Simpson et al. v. Chiropractors' Association of Saskatchewan et al., (1999) 185 Sask.R. 7 (QB)

• Judge: Allbright, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 23, 1999
• Jurisdiction: Saskatchewan
• Citations: (1999), 185 Sask.R. 7 (QB);1999 SKQB 89

Simpson v. Chiropractors Assoc. (1999), 185 Sask.R. 7 (QB)

MLB headnote and full text

Temp. Cite: [1999] Sask.R. TBEd. OC.056

Robert Simpson, Brian Thompson, Kendall Balchen, Richard Jurgens, Kelly Foster, John Grabowski, Duane Pochylko, James McKee, James Pankiw, Keith Meszaros, Stanley Lewchuk, Jason Sand, Michael Hornick, Fred Murray, and Darren Marcotte (plaintiffs) v. Chiropractors' Association of Saskatchewan, Hugh Armstrong, Graeme McMaster, Cheryl Roundy, James Howlett and James Nykoliation (defendants)

(1996 Q.B. No. 1065; 1999 SKQB 89)

Indexed As: Simpson et al. v. Chiropractors' Association of Saskatchewan et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Allbright, J.

September 23, 1999.

Summary:

The plaintiff chiropractors sued the Chiro­practors' Association of Saskatchewan for abuse of public office, injurious falsehood, intimidation and intentional interference with economic relations. The plaintiffs alleged, inter alia, that the Association, wrongfully and in bad faith, advised third parties (in­cluding the Canadian Chiropractic Protective Association and Saskatchewan Government Insurance) that use of an activator by chiro­practors was absolutely prohibited in Saskatchewan. It was also alleged that the Association caused the Joint Chiropractic Professional Review Committee to review the plaintiffs' billings as a means of disci­pline and to coerce the plaintiffs to abide by the Association's position that use of an activator was prohibited. The action raised the issues of: (1) whether use of an activator alone or in conjunction with an adjustment by hand of any of the articulations of the human body breached regulatory bylaw 19(1)(c) passed under the Chiropractic Act; (2) whether an activator was an efficacious method of adjustment; (3) whether regula­tory bylaw 19(1)(c) should be upheld if it was found that use of an activator did not breach the bylaw.

The Saskatchewan Court of Queen's Bench dismissed the action against the Asso­ciation for the torts of abuse of public office, injuri­ous falsehood, intimidation and inten­tional inter­ference with economic relations. How­ever, the court con­cluded that: (1) use of an activator in con­junction with a hand adjust­ment would not breach regulatory bylaw 19(1)(c), but use of an activator alone in performing an adjus­tment was in breach of regulatory bylaw 19(1)(c); (2) the activator was an efficacious method of adjustment of any one or more of the articulations of the human body; (3) insofar as regulatory bylaw 19(1)(c) pur­ported to prohibit the use of the activator as a method of adjustment, such regulatory bylaw must be considered void as against public policy.

Professional Occupations - Topic 4

General - Legislation and regulation - Public interest - The Saskatchewan Court of Queen's Bench stated that "[a] legit­imate objective of a professional associ­ation is indeed to define and oversee the best interests of the members of that asso­ciation and to put in place a regulatory scheme providing for the orderly conduct of the activities of the members of the profession. However, such provisions designed to safeguard the best interests of the members of the professional asso­ciation must not result in a course of con­duct which is contrary to the fundamental pub­lic interest. This concept of public interest must be viewed from a broad perspective. It must be recognized that the orderly structuring of the day-to-day ac­tiv­ities of a profession is a desirable attribute of a regulatory scheme which fosters the inter­ests of the public. Where a provision, such as a disciplinary provision, does not advance the public interest, but rather works against the public interest, such a principle is inconsistent with what is in the best interests of the public" - See para­graph 262.

Professional Occupations - Topic 4

General - Legislation and regulation - Public interest - [See both Professional Occupations - Topic 4403 ].

Professional Occupations - Topic 4403

Chiropractors - Legislation and regulation - The Saskatchewan Court of Queen's Bench stated that "[t]he legislature of the Province of Saskatchewan, in enacting the Chiropractic Act, 1994, and promulgating bylaws thereunder, has seen fit to provide a framework whereby the chiropractic profession is essentially a self-governing discipline. This 'designation' embodies the requirement that such a self-governing profession must conduct itself in a fashion that promotes the best interests of the public being served by that profession. All of the regulatory powers and provisions which are contained in the legislation must be viewed against the overarching prin­ciple of the best interests of the public" - See paragraph 262.

Professional Occupations - Topic 4403

Chiropractors - Legislation and regulation - Regulatory bylaw 19(1)(c) passed under the Chiropractic Act provided that "no member shall use a machine or mechanical device as a substitute method of adjust­ment by hand of any one or more of the several articulations of the human body" - The Saskatchewan Court of Queen's Bench concluded that: (1) use of an activator in conjunction with a hand adjustment would not breach regulatory bylaw 19(1)(c), but use of an activator alone in performing an adjustment was in breach of regulatory bylaw 19(1)(c); (2) the activator was an efficacious method of adjustment of any one or more of the articulations of the human body; (3) insofar as regulatory bylaw 19(1)(c) purported to prohibit the use of the activator as a method of adjust­ment, such regulatory bylaw must be con­sidered void as against public policy - See paragraphs 230 to 268.

Professional Occupations - Topic 4471

Chiropractors - Discipline - Offence - Using mechanical devices (incl. activator) - [See second Professional Occupations - Topic 4403 ].

