Al-Naami v College of Physicians and Surgeons of Alberta, 2021 ABQB 549

Court of Queen’s Bench of Alberta Citation: Al-Naami v College of Physicians and Surgeons of Alberta, 2021 ABQB 549 Date: 20210716 Docket: 2003 09129 Registry: Edmonton Between: Dr. Ghassan Al-Naami Applicant - and - College of Physicians and Surgeons of Alberta Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W.N. Renke _______________________________________________________ [ 1 ] Dr.

Ghassan Al-Naami has applied for judicial review of decisions of the Complaints Director (the Director) of the College of Physicians and Surgeons of Alberta (the College). [ 2 ] In August 2019, Dr. Al-Naami was charged with two child pornography offences. A complaint under the Health Professions Act was opened against Dr. Al-Naami (the First Complaint). Following discussions with the Director, Dr. Al-Naami provided an undertaking to withdraw from practice and the College stayed its investigation pending resolution of the criminal charges. Dr. Al-Naami

subsequently sought to return to practice under conditions. The Director required Dr. Al-Naami’s consent to communicate with the Crown prosecutor respecting Crown disclosure for the charges. Dr. Al-Naami has not provided that consent. The Director has not authorized Dr. Al-Naami to return to practice on conditions. [ 3 ] In September 2019, another complaint against Dr. Al-Naami was opened based on concerns raised by a parent concerning the mode of examination of her two children (the Second Complaint). Information was gathered from the complainant and Dr.

Al-Naami respecting this complaint but the investigation has gone no farther. No decisions made in relation to the Second Complaint are challenged. [ 4 ] The decisions challenged are the Director’s refusal to accept Dr. Al-Naami’s revocation of his undertaking, the Director’s requirement that Dr. Al-Naami provide his consent for the College to receive information about Crown disclosure from the Crown prosecutor, and the Director’s refusal to allow Dr.

Al-Naami to return to practice on conditions. [ 5 ] Before turning to the review of the Director’s decisions, I will address the anonymization of this decision, the admissibility of an affidavit proffered by Dr. Al-Naami, whether this application should be dismissed without consideration of its merits, the standard of review, and the facts. I note that I decided the admissibility, prematurity, and standard of review issues in the hearing. [ 6 ] I clarified at the outset of the hearing that the application was for judicial review not for a stay under s. 65(2) of the Health Professions Act .

The application was framed as an application for judicial review, with only some intimations to the contrary. The College responded to an application for judicial review and the argument proceeded on the basis that the application was for judicial review. [ 7 ] As I mentioned in the hearing, this application proceeded with an acknowledgement of the seriousness of child pornography offences, as recently confirmed in R v Friesen , 2020 SCC 9 at paras 44 fn 2 and 51. Table of Contents I. Anonymization . 3 II. The Record . 4 III. Preliminary Objections . 5 A. Prematurity . 5 B.

Section 41 Review .. 7 C. Purely Administrative Decision . 8 IV. Standard of Review .. 8 A. Presumption of Reasonableness . 8 B. Exception to Reasonableness Review – General Question of Law .. 9 C. Features of Reasonableness Review .. 10 D. Not the Legal Test for a Stay . 12 V. Facts . 12 VI. Issues . 20 VII. The College’s Decision Space . 20 A. Statutory Scheme . 20 1. The Public Interest 20 2. Procedural Context 21 B. The College and its Members . 21 1. Duty to Cooperate . 21 2. Impact of the Decision on the Affected Individual 21 C. Respect for Charter Values . 22 VIII. Assessment 22 A. Was Dr.

Al-Naami entitled to rescind his Undertaking unilaterally? . 22 B. Was Dr. Al-Naami entitled to request the College to reconsider its position? . 24 C. Was the Director’s reconsideration of Dr. Al-Naami’s Undertaking reasonable? . 25

1. What was the Director required to decide?. 26 2. What did the Director decide?. 27 3. Was the decision to require Dr. Al-Naami’s consent respecting Crown disclosure reasonable? 28 4. Was the Director’s response to Dr. Al-Naami’s request for reconsideration reasonable?. 32 IX. Remedy. 38 X. Costs. 40 I. Anonymization [8] Dr. Al-Naami’s trial is set for January 2022 in Provincial Court. At the hearing, I inquired whether I should anonymize thisdecision because Dr. Al-Naami has not yet gone to trial.

Counsel for the College submitted that were anonymization contemplated anapplication should have been made on notice to the media. No such application has been made. [9] There was no suggestion that the criminal trial will be proceeding by jury. [10] This decision will not identify any children. The Alberta Law Enforcement Response Team has already publicized Dr. Al-Naami’s charges. There was no argument that identifying the parties to this judicial review would imperil Dr. Al-Naami’s rights in hiscriminal trial to be presumed innocent or to a fair trial.

In the circumstances, I do not have grounds to restrict the open courts principleand to anonymize this decision and I decline to do so: AB v Bragg Communications Inc, 2012 SCC 46, Abella J at paras 11, 13; AG(Nova Scotia) v MacIntyre, (SCC), [1982] 1 SCR 175, Dickson J, as he then was, at 185-187. II. The Record [11] An unusual feature of this judicial review application is that the decisions under review are not set out in the formal reasonsfor decision of an administrative tribunal.

Rather, the decisions were made by the Director, a front-line statutorily-recognizedadministrator of a statutorily-recognized governing body of a profession: see Health Professions Act, ss. 1(1)(e), (i), (l), 2, 5, and 14. Thedecisions were made in the course of informal, pre-investigation and pre-hearing processes. The Certified Record of Proceedings (CRP),then, largely comprised correspondence between the Director and counsel for Dr. Al-Naami (Applicant’s Counsel) and ancillarydocuments. [12] Dr. Al-Naami sought to introduce an affidavit to supplement the record, sworn by Dr. Al-Naami on May 26, 2020.

Theaffidavit, for the most part, duplicated material already on the record. [13] I declined to admit the affidavit for two reasons. [14] First, the general rule in judicial review applications is that the evidence is confined to the record. This makes sense, sinceusually what is at issue is the propriety of the decision-maker’s determination on the evidence and argument before that decision-maker.Rule 3.22 provides as follows: 3.22 When making a decision about an originating application for judicial review, the Court may consider the following evidence only: (

a) the certified copy of the record of proceedings of the person or body that is the subject of the application, if any; (

b) if questioning was permitted under rule 3.21, a transcript of that questioning; (

c) anything permitted by any other rule or by an enactment; (

d) any other evidence permitted by the Court. [15] In Alberta Liquor Store Association v Alberta (Gaming and Liquor Commission), 2006 ABQB 904, Justice Slatter, as hethen was, confirmed at paras 40 and 42 that the general rule is that judicial review is based on the record before the tribunal andaffidavits are admitted only in exceptional circumstances. None of the exceptional circumstances identified by Justice Slatter in para 41are engaged in this case.

See also Alberta College of Pharmacists v Sobeys West Inc, 2017 ABCA 306 at para 67, leave to appeal toSCC refused 37864 (August 9, 2018); JK v Gowrishankar, 2019 ABCA 316 at para 60; British Columbia (Attorney General) vProvincial Court Judges’ Association of British Columbia, 2020 SCC 20 at para 52. [16] Second, except when commenting about the direct personal adverse impacts of his practice suspension, Dr. Al-Naami sworeto matters on information and belief not to matters within his personal knowledge. The affidavit was mostly hearsay.

In my opinion, ajudicial review application is a type of “final” proceeding, since if successful the challenged decision will be nullified. Under rule13.18(3),

(3) If an affidavit is used in support of an application that may dispose of all or part of a claim, the affidavit must be sworn on the basisof the personal knowledge of the person swearing the affidavit. An applicant’s affidavit based on information and belief is not an appropriate evidential foundation for final relief. See Murphy v Cahill,

2012 ABQB 793 , Veit J at para 25. [ 17 ] I also observe that the affidavit mostly concerned communications between Applicant’s Counsel and the Director. Hence the mostly hearsay nature of the affidavit. There may be circumstances in which this type of affidavit is practically unavoidable, harmless, or otherwise countenanced. Typically, though, an affiant should not simply relay information received from a lawyer, thereby insulating the lawyer from examination on the affidavit.

