Farhat v College of Physicians and Surgeons of Alberta, 2014 ABQB 731

Court of Queen ’ s Bench of Alberta Citation: Farhat v College of Physicians and Surgeons of Alberta, 2014 ABQB 731 Date: 20141202 Docket: 1403 00552 Registry: Edmonton Between: Ziad Farhat Applicant - and - College of Physicians and Surgeons of Alberta Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.L. Pentelechuk _______________________________________________________ I.

Overview [ 1 ] Ziad Farhat applies for judicial review of the Decision of the Review Panel of the Appeals Committee [Review Panel] of the Council of the College of Physicians and Surgeons of Alberta [Council]. The Review Panel dismissed Dr. Farhat’s appeal from the findings of the College of Physicians and Surgeons of Alberta [College] that Dr. Farhat was not competent to practice as a Pediatric Radiologist. Accordingly, he was denied licensing registration with the College. [ 2 ] The issues raised in this judicial review are whether the College complied with its statutory duty of disclosure under section

30(4) of the Health Professions Act , RSA 2000, c H-7 [ HPA ], and whether the assessment of Dr. Farhat’s competency to practise as a pediatric radiologist was procedurally fair. II. Background [ 3 ] The Council of the College establishes different registration categories for physicians under the authority of the HPA and the Physicians, Surgeons and Osteopaths Professional Regulation 350/2009, ss 3(4) and 5(2) [Regulations]. The relevant sections of the HPA and the Regulations are attached as

Schedule ‘A’ to this Judgment. [ 4 ] As a general rule, specialists on the General Register of the College have certification from the Royal College of Physicians and Surgeons of Canada [the RCPSC]. [ 5 ] Section 33(1) of the HPA allows for physicians like Dr. Farhat, who do not have certification with the RCPSC, to apply for licensure for individual practice by applying to the Provisional Register – Physician Undergoing Practice Assessment. [ 6 ] Dr. Farhat graduated from medical school in Russia in 2000, and then completed four years of general radiology in Syria. [ 7 ] Dr.

Farhat was recruited to work at the Alberta Children’s Hospital in Calgary and was placed on the Courtesy Register of the College from November 2009 to October 2011 for the purposes of a fellowship in diagnostic radiology with the University of Calgary. [ 8 ] Dr. Farhat was placed on the Provisional Register- Physician Undergoing Practice Assessment as of October 1, 2012 for the purpose of determining whether he was competent to enter into independent practice.

The application for registration process is outlined in the HPA , ss 28-30. [ 9 ] The Provisional Physician Assessment Program is not a training experience, but rather, a pass/fail assessment. If the physician fails, they are immediately removed from the Register, however, they may reapply for another assessment if they demonstrate to the College that the appropriate remedial measures have been taken to address deficiencies and an appropriate sponsor has been secured. III. The Assessment [ 10 ] The Assessment and Competency Enhancement Department of the College contracted with Dr. Bhargava to conduct Dr.

Farhat’s Preliminary Clinical Assessment at the Stollery Children’s Hospital in Edmonton as the Alberta Children’s Hospital in Calgary, who wished to employ Dr. Farhat, was in a conflict of interest. [ 11 ] The assessment involved six pediatric radiologists, including Dr. Bhargava. They determined Dr. Farhat was not competent to function as Pediatric Radiologist. As a result, his application for individual practice registration was refused. [ 12 ] Dr. Bhargava sent a letter, dated December 3, 2012, to the College summarizing Dr. Farhat’s deficiencies as follows: Dr.

Farhat was assessed from October 29, 2012 to November 23, 2012. This included direct observation of his fluoroscopic skills, ultrasound skills, and interactions with patients and their families. The evaluation also included assessment of 200 reports that Dr. Farhat dictated in ultrasound, CT, MRI, general radiography, and fluoroscopy. In addition, Dr. Farhat was given two exams; a short answer question format exam at the level of a pediatric radiologist and a multiple choice question exam at the level of a diagnostic radiologist.

The results of these assessments were discussed by the assessors as a team and it was felt that Dr. Farhat was NOT competent to function as a pediatric radiologist. We found that Dr. Farhat’s knowledge of clinical pediatric radiology was deficient. He scored less than 40% on the short answer questions for which we should have expected a minimally competent pediatric radiologist to have scored 70%. He scored just over 50% on the multiple choice questions directed at the lower level of a diagnostic radiology resident, where a pass was felt to be a score of 70%.

He was unaware of a number of pathologies and their imaging manifestations that we would have expected a pediatric radiologist to be aware of. He is able to elicit a relevant history accurate to context. We noticed examples where he was unable to recognize emergent conditions and did not appropriately notify referring physicians. We found that his fluoroscopic skills were deficient with resulting high radiation doses. He was felt to be somewhat more competent in general radiographs, ultrasound and CT, but given his overall poor knowledge base he would not be a useful consultant.

He gravitated to read studies that required minimal competence. He was felt to be incompetent in reading MRI studies and had poor detection skills. This, coupled with a deficiency in knowledge, would not allow him to be safe to read or supervise MRI. In terms of his communication skills, he is able to establish a therapeutic relationship and communicate well with patients and their families. His reports however, are deficient and special note was made that there is a lack of recognition of errors in his reports. This resulted in factual errors, typographical errors, and errors in sides (right vs left). [ 13 ] Dr.

