Sandhu v College of Physicians and Surgeons of Alberta, 2021 ABQB 494

Court of Queen’s Bench of Alberta Citation: Sandhu v College of Physicians and Surgeons of Alberta, 2021 ABQB 494 Date: 20210628 Docket: 2001 15663 Registry: Calgary Between: Manjeet Singh Sandhu Applicant - and - College of Physicians and Surgeons of Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice C.M. Jones _______________________________________________________ I.

Introduction [ 1 ] This judicial review concerns the refusal of the College of Physicians and Surgeons of Alberta (“CPSA”) to permit a foreign-trained physician to practice family medicine in Alberta. The Applicant, Dr. Sandhu, began an assessment process necessary for registration as a practicing physician in Alberta. That assessment process was terminated prematurely and Dr. Sandhu’s application for registration was refused. His appeal of that refusal was dismissed by an appeal panel and he now seeks judicial review of that dismissal and, ultimately, the decision to refuse him registration. II. Facts A. Dr.

Sandhu’s Background [ 2 ] Dr. Sandhu obtained a medical degree in India in 1986 and a Master of Surgery and Specialty in General Surgery from an Indian university in 2003. He states that he has been registered for independent practice in India since 1987 and claims to have extensive experience practicing as a family and emergency physician in India.

[ 3 ] In 2014, Dr. Sandhu completed a two-year Practical Nursing Program in Brampton, Ontario. In 2016, he completed a two- year fellowship in Cardiovascular Surgery at the Texas Heart Institute in Houston. He also claims to have completed two years of postgraduate training in family medicine in India in 2019. [ 4 ] In 2019, Dr. Sandhu obtained sponsorship from the Alberta Health Services (“AHS”) North Zone to work as a General Practitioner at the Family Practice Associates clinic in Mayerthorpe, Alberta. Because Dr.

Sandhu did not receive his medical degree in Canada, registration with the CPSA for independent practice in Alberta required successful completion of a Practice Readiness Assessment (“PRA”), which seeks to determine if an applicant’s skills are substantially equivalent to those of a Canadian-trained physician. A physician undergoing a PRA is eligible to apply for the Provisional Register Conditional Practice. [ 5 ] The PRA was to consist of two parts, a Preliminary Clinical Assessment (“PCA”) and a Supervised Practice Assessment (“SPA”), each of which was to last a maximum of three months. B.

The Practice Readiness Assessment 1. The Letter of Understanding and Oneschuk Letter [ 6 ] Dr. Sandhu received two letters in respect of the PRA. On December 17, 2019, he signed a Letter of Understanding with the CPSA (the “LOU”). The essential elements of the LOU are as follows (all emphasis added): The [PRA] is not a training experience and does not necessarily involve advice being provided by the assessor(

s) to assist the Applicant to elevate his/her performance to be practice ready; it is a high stakes assessment which is used by CPSA to determine whether or not the Applicant demonstrates sufficient clinical skills and knowledge to permit safe independent practice. It is a pass/fail process. The Applicant will receive a copy of or access to any assessment report provided by an assessor to CPSA.

The Applicant must complete the following orientations: …one-day PRA IMG Orientation Workshop, which purpose is to provide strategies to challenges faced when undergoing a PRA assessment and to help integrate applicants into the Alberta health care system.

The Applicant is responsible for engaging with his/her Sponsor [AHS] to obtain an orientation to the Canadian healthcare system and to medical practice within the context of Alberta prior to starting a PRA . …Neither CPSA nor an assessor, has any obligation to provide the Applicant with an orientation to the Canadian healthcare system or medical practice within the context of Alberta. The Applicant will cooperate with the assessor(

s) and commit to participating fully in the [PRA]. Any concerns that an Applicant has regarding the expectations of an assessor should be discussed with the assessor, and if the concern cannot be resolved, then the Applicant can bring the concern to the attention of the Assistant Registrar, Registration or his/her designate. The Applicant will be informed about his/her identified deficiencies or weaknesses, but there is no obligation on the part of CPSA, the assessor(

s) or the Sponsor to remedy or make arrangements for the Applicant to take additional training to remedy the identified deficiencies or weaknesses. The unsuccessful Applicant will be responsible for arranging, at his/her own expense, any further training or experience, acceptable to CPSA, required to address any identified deficiencies or weaknesses. …evidence of remediation or professional development acceptable to CPSA must be provided at the time of application for the second attempt [of the PRA] and must be verifiable by the Assistant Registrar Registration or his/her designate.

The Applicant will be immediately removed from a [PRA] in the event that concerns are identified about patient safety or inappropriate conduct by the Applicant. Although the [PCA], and if required the [SPA], will typically be scheduled for three (3) months each, the [PRA] may be terminated at any point by the Assistant Registrar Registration or his/her designate if s/he feels there is sufficient evidence to support a practice decision, be it a pass or a fail determination.

All Family Medicine Applicants undergoing a [PCA] will be provided confidential access to online assessment system to view the assessment notes and reports submitted by the assessor to CPSA. The Applicant understands that CPSA will not notify the Applicant about the status of current or recently added notes and it is left to the Family Medicine Applicants to review online entries on a regular basis throughout the assessment . The Applicant is expected to view all online entries and to treat access responsibly and professionally.

The Applicant is not permitted to request the assessor to make any modifications to the assessment notes or reports. Any concerns by the Applicant should be first discussed with the assessor, and if the concern is not resolved, then the Applicant may bring the matter to the attention of the Assistant Registrar Registration or his/her designate. [ 7 ] On January 6, 2020, Dr. Sandhu received a letter (the “Oneschuk Letter”) from Dr. Doreen Oneschuk, the CPSA’s Senior Medical Advisor, informing him that the PCA component of his PRA would begin on January 16, 2020 in Bonnyville, Alberta with Dr.

Jacobus Muller acting as Assessor. The Oneschuk Letter indicates that Dr. Sandhu must have a satisfactory assessment to be considered for a permit to practice independently. [ 8 ] An attachment to the Oneschuk Letter outlines eight assessed competencies, referred to as “Sentinel Habits”, which were described in detail. Those Sentinel Habits are: 1. Incorporates patient context;

2. Relevant hypothesis; 3. Uses best practice to manage; 4. Selects appropriate focus; 5. Key features for procedures; 6. Respect and responsibility; 7. Verbal/written communication; and 8. Seeks guidance and feedback. [ 9 ] Like the LOU, the Oneschuk Letter notes that Dr. Sandhu was required to complete a one-day PRA IMG Orientation Workshop, the purpose of which was to “provide strategies to challenges faced when doing a PRA assessment and to help integrate you into the Alberta health care system.” [ 10 ] The Oneschuk Letter reiterated and expanded upon the LOU in describing the PCA. Dr.

Oneschuk noted that the objective of a PRA is to determine if an applicant’s training and clinical skills are substantively equivalent to those of a Canadian-trained physician entering independent practice in Alberta. She stated, “It is a high stakes pass/fail assessment and not a period of training. You must have a satisfactory assessment to be considered for a permit to practice independently.” She also re-iterated that a PRA could be terminated early and either a pass or fail entered. [ 11 ] The Oneschuk Letter also states: Your Assessor(

s) has been asked to use the following tools to evaluate your performance during the assessment, please review this information carefully prior to your assessment: 1. GroveWare online assessment system... 2. Direct Observation of Procedural Skills (DOPS) - Family Medicine. ... This form will be completed on GroveWare. [ 12 ] The attachment to the Oneschuk Letter described how GroveWare would be used to compile the assessor’s Assessment Notes and how an applicant could view them. It reiterated that an applicant was responsible for accessing and reviewing the GroveWare notes compiled by the assessor.

