January 30, 2024
MA v Alberta College of Pharmacy, 2023 ABKB 522
The appeal provisions relating to unprofessional conduct proceedings under Part 4 of the Health Professions Act, RSA 2000, c H-7 (“HPA”) have received very little judicial consideration. In MA v Alberta College of Pharmacy, 2023 ABKB 522 (“MA”), Justice Eamon of the Court of King’s Bench of Alberta provides first-impression guidance on many of these provisions, in particular their application in bifurcated disciplinary processes, i.e., where the merits stage and sanctions stage of the procedure occur independently, and the proper administrative procedures for applications for a stay pending appeal.
Prior to the Court proceedings, the Alberta College of Pharmacy (“College”) declined to accept the member’s notice of appeal and consider the member’s application for a stay pending appeal. The basis for doing so was that the complaint proceedings were not complete until the sanctions decision was ultimately issued, and there was therefore nothing to appeal.
Upon the member’s application to the Court of King’s Bench for a stay, the Court found the College’s refusal to consider the stay application to be an error. The Court also found that this error would result in unfairness to the member if the stay application were remitted to the College for re-consideration. Justice Eamon therefore considered and granted a stay of the regulator’s decision pending the member’s appeal.
This case is noteworthy in that it appears to be the first judicial consideration of a stay pending appeal in a case where the unprofessional conduct of the regulated professional related to sexual abuse or sexual misconduct, following the zero-tolerance amendments to the HPA enacted in 2019. The MA decision provides important guidance on the considerations applicable to stays pending appeal in circumstances like these.
The MA decision is currently under appeal to the Court of Appeal, scheduled to be heard in March, 2023.
Background
In MA, the Member was alleged to have engaged in conduct that constituted sexual abuse under the HPA and prevailing professional standards[1] concerning sexual abuse and sexual misconduct (the “Standards”).[2] The existence of the sexual relationship was admitted. The issue pertaining to the sexual abuse allegation was whether this was a circumstance of sexual contact between a health care provider and their “patient”, or whether it was a circumstance of providing professional services to a person with whom the member had a pre-existing sexual relationship, as contemplated by paragraph 7 of the Standards. If the sexual relationship pre-existed the professional services, there was a further issue of whether the professional services provided were “episodic”, also as contemplated in paragraph 7.
The discipline proceedings of the College followed a two-step process typical of professional disciplinary and regulatory cases under the HPA and other statutes, as well as in criminal cases and contempt of court cases.[3] That is, the proceedings were bifurcated into a merits phase, and, if a finding of unprofessional conduct was made, a second sanctions phase.
In July 2023 a hearing tribunal of the College found that the Member had committed unprofessional conduct (the “Merits Decision”), including sexual abuse for having engaged in a sexual relationship with a patient. Pursuant to section 81.1(1) of the HPA, the Member’s practice permit was automatically suspended due to a finding of unprofessional conduct relating to sexual abuse (“Suspension Order”). The Suspension Order is legislatively required to remain in place until the College issues a further order under section 82 of the HPA, i.e., the order following the sanctions phase. Because the finding included unprofessional conduct relating to sexual abuse of a patient, the eventual section 82 order is legislatively mandated to include a permanent cancellation of the member’s practice permit.[4]
Prior to the sanctions phase completing, the Member sought to stay the Suspension Order pursuant to section 86. As the HPA arguably requires an extant appeal in order to seek a stay pending appeal, the Member also sought to initiate an appeal of the Merits Decision to the Council of the College under section 87 of the HPA.[5] Both efforts failed. An Appeal Panel of the College (“Appeal Panel”) found an appeal to be premature, as there was nothing to appeal until a decision on sanctions and a section 82 order were issued. The Stay Committee of the College (“Stay Committee”) found the stay application premature as a result, as there was no extant appeal (with both decisions of the College being the “Prematurity Decisions” hereafter).[6] Thus, the Member urgently applied to the Court for a stay under section 86(1) of the HPA.
Appropriate Standard of Review
The Court conducted an analysis of the standard of review of the College’s Prematurity Decisions. The Court found these decisions subject to a correctness standard. Justice Eamon acknowledged that, according to Canada (Minister of Citizenship and Immigration) v Vavilov (“Vavilov”), issues of judicial review require the presumptive standard of reasonableness. However, Vavilov also provides that certain cases require correctness review.[7] The categories where the reasonableness standard does not apply include where courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute.[8] Therefore, because the questions of appeal jurisdiction are common to many health profession regulators under the HPA, and because the HPA provides appeals from College decisions to the Alberta Court of Appeal, the Court concluded that the appropriate standard of review of the Prematurity Decisions was correctness.[9]
Procedural Fairness in Bifurcated Proceedings
The procedural disagreement underlying the Prematurity Decisions was whether, in bifurcated disciplinary proceedings under the HPA, a merits decision and sanctions decision are together one decision, subject to appeal only when both have been issued, or whether each decision is a “decision” and each subject to appeal.
