Alberta Court Of Appeal Rules That Costs Should Generally Be Borne By Regulators In Professional Discipline Proceedings

• Law Firm: MLT Aikins LLP
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Author: Mr Grant Stefanson, Curtis Unfried and Jennifer Sokal
• Published date: 17 May 2023

A recent decision that found professional regulators in Alberta should bear most of the costs of disciplining members could have a wide-ranging impact on professional disciplinary proceedings across Canada.

On October 13, 2022, the Alberta Court of Appeal released its decision in Jinnah v Alberta Dental Association and College, 2022 ABCA 336 ("Jinnah"). This decision made clear that professional regulators will bear "most, if not all" of the costs associated with disciplining members, with limited exceptions that would see the disciplined member bear "some" of the costs.

On March 30, 2023, the Supreme Court of Canada dismissed an application from the Alberta Dental Association and College (the "College") for leave to appeal the decision. As such, Jinnah remains the law in Alberta. Although the case is not binding in other provinces, there is no doubt that Jinnah will be relied upon by professionals facing disciplinary proceedings in other provinces going forward and will assist in facilitating lower costs awards against regulated professionals nationwide.

Background

After finding Dr. Nimet Jinnah ("Dr. Jinnah") guilty of unprofessional conduct, the College's discipline tribunal prohibited Dr. Jinnah from practising for one month, ordered her to complete a philosophy course in ethics and imposed costs of $50,000.

Dr. Jinnah appealed the decision, as well as the sanction and costs imposed upon her, to the College appeal panel (the "Panel"). The Panel quashed the suspension for being disproportionate to the circumstances and substituted a reprimand. It left the requirement to take a philosophy course intact. It also reduced the discipline tribunal costs to $37,500 on the basis that the expert evidence adduced by the College at the hearing had been irrelevant and unnecessary. Lastly, the Panel ordered Dr. Jinnah to pay one-quarter of its costs on the internal appeal. Dr. Jinnah appealed this decision to the Alberta Court of Appeal.

The Court allowed the appeal, in part. In doing so, the Court overturned the majority of the findings of unprofessional conduct and quashed the sentence imposed upon Dr. Jinnah, leaving an amended reprimand as the sole sanction. Finally, it remitted the issue of costs to the Panel to be reconsidered with the benefit of the Court's reasons.

Although the Alberta Court of Appeal conducted a thorough examination of the findings of unprofessional conduct, this article will focus on the Court's analysis and decision respecting the appeal...