Moll v. College of Alberta Psychologists, 2011 ABCA 110

• Judge: Fraser, C.J.A., Côté and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 06, 2011
• Citations: 2011 ABCA 110;(2011), 510 A.R. 48

Moll v. College of Alta. Psychologists (2011), 510 A.R. 48; 527 W.A.C. 48 (CA)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. AP.008

Marianne Moll (appellant) v. College of Alberta Psychologists (respondent)

(1003-0003-AC; 2011 ABCA 110)

Indexed As: Moll v. College of Alberta Psychologists

Alberta Court of Appeal

Fraser, C.J.A., Côté and Rowbotham, JJ.A.

April 6, 2011.

Summary:

A psychologist opined that a 10 year old child had or may have "a pervasive developmental disorder" and "the beginnings of a major mood disorder with childhood onset, characterized as paranoid and continuous". Two years later, another psychologist (Peden) took issue with the opinion and sought clarification of the diagnosis. A heated exchange took place. Peden filed a complaint with the College of Alberta Psychologists. The College's Discipline Committee found the psychologist guilty of failing to deal with Peden in a professional manner (first charge) and "unskilled practice" in providing a professional opinion displaying a lack of knowledge, skill or judgment (second charge). The psychologist was also found to have violated the Canadian Code of Ethics for Psychologists for failing to keep up to date on relevant knowledge and failing to maintain competence in her declared area of psychological competence and activity. A written reprimand was imposed on the first charge. Since the psychologist was soon retiring, no immediate remedial training or education was ordered on the second charge. If the psychologist chose not to retire, her practice was restricted pending successful completion of remedial training or education. The psychologist was ordered to pay the full costs of the hearing ($25,205.03). The psychologist appealed. The Council of the College quashed the first charge. The Council confirmed guilt on the second charge. The sanctions were confirmed, subject to reducing the order for costs to $5,000 and quashing the publication order. The psychologist appealed, submitting that Council's confirmation of the decision that she was guilty of "unskilled practice", and the sanctions imposed, was unreasonable.

The Alberta Court of Appeal, Côté, J.A., dissenting, dismissed the appeal.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - A psychologist opined that a 10 year old child had or may have "a pervasive developmental disorder" and "the beginnings of a major mood disorder with childhood onset, characterized as paranoid and continuous" - A Discipline Committee of the College of Alberta Psychologists found the psychologist guilty of "unskilled practice" in providing a professional opinion displaying a lack of knowledge, skill or judgment - Specifically, the Committee found that the psychologist had no neuropsychology training, which caused her to render an opinion based on tests that were incapable of supporting the opinion and a diagnosis unsupported by the data (i.e., she gave a neuropsychological opinion and she was not a neuropsychologist) - The Council of the College confirmed the decision - The psychologist appealed, arguing that the Committee failed to provide sufficient reasons for its decision and, accordingly, the Council's decision to confirm the guilty finding was unreasonable - Section 50 of the Psychology Profession Act required written reasons - The Alberta Court of Appeal held that the Committee's reasons were sufficient, in that the reasons told the parties why the psychologist's conduct was found to be unskilled practice, provided public accountability for the decision, and permitted effective appellate review - The Council's reasons, while concise, were also sufficient in that they were "cogent and understandable and sufficient to explain why it determined that the findings of the Discipline Committee were reasonable" - See paragraphs 31 to 38.

Professional Occupations - Topic 2347

Psychologists, therapists and counsellors - Discipline - Unskilled practice - The Alberta Court of Appeal distinguished between professional misconduct and "unskilled practice" under the Psychology Profession Act - The court stated that "section 28 expressly provides that a lack of knowledge of or lack of skill or judgment in the practice of psychology, whether or not that conduct is disgraceful or dishonourable, constitutes either unskilled practice of psychology or professional misconduct. ... The Alberta Legislature has sought to strengthen the obligations that members of self-governing professions, including psychologists, owe to the public. It has accomplished this by statutorily providing for disciplinary measures to be imposed regardless of whether the impugned conduct reaches the level of professional misconduct as that phrase had earlier been interpreted by the courts. That interpretation had sometimes required the presence of elements of disgraceful or dishonourable conduct before a finding of professional misconduct could be sustained ... Hence, the act makes it clear that the conduct need not be disgraceful or dishonourable to constitute professional misconduct. Unskilled practice will do." - See paragraphs 23 to 26.