Farhat interacted effectively with health professionals, and we have no concerns about his collaborative skills. We were unable to assess his managerial skills, health advocacy skills, or scholarly activity. The Assistant Registrar of the College wrote to Dr. Farhat enclosing Dr. Bhargava’s report stating: Based upon the information supplied by Dr. Bhargava and despite the shortened duration of the assessment, I am concluding that you are not ready for independent practice in this province.

As a result, I won’t be arranging any further assessment as the evidence supplied demonstrates to me that you require further training in order to be considered for licensure in Alberta. IV. Appeal to the Review Panel of the Appeals Committee of the Council of the College [ 14 ] Dr. Farhat appealed the Decision of the College to the Review Panel, raising two procedural issues:

1) The failure of the College to disclose the evaluation records which gave rise to the denial of his registration; 2) His condensed evaluation. [15] Before the appeal hearing, Dr. Farhat requested disclosure under s 30(4) of the HPA which reads as follows: An applicant may, on request, review the documents used by and created by the registrar, registration committee or competencecommittee when considering the applicant’s application. [16] In response, Dr. Bhargava advised that the Stollery Hospital uses a paper-less reporting system and that once Dr.

Farhatdictated his reports and signed off on them, his supervising radiologist would review the report and correct any mistakes. At that point,the report is released into the healthcare system. He advised none of Dr. Farhat’s reports were saved in the system, so nothing wasavailable for release to him. Further, he refused to release the tests or test scores to preserve the validity of the tests for future use. [17] The Review Panel heard the appeal on August 28, 2013 and issued written reasons dismissing the appeal on October 9,2013.

The Review Panel found that the team approach increased the reliability of the assessment results and although the assessmentprocess was new, the group was familiar with and experienced in assessments generally. The Review Panel accepted Dr. Bhargava’sresponse to the disclosure request, found that his letter of December 3, 2012 was sufficient disclosure and that Dr. Farhat was notdeprived of procedural fairness. [18] Further, the Review Panel found that while the assessment was slated for three months, the Letter of Understanding signed byDr. Farhat acknowledged that once Dr.

Farhat had clearly demonstrated or failed to demonstrate the necessary knowledge and skills, theassessment could be concluded by the College. V. Standard of Review [19] The parties disagree on the standard of review applicable to the Review Panel’s

interpretation and application of the College’sduty of disclosure under s 30(4) of the HPA. The College argues the issue involves an

interpretation of its home statute, and as such, theappropriate standard of review is reasonableness. However, Dr. Farhat argues that the issue falls within the category of questions of lawthat are “both of central importance to the legal system as a whole and outside of the [Review Panel’s] specialized area of expertise willbe governed by correctness”: Dunsmuir v New Brunswick, 2008 SCC 9 at paras 55, 60, [2008] 1 SCR 190 [Dunsmuir].

He submits thatthe correctness standard of review should apply to this issue. [20] In Dunsmuir at para 62, the first step of the standard of review analysis requires the Court to ascertain “whether thejurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular categoryof question.” [21] Counsel did not provide any decisions that determine the standard of review for the

interpretation of s 30(4) of the HPA.Nonetheless, I note that there is a presumption that the reasonableness standard applies to a tribunal’s

interpretation of its own statute:Dunsmuir at para 54; Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para 30. [22] The Supreme Court also indicates that “where the first inquiry proves unfruitful, courts must proceed to an analysis of thefactors making it possible to identify the proper standard of review.” The factors to consider at this second stage include: (1) thepresence or absence of a privative clause; (2) the purpose of the tribunal as determined by

interpretation of enabling legislation; (3) thenature of the question at issue, and; (4) the expertise of the tribunal.

Significantly, it is not “necessary to consider all of the factors, assome of them may be determinative in the application of the reasonableness standard in a specific case”: Dunsmuir at paras 62, 64. [23] Of the factors referenced in Dunsmuir, only the absence of a privative clause in the HPA points toward a standard ofcorrectness. [24] The Review Panel is a body or tribunal established by the Council of the College, pursuant to the provisions of the HPA, s 32.The College acts through the Council, its governing body: HPA, ss 5, 6.

The College has a duty to “carry out its activities and govern itsregulated members in a manner that protects and serves the public interest”: HPA, s 3(1). The Review Panel is clearly an expert tribunalin the context of the HPA. The relevant issue involves a question of law and the

interpretation of a provision of the HPA, the ReviewPanel’s home statute. All of these factors point to a reasonableness standard. [25] In my view, the

interpretation of s 30(4) of the HPA is not a question of central importance to the legal system as a whole orto administrative law generally, but is one specific to the administrative regime governing applications for registration of healthcareprofessionals. I conclude that the appropriate standard of review to the issue of the Review Panel’s

interpretation and application of theduty of disclosure under s 30(4) of the HPA is reasonableness. [26] On the issue of procedural fairness, the parties agree that the Court is not required to conduct an assessment of the appropriatestandard of judicial review. Rather, procedural fairness is evaluated on the basis of whether or not the procedures and safeguards adoptedby a tribunal in a particular situation have complied with the duty of fairness: Moreau-Bérubé v New Brunswick (Judicial Council),2002 SCC 11 at paras 74-75, [2002] 1 SCR 249.

