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In Jinnah v Alberta Dental Association, 2022 ABCA 336, the Alberta Court of Appeal rendered a decision regarding costs awards in professional regulatory hearings that will have a significant impact on regulators. Unless a member has committed “serious unprofessional conduct, is a serial offender, has failed to cooperate with investigators, or has engaged in hearing misconduct”, the Court held that the regulatory body “should bear the costs associated with the privilege and responsibility of self-regulation.” The purpose of costs is to fully or partially indemnify the regulatory body for its costs and expenses, not to be punitive in nature. Costs should not be awarded in every case, rather, tribunals should consider whether a costs order against a regulated member is warranted. In cases where the regulatory body decides to impose costs, it should provide clear and transparent justification for the costs order given.
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The importance of reasons in the professional regulatory context cannot be overstated. Reasons allow the affected parties to understand the basis for the decision-maker’s decision, and they assist a reviewing court to follow the decision-maker’s logic. Great care should be taken in fashioning reasons for a decision; while they need not be perfect, they should demonstrate how and why a decision was made, that parties’ arguments were considered, and that the decision was made in a fair and lawful way.
Whether it is a longer email or a memo, when was the last time you asked a colleague for a second set of eyes? More specifically, in the decision-making context, fellow panel members should review the drafter’s decision for content, reasons and logic, and not just for grammar and spelling. Getting a fresh perspective can greatly assist in identifying gaps in reasoning as well as more effective ways to communicate one’s message.
Eye on Regulation is RMRF’s monthly newsletter for the professional regulatory community. Each month we offer:
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This newsletter is for information only and does not constitute legal advice.