Gale v College and Association of Registered Nurses of Alberta, 2012 ABQB 702

Court of Queen ’ s Bench of Alberta Citation: Gale v College and Association of Registered Nurses of Alberta, 2012 ABQB 702 Date: 20121115 Docket: 1103 05807 Registry: Edmonton Between: Agatha Gale Applicant - and - Registrar of the College and Association of Registered Nurses of Alberta Respondents Corrected judgment: A corrigendum was issued on November 20, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice A.B.

Moen _______________________________________________________ I. Introduction [ 1 ] Agatha Gale (the Applicant) practised in Alberta as a registered nurse. This judicial review arises from a competency review of her practice by the College and Association of Registered Nurses of Alberta [CARNA]. CARNA is her professional regulatory body.

[ 2 ] The Health Professions Act ( HPA ) and Registered Nurses Profession Regulation require that registered nurses complete continuing competency requirements each year: Health Professions Act , RSA 2000, c H-7; Registered Nurses Profession Regulation , Alta Reg 232/2005. [ 3 ] Nurses are selected at random by CARNA to complete basic audits as to their continuing competency. Ms. Gale was selected on June 3, 2009.

As a result of that review, on October 5, 2009, she was advised by the Competence Committee of CARNA (the Committee) that her registered nurse application was approved on a conditional basis, subject to her satisfying certain requirements by November 20, 2009. [ 4 ] On December 4, 2009, the Committee extended her practice permit on a conditional basis until March 1, 2010. On that date, it was further extended on a conditional basis until June 7 th .

In a letter dated April 23, 2010, her practice permit was extended once again until September 15, 2010. [ 5 ] On September 15, 2010, her practice permit was not extended. Ms. Gale was advised on that date that her practice permit would no longer be extended and had expired. Further, she was informed that she would have to pay a $2,500 fee to CARNA in order to have the Committee’s decision reviewed by the Registration Review Committee (RRC). The RRC referred to that fee as a filing fee in its decision of January 25, 2010. [ 6 ] Ms.

Gale applied to the Registrar of CARNA for a review of the Committee’s decision, but made it clear she was paying the $2,500 fee under protest and would argue during the review that the fee was unreasonable. [ 7 ] The RRC reviewed the decision of the Committee and rendered a decision on January 25, 2011. In that review the RRC imposed on indefinite suspension on her ability to practice rather than refusing to grant a practice permit, and the RRC ordered CARNA to refund half of the $2,500 filing fee paid by Ms. Gale. The RRC decided that it did not have the jurisdiction to reduce or refund the filing fee.

However, it found that it did have the jurisdiction to refund one-half of the filing fee because Ms. Gale had been partly successful in her appeal. [ 8 ] The Applicant applies for judicial review of the January 25, 2011 decision. The issues have narrowed from the original review application. No longer does Ms. Gale apply to review the suspension decision. Further, Ms.

Gale abandoned, for the purpose of this application, the issue of whether the HPA gave jurisdiction to CARNA to set fees. [ 9 ] The issues remaining for this Court to determine are whether the RRC has the authority to return the whole of the $2,500 filing fee in its discretion, and whether, in any event, the RRC’s decision to refund only one-half of the fee was unreasonable. Ms. Gale says that the whole of the $2,500 should have been refunded. [ 10 ] The first issue is the standard of review for this application. II. Discussion A. Standard of Review [ 11 ] Ms. Gale has raised two issues on this judicial review.

The first was whether the RRC had the authority under s 41(6) of the HPA to reduce or return the fee for the review in light of bylaws and motions of CARNA. The second is whether the RRC was unreasonable in refunding only one-half of the fee. The second argument made by Ms. Gale was that the amount of the fee was exhorbitant in light of what a nurse could afford and the nature of the hearing.