I agree with both parties. [27] Thus, in assessing procedural fairness, the question for the Court is whether the proceedings met the level of fairness requiredby law: Goold v Alberta (Office of the Children’s Advocate), 2011 ABCA 63 at para 14, 502 AR 298; Farook v Alberta Colleges ofPharmacies, 2010 ABCA 306 at para 36. This duty of fairness is assessed according to the factors set out by the Supreme Court ofCanada in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at paras 21-28 ,174DLR (4th) 193(WL) [Baker].

VI. Was the Review Panel’s Decision on the Issue of Disclosure Reasonable? [ 28 ] In Dunsmuir at para 47 , the majority of the Supreme Court of Canada explain the standard in the judicial review context as an inquiry into the existence of justification, transparency and intelligibility within the decision making process and whether the decision falls within a range of possible acceptable outcomes. [C]ertain 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 of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision–making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 29 ] It is against this standard that the Review Panel’s Decision must be measured. [ 30 ] As a starting point, the Stinchcombe level of disclosure required in a criminal context does not apply in civil or administrative proceedings: Mission Institution v Khela , 2014 SCC 24 at para 83 , [2014] 1 SCR 502. [ 31 ] The College points out that Dr. Bhargava is not part of the competency committee but rather was contracted by it. It argues a reasonable

interpretation of the HPA , s 30(4) is that compliance with its disclosure obligation is met by providing Dr. Farhat with the documents the College received following his assessment. These documents were Dr. Bhargava’s letter of December 3, 2012 summarizing the areas of deficiency and his letter of February 1, 2013 in response to Dr. Farhat’s letter of appeal. [ 32 ] This Court observes that a basic principle of

interpretation is that

an Act must be read as a whole. Our Court of Appeal recently reiterated this principle stating that: “The Court interpreting must not look only at the precise passage in question and the rules of grammar. It must also use the context and the aim or scheme of the Act ”: Zakhary v College of Physicians and Surgeons of Alberta , 2013 ABCA 336 at para 16 , 561 AR 87. [ 33 ] Sections 29 and 30 of the HPA deal with applications for registration.

Read as a whole, these sections outline basic procedural rights which an applicant is entitled to, including the right to notice of the decision, the right to reasons and the right of appeal. The right to disclosure is part of this framework. [ 34 ] Section 30(4) specifically indicates that the applicant may review the documents used by and created by the registrar, registration committee or competency committee . Dr. Bhargava was contracted by the competency committee and acting with its authority. To suggest documents used by or created by Dr.

Barghava need not be produced because he was contracted to the competency committee is not a reasonable

interpretation of this section. [ 35 ] Further, the

section refers to documents, not merely particulars, which suggests the applicant is entitled to the evidentiary foundation for the decision of the registrar, registration committee or competency committee. [ 36 ] Indeed, the College’s Manual for Assessors and Supervisors conducting Practice Readiness Assessments indicates an interim evaluation report must be completed and submitted to the College six weeks after the assessment has commenced, and a final evaluation report must be completed and submitted to the College within one week following conclusion of the assessment: Certified Record of Proceedings , pp 254-262 [ Certified Record ].

The sample report provided in the Manual directs that documentation be provided to support those competency components that need improvement. [ 37 ] Neither report was completed by Dr. Bhargava. The College argues this Manual serves only as a guide and need not be followed to the letter, but the level of disclosure provided to Dr. Farhat should be compared to that contemplated in the Manual, which outlines a defined assessment process that is open and transparent. [ 38 ] Dr. Farhat was not provided with any documentation to support the deficiencies as determined by Dr.

Bhargava, and outlined in his correspondence of December 3, 2012 and February 1, 2013. The Registrar, in turn, accepted Dr. Bhargava’s letter of December 3, 2012 at face value, without requesting a completed assessment form or any supporting documentation. As a result, Dr. Farhat was deprived of the evidentiary foundation to Dr. Bhargava’s conclusion that he was not competent to practice as a pediatric radiologist. [ 39 ] In its reasons, the Review Panel found that the December 3, 2012 letter “contained sufficient detail and specificity to allow the College to reliably make a decision respecting Dr.

Farhat’s application for registration.” In my opinion, section 30(4) of the HPA is for the benefit of the applicant , and in focusing on whether the College had sufficient detail regarding Dr. Farhat’s registration application, the Review Panel was dismissive of Dr. Farhat’s statutory right to the documents used by or created by the assessment team. [ 40 ] The Review Panel failed to provide reasons for why it accepted Dr. Bhargava’s refusal to release the test scores in order to preserve the integrity of the test questions. By comparison, the Medical Council of Canada Evaluating Examination, which Dr.

Farhat successfully passed, allows the physician to receive supplemental feedback on their examination performance, which information assists in interpreting their performance and to identify relative strengths and weaknesses. Further, an explanation regarding the scoring of the examination can be accessed: Certified Record , p 281. [ 41 ] The Review Panel also failed to provide reasons for why it accepted Dr. Bhargava’s explanation that the various diagnostic reports prepared by Dr. Farhat were not retained and therefore could not be provided to him. [ 42 ] There is nothing in the Record to indicate Dr.

