Zakhary v College of Physicians and Surgeons of Alberta, 2012 ABQB 623

Court of Queen ’ s Bench of Alberta Citation: Zakhary v College of Physicians and Surgeons of Alberta, 2012 ABQB 623 Date: 20121011 Docket: 1203 06500 Registry: Edmonton Between: Dr. Kristina Zakhary Applicant - and - College of Physicians and Surgeons of Alberta Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.M.

Ross _______________________________________________________ [ 1 ] The issue on this judicial review application is the scope of the authority of the College of Physicians and Surgeons ["CPSA"] to publish the results of disciplinary hearings under the Health Professions Act , RSA 2000 c. H-7 [ “ HPA ” ]. The Applicant, a medical doctor, seeks judicial review of the CPSA's decision to publish the result of a disciplinary hearing pursuant to which she was reprimanded and directed to pay costs. Facts

[ 2 ] The CPSA served a Notice of Hearing on the Applicant on October 25, 2011, charging her with failing to respond to requests for information regarding another CPSA complaint. The hearing proceeded on December 21, 2011. The Applicant agreed that her failure to respond was unprofessional conduct and agreed to the penalty of a reprimand and costs of the hearing. [ 3 ] On March 5, 2012, the CPSA advised the Applicant that it intended to issue a press release containing the results of the hearing and to publish the same in its publication "The Messenger". On March 8, 2012 the press release was issued. Legislation [ 4 ] The relevant sections of the HPA provide: College's role 3(1) A college (

a) must carry out its activities and govern its regulated members in a manner that protects and serves the public interest, (

b) must provide direction to and regulate the practice of the regulated profession by its regulated members, (

c) must establish, maintain and enforce standards for registration and of continuing competence and standards of practice of the regulated profession, (

d) must establish, maintain and enforce a code of ethics, (

e) carry on the activities of the college and perform other duties and functions by the exercise of the powers conferred by this Act, and (

f) may approve programs of study and education courses for the purposes of registration requirements.

(2) A college may not set professional fees, provide guidelines for professional fees or negotiate professional fees on behalf of some or all of its regulated members unless the Minister grants the college an approval under

section 27.

(3) A college or a council or committee of a college may not be a certified bargaining agent as defined in the Labour Relations Code. RSA 2000 cH-7 s3; 2001 c21 s2 Examination of Record 85(3) A member of the public may examine the decision and the testimony given before the hearing tribunal, however recorded,

85(3) A member of the public may examine the decision and the testimony given before the hearing tribunal, however recorded, except the part of the testimony that was given while the hearing was held in private.

(4) A member of the public, on paying the reasonable costs of transcribing, copying and delivering it, may receive a copy of the decision and the testimony, however recorded, except the part of the testimony that was given while the hearing was held in private. RSA 2000 cH-7 s85; 2007 c32 s1(23) Notices and Information Access to regulated members' information [ 5 ] 119(1) If under

Part 2 or

Part 4 a regulated member's practice permit is suspended or cancelled, or if conditions are imposed on a regulated member's practice permit or a direction is made under section 118(4), the registrar (

a) must enter the conditions imposed, if any, on the regulated member's practice permit, (

b) must provide the information (

i) to a person who employs the regulated member to provide professional services on a full-time or part-time basis as a paid or unpaid employee, consultant, contractor or volunteer, and (ii) to a hospital if the regulated member is a member of the hospital's medical staff or professional staff, as defined in the Hospitals Act, (

c) must provide the information to any Minister who, or an organization specified in the regulations that, administers the payment of fees for the professional services that the regulated member provides, (

d) must provide the information to another college if the registrar knows that the regulated member is also a member of that college, (

e) must provide the information to the governing bodies of any similar profession in other provinces or territories, and (

f) subject to the bylaws, may publish or distribute the information referred to in this subsection and information respecting any order made by a hearing tribunal or council under

Part 4.

(2) In addition to the release of information under subsection (1), if a reprimand or other order under

Part 4 relates to an improper billing practice by a regulated member, the registrar must provide the relevant information to any Minister who, or an organization specified in the regulations that, administers the payment of fees for the professional services that were subject to improper billing practices.

