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the case
The Alberta Court of King’s Bench recently found that under the Health Professions Act (HPA) (in this case, for a hearing related to the profession of pharmacists), the administrative discipline process that provides for a two part hearing where separate decisions are issued (following the merits hearing on the allegations and following the sanctions hearing) also gives rise to two instances for appeal (i.e. following the issuance of each written decision).
In MA v Alberta College of Pharmacy, 2023 ABKB 522, the registrant brought an application for the stay of an interim suspension following the hearing tribunal’s finding at the merits phase of sexual abuse and unprofessional conduct against the registrant. The registrant had sought to have the mandatory suspension under the HPA stayed while the registrant pursued an appeal of the decision on merits. However, the appeal panel and stay committee had declined the registrant’s request for a stay, each concluding that the request was premature as the matter would only conclude, and the right of appeal only arise, following a written decision on sanctions.
The Court considered the governing legislation, being the HPA, and found that the legislation intended to allow for an appeal of both the merits decision itself and any subsequent sanction decision. The Court noted that disciplinary tribunals have the latitude to decide to use bifurcated hearing processes, and when a hearing tribunal decides to deliver a separate decision for each a merit phase and a sanctions phase, the right of appeal will arise from each pronouncing of a decision, with time limits running when a written decision is delivered. The Court, however, was careful to clarify that their finding is not that a regulated professional could appeal each ruling or finding made during the course of a specific merits or specific sanctions hearing.
our two cents for free
The MA decision is under the HPA, and is a novel decision as most regulatory bodies had understood that appeals arose only upon the conclusion of the sanctions phase. In using a two-part disciplinary process, a regulatory body must consider whether the enabling legislation provides for one or two rights of appeal. The legislation at issue may further allow a stay of a merits decision, even when the sanctions decision has not yet concluded.
question
If your entity runs bifurcated hearings, as most do, does the governing legislation of your entity have similar wording to the HPA?
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.
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