Farhat’s diagnostic reports could not have been saved, had Dr. Bhargava and the assessment team chosen to do so. [ 43 ] The College argues that Dr. Farhat’s

interpretation of the HPA , s 30(4) would allow Dr. Farhat to indirectly access records which he could not access directly under the Health Information Act , RSA 2000, c H-5 [ HIA ] and the Freedom of Information and

Protection of Privacy Act, RSA 2000, c F-25. I disagree. [44] Under the HIA, Dr. Bhargava would be designated a “custodian” under s 1(1)( f)(ix). The relevant regulation is: s 2(2)(

i) ofthe Health Information Regulation, Alta Reg 70/2001, which reads:

(2) For the purposes of section 1(1)(f)(ix) of the Act, the following are designated as custodians: … (

i) Regulated members of the College of Physicians and Surgeons of Alberta; [45] Section 32(1) of the HIA allows a custodian to disclose “non-identifying health information” for any purpose. Further, underthe HIA, s 35(1)(p), a custodian may disclose individually identifying diagnostic, treatment and care information without the patient’sconsent, if the disclosure is authorized or required by an enactment of Alberta or Canada. [46] There is nothing in the Record to suggest that Dr.

Farhat’s diagnostic reports, had they been retained, could not have had theidentifying patient information redacted, but in any event, it appears Dr. Bhargava was authorized to release the reports under theauthority of s 35(1)(

p) of the HIA. [47] The Provisional Register- Physician Undergoing Practice Assessment is apparently new and Dr. Farhat’s assessment team wasunfamiliar with the process. The Record does not disclose whether Dr. Farhat was provided with the Assessment Manual. Indeed,counsel acknowledged the Manual was not before the Review Panel. This perhaps explains the incongruity between the process outlinedin the Manual and process followed with Dr.

Farhat, and why the Review Panel emphasized the assessment team’s familiarity andexperience with assessments generally. [48] The Review Panel held the disclosure was sufficient, even though none of the documents used by or created by Dr. Bhargavaand the assessment team were provided. In doing so, the Review Panel relied on the experience and qualifications of the assessment teamas the support for its finding that the conclusions reached by Dr. Bhargava were reliable.

This is somewhat akin to accepting an expert’sconclusory opinion without requiring the factual underpinnings or the evidentiary foundation to that opinion. [49] In my view, the Review Panel did not demonstrate the necessary justification, transparency and intelligibility within itsDecision, and its conclusion that Dr.

Farhat was provided with adequate disclosure under s 30(4) of the HPA does not fall within a rangeof possible, acceptable outcomes which are defensible in respect of the facts and law. [50] While it is not necessary, in light of my finding, to address whether there was a breach of procedural fairness, this issue wasargued by the parties, so I will briefly comment. VII.

Was there a Breach of the Duty of Procedural Fairness? [51] Both parties agree that a duty of procedural fairness applies to the Review Panel’s decisions that affect “the rights, privilegesor interests of an individual”: Cardinal v Director of Kent Institute, (SCC), [1985] 2 SCR 643 at para 14, [1985] SCJNo 78 [Cardinal]. [52] As earlier indicated, in assessing whether or not there has been a breach of procedural fairness, the Dunsmuir standard ofreview analysis is not engaged.

The material inquiry in this regard focuses on the question whether the proceedings met the requiredlevel of fairness: Farook at para 36: Goold at para 14. [53] As the starting point, the duty of procedural fairness is flexible, variable and contextual in nature.

Procedural fairness ensuresthat administrative decisions are made using a fair, impartial, open and transparent process that provides those affected by the decisionan opportunity to know the case against them and to fully put forth their views and the evidence they wish the decision-making body toconsider. [54] As indicated earlier, the Supreme Court in Baker at paras 21-28 outlines five factors to consider in the context of the duty ofprocedural fairness in the administrative law context.

They include: (1) the nature of the decision being made and process followed inmaking it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance ofthe decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) thechoices of procedure made by the agency itself.

Given my earlier analysis – under the disclosure issue – of the nature of the HPA andassociated Regulations, being the statutory scheme and the terms of the statute pursuant to which the College and the Review Paneloperate, I will now turn to address each of the remaining factors in the context of the evidence before me. The nature of the decision being made and the process followed in making it [55] Generally, the more the administrative process is like a judicial process, the more likely the procedural protections afforded ina trial model will be required. Dr.

Farhat was afforded the right to make both written and oral submissions, but witnesses did not testify.The Review Panel was obliged to provide reasons for its Decision and Dr. Farhat had a statutory right to disclosure. The importance of the decision to the individual affected [56] It is recognized, for example, that a higher standard of justice is required when the right to continue in one’s profession oremployment is at stake. The Review Panel refused Dr. Farhat’s application for licensure as an independent physician, the result beingthat he continues in the capacity of a student or resident. Dr.