See Calf Robe v Canada , 2006 ABQB 652 , McMahon J at para 11; Paquin v Lucki , 2017 ABCA 79 at para 9 ; Canada (Attorney General) v Andronyk , 2017 ABCA 139 at paras 20-21 . III. Preliminary Objections A. Prematurity [ 18 ] Counsel for the College argued that I should dismiss Dr.

Al-Naami’s application on the grounds of prematurity (or, put in other ways, on the grounds that the application violated the principle of exhaustion or the principle against fragmentation of proceedings). [ 19 ] The general rule is that statutory review processes and procedures for the decision-maker should be completed before turning to the courts for judicial review.

In Canada (Border Services Agency) v CB Powell Ltd , 2010 FCA 61 , Justice Stratas described the “principle of judicial non-interference with ongoing administrative processes” in this way at paras 30 - 33: [30] The normal rule is that parties can proceed to the court system only after all adequate remedial recourses in the administrative process have been exhausted.

The importance of this rule in Canadian administrative law is well-demonstrated by the large number of decisions of the Supreme Court of Canada on point .... [31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews.

All of these express the same concept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course . This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court .

Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted . [32] This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway ....

Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience .... Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge .... [33] Courts across Canada have enforced the general principle of non-interference with ongoing administrative processes vigorously.

This is shown by the narrowness of the “exceptional circumstances” exception .... Suffice to say, the authorities show that very few circumstances qualify as “exceptional” and the threshold for exceptionality is high .... [emphasis added] See also Litchfield v College of Physicians and Surgeons of Alberta , 2005 ABQB 962 , Hillier J, at paras 31-35. [ 20 ] In this case, the investigation of the First Complaint has not been completed. Indeed, the investigation was suspended not long after the complaint was opened. The investigation of the Second Complaint is not complete.

There has been no hearing, no internal appeal, and no appeal to the Court of Appeal respecting either complaint. [ 21 ] Nonetheless, I decided that the application was not premature and I declined to dismiss it. [ 22 ] The preliminary nature of the process left Dr. Al-Naami without other remedy, and he would be left without remedy for months to come. The decision was by the Director, not a higher-level tribunal attracting a statutory right of appeal, and not by the higher- level tribunal that will ultimately decide Dr. Al-Naami’s professional fate. Dr. Al-Naami’s practice suspension was by way of undertaking.

The Director did not suspend Dr. Al-Naami’s practice permit. Hence, Dr. Al-Naami could not apply for a stay under s. 65(2) of the 65(1) On the recommendation of the complaints director or the hearing tribunal, a person or committee designated by the council may at any time after a complaint is made until a hearing tribunal makes an order under

section 82 (

a) impose conditions on an investigated person’s practice permit generally or with respect to any area of the practice of that regulated profession, including the condition that the investigated person (

i) practise under supervision, or (ii) practise with one or more other regulated members, or (

b) suspend the practice permit of an investigated person ,

until the completion of proceedings under this Part.

(2) An investigated person may apply to the Court of Queen’s Bench for an order staying a decision by a person or committee undersubsection (1) …. [emphasis added] Counsel for the College did not argue that s. 65 applied and that a stay application was available. [23] Dr. Al-Naami’s inability to practice medicine is operating now and has real-time effects. Dr. Al-Naami removed himself frompractice in August 2019. I did not need his affidavit to infer that he and his family have been suffering a serious adverse financial impactand his practice too would have been adversely affected.

Hardship was established. [24] This application would not cause delay since the College’s investigation of the First Complaint has been suspended pendingcompletion of the criminal trial, which is months away.

The results of this application will not affect the time-line of the administrativeprocess. [25] Further, in the following cases judicial reviews of interim dispositions by physicians’ professional regulatory bodies werepermitted: Fingerote v The College of Physicians and Surgeons of Ontario, 2018 ONSC 5131 (Div Ct), Myers J; Morzaria v Collegeof Physicians and Surgeons of Ontario, 2017 ONSC 1940, Gilmore J; Rohringer v Royal College of Dental Surgeons of Ontario, 2017ONSC 6656, Spies J; Huerto v College of Physicians and Surgeons of Saskatchewan, 2004 SKQB 423, Foley J. [26] The existence of statutory review provisions such as s. 65(2) of the Health Professions Act speaks to the need for review ofinterim decisions with potentially severe impacts on professionals.

It would be inconsistent and unfair to Dr. Al-Naami to deny review onthe technical ground that the decision to make the undertaking was his and not the Director’s. Dr. Al-Naami is suffering the sameadverse effects as if the Director had suspended him. In effect, the College is blocking Dr. Al-Naami’s return to practice as if Dr. Al-Naami had been suspended. B.

Section 41 Review [27] Counsel for the College raised, for the first time at the hearing, the prospect of Dr. Al-Naami applying for a practice permitunder s. 40 of the Health Professions Act. If a practice permit were issued subject to conditions, suspended or refused, a review isavailable under s. 41. That is, a statutory process was available to Dr. Al-Naami that would have permitted a statutory review. Theimplication is that Dr. Al-Naami has not exhausted his statutory options so judicial review should not be available to him. [28] I found that ss. 40 and 41 did not enhance the College’s prematurity argument.

Dr. Al-Naami could not apply under s. 40without encountering the issue of whether he could unilaterally rescind his undertaking to withdraw from practice. The College’sposition is that Dr. Al-Naami is bound by his undertaking not to practice. For him to apply for a practice permit would be to violate hisundertaking. The same issues to be decided in the present application would require determination before the s. 40 process could beengaged. [29] In any event, and I need not decide this matter, it is not clear that the s. 40 process applies in disciplinary or complaintscircumstances.

That is, it is not clear that interim conditions or a suspension to be imposed on an investigated member (assuming those tobe the result of a s. 40 application by Dr. Al-Naami) should be imposed through s. 40 or by the Director.

Section 40 falls within

Part 2 ofthe Act concerning Registration, not

Part 4 of the Act concerning Professional Conduct and complaints. That suggests that the s. 40process would not have been an appropriate vehicle for Dr. Al-Naami’s pursuit of relief. C. Purely Administrative Decision [30] An issue complementing the “prematurity” issue was not raised in argument, and properly so. For the sake of completeness, Iwill confirm that the Director’s decisions were not immune from judicial review as being “purely administrative in nature:” see, e.g., ALawyer v The Law Society of British Columbia, 2021 BCSC 914 at paras 95-96. The Director’s decisions affected Dr.

Al-Naami’srights, interests, property, privileges, or liberties (of a professional nature) and so are subject to judicial review, notwithstanding the front-line status of the Director or the informal, pre-investigation and pre-hearing context of the decisions: Martineau v Matsqui Institution, (SCC), [1980] 1 SCR 602, Dickson J, as he then was, at 622-623; Mission Institution v Khela, 2014 SCC 24, LeBel Jat para 31. IV. Standard of Review A.

Presumption of Reasonableness [31] Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 established that the presumptive standard ofreview when a court reviews administrative decisions - other than for a breach of natural justice or the duty of procedural fairness - isreasonableness: at paras 16, 23. [32] At paras 88-89, Vavilov confirmed that this standard of review applies across the spectrum of administrative decision-makers: [88] ....

The administrative decision makers whose decisions may be subject to judicial review include specialized tribunals exercisingadjudicative functions, independent regulatory bodies, ministers, front-line decision makers, and more. Their decisions vary incomplexity and importance, ranging from the routine to the life-altering .... [89] Despite this diversity, reasonableness remains a single standard, and elements of a decision’s context do not modulate the

standard or the degree of scrutiny by the reviewing court. Instead, the particular context of a decision constrains what will be reasonablefor an administrative decision maker to decide in a given case. This is what it means to say that “[r]easonableness is a single standard thattakes its colour from the context”: Khosa, at para. 59 .... B.

Exception to Reasonableness Review – General Question of Law [33] The presumption of reasonableness review does not apply if the standard of review is legislated or if the review is by statutoryappeal: Vavilov at para 69. [34] The presumption of reasonableness review is rebutted when the “rule of law” demands a correctness standard of review.

