Sussman v. College of Alberta Psychologists, 2010 ABCA 300

• Judge: Côté, Watson and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 08, 2010
• Citations: 2010 ABCA 300;(2010), 490 A.R. 304 (CA)

Sussman v. College of Psychologists (2010), 490 A.R. 304 (CA);

      497 W.A.C. 304

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. OC.061

Dr. Paul Sussman (appellant) v. College of Alberta Psychologists (respondent)

(0903-0180-AC; 2010 ABCA 300)

Indexed As: Sussman v. College of Alberta Psychologists

Alberta Court of Appeal

Côté, Watson and Bielby, JJ.A.

October 13, 2010.

Summary:

Sussman was a psychologist. A tribunal of the Council of the College of Psychologists dismissed a count against Sussman of failing "to create and maintain adequate records" regarding sessions with a client (CR) (count 1) and found Sussman guilty of failing "to maintain an appropriate professional relationship" with CR (count 2). Both the College and Sussman appealed. An appeal panel allowed the appeal by the College and found Sussman guilty of count 1 and dismissed Sussman's appeal from count 2. Sussman appealed.

The Alberta Court of Appeal allowed the appeal and quashed both findings of guilt.

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.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - [See both Professional Occupations - Topic 2346 and Professional Occupations - Topic 2369 ].

Professional Occupations - Topic 2346

Psychologists, therapists and counsellors - Discipline - Unethical or unprofessional conduct - Sussman had been a psychologist for 27 years - CR was referred to him in 2001 by another psychologist following a motor vehicle accident from which she was suffering chronic pain - CR specifically asked Sussman not to take notes about their sessions as she did not want to have to disclose their contents to the opposing side in a motor vehicle accident case, having had to disclose other personal medical records for that litigation - A highly educated person herself, CR made crystal clear what she wanted as to note-taking - The alternative was to not have therapy - Complying with her request, Sussman had only seven partial pages of notes and six tabular pages setting out dates of their 120 sessions over the years of contact - CR's husband filed a complaint against Sussman - A tribunal of the Council of the College of Psychologists dismissed a count of failing "to create and maintain adequate records" regarding sessions with CR - An appeal panel allowed an appeal by the College and found Sussman guilty - Sussman appealed - The Alberta Court of Appeal allowed the appeal and quashed the finding of guilt - The appeal panel's reasons failed to illuminate any reasoning to explain the following crucial statements in its decision: "[t]he Health Professions Act is clear that a breach of the Standards of Practice or Code of Ethics can constitute unprofessional conduct (section 1(pp)(ii)). The Appeal Panel finds that [Sussman] breached Standard 11(1) of the Standards of Practice. The Appeal Panel further finds that the breach is sufficient to constitute unprofessional conduct pursuant to the Health Professions Act." - Deficiency in reasons was not itself an automatic trigger to judicial review or appeal, even where the governing statute required that reasons be given - The decision of the Appeal Panel did not merely have deficient reasons: there was a complete absence of explanation for the finding of unprofessional conduct - See paragraphs 46 to 55.

Professional Occupations - Topic 2346

Psychologists, therapists and counsellors - Discipline - Unethical or unprofessional conduct - Sussman had been a psychologist for 27 years - CR was referred to him in 2001 by another psychologist following a motor vehicle accident from which she was suffering chronic pain - Sussman and CR had some social interaction in addition to their clinical sessions - CR's husband filed a complaint against Sussman - A tribunal of the Council of the College of Psychologists found Sussman guilty of failing "to maintain an appropriate professional relationship" with CR - An appeal panel dismissed Sussman's appeal - Sussman appealed - The majority decision of the Tribunal and the unanimous decision of the Appeal Panel came down to a zero tolerance policy regarding any overlap in the professional and personal relationship of Sussman and CR - The Alberta Court of Appeal allowed the appeal and quashed the finding of guilt - The appeal panel's reasons were insufficient - Standard 15 of the Standards of Practice on its face recognized a level of discretion and reflected the reality that a relationship between a therapist and client, especially over time, was likely to develop human characteristics of amity or the like - Indeed, it might be thought that, for therapy purposes in some instances, that might be a desirable development if properly handled - Applying an unexplained zero-tolerance policy to this flexible and circumstance-sensitive Standard would be inconsistent with the Guideline on which the appeal panel relied, and would be unreasonable - If that was not the intent of the appeal panel, and its reasoning was something else, it was unreasonable for the appeal panel to fail to explain that reasoning - See paragraphs 56 to 63.