The College took the position that the use of the singular “the” and “decision” in the applicable statutory provisions indicated a legislative intent that only the final, unified decision was subject to appeal and that multiple appeals were not contemplated. The College cited the Ontario Court of Appeal in Laiken, which noted that a tribunal is considered not to have expressed its final view of the case until all written reasons are provided.[10]
The member took the position that each of the merits decisions and sanctions decisions are “decisions” within the meaning of sections 86 and 87, and either, or both, may be appealed.[11] The member noted this approach had been recently adopted by the Alberta Court of Appeal in contempt proceedings.[12]
Justice Eamon determined the College’s decisions below were incorrect, and that a right of appeal arose upon issuance of the merits decision.[13] The Justice confirmed that “the use of the singular in the HPA does not suggest there can be only one decision”.[14] Further, a tribunal’s power under section 80(1) of the HPA to decide whether or not a regulated professional’s conduct constituted unprofessional conduct “is, in plain language, a decision”.[15] Thus, under the HPA, when proceedings are bifurcated into merits and sanctions phases and where each result in written reasons, each is a “decision” giving rise to a right of appeal.[16]
The Court provided an apt summary of the legislative purpose of part 4 of the HPA (i.e., the complaints procedure). The Court acknowledged that Part 4 of the HPA aims to balance somewhat competing interests, namely “maintaining the public confidence in the profession in a manner that is reasonably fair to the regulated professional in the complaint process”.[17]
The Court also cautioned that its interpretation of these provisions of the HPA does not sanction or permit regulated professionals appealing each interlocutory ruling or finding during the hearing process; appeals of that variety would be abusive and properly ignored.[18]
More broadly, the Court commented on bifurcated proceedings outside of the specific HPA context, stating that administrative tribunals have discretion to adopt procedures suitable for the specific case before them, provided they adhere to procedural fairness. Whether a disciplinary tribunal bifurcates hearings into a merits phase and a sanction phase and whether they deliver bifurcated findings with associated reasons and orders, is discretionary,[19] but that discretion cannot abrogate or infringe upon the procedural fairness accorded to regulated professionals within the complaints process.
Issuance of a Stay
Having determined the Prematurity Decisions not to accept the notice of appeal and consider the applicant’s stay were incorrect, the Justice considered whether it would be appropriate to remit the stay application for consideration within the College. The Justice noted that, ordinarily, the Court would have the benefit of the College’s reasons on the stay. However, given the irreparable harm being sustained by the applicant, the Judge found it was in the interests of justice for the Court to consider the stay at first instance.[20]
(The writer notes that the Court can acquire jurisdiction over a stay pending appeal under the HPA in two ways -- the denial of a stay application by the regulator, and the failure or refusal to consider it at all.[21] This case was of the latter type. Section 86 of the HPA provides a “safety valve” for regulated members in circumstances where the regulator fails or refuses to consider a stay, whether that is for procedural or substantive reasons, mere inadvertence, or even indolence. In this writer’s respectful opinion, where a stay is not considered by the regulator within the statutorily-provided 10 days, for whatever reason, it would be improper for a Court to remit the matter back to the regulator with a direction to consider it. Both the short, legislated time frame and the safety valve indicate a legislative intention to ensure that stay applications are considered on their merits within a short time by the regulator. Where that does not occur, judicial oversight is necessary. If, upon consideration by the Court, the stay is prima facie meritorious because irreparable harm is being sustained, further delay through remittance and reconsideration would only perpetuate that harm. If there is no irreparable harm and further delay would not be problematic, a stay is unnecessary and should simply be refused on its merits. In either circumstance, remittance would be inefficient, and where the stay application has merit, unjust.)