[ 12 ] Ms. Gale argued that the standard of review for the

interpretation of a statute is correctness. She acknowledges that the Supreme Court of Canada has made it clear that a reviewing court must have deference to tribunals. On the one issue of the

interpretation of s 41(6) of the HPA , Ms. Gale says that the RRC is not an expert in the

interpretation of law. [ 13 ] The Respondent, CARNA, argues that this is a case for a standard of review of reasonableness. Here the tribunal had to interpret its own statute and its own bylaws and ought to be given deference. [ 14 ] In Dunsmuir v New Brunswick , 2008 SCC 9 at para 57 , [2008] 1 SCR 190, the Supreme Court of Canada indicated that if the analysis required to determine the appropriate standard of review for the question(

s) in issue has been undertaken in another case, that analysis need not be repeated.

If it has not been, the court must determine whether the tribunal is entitled to deference after considering various factors, including whether the legislation contains a privative clause, whether the tribunal has special expertise and the nature of the question at issue ( Dunsmuir at paras 62 and 64 ). [ 15 ] Neither party pointed to a decision already made in Alberta as to the standard of review for a decision of the RRC. [ 16 ] The majority in Dunsmuir stated at para 53 that deference ordinarily will apply to questions of fact, discretion or policy, and at para 54 that deference generally is warranted when a tribunal interprets its home statute.

The majority stated at para 59 that administrative tribunals must be correct on true questions of jurisdiction or vires , but added that it meant “jurisdiction” in the narrow sense of whether or not the tribunal had the authority to make the inquiry.

The majority also advised at para 60 that a question of general law that is of central importance to the legal system as a whole and is outside the tribunal’s specialized area of expertise must be reviewed on the standard of correctness. [ 17 ] The court in Canadian Human Rights Commission at para 17 confirmed, as it had in Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 at paras 25 and 26 , [2009] 1 SCR 339, that no matter whether there is a privative clause or not, administrative decision makers are entitled to a measure of deference in matters relating to their special role, function and expertise.

The issue in that case was whether the Canadian Human Rights Tribunal had the authority to make a costs award. At para 24 the court clarified that “... if the issue relates to the

interpretation and application of its own statute, is within its expertise and does not raise issues of general legal importance, the standard of reasonableness will generally apply and the Tribunal will be entitled to deference.” At para 25 it held that costs was a question of law within the core function of the Tribunal relating to

interpretation and application of its enabling statute.

The court also commented: “... a decision as to whether a particular tribunal will grant a particular type of compensation - in this case, legal costs - can hardly be said to be a question of central importance for the Canadian legal system and outside the specialized expertise of the adjudicator.” As a result, the standard of reasonableness was applied to the Tribunal’s decision on costs. [ 18 ] In the case before me, the RRC made a decision about the application of its own statute and the issues here do not raise issues of a general legal importance. [ 19 ] In Wright v College and Association of Registered Nurses of Alberta (Appeals Committee) , 2012 ABCA 267 , the appellants argued that the costs awards made were unreasonable.

In considering the standard of review to be applied to the costs issue, Slatter JA, for the majority, held at para 35: The standard of review for an award of costs in a professional disciplinary matter is reasonableness: K.C. v. College of Physical Therapists of Alberta , 1999 ABCA 253 at para. 94 , 72 Alta LR (3d) 77.

So long as the selection of the factors considered to be relevant is reasonable, and the overall award is reasonable, the Court will not intervene. [ 20 ] Here, the RRC decided that it did not have the authority to waive or ignore the Motion made by CARNA about fees for a review of a Committee’s decision. [ 21 ] In determining that it did not have jurisdiction under the HPA to vary the fee, the RRC was interpreting its enabling statute with which it has some expertise. In deciding to refund Ms.

Gale one-half of the fee pursuant to the Motion, the RRC not only was complying with the Motion but also was exercising its discretion, just as a costs award is discretionary. Based on the decisions noted above, in my view, the standard of review to be applied to both issues in the present matter is reasonableness.

