Proposed class-action lawsuit claims AHS breached contracts with foreign-trained doctors

A proposed class-action lawsuit filed on behalf of clinical assistants and clinical surgical assistants has been launched against Alberta Health Services.

A statement of claim filed in Calgary Court of King's Bench on Aug. 12 alleges the health authority has failed to pay overtime and provide rest periods to clinical assistants since 2016.

The claim alleges AHS breached and continues to breach terms of employment contracts and its duty of care to the representative plaintiff and class members.

Robert Erickson, the lawyer for representative plaintiff Julia Ionina said he and his client are not prepared to comment at this time.

AHS spokesperson James Wood said AHS cannot comment as the case is before the courts. On Wednesday he told CBC News a statement of defence had not been filed. 

The proposed class action seeks $10 million in general damages, $85 million in special damages and $10 million in punitive damages, plus costs and interest.

The statement of claim says the plaintiff and class members discovered they had not been paid the overtime and shift premiums to which they were entitled when they received an email from AHS on Dec. 23, 2022.

The email said they would receive a retroactive payment for overtime they had previously worked and would continue to receive overtime payments.

"The defendant maintained that the plaintiff and active class members were not eligible for overtime despite making a partial retroactive payment and paying partial overtime payments to the plaintiff and active class members thereafter," the statement of claim says.

None of the allegations have been proven in court. 

Foreign-trained doctors

Clinical assistants and clinical surgical assistants are foreign-trained doctors who work under doctors' supervision in Alberta. Base salaries, according to an AHS website about the jobs, range from about $63,000 to $155,000.

Their duties include conducting physical exams, writing orders, documenting patient histories and developing treatment plans with supervising doctors.

Ionina, of St. Albert, Alta., worked as a psychiatrist in Russia before immigrating to Canada in 2012. 

She started working as a clinical assistant for AHS around November 2015 at the Royal Alexandra Hospital in Edmonton.

Since 2017, she has worked as a clinical assistant at the Sturgeon Community Hospital in St. Albert. 

According to the statement of claim, Ionina is regularly required to work more than 50 hours per week, and one week in April was scheduled for five 15-hour shifts.

From contractors to employees

Clinical assistants used to be contract workers but are now AHS employees.

In 2015, Sarah Hoffman, then Alberta's health minister, told CBC News that AHS had started the transition after the College of Physicians and Surgeons of Alberta raised concerns about how the role was being managed. 

A group of clinical assistants filed a lawsuit against AHS in 2015 and accused the health authority of discrimination. 

Jim McFadyen, a lawyer in Parlee McLaws' Edmonton office, said the lawsuit was discontinued. 

Clinical assistants are not unionized in Alberta. The statement of claim says their terms and conditions of employment are outlined in a handbook, which states that "overtime will be paid for any time worked beyond regular hours of work." 

The statement of claim says AHS told clinical assistants, verbally and in writing, that they are exempt from receiving overtime payments.

The December 2022 email to the plaintiff and some class members said according to a different document, which the statement of claim says has not been provided to the employees, clinical assistants have not been eligible to receive regular overtime payments. 

The email said the workers would be paid retroactively for overtime worked since April 1, 2022, and that they would receive overtime payments going forward.

Lorian Hardcastle, a University of Calgary law professor who specializes in health policy, said it's possible that AHS changed its interpretation of legislation or received a legal opinion that prompted the retroactive payment. 

"It is rare that without some change in their understanding of the law, they would have just simply, as a gesture of goodwill, gone and paid people in a retroactive manner," Hardcastle said.

The statement of claim says the retroactive payment was only a partial payment.

Rest periods and shift premiums

The statement of claim also alleges AHS failed to allow clinical assistants to take two 30-minute rest periods when they worked for more than 10 hours, that they were not paid shift premiums for working certain shifts and that they were regularly scheduled to work shifts beyond 12 hours and sometimes up to 24 hours. 

The handbook for non-union employees says shifts are not to exceed 15 hours.

"Regardless of which way this legal claim goes, I think Alberta Health Services needs to take seriously these concerns that these workers have — that they're not receiving sufficient downtime," Hardcastle said.

She said there's a large body of literature that suggests tired health-care workers are a patient safety issue.

The statement of claim says the roughly 228 active claim members risk losing their jobs if they make individual claims and cannot match AHS's resources.