In applying the well-known test[22] for a stay pending appeal, the Court first considered whether there was a serious issue to be tried on appeal. The Court’s analysis centered on the interpretation of the College’s particular Standard governing sexual abuse, and whether the services provided by the member were “episodic” within the meaning of paragraph 7 of that standard.[23]
The Court noted that the College’s interpretation of “episodic” to mean that only one instance of care may ever be provided to a person with whom the member is in a sexual relationship was arguably problematic, “because the Standard does not limit the number of occasions on which an episodic service is provided, but rather limits the number of attendances in respect of a single service”.[24]
The Court also noted that the determination of whether professional services are “episodic” within paragraph 7 of the Standard requires consideration of the expectations of both parties about whether the professional services would continue. The Court noted a possible failure in the Tribunal’s decision in rejecting the member’s evidence on this point:
Vavilov observes that failure of a tribunal to “grapple” with the main contentions of a party to the hearing might amount to a lack of transparency or justification in an administrative decision, and the omission may be more acute where the consequences of the decision for the party are particularly severe or harsh.[25]
Noting there were many grounds of appeal and that it was not necessary to consider them all on this application, the Court found a serious question to be tried on appeal.[26]
The Court recognized that the harm suffered by the Member was obvious, given the mandatory suspension and the resulting inability to practice the member’s profession, and that it would be irreparable even if the appeal were ultimately successful. The Court noted the member is involved in an owner-operated business, there was resulting uncertainty among his patients, the businesses were suffering economically and may ultimately close, and the member’s family depended upon the member’s income from the profession of pharmacy.[27]
In considering the balance of convenience arm of the test, the Court noted that irreparable harm to both parties must be considered: the irreparable harm to the applicant if the stay is not granted, and the irreparable harm to the respondent if it is. The Court noted the pernicious impact on patients of sexual relationships with their health care providers which underlies the zero-tolerance amendments to the HPA enacted in 2019.[28] Because of the general repugnance for sexual contact between patients and regulated professionals, granting a stay of a mandatory suspension order presented clear risk of irreparable harm to the reputation of the profession, which required balancing with the irreparable harm to the applicant.[29]
Justice Eamon’s analysis of these competing interests is noteworthy given this appears to be the first judicial consideration of a stay pending appeal in a sexual abuse case arising after the 2019 HPA amendments incorporating zero tolerance of sexual contact between health care providers and patients. The Court rejected the Applicant’s contention that the consensual nature of the sexual relationship was a mitigating factor in this analysis. The Court went on to clarify that though a lack of consent is an aggravating factor, this does not mean that the presence of consent is mitigating, given the zero-tolerance position toward sexual contact between health care providers and patients.[30]
Ultimately, the Court granted the stay of the merits decision and the corresponding interim suspension that followed.[31] The harm to the reputation of the profession was addressed through conditions imposed on the member during the term of the stay, designed to prevent the possibility of recurrence of the conduct leading to the proceedings in the first place.[32]
Duration of the Stay
What was of particular interest was the fact that, upon further clarification from the Court, the stay was not granted until such time as the s 87 appeal within the College was complete. In an oral decision that followed MA, Justice Eamon clarified that the bifurcated proceedings required separate stays for both the merits decision and sanctions decision. Because each was a “decision”, each is subject to the mechanism for a stay contemplated in the HPA, which requires an application to the College first followed by an application to the Court of King’s Bench if the stay is not granted within 10 days. Absent such an application, the Court did not have jurisdiction to stay the sanctions decision, which at that time had yet to be rendered. Thus, the stay granted in MA was until such time that the sanctions decision was issued by the College, at which point the interim suspension ended pursuant to section 81.1 of the HPA.
Notably, this ruling by Justice Eamon was made notwithstanding that the operative effect of the interim suspension and the mandatory suspension that would follow the Sanctions Decision was the same -- namely, a prohibition on the member’s practice -- and that the College was legislatively mandated to cancel the practice permit as a part of the Sanctions Decision. While the Court acknowledged the obvious practical benefit of staying the Sanctions Decision in light of that, the Court found it did not have jurisdiction to do so.
As noted, all aspects of Justice Eamon’s decision are currently under appeal.
Conclusion
The MA decision provides notable first-impression guidance on key administrative procedures under Part 4 of the HPA. Where a regulator operating under the HPA bifurcates a complaint process, this cannot result in unfairness to the member in the effect of bifurcation on appeal rights. MA also provides important judicial guidance on the considerations applicable to stays pending appeal of regulatory decisions, in particular in sexual abuse cases involving health care providers and their patients.
[1] For pharmacists, those are the Alberta College of Pharmacists, Standards of practice – Sexual abuse and sexual misconduct.
[2] Each of the many colleges under the HPA were tasked with enacting their own standard regarding sexual abuse of patients, having regard to the particularities of their specific profession. They are, however, broadly similar, and are grounded in a general prohibition on sexual contact or sexual relationships between health care providers and their patients.
[3] MA at paras 27-28.
[4] Section 82(1.1) of the HPA.
[6] MA at paras 12-13.
[7] See also Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association, 2022 SCC 30 at paras 26-28 [Society of Composers].
[8] Society of Composers at para 28.
[9] MA at paras 35-39.
[12] AHS v Pawlowski, 2021 ABCA 344.
[14] MA at para 42. The Court relied, in part, on section 26(3) of the Interpretation Act, RSA 2000, c I-8 and the overall legislative intent of Part 4 of the HPA to arrive at this conclusion.
[23] MA at paras 60-65.
[25] MA at para 65, citing Vavilov at para 134.
[26] MA at para 56 and para 67.
[27] MA at para 68. Financial harm of this kind constituting irreparable harm is peculiar to the administrative discipline context. Financial harm is ordinarily not the purview of an injunction, but damages are typically not available in disciplinary proceedings where a regulator’s decision of unprofessional conduct (or equivalent) is later overturned.
[28] MA at para 19 and para 71.
[29] MA at paras 72-75.
[31] MA at paras 73-76.