(3) If a regulated member applies for a review of a decision under

Part 2, appeals a decision under

Part 4 or appeals a direction under section 118(4), and a cancellation or suspension is lifted or imposed conditions are varied or removed, a reprimand is removed or a direction is cancelled, the registrar must provide that information in the same manner that the information on the cancellation, suspension, conditions or reprimand was provided under subsection (1) or (2).

(4) If a member of the public, during regular business hours, requests from a college information referred to in this

section or section 33(3) or 85(3), or information as to whether a hearing is scheduled to be held or has been held under

Part 4 with respect to a named regulated member, the college must provide the information with respect to that regulated member subject to the payment of costs referred to in section 85(3) and the period of time provided for in the regulations.

(5) If the governing body of a similar profession in another jurisdiction requests information as to whether a regulated member or a former member is an investigated person, the college may provide the information. RSA 2000 cH-7 s119; 2001 c21 s19 ; 2007 c32 s1(27) Bylaws [ 6 ] 132(1) A council may make bylaws ... (

q) respecting the publication and distribution of information described in sections 60(6) and 119(1); The CPSA Bylaws provide: 35 Publication

(1) The Registrar may publish or distribute information regarding: ... (

d) any order or direction made under

Part 4, Division 4 and Division 5 of the Act, including the reasons and the testimony given before the hearing, except the part of the testimony that was given while the hearing was held in private, at the expiry of the appeal period. Issue [ 7 ] The issue is whether the CPSA has the authority under s 119(1)(

f) of the HPA to publish the results of the hearing. The Applicant contends that the authority of the Registrar of the CPSA under s 119(1) is limited by the opening words of the section, which the Applicant refers to as the "Triggering Conditions". “ If under

Part 2 or

Part 4 a regulated member's practice permit is suspended or cancelled, or if conditions are imposed on a regulated member's practice permit or a direction is made under section 118(4)" then the Registrar has the authority to take the actions delineated in the following subsections. The Respondent argues that the authority in subsection (

f) goes beyond the introductory phrase by providing that the Registrar may publish both "the information referred to in this subsection and information respecting any order made by a hearing tribunal or council under

Part 4". [ 8 ] Reference was also made in argument to Bylaw 35(1)(

d) which provides that the Registrar may publish information regarding "any order or direction made under

Part 4, Division 4 and Division 5 of the Act". The Bylaw was enacted under the authority of the Council of the CPSA under the HPA , s 132(1)(

q) to enact bylaws "respecting the publication and distribution of information described in [section] ... 119(1)". The Applicant submits that the authority to enact bylaws must comply with the limitations of s 119(1). The Applicant further submits that Bylaw 35(1)(

d) does not comply. The Respondent's written submission suggested that the Bylaw might be regarded as an additional source of authority for publication by the Registrar, but the Respondent did not pursue this argument during oral submissions. [ 9 ] Section 132(1)(

q) is clear that bylaws can only relate to publication of information "described in. . . s 119(1)", and s 119(1)

(

f) also makes it clear that the discretion to publish is not only subject to the Bylaw, but in relation to information described in the subsection. I am satisfied that the Bylaw is ancillary only and that any authority to publish must come within the scope of s 119(1)(f). Thus there is only one issue on this application, the

interpretation of s 119(1)(f). Standard of Review [ 10 ] The relevant factors to identify the proper standard of review are: (

i) the presence or absence of a privative clause; (ii) the purpose of the tribunal as determined by

interpretation of the enabling legislation; (iii) the nature of the question at issue, and; (iv) the expertise of the tribunal: Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 [ “ Dunsmuir ” ] at para 64. [ 11 ] In Alberta (Information & Privacy Commissioner) v ATA , 2011 SCC 61 , [2011] 3 SCR 654 [ “ ATA ” ], the Supreme Court of Canada [ “ SCC ” ] provided further direction regarding the standard of review where a tribunal is interpreting its home statute. Deference will apply to such decisions, "unless the

interpretation of the home statute falls into one of the categories of questions to which the correctness standard continues to apply": para 30. The exceptional categories are constitutional questions, questions of law that are of central importance to the legal system as a whole, and true questions of jurisdiction. At para 34, the Court concluded that: Unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the