Professional Occupations - Topic 2369

Psychologists, therapists and counsellors - Disciplinary proceedings - Practice - Costs - Sussman had been a psychologist for 27 years - CR was referred to him in 2001 by another psychologist following a motor vehicle accident from which she was suffering chronic pain - A tribunal of the Council of the College of Psychologists dismissed a count of failing "to create and maintain adequate records" regarding sessions with CR (count 1) and found Sussman guilty of failing "to maintain an appropriate professional relationship" with CR (count 2) - The tribunal imposed a sanction consisting of a letter of reprimand, a direction that Sussman enter into an assessment with an expert and that he pay 50% of the costs of the investigation and hearing - Both the College and Sussman appealed - An appeal panel allowed the appeal by the College and found Sussman guilty of count 1 and dismissed Sussman's appeal from count 2 - The appeal panel found the sanctions to be reasonable but doubled the costs requirement to 100% - Sussman appealed - The Alberta Court of Appeal allowed the appeal and quashed the findings of guilt - With respect to the costs order, the court held that "[o]rdinarily with court proceedings, a costs imposition is intended to defray on a partial indemnity basis the opponent's costs unless there is something different about the case. The authority to award costs may also be used to assist the court in regulating and controlling the relevant form of litigation. In the administrative law setting, costs may also be a form of compulsory contribution to the regulatory system itself. In any such respect, the focus of costs is not usually on punishment but on a balancing of the incidence of the system. Here it is not possible to determine from the reasons of the Appeal Panel or Tribunal why it regarded [Sussman's] case as deserving of the maximum possible costs award. Neither Tribunal nor Appeal Panel ordered a fine as a specific sanction. Under those circumstances it is not possible to say whether the costs disposition is within the relevant margin of appreciation." - See paragraphs 64 to 68.

Cases Noticed:

R. v. Owen (T.), [2003] 1 S.C.R. 779; 304 N.R. 254; 173 O.A.C. 285; 2003 SCC 33, refd to. [para. 16].

College of Hearing Aid Practioners of Alberta v. Zieniewicz et al., [2003] A.R. Uned. 678; 24 Alta. L.R.(4th) 59; 2003 ABCA 346, refd to. [para. 16].

Plimmer v. Calgary Police Service - see Plimmer v. Chief of Police et al.

Plimmer v. Chief of Police et al. (2004), 354 A.R. 62; 329 W.A.C. 62; 29 Alta. L.R.(4th) 243; 2004 ABCA 175, refd to. [para. 16].

Newton v. Law Enforcement Appeal Board (Alta.) - see Newton v. Criminal Trial Lawyers' Association (Alta.) et al.

Newton v. Criminal Trial Lawyers' Association (Alta.) et al. (2008), 446 A.R. 1; 442 W.A.C. 1; 2008 ABCA 404, refd to. [para. 16].

Pelech v. Law Enforcement Appeal Board (Alta.) et al., [2010] A.R. Uned. 1; 2010 ABCA 4, refd to. [para. 16].

Hennig v. Institute of Chartered Accountants (Alta.) (2008), 433 A.R. 221; 429 W.A.C. 221; 95 Alta. L.R.(4th) 1; 2008 ABCA 241, refd to. [para. 16].

Paul v. Forest Appeals Commission (B.C.) et al., [2003] 2 S.C.R. 585; 310 N.R. 122; 187 B.C.A.C. 1; 307 W.A.C. 1; 2003 SCC 55, refd to. [para. 16].

Chicken Marketing Board (B.C.) v. British Columbia Marketing Board (2002), 174 B.C.A.C. 15; 286 W.A.C. 15; 216 D.L.R.(4th) 587; 2002 BCCA 473, refd to. [para. 16].

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. 17].