Professional Occupations - Topic 2347

Psychologists, therapists and counsellors - Discipline - Unskilled practice - A psychologist opined that a 10 year old child had or may have "a pervasive developmental disorder" and "the beginnings of a major mood disorder with childhood onset, characterized as paranoid and continuous" - A Discipline Committee of the College of Alberta Psychologists found the psychologist guilty of "unskilled practice" in providing a professional opinion displaying a lack of knowledge, skill or judgment - Specifically, the Committee found that the psychologist had no neuropsychology training, which caused her to render an opinion based on tests that were incapable of supporting the opinion and a diagnosis unsupported by the data (i.e., she gave a neuropsychological opinion and she was not a neuropsychologist) - The Council of the College confirmed the decision - On appeal, the psychologist argued that the Committee and Council both failed to consider the difference between an error of judgment and unskilled practice - The Alberta Court of Appeal rejected the submission - The psychologist's conduct went beyond a simple error in judgment, as the Committee and Council inferentially found - Both the Committee and the Council "could reasonably find that her inappropriate opinions constituted unskilled practice" - See paragraphs 28 to 30.

Professional Occupations - Topic 2347

Psychologists, therapists and counsellors - Discipline - Unskilled practice - A psychologist opined that a 10 year old child had or may have "a pervasive developmental disorder" and "the beginnings of a major mood disorder with childhood onset, characterized as paranoid and continuous" - A Discipline Committee of the College of Alberta Psychologists found the psychologist guilty of "unskilled practice" in providing a professional opinion displaying a lack of knowledge, skill or judgment - Specifically, the Committee found that the psychologist had no neuropsychology training, which caused her to render an opinion based on tests that were incapable of supporting the opinion and a diagnosis unsupported by the data (i.e., she gave a neuropsychological opinion and she was not a neuropsychologist) - The Council of the College confirmed the decision - The Alberta Court of Appeal dismissed the psychologist's appeal, finding that the decisions of the Council and Discipline Committee were not unreasonable - The court rejected, as being without merit, the psychologist's submissions that there was evidence before the Discipline Committee to support her assertions that the tests administered supported her opinion; that the finding that she gave a professional opinion or diagnosis (as opposed to suggestions or directions for subsequent specialists) was unreasonable; that Council erred in finding that her psychological knowledge was not current; and that the finding of "unskilled practice" was unreasonable - See paragraphs 39 to 87.

Professional Occupations - Topic 2357

Psychologists, therapists and counsellors - Discipline - Punishments - Practice restrictions pending remedial training or education - A psychologist opined that a 10 year old child had or may have "a pervasive developmental disorder" and "the beginnings of a major mood disorder with childhood onset, characterized as paranoid and continuous" - A Discipline Committee of the College of Alberta Psychologists found the psychologist guilty of "unskilled practice" in providing a professional opinion displaying a lack of knowledge, skill or judgment - Specifically, the Committee found that the psychologist had no neuropsychology training, which caused her to render an opinion based on tests that were incapable of supporting the opinion and a diagnosis unsupported by the data (i.e., she gave a neuropsychological opinion and she was not a neuropsychologist) - Since the psychologist was soon retiring, no immediate remedial training or education was ordered on the second charge - However, if the psychologist chose not to retire, her practice was restricted pending successful completion of remedial training or education - The Alberta Court of Appeal held that the Council did not err in confirming the sanction imposed by the Committee - The court rejected the submission that remedial training or education was unreasonable where she had never before been the subject of a complaint - Accepting that argument would lead to the untenable result that every disciplined professional would be entitled to one "free" complaint before steps could be taken to protect the public - See paragraphs 88 to 91.

Cases Noticed:

Litchfield v. College of Physicians and Surgeons (Alta.) (2008), 432 A.R. 131; 424 W.A.C. 131; 2008 ABCA 164, refd to. [para. 17].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 17].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 17].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 18].

