Air of Reality

A case that regulators have been following closely seems to have been resolved in favour of the regulator. In Fitzpatrick v College of Physical Therapists of Alberta, 2018 ABQB 989, <> a practitioner who had been disciplined sued the regulator for, among other things, maliciously expanding the scope of the investigation beyond the original complaint and acting in a conflict of interest.

The Court held that the limitation period for such an action began to run when the initial finding of misconduct was made against the practitioner (and not when the sanctioning process or the appeals were completed). Thus the proceeding was initiated out of time.

More interesting for regulators was the Court’s conclusion that when an initial investigation identifies concerns beyond the original complaint, it is appropriate for the regulator to investigate those concerns as well (through proper channels). Doing so is not evidence of malice or bad faith. In addition, a poor choice of words (i.e., calling a suspicious referral system an investigation of “kickbacks”) does not found a claim of bad faith.

Finally the Court concluded that the fact that a tribunal member may have been interested in buying the practice of the practitioner years before the events in issue does not amount to a conflict of interest, at least where no objection on the basis of appearance of bias is made at the hearing.

The Court concluded that the claim had no air of reality and it was summarily dismissed.

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