Campkin v College of Social Workers of Alberta, 2017 ABQB 358

Court of Queen’s Bench of Alberta Citation: Campkin v College of Social Workers of Alberta, 2017 ABQB 358 Date: 20170601 Docket: 1603 02827 Registry: Edmonton Between: Kenneth David Campkin Applicant - and - College of Social Workers of Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice K.P. Feehan _______________________________________________________ I .

Introduction [ 1 ] Kenneth Campkin (“Campkin”) brings an Originating Application for judicial review arising out of Reasons for Decision on certain preliminary applications, issued by the Hearing Tribunal of the Alberta College of Social Workers (“College”) dated December 11, 2015.

There are three preliminary issues before this Court as threshold questions to be addressed before the substantive issues raised by the parties: 1. whether the preliminary applications raised by Campkin before the Hearing Tribunal should be addressed on judicial review, or whether they are more appropriately addressed through the administrative appeal process under the Health Professions Act , RSA 2000, c. H-7, as amended (the “Act”);

2. if the preliminary applications raised by Campkin are more appropriately addressed through the administrative process set out in the Act , whether a Hearing Tribunal must first address the full substantive issues raised in the complaints against Campkin, or whether the decision of the Hearing Tribunal on the preliminary applications should go directly to appeal under the provisions of the Act; and 3. if the Hearing Tribunal is to address the full substantive issues raised in the complaints against Campkin, either before or after appeal on the preliminary applications, whether the tribunal, as currently constituted, should recuse itself on the basis of reasonable apprehension of bias.

II. History of the Complaint [ 2 ] Campkin made an application to become a Registered Social Worker with the College in September, 2005. His application was originally denied by the Registrar of the College on October 7, 2005. Campkin appealed the decision of the Registrar on October 11, 2005 and the Council of the College granted him provisional registration, subject to significant conditions, on March 16, 2006. [ 3 ] On December 7, 2009, Campkin was found to have met all the conditions placed on his registration and they were removed.

Since that time, Campkin has been practicing as a Registered Social Worker in Alberta, and continues to do so throughout this process. [ 4 ] In 2008, Campkin also applied for registration with the British Columbia College of Social Workers (“BCCSW”) and that application was denied.

In 2009, Campkin submitted a second application in British Columbia, which rejection was upheld in January, 2011, after two appeals, on the basis that he did not have “good character”. [ 5 ] In April, 2006, the Trade Investment and Labour Mobility Agreement (“TILMA”) was reached between British Columbia and Alberta, setting out labour mobility provisions which came into force in April, 2009.

In April, 2011, Campkin initiated a complaint with the Alberta government under TILMA against the British Columbia government for its alleged breach of that agreement arising out of his rejection for registration in British Columbia.

In 2012, the TILMA panel ruled in favour of the British Columbia government, with the result that Campkin was not registered in British Columbia. [ 6 ] The College alleges that during the course of the TILMA proceedings, certain facts came to light regarding Campkin that were not known to the College when it granted him provisional registration in 2006 and then removed conditions in 2009. [ 7 ] As a result, the Registrar of the College filed a complaint against Campkin to the Complaints Director of the College pursuant to s 54 of the Act .

The complaint, and the subsequent Notice of Hearing issued by the Hearings Director set out 15 particulars, only four of which are relevant to this application: 11. You lied to the investigator and attempted to falsify information with respect to the Nova Scotia Association of Social Worker (“NSASW”) proceedings in 2003. 12. That you have deliberately misled regulatory bodies about your conduct specifically: i. the NSASW (2003); ii. the GSCC [General Social Care Council, United Kingdom] (2006); ... iv. the BCCSW (2006). 13.

