Careful Not to Colour Outside the Lines: Court Limits Ability to Add Allegations During a Hearing
Perspectives for the Professions
November 2021 - 4 min read
In Alsaadi v. Alberta College of Pharmacy, 2021 ABCA 313, a majority of the Alberta Court of Appeal adopted a very narrow interpretation of language common to professional regulatory statutes.
The case involved a pharmacist, Alsaadi, found guilty of unprofessional conduct for improperly accessing electronic health records. Alsaadi was also charged and found guilty of failing to fulfil his duties of honesty and cooperation with the College’s investigation when, during the investigation, he arranged for people whose health records he accessed to falsely claim that they were patients.
Alsaadi was self-represented at the initial hearing before the Hearing Tribunal. He gave evidence and made admissions that were contradictory and inconsistent with his responses during the investigation. His conduct prompted the College’s Complaints Director to apply to amend the Notice of Hearing to add new particulars to the charge of failing to comply with his duties of honesty and cooperation. The Complaints Director relied on section 79 of Alberta’s Health Professions Act, the relevant parts of which state:
(3) The hearing tribunal may hear evidence on any other matter that arises in the course of a hearing, but the hearing tribunal must give the investigated person notice of its intention to hear the evidence and on the request of the investigated person must grant an adjournment before hearing the evidence.
(4) If the hearing tribunal is of the opinion that a separate hearing is required with respect to a matter described in subsection (3), the hearing tribunal may
(a) refer the matter as a complaint to the complaints director under section 54, or
(b) refer the matter to the hearings director under section 69 for a hearing.
The Hearing Tribunal granted the application to add particulars to the Notice of Hearing and gave Alsaadi a one-month adjournment to prepare to address them. Ultimately, the Tribunal found Alsaadi guilty of the added particulars. Alsaadi appealed the Hearing Tribunal’s decision to the College’s Council, which upheld the decision. He appealed again to the Alberta Court of Appeal.
A majority of the Court of Appeal held that adding the particulars during the hearing breached the duty of fairness. It found that doing so deprived Alsaadi of the procedural protections in the Health Professions Act, such as the minimum 30 days advance notice of the particulars of alleged unprofessional conduct. The majority did not explain why the 30-day adjournment granted by the Health Tribunal was an inadequate alternative. Ultimately, the Court overturned the findings of guilt on the added particulars and reduced the penalty.
The majority of the Court interpreted section 79(3) very narrowly. It held that read in context, section 79(3) did not permit the addition of new particulars or allegations. The words “hear evidence of any other matter that arises in the course of a hearing” only allowed the Hearing Tribunal to hear evidence of facts other than alleged in the charges, such as similar fact evidence or uncharged bad character evidence. The majority’s interpretation is difficult to reconcile with section 79(5) of the Health Professions Act, which already exempts the Hearing Tribunal from applying the rules of evidence applicable in judicial proceedings, such as evidentiary rules about similar fact evidence or uncharged bad character evidence.
The majority held that the fair and appropriate process for new misconduct that comes to light during a hearing is to direct a fresh hearing, as authorized by section 79(4) of the Health Professions Act. The majority disregarded the Hearing Tribunals’ express discretion in section 79(4) to determine whether a separate hearing is required. The majority also omitted to explain how section 79(4) can be interpreted to address “new misconduct that comes to light” at a hearing, and section 79(3) does not address new misconduct when both sections expressly state that they apply to the same matters.
While the majority did not address these questions, Justice Khullar did so in a concurring judgement. Justice Khullar concluded that section 79 of the Health Professions Act addresses more than just evidentiary issues. In fact, sections 79(3) and (4) address new matters raised during a hearing and outline the Tribunal’s options in addressing such matters. Justice Khullar concluded that section 79(3) does permit a Hearing Tribunal to add charges to a Notice of Hearing during a hearing but, like the majority, this power should be exercised sparingly given the risk of unfairness to the member.
The majority did not foreclose the possibility of ever amending a Notice of Hearing under section 79(3), but it did specify that “regard must be had to the effect [the amendment] has on the entire process and particularly on fairness to the member subject to discipline”. The majority warned that adding allegations during a hearing is “seldom appropriate” and “generally undesirable and inappropriate and can easily become unfair to the member being charged, particularly when the new allegations are unrelated to the previous particulars”.
Finally, the majority of the Court held that even if the new particulars had been properly charged, the alleged conduct would not have been unprofessional. This was because the new particulars arose from how Alsaadi conducted his defence. The majority held that the manner in which a defence is conducted will only be subject to further disciplinary charges in exceptional cases. While intent to impede the proceeding is not necessary, there must be more than merely providing inaccurate answers or contradictory or incomplete responses.
The majority’s decision has significantly narrowed the application of section 79(3) of Alberta’s Health Professions Act and similar provisions in other regulatory statutes. In short, the power is very limited and should only be used with extreme caution.
If a Hearing Tribunal hears of a matter beyond the scope of the charges that could constitute unprofessional conduct, the Tribunal should carefully consider the fairness of the entire process, particularly fairness to the member subject to discipline. In most cases, the matter should be referred to an entirely new investigation and discipline process, or at least be referred for a new hearing with advance notice as the governing statute requires.
It will be interesting to see if other cases take up these issues and provide further guidance on the powers contemplated in section 79 of the Health Professions Act. In the meantime, Field Law’s Professional Regulatory Group is well-equipped to provide regulators and tribunals with guidance on navigating the issues of new allegations and particulars.