Farhat may reapply upon satisfying the College that he has addressed theidentified deficiencies and providing he has a sponsor. The legitimate expectations of the person challenging the decision

[ 57 ] A higher duty of procedural fairness will be imposed if the claimant has a legitimate expectation that a certain procedure will be followed or that a certain result will be reached in their case. This takes into account the promises or regular practices of the decision- makers and the consideration that it is generally unfair to act in contravention of representations as to procedure. [ 58 ] The Record does not indicate whether Dr. Farhat was provided with a copy of the Applicant’s Manual for Practice Readiness Assessments. In my view, he was entitled to receive this.

The Manual indicates clinical objectives are to be identified and that the applicant and the assessor review those objectives at the first meeting. The Manual also indicates the assessor is required to submit formal evaluation reports of the applicant’s performance at prescribed intervals, and that both parties should review and sign the evaluation reports before submitting them to the College. [ 59 ] While the Manual suggests the clinical assessment should be three months in length, both the Manual and the Letter of Understanding signed by Dr.

Farhat indicate the assessment would be terminated in the event concerns are identified about patient safety or inappropriate conduct by the applicant: Certified Record , p 51. The choices of procedure made by the agency itself [ 60 ] This mandates respect for the choices of procedure made by the agency itself, particularly when the statute leaves the tribunal or agency with the ability to choose its own procedure, or when the tribunal or agency has expertise in determining the appropriate procedures. [ 61 ] Dr. Bhargava was advised that he could terminate the assessment once he determined that Dr.

Farhat either did or did not definitively meet the required level of competence. I find the decision to conclude the assessment, in and of itself, did not deprive Dr. Farhat of procedural fairness as the College – and invariably the Review Panel – has control over its own process. [ 62 ] The shortened assessment of less than four weeks, however, underscores the need to provide Dr. Farhat with sufficient detail and supporting documentation which would allow him to make full answer and defence before the Review Panel. Disclosure is mandated by the HPA , s 30(4). The letters of Dr. Bhargava do not permit Dr.

Farhat to fully understand the case against him and do not allow him to make full answer and defence to the College’s refusal to license him. The letters merely summarized Dr. Bhargava’s professional opinion that Dr. Farhat is not qualified to practice as a pediatric radiologist. [ 63 ] In considering the five factors outlined in Baker , and the statutory duty of disclosure under s 30(4) of the HPA , I find the degree of procedural fairness owed to Dr. Farhat to be relatively high and it was not met in this case. [ 64 ] To rebut Dr.

Bhargava’s conclusions, the College suggests physicians from the Alberta Children’s Hospital could have vouched for Dr. Farhat’s skills. This is not a compelling argument as this institution, and the physicians that practice within it, were conflicted and unable to perform his assessment. Presumably, the Review Panel would have placed limited weight on such evidence. [ 65 ] The College also argues that imposing unreasonable or inappropriate procedural requirements on busy specialists, like Dr.

Bhargava, will send a “chill” through the assessment process and grind it to a halt as physicians will be reluctant to act as assessors if they face too many administrative obligations. [ 66 ] First, there is nothing in the Record to indicate that it was impossible to print off a selection of Dr. Farhat’s diagnostic reports to demonstrate the deficiencies noted by Dr. Bhargava or to develop some means of summarizing the content of the tests written, as is done for physicians taking the Medical Council of Canada Evaluating Examination.

Nor does the Record indicate such disclosure would impose an undue burden on the College. [ 67 ] The College’s own Manual indicates an evaluation process far more structured and interactive than that afforded Dr. Farhat. The Manual speaks of providing feedback. Dr. Bhargava did not do so, as he understood he did not have to. The Manual speaks of developing an explicit set of objectives to be reviewed with the applicant at the start of the assessment, as well as reports being prepared at six weeks and at the conclusion of the assessment, to be reviewed with and signed by the applicant.

These steps were not done or followed. [ 68 ] There is nothing to suggest the assessment team was not imminently qualified to assess Dr. Farhat’s competence. The issue is not whether the conclusion reached in the assessment is correct, but whether the assessment was conducted fairly. [ 69 ] As stated in Cardinal at para 23 , denial of a right to a fair hearing must always render a decision invalid because it is an independent, unqualified right that any person affected by an administrative decision is entitled to have. What impact a fair hearing may have had on the decision, is not relevant.

An unfair assessment cannot be justified by reference to the stellar qualifications, experience or expertise of those conducting the assessment. IV. V. Conclusion [ 70 ] The Decision of the Review Panel is quashed. [ 71 ] Dr. Farhat is entitled to a new assessment to be overseen by a new assessor, in accordance with the Practice Readiness Assessment Manual. A new assessment is necessary as the documentation which would support the competency deficiencies noted by Dr. Bhargava was not retained.