That you misrepresented your registration status and employment status to the GSCC in an application in 2014. ... 14. That your declaration of bankruptcy in 2006 was, in part, intended to avoid your financial obligations relating to the Nova Scotia disciplinary proceedings. [ 8 ] The complaint was originally referred by the Complaints Director to an Investigator pursuant to s 55(2)(

d) of the Act . Upon completion of the investigation, the Complaints Director referred the complaint to the Hearings Director for a hearing pursuant to s 66(3) (

a) of the Act. [ 9 ] On June 11, 2015, the Hearings Director issued a Notice of Hearing pursuant to s 77(

a) of the Act with respect to the complaint, including the relevant particulars 11, 12(i), (ii) & (iv), 13 and 14, set out above. [ 10 ] On July 3, 2015, counsel for Campkin corresponded to the Hearings Director challenging the jurisdiction of the Hearing Tribunal to address those particulars set out above. Counsel directed the Hearings Director to s 94 of the Act and asked her to strike from the Notice of Hearing those particulars as falling outside the jurisdiction of the College.

Section 94 of the Act reads: Non-Prejudicial orders A hearings director may make any order with respect to clerical and administrative matters that the hearings director considers necessary to prevent prejudice to the investigated person. [ 11 ] On July 8, 2015, counsel for the Hearings Director responded to counsel for Campkin opining that the “issues addressed in your correspondence do not relate to clerical or administrative matters” and the alleged “jurisdictional issues do not relate to procedural

and administrative issues”.

Counsel for Campkin was advised to raise the jurisdictional issues as preliminary applications before the Hearing Tribunal. [ 12 ] The Hearing Tribunal held a public hearing on October 7, 2015. [ 13 ] At the hearing of the Hearing Tribunal, Campkin made two preliminary applications: 1. that the above relevant provisions of the complaint be struck on jurisdictional grounds; and 2. that the Hearing Tribunal recuse itself following consideration of this preliminary application on any further substantive applications on the basis of a reasonable apprehension of bias. [ 14 ] On December 11, 2015, the Hearing Tribunal issued its Reasons for Decision.

Firstly, with respect to particulars 11, 12(i), (ii) & (iv), and 13, it determined that it did have jurisdiction since they related to whether Campkin may have contravened the College’s Standards of Practice or Alberta legislation, and may have committed unprofessional conduct, and with respect to particular 14, that the complaint was also within the jurisdiction of the College since it related to conduct that may harm the integrity of the social work profession in Alberta. [ 15 ] Secondly, the Hearing Tribunal determined that its adjudication of the preliminary application and the jurisdictional issues raised by Campkin did not create a reasonable apprehension of bias on the part of the Hearing Tribunal, such that the tribunal could continue to hear and decide on the merits of the complaints contained in the Notice of Hearing. [ 16 ] On February 17, 2016, counsel for Campkin filed both the Originating Application for Judicial Review, which brings the matter before this Court, and an appeal to the Council of the College of the preliminary determinations by the Hearing Tribunal pursuant to s 87 of the Act .

III. The

Section 94/Section 87 Health Professions Act Issue [ 17 ] The relevant provisions of s 94 of the Act have been set out above.

In juxtaposition to that provision is s 87(1) of the Act: An investigated person or the complaints director, on behalf of the college, may commence an appeal to the council of the decision of the hearing tribunal by written notice of appeal.... [ 18 ] The first issue before this Court is whether an interlocutory determination of the Hearing Tribunal on these preliminary applications may be the subject of judicial review when the Act specifically sets out a right of internal appeal within the College’s administrative framework, and thereafter a direct appeal to the Court of Appeal of Alberta. [ 19 ] Counsel for Campkin argued that the Hearings Director was wrong when she determined not to address the jurisdictional issues raised as “clerical and administrative matters” pursuant to s 94 of the Act but sent the matter to the Hearing Tribunal to determine those issues as preliminary applications pursuant to s 72 of the Act.

He argued that the decision of the Hearings Director to refer this matter to the Hearing Tribunal should not change the characterization of the decision made; it was fundamentally a decision of the Hearings Director not to make the jurisdictional determinations requested as clerical and administrative matters necessary to prevent prejudice to the investigated person.