United Nurses of Alberta, Local 301 v. Capital Health Authority (University of Alberta) (2009), 457 A.R. 61; 457 W.A.C. 61; 6 Alta. L.R.(5th) 1; 2009 ABCA 202, refd to. [para. 17].

Taub v. Investment Dealers Association of Canada et al. (2009), 255 O.A.C. 126; 311 D.L.R.(4th) 389; 2009 ONCA 628, refd to. [para. 17].

Maritime Paper Products Ltd. v. Communications, Energy and Paperworkers' Union, Local 1520 (2009), 278 N.S.R.(2d) 381; 886 A.P.R. 381; 2009 NSCA 60, refd to. [para. 17].

Yu v. Wanglin - see Acupuncture Committee v. Wanglin.

Acupuncture Committee v. Wanglin (2009), 454 A.R. 152; 455 W.A.C. 152; 6 Alta. L.R.(5th) 28; 2009 ABCA 166, refd to. [para. 19].

Maitland Capital Ltd. et al. v. Alberta Securities Commission (2009), 457 A.R. 153; 457 W.A.C. 153; 2009 ABCA 186, refd to. [para. 19].

Macdonald v. Mineral Springs Hospital (2008), 437 A.R. 7; 433 W.A.C. 7; 295 D.L.R.(4th) 609; 2008 ABCA 273, refd to. [para. 19].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 20].

MiningWatch Canada v. Canada (Minister of Fisheries and Oceans) et al., [2010] 1 S.C.R. 6; 397 N.R. 232; 2010 SCC 2, refd to. [para. 20].

Milner Power Inc. v. Energy and Utilities Board (Alta.) (2010), 482 A.R. 327; 490 W.A.C. 327; 2010 ABCA 236, refd to. [para. 20].

Leering v. College of Chiropractors (Ont.) (2010), 258 O.A.C. 209; 315 D.L.R.(4th) 632; 2010 ONCA 87, refd to. [para. 22].

Boardwalk Reit LLP v. Edmonton (City) et al. (2008), 437 A.R. 199; 433 W.A.C. 199; 91 Alta. L.R.(4th) 49; 2008 ABCA 176, refd to. [para. 22].

McInerney v. MacDonald, [1992] 2 S.C.R. 138; 137 N.R. 35; 126 N.B.R.(2d) 271; 317 A.P.R. 271; 93 D.L.R.(4th) 415, refd to. [para. 28].

Gibbs v. Sabourin (2001), 304 A.R. 125; 2001 ABQB 1021 (Master), refd to. [para. 29].

Petro-Canada v. Workers' Compensation Board (B.C.) (2009), 276 B.C.A.C. 135; 468 W.A.C. 135; 98 B.C.L.R.(4th) 1; 2009 BCCA 396, refd to. [para. 30].

Bishop v. College of Optometrists (Alta.) (2009), 454 A.R. 197; 455 W.A.C. 197; 2009 ABCA 175, refd to. [para. 31].

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].

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. 32].

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. 35].

Council of Canadians with Disabilities v. Via Rail Canada Inc. - see VIA Rail Canada Inc. v. Canadian Transportation Agency et al.

VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1; 2007 SCC 15, refd to. [para. 36].

Ironside et al. v. Alberta Securities Commission (2009), 454 A.R. 285; 455 W.A.C. 285; 11 Alta. L.R.(5th) 27; 2009 ABCA 134, refd to. [para. 36].

Osif v. College of Physicians and Surgeons (N.S.) (2009), 276 N.S.R.(2d) 118; 880 A.P.R. 118; 2009 NSCA 28, refd to. [para. 36].

Deemar v. College of Veterinarians (Ont.), [2008] O.A.C. Uned. 420; 298 D.L.R.(4th) 305; 2008 ONCA 600, refd to. [para. 36].

Law Society of Upper Canada v. Neinstein (2010), 259 O.A.C. 313; 317 D.L.R.(4th) 419; 2010 ONCA 193, refd to. [para. 36].

Zenner v. College of Optometrists (P.E.I.), [2005] 3 S.C.R. 645; 342 N.R. 176; 254 Nfld. & P.E.I.R. 1; 764 A.P.R. 1; 2005 SCC 77, refd to. [para. 37].

