alBErTa CoUrT dEniEs Class aCTion againsT aCaC In Reasons for Judgment released on January 11, 2010, Mr. Justice R. Paul Belzil of the Alberta Court of Queen’s Bench denied certification of the class action launched against the Alberta College and Association of Chiroprac- tors (ACAC). ACAC was very competently represented by legal coun- sel from the firm Branch MacMaster: Jim MacMaster, Ward Branch, and Don Lebans. ACAC was victorious on every issue. Justice Belzil found the proposed class action against ACAC to be unworkable on all aspects of the legal test for certification. The decision is significant not only for ACAC and chiropractors in Alberta but for all Canadian professional regulatory bodies and the professionals they regulate. No private law duty of care Most importantly, Justice Belzil determined that that it was “plain and obvious” that there was not a “cause of action” against ACAC which means there was no valid legal basis for suing ACAC. In coming to this determination, Justice Belzil confirmed that, under the Alberta Health Professions Act, ACAC’s re- sponsibility in governing the chiropractic profession is to the public as a whole, and not to any individual patient. He also noted the total absence of any dealings between ACAC and those suing which might otherwise have given rise to a duty to be mindful of their personal interests. Further Justice Belzil found that making a health care regu- lator such as ACACresponsible for individual patients was contrary to ACAC’s public protection mandate and the policy decisions ACAC must make in fulfilling that mandate: As noted, the [Health Profession Act] established legislative authority over chiropractic within the Province, which must necessarily involve policy decisions. Imposing private law duties of care on regulators would interfere with their ability to make decisions considering the needs of the public at large. The decision reinforces the general principle that the po- tential for liability of professional regulatory bodies should be quite limited. Courts not proper forum to settle scientific disputes Justice Belzil refused to recognize a cause of action in relation to the allegation that the practice of chiropractic is based on a flawed scientific foundation. Citing legal precedent including other cases involving chi- ropractic institutions (Lewis v. Emmanuele and Corvaro v. Canadian Memorial Chiropractic College) where the attempt to attack the scientific foundation of chiropractic was unsuc- cessful, Justice Belzil found that this allegation was “nothing more than an attempt to resolve a scientific dispute in a court of law, and would also amount to an attack on the legislative competence of the Province in enacting the HPA.” This decision serves as additional strong support for the principle that courts are not the proper forum to settle scientific disputes. Other criteria for certification not satisfied Justice Belzil also concluded that there was a failure, on the part of the plaintiffs to define a class of people who were similarly affected by any actions of ACAC, calling their pro- posed definition “too vague and thus unworkable”. In a similar vein, he denied the existence of any issues that were common to all of the people the plaintiffs had hoped would fit within that definition, noting the inherent individuality of chiropractic care, including the different types and duration of treatment that may be provided, the varying techniques that can be used in providing those treatments, and the indi- vidualized information communicated to the patient. Justice Belzil found that a class proceeding was not the preferable procedure. He also expressed a concern as to whether the individu- als who had requested the class action were not appropriate representative plaintiffs. Summary The attempt to certify a class action against ACAC in rela- tion to its regulation of chiropractic and against all individual chiropractors in Alberta for alleged inappropriate and non- beneficial treatment has been defeated. ACAC will monitor the action to see if an appeal is taken. The plaintiffs did not appeal the July 2009 decision which dismissed their claim against the Alberta government. This is an important victory for regulatory bodies and the chiropractic profession. At the general level, the judgment reinforces that regulatory bodies do not owe a specific pri- vate law duty of care to individuals except in exceptional cir- cumstances. Furthermore, the judgment supports the theme that it is not appropriate to attack the scientific validity of chiropractic in the courts. This decision will help to limit the legal options of the anti-chiropractic lobby. • CorrECTion – Canadian CHiroPraCTiC ConvEnTion 2010 It has been pointed out that, in previous reports regarding the Canadian Chiropractic Convention 2010 – on our web- site, as well as in the December print issue – some inaccurate details were included. The proper title for the convention is, in fact, Canadian Chiropractic Convention, 2010. The event is not the product of the Canadian Chiroprac- tic Association, nor of any other chiropractic association, college, etc, as such, but is, in fact, being organized by a 38 • CANADIAN CHIROPRACTOR | FEBRUARY 2010 completely separate committee consisting of various mem- bers of the chiropractic community and its supporters. The organization in charge of the event is titled, simply, Canadian Chiropractic Convention. Finally, the website for the event is www.chiroconven- tion.com. Canadian Chiropractor Magazine would like to apologize to the event organizers, and to the readership, for any incon- venience these discrepancies may have caused. • www.canadianchiropractor.ca news
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