B. Was the RRC wrong on its jurisdiction under the HPA to refund the fee? [ 22 ] The review of a decision of the Committee is conducted by delegates of the Council, which is the governing body of CARNA (s 5(1) HPA .) Council may delegate any of its powers and duties to a committee (here the RRC), except the power to make regulations or bylaws and to adopt a code of ethics or standards of practice: s 19(1)) HPA .

The Council, here through the RRC, on completing a review of the decision of the Committee refusing a practice permit, may confirm, reverse or vary the decision of the Committee or refer the matter back to the Committee, and “may make any further order the council considers necessary for the purpose of carrying out its decision.”: s 41(6) HPA (the plenary clause). [ 23 ] It is this plenary clause that Ms. Gale says gives the RRC the authority to return the whole of the filing fee.

Further, it is this clause she says that gives the RRC the responsibility to consider the fairness of the size of the filing fee. [ 24 ] It is apparent on its face that the RRC had the jurisdiction to make further orders necessary for carrying out its decision. [ 25 ] The RRC concluded that it had no jurisdiction under s 41(6) of the HPA to reduce or refund the fee. At p 11 of its decision, the RRC explained that: The Legislature has, pursuant to section 41(8) of the HPA , established that a College in accordance with its Bylaws may charge a fee for a

section 41 review. As well, CARNA Bylaw 15.1(

i) indicates that the CARNA Provincial Council has the authority to establish fees payable by persons requesting a review under

section 41 of the HPA . Motion No. 39 from the minutes of the CARNA May 28 to 30, 2003 Provincial Council meeting sets the

section 41 Filing Fee at $2,500.00. The RRC concludes that in order for it to reduce or refund the Filing Fee pursuant to section 41(6) there must be clear and explicit language in section 41(6) to that effect. Contrary to Agatha Gale’s submissions, the RRC concludes that clear and explicit language is not present. [ 26 ] Ms. Gale disagrees with this

interpretation of s 41(6) and argues that this power under the HPA does give the RRC the authority to refund the filing fee. [ 27 ] The Respondent Registrar takes the position that it was the Council of CARNA and not the RRC which had the authority under HPA to make bylaws in respect of costs and fees for reviews. Section 132(1) (

p) of the HPA allows the Council to make bylaws respecting costs and fees for any review provided by the College under the Act or the bylaws. The Council did so. [ 28 ] Further, it was the Council under the bylaws that had the authority to establish fees for filing an appeal from Committee decisions.

Section 15.1(1)(

i) of the CARNA Bylaws provides that the Council shall establish fees for individuals requesting s 41 reviews under the Act. Further, s 15.6(

c) of the bylaws indicates that the Council may establish rules for rebating, reduction or crediting of the payment of fees as it considers appropriate. [ 29 ] In May 2003, the Council passed Motion No. 39 setting a fee of $2,500 to be paid in full prior to the review hearing, which fee is forfeited in the event the appeal is completely unsuccessful, refunded to the appellant if the appeal is completely successful or partly refunded to the appellant at the discretion of the RRC if the appeal is partly successful [the Motion]. [ 30 ] The Registrar says that the RRC was not unreasonable in concluding it could not reach a decision that was contrary to the Bylaw and Motion.

Nor was it unreasonable in refunding only one-half of the fee. [ 31 ] With respect to s 41(6) the Registrar says that the plenary clause in s 41(6) is a common type of provision. But, those types of clauses - plenary clauses - must be interpreted in context and consistent with the other provisions in the legislation and with the other

powers given to the tribunal. Decisions of a tribunal must not contradict the other powers of the tribunal and other actors in the administrative scheme. [ 32 ] Under this legislative scheme, therefore, it was Council that had the authority to set the fees. The Registrar says that the plenary clause does not serve as a blank cheque for a tribunal to take unto itself the jurisdiction accorded to other administrative actors within the system, in this case, the Council.