interpretation by the tribunal of ‘ its own statute or statutes closely connected to its function, with which it will have particular familiarity' should be presumed to be a question of statutory

interpretation subject to deference on judicial review. Analysis of Relevant Factors (

a) Privative clause [ 12 ] The HPA does not contain a privative clause. There is a statutory right of appeal from a decision of a hearing tribunal to the Council of the CPSA, and from the Council to the Court of Appeal: ss 87, 90. These provisions do not apply to decisions of the Registrar under s 119(1), which is why this matter has proceeded as an application for judicial review. [ 13 ] I agree with the Applicant's submission that the lack of a privative clause means that the decision of the CPSA Registrar is entitled to less deference. (

b) Nature of the question [ 14 ] The issue stated above is a question of law, of

interpretation of the HPA . As the

interpretation involves the CPSA interpreting its home statute, the Respondent argues that ATA applies and the standard of review is reasonableness. The Applicant argues that the question of law is jurisdictional and of a general importance that goes beyond the expertise of the CPSA. The Applicant notes that the HPA applies to 29 health professions, thus the

interpretation of s 119(1)(

f) is significant not only to the professionals governed by the CPSA, but to a much broader group of individuals. [ 15 ] The SCC observed in ATA that the category of true questions of jurisdiction is narrow and will be exceptional: para 39.

The parties have not pointed me to and I have not located any cases from the Alberta Court of Appeal or the SCC that have distinguished ATA on the basis that the question in issue was a true jurisdictional question or a question of central importance to the legal system. [ 16 ] In Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission) , 2012 SCC 10 , [2012] 1 SCR 364 , the SCC rejected the argument that a decision by a Human Rights Commission to refer a complaint regarding school funding to a board of inquiry was jurisdictional.

The SCC found that the standard of review for the Commission's decision to refer the complaint was reasonableness. It was a discretionary decision that an inquiry was warranted, not whether the complaint fell within the purview of the Act. "[T]he Commission's decision was not a determination of its jurisdiction" (para 17).

[ 17 ] The Applicant argues that the CPSA lacks authority to publish a disciplinary hearing order unless the Triggering Conditions are present. This is not a question about whether a matter falls within the purview of the HPA , but whether the CPSA has acted properly in allowing publication of a particular order issued under the Act. Given the narrowness of the category of true jurisdictional questions, I conclude that this issue is not in that category. [ 18 ] I also reject the argument that the question in issue is a question of central importance to the legal system.

The fact that the decision may have precedential importance for governing bodies of other health professions does not make it a matter of central importance to the legal system. Further, it is not clear that the decision would have such precedential value, as the CPSA argues only that its decision to publish was reasonable, not that it was mandated.

Governing bodies of other health professions would be entitled to consider whether a similar decision would be in the public interest in relation to their own members and in the context of the profession that they are charged with regulating. [ 19 ] I conclude that the question in issue is a question of

interpretation by the CPSA of its home statute, with which it will have particular familiarity, which supports deference on judicial review. (

c) Purpose and expertise of the tribunal [ 20 ] The CPSA, as a professional college, has a duty to "carry out its activities and govern its regulated members in a manner that protects and serves the public interest" ( HPA s 3(1)).

The CPSA acts through its governing body, the Council ( HPA ss 5, 6), and appoints a Registrar for the purposes of the HPA (s 8). [ 21 ] The expertise of professional governing bodies and the purpose of their enabling legislation were relied on in the adoption of a reasonableness standard of review of disciplinary decisions in the pre- Dunsmuir decision of Law Society of New Brunswick v Ryan , 2003 SCC 20 , [2003] 1 SCR 247 , at para 42 .

In Dor é v Barreau du Qu é bec , 2012 SCC 12 , [2012] 1 SCR 395 , at para 45 , it was held that applying the Dunsmuir principles leads to the same result. [ 22 ] The decision to publish is framed in s 119(1)(

f) as a decision of the Registrar, but both parties to this application have treated it as in essence a decision of the CPSA. That seems appropriate, particularly as the Registrar's discretion is "subject to the bylaws", the bylaws are adopted by the Council of the CPSA, and the decision in question reflects the approach adopted by the Council in Bylaw 35(1)(d). [ 23 ] While the publication decision is not a disciplinary decision as such, it was issued pursuant to a discretionary power and is related to the disciplinary process.