Bishop v. College of Optometrists (Alta.) (2009), 454 A.R. 197; 455 W.A.C. 197; 2009 ABCA 175, refd to. [para. 18].

K.V. v. College of Physicians and Surgeons (Alta.) (1999), 237 A.R. 49; 197 W.A.C. 49; 173 D.L.R.(4th) 431; 1999 ABCA 125, refd to. [para. 20].

Newton v. Criminal Trial Lawyers' Association (Alta.) et al. (2010), 493 A.R. 89; 502 W.A.C. 89; 2010 ABCA 399, refd to. [para. 21].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 22].

Royal College of Dental Surgeons (Ont.) et al. v. Rocket and Price, [1990] 2 S.C.R. 232; 111 N.R. 161; 40 O.A.C. 241, refd to. [para. 24].

Binet v. Pharmascience et al., [2006] 2 S.C.R. 513; 353 N.R. 343; 2006 SCC 48, refd to. [para. 24].

Myers v. Elman, [1940] A.C. 282 (H.L.), refd to. [para. 25].

In re A Solicitor, [1912] 1 K.B. 302, refd to. [para. 25].

Wilson v. Swanson, [1956] S.C.R. 804, refd to. [para. 28].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 32].

Walsh v. Council for Licensed Practical Nurses (2010), 295 Nfld. & P.E.I.R. 222; 911 A.P.R. 222; 2010 NLCA 11, refd to. [para. 33].

Johnston et al. v. Energy and Utilities Board (Alta.) (1997), 200 A.R. 321; 146 W.A.C. 321; 1 Admin. L.R.(3d) 241 (C.A.), refd to. [para. 33].

Clifford v. Municipal Employees Retirement System (Ont.) - see Clifford v. Ontario (Attorney General) et al.

Clifford v. Ontario (Attorney General) et al. (2009), 256 O.A.C. 354; 98 O.R.(3d) 210; 2009 ONCA 670, refd to. [para. 35].

Hennig v. Institute of Chartered Accountants (Alta.) (2008), 433 A.R. 221; 429 W.A.C. 221; 2008 ABCA 241, refd to. [para. 50].

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 50].

Moreau-Bérubé v. New Brunswick (Judicial Council) - see Conseil de la magistrature (N.-B.) v. Moreau-Bérubé.

Ironside et al. v. Alberta Securities Commission (2009), 454 A.R. 285; 455 W.A.C. 285; 2009 ABCA 134, refd to. [para. 58].

Jaswal v. Medical Board (Nfld.) (1996), 138 Nfld. & P.E.I.R. 181; 431 A.P.R. 181; 42 Admin. L.R.(2d) 233 (Nfld. T.D.), refd to. [para. 91].

Visconti v. College of Physicians and Surgeons (Alta.) (2010), 482 A.R. 244; 490 W.A.C. 244; 31 Alta. L.R.(5th) 1; 2010 ABCA 250, refd to. [para. 117].

Johnston v. Association of Professional Engineers (Sask.) (1970), 75 W.W.R.(N.S.) 740 (Sask. C.A.), refd to. [para. 117].

Nowoselsky v. College of Social Workers (Alta.), 2011 ABCA 58, refd to. [para. 117].

MJS Recycling Inc. v. Shane Homes Ltd., [2010] A.R. Uned. 688; 2010 ABCA 376, refd to. [para. 117].

Malburg v. Law Society of Manitoba (1989), 60 Man.R.(2d) 119; 62 D.L.R.(4th) 193 (C.A.), refd to. [para. 120].

Order of Chartered Accountants of Quebec v. Goulet, [1981] 1 S.C.R. 295; 38 N.R. 91, refd to. [para. 120].

Kapoor v. Law Society of Saskatchewan (1986), 52 Sask.R. 110 (C.A.), refd to. [para. 120].

Holden v. College of Psychologists (Alta.) (2001), 293 A.R. 386; 257 W.A.C. 386; 2001 ABCA 242, refd to. [para. 120].

McAllister v. New Brunswick Veterinary Medical Association (1985), 62 N.B.R.(2d) 119; 161 A.P.R. 119 (C.A.), leave to appeal denied (1985), 62 N.R. 238; 66 N.B.R.(2d) 270; 169 A.P.R. 270 (S.C.C.), refd to. [para. 120].

