A recent decision that found professional regulators in Alberta should bear most of the costs of disciplining members could have a wide-ranging impact on professional disciplinary proceedings across Canada.
On October 13, 2022, the Alberta Court of Appeal released its decision in Jinnah v Alberta Dental Association and College, 2022 ABCA 336 ("Jinnah"). This decision made clear that professional regulators will bear "most, if not all" of the costs associated with disciplining members, with limited exceptions that would see the disciplined member bear "some" of the costs.
On March 30, 2023, the Supreme Court of Canada dismissed an application from the Alberta Dental Association and College (the "College") for leave to appeal the decision. As such, Jinnah remains the law in Alberta. Although the case is not binding in other provinces, there is no doubt that Jinnah will be relied upon by professionals facing disciplinary proceedings in other provinces going forward and will assist in facilitating lower costs awards against regulated professionals nationwide.
After finding Dr. Nimet Jinnah ("Dr. Jinnah") guilty of unprofessional conduct, the College's discipline tribunal prohibited Dr. Jinnah from practising for one month, ordered her to complete a philosophy course in ethics and imposed costs of $50,000.
Dr. Jinnah appealed the decision, as well as the sanction and costs imposed upon her, to the College appeal panel (the "Panel"). The Panel quashed the suspension for being disproportionate to the circumstances and substituted a reprimand. It left the requirement to take a philosophy course intact. It also reduced the discipline tribunal costs to $37,500 on the basis that the expert evidence adduced by the College at the hearing had been irrelevant and unnecessary. Lastly, the Panel ordered Dr. Jinnah to pay one-quarter of its costs on the internal appeal. Dr. Jinnah appealed this decision to the Alberta Court of Appeal.
The Court allowed the appeal, in part. In doing so, the Court overturned the majority of the findings of unprofessional conduct and quashed the sentence imposed upon Dr. Jinnah, leaving an amended reprimand as the sole sanction. Finally, it remitted the issue of costs to the Panel to be reconsidered with the benefit of the Court's reasons.
Although the Alberta Court of Appeal conducted a thorough examination of the findings of unprofessional conduct, this article will focus on the Court's analysis and decision respecting the appeal of the costs award.
Dr. Jinnah argued that the costs imposed upon her were excessive given that the allegations were not serious and were unrelated to patient care.
The Court confirmed that costs are discretionary and, in the professional discipline context, are subject to the reasonableness standard.
The relevant provision in the governing statute allowed the Panel to order a disciplined dentist to pay "all or part of the expenses of, costs of and fees related to the investigation or hearing or both." The Court confirmed that the power to order such costs should not be confused with the manner by which such powers are to be exercised and noted that costs will not be awarded in every case. In determining whether to award costs, a professional discipline tribunal must consider factors such as the seriousness of the charges, the conduct of the parties and the reasonableness of the amounts.
The Court clarified that the professional regulator should bear "most, if not all" of costs associated with self-regulation, including the costs of disciplining members, unless the disciplined person: (1) had committed serious unprofessional conduct; (2) is a serial offender; (3) failed to cooperate with investigators; or (4) engaged in hearing misconduct. Where one or more of these circumstances exists, the disciplined person must bear "some" of the costs.
The rationale for the profession bearing the costs of disciplining its members is that the profession benefits from the discipline because disciplining members demonstrates that the regulator protects the public interest, thereby increasing the profession's standing in the eye of the public. The privilege of self-regulation also inherently involves the costs of disciplining members. Because of the benefits of self-regulation and discipline, a significant portion of costs should not be imposed on a disciplined professional absent the four "compelling" circumstances described above. In these situations, either the disciplined person's conduct unnecessarily increased costs for the regulator or they ought to have known that their conduct was "completely unacceptable" and constituted unprofessional conduct, thereby justifying a larger costs award.
The Court went on to state that "the profession as a whole should bear the costs in most cases of unprofessional conduct" and that "most" professionals found guilty of unprofessional conduct will not be subject to a costs order. Reframing principles surrounding costs in this manner will force regulators to select the most appropriate investigative and prosecutorial options, thereby not expending resources where a reminder of appropriate conduct may be all that is required. Further, professionals will be able to better estimate the costs of an unsuccessful defence and will not be influenced to plead guilty to avoid a large costs order where they might otherwise wish to raise a legitimate defence.
The Court also noted that it would be unfair to impose onerous costs consequences on a disciplined person given that only some cases of unprofessional conduct actually result in disciplinary proceedings. In short, the Court recognized that other professionals may have engaged in similar conduct, but it is only the disciplined person who was actually charged for that conduct.
The Court opined that its simplified approach to costs awards would benefit the parties to a disciplinary matter as the approach is easy to follow and would remove the need to contest such costs issues at the hearing, thereby saving time and money. It also commented that it was unlikely that the process would have much impact on membership fees for the profession. The Court encouraged the College to continue resolving complaints at its earliest opportunity.
The Court cautioned disciplinary tribunals to ensure that they provide clear and transparent justification for costs awards in cases where costs are imposed.
Given that the Panel did not have any of the foregoing principles in mind at the time of the internal appeal, the Court held that the costs imposed on Dr. Jinnah were excessive; the costs were so large, they had become the sanction itself. The Court was not in the position to determine the appropriate costs award given the record before it and therefore remitted the issue of costs to the Panel.
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