Alevizos v. Manitoba Chiropractors Association et al., 2009 MBQB 116

• Judge: McKelvey, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: May 06, 2009
• Jurisdiction: Manitoba
• Citations: 2009 MBQB 116;(2009), 239 Man.R.(2d) 207 (QB)

Alevizos v. Chiropractors Assoc. (2009), 239 Man.R.(2d) 207 (QB)

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. MY.025

Dr. John Alevizos (plaintiff) v. Manitoba Chiropractors Association, Dr. Gerald Tole, Dr. Robert Palaschuk, Dr. Martin Gurvey, Dr. Howard Leslie and Lawrence Heise (defendants)

(CI 04-01-38300; 2009 MBQB 116)

Indexed As: Alevizos v. Manitoba Chiropractors Association et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

McKelvey, J.

May 6, 2009.

Summary:

A chiropractor (Alevizos) was charged with professional misconduct with respect to his activities while he sat on the Board of Directors of the Manitoba Chiropractors Association (MCA). The matter was referred to the inquiry committee of the MCA under the Chiropractic Act. The committee found that the chiropractor, acting in his capacity as a director, breached the confidentiality provisions of the Act. Notwithstanding that s. 4(2) of the General Regulation deemed a contravention of the Act to be professional misconduct, the inquiry committee found the chiropractor not guilty of professional misconduct where the breach of the Act did not reflect on his ability, suitability or qualifications as a chiropractor. The MCA sought judicial review.

The Manitoba Court of Queen's Bench allowed the appeal and substituted a finding of professional misconduct. The MCA's jurisdiction to seek judicial review was not raised. The chiropractor appealed, submitting, inter alia, that the MCA had no jurisdiction to seek judicial review of the inquiry committee's decision.

The Manitoba Court of Appeal, in a decision reported at (2003), 177 Man.R.(2d) 45; 304 W.A.C. 45, allowed the appeal and restored the inquiry committee's decision. The MCA had no jurisdiction to seek judicial review. In 2004, Alevizos commenced a civil action against the defendants, i.e., the MCA and three other chiropractors (Tole, Gurvey and Palaschuk) who were officers and members of the MCA. Alevizos claimed general, special and punitive damages for malicious prosecution, negligence (Tole only), misfeasance in public office and civil conspiracy (Gurvey and Palaschuk only). The defendants disputed the tort claims and contended that certain aspects of the claim were statute barred by the Limitation of Actions Act.

The Manitoba Court of Queen's Bench, in the decision reported below, dismissed Alevizos' claim in its entirety as entitlement had not been established on a balance of probabilities.

Administrative Law - Topic 552.1

The hearing and decision - Decisions of the tribunal - Deliberative secrecy - A complaint against a chiropractor was dealt with by a three-person inquiry committee of the Manitoba Chiropractors Association (MCA) and by the courts with the result that the chiropractor was found not guilty of professional misconduct - Thereafter, the chiropractor commenced a civil action against the MCA and three other chiropractors who were officers and members of the MCA - At trial an issue arose as to whether the inquiry committee members could testify - The Manitoba Court of Queen's Bench (trial judge) stated that normally members of administrative tribunals could not be required to testify as to the how and why they had reached their decisions, that practice having its foundation in the rule of deliberative secrecy - The court noted, however, that in light of current jurisprudence, matters of deliberative secrecy were not, strictly speaking, as restrictive as formerly was the case - The judge stated that "During the course of the trial, I decided that these panel members would be permitted to testify with respect to the 'process' of their decision-making, as well as to the actual decision. The panel members were not permitted to divulge information with respect to their thinking process in arriving at the decision or their thoughts about the issues involved in the decision" - See paragraphs 10 and 11.

Damage Awards - Topic 678

Torts - Abuse of legal procedures - Malicious prosecution - A chiropractor (Alevizos) was charged with incidents of professional misconduct with respect to confidentiality concerns while he sat on the Board of Directors of the Manitoba Chiropractors Association (MCA) - The matter was dealt with by an inquiry committee and the courts, culminating in a finding that Alevizos was not guilty of professional misconduct - Alevizos commenced a tort action against three other chiropractors who were officers and members of the MCA (the defendants), alleging, inter alia, malicious prosecution - The Manitoba Court of Queen's Bench dismissed the action, but provisionally assessed damages, including nonpecuniary general damages of $50,000 for stress, emotional anguish and damage to his professional reputation - The court opined that it would not have awarded aggravated or punitive damages in this case - See paragraphs 157 to 172.