Like the LOU, it indicated that an applicant could not ask the assessor to make any modifications to the assessment notes or reports, but could discuss concerns. If concerns could not be resolved, they could be brought to the attention of the Assistant Registrar or designate. Further, it specifically stated: Access to GroveWare is not intended to create, nor should the Applicant have any expectation of an Assessor being obligated to provide further feedback. 2 The Assessment Notes [ 13 ] Dr. Sandhu commenced his PRA on January 16, 2020. It appears that Dr.

Muller began compiling Assessment Notes on January 18, 2020, though, for reasons that are not clear to me, he apparently did not start posting his Assessment Notes to GroveWare until sometime after January 20, 2020. A Call Log recorded by an officer at the CPSA on January 20, 2020 states: Dr. Muller was unable to add GroveWare notes because Dr. Sandhu did not show up in the dropdown field; however, I have tested it today and it seems to be working fine. [ 14 ] Dr. Muller’s Assessment Notes reflect his observations of Dr. Sandhu’s interactions with patients. Of the 36 Assessment Notes, 24 rated Dr.

Sandhu’s performance as “unsatisfactory”, 7 as “needs improvement” and 5 as “satisfactory”. Sixteen of these Assessment Notes indicate that Dr. Muller either reviewed or discussed Dr. Sandhu’s performance with him or provided him with instruction. [ 15 ] I will not reproduce all of the Assessment Notes in these Reasons, but the evidence is clear that Dr. Sandhu had access to them on or after January 20, 2020.

A few examples will provide sufficient illustration: Assessment Note (AN) #1 - January 18, 2020 – patient with Parkinson’s and severe rigidity Sentinel habit: uses best practice to manage Observation: he prescribed sinemet without indicating dosage Assessment level: unsatisfactory AN #5 - January 19, 2020 – elderly patient with oral candidiasis Sentinel habit: verbal/written communication Observation: he prescribed nystatin drops at subtherapeutic doses Feedback: we reviewed the treatment which would include nystatin oral suspension 4 times a day for a week

Assessment Level: unsatisfactory AN #7 - January 19, 2021 – general charting Sentinel habit: uses best practice to manage Observation: he changed treatment in the chart note of the previous day Feedback: we reviewed the importance of adequate charting and that it is not allowed to change the chart note and medication in a previous date since nursing staff may not be able to process the order Assessment Level: unsatisfactory AN #16 - January 22, 2020 – IV fluids for hospitalized patient Sentinel habit: uses best practice to manage Observation: this patient was hospitalized for COPD exacerbation, Dr.

Sandhu prescribed IV normal saline at 80 cc per hour until reassessment Feedback: we discussed the importance of putting an end date and time for IV fluids. If Dr. Sandhu indicates to continue IV fluids until reassessment, it is very important to confirm that reassessment is actually done. This patient was well hydrated and hospitalized for COPD, continuous IV fluids was not required. Unfortunately Dr. Sandhu did not reassess the IV fluids. This patient continued to receive IV fluids even though this was not medically required and was not seen by the next hospitalist until very late the next afternoon.

This patient became unstable and required transfer to a tertiary hospital, it is possible that the continuous IV fluids contributed to his deterioration. Assessment Level: unsatisfactory AN #26 - January 29, 2020 – 6 year old with suspected otitis media, trauma inflicted during clinical examination Sentinel habit: key features for procedures Observation: Dr. Sandhu examined this patient, I heard a scream from the examination room. I asked Dr.

Sandhu what occurred, he reported that this patient may have otitis media and that the recommended treatment would be for further observation with conservation of antibiotics if no improvement after 48 hours Feedback: I examined the patient, there was bleeding from the external auditory canal, tympanic membrane is intact with some erythema, the bleeding from the external auditory canal was caused by the clinical examination with the otoscope. I showed Dr.

Sandhu how to hold and (sic) autoscope, he could expect sudden movement especially from pediatric patients and it’s very important that we do not injure outpatients during the clinical examinations.

I apologized to the patient and her mom for the injury that occurred, this patient and her mom was asked to come for clinic reassessment if there is any concerns whatsoever, because of the trauma this child was started on Amoxi at 40 mg/kg with additional Ciprodex ear drops Assessment level: unsatisfactory AN #30 - January 29, 2020 – examination of the ear of a 35-year-old, otitis externa Sentinel habit: seeks guidance and feedback Observation: This patient complained of discomfort to her ear, she has otitis externa.

This patient was quite uncomfortable and had increased pain with the clinical examination done by Dr. Sandhu. I had just shown Dr. Sandhu on how to do a gentle ear examination. He did not follow the instructions and guidance that was suggested. Feedback: We again reviewed the correct technique on how to do a clinical examination of an ear. I again showed Dr. Sandhu how to do an examination of an ear. Patient’s comfort and safety has to be taken into consideration. Examination should be done gently, starting at the external auditory meatus without inflicting pain.

The autoscope should NOT be advanced deep into the ear canal since this can inflict trauma and pain. Assessment level: unsatisfactory [ 16 ] Many of the concerns recorded by Dr. Muller in his Assessment Notes are also reflected in the Log Notes maintained by the CPSA. 3 The Log Notes [ 17 ] On January 20, 2020, Dr. Muller spoke with Amanda Siebenga, Registration Assessment Program Coordinator. He advised her of the technical issue described above and indicated that he would add GroveWare notes and DOPS observations as soon as possible. He expressed the view that Dr.

Sandhu was operating at the level of a resident or even a student. At Dr. Muller’s request, Ms. Siebanga set up a follow-up call with Dr. Oneschuk for the next day. [ 18 ] Dr. Oneschuk spoke with Dr. Muller on January 21, 2020. His complaints about Dr. Sandhu reflect his Assessment Notes and he indicated that there had not yet been any procedures to observe. Dr. Muller stated that he had to guide Dr. Sandhu with the most basic items and he felt as though he was training Dr. Sandhu, not assessing him. He felt that Dr. Sandhu was not even functioning at the level

of a 3 rd year clinical medical student. Dr. Muller felt confident in saying that Dr. Sandhu was unable to manage independently in a hospital setting. [ 19 ] On January 22, 2020, Dr. Oneschuk spoke to Dr. Susan Ulan, the CPSA’s Assistant Registrar, who suggested that, if Dr. Muller agreed, the PCA continue the next week as Dr. Muller moved into a clinical setting. [ 20 ] On January 30, 2020, Dr. Oneschuk again spoke to Dr. Muller, who expressed a number of concerns. He stated that he was “quite worried” about Dr. Sandhu’s performance. He felt that Dr.

Sandhu had the required medical knowledge but could not appropriately apply it or prioritize medical concerns and was functioning at the level of a second-year medical student. Dr. Muller indicated that there had been a number of incidences where Dr. Sandhu had harmed patients. He said he was reluctant to have Dr. Sandhu perform a pap smear because he was afraid it would cause patients pain and distress. He felt he was unable to trust what Dr. Sandhu told him and he was concerned about patient safety going forward. He advised Dr. Oneschuk that he could not continue as Dr. Sandhu’s assessor. Dr.

Oneschuk advised Dr. Muller and, subsequently, Dr. Sandhu that the PRA was being placed on hold immediately. 4 The Correspondence Between Dr. Ulan and Dr. Sandhu [ 21 ] On February 5, 2020, Dr. Ulan wrote to Dr. Sandhu informing him of concerns raised by Dr. Muller and enclosing, inter alia , copies of the Assessment Notes and Log Notes. She made it clear that this was to allow him to see the information upon which she would base her decision regarding the outcome of his PRA. She invited him to provide a response. [ 22 ] Dr. Sandhu responded to Dr. Ulan by letter dated February 28, 2020.

