The Applicant, Ms. Fitzpatrick, a physiotherapist, was disciplined by the Discipline Committee of the Respondent, Alberta College of Physical Therapists. Ms. Fitzpatrick unsuccessfully appealed the Discipline Committee’s decision to the Council of the College. Ms. Fitzpatrick then succeeded, in part, in appealing the Council’s decision to the Alberta Court of Appeal.

[2012] A.J. No. 680

2012 ABCA 207

Alberta Court of Appeal

R.L. Berger and C.D. O'Brien JJ.A. and J. Strekaf J. (ad hoc)

June 29, 2012

The appellant, Ms. Fitzpatrick, is a licensed physiotherapist. In May 2008, the Alberta College of Physical Therapists (the “College”) received a complaint about her conduct. The complaint indicated two issues. First, she was said to have diagnosed a disproportionate number of patients with Whiplash Associated Disorder level III (WAD III) where the patients were previously diagnosed with a lesser injury. Second, the complainant said most of the patients were represented by the same lawyer in legal proceedings. The College also received a second complaint alleging that Ms. Fitzpatrick was overdiagnosing WAD III injuries. That complainant submitted 10 files for review. The College appointed two investigators to review these complaints.

The investigators submitted a report to the College. The College issued a Notice of Hearing for four charges of misconduct. The College appointed a discipline committee of five members (the Discipline Committee) to hear evidence and adjudicate the four charges. The Discipline Committee heard evidence from several witnesses, including one physiotherapist (Ms. Brennan) who gave expert evidence. The Discipline Committee dismissed the first charge and found the other 3 charges were proven against Ms. Fitzpatrick. In a separate hearing, the Discipline Committee imposed sanctions on Ms. Fitzpatrick. The sanctions included a suspension for 3 months.

Ms. Fitzpatrick appealed the Discipline Committee’s decision to the Council of the College. The sanctions were stayed pending the outcome of the hearing before the Council. The Council heard the appeal in September 2011 and issued its decision in December 2011. With a few exceptions, the Council upheld the decisions of the Discipline Committee on liability and sanctions. Ms. Fitzpatrick appealed the Council’s decision to the Alberta Court of Appeal.

Ms. Fitzpatrick first alleged that the Council erred in its findings relating to the standard of proof. The Discipline Committee said the standard was the civil standard of proof, on a balance of probabilities. The Court of Appeal held the Council did not err by upholding that decision.

Ms. Fitzpatrick alleged the reasons were inadequate with respect to the second charge and the Discipline Committee convicted her when a key part of the citation had not been proven. She alleged that it was not proven which of the 56 patients in issue were misdiagnosed. The Court held the language in the citation (for the second charge) required the College to prove that a sufficient number of the patients were diagnosed as WAD level III when a lesser diagnosis was appropriate and also prove that each inappropriate diagnosis was the result of not taking proper care. The Court concluded that these findings were not made. The Court explained that the Discipline Committee seemed to find fault based on the statistical evidence, which indicated that Ms. Fitzpatrick diagnosed a disproportionate number of patients as WAD level III. The Court further commented that the other evidence was not sufficient to found a conclusion regarding individual patients. The Court concluded that the charge was not specifically proven in accordance with the citation. The Court concluded that the Council came to an unreasonable conclusion in upholding the Discipline Committee’s decision on the second charge.

Ms. Fitzpatrick alleged several additional grounds for error. The Court briefly reviewed these allegations but concluded the standard of review precluded her from being successful in respect of these additional allegations.

In dissent, Mr. Justice Berger held that the Discipline Committee made sufficient findings on the elements of the second charge in the citation. On that basis, Mr. Justice Berger would have concluded that the Council did not err in upholding the Discipline Committee’s decision and he would have dismissed the appeal in its entirety.

The Court held that the appeal was allowed with respect to the second charge. The Court held the appeal was dismissed with respect to charges 3 and 4. The Court set aside all of the sanctions because the sanctions were imposed globally. The Court remitted the matter of sanctions to the Discipline Committee.