Eye On Regulation

• Michael
  Swanberg

  Michael
  Swanberg

  view bio

the case

In Fawcett v. College of Physicians and Surgeons of Alberta (Complaint Review Committee), 2023 ABCA 416, Justice Feehan considered the test for determining when it is appropriate to stay disciplinary proceedings pending court applications challenging those proceedings. 

A complaint was filed against the regulated member, which was initially dismissed by the Complaints Director because there was insufficient evidence of unprofessional conduct to warrant proceeding with a hearing.   The complainant appealed the dismissal to the Complaints Review Committee (“CRC”).  The CRC determined that a further investigation was required.  The investigated member applied for judicial review of that decision, and that application was dismissed (see our previous blog post here).  The investigated member appealed that decision, and applied to stay further disciplinary proceedings pending the outcome of the appeal.

Justice Feehan confirmed that, to obtain a stay pending appeal, the investigated member was required to show:

1. That they had a good arguable case;
2. That they would suffer irreparable harm if the stay was not granted; and
3. That the balance of convenience favours granting the stay.

Justice Feehan confirmed that the first branch of the test is assessed at a low threshold.  While the Court noted that the authorities universally confirm that disciplinary proceedings should not be bifurcated by judicial review applications mid-process, except in rare and exceptional circumstances, for the purpose of a stay application, the Court was satisfied that the application was not frivolous or vexatious, and that was sufficient to demonstrate a “good arguable case.”

For irreparable harm, the Court noted that the investigated member provided limited evidence as to the amount, degree or type of inconvenience, stress, or mental harm they would suffer if the disciplinary proceedings were allowed to continue pending the appeal.  The Court confirmed that there must be substantive evidence of actual irreparable harm to satisfy this stage of the test.  “Harms alleged that are speculative, hypothetical, or only arguable at best to not qualify as irreparable harm” (para 23).

For the balance of convenience, the Court emphasized that there is a strong public interest in allowing regulatory bodies to fulfill their legislative mandates.  Since a stay effectively prevents the College from fulfilling its legislative mandate as given to it by the Legislature, the Court was satisfied that this should be given significant weight in the “balance of convenience” analysis. 

The Court dismissed the application for the stay, concluding that “[a] timely investigation benefits [the investigated member], the complainant, and the public which relies upon the self-regulation of the medical profession to properly investigate and act on complaints of unprofessional conduct.”

The Court of Appeal’s decision confirms that, generally, courts will be hesitant to stay disciplinary proceedings even before an interlocutory application to the Court is considered. This decision reinforces the principle that courts will generally not intervene partway through a disciplinary proceeding, given the high public interest in allowing disciplinary processes to advance to their conclusion in a timely manner before any appeals to the Court are considered.

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

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