He complained that he would have performed better if his assessment period had been more relaxed and stated that the “pressure of performance” conveyed to him made him struggle and caused him to underperform. He stated his belief that, within a couple of days of commencing the assessment, Dr. Muller had decided not to give positive comments about Dr. Sandhu’s performance. He offered his own

interpretation of his interactions with patients and complained that many of the negative comments about his performance were due to a lack of direction about when and what Dr. Muller was going to assess. He asserted that, had he known what he would be assessed on and when, he would have performed much better. He advised that he was working on his shortcomings by observing a Calgary family physician. [ 23 ] Dr. Sandhu complained that, on his first day, paper charts were shown to him for a very brief time and that was the only orientation he had about the environment he would be working in.

He complained that he had little orientation to the software and had trouble quickly memorizing the required computer commands. [ 24 ] Dr. Sandhu concluded his response to the Assistant Registrar as follows: I would humbly like to submit that the lack of provision of adequate orientation, introduction to EMR, paper charts, and support staff has significantly contributed in creating a subpar impression about me in my assessor’s mind. Further, introduction to a high volume work and unfamiliar environment from the get go of my assessment may have contributed to some of the negative observations regarding my skills.

I greatly appreciate your favourable consideration to allow me to continue my PCA so that I can contribute to rural Alberta. I am very confident that when given the proper orientation, time to settle in the new environment, I will perform at the expected high standards of patient care as expected by the esteemed CPSA. C. The CPSA Decision [ 25 ] On April 9, 2020, Dr. Ulan advised Dr.

Sandhu in writing that his application for independent practice registration in Alberta had been refused for “failure to satisfy the requirement to successfully complete an assessment satisfactory to the Registrar” (the “CPSA Decision”). [ 26 ] Dr. Ulan reiterated the term of the LOU that a PRA is not a training experience, but a high stakes assessment used to determine whether an applicant demonstrates sufficient skills and knowledge to permit safe independent practice.

She advised that he had been unsuccessful because he had not demonstrated the level of competence expected of physician entering the practice of family medicine in Canada. She noted inadequate levels of competence in seven of the eight Sentinel Habits and reviewed the Assessment Notes in relation to each of the seven in respect of which Dr. Sandhu was found to have performed inadequately.

She noted the overwhelming proportion of “unsatisfactory” and “needs improvement” observations, relative to “satisfactory” observations and provided examples of his failure to demonstrate proficiency in a clinical setting typical of a rural hospital. She also pointed to the Log Notes, specifically Dr. Muller’s concerns and unwillingness to continue as Dr. Sandhu’s assessor. [ 27 ] Dr. Ulan then reviewed Dr. Sandhu’s response, in particular his expressions of concern that he had been pressured and that Dr. Muller had rushed to judgment, and addressed each of Dr. Sandhu’s explanations.

She noted that assessors must remain objective and cannot take on the role of advocate or educator. She commented that Dr. Muller is an experienced rural family physician and assessor and that she found his documentation objective and balanced. She expressed the view that Dr. Muller had observed Dr. Sandhu in a setting similar to that in which he would be sponsored by AHS to work. She observed that his shortcomings raised serious concerns about his competence and posed potential risk of serious harm to patients. [ 28 ] She noted Dr.

Sandhu’s concern that he had suffered from a lack of adequate orientation and introduction to the assessment environment and stated: Your deficiencies described above cannot be accounted for based on the absence of an adequate period of orientation to the hospital or clinic for the following reasons: The volume of work you were exposed to during your assessment is similar to the volume that a rural family physician is expected to manage in clinical practice. Candidates being assessed must demonstrate that they are competent to work in high volume, high stress

environments given the Canadian healthcare context. You completed the University of Calgary Practice Readiness Assessment Orientation for IMGs in December 2019. Your lack of familiarity with the clinic computer/EMR would not explain the deficiencies noted in your performance in the hospital setting. The [LOU] that you signed states that “Neither the College, nor any assessor, has any obligation to provide the Applicant with an orientation to the Canadian healthcare system of medical practice within the context of Alberta.” [ 29 ] Dr. Ulan concluded by stating that Dr.

Sandhu would be required to complete two years of accredited postgraduate training in family medicine that meets with CPSA approval before being permitted to reapply for licensure in Alberta. She set out how Dr. Sandhu could appeal the CPSA Decision. D. The Appeal Panel [ 30 ] Through his counsel, Dr. Sandhu advised the Registrar of the CPSA by letter on May 7, 2020 that he requested a review of the CPSA Decision by the Council Appeals Committee (the “Appeal Panel”). He claimed the process had been unfair and that the CPSA Decision was unreasonable. He alleged: 1. bias on Dr.

Muller’s part; 2. inadequate orientation given to Dr. Sandhu; 3. inaccurate assessment notes compiled by Dr. Muller; 4. prejudgment by Dr. Muller of Dr. Sandhu’s capabilities; 5. discrimination on Dr. Muller’s part; 6. refusal by Dr. Muller to accept Dr. Sandhu’s explanations; 7. refusal by Dr. Muller to provide guidance and feedback; 8. inconsistent direction given to Dr. Sandhu by Dr. Muller; 9. failure on Dr. Muller’s part to provide or discuss evaluation tools used to assess Dr. Sandhu’s performance; and 10. termination by Dr.

Muller of the assessment after only two weeks. [ 31 ] The Appeal Panel, consisting of two medical doctors and a public member, heard Dr. Sandhu’s application on July 29, 2020. [ 32 ] Dr. Sandhu alleged the PRA was terminated prematurely on the basis of inaccurate and incomplete information and claimed that there was no reasonable basis for the Assistant Registrar’s conclusion that Dr. Sandhu presented a “substantive risk to the public”. He also asserted that the requirement for him complete two years of accredited post-graduate training in family medicine was unreasonable.

He sought to have the CPSA Decision set aside and to have a new assessment with a new assessor. [ 33 ] Dr. Sandhu sought to put a document before the Appeal Panel, claiming that he became aware of its existence only after his written submissions had been provided. He noted that Alberta participates in the National Assessment Collaboration Practice Readiness Assessment framework, which contemplates that a candidate is to “receive valuable guidance from an experienced physician assessor as you adapt to practice in Canada.” Dr.

Sandhu noted that a manual previously used by the CPSA in respect of PRAs (the “PRA Manual”) is no longer used and has been removed from the CPSA’s website. He asserted that there is a void that has not been filled by the CPSA since removal of the PRA Manual and that he wished to rely on material relating to the NAC framework (the “NAC Document”) in support of his procedural fairness arguments. [ 34 ] The Assistant Registrar noted that the NAC Document, while representing a national collaboration, is merely a guidance document and there is no requirement that it be adopted.

She argued that there is no void and that she did not refer to the NAC Document in making her decision. Her position was that it was not evidence and, while it could be used for argument, it should not become part of the record. [ 35 ] The Appeal Panel decided to allow the NAC Document to be entered and later determine what use was to be made of it in its decision. [ 36 ] The CPSA, through the Assistant Registrar, provided written submissions to the Appeal Panel. She pointed out that the primary duty of the CPSA, as set out in section 3(1) (

a) of the Health Professions Act , RSA 2000, c H-7 , is to regulate the profession in a manner “that protects and serves the public interest”. She noted that the issues were whether the PCA was procedurally unfair and whether the CPSA Decision was reasonable. [ 37 ] Noting Dr. Sandhu’s allegation of bias, she acknowledged that the standard of review for that issue is akin to correctness. The reviewing body evaluates fairness independently, without any deference to the original decision maker: Ho v Alberta Assn of Architects , 2015 ABCA 68 , paras 18 and 19 .

She also acknowledged that a reviewing body must determine whether proceedings met the level of fairness required by law: Barry v Institute of Chartered Accountants of Alberta Complaints Inquiry Committee , 2016 ABCA 354 , para 5 .