Evidence - Topic 5607

Witnesses - Competency and compellability - Compellability - Particular persons - Boards and tribunals - Members and personnel - [See Administrative Law - Topic 552.1 ].

Limitation of Actions - Topic 3010

Actions in tort - General principles - When time begins to run - A chiropractor (Alevizos) was charged with incidents of professional misconduct with respect to confidentiality concerns while he sat on the Board of Directors of the Manitoba Chiropractors Association (MCA) from 1997 to 2000 - The matter was dealt with by an inquiry committee and the courts from 2001 to 2003, culminating in a Court of Appeal decision on June 9, 2003, restoring the inquiry committee's decision that Alevizos was not guilty of professional misconduct - On June 28, 2004, Alevizos commenced a tort action against three other chiropractors who were officers and members of the MCA (the defendants), alleging malicious prosecution, misfeasance in public office, negligence and civil conspiracy - The defendants claimed that the action was statute barred by the Limitation of Actions Act - The Manitoba Court of Queen's Bench dismissed Alevizos' claims where none of the torts alleged were established on a balance of probabilities - The court opined that the "time" began to run for limitation purposes with respect to all four torts on June 9, 2003, when the Court of Appeal restored the inquiry committee's decision; therefore all claims were brought within the appropriate time limitation - See paragraphs 144 to 156.

Limitation of Actions - Topic 3103

Actions in tort - Negligence - When time begins to run - [See Limitation of Actions - Topic 3010 ].

Professional Occupations - Topic 218

Boards and tribunals - Domestic tribunals - Negligence (incl. duty of care, standard of care, etc.) - [See Torts - Topic 77 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - A chiropractor was charged with professional misconduct with respect to confidentiality concerns while he sat on the Board of Directors of the Manitoba Chiropractors Association (MCA) - The complaint was dealt with by an inquiry committee with the result that the chiropractor was found not guilty of professional misconduct - Thereafter, the chiropractor commenced a negligence action against the investigation chair (Tole), claiming that he owed the chiropractor a duty of care - That duty being to ensure that a complete, thorough and proper investigation of the complaint was completed before forwarding the complaints to the inquiry committee - The Manitoba Court of Queen's Bench held that there was a duty of care owed not only to the chiropractor who was the subject of the complaints, but to the chiropractic profession and to the public at large - However, there was no breach of the standard of care - Tole was required to conduct a preliminary investigation which he did in this case - He considered legal advice, reviewed the documents and used his experience in referring the complaint - Just because certain requirements of the Chiropractors Act were not strictly complied with did not result in a finding of negligence or breach of the standard of care - See paragraphs 95 to 115.

Torts - Topic 5083

Interference with economic relations - Conspiracy - What constitutes a conspiracy - The Manitoba Court of Queen's Bench stated that "the tort of civil conspiracy was comprised of the following elements: (1) The agreement of two or more persons to effect an unlawful purpose by legal means; or (2) The agreement of two or more persons to commit an unlawful act; (3) Damage must have resulted to a protected interest of the plaintiff as a result of that conduct" - See paragraph 127.

Torts - Topic 5083

Interference with economic relations - Conspiracy - What constitutes a conspiracy - A chiropractor was charged with professional misconduct with respect to confidentiality concerns while he sat on the Board of Directors of the Manitoba Chiropractors Association (MCA) - The complaint was dealt with by an inquiry committee with the result that the chiropractor was found not guilty of professional misconduct - Thereafter, the chiropractor commenced a civil conspiracy action against two officers and members of the MCA (Gurvey and Palaschuk) - The chiropractor claimed that Gurvey and Palaschuk conspired to remove him from the Board which they knew would cause him harm and anguish - The Manitoba Court of Queen's Bench held that the tort of civil conspiracy had not been established on a balance of probabilities - Gurvey and Palaschuk categorically denied any suggestion of such an agreement - The court found that they testified in a credible manner as to their belief that the chiropractor had committed a breach of confidentiality - There was no evidence of a malevolent attitude towards the chiropractor - See paragraphs 126 to 137.

