Keeping-Tabs-Summer-2023

CASE BRIEF
Court of Appeal tells Regulators to
Pony Up for Disciplinary Proceedings
The new cost of self-regulation after Jinnah v
Alberta Dental Association and College
Brynne Harding, Bennett Jones LLP, and Tyler Mc-
Donough, Bennett Jones LLP
duct; (ii) is a serial offender; (iii) has failed to cooperate
with investigators; or (iv) has engaged
in hearing misconduct.
In establishing the presumption, the Court
took notice of publicly available financial statements
of the College, concluding that the new
rule would have “marginal, if any” impact on
the College’s financial position. Of interest, this
evidence had not formed part of the appeal record
and the parties had not been invited to
make submissions on the financial impacts. As
Alberta’s professional colleges vary in size and
financial means, the new presumption may affect
some more than others.
The Supreme Court of Canada denied the
College’s application for leave to appeal.
Impacts on Self-Regulated Professional
Organizations
The breadth of Jinnah’s application to professional
regulators in Alberta and beyond is unsettled.
The Court indicated that its framework
applies to all professionals regulated by the Alberta
Health Professions Act. Outside of healthcare,
some regulators have rejected the decision,
contending that it does not govern their
statutory mandate (e.g., Law Society of Alberta
v Beaver).
With its holding that the profession as a whole
should presumptively bear the cost of misconduct
proceedings, except where one of the four
categories of “compelling reasons” applies, the
Jinnah decision may discourage regulators
from pursuing disciplinary proceedings. This
may, in turn, encourage informal resolution of
complaints, which would be less costly, but can
also create a prejudicial disciplinary history for
professionals. Fewer or smaller costs awards
may also mean fewer appeals by professionals
from hearing decisions against them.
Regulators should stay up to date on the
evolution of the four categories of “compelling
reasons” to award costs, and how the decision
is interpreted and applied.
In Alberta, punitive cost awards in administrative
proceedings may be a thing of the past. In
Jinnah v Alberta Dental Association and College,
Alberta’s top court established a new presumption
that the profession as a whole – and not individual
members - should bear the costs of all
but the most serious disciplinary proceedings.
Overview
One of Dr. Jinnah’s patients complained about
her collection efforts on a $444.46 invoice for
dental services. A Hearing Tribunal of the College
held that the collection efforts amounted
to professional misconduct and ordered Dr. Jinnah
to stop practising dentistry for one month,
complete a philosophy course in ethics, and
pay $50,000 in costs.
Dr. Jinnah sought an administrative appeal,
through which the Appeal Panel quashed the
one-month suspension and reduced the hearing
tribunal costs award to $37,500, covering
just 20% of the College’s hearing costs. Pursuant
to a statutory right of appeal, Dr. Jinnah appealed
to the Alberta Court of Appeal.
The Decision
The Court of Appeal set aside the $37,500 costs
award and held that it was so large as to have
become the primary sanction for Dr. Jinnah’s
misconduct. This was a reviewable error, applying
the longstanding principle that costs
awards are designed to indemnify and not to
punish. The Court had counseled restraint in
past cases, but had stopped short of establishing
a rule.
Curtailing the discretion to award costs, the
Court created the new presumption that “the
profession as a whole should bear the costs in
most cases of unprofessional conduct”. Four
types of “compelling reasons” could justify a
departure from the presumption: a member
(i) has committed serious unprofessional con-
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