He argued that if these jurisdictional concerns had been addressed by the Hearings Director as they should have been, there would be no doubt that judicial review would be available from her decision, as there is no mechanism in the Act for an internal appeal of a clerical or administrative decision of the Hearings Director pursuant to s 94 of the Act. [ 20 ] He relies upon the decision of Justice Ross in Zakhary v College of Physicians and Surgeons of Alberta , 2012 ABQB 623 , where she held that while there was a statutory right of appeal from a decision of a Hearing Tribunal pursuant to s 87 of the Act , that right of appeal did not apply to decisions of the Registrar of the College of Physicians and Surgeons of Alberta under s 119(1) of the Act by which the Registrar determined to publish or distribute the results of a disciplinary hearing and imposition of sanctions against a member after the decision of a Hearing Tribunal. [ 21 ] There are three fundamental problems with this argument.

Firstly, the decision of the Hearing Tribunal confirmed: “Mr. Fitz stated that the applicability of s 94 was no longer of concern to the Member and that the Member consented to the Hearing Tribunal adjudicating and deciding on the jurisdictional issues.” Counsel cannot now say that in essence the judicial review is from the decision of the Hearings Director under s 94 of the Act . [ 22 ] Secondly, Campkin did not bring a judicial review application of the decision of the Hearings Director at the time that she determined not to act under s 94 of the Act but to send the matter to the Hearing Tribunal.

That decision was made no later than July 8, 2015. The Alberta Rules of Court provide that an Originating Application for judicial review must be filed and served within six months after the date of that decision (Rule 3.15(2)); that is, on or before January 8, 2016.

No such Originating Notice was filed with respect to the decision of the Hearings Director before that date, and the current Originating Notice, if it could be stretched to include a request for judicial review of that original decision, which it cannot, was not filed until February 17, 2016. [ 23 ] Thirdly, in the brief filed in this application, Campkin submitted that the standard of review should be correctness because the jurisdictional questions raised were “questions of general law that are both of central importance to the legal system as a whole and outside the tribunal’s specialized area of expertise”, based upon the Supreme Court of Canada decision in Dunsmuir v.

New Brunswick , 2008 SCC 9 at paras 58-61 . [ 24 ] In that case, the Supreme Court of Canada said with respect to the determination of jurisdictional questions: Administrative bodies must also be correct in their determination of true questions of jurisdiction or vires ....“Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise

where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. Thetribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline ofjurisdiction....These questions will be narrow. (at para 59) [25] The standard of review of correctness with respect to such true questions of jurisdiction has been considerably narrowed sinceDunsmuir.

In Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 , [2011] 3 S.C.R.471 at para 24, the Supreme Court of Canada held that issues which might have “previously been considered to be jurisdictional” shouldnow be considered under the standard of review analysis in order to determine whether a standard of correctness or of reasonablenessshould apply, because the decision-maker may have expertise in the matter and be in a better position than a court to determine the scopeof this jurisdiction. The Court said that if the issue relates to the

interpretation and application of the tribunal’s own statute, is within itsexpertise, and does not raise issues of general legal importance, the tribunal will be entitled to deference and the standard ofreasonableness will generally apply (see also Régimbald, G., Canadian Administrative Law, 2nd, 2015 at 466-469).

Additionally, inAlberta (Information and Privacy Commissioner) v Alberta Teachers Association, 2011 SCC 61 , [2011] 3 SCR 654, theCourt said there should be a presumption, unless an exceptional situation arose, such as a question of central importance to the legalsystem that is outside the decision-maker’s expertise, that the standard of reasonableness applies to the judicial review of the decision-maker’s

interpretation of its own enabling statute. [26] In McLean v. British Columbia (Securities Commission), 2013 SCC 67 , [2013] 3 S.C.R. 895 at paras 21-22, theCourt affirmed that the standard of reasonableness applied to a decision-maker’s

interpretation of its own jurisdiction and thatpresumption was rebuttable only in exceptional circumstances: ...that the nature of the question is on an issue “regarding the jurisdictional lines between two or more competing specialized tribunals”,that the issue raises “issues of general legal importance” and “that are outside the adjudicator’s expertise”, that there is a “constitutionalquestion” or that to the extent they continue to exist, the issue is a “true jurisdictional question”. (Régimbald, p 469) [27] Given the position taken by counsel for Campkin on standard of review, it is not possible to argue that such a truejurisdictional question or constitutional question could be characterized as merely a clerical or administrative matter. [28] Therefore, based upon all of the determinations above, I find that the application for judicial review before this Court arisesnot from the determination of the Hearings Director to refer the jurisdictional issues for determination to the Hearing Tribunal (the s 94argument) but as a result of the decision of the Hearing Tribunal on those preliminary jurisdictional issues, permitting appeal of thatdecision pursuant to s 87 of the Act.