Thecorrectness standard of review applies respecting issues such as constitutional questions, general questions of law of central importance tothe legal system as a whole, and questions regarding jurisdictional boundaries between administrative bodies: Vavilov at paras 53, 69.These are all questions that “[respect] the unique role of the judiciary in interpreting the Constitution and ensures that courts are able toprovide the last word on questions for which the rule of law requires consistency and for which a final and determinate answer isnecessary: Dunsmuir, at para. 58:” Vavilov at para 53; see paras 62 and 59 (the need for “uniform and consistent answers”). [35] Dr.

Al-Naami argued that correctness review was required respecting whether “it is defensible to require that Dr. Al-Naamiprovide his consent to the Crown Prosecutor to give the Crown Disclosure to the CPSA so that the CPSA may assess Dr.

Al-Naami’ssafety to practice,” because the Director’s decision raised a “general question of law of central importance to the legal system as awhole:” Applicant’s Brief at para 36; see also para 39. [36] I disagreed and ruled that reasonableness review applied. [37] This application did not raise an issue like solicitor-client privilege, a doctrine integral to the proper functioning of the rule oflaw. In Vavilov the Supreme Court reminded us of the limited scope of the “general questions of law” exception to reasonablenessreview.

This exception has only been successfully invoked respecting res judicata and abuse of process, the State’s duty of religiousneutrality, limits on solicitor-client privilege, and the scope of parliamentary privilege: Vavilov at para 60. [38] The outcome of the application was, I acknowledged, important to Dr. Al-Naami. There was a possibility that the centralproblem raised by the application – potential access by a regulatory body to Crown disclosure or information derived from Crowndisclosure at the pre-investigation, pre-hearing stage – could affect many professionals in many professions.

But the mere fact that adispute is of “wide public concern” or “touches on an important issue” is not sufficient to attract the correctness standard: Vavilov at para61. In any event, this application, like many others, turned on its own particular facts. [39] In particular, this application did not involve a review or recasting of P(

D) v Wagg, , 71 OR (3d) 229(CA), although some reference will be made to Wagg.

The issues are not (e.g.) • the proper parties to a regulator’s application for production of Crown disclosure • whether the regulator has a “right” to access Crown disclosure in the course of a professional misconduct investigation • whether the Crown has a “right” to refuse access to Crown disclosure to a regulator • the redaction authority of the Crown if disclosure is provided to a regulator • the nature of terms on access that may be imposed if disclosure is provided to a regulator • the impact of an accused’s fair trial interests on whether, when, how, and on what terms Crown disclosure may be provided to aregulator • the scope of public interest immunity in limiting regulator access to Crown disclosure • the protection of privacy of third parties (particularly individual complainants, witnesses, or co-accuseds) and rights ofparticipation of third parties in determinations of whether Crown disclosure should be provided to a regulator.

The Director has not applied for production of Crown disclosure. A sticking point has been – and this will be addressed below – that theDirector has sought Dr. Al-Naami’s consent to communicate with the Crown prosecutor about the case against Dr. Al-Naami. TheDirector does not propose any further investigation at this point. Dr. Al-Naami is not being asked to hand over Crown disclosure to theCollege. [40] The reasonableness standard of review was not dislodged. C.

Features of Reasonableness Review [41] I will identify some general features of reasonableness review, leaving more detailed discussion to my assessment of theDirector’s decisions. [42] Reasonableness review focuses on both the decision-maker’s reasoning process, the decision-maker’s rationale, and theoutcome, decision, or conclusion. The focus is not on the conclusion alone: Vavilov at paras 83, 86. A principled approach toreasonableness review “puts reasons first:” at para 84.

The reviewing court is to pay “respectful attention” to the reasons and to seek tounderstand the reasoning process that led to the conclusion: at para 84. The reasons must justify the decision: at para 86. At para 87 weread that

[87] This Court’s jurisprudence since Dunsmuir should not be understood as having shifted the focus of reasonableness review away from a concern with the reasoning process and toward a nearly exclusive focus on the outcome of the administrative decision under review. Indeed, that a court conducting a reasonableness review properly considers both the outcome of the decision and the reasoning process that led to that outcome was recently reaffirmed in Delta Air Lines Inc. v. Lukács , 2018 SCC 2 , [2018] 1 S.C.R. 6, at para. 12 .

In that case, although the outcome of the decision at issue may not have been unreasonable in the circumstances, the decision was set aside because the outcome had been arrived at on the basis of an unreasonable chain of analysis. This approach is consistent with the direction in Dunsmuir that judicial review is concerned with both outcome and process.

To accept otherwise would undermine, rather than demonstrate respect toward, the institutional role of the administrative decision maker. [ 43 ] Reasonableness requires justification, transparency, and intelligibility in the reasoning process: Vavilov at paras 86, 99, 100 . [ 44 ] A reviewing court should not supply its own reasons to support a conclusion that was not supported by reasons discernable on the record.

Paragraph 96 of Vavilov reads as follows: [96] Where, even if the reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision.

Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome: Delta Air Lines , at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion.

This would also amount to adopting an approach to reasonableness review focused solely on the outcome of a decision, to the exclusion of the rationale for that decision …. [ 45 ] What is reasonable in a given situation will depend on the “constraints” imposed by the “legal and factual context of the particular decision under review:” Vavilov at para 90 . “These contextual constraints dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt:” at para 90. [ 46 ] Vavilov identified two types of “fundamental flaws,” grounds for a finding of unreasonableness. “The first is a failure of rationality internal to the reasoning process.

The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it:” at para 100. [ 47 ] With respect to internal rationality, a reasonable decision is based on coherent reasoning. It cannot be the product of logical fallacies. The conclusion must follow from the reasons. The reasoning must be intelligible and rational.

Reasons must lead from the evidence and law to the conclusions: Vavilov at paras 102-104 . [ 48 ] With respect to contextual consistency (one might say “external” rationality), a reasonable decision is justified in light of its legal and factual constraints. Vavilov identified some of these constraints, without providing a full catalogue, at para 106: • the governing statutory scheme • other relevant statutory or common law • principles of statutory

interpretation • the evidence before the decision-maker • the submissions of the parties • past practices and decisions of the decision maker • the potential impact of the decision on the individual to whom it applies. I will return below to constraints of particular salience to this application. D. Not the Legal Test for a Stay [ 49 ] Applicant’s Counsel suggested that since Dr. Al-Naami was denied an application for a stay under s. 65 because the Director did not suspend his privileges (relying instead on Dr.

Al-Naami’s undertaking), the legal test for a stay rather than the reasonableness standard of review should apply to the assessment of the Director’s decisions: Applicant’s Brief at para 81. See, by way of illustration, Kumar v College of Physicians and Surgeons of Alberta , 2019 ABQB 514 , Eidsvik J at paras 25-27. However, as indicated, this application was not for a stay but for judicial review. Judicial review is available, in part, because an application for a stay was not available. I am bound to apply the standard of review directed by Vavilov .

Moreover, Applicant’s Counsel’s argument presupposes that the Director somehow improperly kept Dr. Al-Naami from reaching s. 65. But whether the Director made legally significant missteps is what is at issue. Applying the standard that would have applied if the Director had not “erred” would beg the question. [ 50 ] Having addressed the foregoing issues, I may now turn to the merits of the application. V. Facts [ 51 ] Dr. Al-Naami is a pediatrician who has been licensed to practice medicine in Alberta. He managed a clinic in Edmonton.

[ 52 ] Dr. Al-Naami was arrested on August 11, 2019 and charged with the possession and transmission of child pornography under ss. 163.1(4) and (3) of the Criminal Code , respecting events alleged to have occurred on April 7, 2019: CRP 2, 40, 69. [ 53 ] Dr. Al-Naami was released on a Recognizance. Two conditions of the Recognizance are material. First, condition 4 of the Recognizance prohibited him from communicating with any person known to be under age 16 unless in the immediate presence of a parent, guardian, or responsible adult “of the child.” Second, condition 5 prohibited Dr.

