s. 9 of The Court of AppealAct, 2000, S.S. 2004, c. C-42.1 and for which an application to file late is permitted, s. 43 of the Act fixes the appeal period. Legislativeapproaches, which fix the appeal period and provide no relief from it, do not permit an appellant to apply to extend the time for filingbeyond the fixed appeal period (see: ​Schnell v. Schnell, 2001 SKCA 123, 213 Sask. R. 174).

Substituting one appellant for another istantamount to allowing the Association to extend the time to appeal under the guise of the Court’s amending power. Rule 13 cannot beused for that purpose. [13] Speaking more fundamentally, in our respectful view, the within appeal was misconceived from the outset. As the Court indicatedin Casavant, an administrative tribunal, having rendered its decision, is not properly the sole appellant before the Court.

Section 43confirms this fundamental principle. From time to time, an appellant will name a tribunal as being a party to an appeal, but in theabsence of specific legislation permitting it, a named tribunal acts only within the limits set by such authorities as Northwestern UtilitiesLtd. v. Edmonton (City), (SCC), [1979] 1 S.C.R. 684 and Casavant, supra. [14] The Court has not concerned itself with the fact that Dr. Pankiw named the Board as the Respondent in the Court of Queen’sBench. It may be that the Board was a proper named party or a non-party in that Court. That issue is not before us.

In any event, thefact that no one raised any issue in relation to the matter in the Court of Queen’s Bench is an irrelevant consideration when determiningwhether the Board has a right of appeal to this Court pursuant to s. 43 of the Act. The Board defended the appeal in the Court of Queen’sBench, and Gabrielson J. set aside the Board’s decision, and imposed the original penalty recommended by counsel for the InvestigationCommittee. [15] For these reasons, the Court declines to amend the Notice of Appeal, which means the preliminary application is dismissed.

TheCourt has not considered the merits of the appeal one way or the other. The effect of the Court’s decision, however, is that the Notice ofAppeal filed by the Board is a nullity. The Respondent will have its costs on Column 2.