Law Society of Upper Canada v. Neinstein (2010), 259 O.A.C. 313; 2010 ONCA 193, refd to. [para. 125].

Sussman v. College of Alberta Psychologists (2010), 490 A.R. 304; 497 W.A.C. 304; 2010 CarswellAlta 2013; 2010 ABCA 300, refd to. [para. 125].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 125].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449; 89 D.L.R.(3d) 161, refd to. [para. 125].

Alberta Provincial Judges' Association v. Alberta (1999), 237 A.R. 276; 197 W.A.C. 276 (C.A.), leave to appeal denied (2000), 258 N.R. 194; 261 A.R. 399; 225 W.A.C. 399 (S.C.C.), refd to. [para. 131].

Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) (2005), 371 A.R. 318; 354 W.A.C. 318; 2005 ABCA 276, refd to. [para. 165].

Korytko v. Calgary (City) (1963), 46 W.W.R.(N.S.) 273 (Alta. S.C.), refd to. [para. 177].

Cluney v. Registrar of Motor Vehicles (N.S.) (1975), 11 N.S.R.(2d) 246; 5 A.P.R. 246; 53 D.L.R.(3d) 468 (C.A.), refd to. [para. 177].

Rochon v. Board of Education of Spirit River School Division No. 47 (1994), 149 A.R. 106; 63 W.A.C. 106 (C.A.), refd to. [para. 177].

Bailey et al. v. Saskatchewan Registered Nurses' Association (1996), 148 Sask.R. 156; 134 W.A.C. 156; 140 D.L.R.(4th) 547 (C.A.), refd to. [para. 177].

Perry et al. v. Ontario (1997), 100 O.A.C. 370; 148 D.L.R.(4th) 96 (C.A.), leave to appeal denied (1997), 226 N.R. 317; 110 O.A.C. 400 (S.C.C.), refd to. [para. 176].

Ardoch Algonquin First Nation v. Ontario - see Perry et al. v. Ontario.

Khan v. University of Ottawa (1997), 101 O.A.C. 241; 148 D.L.R.(4th) 577 (C.A.), refd to. [para. 177].

Gonzalez v. Driver Control Board (Alta.) et al. (2003), 330 A.R. 262; 299 W.A.C. 262; 2003 ABCA 256, leave to appeal denied (2004), 330 N.R. 196; 363 A.R. 398; 343 W.A.C. 398 (S.C.C.), refd to. [para. 177].

Keefe et al. v. Edmonton (City) et al. (2005), 363 A.R. 384; 343 W.A.C. 384; 2005 ABCA 144, refd to. [para. 177].

Hehr v. Alberta (1995), 174 A.R. 318; 102 W.A.C. 318 (C.A.), refd to. [para. 177].

Society for Promotion of Alternative Arts and Music v. Edmonton (City) et al. (2008), 459 A.R. 191; 2008 ABQB 629, refd to. [para. 177].

Boardwalk Reit LLP v. Edmonton (City) et al. (2008), 437 A.R. 347; 433 W.A.C. 347; 2008 ABCA 220, refd to. [para. 177].

Bank Mellat v. United Kingdom (Treasury), [2010] EWCA Civ. 483; [2010] 3 W.L.R. 1090 (C.A.), refd to. [para. 177].

R. v. Jahn (1982), 35 A.R. 583 (C.A.), refd to. [para. 177].

R. v. Turpin (G.) (2011), 277 O.A.C. 145; 2011 CarswellOnt 1497; 2011 ONCA 193, refd to. [para. 177].

Bowater Mersey Paper Co. v. Communications, Energy and Paperworkers Union of Canada, Local 141 (2010), 289 N.S.R.(2d) 351; 916 A.P.R. 351; 2010 NSCA 19, refd to. [para. 178].

Michaud v. Institut des comptables agréés (N.-B.) (1994), 149 N.B.R.(2d) 328; 381 A.P.R. 328 (C.A.), refd to. [para. 179].

Hutterian Brethren Church of Starland v. Starland No. 47 (Municipal District) (1991), 6 M.P.L.R.(2d) 67 (Alta. C.A.), refd to. [para. 179].

