Canada: Self-Governing Professions; Inter-Provincial Agreements; Standard Of Review ~ With 2 Counsel Comments

Lum v. Alberta Dental Association and College (Review Panel), 2016 ABCA 154

Areas of Law: Self-Governing Professions; Inter-Provincial Agreements; Standard of Review

~The Trade, Investment and Labour Mobility Agreement between BC and Alberta does not entitle a professional registered in BC to be registered in Alberta~

BACKGROUND

The Appellant, Dr. Lum, is a registered dentist in BC. He applied for registration in Alberta, but the registrar of the Alberta Dental Association and College refused his application because the Appellant had not provided satisfactory evidence of good character and reputation as required by the Health Professions Act. The Appellant had 22 complaints over 10 years arising from his practice in BC, although none of the complaints resulted in a finding of professional misconduct. The registrar noted that many of the issues recurred with respect to subjects where the Appellant had received previous remedial education. Two complaints were outstanding when he applied for registration in Alberta. The Respondent Review Panel of the Dental Association upheld the registrar's decision, finding it reasonable and entitled to deference. The Appellant appealed this decision to the Court of Queen's Bench. The reviewing judge concluded that the Review Panel correctly identified and applied the standard of reasonableness. "Good character and reputation" is fact-sensitive, not capable of precise definition, and therefore not an extricable question of law subject to the higher standard of review of correctness.

APPELLATE DECISION

The appeal was dismissed. The Appellant contended that the reviewing judge erred in concluding that the review panel's decision for rejecting the Appellant's application was reasonable. In oral argument he also raised an issue about the sufficiency of the reasons, saying that the registrar failed to articulate what constitutes good character and reputation or to explain why the Appellant had not met that standard. He submitted that his registration as a dentist in BC is prima facie evidence of good character, and suggested that the registrar denied his application despite this, his reference letters, and the fact that all but two of the complaints against him had been resolved. The Court of Appeal was not aware of any reported cases that specifically discussed the good character requirement under the Act or the Dentists Profession Regulation. In reviewing case law more generally, the Court composed a list of factors to consider in determining good character. It noted that the requirement of good character and reputation is fundamental to a profession's ability to self-regulate, and the profession is given a broad discretion in assessing good character. That discretion cannot be exercised arbitrarily or without clear rational reasons, but in this case the registrar had reasonable concerns about the number, nature and resolution of the complaints against the Appellant, and the fact that there were more complaints after remedial education and monitoring. The registrar's decision was intelligible, justified by a reasonable explanation, and within an acceptable range of outcomes. The Appellant further argued that he was entitled to be registered in Alberta by virtue of a Mobility Agreement between Alberta and BC. He argued that the good character requirement under the Regulation should be interpreted in a way that did not violate the Mobility Agreement. The Court applied the principles of treaty law, and held that for the Appellant's argument to succeed there must be an ambiguity in the Act or the Regulation, the current interpretation of the Act or Regulation must be inconsistent with the Mobility Agreement, and the Appellant's proposed interpretation must be consistent with the Agreement. The Court found that there was no ambiguity in the legislation. The onus is on the applicant to prove good character; it is not the registrar's job to disprove it. Additionally, disputes under the Mobility Agreement are between the signatories to the agreement, being Alberta and BC, and should be resolved using that instrument's procedures.

Counsel Comments

Lum v. Alberta Dental Association and College (Review Panel), 2016 ABCA 154

Counsel Comments provided by James T. Casey, Q.C and Dana L. Adams, Counsel for the Respondent the Alberta Dental Association and College

"The decision in Lum v Alberta Dental Association and College, 2016 ABCA 154 ("Lum") is a significant precedent for professional regulatory bodies in Alberta and elsewhere in Canada in a number of respects.

First, the Court of Queen's Bench judicial review decision, which was upheld by the Alberta Court of Appeal, affirmed that the "internal standard of review" (the standard of review to be applied by internal appeal bodies like the Review Panel when considering decisions of the Registrar) is reasonableness. The Court of Queen's Bench held that it was appropriate for the Review Panel to show deference to the decision of the Registrar and that the Review Panel should only overturn a registration decision if it is unreasonable.

Another key aspect of the Lum decision for professional regulators is its confirmation that matters of competence and discipline history can be relevant in assessing registration decisions even where there have been no formal findings of unprofessional conduct. In this case, the Court of Appeal held 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 these types of issues, including those proceedings that are resolved short of a formal finding of unprofessional conduct or those that are still ongoing, can be relevant in assessing an applicant's good character and reputation.

This holding that competence, outstanding disciplinary matters, and proceedings that were resolved without a formal finding of professional misconduct can be relevant considerations was part of the Court of Appeal's expansion of the analytical framework for determining whether an applicant to a given profession meets the standard of being of "good character and reputation." In addition to these three factors potentially relevant to the "good character and reputation" analysis, the Court also outline a number of other specific and general factors that can be considered, as distilled from previous case law (at para 30). These factors include moral strength, integrity, candour, empathy and honesty. In addition, the Court held that the qualities of the particular practice are relevant, as are the nature of the past misconduct at issue and any rehabilitations efforts or remorse. The Court also stressed that the purpose of the good character requirement (and professional discipline itself ) is "protection of the public and maintenance of public confidence in a self-regulated profession", that the analysis is necessarily subjective, and that a given profession has broad discretion to assess the good character of its applicants, as long as the discretion is not exercised in an arbitrary manner.

Finally, the Lum decision is of note for its comments on the interaction between interjurisdictional trade agreements and professional registration. The Court of Appeal held that TILMA, the trade agreement at issue in this case, did not prevent the regulator from assessing good character and reputation or remove the onus on applicants to demonstrate that they have are of good character and reputation. This means that the existence of such a trade agreement does not lessen a professional regulator's role in protecting the public and maintaining public confidence in the profession, nor does it change the general process for considering the good character registration requirement.

In short, the Court of Appeal's decision in Lum sets out a more comprehensive definition of "good character and reputation", while at the same time providing a strong affirmation of professional regulatory bodies' discretion in determining who should be admitted to a given profession and of the deference that internal appeal bodies and courts must give to those decisions."

Counsel Comments

Lum v. Alberta Dental Association and College (Review Panel), 2016 ABCA 154

Counsel Comments provided by Craig Bavis, Counsel for the Appellant

"This is likely to be a significant case for the standard of review that a court on judicial review will apply to a review board of a registrar's decision. The Court of Appeal confirmed the standard of review for the review board and the court is reasonableness (which was discussed in much more depth at the Court of Queen's Bench level). Prior to this case, there was no Alberta authority on the standard of review for determinations of good character."

Originally published by OnPoint Legal Research | Take Five

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