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<< back to all ArticlesAlberta Court of Appeal: Discretion to Hearing Tribunal Decisions on the Public Interest
Reynolds Mirth’s team, comprised of Julie Gagnon and Jenna Chamberlain, successfully argued that the decision of the Hearing Panel and Council Review Panel of the College of Acupuncturists of Alberta (the “CAA”) should be upheld on appeal to the Court of Appeal.
Background
Allegations were made against an acupuncturist, regulated by the CAA, relating to whether she was in a conflict of interest.
At the initial hearing, the Hearing Panel found the allegations against her were proven and that her conduct was detrimental to the best interests of the public.
The decision of the Hearing Panel was appealed to the Council Review Panel of the CAA. At this appeal, the acupuncturists brought an application to admit new evidence on appeal. The Council dismissed both the appeal and the application, upholding the decision of the Hearing Panel.
The Council’s decision was then appealed to the Alberta Court of Appeal.
Decision of the Court of Appeal
The Court considered three major issues:
- Whether the Hearing Panel’s finding of facts on the issue of the conflict of interest was reasonable;
- Whether the new evidence before Council should have been admitted; and
- Whether her conduct was detrimental to the best interest of the public.
Findings of Fact on Conflict of Interest
On the first issue, the Court reiterated that the standard of review for findings of fact and credibility is the standard of palpable and overriding error. The Court held “A palpable error of fact is one that can be clearly seen. Merely showing that there is some evidence against a fact finding does not establish that it was clearly wrong” (paragraph 20).
There was no palpable error in the Hearing Panel’s decision. It considered all the evidence before it, weighed the evidence, and made a clear finding of fact.
This ground of appeal was dismissed.
Admission of New Evidence
On the second issue, the acupuncturist made two arguments.
Her first argument was that the Council incorrectly assumed that evidence must comply with the general rules of evidence to be admissible.
The Court reiterated that the standard of review for questions of law is correctness.
The Court disagreed with this reading of the Council’s decision. The Council considered the rules of evidence in finding that, failure to comply with the rules merely diminished the credibility of the evidence, rather than disallowed admission completely. There was no error in law in the Council’s decision.
Her second argument was that the Council wrongly found the new evidence was not credible.
This was a question of fact, which would require the Court to re-weigh the credibility of the new evidence. The Court held that re-weighing the evidence “is not this Court’s job and is precluded by the standard of review” (paragraph 27). Therefore, the Court did not assess the Council’s weighing of credibility.
This ground of appeal was dismissed.
Conduct Detrimental to the Best Interests of the Public
The Court lastly considered the finding that her conduct was detrimental to the best interests of the public and, therefore, was professional misconduct.
The Court held this was a question of mixed law and fact, reviewable on a standard of palpable and overriding error.
The Court held “the Hearing Panel and the Review Panel are better positioned that this Court to assess the impact of [the acupuncturist]’s conduct on the public interest and the reputation of the profession from the perspective of a reasonable member of the public” (paragraph 47). Absent a clearly unreasonable conclusion or a clear mistake of fact or error in principle, the Court must defer to the findings of the Hearing Panel.
There was no clear error in the Hearing Panel’s decision and, therefore, this ground of appeal was dismissed.
Conclusion
An important takeaway from this case is the Court’s statement that tribunals are better situated to assess the impact on the public interest and reputation of the profession. These findings must be given deference and will only be overturned in the case of a clear error.
The full decision can be read here.