The RRC simply could not override the authority given to the Council to set the fee. [ 33 ] In my view, this decision of the RRC, that it had no jurisdiction to reduce or refund the filing fee under s 41(6) is defensible in respect of the facts and law ( Dunsmuir at para 47 ). To come to this conclusion one must have regard to the whole of the legislation and the internal bylaws and motions of CARNA. [ 34 ] Ms. Gale does not take issue in this application with the authority of CARNA to pass a bylaw concerning charging a fee for a review of a decision of its Committee: s 41(8) HPA .

CARNA acts through its Council. [ 35 ] The RRC is a delegate of the Council. Council can delegate any of its powers and duties to the RRC, except its power to make bylaws: HPA s 19(1). [ 36 ] In the circumstances, it was reasonable for the RRC to conclude it could not reach a decision which was contrary to the Bylaw and Motion unless it was given clear and explicit authority in the HPA to do so. [ 37 ] It was reasonable for the RRC to conclude that s 41(6) HPA did not constitute the clear and explicit authority necessary for it to reduce or refund the filing fee pursuant to s 41(6).

It was the decision of the Committee with respect to Ms. Gales’ suspension which the RRC was reviewing. Reducing or refunding the filing fee would not be necessary for the purpose of carrying out its decision. [ 38 ] The RRC did reduce the filing fee in accordance, not with s 41(6) but with the Motion. [ 39 ] The Motion passed by Council in addition to setting the filing fee, specified that the filing fee could be “partly refunded to the appellant at the discretion of the committee if the appeal is partly successful.” [ 40 ] The Motion in its entirety is: Motion No. 39 ...

Council sets a fee of $2,500, to be paid in full prior to the review hearing, ... which fee is: (

i) forfeited in the event the appeal is completely unsuccessful; (ii) refunded to the appellant if the appeal is completely successful; or (iii) partly refunded to the appellant at the discretion of the committee if the appeal is partly successful. [ 41 ] The RRC determined that Ms. Gale had been partially successful on the review and, as a result, refunded her $1,250 pursuant to the Motion. [ 42 ] Ms. Gale had raised three issues before the Committee and the RRC. She was successful in her arguments that resulted in a suspension of her licence to practice rather than losing it altogether.

She was not successful on her argument that the Committee process had breached natural justice or in her submission that the fee imposed by CARNA was unacceptable.

[ 43 ] In my view, the RRC was reasonable in considering the result of the review to be partial success by Ms. Gale. C. Was the decision of the RRC to refund only one-half of the filing fee reasonable? [ 44 ] The second part of Ms. Gale’s argument is that the RRC was unreasonable in not refunding the whole of the filing fee. [ 45 ] There are two problems with this contention. The first problem on review before this Court supposes that the RRC had the jurisdiction to give the whole of the fee back.

I have found that the RRC reasonably determined that it did not have such authority. [ 46 ] The second difficulty is that there was no evidence before me by which I could weigh and balance the result to determine if that decision was unreasonable. [ 47 ] Therefore, the Applicant fails on this aspect of the review. The size of the fee is squarely within the knowledge of the Council as to its applicability to the nurses governed by CARNA. [ 48 ] I find that the RRC acted reasonably in exercising its discretion under the Motion to refund one-half of the fee. III. Conclusion [ 49 ] Ms.

Gale’s application for judicial review is dismissed. If the parties are unable to agree on costs, they may appear before me and make submissions in that regard provided they do so within one month of the release of these reasons. Heard on the 2 nd day of October, 2012. Dated at the City of Edmonton, Alberta this 15 th day of November, 2012. A.B. Moen J.C.Q.B.A. Appearances: Ritu Khullar

Chivers Carpenter for the Applicant James T. Casey, QC Lily L.H. Nguyen Field LLP for the Respondent _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice A.B. Moen _______________________________________________________ The appearances have been changed to read: Ritu Khullar Chivers Carpenter for the Applicant James T. Casey, QC Lily L.H. Nguyen Field LLP for the Respondent