[38] She noted, however, that the standard of review of a registration decision under s 31 of the Health Professions Act isreasonableness: Lum v Council of Alberta Dental Association and College, 2016 ABCA 154, paras 14, 16 and 21. She argued that Dr.Sandhu attempted to characterize the decision that there was risk to the public as an issue of procedural fairness to which the correctnessstandard would apply. Her position was that the termination of Dr.

Sandhu’s PRA on the basis of risk to the public was a substantivedecision, not the process by which she came to that decision, and that it must be evaluated on a standard of reasonableness. [39] The Assistant Registrar cited Yee v Chartered Professional Accountants of Alberta, 2020 ABCA 98 at para 35: …findings of fact made by the discipline tribunal, particularly findings based on credibility of witnesses, should be afforded significantdeference … inferences drawn from the facts by the discipline tribunal should be respected, unless the appeal tribunal is satisfied thatthere is an articulable reason for disagreeing… [40] She argued that questions regarding her decision to terminate the PRA and her decision that there was a substantive risk to thepublic were findings of fact and inferences drawn from her findings of fact. [41] The Assistant Registrar argued that the content of a duty of procedural fairness depends on the specific context and referred tothe five factors set out by the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration) (SCC), [1999] 2 SCR 817. [42] She noted that Dr.

Sandhu complained of a breach of procedural fairness on the basis that he was not provided an adequateorientation to the EMR software, paper charts and support staff. She drew the Appeal Panel’s attention to the various terms of the LOU,specifically that a PRA is not a training experience and that it is the applicant’s responsibility to engage his or her sponsor to obtainorientation regarding medical practice in Alberta before starting the PRA.

She noted that the LOU advises that neither the CPSA nor anassessor has any obligation to provide an orientation to either the Canadian health care system or medical practice in Alberta. She alsopointed out to the Appeal Panel that Dr. Sandhu had completed the IMG Orientation before his PRA commenced. Further, she claimedhe was given some orientation to the charting and EMR system and did not request additional orientation.

Finally, she disputed Dr.Sandhu’s complaint that a lack of orientation to the EMR system was the cause of his poor performance, pointing out that she had foundotherwise in the CPSA Decision. [43] The Assistant Registrar noted that Dr. Muller had documented his Assessment Notes in GroveWare from January 18, 2020 toJanuary 29, 2020 and that the Oneschuk Letter had advised Dr. Sandhu that he was expected to review these and to raise any issues hehad with Dr. Muller. He did not do so. She pointed out that Dr. Muller had noted that Dr.

Sandhu was unsatisfactory or neededimprovement in seven of the eight Sentinel Habits. [44] The Assistant Registrar noted that Dr. Sandhu had been invited to respond to the concerns and had done so, asserting that heunderperformed in the PCA due to persistent pressure of performance that led him to struggle in simple clinical tasks. She argued thatDr. Sandhu appears to have considered the PCA a training opportunity, despite the express disclaimer in the LOU. Further, she assertedthat Dr. Sandhu either appeared not to recall specific incidents that Dr. Muller recorded in GroveWare or had a different

interpretation ofthose incidents. She pointed out that the CPSA Decision addressed his concern that he and Dr. Muller did not agree on the

interpretationof specific events and noted that Dr. Muller had received concerns from nursing staff and other physicians. She noted that theAssessment Notes were made contemporaneously and contended that it is difficult to ignore them where they conflicted with Dr.Sandhu’s version of events. [45] The Assistant Registrar noted that, notwithstanding Dr. Sandhu did not have a legitimate expectation that he would receiveguidance or feedback, Dr. Muller did provide feedback, as recorded in the Assessment Notes. [46] With respect to Dr.

Sandhu’s complaint that the DOPS tool was not used, the Assistant Registrar noted that Dr. Sandhuperformed only two procedures and was assessed as “satisfactory” in the performance of both in the Assessment Notes. She argued thatDr. Sandhu’s deficiencies did not relate to his performance of procedures, but to other clinical domains that would not be assessed usingthe DOPS tool. Therefore, there was no procedural unfairness resulting from the DOPS tool not yet having been used when the PCA wasput on hold. [47] Finally, in response to Dr. Sandhu’s allegation that Dr.

Muller was biased, the Assistant Registrar pointed out that it was she,not Dr. Muller, who made the CPSA Decision. She noted that Dr. Sandhu had been unable to identify any specific incidents of biasexhibited by either her or Dr. Muller and that he had not raised any such allegation in his letter of February 28, 2020. [48] She argued that Dr. Sandhu had not discharged his onus to establish bias, citing College of Physicians & Surgeons of Albertav Ali, 2017 ABCA 442 at paras 21 to 29. Dr. Sandhu’s “gut feelings” about Dr. Muller’s premature assessment of his abilities are notevidence of bias.

She also noted that Dr. Sandhu did not request a new assessor or raise concerns with Dr. Muller continuing.

She arguedthat he was expected to have made a timely objection and that failure to do so usually will be fatal to a subsequent challenge: RothesayResidents Assoc Inc v Rothesay Heritage Preservation & Review Board, 2006 NBCA 61 , [2006] NBJ 227 and SOS-Save ourSt Clair Inc v City of Toronto et al, (ON SCDC), [2005] OJ No 4738, and the cases noted therein. [49] With respect to the reasonableness of the CPSA Decision, the Assistant Registrar argued that she had provided fulsomereasons, disclosing the information she considered and her reasoning.

She argued that she had sufficient information to support a practicereadiness decision and that her review of the evidence and her findings of fact should be accorded significant deference. She argued thatshe terminated Dr. Sandhu’s PRA based on significant evidence that he did not demonstrate competence in either a hospital orcommunity practice setting. She considered there to be substantive risk to the public if his PRA was allowed to continue and noted thatthe LOU stated he would be immediately removed from his PRA if concerns for patient safety were raised. Dr.

Sandhu had no legitimateexpectation of a full three-month assessment. [50] She cited Farhat v College of Physicians and Surgeons of Alberta, 2014 ABQB 731 for the proposition that a decision toconclude an assessment, in and of itself, does not deprive an applicant of procedural fairness, since the CPSA has control over its ownprocess.

[ 51 ] She noted that Dr. Muller, an experienced rural doctor and assessor, refused to continue with the PRA and that Dr. Sandhu, by his own admission, had made errors in what she referred to as simple clinical tasks. She noted eight significant incidents during Dr. Sandhu’s first two weeks of his PRA that presented a risk of serious harm to a patient and asserted that the standard was how many times a doctor’s actions could have caused harm to a person, not how many times a doctor actually did injure a patient. She argued that Dr.

Sandhu minimized his errors as “minor, having to do with charting or communications” but noted that incorrect prescription dosage and frequency are charting errors that pose a risk of harm to patients. [ 52 ] Dr. Sandhu objected to the requirement that he complete two years of accredited postgraduate training in family medicine before being eligible to reapply for registration. The Assistant Registrar argued that, given Dr. Muller’s conclusion that Dr.

Sandhu was not performing at the level of a third-year medical student, the requirement that he obtain more training was reasonable. [ 53 ] The Appeal Panel issued its decision on September 21, 2020. It considered both Dr. Sandhu’s arguments and those of the Assistant Registrar in detail. [ 54 ] The Appeal Panel found that little weight should be placed on the NAC Document in determining procedural fairness. It found that there was no evidence the CPSA used the NAC Document as part of the assessment process or that it had been adopted by the CPSA for PRAs.