Torts - Topic 6152

Abuse of legal procedure - Malicious prosecution - Elements of - The Manitoba Court of Queen's Bench noted that the following four elements had to be proven in order to succeed in a malicious prosecution action: "(a) The proceedings must have been initiated by the defendant; (b) The proceedings must have been terminated in favour of the plaintiff; (c) An absence of reasonable and probable cause must be established; (d) Malice, or a primary purpose other than that of carrying the law into effect must exist" - See paragraph 63.

Torts - Topic 6156

Abuse of legal procedure - Malicious prosecution - Malice - What constitutes - [See Torts - Topic 6164 ].

Torts - Topic 6161

Abuse of legal procedure - Malicious prosecution - Reasonable and probable cause - [See Torts - Topic 6164 ].

Torts - Topic 6164

Abuse of legal procedure - Malicious prosecution - Actions against tribunals (incl. professional associations, discipline committees, etc.) - A chiropractor was charged with incidents of professional misconduct with respect to confidentiality concerns while he sat on the Board of Directors of the Manitoba Chiropractors Association (MCA) - The complaint was dealt with by an inquiry committee and through the courts with the result that the chiropractor was found not guilty of professional misconduct - Thereafter, the chiropractor commenced a civil action against three other chiropractors (Tole, Gurvey and Palaschuk), who were officers and members of the MCA (the defendants), claiming that they commenced administrative proceedings against him maliciously and without reasonable and probable cause on behalf of the MCA - The Manitoba Court of Queen's Bench dismissed the malicious prosecution claim - The plaintiff failed to establish an absence of reasonable and probable cause - While the court rejected the defendants' argument that their reliance on counsel's advice constituted a total defence to the malicious prosecution claim, the court held that the reliance upon legal advice combined with the other circumstances supported and constituted reasonable and probable grounds on the part of the defendants to prosecute the complaints in issue - Further, there was an absence of malice - See paragraphs 62 to 94.

Torts - Topic 6170

Abuse of legal procedure - Malicious prosecution - Defences - General - [See Torts - Topic 6164 ].

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - The Manitoba Court of Queen's Bench stated that the elements of the tort of misfeasance in public office were: "(a) The actor must be a public official; (b) The activity in question must relate to his exercise of a statutory authority or power; (c) The wrongdoing must be intentional; (d) Damages must result" - See paragraph 116.

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - A chiropractor was charged with incidents of professional misconduct with respect to confidentiality concerns while he sat on the Board of Directors of the Manitoba Chiropractors Association (MCA) - The complaint was dealt with by an inquiry committee and through the courts with the result that the chiropractor was found not guilty of professional misconduct - Thereafter, the chiropractor commenced a civil action against three other chiropractors (Tole, Gurvey and Palaschuk), who were officers and members of the MCA (the defendants), alleging misfeasance in public office - The Manitoba Court of Queen's Bench held that the defendants, who were acting under statutory authority (i.e., the Chiropractors Act), were appropriately classified as public officials - However, the court found that there was no exercise of bad faith, deliberate wrongdoing or dishonesty by the defendants and consequently, the court found that the tort of misfeasance in public office was not established on a balance of probabilities - See paragraphs 116 to 125.

Cases Noticed:

Tremblay v. Commission des affaires sociales et autres, [1992] 1 S.C.R. 952; 136 N.R. 5; 47 Q.A.C. 169, refd to. [para. 11].

Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) et al. (2007), 253 N.S.R.(2d) 134; 807 A.P.R. 134; 2007 NSCA 37, refd to. [para. 11].

Wolfrom v. Association of Professional Engineers and Geoscientists (Man.) (2001), 160 Man.R.(2d) 62; 262 W.A.C. 62; 2001 MBCA 152, refd to. [para. 56].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 63].

Casey v. Automobiles Renault Canada Ltd., [1965] S.C.R. 607, refd to. [para. 64].

Stoffman v. Ontario Veterinary Association (1990), 46 O.A.C. 232; 73 O.R.(2d) 737 (Div. Ct.), refd to. [para. 64].

Bainard et al. v. Toronto Police Services Board et al., [2002] O.T.C. 504 (Sup. Ct.), refd to. [para. 64].