The Respondent contends that all actions and decisions of the CPSA under the HPA , including the exercise of discretion under s 119(1)(f), must be viewed through the lens of the public interest mandate of self-regulating professions: Pharmascience Inc v Binet , 2006 SCC 48 , [2006] 2 SCR 513 , at para 36 [ “ Pharmascience ” ]. In Pharmascience this legislative purpose justified a flexible

interpretation of powers to enable the regulator to discharge its duties; similarly this purpose supports a deferential approach to the CPSA

interpretation of the scope of the discretionary power under s 119(1)(f). (

d) Conclusion as to standard of review [ 24 ] Three of the four relevant factors support a more deferential standard of review. I conclude that the standard of review applicable to the decision to publish is reasonableness. Application of the Standard of Review [ 25 ] The required analysis is described in Dunsmuir at paras 47-48 :

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range ofacceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes.

In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [26] Where a tribunal has not given reasons for the challenged decision, as occurred in ATA and in this case, that does not changethe standard of review: ATA, at para 50.

The reviewing court in these circumstances is to "give respectful attention to the reasons ‘whichcould be offered in support of a decision'. . . If there exists a reasonable basis upon which the decision maker could have decided as itdid, the court must not interfere", ATA, at para 53. [27] The parties agree that the proper approach to statutory

interpretation is set out in Re Rizzo & Rizzo Shoes Ltd., (SCC), [1998] 1 SCR 27, at para 21, 154 DLR (4th) 193: Although much has been written about the

interpretation of legislation . . . Elmer Driedger in Construction of Statutes (2nd ed. 1983) bestencapsulates the approach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording ofthe legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [28] The Applicant argues that on a plain reading of s 119(1)(

f) of the HPA, if one of the specified orders was made (theTriggering Conditions), then the registrar either must or may publish information as described in ss (

a) through (f). Sub-subsection (f)comes within s 119(1), and therefore the Triggering Conditions apply to it. The reference in ss (

f) to "information referred to in thissubsection", is a reference to the specified orders (suspending or cancelling a member's practice permit, imposing conditions on apractice permit or directing that a member cease providing professional services until an issue of capacity has been resolved). Theadditional reference in ss (

f) to "information respecting any order made by a hearing tribunal or council under

Part 4", expands thediscretion to publish other orders made by a hearing tribunal. However, because ss (

f) is subject to the Triggering Conditions, these otherorders must be additional or collateral to one of the specified orders. [29] The Respondent submits that ss (

f) provides the CPSA with a broad discretionary power to publish disciplinary orders.Subsection (

f) is distinct from ss (

a) through (

e) that precede it. The permissive "may" of ss (

f) vests the Registrar with a discretion that isdistinct from the previous mandatory provisions. The mandatory provisions relate exclusively to "the information" respecting thespecified orders. Subsection (f), in contrast, refers to "the information referred to in this subsection and information respecting any ordermade by a hearing tribunal", thus going beyond the specified orders. The Respondent points out that the power to publish relates to "anyorder made by a hearing tribunal or council"; it is not restricted to additional or collateral orders made by the hearing tribunal that made aspecified order. [30] The Applicant contends that s 119(1)(

f) is clear and unambiguous and that the Respondent's

interpretation ignores thestatutory language. I disagree. The Respondent's

interpretation is arguably inconsistent with the opening words of s 119(1). However, the Applicant's

interpretation is also arguably inconsistent with the language of ss (f). Considering the opening words of s 119(1) and thelanguage of ss (

f) together, I conclude that s 119(1)(

f) is ambiguous. [31] "If the ordinary meaning of legislation is ambiguous, the

interpretation that best accords with the purpose of the legislationshould be adopted" (ATA at para 67, citing McBratney v McBratney (1919), (SCC), 59 SCR 550 at paras 54-55, 50DLR 132). [32] Both the Applicant and the Respondent submit that the major purpose of the HPA is to protect the public interest.

[ 33 ] The Applicant submits that the Triggering Conditions in s 119(1) protect the public interest by giving the CPSA authority to publish orders made at disciplinary hearings where serious professional misconduct has resulted in more serious penalties. The Legislature has determined that, where professional conduct is not so serious as to warrant one of the listed penalties, it is not in the public interest to publish information about the disciplinary proceeding.