Al-Naami from seeking, obtaining, or continuing any employment, whether or not remunerated, or becoming a volunteer in a capacity that involves being in a position of trust or authority toward any person under age 16: CRP 11-12, 21, 30, 40. Dr. Al-Naami’s trial in Provincial Court was originally scheduled for September 2020 but was adjourned to January 2022. [ 54 ] On August 12, 2019, Cpl. Knight, a member of the RCMP, informed the College of Dr. Al-Naami’s charges: CRP 40, 69. [ 55 ] On August 13, 2019, the College opened the First Complaint, concerning the conduct of Dr.

Al-Naami reflected in the charges: CRP 22, 25-28. The Director wrote to Dr. Al-Naami as follows: … this complaint brings forward serious allegations about your conduct – the concern is only accentuated by the fact that you are a pediatrician …. I am sure you recognize it is the duty of the CPSA to be seen to protect the public as well as recognize the need to maintain confidence in medical practice and the regulation of the profession.

In circumstances such as this, I believe it is essential that until the complaint investigation is completed and this matter adjudicated, you withdraw from the active practice of medicine. I will stress that this may also require completion of the criminal matters that we have become aware of: CRP 22. [ 56 ] The Director requested Dr. Al-Naami to “provide an undertaking to withdraw from practice:” CRP 22, 23, 27, 40. (For a similar approach, see Kumar at para 5 .) [ 57 ] On August 14, 2019, the Alberta Law Enforcement Response Team issued a news release respecting Dr. Al-Naami.

The news release included the following (CRP 31): Alnaami ( sic ) is a pediatrician in Edmonton, but currently [the Internet Child Exploitation team] has no information to suggest any offences were committed against children under his care. The Alberta College of Physicians and Surgeons has been advised. The allegations against Alnaami stem from an incident in April 2019 when child pornography was allegedly uploaded to the Internet.

RCMP’s National Child Exploitation Coordination Centre notified ICE of the offence in July 2019 and a complete investigation was launched. [ 58 ] On August 15 and 16, 2019, there were discussions between the Director and Applicant’s Counsel respecting the language of the undertaking and a stay of the College’s investigation of Dr. Al-Naami pending conclusion of criminal proceedings: CRP 37, 36, 35, 40. [ 59 ] On August 16, 2019 Dr. Al-Naami provided an undertaking to withdraw from practice (the Undertaking): CRP 33, 41.

The Director agreed to stay the investigation. [ 60 ] The Undertaking provides as follows (CRP 33-34): I understand that the CPSA has directed an investigation into the Complaint. I recognize that the CPSA has a duty to protect the public and must investigate the circumstances surrounding the allegations against me, and I am willing to give this Undertaking to the CPSA. Effective the signed date of this Undertaking, I undertake to the following: 1.

I will withdraw from medical practice in Alberta while it remains a condition of my recognizance that I am “prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated or becoming a volunteer in a capacity that involves being in a position of trust or authority toward any person under the age of 16 years.” I will provide a minimum of 72 hours’ notice to the CPSA’s Complaints Director of my intention to return to practice should I decide to do so upon the foregoing condition of my recognizance being amended so as to permit me to return to work as a pediatrician …. 3.

If I fail to fulfill the terms of

Section 1 of this Undertaking, that failure to do so may constitute unprofessional conduct under the Health Professions Act (Alberta) …. 6. Any return to practice as per (1) above by Dr. Al-Naami shall require a separate agreement confirming a practice permit condition of chaperone attendance with patients. These conditions shall remain in place until complaint file number 190468.1.1 is fully adjudicated or until after the notice period provided by Dr. Al-Naami pursuant to (1) above has terminated. The Undertaking was signed by Dr.

Al-Naami and the Director. [ 61 ] On September 5, 2019, the College received a complaint about Dr. Al-Naami from the mother of two children, alleging that he had inappropriately conducted genital examinations of the children (age 6 and 2) in appointments in May and June 2018: CRP 79-80. The College opened the Second Complaint investigation on October 23, 2019: CRP 41, 83-85. An investigator was appointed. Dr. Al- Naami responded to the investigator by correspondence of November 18, 2019, asserting that he has never examined a child’s genitals except for medical reasons and when medically indicated: CRP 86-87.

The investigator interviewed the complainant and Dr. Al-Naami: CRP 110-116. The investigation report was completed on November 18, 2020: CRP 117-148. The report concluded that there was a conflict of evidence between the complainant and Dr. Al-Naami and no independent witness: CRP 148. The next stage of the

investigation would be to obtain an expert opinion as to whether the conduct of Dr. Al-Naami was medically appropriate. The record disclosed no follow up. Dr. Al-Naami did not request that the Second Complaint investigation be stayed pending completion of the criminal matter or the First Complaint: CRP 41. [ 62 ] On September 13, 2019, Cpl. Knight “called [the Director] to identify other concerns that have arisen with Dr. Al-Naami since he was charged:” CRP 69. Cpl. Knight advised that “electronic devices were seized as part of the investigation and laying of charges.

On one device, a number of pictures were found of Dr. Al-Naami … in the nude in an office setting at a desk …. The setting is not of his home office in Edmonton … but there is no clarity as to whether it represents photos taken at his practice location in Edmonton or possibly his earlier practice location in Fort McMurray:” CRP 70-71. Cpl. Knight advised that “several parents have identified concerns to law enforcement following the release of information regarding criminal charges against Dr. Al-Naami.” Cpl.

Knight reported that “an image of female prepubescent genitalia was pulled from a hard drive device controlled by Dr. Al-Naami – there is a gloved finger in the photo … where the labia are apparently being spread open. The image had been deleted previously. Photographic data indicates that it was taken on a cell phone or similar device, and in the area of or within a medical office:” CRP 72. Cpl. Knight also advised the Director that several parents had identified concerns to law enforcement regarding Dr. Al-Naami.

However, on the record to date, no further reports have been provided by the RCMP or other policing agencies and no further charges have been laid against Dr. Al-Naami: CRP 75. [ 63 ] In October 2019, Applicant’s Counsel contacted the Director requesting that Dr. Al-Naami be permitted to return to work with restrictions: CRP 39. Applicant’s Counsel proposed that Dr. Al-Naami be restricted to seeing only 16 and 17-year old patients: CRP 41. [ 64 ] On December 9, 2019, the Director wrote to Counsel: CRP 40-42. The Director commented that in providing the Undertaking, “Dr.

Al-Naami is seen as adherent to his responsibilities under the Standard of Practice Self Reporting to the CPSA and the Code of Ethics and Professionalism.” The Director continued that “I see any attempt at a return to practice as incongruent with the CPSA mandate to protect the public.” [ 65 ] The Director stated that “[a]t this time, the CPSA has no information (by virtue of our agreement to stay investigation with Dr. Al-Naami’s withdrawal from practice) that can otherwise satisfy the CPSA/Complaints Director that Dr.

Al-Naami is safe to practice and interact with patients.” The Director then stated the following: To ensure “due diligence” on the part of the CPSA, a judgment as to Dr. Al-Naami’s safety to practice would require the gathering of additional information in advance of any return to practice. I would propose that Dr. Al-Naami should provide his explicit and written consent allowing the CPSA to request any required evidence from the office of the Crown to allow for an informed assessment, on an evidentiary basis, of Dr. Al-Naami’s potential risk to the public.

The CPSA would not attempt to interview witnesses or other individuals with knowledge of this matter – it is anticipated that the CPSA would seek the provision of a

summary of evidence (at a minimum) from the Crown. I acknowledge that this may be seen as requiring the CPSA to rescind its stay of investigation – however at this time my proposal would include the limitation of our work at this time to receiving information from the Crown for the purposes of determining whether Dr. Al-Naami may return to practice prior to the completion of both criminal and CPSA processes. The Director asked counsel to review this proposal with Dr. Al-Naami. [ 66 ] Dr.

Al-Naami did not provide the written consent requested by the Director. [ 67 ] On December 10, 2019, by way of a Consent Bail Variation Order, Justice Clackson varied the terms of condition 4 of Dr. Al- Naami’s Recognizance to permit contact with a person under age 16 additionally as follows: “or in the direct presence of a chaperone authorized by the College of Physicians and Surgeons of Alberta:” CRP 14, 15-17, 43-44, 53-54. Condition 5, the prohibition on employment or volunteering in any capacity that involves being in a position of trust or authority towards a person under age 16, was not varied.