Khanna v. Royal College of Dental Surgeons of Ontario et al., [1999] O.T.C. Uned. 508; 44 O.R.(3d) 535 (Sup. Ct.), revd. [2000] O.A.C. Uned. 54; 47 O.R.(3d) 95 (C.A.), refd to. [para. 64].

Oniel v. Metropolitan Toronto Police Force et al. (2001), 141 O.A.C. 201; 195 D.L.R.(4th) 59 (C.A.), refd to. [para. 78].

Griffin v. Summerside (City) et al. (2008), 281 Nfld. & P.E.I.R. 197; 863 A.P.R. 197; 2008 PESCAD 14, refd to. [para. 80].

Beals v. Saldanha et al. (2003), 314 N.R. 209; 182 O.A.C. 201; 2003 SCC 72, refd to. [para. 87].

Shurb et al. v. Brandon (City) (1988), 56 Man.R.(2d) 222 (Q.B.), refd to. [para. 87].

DeGrouwe v. Wytinck, [1952] 4 D.L.R. 326 (Man. C.A.), refd to. [para. 88].

Estrin v. Law Society of Alberta et al. (1995), 174 A.R. 379; 102 W.A.C. 379; 1995 CarswellAlta 757 (C.A.), refd to. [para. 89].

Proulx v. Québec (Procureur général), [2001] 3 S.C.R. 9; 276 N.R. 201; 2001 SCC 66, refd to. [para. 93].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Cooper v. Registrar of Mortgage Brokers (B.C.) et al. (2001), 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 206 D.L.R.(4th) 193; 2001 SCC 79, refd to. [para. 105].

Finney v. Barreau du Québec - see McCullock-Finney v. Barreau du Québec.

McCullock-Finney v. Barreau du Québec (2004), 321 N.R. 361; 2004 SCC 36, refd to. [para. 105].

Henderson v. College of Physicians and Surgeons (Ont.) (2003), 172 O.A.C. 337; 228 D.L.R.(4th) 598 (C.A.), refd to. [para. 106].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 116].

Uni-Jet Industrial Pipe Ltd. et al. v. Canada (Attorney General) et al. (2001), 156 Man.R.(2d) 14; 246 W.A.C. 14; 2001 MBCA 40, refd to. [para. 122].

Roncarelli v. Duplessis (1959), 16 D.L.R.(2d) 689 (S.C.C.), refd to. [para. 122].

Canada Cement LaFarge Ltd. et al. v. British Columbia Lightweight Aggregate Ltd. et al. (1983), 47 N.R. 191; 145 D.L.R.(3d) 385 (S.C.C.), refd to. [para. 127].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al. (2007), 368 N.R. 1; 230 O.A.C. 260; 285 D.L.R.(4th) 620; 2007 SCC 41, refd to. [para. 155].

Wiche v. Ontario et al., [2001] O.T.C. 359 (Sup. Ct.), refd to. [para. 158].

McNeil v. Brewers Retail Inc., 2008 ONCA 405, refd to. [para. 165].

Cunningham v. Wheeler - see Cooper v. Miller (No. 1).

Shanks v. McNee - see Cooper v. Miller (No. 1).

Cooper v. Miller (No. 1), [1994] 1 S.C.R. 359; 164 N.R. 81; 41 B.C.A.C. 1; 66 W.A.C. 1, refd to. [para. 167].

Thompson v. Commissioner of Police of the Metropolis, [1998] Q.B. 498 (C.A.), refd to. [para. 168].

Kaur v. Moore Estate et al., [2003] O.T.C. 356 (Sup. Ct.), refd to. [para. 168].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 170].

Amirault v. Westminer Canada Holdings Ltd. - see Coughlan et al. v. Westminer Canada Ltd. et al.

Coughlan et al. v. Westminer Canada Ltd. et al. (1994), 127 N.S.R.(2d) 241; 355 A.P.R. 241 (C.A.), refd to. [para. 224].

Statutes Noticed:

Limitation of Actions Act, R.S.M. 1987, c. L-150; C.C.S.M., c. L-150, sect. 2(1)(e), sect. 2(1)(n) [para. 146].

Counsel:

Stephen J. Moreau, for the plaintiff;

Martin G. Tadman and Nunziata Ardita, for the defendants.

This case was heard by McKelvey, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on May 6, 2009.