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In 2019 Alberta’s Health Professions Act (HPA) was amended to include new provisions relating to sexual abuse and sexual misconduct. Among those changes, section 81.1(1) requires that tribunals impose an automatic interim suspension of a member’s license where a hearing results in a finding of sexual abuse.
In Ahmed v Alberta College of Pharmacy, 2025 ABCA 265, the Alberta Court of Appeal considered the question of whether a regulated professional found guilty of sexual abuse can seek an immediate stay of the automatic suspension of their license under s 81.1(1) of the HPA.
The Court noted that this issue followed from the typical approach of dividing professional disciplinary hearings under the HPA into two stages: an initial hearing on the merits of the allegations of unprofessional conduct; and a subsequent hearing on sanction. Because of this two-part structure, it was a question whether a regulated professional could apply for a stay immediately after issuance of a tribunal’s merits decision where there was a finding of sexual abuse. A related question was whether the merits decision and sanctions decision of a tribunal were each open to separate appeals to council, or whether appeal rights only arose following issuance of a tribunal’s decision on sanctions.
Dealing with the appeal issue first, the Court held that the scheme of the HPA demonstrated an intention that appeal rights applied only to the final decision of the hearing tribunal, after the sanctions decision is issued. The Court stated that the hearing tribunal makes only one formal decision, though typically it has two parts: merits and sanction. The result of this interpretation is that a regulated professional can appeal to council only after the hearing tribunal has issued its written decision on sanction.
Turning to the stay issue, the Court stated that the availability to stay an interim suspension order under section 81.1(1) did not depend on the ability to appeal a merits decision before the sanction phase has concluded. The Court found that several combined factors supported its conclusion that a regulated professional could seek a stay of the interim suspension order.
Interpreting the statutory scheme under the HPA as a whole and in light of the purposes of the Act, the Court interpreted the mandatory suspension required by section 81.1(1) as a type of interim order governed by section 65. Accordingly, prior to any final sanction being ordered under section 82, a regulated professional could apply to the Court of King’s Bench for a stay of the mandatory interim suspension.
Additionally, the Court stated that the availability of a stay of a final order cancelling a regulated member’s practice permit and purposive considerations also supported its conclusion on the availability of a stay of a mandatory interim suspension order.
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While the core issue before the Court was the availability of a stay, the Court’s clarity on appeal rights has implications beyond proceedings dealing with allegations of sexual abuse and sexual misconduct. By confirming that a single right of appeal to council arises follows from proceedings before a hearing tribunal under the HPA, the Court’s decision provides certainty to organizations, regulated members, and the public more generally as to the potential timing and availability of appeals.
A single right of appeal arising after issuance of the decision on sanction limits the number of appeal proceedings that may arise from proceedings before a hearing tribunal. It also ensures that hearing tribunal proceedings are not delayed by allowing an appeal in between the merits and sanction phases, and it encourages parties to raise all concerns arising from the merits and sanctions decisions in a single appeal.
The Court’s conclusion on the single right of appeal is grounded in its interpretation of the HPA. Whether such a conclusion would follow from other governing legislation remains an open question that will need to be assessed in each case through interpreting a professional regulatory organization’s governing legislation. However, the Court’s reasons may provide guidance on how other legislation and appeal rights would be interpreted. For example, the singular references to the “decision” of a hearing tribunal in the HPA were one factor weighing in favour of its interpretation.
question
If your organization typically divides disciplinary proceedings into separate merits and sanctions hearings, do you already consider both stages to be parts of a single decision? What steps do you take to ensure that written decisions for each stage form part of a cohesive whole?
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