In Ahmed v Alberta College of Pharmacy, the Alberta Court of Appeal delivered two key rulings on the interpretation of the Health Professions Act. First, appeals in professional disciplinary proceedings must occur only after sanctions are issued. This streamlines the appeal process and promotes efficiency, fairness, and judicial economy. Second, a regulated member can apply for a stay of the mandatory interim suspension triggered by a sexual abuse finding even before the sanctions phase concludes. This ensures access to interim relief pending the final decision and the right of appeal. These clarifications ensure more predictable and efficient processes for both professionals and regulators, balancing fairness with the public interest.
In Ahmed v Alberta College of Pharmacy, the Alberta Court of Appeal clarified two significant interpretation issues under the Health Professions Act (“HPA”):
Bifurcated appeals in professional disciplinary hearings are no longer permitted; there is a single appeal following a sanctions decision.
Regulated members may apply for a stay of a mandatory interim suspension after a finding of sexual abuse, even before sanctions are imposed.
This decision arose from a case in which a pharmacist was found to have engaged in unprofessional conduct by having a consensual sexual relationship with a patient, which qualified as “sexual abuse” under the HPA. His permit was suspended immediately following the finding of unprofessional conduct, as required, but prior to any sanctions order being issued. The member sought to appeal the finding of unprofessional conduct to Council and to have Council stay the suspension.
Single Appeal to Council
Disciplinary proceedings under the HPA are split into two stages: a merits stage to determine if unprofessional conduct has occurred, followed by a sanctions stage to impose consequences if a finding of unprofessional conduct was made. These stages often occur as separate hearings on different days, as the parties typically await the written merits decision from the Hearing Tribunal before proceeding to sanctions. In 2023, in an earlier proceeding in Ahmed, the Court of King’s Bench held that an appeal arose from each of the merits and sanctions hearings, meaning that a regulated member could bring an appeal to Council on the finding of unprofessional conduct while waiting for the scheduling of the sanctions phase. This approach led to concurrent appeals and bifurcated proceedings, raising concerns about efficiency, fairness, and judicial economy.
The Court of Appeal found that the scheme of the HPA demonstrates an intention that appeal rights apply to the final decision of the Hearing Tribunal, that is after the conclusion of a sanctions hearing when the sanctions decision is issued. Accordingly, a regulated member must wait until sanctions have been issued in writing prior to appealing to the Council. This finding will streamline the review process as it will allow the Hearing Tribunal to complete all of its required responsibilities and will eliminate multiple, staggered appeals.
Stay of Mandatory Interim Suspension
In 2019 the HPA was amended to include section 81.1(1) which mandates the immediate suspension of a member’s practice permit after a finding of sexual abuse, even before the sanctions hearing. However, the amendments do not provide any clear right for a regulated member to apply to Council for a stay of this mandatory interim suspension, particularly in light of the conclusion that a member must wait until the sanction phase has concluded before bringing an appeal to Council.
The Court of Appeal found that a regulated professional can apply for a stay of the mandatory suspension imposed at the merits stage, even prior to an appeal to Council. It held the mandatory suspension under section 81.1(1) can be interpreted as a type of interim order governed by section 65 of the HPA, which preserves the ability of a regulated professional to apply to the Court of King’s Bench for a stay of an interim order.
As such, prior to any final sanction being ordered, a regulated member can apply to the Court of King’s Bench for a stay of the mandatory interim suspension.
Takeaways
The Court of Appeal’s decision on a single appeal to Council provides welcome clarity for all parties involved in the discipline process. It ensures a more efficient appeal process by requiring a single appeal after the final sanctions decision, rather than permitting regulated members to appeal partway through disciplinary proceedings. It also avoids confusion and litigation by installments and addresses concerns about multiple proceedings and increased costs for regulated professions and professionals.
At the same time, the Court of Appeal addressed concerns about potential unfairness to a member subject to an interim suspension who could potentially be waiting for some time before a sanctions decision was issued, thus delaying their ability to appeal or seek a stay of the suspension. The Court’s decision preserves a professional’s right to seek interim relief through the courts while sanctions are pending.
