Simpson et al. v. Chiropractors' Association of Saskatchewan et al., 2001 SKCA 22

• Judge: Cameron, Lane and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 16, 2001
• Jurisdiction: Saskatchewan
• Citations: 2001 SKCA 22;(2001), 203 Sask.R. 231 (CA)

Simpson v. Chiropractors' Assoc. (2001), 203 Sask.R. 231 (CA);

    240 W.A.C. 231

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. MR.018

Chiropractors' Association of Saskatchewan (appellant/respondent on cross-appeal) v. Robert Simpson, Brian Thompson, Kendall Balchen, Richard Jurgens, Kelly Foster, John Grabowski, Duane Pochylko, James McKee, James Pankiw, Keith Meszaros, Stanley Lewchuck and Darren Marcotte (respondents/appellants on cross-appeal) and College of Physicians and Surgeons of Saskatchewan and the Saskatchewan Association of Optometrists (intervenors)

(C.A. No. 3414; 2001 SKCA 22)

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

Saskatchewan Court of Appeal

Cameron, Lane and Jackson, JJ.A.

February 15, 2001.

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, in a decision reported at 185 Sask.R. 7, dismissed the action against the Associ­ation for the torts of abuse of public office, injurious falsehood, intimidation and inten­tional interference with economic relations. The court also 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); and (2) insofar as regulatory bylaw 19(1)(c) purported to pro­hibit the use of the activator as a method of adjustment, such regulatory bylaw was void as against public policy. Those two findings made their way into the judgment as declar­ations. The Association appealed against both declarations. The plaintiff chiro­practors cross-appealed against the first declaration.

The Saskatchewan Court of Appeal set aside both declarations.

Professional Occupations - Topic 4

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

Professional Occupations - Topic 4403

Chiropractors - Legislation and regulation -Regulatory bylaw 19(1)(c) enacted by the Chiropractors' Association of Saskatch­ewan 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 trial judge declared 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); and (2) insofar as regulatory bylaw 19(1)(c) purported to prohibit the use of the activator as a method of adjust­ment, such regulatory bylaw was void as against pub­lic policy - The second declar­ation was based on the trial judge's con­clusion that the activator was an "effica­cious" method of treatment and therefore should be made available to the public - The Saskatchewan Court of Appeal set aside the first declara­tion, stating that the fact that the activator was employed by hand did not detract from its essential nature as an adjustment device or its typi­cal use in effecting an adjustment that would otherwise be effected by hand - The court also set aside the second declaration, holding that the bylaw was legally enacted under the en­abling legislation and that, even if it was open to the trial judge to review the merits of the bylaw with a view to determining if it was in the public inter­est, his review did not comport with the level of deference and restraint that was called for.

Professional Occupations - Topic 4471

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

Cases Noticed:

Ducharme and Holben v. Davies and Rog­oschewsky, [1984] 1 W.W.R. 699; 29 Sask.R. 54 (C.A.), refd to. [para. 8].

McDonald v. Fellows, Doherty Brothers Realty Ltd. and Wilkinson, [1979] 6 W.W.R. 544; 17 A.R. 330 (C.A.), refd to. [para. 8].

Kalkinis et al. v. Allstate Insurance Co. of Canada (1998), 117 O.A.C. 193; 41 O.R.(3d) 528 (C.A.), refd to. [para. 8].

Mackey v. Board of Chiropractors (Sask.) (1987), 60 Sask.R. 163 (Q.B.), refd to. [para. 26].

Mackey et al. v. Association of Chiroprac­tors (Sask.) et al. (1990), 88 Sask.R. 274 (Q.B.), consd. [para. 26].

Thompson v. Chiropractors' Association of Saskatchewan (1996), 139 Sask.R. 93 (Q.B.), refd to. [para. 26].

Thompson v. Chiropractors' Association of Saskatchewan (1996), 145 Sask.R. 35 (Q.B.), consd. [para. 26].

Jabour v. Law Society of British Columbia et al., [1982] 2 S.C.R. 307; 43 N.R. 451; [1982] 5 W.W.R. 289; 137 D.L.R.(3d) 1, refd to. [para. 39].

Pearlman v. Manitoba Law Society Judi­cial Committee, [1991] 2 S.C.R. 869; 130 N.R. 121; 75 Man.R.(2d) 81; 6 W.A.C. 81, refd to. [para. 39].

Mixnam's Properties Ltd. v. Chertsey U.D.C., [1964] 1 Q.B. 214, refd to. [para. 49].

Kruse v. Johnson, [1898] 2 Q.B. 91, refd to. [para. 50].

R. v. Bell, [1979] 2 S.C.R. 212; 26 N.R. 457; 9 M.P.L.R. 103, refd to. [para. 50].

Montreal v. Arcade Amusements Inc., [1985] 1 S.C.R. 368; 58 N.R. 339, refd to. [para. 50].

Ebert Howe and Associates v. British Columbia Optometric Association, [1985] 6 W.W.R. 394 (B.C.C.A.), refd to. [para. 51].

Cymbalisty v. Chiropractors' Association of Saskatchewan (1985), 39 Sask.R. 103 (Q.B.), refd to. [para. 66].

Statutes Noticed:

Chiropractic Act Regulations (Sask.), bylaw 19(1)(c) [para. 4].

Counsel:

James S. Ehmann, for the appellant/re­spon­dent on cross-appeal;

Jay D. Watson and James T. Casey, for the respondents/appellants on cross-appeal;

Bryan E. Salte, for the intervenors.

This appeal and cross-appeal were heard on January 16, 2001, before Cameron, Lane and Jackson, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Cam­eron, J.A., on February 15, 2001.