The College was not consulted respecting the variation of the Recognizance: CRP 59. The College has had no contact with Crown Counsel. [ 68 ] On February 13, 2020, Applicant’s Counsel met with the Director respecting the request to speak to Crown Counsel: CRP 73. Applicant’s Counsel stated “I relayed to you what the Crown Prosecutor is likely to advise you about the information in the disclosure … I intended to relay to you that the Crown Prosecutor would likely advise you that they have found one child pornographic video … on a laptop owned by Dr.

Al-Naami to which his entire family (i.e. wife, two teenagers, and two children under twelve) has access:” CRP 55, 73-74. [ 69 ] Also on February 13, 2020, Dr. Al-Naami proposed through counsel that he could limit his practice to older children or he could practice at AHS’s Learning and Development Centre where he would not do physical examinations: CRP 45. On February 20, 2020, Applicant’s Counsel brought to the Director’s attention that Dr. Al-Naami is licenced to perform echocardiographs, as a potential area for a return to practice: CRP 46. [ 70 ] Dr.

Al-Naami conveyed that he and his family were in financial distress: CRP 74. [ 71 ] On February 20, 2020, the Director acknowledged that Dr. Al-Naami’s “point [has] been made” but the “hurdle remains that of being able to have any contact with patients – full stop:” CRP 46. [ 72 ] On February 26, 2020, the Director advised Applicant’s Counsel that he had met with the College Registrar and reviewed Dr. Al-Naami’s request for return to practice. The Director stated that the Registrar “remains of the opinion that Dr.

Al-Naami should remain withdrawn, as the disclosure from the Crown (if as you have described) would not otherwise suggest to him that Dr. Al-Naami is appropriately safe to reenter practice:” CRP 47, 75-76. The Director concluded this letter by stating that “the outcome of the criminal matter will be required to reevaluate Dr. Al-Naami’s practice condition.” [ 73 ] On February 26, 2020, the Director recorded that “[i]t was not the intent that the CPSA would … have a conversation with the Crown, but rather Dr. Al-Naami would make the request of the Crown.

The Crown will agree or disagree as it sees fit, and the CPSA would only enter into a discussion with the Crown if [the] prosecution approached us for clarification:” CRP 77 (the date typed for this

entry is March 24, 2020 which may be the date the entry was made, referring to an earlier matter. Nothing turns on the precise date of this comment). [ 74 ] On March 9, 2020 Dr. Al-Naami wrote to the Director, under cover of correspondence from Applicant’s Counsel, stating as follows: “Please accept this letter as commencing 72 hours’ notice of my intention to return to practice and to revoke the Undertaking I gave the CPSA on August 16, 2019:” CRP 48-50. Dr. Al-Naami referred to his financial and emotional struggles.

He stated that the Undertaking has injured his reputation, “as, although the allegations against me are unproven, my continued withdrawal from practice lends credence to the claims against me to which I have pleaded not guilty and will be vehemently defending against at trial:” CRP 49. [ 75 ] The letter acknowledged that the Recognizance condition linked to the 72-hours notice was not varied although condition 4 was varied. Dr.

Al-Naami stated that it was his understanding that the negotiated variation was “to enable me to return to pediatric practice.” In his view, the Recognizance “clearly allows me to attend with patients who are 16 years of age and older.” [ 76 ] Dr. Al-Naami enclosed a draft alternative undertaking that imposed restrictions on his practice, protecting the public and promoting the College mandate while allowing him to practice medicine (Alternative Undertaking 1). Alternative Undertaking 1 is found at CRP 51-52, 57-58. The crucial conditions are as follows: 1. Dr.

Al-Naami undertakes to have a chaperone, approved in writing by the CPSA, present for all attendances with patients under the age of eighteen in all locations where he provides clinical services. Dr. Al-Naami will maintain a daily list of all patients on which attendances occurred and will report to the CPSA upon request. 2. Dr. Al-Naami undertakes to post a notice about the chaperone requirement, set out in #1 above, in any clinic in which he provides medical services. Such notices will be posted in the clinic waiting area and in each exam room. [ 77 ] On March 10, 2020 the Director responded to Dr.

Al-Naami’s March 9 correspondence: CRP 59-60. He referred to the request for Dr. Al-Naami’s written consent to Crown Counsel “to permit the disclosure of records to the CPSA from the criminal disclosure package given to Dr. Al-Naami.” The Director stated that “[t]his would allow the CPSA to have a more complete understanding of the evidence behind the charges against Dr. Al-Naami.” That consent had not been provided. [ 78 ] The Director considered the proposed chaperone requirement to be “grossly insufficient” as all of Dr. Al-Naami’s patients are minors.

Further, the Director stated that “[i]t is unacceptable that Dr. Al-Naami seeks to withdraw from his Undertaking to the CPSA and impede the CPSA receiving and considering relevant evidence:” CRP 59. [ 79 ] The Director stated that Dr. Al-Naami has not provided “any information that is required to assist in setting the terms of any agreement for the reissuance of a practice permit:” CRP 60. And “[p]aragraph 6 of the Undertaking expressly recognizes that Dr.

Al- Naami cannot unilaterally demand the issuance of a practice permit.” [ 80 ] The Director continued that Alternative Undertaking 1 failed to address “several significant issues,” including • the notification to be given to patients in advance of booking • what information is to be provided to patients/guardians to provide informed consent as to whether they wish to be seen by Dr. Al- Naami. The Director added that “[t]here are additional provisions in your form of undertaking that are unacceptable.” [ 81 ] The Director confirmed that Dr.

Al-Naami “remains withdrawn from practice until such time that the previously requested information is available to the CPSA for an appropriate assessment of his risk.” The Director stated that “[t]he CPSA cannot fulfill its duty to protect the public interest by negotiating terms for return to practice without the evidence from the Crown disclosure package being available for consideration.” [ 82 ] The Director warned that if Dr. Al-Naami were to return to seeing patients, he would not have a current practice permit.

He would be exposed to further proceedings under the Health Professions Act . [ 83 ] On March 12, 2020 Applicant’s Counsel advised the Director by correspondence that her “understanding of the disclosure has evolved,” and she was advised that the Crown “would also likely advise the CPSA that the disclosure contains a thumbnail to the aforementioned video, and 2 unique images which the Crown argues meet the test for child pornography:” CRP 55.

Applicant’s Counsel referred to the Director’s correspondence of February 26, 2020 and stated the following: As it appears that the CPSA has already concluded that the outcome of the criminal matter is necessary to trigger the reevaluation of Dr. Al-Naami’s suspension from practice, Dr. Al-Naami was unable to see any purpose in permitting the CPSA to review the disclosure for his criminal matter with the Crown Prosecutor: CRP 56. Counsel stated that allowing the CPSA to speak to the Crown Prosecutor compromises his “right to a fair trial given the risk of prejudice to Dr.

Al-Naami’s criminal proceedings that this action brings.” [ 84 ] Counsel stated that Dr. Al-Naami’s “complete removal from the practice of medicine” is not the “least restrictive means to ensure public safety:” CRP 56. Counsel wrote that there are cases in which physicians with criminal charges, or even more, criminal convictions, have safely returned to practice with conditions on their practices. For example, Dr.

Ramneek Kumar, who was charged with two counts of sexual interference and one count of sexual assault of a minor on March 27, 2019 continued to practice medicine safely in Alberta with a chaperone requirement on his licence.

[ 85 ] Counsel confirmed that Dr. Al-Naami will no longer voluntarily withdraw from practice and invited the CPSA to take proceedings under

Part 4 of the Health Professions Act : CRP 56. [ 86 ] Attached to Counsel’s correspondence was a Revised Alternative Undertaking, that added the following as a new clause 3 (CRP 57): Dr. Al-Naami shall ensure that all staff advise patients or their guardians at the time of booking (for booked appointments) or at the time of registration (for walk-in appointments) about the chaperone requirement. [ 87 ] On March 13, 2020 the Director reiterated that the CPSA position is that Dr. Al-Naami has been asked to provide his consent for the release of the criminal disclosure package from the Crown: CRP 64.