Further, the Appeal Panel found that the PRA Manual, having been removed from the CPSA’s website, cannot be relied upon by applicants and cannot be said to create an expectation of what the assessment process should involve. [ 55 ] The Appeal Panel took into account the Baker factors and acknowledged that there was a relatively high level of procedural fairness owed to Dr. Sandhu, given that the CPSA Decision affected his ability to earn a livelihood as a physician in Alberta. Nevertheless, it found that Dr. Sandhu’s PRA met the requirement of procedural fairness.

The Review Panel noted that the Court in Alfahem v College of Physicians and Surgeons of Alberta , 2018 ABQB 539 found the process in the LOU to be acceptable, reasonable, fair and defensible. [ 56 ] With respect to Dr. Sandhu’s complaint that he was not provided with sufficient orientation, nor introduced to EMR, paper charts and support staff, the Appeal Panel took note of the IMG Orientation. It also found that Dr. Sandhu did receive an orientation to charting and the EMR system. While he complained that it was brief, the Appeal Panel noted that he did not request additional orientation.

It also noted that the LOU provided that Dr. Sandhu should look to his sponsor, AHS, for an orientation. [ 57 ] The Appeal Panel addressed Dr. Sandhu’s complaints that Dr. Muller did not discuss or review with him how the assessment would be conducted, that he did not receive feedback or guidance and that he was not given the opportunity to incorporate the feedback into practice. The Appeal Panel found that the Oneschuk Letter confirmed that it was Dr. Sandhu’s responsibility to review GroveWare on a regular basis.

It also noted the statement in the LOU that the PRA was not a training experience and would not necessarily involve advice being given by the assessor. Nevertheless, the Appeal Panel noted that the Assessment Notes contained several references to “we reviewed” and “we discussed”. It concluded that Dr. Sandhu knew what to expect and did receive feedback from Dr. Muller. [ 58 ] The Appeal Panel referred to the Log Notes indicating that there had not been any procedures to date, such that the DOPS tool would not yet have been used.

The Appeal Panel found that this was not sufficient to constitute a breach of procedural fairness and that the information in the Assessment Notes was very similar to what would be covered by the DOPS tool. [ 59 ] The Appeal Panel considered Dr. Sandhu’s allegations that Dr. Muller had predetermined the outcome, that his criticisms of Dr. Sandhu were incomplete, inaccurate and unfair and that Dr. Muller assumed Dr. Sandhu was being dishonest and had created inaccurate Assessment Notes. It found no evidence that Dr. Muller had predetermined the outcome of Dr. Sandhu’s PRA, noting that Dr.

Sandhu was provided an opportunity to respond to the concerns raised and that the Assessment Notes and Log Notes showed that Dr. Muller had obtained some feedback from other professionals. [ 60 ] The Appeal Panel noted that the Assistant Registrar had accepted the information provided by Dr. Muller in the Assessment Notes and provided her reasons for doing so.

It also noted that the Assistant Registrar could have chosen to have the PRA continue with another assessor. [ 61 ] The Appeal Panel then considered the reasonableness of the CPSA Decision and found that the Assistant Registrar had provided reasoning and justification for her conclusions. It noted her conclusion that Dr. Sandhu did not demonstrate competence in either a hospital or community practice setting and posed a substantive risk to the public was accompanied by a detailed review of the evidence and of Dr. Sandhu’s responses.

The Appeal Panel concluded that the Assistant Registrar’s conclusions were reasonable based on the information before her. [ 62 ] The Appeal Panel specifically addressed Dr. Muller’s comment that Dr. Sandhu did have the necessary medical knowledge, but found that this comment needed to be read in the context of the entire Log Note, including Dr. Muller’s view that Dr. Sandhu was functioning at the level of a second-year medical student. It found the requirement that Dr.

Sandhu receive additional training before being eligible to undertake another PRA was reasonable, given the nature of the concerns expressed. [ 63 ] The Appeal Panel found that the CPSA Decision was reasonable. It did not find any errors of law or principle or that it was not reasonably sustainable. It found that the CPSA Decision provided justification and transparency for how the conclusions were reached. Accordingly, the Appeal Panel dismissed Dr. Sandhu’s appeal of the CPSA Decision on September 21, 2020 (the “Appeal Panel Decision”). III. Issues [ 64 ] Dr.

Sandhu now seeks judicial review of the Appeal Panel Decision on two grounds: 1. The CPSA failed to meet its duty of procedural fairness in conducting the PRA; and

2. The CPSA Decision is unreasonable. IV. Analysis A. Preliminary Issue [ 65 ] Dr. Sandhu sought to have certain materials excluded from the Court’s consideration. I will deal with that request first so that my analysis of the Appeal Panel Decision addresses only matters that should properly form part of the record. [ 66 ] Dr.

Sandhu objected to the inclusion of pages 541 - 559 and 582 - 607 of the Certified Record of Proceedings and to paragraphs 3 - 8 and 90 - 92 of the CPSA’s brief (collectively, the “Impugned Information”). [ 67 ] Pages 541 - 544 of the Certified Record of Proceedings consist of a letter dated December 1, 2020 from the Assistant Registrar to Dr. Sandhu pertaining to his request for a review of eligibility to apply for registration for independent practice, not as a family physician, but as a general surgeon.

Pages 545 - 559 consist of his application for registration as a family physician and pages 582 - 598 consist of his application for registration as a general surgeon. Pages 599 - 607 consist of the CPSA’s response to that application, related email correspondence and the CPSA’s Provisional Register Policy. [ 68 ] Paragraphs 3 - 8 of the CPSA’s brief deal with alleged conflicts in information provided by Dr. Sandhu to the CPSA relating to his prior work and training experiences. Paragraphs 90 - 92 deal with alleged inaccuracies in information provided by Dr.

Sandhu to the CPSA relating to his work experience, which the CPSA suggests undermine Dr. Sandhu’s credibility. [ 69 ] Both Dr. Sandhu and the CPSA submitted supplementary briefs at my request. Dr. Sandhu argues that I should disregard the Impugned Information because it was not before the Appeal Panel and does not form part of the Certified Record of Proceedings. The CPSA argues that the Impugned Information is relevant and that Rule 3.18(

e) of the Rules of Court allows me to consider “anything relevant to the [Appeal Panel] decision”. [ 70 ] I find that the Impugned Information is irrelevant to a determination of the issues before me, being the procedural fairness of Dr. Sandhu’s PRA and the reasonableness of the Appeal Panel Decision. I disregard the Impugned Information. [ 71 ] Dr.

Sandhu also complained that the “aggressive tone and partisan content of the College’s argument is improper and unhelpful to the issues before the Court in this review.” I did not find the CPSA’s submissions, either orally or in writing, to be unduly aggressive or partisan. Those submissions sought to outline the practices and procedures underlying Dr. Sandhu’s PRA and to explain the basis for the CPSA Decision and the Appeal Panel Decision. As they outline what the CPSA considered relevant in declining Dr.

Sandhu’s application for registration, they are, understandably, somewhat pejorative in nature, but that, in my view, does not render the CPSA partisan. B. Procedural Fairness [ 72 ] Not surprisingly, given that the issues are the same, Dr. Sandhu’s arguments before me track those he made before the Appeal Panel for the most part. 1 Degree of Procedural Fairness [ 73 ] Dr. Sandhu argues, based on Farhat at para 26 and Barry at para 5 , that procedural fairness is reviewed on the basis of whether the process and proceedings meet the level of fairness required by law.

He argues that the CPSA was duty bound to conduct a fair assessment and points to Justice Hollins’ decision in Mohamed v College of Physicians and Surgeons of Alberta, 2019 ABQB 657 in which she outlined the five Baker factors for determining the necessary level of procedural fairness: 1. The nature of the decision being made and the process involved in making it; 2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates; 3. The importance of the decision to the individual or individuals affected; 4.

