Eye On Regulation


A Case

In Fawcett v College of Physicians and Surgeons of Alberta, 2022 ABQB 452, the Alberta Court of Queen’s Bench considered two applications for judicial review. In each case, the Complaints Director initially dismissed the complaint without investigation under the Health Professions Act. The Complainants in each case sought a review of the dismissal of the complaints by the Complaint Review Committee (CRC). Upon review, the CRC directed a further investigation of the complaint made against each regulated physician member. The regulated physician members challenged the decisions of the CRC in an application to the Court for judicial review.

The Court found that the applications for judicial review were premature. The Court cited previous case law that held that if there is a clear right of appeal, and the appeal would be an adequate remedy, then only in very exceptional circumstances with the courts grant judicial review instead of pursuing the internal appeal process. The Court referred to the case of Canada (Border Services Agency) v CB Powell Ltd, 2010 FCA 61 where the Federal Court of Appeal held that absent exceptional circumstances; parties cannot proceed to the court system until the administrative process has run its course. The Court noted that in these cases, the direction of the CRC was to proceed with an investigation. No ultimate decision on whether to refer to a hearing or uphold the Complaints Director’s dismissal had been made. The administrative process was ongoing and should be allowed to run its course.

The Court also considered the applications on their merits in the event that the finding of prematurity was incorrect. The Court dismissed both applications on the basis that the CRC decisions were reasonable. In doing so, the Court confirmed that in reviewing a decision of the Complaints Director, it was appropriate for the CRC to apply a standard of review of reasonableness. In reviewing the decisions of the CRC, the Court also applied the reasonableness standard. The Court found that both CRC decisions met the threshold of being justified, transparent and intelligible and that the decisions demonstrated a clear line of analysis. Finally, the Court agreed with the College’s submissions that the “Legislature intended the CRC to undertake a searching review of the issues raised in the complaint and the evidence before the Complaints Director” and that “the CRC is mandated to determine if there are sources of information that could be gathered to add information needed to assess whether there is sufficient or insufficient evidence of unprofessional conduct by the investigated member.”

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Our Two Cents for Free

Sometimes members in the professional discipline process seek to have the court intervene at early stages in the investigation phase or proceedings. If the administrative process is ongoing, including if there is a right of appeal in the legislation that governs the regulator, then there is a strong argument and case law that support that the process should run its regular course under the legislation. To seek court intervention in one of the interim stages of the discipline process is not an effective or efficient use of resources. Fragmenting proceedings results in delays and additional costs.

A Question

In considering whether to investigate a matter or dismiss without investigation, as a decision-maker (i.e. the Complaints Director or CRC) have you considered what sources of information have been gathered and whether additional information should be sought in determining if there is evidence of unprofessional conduct?

Eye on Regulation is RMRF’s monthly newsletter for the professional regulatory community. Each month we offer:

  • A Case: a (very) brief summary of a recent and relevant case;
  • Our Two Cents for Free: practical insight inspired by the files on our desks right now; and
  • A Question: something to get you thinking about ways to enhance your work.

This newsletter is for information only and does not constitute legal advice.

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