The information “would help inform whatever practice permit conditions may be seen as appropriate if he were deemed suitable to practice.” Without that information, the College “cannot ascertain the risk to any patient or member of the public who may attend him.” Further, the College “would not know the nature of notifications to provide to other parties under s. 119 of the Act.”

Section 119 provides as follows: 119(1) If under

Part 2 or

Part 4 a regulated member’s practice permit is suspended or cancelled ..., the registrar (

a) must enter the conditions imposed, if any, on the regulated member’s practice permit, (

b) must provide the information (

i) to a person who employs the regulated member to provide professional services on a full-time or part-time basis as a paid or unpaid employee, consultant, contractor or volunteer, and (ii) to a hospital if the regulated member is a member of the hospital’s medical staff or professional staff, as defined in the Hospitals Act, (

c) must provide the information to any Minister who, or an organization specified in the regulations that, administers the payment of fees for the professional services that the regulated member provides, ... (

f) subject to the bylaws, may publish or distribute the information referred to in this subsection and information respecting any order made by a hearing tribunal or council under

Part 4 ....

(4) If a member of the public, during regular business hours, requests from a college information referred to in this section, section 33(3) or 85(3) or any information published on the college’s website, or information as to whether a hearing is scheduled to be held or has been held under

Part 4 with respect to a named regulated member, the college must provide the information with respect to that regulated member subject to the payment of costs referred to in section 85(3) and the period of time provided for in the regulations ....

In my opinion, the reference to s. 119 adds nothing of substance to position of the Director relating to practice permit conditions and I will not refer to it further in this decision. [ 88 ] The Director commented that Applicant’s Counsel’s most recent communication “may be interpreted as suggesting that there may be more yet contained within the criminal disclosure file.” Again, this information would be relevant to Dr. Al-Naami’s “return to practice and the CPSA’s requirement to ensure patient/public safety.” [ 89 ] On March 16, 2020, Applicant’s Counsel maintained that Dr.

Al-Naami is able to unilaterally withdraw from his Undertaking and therefore considers himself withdrawn from his Undertaking. However, because of COVID-19 considerations, he would not immediately return to work. Forty-eight hours notice of intention to return to practice would be provided: CRP 65. [ 90 ] On March 18, 2020, the Director responded with correspondence to Applicant’s Counsel: CRP 66-67. The Director confirmed that Dr. Al-Naami does not hold an active practice permit and seeing patients would create a new issue for investigation: CRP 68, 78. The Director stated that Dr.

Al-Naami has a duty to cooperate with the investigation. The Director confirmed that the College would not require Dr. Al-Naami to provide a written response or to be interviewed. He is being asked to provide consent to the College to allow access to evidence already in the possession of the Crown. His right to a fair trial is not jeopardized. The College has no plan to pursue disciplinary proceedings against Dr. Al-Naami before the criminal proceedings are concluded. According to the Director, Dr.

Al-Naami is “effectively preventing” the College from considering relevant evidence dealing with the degree of risk his return to practice may pose. The Director stated that “[i]t is not for Dr. Al-Naami to restrict the CPSA’s access to relevant evidence and to dictate the conditions for his return to practice. If I may, that has the appearance of ‘the tail wagging the dog.’” The Director stated that “[i]t is unfortunate that Dr.

Al-Naami continues to refuse to cooperate by providing the consent to the Crown to allow the CPSA access to the Crown disclosure records.” The College requires access to the evidence to assess whether the Alternative Undertaking “might be adequate:” CRP 67. [ 91 ] The Director denied that the College has already concluded that Dr. Al-Naami is guilty. [ 92 ] Dr. Al-Naami has not provided the written consent requested by the Director. As of the hearing date, he has not attempted to return to practice. VI. Issues [ 93 ] Three main questions must be addressed: • was Dr.

Al-Naami entitled to rescind his Undertaking unilaterally? • was Dr. Al-Naami entitled to request the College to reconsider its position?

• was the Director’s reconsideration of Dr. Al-Naami’s Undertaking reasonable? [94] The responses to these questions require some delineation of the “limits and contours” of the College’s decision space. Somemore specific aspects of these “limits and contours” will be addressed when responding to particular issues. VII. The College’s Decision Space [95] The general aspects of these “limits and contours” of the College’s decision space are as follows. A.

Statutory Scheme [96] The Supreme Court commented in Vavilov at para 108 that [108] Because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the mostsalient aspect of the legal context relevant to a particular decision …. 1. The Public Interest [97] The foundation of the College’s decision space regarding the merits of disciplinary matters is its statutory obligation topromote and serve the public interest. Under s. 3(1)(

a) of the Health Professions Act, “[a] college … must carry out its activities andgovern its regulated members in a manner that protects and serves the public interest.” In the present context, the focus of the “publicinterest” is on protecting patients from risks of criminal conduct. More precisely, since Dr. Al-Naami is a pediatrician and he is chargedwith child pornography offences, the focus of the public interest is on protecting young patients from the risks of sexual offendingrepresented by Dr. Al-Naami.

See Moll v College of Alberta Psychologists, 2011 ABCA 110 at para 24; Pharmascience Inc v Binet,2006 SCC 48, Lebel J at para 36. 2. Procedural Context [98] Procedurally, the Director’s decisions are situated in a pre-hearing context. This pre-hearing landscape is not comprehensivelyregulated.

Section 65 was quoted above. [99] As regards the First Complaint, the investigation has been stayed or suspended by the College. As discussed above, the“suspension” of Dr. Al-Naami’s practice is by way of his Undertaking not by the Director’s suspension of his practice. As regards theSecond Complaint, essentially the investigation reached only the point of gathering evidence from the complainant and Dr. Al-Naami. [100] Since the decisions respecting Dr. Al-Naami are pre-hearing, interim decisions, the decisions are necessarily based onincomplete information. B.

The College and its Members [101] The canopy that defines the College’s decision space is formed not only by the public interest but by the College’s relationshipwith its members. 1. Duty to Cooperate [102] One aspect of this relationship is that members have a duty to cooperate with the College in investigations.

See (with due regardfor the distinct legislative context) Sazant v College of Physicians and Surgeons of Ontario, 2012 ONCA 727 at para 180; Ontario(College of Physicians and Surgeons of Ontario) v Botros, 2015 ONCPSD 42; Artinian v College of Physicians and Surgeons ofOntario, , 73 OR (2d) 704 (SC Div Ct) at 6 (CanLII pdf: “Fundamentally, every professional has an obligation to co-operate with his self-governing body”). This duty is statutorily-recognized at the stage of investigation in s. 1(1)(pp)(vii)(

B) of theHealth Professions Act: 1(1) (pp) “unprofessional conduct” means one or more of the following, whether or not it is disgraceful or dishonourable: … (vii) failure or refusal … (

B) to comply with a request of or co-operate with an investigator …. Under s. 1(1)(u), “investigator” means “the complaints director or other person who conducts an investigation under

Part 4.” 2. Impact of the Decision on the Affected Individual [103] Further aspects of the relationship between the College and members that contribute to the College’s decision space are theCollege’s obligations towards its members in disciplinary matters. [104] While the primary responsibility of the College is to protect the public, it must also treat its members fairly when establishingpublic protection measures: Moll at para 24. [105] The requirement that the College take proper account of the interests of its members in disciplinary processes affects theapplication of the standard of review. We read the following at para 133 of Vavilov:

[133] It is well established that individuals are entitled to greater procedural protection when the decision in question involves the potential for significant personal impact or harm: Baker , at para. 25. However, this principle also has implications for how a court conducts reasonableness review. Central to the necessity of adequate justification is the perspective of the individual or party over whom authority is being exercised. Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes.

The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood . [emphasis added] C. Respect for Charter Values [ 106 ] The College’s decision space may also be shaped by Charter values.