The legitimate expectations of the person challenging the decision; and 5. The choice of procedures made by the agency itself. [ 74 ] Dr. Sandhu asserts that this Court held in Farhat , Alfahem and Mohamed that a relatively high degree of procedural fairness was owed to a PRA applicant because the applicant’s profession and employment is at stake, the applicant has a legitimate expectation that a certain procedure will be followed and the CPSA has the power to terminate an PRA at any time.

The CPSA does not dispute that a relatively high level of procedural fairness is required, but takes the position that the necessary threshold was met. On various bases, Dr. Sandhu asserts this is not so. [ 75 ] There are three contexts in which Dr. Sandhu was entitled to be accorded procedural fairness: (1) during the PRA; (2) during the Assistant Registrar’s review leading up to the CPSA Decision; and (3) before the Appeal Panel. [ 76 ] To begin, I note that there is no evidence to suggest that Dr.

Sandhu was in anyway compromised in his ability to meaningfully respond to the CPSA Decision or in his understanding of the case against him. Dr. Ulan’s letter of February 5, 2020 advised Dr. Sandhu of the concerns that led to his PRA being placed on hold. He was invited to respond to those concerns and he did so.

Further, he was represented at the Appeal Panel hearing by the same counsel appearing before me in this application for judicial review. I find that no breach of natural justice occurred during the Assistant Registrar’s review of Dr. Sandhu’s PRA or at the Appeal Panel hearing. [ 77 ] It is common ground that determining the necessary level of procedural fairness required requires consideration of the Baker factors.

For example, in respect of the third factor, the importance of the decision to the individual or individuals affected, t here is no question that both the CPSA Decision and the Appeal Panel Decision have life-altering consequences for Dr. Sandhu. I note, however, that the Supreme Court of Canada held in Baker at para 28 that the five enumerated factors were not to be treated as exhaustive: I should note that this list of factors is not exhaustive. These principles all help a court determine whether the procedures that were followed respected the duty of fairness.

Other factors may also be important, particularly when considering aspects of the duty of fairness unrelated to participatory rights.

The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision . [Emphasis added. [ 78 ] In my view, this statement indicates that determining whether the PRA process was fair requires consideration of the statutory and social context.

The CPSA is charged by statute with responsibility for establishing and enforcing appropriate standards of medical practice in Alberta. It has a duty under the Health Professions Act to protect and serve the public interest. It does this, in part, by designing a PRA process that reflects, to the greatest extent possible, the circumstances a physician will encounter in independent practice and ascertains the applicant’s ability to manage those exigencies without compromising patient safety. Put simply, Dr.

Sandhu was not the only one who had a stake in the outcome of his PRA. [ 79 ] With that in mind, I turn to Dr. Sandhu’s specific procedural fairness arguments. 2 The PRA Manual and the NAC Document [ 80 ] Dr. Sandhu argues that the Appeal Panel should not have disregarded the PRA Manual and the NAC Document. He asserts that the CPSA has not replaced the PRA Manual with any other guide and argues that it provides the “general contours of the duty of fairness owed by the CPSA.” Dr.

Sandhu argues that, with the withdrawal of the PRA Manual and the failure to adopt the process in the NAC Document, an applicant is in a vacuum and does not know what is expected. He asks, “if the PRA Manual is not the ‘current practice’ and if the College is not bound by the NAC Standards even though it participated in that pan-Canadian framework, then what is the current process ? The Panel did not consider this fundamental question.” (Emphasis in original.) [ 81 ] Dr. Sandhu contends that the PRA Manual provided more direction regarding expectations.

For example, it provided, inter alia , that assessors must: 1. Provide an applicant with an overview of the practice setting, including medical records and office processes, prior to initiating assessment. 2. Provide an applicant with the opportunity to review the required clinical competencies and discuss how the assessment will be conducted. 3. Provide an applicant with opportunities to manage patients in the family or specialty medicine practice setting in accordance with the preliminary clinical assessment objectives and the applicant’s level of proficiency.

It is an applicant’s primary responsibility to meet the preliminary assessment objectives. Assessors are expected to facilitate. 4. Discuss any applicant assessment concerns with the appropriate Assistant Registrar or designate. [ 82 ] The PRA Manual was available to Dr. Mohamed, though he had not looked at it, and Justice Hollins found that it was evidence of what the CPSA considered a fair process. However, the PRA Manual was withdrawn from the CPSA’s website in March 2019, apparently in response to this Court’s decisions in Farhat and Mohamed .

The CPSA takes the position that the PRA Manual was discontinued because it had become outdated and no longer reflected the CPSA’s position on appropriate procedural fairness. [ 83 ] The Appeal Panel found that, through the LOU and the Oneschuk Letter, Dr. Sandhu received adequate information about how the PRA would be conducted and what he was to expect. It notes that the PRA Manual was withdrawn prior to Dr. Sandhu’s PRA and can no longer be evidence of what the CPSA thought was a fair process.

The Appeal Panel also found that there was no evidence that the CPSA had adopted the NAC Document and that it should be given little weight in determining what Dr. Sandhu was entitled to expect. [ 84 ] It is for the CPSA to determine its procedures: Farhat at para 60 . The PRA Manual was not mentioned in the LOU or the Oneschuk Letter and I find that it did not apply to Dr. Sandhu’s PRA. Therefore, Mohamed is distinguishable in this regard and any disconnect between expectations set out in the PRA Manual and what transpired in Dr. Sandhu’s case is irrelevant. [ 85 ] Dr.

Sandhu’s argument that removal of the PRA Manual creates a “void” ignores the fact that the LOU and the Oneschuk Letter outlined what the PRA would and would not, involve. Those documents set out the relevant expectations and there is no need to have recourse to either the PRA Manual or the NAC Document. 3 Lack of Orientation [ 86 ] Dr. Sandhu contends that he was not provided with an overview of the practice setting and received less than half an hour of instruction to patient charts.

He takes issue with the Appeal Panel’s finding that the one-day IMG Orientation was sufficient and points out that the PRA Manual and NAC Document contemplate more extensive orientation. Again, I find that these documents are not

relevant to the procedural fairness of Dr. Sandhu’s PRA. The LOU and Oneschuk Letter made clear that he was to obtain his own orientation through AHS. He was not to expect one from Dr. Muller or the CPSA. [ 87 ] Dr. Sandhu complains that Dr. Muller did not discuss with him how the assessment would be conducted or what he was to expect. He was informed in the LOU that neither Dr. Muller nor the CPSA would be providing that overview.

The LOU and the Oneschuk Letter clearly indicate that his knowledge and skills would be observed, first in a hospital and then in a practice setting, and that he was expected to demonstrate sufficient skill to be permitted to practice unsupervised. He was not seeking an internship or residency. [ 88 ] I note that in Mohamed , Justice Hollins placed emphasis on the difference between the environment in which Dr. Mohamed observed clinical practice and that in which he undertook his PRA. Here, there was no disconnect between observational environments that could have led Dr. Sandhu to have conflicting expectations.

Moreover, the CPSA expressly disabused Dr. Sandhu of any expectation that he would be provided with orientation by either Dr. Muller or the CPSA. 4 The DOPS Tool [ 89 ] Dr. Sandhu asserts he was advised by Dr. Oneschuk that Dr. Muller would be using both GroveWare and the DOPS tool to evaluate him. He claims that Dr. Muller’s failure to complete a DOPS form was procedurally unfair. He notes in Mohamed , Justice Hollins overturned the decision of the CPSA because, among other things, Dr. Mohamed was told to prepare for an assessment involving tools that were, without his knowledge, replaced with others. [ 90 ] Dr.

