FITZPATRICK v PHYSIOTHERAPY ALBERTA COLLEGE, 2017 ABQB 453
3.62: Amending pleading
3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit
The Defendants applied to summarily dismiss or strike the Plaintiff’s claim. The Plaintiff had sued the College of Physical Therapists of Alberta (“College”) and several members of the disciplinary committee and appeal panel on the basis that she was unfairly and specifically targeted during disciplinary proceedings relating to allegations that she over-diagnosed patients for personal gain. At the College disciplinary hearing, the Plaintiff was found guilty on four counts. The Plaintiff unsuccessfully appealed this result to the College Council, which upheld the finding of guilt. The Plaintiff appealed to the Court of Appeal, which partially reversed the decision, noting that more was required to sustain an allegation of over-diagnosis than mere departure from the statistical average likelihood of a treatable diagnosis. The Court of Appeal ruled that findings with respect to individual patients must be made, and referred the matter back to the discipline committee. The Plaintiff then appealed to the Court of Appeal a second time with respect to the specific sanctions imposed, which Appeal was largely dismissed except for variations to Orders of the College Council.
The Plaintiff relied on hearsay information in Questioning but did not disclose the source of the information. The Defendants argued this was contrary to Rule 13.18(2), but the Court noted that this Rule applied to Affidavits. The Court ruled the hearsay evidence admissible, noting that counsel for the Defendants had the opportunity to – and did – Question the Plaintiff extensively on the contested point.
In seeking Summary Judgment pursuant to Rule 7.3, the Defendants argued that the Plaintiff’s Claim was limitation-barred, an improper collateral attack, and that the allegations were res judicata. The Court noted that parties are required to put their best foot forward on a Summary Judgment Application. On that basis, the claims against all but three individuals and the College were dismissed, as there was no evidence supporting any cause of action against them.
In response to the Defendant’s Application for Summary Dismissal or to strike the Claim, the Plaintiff had applied to amend her pleading to introduce new allegations. Master Robertson held that the amendments were not limitations barred, stating that proposed amendments must have some foundation in fact. Master Robertson found that the facts as stated in the original statement of claim were “sufficient to support an argument that the investigation was done in a negligent fashion” and therefore provide a factual foundation for the proposed amendments. The Plaintiff’s Application to amend was allowed, except for those parties who had the Claims dismissed against them.View CanLII Details