If a decision affects interests protected by the Charter , the College must ensure that the decision limits Charter protections reasonably or proportionately, so the limitations are no more than necessary given the statutory objective pursued: see Loyola High School v Quebec (Attorney General) , 2015 SCC 12 , paras 3-4 , 37; Doré v Barreau du Québec , 2012 SCC 12 . VIII. Assessment A. Was Dr. Al-Naami entitled to rescind his Undertaking unilaterally? [ 107 ] Dr. Al-Naami contended that he was entitled to rescind his Undertaking unilaterally. He could, on his own, declare it to be terminated.

Were this expedient available to Dr. Al-Naami, matters would be simplified. He could declare his Undertaking at an end. At that moment, nothing would prevent Dr. Al-Naami from practicing. The College, then, should it oppose his re-entering practice, would suspend him. Dr. Al-Naami could thereafter make an application for a stay under s. 65. [ 108 ] Dr. Al-Naami could act in a manner contrary to the commitments in the Undertaking. That, however, would not rescind or terminate the Undertaking. By way of analogy, a breach of contract does not (or need not) end a contract.

Further, conduct contrary to the Undertaking would be regarded by the College as unprofessional conduct.

Section 3 of the Undertaking provided that if Dr. Al-Naami failed to fulfill the withdrawal from practice terms of

section 1, “that failure … may constitute unprofessional conduct.” The Director warned Dr. Al-Naami that if he took steps to return to practice, he would be subject to disciplinary proceedings: CRP 60. See the definition of “unprofessional conduct” in s. 1(1)(pp) of the Health Professions Act . Dr. Al-Naami has chosen not to take steps to return to practice. If Dr. Al-Naami disregarded his Undertaking and if the Director took the view that his Undertaking was thereupon terminated, Dr.

Al-Naami would face the challenge of being permitted to return to practice not only given his criminal charges and other information gathered to date, but given a further disciplinary violation. [ 109 ] But did the Undertaking actually impose obligations on Dr. Al-Naami to follow its terms? If it did not establish obligations, not only would my contractual obligation analogy be misplaced but conduct contrary to the Undertaking might not be regarded as the proper subject of discipline since Dr. Al-Naami would not have done what he was obliged not to do.

He would have done what he was free to do. [ 110 ] Applicant’s Counsel argued that the Undertaking did not impose a contractual obligation on Dr. Al-Naami. The Undertaking amounted to a bare or gratuitous promise. One might respond that the consideration for his withdrawal from practice was the College’s forbearance from continuing the investigation. There was a quid pro quo . But since the College might have been legally required to stay its investigation because of potential prejudice to the criminal matter, the forbearance might not have been good consideration: see J.D.

McCamus, The Law of Contracts, 2 nd ed (Toronto: Irwin Law, 2012) 243 et seq. I will not explore these complexities. In my view, nothing turns on whether the Undertaking may be characterized as a contractual obligation in a private law sense. The issue is one of public law, concerning the relationship of a regulated member to his regulatory body, rather than an issue of private law. [ 111 ] I accept Applicant’s Counsel’s observations that the Undertaking was not a lawyer’s undertaking, made (e.g.) to the Court in the course of litigation.

Neither was the Undertaking a statutorily-regulated undertaking, such as an undertaking respecting pre-trial release under the Criminal Code . The Health Professions Act does not address undertakings. [ 112 ] The Undertaking took its meaning, significance, and force from its role in the disciplinary process for a regulated profession. Although undertakings are not legislatively regulated, I can infer on the materials before me that undertakings are commonly used for negotiated interim resolutions in disciplinary processes in Alberta and other provinces.

See Kumar at para 6 ; Morzaria at paras 8-11, 14 ; Sazant at paras 19, 34 ; Huerto at para 29 (although judicially directed). The use of undertakings is part of the “common law” of dispute resolution developed in the disciplinary process for physicians. [ 113 ] To assist in interim resolutions of disputes, undertakings must have stability. The usefulness of this tool would be subverted if a physician could simply declare that he or she were no longer bound by an undertaking freely made.

If unilateral rescission were permitted, undertakings would serve no purpose. [ 114 ] Moreover, a physician is a member of a learned profession, granted the privilege of carrying on that profession and having the status that follows. That privilege is endorsed and supported by the physician’s regulatory body. The privilege of practice does not belong to the physician alone and is not achieved by the physician alone, but only subsists so long as the privilege is extended by the College.

While further analysis is necessary to draw out the implications of this relationship, it would appear that one implication is that in dealings with the College, a physician’s word must be his or her bond. One might observe that this should be so regardless of membership in a profession. Promises are to be kept. That is why they are “promises.” [ 115 ] And further, the Undertaking itself contained language precluding unilateral revocation.

Section 3 provided that if Dr. Al- Naami failed to fulfill the terms of

Section 1 of the Undertaking, including withdrawal from practice, “that failure may constitute

unprofessional conduct under the Health Professions Act .”

Section 6 of the Undertaking stated that “Any return to practice as per (1) above by Dr. Al-Naami shall require a separate agreement confirming a practice permit condition of chaperone attendance with patients.”

Section 1 of the Undertaking set out a specific set of circumstances that would have permitted Dr. Al-Naami to provide notice of an intention to return to practice. Those circumstances have not occurred. [ 116 ] In my opinion, Dr. Al-Naami was not entitled to rescind his Undertaking unilaterally. B. Was Dr. Al-Naami entitled to request the College to reconsider its position? [ 117 ] Is the result that undertakings are permanent, unchangeable? Does an undertaking trap a physician?

Were this so, physicians might well be reluctant to enter into undertakings. [ 118 ] After entering an undertaking, circumstances may change significantly, whether what has changed are the circumstances of the physician or the state of the evidence. Even if circumstances have not changed significantly, a physician who entered into an undertaking may have re-evaluated the appropriateness of its terms.

An undertaking may have been made without the physician having thought things through, or perhaps only the passage of time has allowed the physician to think things through. [ 119 ] In my opinion, a physician should be entitled to request reconsideration of the terms of an undertaking and the College should be obligated to reassess whether the terms of the undertaking remain appropriate. None of this is a guarantee that reconsideration will result in change. [ 120 ] I take into account the following. [ 121 ] An undertaking is a type of promise.

But while promises should be kept, a person who has promised may ask to be relieved of his or her obligations (“I know I said I’d do it, but ….”). An undertaking is made in more formal circumstances than a promise, though. [ 122 ] Reconsideration of administrative decisions may be provided for by statute. Neither undertakings nor the reconsideration of undertakings are regulated by the Health Professions Act . Just as the use of undertakings is not precluded by the lack of explicit regulation, so reconsideration is not precluded by the lack of regulation.

Nothing statutorily prevents reconsideration. [ 123 ] As I suggested, reconsideration complements the use of undertakings. In my opinion, an entitlement to request reconsideration in light of changed circumstances is a reasonable adjunct to the undertaking procedure. The possibility of reconsideration based on changed circumstances or the changed appreciation of circumstances prevents an undertaking from becoming a “trap” and avoids deterring physicians from entering undertakings for fear of being trapped.

Just as it makes practical sense from a disciplinary process perspective for physicians to accept interim resolutions by way of undertaking, so it makes sense for the College to reconsider interim resolutions. Without reconsideration, physicians would be better off to invite suspension or the imposition of conditions and to seek relief in the courts through a stay application. [ 124 ] In my view, upon Dr. Al-Naami requesting return to practice under conditions, the parties in fact considered themselves to be in a reconsideration process.

See, for example (emphasis added), • CRP 36 - e-mail from Applicant’s Counsel to the Director, August 16, 2019: “I would like to ensure that Dr. Al-Naami’s suspension will terminate and will need to be reconsidered should his recognizance conditions change so as to allow him to return to practice . We know that this would only change if it were decided that preventing him from working as a pediatrician is not required for the protection of the public.

Accordingly, at that time, I do not want his voluntary suspension preventing his return to work, as there should be less restrictive means that would protect the public interest while permitting him to work.” • CRP 39 - e-mail from Applicant’s Counsel to the Director, November 5, 2019 “I am wondering if you had the chance to give any consideration to allowing him to return to work with restrictions?” • CRP 40 – correspondence from the Director to Applicant’s Counsel – December 9, 2019 Thank you for both yours and Dr. Al-Naami’s patience as the CPSA considers Dr.