Sandhu does not explain why the absence of DOPS reporting is procedurally unfair and it is not clear to me what was lost to him as a result of this absence. Having compared the DOPS form with the Assessment Notes, I accept the CPSA’s argument that during Dr. Sandhu’s abbreviated PRA there were few, if any, “procedures” performed that would have led to the completion of a DOPS form and that he received a “satisfactory” rating on those he did perform. [ 91 ] Furthermore, while in Mohamed , the assessment was performed using tools entirely different from those Dr. Mohamed had been advised to expect, Dr.

Sandhu was in fact evaluated using GroveWare, as advised and his response letter to Dr. Ulan shows that he was aware of Dr. Muller’s concerns. He was not prejudiced by the failure to use DOPS. 5 Lack of Feedback [ 92 ] Dr. Sandhu complains that he received no guidance or feedback from Dr. Muller until the PRA was put on hold. He argues that he reasonably expected he would receive valuable guidance from an experienced physician assessor as he adapted to practice in Canada.

He points to Justice Hollins’ statement in Mohamed at para 25 that “whether it was contained in the manual or not, the requirement for feedback as part of a ‘high stakes’ assessment such as this is fairly expected by the applicant.” [ 93 ] Justice Hollins, however, went on to state: Even though there is a disclaimer in the pro-forma portion of the Letter of Understanding saying that the College is not obligated to provide feedback, there is also a subsequent paragraph saying that an applicant in the Preliminary Clinical Assessment (the first part of the PRA) will be interviewed at the midpoint of the assessment and “will be asked to confirm if he is reviewing feedback from the assessor.” At best, these are mixed message within the same document.

At worst, the specific mention of discussing feedback would override the general disclaimer. [ 94 ] The circumstances in Mohamed were different. By the time Dr. Sandhu started his PRA, the PRA Manual was no longer applicable and a midpoint interview was no longer contemplated. [ 95 ] I do not agree that Dr. Sandhu reasonably could expect to receive guidance. Both the LOU and the Oneschuk Letter make clear that the PRA is not a training experience.

Its purpose is not to remedy deficiencies in a candidate’s education or experience, but to determine if the candidate is ready to practice medicine in Alberta independently. The LOU expressly provided that the PRA did not necessarily involve Dr. Muller giving Dr. Sandhu advice that would assist him in becoming practice ready. [ 96 ] Dr. Sandhu complains that he was not notified of deficiencies or weaknesses until the PRA was put on hold and it was already too late for him to do anything about it.

He points to clause 11 of the LOU which provides, in part, that “…the Applicant will be informed about his/her identified deficiencies or weaknesses.” He also refers to clause 22 of the LOU indicating that he would receive email communication from the CPSA at the midpoint of his PRA asking him to confirm that he was reviewing Assessment Notes compiled by his assessor. [ 97 ] In my view, Dr. Sandhu was informed of his deficiencies and weaknesses.

While there was a delay in posting the Assessment Notes, there were available on or shortly after January 20, 2020 and they are replete with references to discussions between Drs. Sandhu and Muller about patient situations. They also contain numerous examples of direction and instruction given by Dr. Muller to Dr. Sandhu. In addition, Dr. Ulan’s letter of February 5, 2020 set out Dr. Sandhu’s deficiencies in detail and attached both the Assessment Notes and the Log Notes. 6 Early Termination [ 98 ] Dr.

Sandhu argues that the CPSA Decision to terminate his PRA after only two weeks was not justified and deprived him of a fair opportunity to demonstrate competence over an adequate period of time. He acknowledges that the CPSA retains the right to terminate a PRA, but asserts that it must do so only when it has had due regard for the rights and interests of the applicant and has ensured that the process is fair. He contends that the termination was based on inaccurate information obtained solely from Dr.

Muller and takes issue with the Review Panel’s finding that the references in GroveWare to observations by others were sufficient.

[99] I am satisfied the Appeal Panel understood Dr. Sandhu’s concern that the early termination of the PRA did not provideadequate time for him to respond to criticisms and incorporate them in his practice. The Appeal Panel was alert to Dr. Sandhu’sargument that failure to use the DOPS tool because his PRA was terminated so early underlines the unfairness to Dr. Sandhu and theimportance of ensuring there is adequate time to be assessed using the tools that the candidate was told would be used. [100] That notwithstanding, concerns about patient safety were identified in Dr.

Sandhu’s case and I do not accept the premise thatthe CPSA may terminate a PRA where there are concerns for patient safety only after an applicant’s “rights and interests” have beentaken into consideration. In my view, that approach would be antithetical to the CPSA’s duty under the Health Professions Act to protectand serve the public interest. [101] Before the Appeal Panel, Dr. Sandhu noted that the applicant in Alfahem was afforded additional time and training to completethe PRA.

He also points to Justice Hollins’ comment in Mohamed that: While there is no question that the College retains the discretion to terminate any PRA before completion, the very early termination ofDr. Mohamed’s PRA aggravated the other circumstances arising from the lack of orientation and the uncertainty of the assessmentprocess. [102] However, those cases are distinguishable in that there was no suggestion in either of them that patients were at risk. 7 Bias [103] Dr. Sandhu argues that Dr.

Muller pre-determined the outcome of his PRA and did not give him a fair opportunity to succeed.He complains that, only five days after his PRA began, Dr. Muller advised the CPSA that he was confident that Dr. Sandhu would beunable to manage independently in a clinical setting, but the Log Note dated January 30, 2020 indicates that: Dr. Muller feels [Dr. Sandhu] has the medical knowledge, but he is unable to appropriately apply this knowledge and to know how toprioritize medical concerns. [104] Dr. Sandhu alleges that Dr.

Muller’s criticisms, as recorded in the Assessment Notes, were inaccurate, incomplete and unfairand constituted evidence of bias. He points to several instances where he and Dr. Muller have different

interpretations of what occurred. [105] Dr. Sandhu asks the Court to favour his version of events over that of Dr. Muller. The Court cannot do that. There is no rationalbasis for retrospectively preferring Dr. Sandhu’s version of events some 18 months ago over the observations in Dr. Muller’s AssessmentNotes made contemporaneously. The Court must rely on the record created at the time. It would be inappropriate to find bias on Dr.Muller’s part simply because he and Dr. Sandhu have different versions of these events. Dr. Sandhu was given a chance to present hisversion of events to Dr.

Ulan prior to the CPSA Decision. 8 Conclusion [106] As noted above, Dr. Sandhu seeks a new PRA with a new assessor. He contends that because the PRA process was unfair, it isimpossible to know what the outcome would have been if it had been fair. He argues that courts have repeatedly held that the denial of aright to procedural fairness must always render a decision invalid, because it is an independent, unqualified right of any person affectedby the administrative decision.

He quotes the Supreme Court of Canada in Cardinal v Director of Kent Institution, (SCC), [1985] 2 SCR 643 at para 23: It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been. [107] I agree with that statement but I find that the process in question here was not unfair, for the reasons set forth above. As I havealready noted, Dr. Sandhu was entitled to expect procedural fairness during his PRA, during the Assistant Registrar’s review leading tothe CPSA Decision and before the Appeal Panel.

He was entitled to an assessor who was free from bias and would not predetermine theoutcome. He was entitled to expect the Assistant Registrar to weigh the evidence before her objectively and to give appropriateconsideration to his views and arguments. I am satisfied that was what he received. He was not entitled to expect that he would besuccessful in his PRA. [108] I am of the opinion that fairness in the PRA process requires consideration of the interests of various stakeholders, including Dr.Sandhu, his patients, Dr. Muller and the CPSA, which was responsible for ensuring that Dr.

Sandhu was competent to practiceindependently in Alberta. [109] In my view, Dr. Sandhu is reverse engineering, concluding that the reason he was found incapable of providing safe andeffective care to patients was because of procedural unfairness rather than, as Dr. Muller and the CPSA concluded, because he lacked therequisite knowledge and experience. C. Reasonableness [110] Dr.

