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 professionals.)
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 unprofessional conduct.
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 establish this.
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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