Zakhary v. College of Physicians and Surgeons of
Alberta, 2013 ABCA 336
On October 3, 2013 the Alberta Court of Appeal upheld the
decision of the College of Physicians and Surgeons of Alberta
("CPSA") to publish information about a discipline
decision involving a doctor, and provided needed interpretation and
insight into s. 119 of the Health Professions Act
In this case, Dr. Kristina Zakhary admitted to repeatedly
failing to respond to a CPSA investigator and admitted that this
constituted unprofessional conduct. She made a Joint Submission
with the Complaints Director on penalty for a reprimand and payment
of costs of the hearing. The CPSA's Hearing Tribunal accepted
the Joint Submission on the penalty. No one appealed, and after the
appeal period expired, the CPSA temporarily published the
conviction and penalty.
Dr. Zakhary sought Judicial Review of the CPSA's decision to
publish information about her professional discipline. The CPSA
relied on s. 119(1)(f) of the HPA to justify publication:
"119(1) If under Part 2 or Part
4 a regulated member's practice permit is suspended or
cancelled, or if conditions are imposed on a regulated member's
practice permit or a direction is made under section 118(4), the
(f) subject to the by-laws, may
publish or distribute the information referred to in this
subsection and information respecting any Order made by a Hearing
Tribunal or counsel under Part 4."
Part 4 of the Act is the part dealing with professional
Dr. Zakhary argued that s. 119 only permitted the Registrar to
publish the decision if the Hearing Tribunal issued a suspension or
cancellation, which was not the case here.
The Court of Appeal upheld the CPSA's decision and held that
s. 119(1)(f) of the HPA can reasonably be interpreted to permit a
regulator to publish results of discipline hearings, even if the
Tribunal did not order suspension or cancellation.
In a concise and well-reasoned decision, the Court confirmed
that regulators under the HPA have expertise in interpreting their
In addition to the specific interpretation of s. 119 of the HPA,
the Court of Appeal reconfirmed the importance of transparency in
this regulatory scheme. It noted that the previous governing
legislation for physicians contained repeated presumptions of
privacy for the members, but that the HPA does exactly the
opposite: "Its scheme is openness" (para. 23).
The decision is important to regulators for a number of reasons,
since it establishes that:
Publication of discipline decisions protects the public by
providing information about past misconduct. This enables consumers
(i.e. patients) to make informed choices about their care.
Publication of discipline decisions, including reprimands, is
consistent with the overall scheme of the HPA.
A professional reprimand is a public form of punishment.
Without publication, a reprimand ceases to be a reprimand and is
Regulators may find comfort in this decision, which reconfirms
the importance of professional regulation, and provides authority
for publication, without reference to privacy legislation. Rather,
the focus is on the intent and wording of the HPA, which requires
openness and contemplates publication in the discipline
The full decision is referenced as Zakhary v. College of
Physicians and Surgeons of Alberta, 2013 ABCA 336.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).