College of Physicians and Surgeons (Alta.) v. J.H. et al.,

• Judge: Graesser, J.
• Neutral Citation: 2009 ABQB 48
• Citation: 2009 ABQB 48,(2009), 468 A.R. 101 (QB),[2009] 7 WWR 150,3 Alta LR (5th) 333,468 AR 101,(2009), 468 AR 101 (QB),468 A.R. 101
• Date: 14 October 2008
• Court: Court of Queen's Bench of Alberta (Canada)

College of Physicians v. J.H. (2009), 468 A.R. 101 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. FE.024

In The Matter Of an Investigation by the College of Physicians and Surgeons of the Province of Alberta Regarding a Complaint by a Patient, C.P., Regarding Medical Practitioners Dr. J.H. and Dr. P.H.

In The Matter Of an Application to the Court of Queen's Bench Pursuant to Section 47(2) of the Medical Profession Act, R.S.A. 2000, c. M-11

The College of Physicians and Surgeons of the Province of Alberta (plaintiff) v. Dr. J.H. and Dr. P.H. (defendants)

(0701 05154; 2009 ABQB 48)

Indexed As: College of Physicians and Surgeons (Alta.) v. J.H. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Graesser, J.

January 22, 2009.

Summary:

The applicants were brothers and ophthalmologists who practised in association. The applicants were under investigation by the College of Physicians and Surgeons (Alta.) regarding a complaint by a patient on whom cataract surgery was performed. The applicants applied for an order prohibiting the College's investigator (Ritchie) from continuing to investigate the complaint, on the basis of alleged bias by Ritchie. They also sought certiorari to quash the investigative proceedings to date. The College applied for an order requiring the applicants to produce original Patient Records in their possession or control regarding five patients who underwent a surgical procedure on the same day as the procedure performed on the complainant.

The Alberta Court of Queen's Bench, in a decision reported at 445 A.R. 251, dismissed the applicants' application and allowed the College's application.

The Alberta Court of Queen's Bench awarded the College solicitor and client costs of $11,800 with respect to the applicants' application and party and party costs with respect to its application for production. The College was entitled to disbursements of $2,020.04.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Practice - Topic 7462.1

Costs - Solicitor and client costs - Entitlement to - Unproven allegations of dishonest or improper conduct (incl. malice) - The applicants were brothers and ophthalmologists who practised in association - The applicants were under investigation by the College of Physicians and Surgeons (Alta.) regarding a complaint by a patient on whom cataract surgery was performed - The applicants applied for an order prohibiting the College's investigator (Ritchie) from continuing to investigate the complaint, on the basis of alleged bias by Ritchie - They also sought certiorari to quash the investigative proceedings to date - The College applied for an order requiring the applicants to produce original Patient Records in their possession or control regarding five patients who underwent a surgical procedure on the same day as the procedure performed on the complainant - The applicants also suggested that Ritchie provided misleading evidence to the court on the College's application for disclosure - The application judge dismissed the application - The allegations regarding Ritchie were baseless and unfounded - The Alberta Court of Queen's Bench awarded the College solicitor and client costs of $11,800 - The nature of the allegations against Ritchie in the litigation were an attack on his credibility and integrity - Allegations of bias against the investigator, allegations of closed-mindedness in his investigation and allegations that the reasons provided in his affidavit in support of the application to compel production by the doctors were "untruthful and a sham" were akin to allegations that he has committed fraud - The allegations against Ritchie were extremely strong, and suggested that he was dishonest - The applicants' conduct was the sort that needed to be discouraged - Solicitor and client costs were appropriate.

Practice - Topic 7470

Costs - Solicitor and client costs - Entitlement to - Unproven allegation of fraud - [See Practice - Topic 7462.1 ].

Cases Noticed:

Canada Deposit Insurance Corp. v. Canadian Commercial Bank (1992), 128 A.R. 145 (Q.B.), refd to. [para. 4].

Pharand Ski Corp. v. Alberta (1991), 116 A.R. 326 (Q.B.), refd to. [para. 5].

Pharand Ski Corp. v. Alberta (1991), 122 A.R. 395 (Q.B.), refd to. [para. 6].

Walsh v. Mobil Oil Canada et al. (2008), 440 A.R. 199; 438 W.A.C. 199; 2008 ABCA 268, refd to. [para. 7].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 7].

Mobil Oil Canada Ltd. v. Canadian Superior Oil Ltd. and Nielsen (1979), 21 A.R. 111 (Q.B.), refd to. [para. 9].

Polar Ice Express Inc. v. Arctic Glacier Inc. (2009), 446 A.R. 295; 442 W.A.C. 295; 2009 ABCA 20, refd to. [para. 12].

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al. (1993), 138 A.R. 161 (Q.B.), affd. (1994), 155 A.R. 42; 73 W.A.C. 42 (C.A.), refd to. [para. 15].

Whiten v. Pilot Insurance Co. et al. (2002), 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 16].

Colborne Capital Corp. et al. v. 542775 Alberta Ltd. et al., [1999] 8 W.W.R. 222; 228 A.R. 201; 188 W.A.C. 201; 1999 ABCA 14, refd to. [para. 17].

Fleck v. Stewart (1991), 118 A.R. 345 (Q.B.), refd to. [para. 19].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209, refd to. [para. 22].

Pfeifer et al. v. Westfair Foods Ltd. (2003), 347 A.R. 236; 2003 ABQB 829, refd to. [para. 23].

Toronto-Dominion Bank v. Grande Caledon Developments Inc. et al. (1998), 110 O.A.C. 164 (C.A.), refd to. [para. 24].

Recovery Production Equipment Ltd. v. McKinney Machine Co. (1998), 223 A.R. 24; 183 W.A.C. 24 (C.A.), refd to. [para. 25].

Davis v. 850015 Alberta Ltd. et al. (2003), 335 A.R. 172; 2003 ABPC 68, refd to. [para. 26].

Zwicker v. Schubert et al. (1999), 184 Sask.R. 35 (Q.B.), refd to. [para. 26].

Vanderclay Development Co. v. Inducon Engineering et al. (1969), 1 D.L.R.(3d) 337 (Ont. H.C.), refd to. [para. 38].

599291 Alberta Ltd. v. Luff et al. (2005), 385 A.R. 175; 2005 ABQB 892, refd to. [para. 42].

Authors and Works Noticed:

Stevenson, William A., and Côté, Jean E., Civil Procedure Encyclopedia, p. 72-69 [para. 24].

Counsel:

Craig D. Boyer (Shores Belzil Jardine LLP), for the plaintiff;

Michael Theroux (Bennett Jones), for the defendants.

This matter was heard on October 14, 2008, by Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on January 22, 2009.