IV.

The Judicial Review/Appeal Issue [29] Given the determination above that the application for judicial review arises out of the decision of the Hearing Tribunal, s 87of the Act comes into play allowing the investigated person to “commence an appeal to the council of the decision of the hearingtribunal” and thereafter a direct appeal to the Alberta Court of Appeal pursuant to s 90 of the Act. [30] The leading case in the area is Harelkin v University of Regina, (SCC), [1979] 2 SCR 561, which addressedwhether applications to the Court for certiorari and mandamus could be had in light of a right of appeal to a committee of the Senate ofthe University of Regina with respect to the decision of the School of Social Work that a student be required to discontinue his studies. [31] The Supreme Court of Canada set out the test for determining whether the internal right of appeal should preclude anapplication to the Court for a prerogative writ at p 588: In order to evaluate whether appellant's right of appeal to the senate committee constituted an adequate alternative remedy and even abetter remedy than a recourse to the courts by way of prerogative writs, several factors should have been taken into consideration amongwhich the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably tobe exercised by a body which was not a professional court of appeal and was not bound to act exactly as one nor likely to do so.

Otherrelevant factors included the burden of a previous finding, expeditiousness and costs. [32] Considering those factors, the Court concluded at p 592: I have reached the conclusion that appellant's right of appeal to the senate committee provided him with an adequate alternative remedy.In addition, this remedy was in my opinion a more convenient remedy for appellant as well as for the university in terms of costs andexpeditiousness. [33] The Harelkin decision was followed in Alberta with respect to applications for judicial review in the decision of JusticeHillier in Litchfield v College of Physicians and Surgeons of Alberta, 2005 ABQB 962.

He identified the “threshold question” to bewhether the Court ought to address an application for judicial review on a number of procedural and substantive issues raised by Dr.Litchfield, or whether it should defer to the tribunal to allow completion of the internal administrative process set out in the MedicalProfession Act, RSA 2000, c M-11, as amended, which included an internal appeal and statutory right of appeal to the Court of Appeal. [34] The Court, following Harelkin, said: The Supreme Court confirmed the discretionary nature of judicial review and held that where an applicant has access to an adequate rightof appeal, judicial review should generally be declined.

Factors to be assessed include: (

a) the procedure on the appeal; (

b) thecomposition of the appeal tribunal; (

c) the powers of the appeal tribunal; (

d) the manner for exercise of such powers; (

e) the burden ofthe previous finding; (

f) expeditiousness; and (

g) costs.... [35] The Court also recognized the Supreme Court’s emphasis on judicial respect for statutory process:

...the general intent of the Legislature that intestine grievances preferably be resolved internally by the means provided in the Act ...[such that] the courts...should use restraint and be slow to intervene...whenever it is still possible for the [administrative tribunal] to correct its errors with its own institutional means. (from Harelkin at pp 595-596) [ 36 ] Considering all of those factors, Justice Hillier concluded that deferral of judicial review in favour of the statutory right of appeal intended by the Legislature was the most complete, effective and expeditious process for determination of the interlocutory concerns of Dr.

Litchfield. [ 37 ] In Merchant v. Law Society of Alberta , 2008 ABCA 363 , the Alberta Court of Appeal went further.