Heard on the 13 th day of November, 2014. Dated at the City of Edmonton, Alberta this 2 nd day of December 2014 . Dawn Pentelechuk J.C.Q.B.A. Appearances: Kenneth W. Fitz McLennan Ross LLP for the Applicant Ziad Farhat Craig D. Boyer Shores Jardine LLP for the Respondent College of Physicians and Surgeons of Alberta

Schedule A 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 Annual report 4

(1) A college must submit to the Minister an annual report of its activities in a form acceptable to the Minister that contains the information requested by the Minister, including but not restricted to (

a) a statement respecting the number of complaints made and their disposition, including the number of hearings closed to the public in whole or in part, the number of appeals and the number of regulated members dealt with under

section 118 ; (

b) information respecting registration; (

c) a description of and information about the college’s continuing competence program; (c.1) a description of and information about inspections under

Part 3.1; (

d) whether the college has an approval under

section 27 and, if so, a statement describing how it is complying with conditions imposed on the approval, if any; (

e) a statement respecting the committees and tribunals established under this Act; (

f) audited financial information or financial information in a form and manner satisfactory to the Minister.

(2) On receipt of a report under subsection (1), the Minister must lay a copy of it before the Legislative Assembly if it is then sitting or, if it is not then sitting, within 15 days after the commencement of the next sitting.

(3) The Minister may, to ensure that the requirements of this Act are met, require reports from the college in addition to the annual report under subsection (1). RSA 2000 cH-7 s4; 2008 c34 s3 Council, President and Registrar Council established 5

(1) The governing body of a college is the council.

(2) The council consists of the president and (

a) the regulated members provided for in the bylaws, (

b) the non-voting members, if any, provided for in the bylaws, and (

c) subject to section 12(1) , the number of public members appointed by the Lieutenant Governor in Council.

(3) The president and members described in subsection (2)(

a) and (

c) are the voting members of the council.

(4) A member described in subsection (2)(a), (

b) or (

c) continues to hold office after the expiry of the member’s term until the member is reappointed or re-elected or a successor is appointed or elected.

(5) Despite

section 12 , if a member described in subsection (2)(a), (

b) or (

c) is not capable of carrying out the powers and duties of a member, the council may continue to carry out its powers and duties until a successor is appointed or elected. 1999 cH-5 .5 s5 Council ’ s role 6 A council manages and conducts the activities of the college, exercises the rights, powers and privileges and carries out the duties of the college in the name of and on behalf of the college and carries out the powers and duties of the council under this Act and the bylaws. 1999 cH-5 .5 s6 President 7 A council must appoint, elect or provide for the appointment or election of an individual to be president for the purposes of this Act. 1999 cH-5 .5 s7 Registrar 8 A council must appoint or provide for the appointment of an individual as registrar for the purposes of this Act.

1999 cH-5 .5 s8 Committees and Tribunals Registration committee 9

(1) A council (

a) may establish a registration committee consisting of no fewer than 3 members, the majority of which must be regulated members, and (

b) if a registration committee is established, must designate a member of that committee to act as chair.

(2) A member of a registration committee continues to hold office after the expiry of the member’s term until the member is reappointed or a successor is appointed.

(3) Despite subsection (1), if a member of a registration committee is not capable of carrying out the powers and duties of a member, the registration committee may continue a review of an application in which the member was participating, and the registration committee may carry out its powers and duties with respect to that review.

(4) A registration committee may, (

a) if provided for in the bylaws, review an application for registration, and (

b) undertake any other power or duty given to it under this Act or the bylaws. 1999 cH-5 .5 s9 Competence committee 10

(1) A council (

a) may establish a competence committee, and (

b) must establish the competence committee if the college is authorized by regulation to undertake practice visits.

(2) A competence committee must consist of no fewer than 3 members appointed by the council and the majority of members must be regulated members and the council must designate a member of that committee to act as chair.

(3) A council may, by bylaw, direct the registration committee to carry out the powers and duties of a competence committee except those described in subsection (6)(b).

(4) A member of a competence committee continues to hold office after the expiry of the member’s term until the member is reappointed or a successor is appointed.

(5) Despite

section 12 , if a member of a competence committee is not capable of carrying out the powers and duties of a member, the competence committee may continue to conduct a practice visit in which the member was participating, and the competence committee may carry out its powers and duties with respect to that practice visit.

(6) A competence committee (

a) may make recommendations to the council on continuing competence requirements and the assessment of those requirements, (

b) may, if authorized by the regulations, provide for practice visits as part of the continuing competence program and conduct a practice visit of regulated members, and (

c) may undertake any other power or duty given to it under this Act or the bylaws.

(7) Despite subsection (6) and

section 20 , if a competence committee is authorized to conduct practice visits it shall not carry out any powers or duties under sections 28 to 30 . RSA 2000 cH-7 s10; 2008 c34 s4 Competence committee appointee 11 A competence committee may appoint one or more persons who have technical expertise or other relevant knowledge to inquire into and report to the competence committee with respect to any matter related to any power or duty of the competence committee. RSA 2000 cH-7 s11; 2007 c32 s1(3) Required public members 12

(1) Twenty-five percent of the voting members of a council, a complaint review committee and a hearing tribunal and of a panel of any of them must be public members but with the consent of the council the percentage of the public members may be greater than 25%.

(2) Despite the bylaws governing quorum, the number of public members required by subsection (1) must be present at an appeal under

Part 4 before a council, a ratification of a settlement and a review by a complaint review committee and a hearing by a hearing tribunal.

