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In October of 2022, the Court of Appeal of Alberta released their decision in Jinnah v Alberta Dental Association and College, 2022 ABCA 336 (Jinnah). Amongst other issues on appeal, the decision provided a new framework governing the recoverability of costs by professional regulators in disciplinary proceedings.
Following the Court’s decision, the Alberta Dental Association and College sought permission for leave to appeal to the Supreme Court of Canada. On March 30, 2023, the Supreme Court of Canada declined to hear the appeal, meaning that Jinnah will represent the approach to costs in professional disciplinary proceedings under the Health Professions Act for the foreseeable future.
In a previous article, we provided a high-level overview of the Court’s decision in Jinnah. This article is intended to provide a more detailed summary of the Court’s decision in Jinnah and what this decision means for professional regulators moving forward.
Pre-Jinnah Approach to Costs
Prior to Jinnah, the approach to awarding costs in the disciplinary context was that, where governing legislation permitted costs to be awarded, the decision to award costs was a discretionary decision based on the facts before the hearing tribunal.
Courts considered a host of factors in determining whether costs were appropriate, and what quantum of costs were appropriate, including the outcome of the hearing, the seriousness of the charges, the conduct of the parties, and the financial impact of the costs award on the member. Consideration of these factors was a balancing exercise, with no one factor taking precedence.
The Jinnah Decision
In Jinnah, the Court determined that the costs of a disciplinary proceeding are presumptively to be borne by the regulator. A significant portion of costs should only be ordered where there is a compelling reason to do so. The Court identified four examples of “compelling reasons” which would justify a significant costs award:
- Where a member engages in serious unprofessional conduct, such as sexual assault on a patient, fraud perpetrated on an insurer, the performance of a procedure while suspended, or the performance of a procedure in a manner that is a marked departure from the ordinary standard of care.
- Where a member engages in “serial” unprofessional conduct, or unprofessional conduct on two or more occasions. The Court indicated that if both breaches were not serious, a small amount of costs (less than 25%) could be appropriate. If the subsequent breach was serious in nature, a more significant costs award would be appropriate.
- Where a member fails to cooperate with the regulator’s investigators and forces the regulator to expend more resources than is necessary to ascertain the facts related to the complaint.
- Where a member engages in hearing misconduct, or behaviour that unnecessarily prolongs the hearing or otherwise results in increased costs of prosecution that are not justifiable.
The Court indicated that this framework applies to all professionals regulated by the Health Professions Act. It remains to be seen how the decision may apply to other regulators whose legislation resembles the Health Professions Act.
The Court emphasized that costs are an inevitable part of self-regulation. Professions in Alberta which are extended the privilege of self-regulation have the corresponding responsibility to supervise and discipline members. This necessarily involves costs, which self-regulating professional organizations must accept as a consequence of self-regulation. While it is acceptable to attempt to recover some of those costs back, the burden of the costs of regulation are to be presumptively borne by the regulator and, by extension, the profession at large in most cases. The Court acknowledged that, in most cases, a member found guilty of unprofessional conduct will not be subject to a costs order.
Jinnah represents a shift in the Court’s approach to awarding costs to professional regulators under the HPA. Before seeking a significant portion of the costs of investigation and/or hearing, regulators should carefully consider whether there is a compelling reason to do so, including whether the issue falls into one of the four “compelling reasons” categories identified by the Court.
It will be important for regulators to stay up to date on the development of the law and how this case is interpreted and applied.
If you have questions about this decision or how it may affect you, please reach out to the authors.