In reversing a Queen’s Bench decision allowing judicial review quashing a finding of guilt and the imposition of a sanction upon the subject lawyer by the Law Society of Alberta, the Court of Appeal asked: ...whether judicial review in the Court of Queen’s Bench was the appropriate remedy and forum in the circumstances...[or whether the lawyer] should...instead have pursued his statutory routes of appeal to the Benchers (and possibly then on to the Court of Appeal). (at para 2) [ 38 ] The Court said: “If there is a clear right of appeal, and the appeal would be an adequate remedy, only in very exceptional circumstances will the courts grant judicial review instead.” [ 39 ] In following the Supreme Court of Canada decision in Harelkin , the Court of Appeal found firstly that judicial review was not a proper remedy, and secondly said that judicial review should not be allowed part way through a proceeding before conclusion of all administrative procedures and final decision, quoting from Greater Moncton International Airport Authority v.

Public Service Alliance of Canada , 2008 FCA 68 : “Judicial review before completing statutory administrative processes risks fragmentation, delay, expense, and a judicial process which might have been academic.” [ 40 ] In Wasylyshen v.

Edmonton Police Service , 2012 ABQB 406 , Justice Michalyshyn determined that judicial review of an interlocutory decision of a Presiding Officer under the Police Act , RSA 2000, c P-17, should not proceed given the right of appeal to the Law Enforcement Review Board. [ 41 ] Justice Michalyshyn held he was not entitled to answer any of the substantive questions put to him on judicial review as he found “...on a threshold basis such questions are not properly before me...[given] that an adequate statutory remedy exists and precludes judicial review” (para 2).

In coming to his conclusion, he considered both the Supreme Court of Canada decision in Harelkin and the decision of Justice Hillier in Litchfield .

Quoting from Litchfield , he said the Court “...should not pre-empt or undermine the statutory procedure by considering a discretionary remedy unless [it] can be satisfied that such a judicial recourse is required in all the circumstances” (para 28). [ 42 ] He then considered the factors set out in Harelkin : procedure on the appeal, composition of the appeal panel, powers of the appeal panel, the manner for exercise of such powers, the burden of the previous finding, expeditiousness and costs.

In conclusion, he found there were no special circumstances in the matter before him that would allow the Court to proceed with judicial review in the face of an adequate statutory process, and he could find “few authorities finding special circumstances to do so after noting some inadequacy in the competing statutory process” (at para 39). [ 43 ] In the matter before this Court, no argument was advanced as to the adequacy of the procedure on appeal provided in the Act , the composition of the appeal panel, the powers of the appeal panel, or whether there was a particular burden on Campkin as a result of the previous finding (given the fact that he is continuously practicing social work during the course of the proceedings).

On questions of expeditiousness and costs, no evidence was provided to the Court of the relative cost or time requirements of a judicial review or an appeal under the Act.

There is therefore no basis upon which, under the Harelkin test, I could exercise discretion to allow judicial review in light of the appeal provisions under the Act. [ 44 ] In addition, I see no special circumstances in this matter that would allow an exception to the test in Harelkin , and I find that the right of appeal allowed by s 87 of the Act , and the process set out thereafter in ss 88 and 89, together with the right of a direct appeal to the Court of Appeal as set out in s 90 of the Act, offer an acceptable and preferable remedy to Campkin.

I therefore decline to comment on the substantive questions raised in the Originating Application and leave to Campkin his right of appeal pursuant to s 87 of the Act. V. Direction on Return to the College [ 45 ] Counsel for the College asked for direction as to whether, when this matter is remitted to the College, it should return to the Hearing Tribunal to complete the scheduled four day hearing on the 15 substantive particulars of complaint, before allowing Campkin the right to appeal the decision on the preliminary applications to the Council.

She indicated the College’s preference would be to require re-attendance before the Hearing Tribunal to address all elements of the complaint, prior to any appeal, so as to avoid the fragmentation, delay, and expense of an interlocutory appeal. [ 46 ] Counsel for Campkin argued that requiring Campkin to proceed through the full substantive complaint process would not be fair to Campkin in terms of time, expense, and the necessity to address issues which he says are not within the jurisdiction of the College. [ 47 ] I note that in Wasylyshen , the Edmonton Police Service Presiding Officer was directed to “first complete the disciplinary hearing and make a final decision on the merits”, and after final decision on the merits “Wasylyshen [could] then appeal part or all of the final decision to the LERB” (para 2). [ 48 ] I also note the Federal Court of Appeal decision in Greater Moncton International Airport Authority which, although

addressing the issue as to whether judicial review should be allowed before completing statutory administrative processes, warned aboutthe issues of fragmentation, delay and expense occasioned by further consideration of interlocutory orders before completion ofsubstantive matters before administrative tribunals. [49] Additionally, the appeal which is provided in s 87(1) of the Act is from “the decision of the Hearing Tribunal” as opposed to“a” or “any” decision of the Hearing Tribunal.

