Shalaby v College of Physicians and Surgeons of Alberta, 2021 ABQB 515

Court of Queen’s Bench of Alberta Citation: Shalaby v College of Physicians and Surgeons of Alberta, 2021 ABQB 515 Date: 20210707 Docket: 2003 16380 Registry: Edmonton Between: Ashraf Shalaby Applicant - and - College of Physicians and Surgeons of Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Douglas R. Mah _______________________________________________________ A. This Decision [ 1 ] I heard, decided and gave oral reasons in this matter on May 12, 2021.

Subsequently, I was asked by one counsel to issue a written decision to help guide future decisions of the College of Physicians and Surgeons of Alberta and other Colleges under the Health Professions Act with respect to website publication of information concerning their members. In doing so, I have been careful to provide a faithful rendition of what I said on that day and to not supplement the decision with additional reasons. The only changes I have made is to add headings and citations, this introductory paragraph and the concluding paragraphs dealing with something that arose after the

decision. B. Background [2] This is an application by Dr. Shalaby for a stay of proceedings pending the hearing of a judicial review application, yet to bescheduled, concerning the decision of the College to publish the fact of his criminal charge on its website. [3] Dr. Shalaby self-reported to the College that he had been charged with one count of sexual assault in respect of an April 22,2020 incident, occurring in the course of his practice involving a female patient. The self-report was made on May 26, 2020. [4] As a result of negotiations between the College and Dr. Shalaby’s counsel, Dr.

Shalaby entered into an undertaking which,among other things, required him as a condition of practice to have a chaperone with him while with female patients. [5] The fact of the agreed-upon condition is reported on the College’s website in relation to Dr. Shalaby’s information.However, the College wishes to go further and include as information about Dr. Shalaby the fact that he faces these criminal charges. [6] By decision contained in an October 13, 2020 email from the then registrar Dr. MacLeod to Dr.

Shalaby’s counsel, theregistrar indicated that the College would not issue a media release about the criminal charge but was “obligated to make the informationavailable on the CPSA website.” This decision, such as it was, was the product of email discussion between Dr. Shalaby’s counsel andDr. MacLeod concerning how and what information would be made available to the public concerning the criminal charge. [7] It is this decision to publish the information on the website that leads to the judicial review. [8] I well recognize that Dr.

Shalaby denies the charge, has pleaded not guilty, will defend the matter at trial in provincial court,is presumed innocent of the criminal charge until proven guilty by a court of law and takes the position that he has been unjustly accused. C.

Test for Stay [9] Counsel in the application before me agreed that the test for stay is that articulated in the Supreme Court of Canada decisionin RJR-MacDonald Inc v Canada (Attorney General), (SCC), [1995] 3 SCR 199 consisting of the 3 components of: • is there a serious issue to be tried? • will the applicant suffer irreparable harm? and • where does the balance of convenience lie? D. Serious Issue to be Tried? [10] On the first point of whether there is a serious issue to be tried, it is agreed there is a low threshold to be met.

Counsel for Dr.Shalaby suggests a serious issue in this judicial review consists of the decision being unreasonable in of one or more of the followingways: • First, that the decision is internally inconsistent, in that Dr. MacLeod agreed to resile from sending out a media release about thecriminal charge, but then landed on publishing the fact of the criminal charge on the website, which in counsel’s submission amounts tothe same thing. Dr. Shalaby says that Dr.

MacLeod must have accepted his arguments regarding reputational and financial harm byagreeing not to issue the media release, but then immediately contradicted himself by saying there would be publication on the website. • Second, Dr. Shalaby says that Dr. MacLeod incorrectly stated that he was obligated to make the publication on the website, whensuch decision is clearly discretionary; and • Third, that

section 135.93 (4) of the Health Professions Act, properly construed and read in context, prevents publication ofinformation relating to sexual misconduct or sexual abuse by a practitioner, absent a finding by the appropriate statutory tribunal. [11] Dr. Shalaby takes the position that any or all of these three facets of unreasonableness need to be fully canvassed andconsidered in a judicial review application, and therein lies the serious issue. [12] I am not persuaded that there is a serious issue to be tried here, and I am prepared to dismiss the application on that basis. [13] First, I do not consider Dr.

MacLeod’s decision not to issue a media release to be inconsistent with his decision to publish thefact of the criminal charge on the College’s website. There was much discussion during the hearing regarding the difference betweenwhat is publicly available and what is publicly notorious. By not issuing the media release, I can see the Dr. MacLeod chose not to makethe fact of Dr. Shalaby’s criminal charge notorious.

