Alberta Court Of Appeal To Health Profession Regulators: Do Not Unnecessarily Damage Reputation Of A Professional Until All Appeals Have Been Exhausted

• Published date: 22 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Trials & Appeals & Compensation
• Law Firm: Miller Thomson LLP
• Author: Ms Tracey M. Bailey, Q.C. and Gerald D. Chipeur QC

In recent years, legislators have given regulators increased powers to take enforcement action prior to a hearing or the exhaustion of all appeals. Depending on the legislative framework of the regulator, this may include injunctive orders, restriction or suspension of licenses, publication of information, or imposition of penalties. These powers have been justified by law makers as protecting the public from harm, increasing administrative efficiencies and increasing transparency. They have argued, in some instances, that the imposition of a penalty before a hearing is in the best interests of the penalized person, as these penalties are intended to be less onerous than alternative measures (such penalties are usually described as 'administrative' in nature).

A growing number of regulators, including election officials, Canada Revenue Agency bureaucrats and statutory commissioners, now have the power to impose administrative penalties without a hearing or before the conclusion of all reviews or appeals. As some penalties may be imposed without a hearing or the involvement of a court, they must be applied fairly. Unfortunately, a fair process is not always followed by administrators. See, for example, Rumpel v Election Commissioner of Alberta, 2019 ACQB 938 where the court found the Election Commissioner failed to comply with its obligations under the legislation and, as a result of the circumstances, including an issue of procedural fairness as a result of the applicant being denied the opportunity to respond, Justice Dario rescinded the administrative penalty and ordered the applicant's name be removed from the Commissioner's website posting. See also Rebel News Network v Election Commissioner of Alberta, 2021 ABCA 376 where the panel stated 'that some aspects of the Notice could (and probably should) have been phrased differently, [and] that it would have been preferable not to have entitled the Notice as 'Notice of Adverse Findings and Proposed Penalty', or to have raised the nature of the administrative penalty being considered until a final determination had been made regarding the contravention of the Act.'

While the powers of health profession regulators to impose penalties arise after a hearing, their powers to use other measures before a hearing, including their duty or discretion to publish or otherwise disclose personal information about regulated members, also raise issues of procedural fairness and the appropriate use of discretion. This is particularly so where other regulatory tools are in place to fulfill a regulator's mandate to protect the public. Courts have been skeptical of the exercise of such powers, but have generally not interfered with their use because of clear legislative intent. Until, that is, the decision of the Court of Appeal of Alberta in AB v College of Physicians and Surgeons of Alberta, 2021 ABCA 320. In that case, Justice Thomas Wakeling placed limits on the power of government regulators to publish information that may cause irreparable harm to a regulated member before a final determination of the merits after the...