Al-Naami’s request for a return to practice in advance of his criminal trial. • CRP 41 – correspondence from the Director to Applicant’s Counsel - December 9, 2019 I have considered again the Undertaking given by Dr. Al-Naami to the CPSA on August 16, 2019, providing his commitment to withdraw from practice until such time that the matters identified to the CPSA had been fully investigated and adjudicated. [ 125 ] Again, the reconsideration process does not obligate the College to amend its original position or to accept an alternative undertaking.

What is owed to a physician is not the desired disposition but a reasonable reconsideration. C. Was the Director’s reconsideration of Dr. Al-Naami’s Undertaking reasonable? [ 126 ] Answering the question of whether the Director’s reconsideration of Dr. Al-Naami’s Undertaking was reasonable requires responses to four sub-questions. • what was the Director required to decide?

• what did the Director decide? • was the decision to require Dr. Al-Naami’s consent to access information about Crown disclosure reasonable? • was the Director’s response to Dr. Al-Naami’s request for reconsideration reasonable? 1. What was the Director required to decide? [ 127 ] The Director’s task was hardly unique. That did not make his task less difficult or make the description of his task less difficult. [ 128 ] Fundamentally, the Director was required to balance the obligation to promote the public interest, specifically the need to protect young patients, and fairness to Dr.

Al-Naami. [ 129 ] This task required execution in conditions of informational uncertainty or incomplete information. As regards the First Complaint, the main complaint, the procedural context was pre-hearing, pre-investigation. The Director had to work with untested allegations, some conflicting. [ 130 ] In my opinion, the Director had to address three questions: First, is the complaint supported by credible evidence or by a prima facie case? Second, do the circumstances of the complaint show that the physician represents a risk to the public?

Third, given the risk of harm, what interim restrictions or conditions would be required to abate, manage, or mitigate that risk? [ 131 ] I add that in my opinion, the Director should address the same three questions in approaching resolution by way of undertaking, in a reconsideration decision, or in a decision to suspend or impose conditions on a physician. The overall issues are the same (whether, in light of the evidence of risk, the physician may continue to practice and, if so, on what terms) and nothing justifies differing approaches. (

a) Prima Facie Case Supporting the Complaint [ 132 ] Respecting the first question, the Director’s task is not to resolve the uncertainty, to decide the merits, or assess the strength of competing allegations. That will occur at a later procedural stage: Scott v College of Massage Therapists of British Columbia , 2016 BCCA 180 at para 73 . At this point there are only two matters to be decided. On the one hand, if the allegations against the physician were found to be true, would the complaint would be made out?

On the other hand, are the allegations, the case against the physician, not frivolous, not manifestly incredible? See Fingerote at paras 27-28 ; Scott at paras 55, 56 . Only a limited weighing can occur at this point. Chief Justice Bauman did caution in Scott at para 56 against rejecting or discounting information as incredible or implausible at an early pre-hearing procedural stage. (

b) Evidence of Risk [ 133 ] Respecting the second question, the evidence must support an inference that the physician poses a risk to the public, specifically to present or future patients: Fingerote at paras 29-30 . It does not necessarily follow from a finding that a complaint is supported by a prima facie case that the physician poses a risk to any other patients.

At this point two matters must be decided: What is the nature of the harm that is risked to current or future patients? and Is there a reasonable likelihood of the harm being caused if no restrictions or conditions were imposed? (alternatively, is there a risk of probable harm?) Both the magnitude of risk and the degree of likelihood of actualization of the risk should be considered. See Fingerote at paras 6-7 . (

c) Response to the Risk [ 134 ] Respecting the third question, the College’s response to the risk must be proportional. Automatically suspending every physician who is the subject of a complaint giving rise to a risk of harm to patients would doubtless be effective, but this response would be overbroad, disproportional, and unreasonable.

The administrative measures taken must be proportional to the particular risk in the particular circumstances. [ 135 ] Because the administrative measures are interim, the allegations are untested and unproven, and the College is obliged to treat its members fairly, the principle that must be respected is that the restrictions or conditions should be “necessary” or the least restrictive that can reasonably protect the public: Fingerote at paras 7 and fn1, 24; Morzaria , Nordheimer J, as he then was, dissenting but not on this point, at para 45; Rohringer at para 69 ; Kumar at para 24 ; Scott at para 55 . [ 136 ] The least restrictive measures principle may be regarded as a means of respecting Charter values in interim determinations.

A physician who has been accused of committing criminal offences, like Dr. Al-Naami, is presumed innocent in criminal proceedings. That does not block the College from protecting the patients from the risks the physician represents, but measures taken to protect the public should nonetheless be proportional, minimizing restrictions on an individual who has not been found guilty of any offence. Interim measures should not be a pre-punishment. (

d) Standard of Review [ 137 ] The standard of review applicable to the Director’s decisions concerning all of these issues is reasonableness. 2. What did the Director decide? [ 138 ] The Director’s response to Dr. Al-Naami had two main elements.

[139] First, on the information the Director had received, the College had no information that satisfied the Director that Dr. Al-Naamiwas safe to practice and interact with patients: CRP 41 (correspondence of December 9, 2019); CRP 47 (correspondence of February 26,2020); CRP 60 (correspondence of March 10, 2020). [140] Second, the Director required additional information to assess whether Dr. Al-Naami could return to practice on conditions. Theinformation was required so the College could perform its “due diligence.” The means of acquiring additional information proposed bythe Director was for Dr.

Al-Naami to “provide his explicit and written consent allowing the CPSA to request any required evidence fromthe office of the Crown:” CRP 41. The Director sought Dr. Al-Naami’s consent to have the Crown provide information about Crowndisclosure to the College. The Director might or could be provided with a “summary” of Crown disclosure: CRP 41. The Crown would“agree or disagree [to provide information] as it sees fit:” CRP 77.

Later the Director wrote that “The CPSA cannot fulfill its duty toprotect the public interest by negotiating terms for return to practice without the evidence from the Crown disclosure package beingavailable for consideration:” CRP 60. [141] I’ll consider the reasonableness of seeking the consent respecting disclosure, then turn to the reasonableness of the Director’sfinding that on the information received Dr. Al-Naami could not return to practice on conditions. 3. Was the decision to require Dr.

Al-Naami’s consent respecting Crown disclosure reasonable? [142] I’ll begin with some clarifications. [143] First, the Director did not ask Dr. Al-Naami to provide a copy of the Crown disclosure in his possession. [144] Second, the Director was not pursing an application for production of Crown disclosure. The application would rely on s. 63(3)of the Health Professions Act. The application would be made in the course of the investigation (which had been suspended), on noticeto at least the Crown or Attorney General.

Disclosure materials may contain information about third parties, information protected bypublic interest privilege, information subject to privilege that may be asserted by the Crown, or information that, in the public interest,should not be disclosed even to the College: see P(

D) v Wagg, , 61 OR (3d) 746 (ON SCDC), Blair RSJ at para 23(affirmed by the Court of Appeal’s decision in Wagg). The Crown, as proxy for affected interests, would be responsible for limitingproduction: College of Physicians and Surgeons of Ontario v Peel Regional Police, (ON SCDC) at para 63. TheCourt, ultimately, would decide what is and is not producible. Alternatively, the Crown and the College might work out production byconsent: Feuerhelm v Alberta (Justice and Attorney General), 2017 ABQB 709, Eamon J at para 109.

I accept the College’s counsel’ssubmission that it would be likely that the College would be successful in receiving production of some of the Crown disclosure: Collegeof Physicians and Surgeons of Ontario v Peel Regional Police, (ON SCDC), Lederman J at para 20; College’sBrief at para 96. [145] Third, the Director recognized that Dr. Al-Naami’s consent would not have guaranteed access to information about disclosure.Dr. Al-Naami would only be communicating to the Crown that he would not object to the College receiving information aboutdisclosure. “The Crown will agree or disagree as it sees fit:” CRP 77.

I accept the College’s counsel’s point that Dr. Al-Naami’s consentwould remove an obstacle to production, so his consent would have at least that much value: College’s Brief at para 94. [146] The Director, in effect, refused to consider the

[…]