Administrative law – Decisions of administrative tribunals – College of Psychologists – Investigations – Psychologists – Competence – Judicial review application – Judicial review – Availability – Standard of review – Correctness – Evidence – Compliance with legislation
Mitten v. College of Alberta Psychologists,  A.J. No. 545, 2010 ABCA 159, Alberta Court of Appeal, May 13, 2010, C.A. Fraser C.J.A, M.S. Paperny and F.F. Slatter JJ.A.
The appellant, Ms. Mitten, filed a complaint against a psychologist. She filed the complaint with the respondent College of Alberta Psychologists (the “College”). Ms. Mitten’s complaint related to a consultation she had with a member of the College. She filed a lengthy complaint regarding the member in March 2005. The complaint was referred to an investigator and the investigator prepared a report in March 2006.
The Registrar of the College decided, after reviewing the investigator’s report, to take no further action in respect of the complaint. The Registrar concluded there was insufficient evidence of professional misconduct or unskilled practice. Ms. Mitten appealed the decision to the College’s Discipline Committee.
Ms. Mitten was entitled to appeal the Registrar’s decision to the Discipline Committee. The Discipline Committee agreed with the Registrar that there was insufficient evidence to warrant a disciplinary hearing. Ms. Mitten was not satisfied with the procedures used by the Discipline Committee on the appeal, nor was she satisfied with the result. She brought an originating notice for judicial review in respect of the Discipline Committee’s decision. Her originating notice included allegations about the breaches of the rules of natural justice and fairness committed by the Discipline Committee.
The College brought a preliminary application to strike out Ms. Mitten’s originating notice for judicial review. The College argued the materials disclosed no cause of action since judicial review is not available in the circumstances. The Chambers judge hearing the College’s application struck out the originating notice of Ms. Mitten. Ms. Mitten has appealed the decision of the Chambers judge to the Alberta Court of Appeal in the within appeal.
The Court first noted the question of whether a pleading discloses a cause of action is a question of law. It is reviewed for correctness. Therefore, the Court reviewed the Chamber judge’s decision regarding the applicable legislation. The Court found the Chambers judge correctly applied the legislation.
More significantly, the Court reviewed the Chambers judge’s decision on the issue of whether judicial review was available to Ms. Mitten in the circumstances. The College based its application to dismiss on comments in the case Friends of the Old Man River Society. In that case, the Court concluded the appeal of a decision not to proceed to a hearing was not subject to judicial review. However, the Court, in that case, went on to examine whether there had been any procedural unfairness. The Court found there had been no unfairness in the case. The Court did not have to express an opinion on the standing of the complainants. This was significant since the statute does afford the complainant some rights at the investigative stage of discipline proceedings. While the claimant is not a party at that stage, the claimant is clearly a participant in the appeal of the decision not to proceed to a hearing. The Court found the Friends of the Old Man River case should not be read to suggest a complainant who launches an appeal under the statute has no remedies if the appeal process is fundamentally unfair.
The Court went on to conclude that Ms. Mitten had alleged, in part, issues with the fairness with the appeal before the Discipline Committee. That issue is properly the subject of judicial review. Therefore, those aspects of the originating notice should not have been struck by the Chambers judge.
Ms. Mitten had costs awarded against her by the Chambers judge. The costs ordered of the Chambers judge were set aside and the costs of that originating notice will be left to the discretion of the judge who hears the judicial review application on the merits.
The appeal was allowed in part. Several paragraphs in the originating notice were reinstated and the proceedings remitted back to the Court of Queen’s Bench. The merits of the originating notice will be dealt with at that level.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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