Torts - Topic 5024

Interference with economic relations - Elements of liability - Malice or intent to injure - The plaintiff chiropractors sued the Chiropractors' Association of Saskatch­­ewan for, inter alia, injurious falsehood, intim­idation or intentional inter­ference with economic relations - The plaintiffs alleged, inter alia, that the Asso­ciation, wrongfully and in bad faith, advised third parties (including the Cana­dian Chiropractic Pro­tective Association and Saskatchewan Government Insurance) that use of an activator by chiropractors was absolutely prohibited in Saskatchewan - It was also alleged that the Association caused the Joint Chiropractic Professional Review Committee to review the plaintiffs' billings as a means of discipline and to coerce the plaintiffs to abide by the As­soc­iation's position that use of an activator was pro­hibited - The Saskatchewan Court of Queen's Bench held that bylaw 19(1)(c) passed under the Chiropractic Act was void insofar as it prohibited use of the activator as a method of adjust­ment - However, the court dismissed the action where the plain­tiffs had not estab­lished that the Asso­ci­ation intended to injure them, that some action of the Asso­ciation was unlaw­ful or that the plaintiffs had suffered an economic loss - See para­graphs 283 to 289.

Torts - Topic 5106

Interference with economic relations - Injurious falsehood - Malicious intent - [See Torts - Topic 5024 ].

Torts - Topic 5286

Interference with economic relations - Intimidation and duress - Acts not consti­tuting intimidation - [See Torts - Topic 5024 ].

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in public office - The Saskatchewan Court of Queen's Bench stated that the intention to do harm to a plaintiff was an essential element of the tort of abuse of public office (also known as the tort of misfeasance in public office) - "This intent can be in the form of malice or knowingly taking action without au­thor­ity. Accordingly, to found liability under this tort, a plaintiff must show either malicious intent to harm or alternatively, the intentional doing of a wrongful act with the knowledge that the plaintiff would likely be injured as a consequence. In this context, malice may equate to 'improper motive'. On occasion, the phrase 'improper purpose' may be substituted for malice" - See paragraph 272.

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in public office - The plaintiff chiropractors sued the Chiro­practors' Association of Saskatchewan for, inter alia, abuse of public office (also known as misfeasance in public office) - The plaintiffs alleged, inter alia, that the Asso­ciation, wrongfully and in bad faith, advised third parties (including the Cana­dian Chiropractic Protective Associ­ation and Saskatchewan Government Insur­ance) that use of an activator by chiroprac­tors was absolutely prohibited in Saskatchewan - It was also alleged that the Association caused the Joint Chiropractic Professional Review Committee to review the plaintiffs' billings as a means of disci­pline and to coerce the plaintiffs to abide by the Asso­ciation's position that use of an activator was prohibited - The Saskatchewan Court of Queen's Bench held that bylaw 19(1)(c) passed under the Chiropractic Act was void insofar as it prohibited use of the activator as a method of adjustment - However, the court dis­missed the action for abuse of public office where the evi­dence did not establish the requisite stan­dard of malice or know­ledge of unauthor­ized action taken - See para­graphs 269 to 282.

Cases Noticed:

Mackey v. Board of Chiropractors (Sask.) (1987), 60 Sask.R. 163 (Q.B.), consd. [para. 30].

Mackey et al. v. Association of Chiroprac­tors (Sask.) et al. (1990), 88 Sask.R. 274 (Q.B.), consd. [para. 30].

Thompson v. Chiropractors' Association of Saskatchewan (1996), 145 Sask.R. 35 (Q.B.), consd. [para. 239].

Brett et al. v. Board of Directors of Physi­otherapy (Ont.) (1991), 48 O.A.C. 24; 77 D.L.R.(4th) 144 (Div. Ct.), refd to. [para. 260].

Hamilton, Re, [1976] 3 W.W.R. 7 (B.C.S.C.), consd. [para. 264].

Saskatchewan Provincial Court Judges' Association et al. v. Saskatchewan (Min­ister of Justice) et al. (1995), 137 Sask.R. 204; 107 W.A.C. 204 (C.A.), refd to. [para. 270].

Ontario Society For the Prevention of Cruelty to Animals v. Veterinary Asso­ci­ation (Ont.) (1985), 51 O.R.(2d) 183 (H.C.), refd to. [para. 271].

Bartrop v. Sweetgrass Band No. 113 et al. (1987), 54 Sask.R. 213 (Q.B.), refd to. [para. 286].

Statutes Noticed:

Chiropractic Act Regulations (Can.), bylaw 19(1) [para. 231].

Authors and Works Noticed:

Burns, Tort Injury to Economic Interests: Some Facets of a Legal Response (1980), 58 Can. Bar Rev. 103, p. 141 [para. 285].

Hogg, Peter W., Liability of the Crown (2nd Ed. 1989), p. 111 [paras. 270, 273].

Klar, Lewis N., Tort Law (1991), gen­erally [para. 285].

Shorter Oxford English Dictionary (3rd Ed. 1987), vol. 1, p. 632 [para. 249].

Counsel:

Jay D. Watson, for the plaintiffs, Brian Thompson, Kendall Balchen, Kelly Fos­ter, John Grabowski, James McKee, James Pankiw, Fred Murray and Darren Marcotte;

E. Scott Hopley, for the plaintiffs, Robert Simpson, Richard Jurgens, Duane Poch­ylko, Keith Meszaros, Stanley Lewchuk, Jason Sand and Michael Hornick;

James S. Ehmann and Helen L. Yum, for the defendants, Chiropractors' Associ­ation of Saskatchewan, Hugh Armstrong, Graeme McMaster, Cheryl Roundy, James Howlett and James Nykoliation.

This action was heard before Allbright, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on Sep­tem­ber 23, 1999.