Proprio Direct Inc. v. Association des courtiers et agents immobiliers du Québec et al., [2008] 2 S.C.R. 195; 375 N.R. 1; 2008 SCC 32, refd to. [para. 37].

Salway v. Association of Professional Engineers and Geoscientists (B.C.) (2010), 284 B.C.A.C. 136; 481 W.A.C. 136; 3 B.C.L.R.(5th) 213; 2010 BCCA 94, leave to appeal denied (2010), 410 N.R. 383 (S.C.C.), refd to. [para. 37].

Deloitte & Touche LLP v. Institute of Chartered Accountants (Alta.) (2008), 433 A.R. 41; 429 W.A.C. 41; 2008 ABCA 162, refd to. [para. 37].

Litchfield v. College of Physicians and Surgeons (Alta.) (2008), 432 A.R. 131; 424 W.A.C. 131; 2008 ABCA 164, refd to. [para. 37].

Davidson v. Calgary (City) et al. (2007), 422 A.R. 322; 415 W.A.C. 322; 2007 ABCA 364, refd to. [para. 39].

Alberta Union of Provincial Employees v. Health Sciences Association of Alberta et al. (2009), 457 A.R. 387; 457 W.A.C. 387; 2009 ABCA 266, leave to appeal denied (2010), 405 N.R. 396 (S.C.C.), refd to. [para. 40].

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

Clifford v. Ontario (Attorney General) et al. (2009), 256 O.A.C. 354; 312 D.L.R.(4th) 70; 2009 ONCA 670, leave to appeal denied (2010), 405 N.R. 388 (S.C.C.), refd to. [para. 40].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 40].

Wachtler v. College of Physicians and Surgeons (Alta.) (2009), 448 A.R. 317; 447 W.A.C. 317; 2009 ABCA 130, refd to. [para. 40].

Johnston et al. v. Director of Vital Statistics (Alta.) et al. (2008), 433 A.R. 147; 429 W.A.C. 147; 2008 ABCA 188, leave to appeal denied (2008), 391 N.R. 398; 469 A.R. 395; 470 W.A.C. 395 (S.C.C.), refd to. [para. 42].

Hills v. Provincial Dental Board (N.S.) (2009), 275 N.S.R.(2d) 135; 877 A.P.R. 135; 307 D.L.R.(4th) 341; 2009 NSCA 13, refd to. [para. 51].

Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761; 373 N.R. 339; 236 O.A.C. 371; 2008 SCC 23, refd to. [para. 51].

Walsh v. Council for Licensed Practical Nurses (2010), 295 Nfld. & P.E.I.R. 222; 911 A.P.R. 222; 317 D.L.R.(4th) 152; 2010 NLCA 11, refd to. [para. 60].

Lienaux v. Nova Scotia Barristers' Society (2009), 274 N.S.R.(2d) 235; 874 A.P.R. 235; 303 D.L.R.(4th) 577; 2009 NSCA 11, leave to appeal denied (2009), 400 N.R. 397; 293 N.S.R.(2d) 400; 928 A.P.R. 400 (S.C.C.), refd to. [para. 66].

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

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. 66].

Cartaway Resources Corp. et al., Re, [2004] 1 S.C.R. 672; 319 N.R. 1; 195 B.C.A.C. 161; 319 W.A.C. 161; 2004 SCC 26, refd to. [para. 66].

Matheson v. College of Physicians and Surgeons (P.E.I.) (2010), 295 Nfld. & P.E.I.R. 56; 911 A.P.R. 56; 2010 PECA 5, refd to. [para. 66].

Guttman v. Law Society of Manitoba (2010), 255 Man.R.(2d) 151; 486 W.A.C. 151; 2010 MBCA 66, refd to. [para. 67].

Authors and Works Noticed:

College of Alberta Psychologists Practice Guideline, The Status of Regulatory Documents in the Regulation of the Psychology Profession in Alberta (2005), generally [paras. 18, 30].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 20].

Counsel:

D.P. Jones, Q.C., for the appellant;

C.D. Boyer, for the respondent.

This appeal was heard on September 8, 2010, by Côté, Watson and Bielby, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was delivered on October 13, 2010.