FITZPATRICK v COLLEGE OF PHYSICAL THERAPISTS OF ALBERTA, 2018 ABQB 989
6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)
The Plaintiffs had been the subject of disciplinary proceedings before the College of Physical Therapists of Alberta, and subsequently challenged the results of those proceedings with Appeals twice rising to the Alberta Court of Appeal. In addition, the Plaintiffs commenced the within Action alleging wrongful conduct by the several parties involved in investigation and hearing of the disciplinary charges. The Defendants brought an Application for Summary Judgment before a Master, which was partly successful. The Defendants that remained in the Action appealed the Master’s Order in pursuit of expanding the award of Summary Judgment.
Before reviewing the merits of the Appeal, the Court distinguished standard of review from the evidentiary basis of appeal. Justice Hollins was careful to clarify that an Appeal from a Master is in fact an Appeal on the record, and not an Appeal de novo, despite the conflation caused by allowance in Rule 6.14(3) for consideration of additional evidence. Mindful that the low threshold for introduction of additional evidence often causes analyses to tend toward that of an appeal de novo, the Court stated that a Master’s reasoning must be reviewed for correctness, which is a different endeavour than adjudicating the matter afresh.
Upon review of the merits of the Appeal, the Court moved to grant the Summary Judgment and dismiss the Action, relying primarily on the expiration of the limitation period, and in the alternative, on the absence of evidence establishing a triable issue. Justice Hollins remarked that the Alberta Court of Appeal has yet to settle the standard for Summary Judgment derived from Rule 7.3, as inconsistently set out in Whissell Contracting Ltd. v Calgary (City), 2018 ABCA 204 (CanLII) which provides that moving party’s position must be unassailable, and Stefanyk v Sobeys Capital Inc., 2018 ABCA 125 (CanLII) which provides that the moving party must prove its case on a balance of probabilities.
Justice Hollins commented that while Her Ladyship would have preferred, on the strength of a clear and complete record, to apply the civil standard, it was prudent in the face of jurisprudential uncertainty to apply the more exacting standard.
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