Limits to the Good Faith Immunity for Regulators

Many lawsuits against regulators never make it to trial because the practitioner cannot demonstrate any basis to challenge the good faith of the regulator. In Fitzpatrick v Physiotherapy Alberta College, 2017 ABQB 453, a practitioner was able to pass this hurdle by asserting details of three types of alleged bad faith.

  1. The investigator allegedly told the practitioner that she was being investigated for paying kickbacks when this was not the basis of the complaint. The implication of the pleading is that the investigator was unduly suspicious and was trying to broaden the scope of the investigation.
  2. The Registrar allegedly gave consideration to the insurance industry’s concerns about improper billing by practitioners to take an aggressive approach to disciplining her, and then expanded the allegations to lesser, but more provable allegations, to justify the allegedly hasty initial referral to discipline.
  3. A member of the discipline panel allegedly had previously expressed an interest in purchasing the practitioner’s practice and then prior to the discipline decision being released, allegedly told a banker that the practitioner may now be ready to sell her practice.

The Court was clear that these assertions of bad faith were not established. The Court merely held that sufficient details were provided to permit the issues to go to trial for determination. The claims against many of the other participants in the discipline process were dismissed as there were no particulars suggesting they did anything but perform their duties.

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