Sandhu cites Canada (Ministers of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 81 regarding the featuresthat make a decision reasonable: …the reviewing court asks whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility –and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision. [111] Dr. Sandhu notes that a number of elements generally will be relevant in evaluating whether a decision is reasonable: 1. the governing statutory scheme;

2. other relevant statutory or common law; 3. the principles of statutory

interpretation; 4. the evidence before the decision maker and facts of which the decision maker may take notice; 5. the submissions of the parties; 6. the past practices and decisions of the administrative body; and 7. the potential impact of the decision on the individual to whom it applies. [ 112 ] He also quotes as follows from Vavilov at para 112 : Any precedents on the issue before the administrative decision maker or on a similar issue will act as a constraint on what the decision maker can reasonably decide. [ 113 ] In this regard, Dr.

Sandhu argues that “ The decisions in Farhat , Alfahem and Mohamed are binding precedent that act as a constraint on what the College may decide in this case.” [ 114 ] This statement is simply incorrect. Clearly, none of those decisions is binding on this Court. Furthermore, what is procedurally fair will vary from case to case and the CPSA has a responsibility to respond to the unique circumstances of each case. [ 115 ] Dr. Sandhu claims that the Assistant Registrar failed to provide responsive reasons and adequate justification in the CPSA Decision because she accepted Dr. Muller’s criticisms and ignored Dr.

Sandhu’s responses. [ 116 ] I agree that Vavilov emphasizes that the quality of the Assistant Registrar’s reasons for discontinuing the PRA must reflect the stakes. However, the fact that she accepted Dr. Muller’s and not Dr. Sandhu’s explanations does not mean that she failed to provide responsive reasons or adequate justification, failed to appreciate the consequences to Dr. Sandhu or simply rubber-stamped Dr. Muller’s conclusions. [ 117 ] Dr.

Sandhu proffers three grounds for his position that the CPSA Decision is unreasonable. 1 There was no reasonable basis to conclude that there was a “substantive risk to the public” [ 118 ] First, Dr. Sandhu argues that the Assistant Registrar arrived at this conclusion based solely on Dr. Muller’s reports of incidents where Dr. Sandhu’s performance was deficient or he had caused harm to a patient. Dr. Sandhu claims the only instance of injury to a patient was the injury to a child’s ear canal that he says was attributable to the child’s unpredictable head movements.

He asserts that “nearly all of the complaints were minor, having to do with charting or communication, and many of which did not accurately record the interaction as explained earlier”. [ 119 ] The Appeal Panel found that the Assistant Registrar’s conclusion that Dr. Sandhu posed a risk to the public was reasonable, based on the evidence before her. I find that both the Assistant Registrar’s conclusion and the Appeal Panel’s acceptance thereof are reasonable. In my view, it is reasonable to conclude that proper charting is essential to the delivery of safe and effective medical care.

Inaccurate or incomplete patient charts that fail to record observations and course of treatment pose a risk of adverse outcome to patients. Similarly, I find it reasonable to conclude that clear and accurate communication with patients and other health care professionals is important to the independent practice of medicine. 2 The decision to terminate was a foregone conclusion created by the assessor [ 120 ] Dr. Sandhu claimed that his PRA was terminated because Dr. Muller refused to continue with it.

This, he argues, was improper as only the Assistant Registrar or his or her designate may decide to terminate a PRA. [ 121 ] Dr. Sandhu points to this statement in the CPSA Decision (emphasis in Dr. Sandhu’s brief): I made the decision to discontinue your PCA after two weeks because of the overwhelming evidence that you did not demonstrate competence in either the hospital or community practice setting and that there was substantive risk to the public.

Your assessor was no longer willing to continue the assessment because of the potential risk to his patients and that you were functioning at the level of a medical student and required training rather than an assessment. [ 122 ] Dr. Sandhu argues that the assertion that there was overwhelming evidence that he did not demonstrate competence is directly contradicted by the Log Note of January 30, 2020: Dr. Muller feels he has the medical knowledge, but he is unable to appropriately apply this knowledge and to know how to prioritize medical concerns. [ 123 ] Dr.

Sandhu argues that the Assistant Registrar failed to take into account this evidence that he has the necessary medical knowledge and that this undermines her conclusion that there was “overwhelming evidence” of failure to demonstrate competence and bolsters his argument that his PRA was terminated not because of patient safety concerns or lack of medical knowledge, but because Dr. Muller refused to continue. [ 124 ] The Assessment Notes and the Log Notes indicate that, despite Dr. Sandhu’s knowledge level, Dr. Muller’s view was that his ability to apply that knowledge in a clinical setting was inadequate.

The Appeal Panel found that the comment about medical knowledge must be read in the context of the entire Log Note, including the conclusion that Dr. Sandhu was functioning at the level of a second-

year medical student. I find the conclusions of both the Assistant Registrar and the Appeal Panel are reasonable. 3 The remedial requirement is unreasonable [ 125 ] Finally, Dr. Sandhu points to the Assistant Registrar’s requirement that he undergo two years of accredited postgraduate training in family medicine that meets with the approval of the CPSA before he will be eligible to apply again for licensure in Alberta. He argues that this is excessive and unreasonable and should be set aside. [ 126 ] The Appeal Panel found that, given the nature of the concerns about Dr.

Sandhu’s competence, this requirement was reasonable. I find the Appeal Panel’s conclusion reasonable. V. Conclusion [ 127 ] This Court cannot decide if Dr. Sandhu is fit to practice medicine in Alberta. That responsibility is vested with the CPSA. The Court is, however, vested with responsibility for determining if the PRA was procedurally fair and produced an objectively reasonable result. [ 128 ] I find the process was fair.

In light of the social importance of ensuring patient safety and the CPSA’s duty under the Health Professions Act to protect the public interest, considerable deference must be accorded to the CPSA in the articulation, implementation and enforcement of its policies in that regard, notwithstanding the great importance of the decisions to individual applicants. [ 129 ] With respect to reasonableness, the Supreme Court of Canada in Vavilov at para 100 held that p erceived flaws in a decision must be more than merely superficial, minor, or peripheral to the substance of the outcome.

A party challenging a decision must establish that the flaws in the reasoning or outcome are sufficiently central or significant to render the decision unreasonable. [ 130 ] I find that the CPSA Decision and the Appeal Panel Decision were reasonable. Both were intelligible. Both were transparent in the sense that they clearly identified what the issues were and what evidence was relied upon to resolve those issues. Both the Assistant Registrar and the Appeal Panel gave justifications for their respective decisions.

Each clearly identified the outcome of the decision- making process and the steps taken to arrive at it. [ 131 ] In the end, the view of the professional body charged with ensuring appropriate standards of medical practice was that Dr. Sandhu failed to meet those standards. That conclusion was reasonable and the process by which it was reached was fair. [ 132 ] I agree with this comment from Justice Graesser in Alfahem at para 127 : Decisions like this are not easy, especially when they have such significant consequences to the parties. It is disappointing for Dr.

Alfahem that his long-standing plan to practice family medicine in Alberta has not come to fruition. He has undoubtedly worked very hard to achieve this goal. Nevertheless, the College has duties to the medical profession and the public, and as pointed out by the College in its submissions, the Courts should give significant deference to registration decisions. [ 133 ] Dr. Sandhu’s application for judicial review is dismissed. [ 134 ] If the parties cannot agree on costs, they may make written submissions to me within thirty days of the date of these Reasons. Heard on the 08 th day of April, 2021.

Dated at the City of Calgary, Alberta this 28 th day of June, 2021. C.M. Jones J.C.Q.B.A. Appearances: Ryan M.L. Phillips for the Applicant Craig Boyer for the Respondent