MacNeil v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2001), 189 N.S.R.(2d) 310; 590 A.P.R. 310; 2001 NSCA 3, refd to. [para. 179].

Power's Trucking Ltd. v. King (1987), 67 Nfld. & P.E.I.R. 181; 206 A.P.R. 181 (Nfld. C.A.), refd to. [para. 179].

Gale v. Canada (Treasury Board) (2004), 316 N.R. 395; 2004 FCA 13, refd to. [para. 179].

Bonnyville Adjacent Landowners Group et al. v. Bonnyville No. 87 (Municipal District) (2003), 340 A.R. 332; 2003 ABQB 672, refd to. [para. 181].

Goyal v. Minister of Employment and Immigration (1992), 142 N.R. 176 (F.C.A.), refd to. [para. 181].

Université du Québec à Trois-Riviéres v. Syndicat des employés professionnels de l'Université du Québec à Trois-Riviéres, [1993] 1 S.C.R. 471; 148 N.R. 209; 53 Q.A.C. 171, refd to. [para. 182].

Keefe et al. v. Edmonton (City) et al. (2002), 329 A.R. 149; 2002 ABQB 1098, affd. (2005), 363 A.R. 384; 343 W.A.C. 384; 2005 ABCA 144, refd to. [para. 185].

Fortin v. Canadian Pacific Ltd. (1998), 227 N.R. 381 (F.C.A.), refd to. [para. 192].

Krop v. College of Physicians and Surgeons (Ont.) (2002), 156 O.A.C. 77 (Div. Ct.), refd to. [para. 196].

Brett et al. v. Board of Directors of Physiotherapy (Ont.) (1991), 48 O.A.C. 24 (Div. Ct.), refd to. [para. 196].

Green v. College of Physicians and Surgeons (Sask.) (1986), 51 Sask.R. 241 (C.A.), refd to. [para. 200].

Huerto v. College of Physicians and Surgeons (Sask.), [1996] 4 W.W.R. 153; 141 Sask.R. 3; 114 W.A.C. 3 (C.A.), refd to. [para. 200].

Oakwood Development Ltd. v. St. François Xavier (Rural Municipality), [1985] 2 S.C.R. 164; 61 N.R. 321; 36 Man.R.(2d) 215, refd to. [para. 202].

Reddoch v. Medical Council (Yukon) (2001), 161 B.C.A.C. 131; 263 W.A.C. 131; 2001 YKCA 13, refd to. [para. 208].

Acupuncture Committee v. Wanglin (2009), 454 A.R. 152; 455 W.A.C. 152; 2009 ABCA 166, refd to. [para. 209].

College of Physicians and Surgeons (Sask.) v. Camgoz (1982), 20 Sask.R. 400 (C.A.), refd to. [para. 211].

Wilson v. Swanson, [1956] S.C.R. 804; 5 D.L.R.(2d) 113, refd to. [para. 211].

Lapointe v. Chevrette, [1992] 1 S.C.R. 351; 133 N.R. 116; 45 Q.A.C. 262, refd to. [para. 211].

Lapointe v. Hôpital Le Gardeur - see Lapointe v. Chevrette.

Statutes Noticed:

Psychology Profession Act, R.S.A. 2000, c. P-36, sect. 28(1)(d) [para. 9].

Authors and Works Noticed:

Law Society of Alberta, Code of Professional Conduct, c. 2, Commentary G.1.b. [para. 85].

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (4th Ed. 2007), pp. 355 ff., 362 [para. 196]; 364 [paras. 196, 210, 211]; 365, 366 [para. 211].

Counsel:

E.A. Olszewski, Q.C., and K.L. Lemon, for the appellant;

C.D. Boyer, for the respondent.

This appeal was heard on November 30, 2010, before Fraser, C.J.A., Côté and Rowbotham, JJ.A., of the Alberta Court of Appeal.

The judgment of the Court of Appeal was filed on April 6, 2011, and the following opinions were filed:

Fraser, C.J.A. (Rowbotham, J.A., concurring) - see paragraphs 1 to 92;

Côté, J.A., dissenting - see paragraphs 93 to 220.