The Applicant argues that an additional purpose of the HPA is to balance transparency against confidentiality. [ 34 ] The Applicant also submits that permitting the CPSA to publish less serious penalties such as reprimands would, in effect, allow the CPSA to add another sanction to what has been imposed by a hearing tribunal. Hearing tribunals have broad discretion under s 82 of the HPA to make one or more of a variety of orders, including a caution, a reprimand, and "any order that the hearing tribunal considers appropriate for the protection of the public" (ss 82(1)(a), (

b) and (l)). Allowing the CPSA to determine whether to publish such orders bifurcates the decision-making process regarding sanctions. [ 35 ] The Respondent submits that openness is a governing principle regarding disciplinary proceedings under the HPA .

For example: a. a discipline hearing is public unless the hearing or a portion of it is ordered to be held in private on one of the grounds set out is s 78(1); b. the hearing tribunal must provide the reason for ordering that a hearing or part of a hearing be in private; c. the scheduling of hearings is available to the public (s 119(4)). [ 36 ] After a hearing tribunal issues a written decision, any member of the public may examine and receive a copy of the decision and transcript of the proceedings (ss 85(3) and (4)).

There is nothing preventing a complainant, or any member of the public or the media, from publishing the tribunal's decision. The CPSA is the body charged with protecting the public interest and has the expertise to determine when publication of a disciplinary order would be in the public interest.

It would be arbitrary and absurd to limit the CPSA's discretion to publish to only the most serious disciplinary decisions, while persons without the CPSA's mandate or expertise are free to publish any disciplinary decisions. [ 37 ] The Respondent submits that the Applicant's use of the phrase "Triggering Conditions" suggests and assumes that privacy is the default position regarding disciplinary proceedings under the HPA , when it is the opposite. When s 119 is read as a whole it is apparent that its purpose is not to keep findings of unprofessional conduct confidential.

To the contrary, it is to ensure that disciplinary information reaches appropriate audiences. The mandatory publication requirements in s 119 are a minimum, not a maximum. [ 38 ] In my view, the Applicant's argument is stronger than the Respondent's when it comes to the ordinary and grammatical meaning of s 119(1)(f), although not to the point that the subsection can be said to be clear and unambiguous. On the other hand, the Respondent's argument is definitely stronger in relation to the purpose of the HPA .

There is a presumption in the HPA that disciplinary proceedings are open and that decisions and details regarding open proceedings are publicly available. There is nothing in the HPA , apart from the Applicant's

interpretation of s 119(1), that suggests that physicians have a right to privacy in relation to disciplinary proceedings. Contrary to the Applicant's argument, publication cannot be characterized as a sanction. The purpose of publication by the CPSA is not to punish; no more than having open proceedings or allowing public access to information about proceedings is intended to punish. The purpose in all of these cases to is to promote the public interest through transparency. The CPSA has the mandate and expertise to determine when and how disciplinary decisions should be published in the public interest.

Limiting the CPSA's discretion to only the most serious of cases would hinder its ability to serve the public interest. [ 39 ] Although I express these views, as I have concluded that the standard of review is reasonableness, it is not necessary or even appropriate for me to determine which

interpretation of s 119(1)(

f) I would adopt. In reviewing for reasonableness, the court is to "give respectful attention to the reasons ‘ which could be offered in support of a decision'. . . If there exists a reasonable basis upon which the decision maker could have decided as it did, the court must not interfere": ATA , at para 53 . Having reviewed the arguments presented by both parties, I have no hesitation in holding that there is a reasonable basis for the CPSA's

interpretation of s 119(1)(f).

Conclusion [ 40 ] The application is dismissed. The parties may speak to me regarding costs if they are unable to agree. Heard on the 14th day of June, 2012. Dated at the City of Edmonton, Alberta this 11 th day of October, 2012. J.M. Ross J.C.Q.B.A. Appearances: Anthony L. Friend, Q.C./Karen J. Pirie Bennett Jones for the Applicant Craig D. Boyer Shores Jardine LLP for the Respondent