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case update: Visconti v. College of Physicians and Surgeons of Alberta

The Alberta Court of Appeal released a decision last week that all professional regulatory bodies should be aware of.

In Visconti v. College of Physicians and Surgeons of Alberta the Court overturned 9 of 40 convictions on the basis that the investigated member was not given notice of the allegations in the Notice to Practitioner nor did the investigated member receive express written notice in advance of the hearing of the allegations.

Given the dismissal of the nine convictions, the Court remitted the matter back to Council to consider penalty for the remaining 31 convictions. Although not necessary to their decision, the Court stated that the principles of procedural fairness require that an investigated member be given an opportunity to make representations in the event that Council is considering a penalty over and above that recommended by the Investigating Committee. The Court specifically stated that this principle is not limited to situations where a decision maker is rejecting a joint submission on penalty.

The Court of Appeal's decision highlights the importance for hearing tribunals to limit their findings of misconduct to the formal allegations set out in the Notice of Hearing. If new misconduct comes to light during the hearing, the processes as set out in the applicable statute must be followed. This will typically involve giving the investigated member advance notice of the alleged particulars of the misconduct in order that they have an opportunity to prepare for and respond to the allegations.

A full copy of the decision is available at:
Visconti v. College of Physicians and Surgeons of Alberta

September 14, 2010

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