Right to Two Appeals: Appealing a Finding of Unprofessional Conduct before Sanctions are Decided

There are often two hearings in professional regulatory proceedings – a hearing of the merits and a hearing to address sanctions. In MA v Alberta College of Pharmacy, 2023 ABKB 522, the Court of King’s Bench addressed the issue of whether a regulated member has the right to appeal a finding of unprofessional conduct before the tribunal decides on sanctions. The Court decided yes, a right to appeal exits.

The Applicant, who is a registered pharmacist, was found by the Hearing Tribunal to have committed unprofessional conduct including sexual abuse. Since the Hearing Tribunal found sexual abuse, it was required by section 81.1(1) of the Health Professions Act, RSA 2000, c H-7(“HPA”) to suspend the Applicant’s practice permit. The sanctions hearing was in progress and was proceeding by written submissions.

The Applicant brought two matters to Council of the Alberta College of Pharmacy (“College”) – an appeal of the merits decision under section 87 of the HPA and a stay of the mandatory suspension under section 86. Both failed as being premature. The Appeal Panel found that a right of appeal did not exist until the sanctions phase was done, and similarly the Stay Committee found that the stay application could not happen until after the sanction phase.

The Court of King’s Bench disagreed and granted the Applicant a stay of the Hearing Tribunals’ decision under section 86(3) of the HPA.

The Court reasoned that the use of “decision” in the singular in the HPA did not mean that there can only be one decision, including both merits and sanctions. When a tribunal makes a finding of unprofessional conduct, that is a decision. A right of appeal arises when a decision is pronounced. So, if a tribunal decides to proceed with two hearings – merits and sanctions – then there is a right to two appeals – one appeal from the merits hearing and one from the sanctions hearing. Emphasizing the need for fairness to the regulated member, the Court reasoned that appeal rights should not be withheld while the member waits in limbo for the sanction phase to conclude.

A few items warranted further clarification from the Court:

• While the right of appeal arises when a decision is pronounced, either oral or written, the time limitation to make an appeal does not start to run until a written decision is delivered.

• There is no right of appeal for interim rulings or findings made in the course of the hearing (e.g. evidentiary rulings). The HPA does not contemplate that.

• The scheduling requirements of the HPA allow for Council to direct that the two appeals be heard together to avoid the harms from bifurcated appeals. The HPA requires that an appeal date be scheduled within a set time, not that the appeal be heard within that time. In the vast majority of cases any harms from bifurcated appeals can be avoided.

After concluding that the Appeal Panel and the Stay Committee were both wrong, the Court concluded that the interests of justice required it to consider the Applicant’s request for a stay. Even though Council would normally address this first, the Applicant had already suffered considerable delay as a result of Council’s refusal to consider the stay application. 

The Court granted the stay of the mandatory suspension order with conditions. The Court found both a serious issue to be determined on appeal and that the Applicant was suffering irreparable financial harm as a result of the mandatory suspension. On a balance of convenience, the Court found that the clear risk of harm to the College in allowing the Applicant to continue to practice could be mitigated, in these circumstances, by a court order designed to ensure that the misconduct of sexual abuse would not reoccur pending the appeal hearing. Notably, the Court considered the potential of financial ruin for the Applicant, that the Applicant had no prior misconduct findings, and the lack of evidence that the Applicant would not comply with the court order.

While the stay decision is interesting, the primary importance of this decision relates to the right to two appeals. Colleges under the HPA will want to turn their mind to how this impacts their hearing process and how the harms of bifurcated appeals can be mitigated.

If you want more information on the impact of this decision, please contact one of the members of our professional regulatory team.

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_{This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.}