(3) Despite subsections (1) and (2), the powers and duties of a council, complaint review committee or hearing tribunal or a panel of any of them are not affected by a vacancy in the office of a public member for up to 6 months from the date that the

schedule to this Act that governs the college comes into force. RSA 2000 cH-7 s12; 2007 c32 s1(4) 1999 cH-5 .5 s27

Part 2 Registration Applying for Registration Application for registration 28

(1) An application for registration as a regulated member is complete for the purpose of consideration under section 29(3) if it is in the required form and given to the registrar by the applicant along with (

a) evidence of meeting the requirements for competence in the practice of the profession as required by subsection (2), (

b) the application fee provided for in the bylaws, (

c) evidence of having the amount and type of professional liability insurance, if required by the regulations, (

d) evidence of being a Canadian citizen or a person lawfully permitted to work in Canada, if required by the regulations, (

e) evidence of having good character and reputation, if required by the regulations, (

f) evidence of meeting standards of language proficiency, if required by the regulations, and (

g) information required by the registrar under section 33(4) (b).

(2) An applicant may provide evidence of competence in the practice of the profession (

a) by fulfilling one or more of the following as required by the regulations: (

i) education requirements, that may include being enrolled in a program of studies, (ii) experience requirements, (iii) successful completion of examinations, or (iv) holding certificates or diplomas, (

b) by being registered with a profession in another jurisdiction recognized by the regulations or the council as having substantially equivalent competence and practice requirements and meeting the requirements for persons to be registered with that profession in that jurisdiction, or (

c) by satisfying the registrar, the registration committee or competence committee, of having as determined in accordance with the regulations, a combination of education, experience, practice or other qualifications, that demonstrates the competence required for registration as a regulated member.

(3) If there are reasonable and probable grounds to be of the opinion that an applicant by engaging in the regulated profession as a regulated member would create a danger to the public or be unsafe because of a disability or incapacity, the registrar, the registration committee or competence committee may require an applicant for registration to undergo physical or mental examinations by a person agreed on by the applicant and the registrar, registration committee or competence committee or, failing an agreement, designated by the registrar, registration committee or competence committee for the purpose of assisting the registrar, registration committee or competence committee in determining whether the applicant by engaging in the regulated profession as a regulated member would create a danger to the public or be unsafe.

RSA 2000 cH-7 s28; 2007 c32 s1(7) Receipt of application 29

(1) The registrar must, as soon as reasonably possible, on receipt of an application for registration as a regulated member, give notice to the applicant that the application has been received, whether it is complete and if it is not complete, why it is not complete.

(2) When an incomplete application is made complete by the applicant the registrar must, as soon as reasonably possible, give notice to the applicant that a complete application is received.

(3) On receipt of a complete application by the registrar, the registrar, registration committee or competence committee, as provided for in the bylaws, must consider the application, and make a decision under

section 30 and notify the applicant of the decision as soon as reasonably possible.

(4) An application for registration as an other member under section 33(1) (

b) must be considered by the college in accordance with the bylaws. 1999 cH-5 .5 s29 Decision on application 30

(1) On considering a complete application for registration as a regulated member, the registrar, the registration committee or the competence committee, as provided for in the bylaws, must (

a) approve the application, (

b) defer registration if in the opinion of the registrar, registration committee or competence committee it is in the best interest of the public to defer the registration of the applicant until the applicant complies with conditions imposed by the registrar, registration committee or competence committee, or (

c) refuse the application for registration.

(2) The registrar, registration committee or competence committee may impose conditions on an approval under subsection (1)(

a) that in the opinion of the registrar, registration committee or competence committee are in the best interest of the public.

(3) On making a decision under subsection (1), the registrar, registration committee or competence committee must (

a) give notice of the decision to the applicant, (

b) in the case of the registration committee or competence committee, give notice of the decision to the registrar, and (

c) in the case of a decision to impose conditions on an approval, to defer a registration or to refuse an application, give reasons for the decision and notify the applicant as to how the applicant may request a review of the decision under

section 31 .

(4) An applicant may, on request, review the documents used by and created by the registrar, registration committee or competence committee when considering the applicant’s application.

(5) If the applicant is not notified of the decision under this

section by the date that is 120 days after notice was given under

section 29 that the application for registration is complete, the applicant may request a review under

section 31 . 1999 cH-5 .5 s30; 2000 c15 s4(7) Review application 31

(1) An applicant whose application for registration is accepted subject to conditions or whose registration is deferred or whose application is refused by the registrar, registration committee or competence committee may, within 30 days after being given a copy of the decision, request a review by the council in accordance with subsection (3).

(2) An applicant who is not notified of a decision by the date described in section 30(5) may, within 30 days from that date, request a review by the council in accordance with subsection (3).

(3) A request for a review must (

a) be in writing, (

b) set out the reasons why the application for registration should be approved with or without conditions, and (

c) be given to the registrar, who must give a copy of the request to the council.

(4) On being given a request for a review, the registrar must, within 30 days, notify the applicant of the date, time and place at which the council will conduct the review.

(5) A review must be commenced not later than 60 days after the registrar is given the request for a review.

(6) The college may, in accordance with the bylaws, charge a fee for a review. 1999 cH-5 .5 s31 Review of registration decision 32

(1) An applicant and the registrar, the registration committee or competence committee may appear with or without counsel and make representations to the council at a review.