Given the decision in Wasylyshen and the warning in Greater Moncton, I interpret thatprovision in s 87 of the Act as applying to the final decision of the tribunal, such that there is only a single appeal to the Council, aftercompletion of the decision-making process by the Hearing Tribunal.

Even if the Hearing Tribunal provides a number of interlocutorydecisions, those decisions may be subject to appeal to the Council given compliance with the limitation period set out in s 87(2) of theAct. [50] This determination makes sense in the present case given that there are 15 particulars of complaint to be addressed by theHearing Tribunal, and only particulars 11, 13 and 14, and part of 12, are the subject of preliminary contest.

If an appeal is permittedwithin the provisions of s 87(1) of the Act, this does not affect, even if successful, the need for the Hearing Tribunal to hear and makedeterminations on the remaining particulars of complaint not the subject of these preliminary applications. From the perspective ofavoiding fragmentation, delay and expense, the Hearing Tribunal should complete its statutory role prior to appeal under the Act. VI.

Recusal of the Current Hearing Tribunal [51] Campkin submits that the current Hearing Tribunal, as constituted for the purpose of its interlocutory decision of December11, 2015, should be required to recuse itself on the basis of a reasonable apprehension of bias, having made determinations on thepreliminary applications, from hearing the substantive complaints against him. [52] Campkin argued that when an administrative decision-maker is biased, or when a decision-making process gives rise to areasonable apprehension of bias, that is a breach of the principles of natural justice and procedural fairness. [53]

Section 71 of the Act reads: Any person who has investigated, reviewed or made a decision on a complaint or matters related to a complaint may not subsequently sitas a member of a council, tribunal or committee while it is holding a hearing or a review with respect to that complaint. Campkin submits that the current Hearing Tribunal, having “made a decision on...matters related to a complaint”, may not continue tohear the substantive portions of that complaint.

This is because the Hearing Tribunal addressing the substantive matters of a complaintshould be “untainted by allegations in the Notice of Hearing which are not within the authority of jurisdiction of the panel”. [54] Counsel for the College argued that s 71 is merely intended to prevent a decision-maker at one stage of the proceedings fromparticipating at a later stage, such that, for example, an investigator could not later sit as a member of a hearing panel taking intoconsideration the findings made during the course of the investigation. She indicated that this

section was not intended to prevent or bar apanel which heard a preliminary matter as part of a hearing from participating in the rest of the hearing. [55] The Hearing Tribunal, in its Reasons for Decision, held that its determinations on the preliminary applications did not create areasonable apprehension of bias, such that it could continue to hear and decide on the merits of the complaint particulars contained in theNotice of Hearing.

It held that simply being involved in a preliminary application on a hearing should not disqualify it from concludingthe substantive portions of that hearing, and observed “that judges and statutory decision-makers are regularly tasked with consideringand issuing decisions on preliminary matters as part of a larger hearing” (p 10). [56] The test is whether an informed person, viewing the matter realistically and practically, and having thought the matterthrough, would conclude that bias exists in the decision-maker, or the decision-making process (Committee for Justice & Liberty et al vNational Energy Board et al, (SCC), [1978] 1 SCR 369 at para 386). [57] The Supreme Court of Canada addressed the issue of a decision-maker’s challenged impartiality in Wewaykum Indian Bandv.

Canada, 2003 SCC 45. It defined bias at para 58 as: ...a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, itrepresents a predisposition to decide an issue or a cause in a certain way which does not leave the judicial mind perfectly open toconviction.

Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or herfunctions impartially in a particular case. [58] The Court stated the starting point is the presumption of the decision-maker’s impartiality, at para 59: ...“[i]mpartiality is a fundamental qualification of a judge and the core attribute of the judiciary” (Canadian Judicial Council, EthicalPrinciples for Judges (1998), at p 30). It is the key to our judicial process, and must be presumed.

As was noted by L’Heureux-Dubé J.and McLachlin J. (as she then was) in [R v] S. (R.D.), [[1997] 3 SCR 489], at para. 32, the presumption of impartiality carriesconsiderable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon thatpresumption. Thus, while the requirement of judicial impartiality is a stringent one, the burden is on the party arguing fordisqualification to establish that the circumstances justify a finding that the judge must be disqualified.

The same applies to a statutory decision-maker. [59] The mere fact that a decision-maker is required to give preliminary rulings or decisions in the course of a hearing, absent suchproof that bias exists, should not preclude that decision-maker from continuing a hearing to conclusion. The Court in R v Nelson, (FC), [1996] 3 C.T.C. 199 [F.C.T.D.], said:

However, the mere fact that a party has lost a motion or has had a motion adjourned by the Court is not an indication that the Court iseither being less than even-handed or is showing that it is not indifferent as between the parties. (at para 17) [60] In a similar vein, the Federal Court of Appeal said in AGIP S.p.A. v.

Atomic Energy Control Board, (FCA), [1979] 1 F.C. 190, that the determination on a preliminary motion with respect to jurisdiction, does not preclude a judge fromcontinuing to participate in a decision on the merits. [61] I do not read s 71 of the Act as requiring a bifurcation of a hearing where there are preliminary matters addressed by thetribunal within the context of the larger hearing.

Section 71 is merely intended to prevent a decision-maker at one stage or step in aproceeding from participating in later decisions in which the earlier decision will be reviewed, evaluated or appealed.

Section 71 does notapply in the situation where a tribunal, in the context of a hearing at a single stage of the process, is required to give multiplepreliminary, procedural or interlocutory decisions. [62] An informed person, reviewing this matter realistically and practically, would not conclude that the Hearing Tribunal, onmaking a preliminary finding on applications before it as to jurisdiction, would be biased, nor subject to an apprehension of bias, againstCampkin on the substantive matters that were the subject of the preliminary application, or those remaining matters set out in thecomplaint that were not addressed in the preliminary application.

VII. Costs [63] Costs of this application are awarded to the College on a party and party basis pursuant to

Schedule C of the Alberta Rules ofCourt. VIII.

Conclusion [64] For the assistance of counsel, I summarize the determinations made in these Reasons for Decision: 1. the application for judicial review before this Court arises not from the determination of the Hearings Director to refer thejurisdictional issues raised by Campkin for determination by the Hearing Tribunal, but as a result of the decision of the Hearing Tribunalitself on those preliminary jurisdictional issues, such that: a. an appeal is available to Campkin pursuant to s 87 of the Act; and b. s 94 of the Act is not engaged so as to require judicial review; 2. no special circumstances exist to allow judicial review prior to completion of the internal administrative processes set out inss 87 through 89 of the Act, together with a right of direct appeal to the Court of Appeal as set out in s 90 of the Act, as that process offersan acceptable and preferable remedy to Campkin; 3. this matter shall be returned to the College and to the Hearing Tribunal to complete the hearing on the substantivecomplaints as against Campkin, prior to any appeal being commenced to the Council of the College; 4. there is no evidence of bias, nor an apprehension of bias, against the Hearing Tribunal by virtue of having issueddeterminations in the preliminary applications made before it as to jurisdiction; there is no need for the Hearing Tribunal to recuse itselfand for a new panel to be constituted on the continuation of the hearing of the complaints against Campkin; and 5. costs are awarded to the College on a party and party basis pursuant to

Schedule C of the Alberta Rules of Court. Heard on the 26th day of May, 2017. Dated at the City of Edmonton, Alberta this 1st day of June, 2017. K.P. Feehan J.C.Q.B.A. Appearances: Kenneth W. Fitz

McLennan Ross LLP for the Applicant Karen A. Smith and Raman K. Khabra Parlee McLaws LLP for the Respondent