On May 13, 2016, the Alberta Court of Appeal released its
decision in Lum v. Alberta Dental Association and College
(Review Panel), 2016 ABCA 154.
The Decision dealt with Dr. Lum, a dentist registered to
practice in British Columbia, whose application for registration
was refused by the registrar of the Alberta Dental Association and
College (ADA+C) because Dr. Lum had not provided satisfactory
evidence of good character as required by the Health
Professions Act and the Dentists Profession
Regulation. The registrar's decision was based on Dr. Lum
having 22 complaints over 10 years arising from his practice in
British Columbia (two of which were outstanding when he applied for
registration in Alberta), although none of the complaints resulted
in a finding of professional misconduct. The council (review panel)
of the ADA+C upheld the registrar's decision, and the Court of
Queen's Bench dismissed Dr. Lum's application for judicial
review of that decision.
On appeal to the Alberta Court of Appeal, Dr. Lum advanced three
main arguments: (1) that the Court of Queen's Bench erred in
concluding that that the review panel's decision was subject to
review on a reasonableness standard; (2) that the Court of
Queen's Bench erred in concluding that Dr. Lum was not of good
character and reputation merely because of the complaints; and (3)
that the Trade, Investment and Labour Mobility Agreement between
Alberta and British Columbia ("TILMA") required the ADA+C
to accept Dr. Lum's registration in British Columbia as
prima facie evidence of good character and reputation and
put the onus on the ADA+C to demonstrate that Dr. Lum lacked good
character and reputation. (TILMA is a trade agreement between
Alberta and British Columbia that provides labour mobility for
The Court of Appeal rejected each of these arguments in
dismissing the appeal. Unsurprisingly, and as Field Law argued on
behalf of the Respondent ADA+C, the Court of Appeal held that the
proper standard of review to be applied to the review panel's
decision was reasonableness. In addition, this Decision can now be
relied on for the position that the "internal standard of
review" (for review panels considering a registrar's
decision) is also reasonableness. Finally, the Decision is also
strong support for a very deferential approach to assessments by
professional regulators of good character and reputation, with the
Court of Appeal holding that, like professional discipline
tribunals, the review panel was a '"preeminent
example" of an expert tribunal (at para 39).
On the merits, the Court of Appeal found that the review
panel's decision that Dr. Lum had not provided satisfactory
evidence of good character was reasonable. While the registrar, the
review panel, and the Court of Queen's Bench did not provide a
precise meaning of good character and reputation, the Court of
Appeal held that the failure to do so did not equate to a failure
to articulate a legal standard. The Court of Appeal set out a
number of factors respecting good character and reputation that
could be distilled from the case law and held that the record
demonstrated that Dr. Lum "had several incidents that reflect
poor judgment, anger management issues, practice management issues
and competency issues that required resolution and additional
education" (at para 31). The Court held these were not bare
allegations and that in the informal resolutions of the discipline
complaints Dr. Lum acknowledged the concerns even though he did not
admit to unprofessional conduct. In upholding the decisions below,
the Court of Appeal confirmed that matters of competence can be
relevant in assessing good character and reputation, as can
discipline history even where there have been no formal findings of
With respect to Dr. Lum's argument that his registration in
British Columbia was prima facie evidence of good
character, the Court of Appeal agreed with Field Law's argument
on behalf of the ADA+C that TILMA does not affect the obligation of
professional organizations to assess good character and reputation.
The Court of Appeal also found that a recent tribunal's
decision under TILMA, which in effect imposed a reverse onus on the
incoming jurisdiction to prove that the applicant lacked good
character and reputation, was inapplicable as the
Regulation clearly puts the onus on the applicant to
James T. Casey, QC and Dana L. Adams of Field Law's
Professional Regulatory Group represented the ADA+C in this matter,
and Field Law will continue to provide updates on anything arising
from this precedent-setting decision.
Originally published May 2016
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