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In Sandhu v. College of Physicians and Surgeons of Alberta, 2023 ABCA 61, the Court of Appeal considered the extent to which a regulatory body can actively participate in judicial review proceedings pertaining to its own decision. In this case, the appellant was an internationally trained family physician who applied to the College for a license to practice family medicine in Alberta. The appellant’s clinical assessment was terminated before it was complete, and the College’s Assistant Registrar advised the appellant that his application for registration was refused. The appellant appealed that decision to the College’s Council Review Panel, which upheld the Assistant Registrar’s decision, and from there, the appellant sought judicial review of the Review Panel’s decision.
On judicial review, the appellant argued that the College’s submissions to the Court took an overly aggressive tone, and were partisan. In particular, the appellant pointed to pejorative language included in the College’s written submissions. The appellant further argued that the scope of the College’s submissions raised concerns about the College’s impartiality, and specifically pointed to the College’s attempt to have new evidence introduced on judicial review that had not been put before the original Review Panel as being improper.
The Court of Appeal confirmed that, in general, new evidence that was not before the original decision-maker, and which relates to the merits of the decision, will not be permitted to be introduced on judicial review (para 38). It was therefore proper for the Justice on judicial review to disregard that evidence, and to only focus on the evidence that was actually before the Review Panel as reflected in the Record of Proceedings.
However, the Court of Appeal did not find that the College’s attempt to introduce new evidence, on its own, demonstrated that it was acting in an overly partisan or aggressive manner. The Court of Appeal noted that “the court must balance concerns about the need for the reviewing court to be fully informed against the importance of maintaining tribunal impartiality”. The Court of Appeal also noted that the College was the only named respondent in the original judicial review application, and the College is tasked with regulating physicians in Alberta, both of which allowed the College to take a more active role in the judicial review proceedings. While the judicial review Justice, and the Court of Appeal, were critical of the College for using somewhat pejorative language in written submissions, the Court of Appeal was satisfied that language did not, on its own, render the College overly partisan.
The Court of Appeal’s decision affirms that professional regulators must be careful about the extent to which they actively participate in judicial review proceedings concerning their own decisions and should especially be cautious about using pejorative language in submissions. In general, a decision-maker is not entitled to make submissions on the merits to “defend” their own decision, and should only take a limited role in judicial review proceedings.
our two cents for free
In preparing a Record of Proceedings for a statutory appeal or judicial review application, you should only include documents and other records that were before the original decision-maker. In general, the Court will not allow “new” evidence which goes to the merits of the matter, and that was not before the original decision-maker, to be considered by the Court in a statutory appeal or judicial review application. Maintaining clear and organized records during conduct hearings of all documents that were put before the decision-maker can make it much easier to assemble a Record of Proceedings if a decision is appealed to the Court.
Do you have effective procedures in place to organize documents and records provided to tribunals during conduct hearings?
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