He did, on the other hand, choose to make that information publicly available on thewebsite, for those who might choose to seek it out. [14] The College’s counsel argued that there is a sound public policy rationale for the latter. To publish the “what” of the matter,that is the fact of the chaperone condition, without publishing the “why” or the reason for the condition, counsel says would bemisleading, paternalistic if not misogynistic.

He says the information of the “why” permits the person seeking the information to makean informed decision about whether to commence or continue a relationship with the practitioner.

[ 15 ] The College’s counsel argued, and I agree, that no evidence was adduced by the applicant to show that publication on the website was tantamount to issuing a media release. During the hearing, I used the words “public realm” and “public consciousness” to differentiate between the two levels of knowledge within society or the community. Information that is lodged within the Court’s computers or files is publicly available and in the public realm. The report of a trial such as the Barton trial [1] or the Travis Vader trial [2] is in the public consciousness.

There is a vast difference between the two. [ 16 ] Listening to or being aware of the news is something that every person in the community does. Searching out information on the website of the College, or even going to that website, is not something that everyone in the community does. [ 17 ] Second, it is not contested that since the decision is a decision made within jurisdiction and a discretionary decision at that, the Court would accord deference. The bylaw making power found in section 132 (1) clearly permits the College to enact bylaws regarding the content of publication on the website.

The bylaw itself, at section 47(4), provides what may be published or disclosed and the criteria used to decide. Counsel agreed that the decision in this case is discretionary. I do not see how the applicant could be successful in convincing a Court that the decision should be overturned on an administrative law basis as unreasonable. [ 18 ] Nor do I think the mere use of the word “obliged” in context means legally compelled.

Read properly, the use of the word reflects registrar’s overall view that it is in the public interest for the College to publish this information on the website as part of meeting its public interest mandate. [ 19 ] Finally, I conclude that

section 135.93 (4) of the HPA can have no other meaning other than a decision of acquittal by tribunal, council or court in respect of an allegation of sexual malfeasance must have been made before the

section applies. [ 20 ] For these reasons, I conclude that the first part of the RJR Macdonald test has not been met. E. Irreparable Harm? [ 21 ] While it is not strictly speaking necessary for me to consider the remaining two parts, I will make these remarks in passing. I realize that by making the decision that I have, I have essentially disposed of the judicial review application itself. However, one cannot get to the second part of the test unless one meets the first part. Further, other than mere assertion whether by way of counsel submission or in a letter by Dr. Shalaby to the College, Dr.

Shalaby has not satisfied me to the required civil standard that he will suffer irreparable harm. Part of that irreparable harm that he alleged relates to the extent of the publication and, as I said before, he has not satisfied me that publication on the website is equal to the broad dissemination over TV, radio and print. F. Balance of Convenience [ 22 ] Finally, in terms of the balance of convenience, I have regard to what the Court of Appeal said in 2013 in Zakhary v College of Physicians and Surgeons of Alberta , 2013 ABCA 336 at para 19 about the purpose of professional licensing regimes.

The publication on the website serves the purpose of informing the public without causing widespread notoriety. G. Result [ 23 ] For these reasons, the application is dismissed. H. Subsequent Events [ 24 ] Counsel for Dr. Shalaby wrote to me on June 3, 2021 to state that the College, despite request, had not committed to a form of website publication. He suggested that the College’s decision itself was now ambiguous and that counsel should appear before me again to seek clarity as to the nature and extent of the permitted publication.

Counsel for the College did not require further audience. [ 25 ] It is not necessary for me to take further submissions on the form of publication. The decision to me, as set out in Exhibits 7 and 8 of the October 20, 2020 affidavit filed on behalf of Dr. Shalaby, is clear. Further, I did not direct the College to engage in any particular form of publication, nor do I think I should.

The College has its policies and practices in that regard, overseen by an elected council with appointed pubic members. [ 26 ] Finally, as I told counsel, I release this decision to them now for their own purposes but will direct that publication be delayed until after Dr. Shalaby’s trial on the criminal charge. Heard on the 12 th day of May, 2021. Dated at the City of Edmonton, Alberta this 7 th day of July, 2021.

Douglas R. Mah J.C.Q.B.A. Appearances: Mathieu LaFleche Bennett Jones LLP for the Applicant Craig Boyer Shores Jardine LLP for the Respondent