Canada: Alberta Courts Enforce Fair Access To The Professions: Farhat v. College Of Physicians And Surgeons Of Alberta

Last Updated: July 9 2015
Article by Gregory Sim and Jason Kully

In Farhat v. College of Physicians and Surgeons of Alberta, 2014 ABQB 731, the Court of Queen's Bench highlighted the importance of careful documentation to justify registration decisions and procedural fairness in the registration process. These concepts help to ensure that applicants have fair access to the regulated professions. Courts will enforce these concepts and direct full re-assessments of applicants where they have not been fully satisfied.

Dr. Farhat, an internationally trained pediatric radiologist, was recruited to work in Calgary. He was registered on the College's courtesy register during a fellowship. Thereafter, he submitted to a competency assessment to determine his eligibility for the College's general register. The College's Assessment and Competency Enhancement Department was responsible for the assessment. It engaged Dr. Bhargava, a pediatric radiologist in Edmonton, to conduct the assessment along with a team of several other radiologists. 

After approximately one month Dr. Bhargava and the team of assessors determined that Dr. Farhat was not competent. Dr. Bhargava documented this in a decision letter. The College then advised Dr. Farhat that based on Dr. Bhargava's decision letter he would be denied the ability to practice independently. A copy of Dr. Bhargava's decision letter was provided. Dr. Farhat requested disclosure of the records used in the assessment pursuant to section 30(4) of the Health Professions Act. Section 30(4) provides that an applicant may review "the documents used... and created... when considering the applicant's application." Dr. Farhat's request was denied. Dr. Bhargava responded that Dr. Farhat's substandard reports had been altered by the supervising radiologists and Dr. Farhat's original work was not preserved. Further, Dr. Bhargava refused to release the tests taken by Dr. Farhat or even the test scores in order to preserve the validity of the tests for future use.

Application for Review of Registration Decision

Dr. Farhat applied to the Review Panel of the Appeals Committee of the College's Council for a review of the decision under s. 31 of the Health Professions Act.  He raised concerns with the lack of disclosure as well as the short duration of the assessment.

The Review Panel dismissed the request for review. It accepted Dr. Bhargava's response to the disclosure request and his reasons for not providing the information and found that Dr. Bhargava's decision letter was sufficient disclosure. The Review Panel also held that the team approach to the assessment increased its reliability.

The College had a manual for the assessment process. The manual provided that the assessment should take three months, although Dr. Farhat had agreed in writing that the assessment could be concluded earlier once he had clearly demonstrated or failed to demonstrate his competence. The manual also provided for the assessors and the applicant to meet and review clinical objectives at the beginning of the assessment and for an interim evaluation report and a final evaluation report to be reviewed with the applicant.  None of these steps were followed. The College's manual was not provided to Dr. Farhat, nor was it before the Review Panel when it made its decision.

Application for Judicial Review

Dr. Farhat applied to the Court for judicial review of the Review Panel's decision. The Court confirmed that the deferential "reasonableness" standard of review applies when Courts review registration decisions of a College's Council under sections 31 and 32 of the Health Professions Act. The Court emphasized the relative expertise of the Council's Review Panel and that the issues involved the interpretation of the Health Professions Act, which was the Review Panel's governing statute. The Court also recognized that issues of procedural fairness will be assessed to determine whether the duty of fairness was met or not.

The Court found that s. 30(4) of the Health Professions Act creates a statutory disclosure obligation which entitles applicants to the evidentiary foundation for registration decisions. This section is for the benefit of applicants and is broad enough to include not only records used or created by the College's Registrar, Registration Committee or Competence Committee, but also records used or created by any external reviewer engaged to assist with their decision. Despite his statutory entitlement upon request, Dr. Farhat was not given any of the documents used or created by Dr. Bhargava and the assessment team to justify their conclusions.

The Court also noted that the Review Panel relied on the experience and qualifications of the assessment team as support for finding that the conclusions reached were reliable. The Court said this was akin to accepting a conclusory opinion without requiring its factual underpinnings.

The Court held that the Review Panel's decision was unreasonable in light of the failure to meet the statutory duty of disclosure under section 30(4) and the conclusion that Dr. Bhargava's decision letter provided sufficient disclosure. The Review Panel's decision did not demonstrate the necessary justification, transparency and intelligibility and the outcome did not fall within the range of possible acceptable outcomes that are defensible in respect of the facts and the law. 

The Court went on to assess whether there was a breach of procedural fairness. After considering the duty of fairness and the statutory duty of disclosure in section 30(4), the Court held that the degree of fairness required in the registration process is relatively high. 

The condensed, one month assessment did not itself deprive Dr. Farhat of procedural fairness since the College and the Review Panel had control over their own process. It did underscore the need to provide Dr. Farhat with sufficient detail and supporting documentation to allow him to fully address his concerns before the Review Panel. For example, Dr. Bhargava's decision letter merely summarized the assessment team's opinion. It did not allow Dr. Farhat to fully understand the case against him. The Court also held that the assessment team failed to follow the College's procedures outlined in the manual.

The Review Panel's decision was quashed. A new assessment to be overseen by a new assessor was ordered since the documentation supporting the competency deficiencies noted in Dr. Bhargava's decision letter were not preserved.

Tips for Regulators:

  • Ensure that individuals involved in registration decisions and reviews fully understand the requirement to justify their decisions with reasons. Consider providing these individuals with access to legal advice.  
  • Consider documenting procedures for registration matters and make the information accessible to all of the participants in the process and ensure compliance. 
  • Ensure any documents used or created in the assessment of registration applications are preserved as part of the applicant's registration file. 
  • Decision-makers in the registration process should not rely on a conclusion or opinion about an applicant without requiring the factual underpinnings or evidentiary foundation. These are important so that decision-makers can prepare reasons for any decision.

Field Law's Professional Regulatory Group would be happy to assist with any questions about fairness and statutory duties in the registration process.

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.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
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).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions