Good Character and Reputation - The Registrar Knows Best!
Lum v. Alberta Dental Association and College (Review Panel), 2015 ABQB 12 is the first case in Alberta to determine the legal standard of review that applies to registration reviews by a Council. The Court held that the reasonableness standard generally applies when a College’s Council reviews registration decisions. This means that the Council is to show deference and not interfere with registration decisions that are “reasonable”, i.e. that are defensible and fall within the range of possible acceptable outcomes. The Court held the same standard applies if the Council’s decision is further reviewed by the Court. The case will be important in protecting registration decisions provided those decisions are not “unreasonable”. Jim Casey, QC and Chelsey Bailey of Field Law acted for the ADA+C.
The Alberta Health Professions Act requires applicants seeking registration with a College to provide evidence of good character and reputation, if the profession specific regulations require it. The Dentists Profession Regulation requires applicants seeking registration with the Alberta Dental Association + College (“ADA+C”) to provide evidence of good character and reputation. This can include reference letters and information about prior discipline and ongoing unprofessional conduct processes in other jurisdictions.
Dr. Lum was a member of the College of Dental Surgeons of British Columbia (“CDSBC”) when he applied for registration with the ADA+C. He submitted letters of reference and a consent for the ADA+C to obtain his discipline records from the CDSBC. The ADA+C obtained a report from the CDSBC confirming 22 complaints against Dr. Lum over a ten year period. Two of the complaints remained unresolved while the balance had been resolved informally or dismissed. The ADA+C’s Registrar was concerned about the nature and the number of complaints. The Registrar concluded Dr. Lum had failed to provide satisfactory evidence of good character and reputation and denied his application. Dr. Lum sought a review by the ADA+C’s Review Panel, which is the Council’s delegate for registration reviews. The Review Panel applied the reasonableness standard of review and concluded the Registrar’s decision had been reasonable.
Dr. Lum then applied to the Court for judicial review. Dr. Lum argued that the Review Panel should have reviewed the Registrar’s decision to see whether it was correct, not just reasonable. Dr. Lum said it was not correct. Dr. Lum also argued that the Court should review the Review Panel’s decision to see whether it was correct. Dr. Lum said it was not correct either. Dr. Lum argued the review Panel had incorrectly assessed the evidence of his good character and reputation and that the Review Panel was incorrect in its application of the Trade, Investment and Labour Mobility Agreement (“TILMA”) between British Columbia and Alberta. Dr. Lum said it was not up to him to prove his good character and reputation. He argued the TILMA required the ADA+C to prove Dr. Lum did not have good character and reputation before his registration application could be denied.
The Court held that questions of good character and reputation are questions of mixed fact and law reviewable on the reasonableness standard. The Court concluded that the reasonableness standard of review applies when the Review Panel reviews the Registrar’s decisions. The Court also held that reasonableness applies where the Court reviews decisions of the Review Panel. The case is therefore important in protecting registration decisions from Council and Court interference, provided those decisions are “reasonable”.
Lastly, the Court held that the interpretation of TILMA was an important general question of law that goes beyond the interpretation of the Review Panel’s home statute and has implications for all professions and trades in Alberta so the correctness standard of review applies to it.
Applying these standards of review, the Court held that the Review Panel’s decision upholding the Registrar’s refusal to register Dr. Lum was reasonable. The decision displayed the necessary details, transparency and justification. The Court was not prepared to find the refusal to register Dr. Lum to be unreasonable even though he had never been found to have committed unprofessional conduct in BC.
As for TILMA, the Court held the Review Panel was correct in its analysis. Despite TILMA and labour mobility, regulatory bodies still need to consider public safety and consumer protection. The Court held that a primary responsibility of regulators is to ensure minimal qualifications for practicing professionals to protect the public. The Court said, in part, “Authorities that act as a rubber stamp have little credibility, and do not instil confidence that they have actually fulfilled an important role. Authorities that actively investigate and determine each matter on its own merits earn and enjoy a credible reputation.” So regulators faced with applications under TILMA (or the Agreement on Internal Trade) can conduct their own assessments of good character and reputation and make their own decisions but the Court rejected the suggestion that the Registrar should have to prove Dr. Lum’s lack of good character. It is up to the applicant to establish good character. The Court said it would be an error for a Registrar not to conduct his or her own evaluation and to rely on an evaluation done by another jurisdiction to determine good character and reputation.
Dr. Lum has filed a Notice of Appeal seeking to appeal the dismissal of his judicial review application to the Alberta Court of Appeal. Dr. Lum also has a pending complaint under the TILMA Dispute Resolution Provisions. Field Law will continue to be involved in this precedent setting case. A full copy of the decision is available here.
Tips for Regulators:
- Registration decisions should apply the requirements in the governing legislation and decisions that refuse, or grant conditional registrations must be supported by good written reasons.
- Regulators who receive applications under TILMA or the Agreement on Internal Trade should conduct their own assessments of good character and reputation as required by their governing legislation.
- Regulators who are concerned that an applicant has not demonstrated the necessary good character and reputation may be able to deny registration, but there should be strong evidence of a lack of good character or reputation before doing so.
- Provided these registration decisions are reasonable, College Councils and Courts will not be able to interfere.