(2) On reviewing a decision pursuant to a request for a review under

section 31 , the council may

(

a) confirm, reverse or vary the decision of the registrar, registration committee or competence committee and make any decision that the registrar, registration committee or competence committee could have made, (

b) refer the matter back to the registrar, registration committee or competence committee and direct the registrar, registration committee or competence committee to make a further assessment of the application and make a decision under

section 30 on the application, and (

c) make any further order the council considers necessary for the purposes of carrying out its decision.

(3) The council must conduct the review as soon as reasonably possible and on making a decision must give the applicant and the registrar a copy of its decision with the reasons for the decision. 1999 cH-5 .5 s32 Registration Registers of members 33

(1) A council (

a) must establish, in accordance with the regulations, a regulated members register for one or more categories of members who provide professional services of the regulated profession, and (

b) may, in accordance with the bylaws, establish other members registers for one or more categories of non-regulated members.

(2) The name of a regulated member who is suspended remains in the register.

(3) The registrar must enter the following information for each regulated member in the appropriate category of register established under subsection (1)(a): (

a) the full name of the member; ALBERTA REGULATION 350/2009 Health Professions Act PHYSICIANS, SURGEONS AND OSTEOPATHS PROFESSION REGULATION

Definitions 1 In this Regulation, (a) “Act” means the Health Professions Act ; (b) “College” means the College of Physicians and Surgeons of Alberta; (c) “Competence Committee” means the competence committee of the College; (d) “Complaints Director” means the complaints director of the College; (e) “Council” means the council of the College; (f) “courtesy register” means the courtesy register category of the regulated members register; (g) “emergency register” means the emergency register category of the regulated members register; (h) “general register” means the general register category of the regulated members register; (i) “limited practice register” means the limited practice register category of the regulated members register; (j) “provisional register” means the provisional register category of the regulated members register; (k) “Registrar” means the registrar of the College; (l) “students register” means the students register category of the regulated members register; (m) “telemedicine register” means the telemedicine register category of the regulated members register.

Register categories

2 The regulated members register established by the Council under section 33(1)(

a) of the Act has the following categories: (

a) general register; (

b) provisional register; (

c) limited practice register; (

d) courtesy register; (

e) emergency register; (

f) telemedicine register; (

g) students register. Registration General register 3

(1) An applicant for registration as a regulated member on the general register must (

a) have received a medical or an osteopathic medical degree from a program approved by the Council, (

b) have successfully completed post-graduate medical training approved by the Council, and (

c) have successfully completed the registration examination approved by the Council.

(2) An applicant must have completed the requirements set out in subsection (1) within the 3 years immediately preceding the date the Registrar receives a complete application.

(3) If an applicant is unable to meet the requirements set out in subsection (2), the applicant must (

a) within the 3 years immediately preceding the date the Registrar receives the complete application, have been registered in good standing and carried on an active practice in a jurisdiction that regulates the practice of medicine or osteopathy, or (

b) demonstrate to the satisfaction of the Registrar that the applicant is currently competent to practise medicine or osteopathy.

(4) For the purposes of subsection (3)(b), the Registrar may require an applicant to undergo any examination, testing, assessment, training or education that the Registrar considers necessary. Equivalent jurisdiction 4 An applicant for registration as a regulated member on the general register who is currently registered as a physician, surgeon or osteopath in good standing in another jurisdiction recognized by the Council under section 28(2)(

b) of the Act as having substantially equivalent registration requirements to the registration requirements set out in

section 3 may be registered on the general register. Substantial equivalence 5

(1) An applicant for registration who does not meet the registration requirements under

section 3 but whose qualifications have been determined by the Registrar under section 28(2)(

c) of the Act to be substantially equivalent to the registration requirements under

section 3 may be registered on the general register.

(2) In determining whether an applicant’s qualifications are substantially equivalent under subsection (1), the Registrar may require the applicant to undergo any examination, testing or assessment activity the Registrar considers necessary.

(3) For the determination under subsection (2), the Registrar may use the services of experts and other resources to assist with the examination, testing or assessment activity.

(4) The Registrar may require an applicant to pay all the costs incurred under subsections (2) and (3).

(5) The Registrar may require an applicant under subsection (1) to undergo any education or training activities the Registrar considers necessary in order for the applicant to be registered.

(6) The Registrar may require an applicant under subsection (1) to provide any other relevant information or evidence that the Registrar considers necessary in order to assess an application under this section. Provisional register 6

(1) Subject to subsection (2), an applicant for registration as a regulated member may be registered on the provisional register if the applicant has successfully completed all the requirements for the granting of a medical or an osteopathic medical degree from a medical program approved by the Council and the applicant (

a) has not passed the registration examination approved by the Council,

(

b) is enrolled in a program of post-graduate medical training in Alberta approved by the Council, (

c) is undergoing an assessment of qualifications for the purpose of determining substantial equivalency under

section 5 , or (

d) is engaged in education or training activities for the purpose of registration under

section 5 .

(2) Every regulated member registered on the provisional register must practise in accordance with the conditions specified by the Registrar.