ACAC was very competently represented by legal counsel 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 responsibility 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 regulator 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 potential for liability of professional regulatory bodies should be quite limited. 

Courts are not the 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 chiropractic institutions (Lewis v. Emmanuele and Corvaro v. Canadian Memorial Chiropractic College) where the attempt to attack the scientific foundation of chiropractic was unsuccessful, 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 proposed 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 individualized 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 individuals who had requested the class action were not appropriate representative plaintiffs. 

Summary 

The attempt to certify a class action against ACAC in relation 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 as 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 private law duty of care to individuals except in exceptional circumstances. 

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.

Source, ACAC