Dr. Charkhandeh, a dentist, applied for an Order that all publications by the College of Dental Surgeons (the “College”) related to findings of unprofessional conduct against him be removed and for a stay of future publications pending Appeal. The College objected to the jurisdiction of a single Judge of the Court to make such orders.

Dr Charkhandeh argued that a single judge had jurisdiction pursuant to either Rule 3.23(1) or Rule 14.37(1), or both. Rule 14.37(1) provides that “a single appeal judge may hear and decide any application incidental to an appeal”. Rule 3.23(1), however, is limited to a stay of a decision or act in an originating application for judicial review. Because this matter did not begin by originating application and was not an appeal from judicial review, the sole question was whether this Application was incidental to Dr. Charkhandeh’s appeal, pursuant to Rule 14.37(1).

In AB v College of Physicians and Surgeons of Alberta, 2021 ABCA 320 (“AB”), a single Judge of the Court granted an order that a decision of the College to publish a statement about the applicant in that case on its public website was inoperative and had no effect until the Court had heard and decided that applicant’s appeal. There, the Court found on the jurisdictional issue that it was an “application incidental to an appeal”. In AlphaBow Energy Ltd v Alberta Energy Regulator, 2023 ABCA 164 (“Alphabow”), however, the Court came to the opposite conclusion.

Feehan J.A. found that these two decisions could be reconciled on the facts. In AlphaBow, there were no formal appeals before the Court, and the Alberta Energy Regulator had still not determined AlphaBow’s request for an internal regulatory appeal. Turning to the facts at hand, Justice Feehan relied on AB and found that the application to remove and prohibit further publication on the public website was incidental to the appeal of unprofessional conduct; therefore, it was found that single Judge of the Court had jurisdiction to make the order requested by Dr. Charkhandeh.

Ultimately, the Application was denied because Dr. Charkhanded did not meet the well-known tripartite test for a stay pending Appeal. The Court emphasized the public interest in transparency and the College's statutory mandate to publish disciplinary findings. The balance of convenience favored the College's decision to publish the findings.