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SELF-GOVERNING PROFESSIONS - Professional liability insurance - Professions - Health care - Psychiatrists, psychologists and therapists

Monday, June 12, 2017 @ 10:36 AM  

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Appeal by SS and MS from a decision in which the court held that the Canadian Medical Protective Association (CMPA) was not liable to indemnify its member, Dr. KAA, for a judgment debt in the appellants' favour. SS was a patient of Dr. KAA, a psychiatrist. The appellants commenced an action against Dr. KAA in 2000, claiming that he put SS on a debilitating course of medication, gave professional advice that undermined their marriage, and engaged in oral and sexual intercourse with SS. Subsequently, SS experienced depression and suffered injuries from a suicide attempt. The appellants obtained a default judgment against Dr. KAA, who had left the jurisdiction, preventing the appellants from enforcing their judgment. They consequently sought to have the CMPA held liable to indemnify its member and by extension, the appellants. The judge held that the CMPA was not an insurer, but rather a mutual defence association for physicians. She held that the essential components of an insurance contract were not present in the relationship between the CMPA and its members. She found that the assistance the CMPA provided to its members was discretionary, and that it would not as a rule provide assistance to a member who had committed a criminal act, such as sexual assault. She dismissed the appellants' claim because Dr. KAA never sought assistance from the CMPA in relation to the claim and because the judgment the appellants obtained against Dr. KAA was focused on the impact of the sexual abuse on SS.

HELD: Appeal dismissed. The judge did not err in dismissing the appellants' claim against the CMPA. Clearly and unquestionably, the appellants' action against Dr. KAA was rooted in sexual assault, a claim against which the CMPA would not offer its member assistance in defending. Sexual assault was an intentional act that did not fall within the scope of malpractice. It was also clear that Dr. KAA left Canada several years before the appellants commenced their action against him.

S.S. v. Canadian Medical Protective Assn., [2017] N.B.J. No. 95, New Brunswick Court of Appeal, M.E.L. Larlee, B.V. Green and R.T. French JJ.A., May 4, 2017. Digest No. TLD-June122017002