In Kherani v Alberta Dental Association, 2025 ABCA 2 ("Kherani"), the Alberta Court of Appeal considered the different means through which professional standards can be established in dispute resolution, confirming that unwritten, common expectations of a profession can also be relied upon as evidence of such standards. Below, we review this case and consider its broader applicability.
Background
Dr. Kherani was a dentist. The complainant saw Dr. Kherani for complex orthodontic treatment beginning in 2008. While Dr. Kherani initially suggested an orthodontist, the complainant chose to continue seeing Dr. Kherani for this treatment.
In 2014, the complainant became frustrated at the lack of progress in the treatment as well as the ongoing costs. The complainant sought opinions from three orthodontists and ultimately transferred to one of these orthodontists in 2015, ending the relationship with Dr. Kherani.
The complainant then filed a complaint against Dr. Kherani with the Alberta Dental Association and College ("ADAC") in 2016. This complaint was heard by a Tribunal (constituted by ADAC) in 2022, ultimately resulting in a finding that Dr. Kherani was guilty of four allegations of unprofessional conduct.
The Tribunal relied upon the evidence of ADAC's expert, who provided expert evidence on the standards of practice of a dentist performing orthodontic work. The expert testified that a dentist's treatment plan was to be sufficiently detailed so that the patient or another dentist could understand certain aspects of the treatment; by contrast, the Tribunal found that Dr. Kherani's records were unclear, confusing, and inaccurate.
Dr. Kherani also failed to have certain diagnostic information collected, and it appeared that the different pieces of equipment being used on the patient worked against (or in other words, were incompatible with) each other.
Dr. Kherani unsuccessfully appealed the tribunal's decision to ADAC's Appeal Panel. There, the Appeal Panel noted that written standards were not the only source for standards of practice, and that not every rule or standard had to be reduced to writing in order to qualify as a standard of practice.
Thus, Dr. Kherani appealed these decisions directly to the Court of Appeal.
The Court of Appeal's Decision
Regarding relevant standards of practice, Dr. Kherani argued that both the Tribunal and the Appeal Panel failed to articulate what specific standard of practice Dr. Kherani breached. The Tribunal had made no findings regarding the written standards of practice for the profession. In Dr. Kherani's view, the Tribunal therefore could not ground a finding of unprofessional conduct.
In support of her position, Dr. Kherani relied upon section 133 of the Health Professions Act ("HPA"), which stipulates that for standards of practice to be amended, a proposal must be circulated by ADAC to its members, the Minister, and anyone else deemed necessary to provide comment.1
However, the Court of Appeal disagreed.
Though section 133 of the HPA outlined a formal process for adopting written standards of practice, it was nevertheless not an error of law for the Tribunal to assess Dr. Kherani's conduct under standards not adopted pursuant to section 133.
Specifically, the Court of Appeal noted that professional standards could be developed either through the regulator establishing written standards, or by referencing the common expectations of the profession (which did not need to be written). To effectively regulate the dental profession, the Court of Appeal was clear that there had to be standards to which a professional could be held beyond the written standards of practice, as practically speaking, not all details could be reduced to writing.
Holding that only standards adopted under section 133 of the HPA were relevant would mean that no dental professional could be found guilty of unprofessional conduct based on a lack of knowledge, skill, or judgment where there were no written standards. In the Court of Appeal's view, this would be an absurd conclusion. Accordingly, the Court dismissed the appeal as it pertained to the finding of unprofessional conduct.2
Commentary
Notwithstanding that Kherani is a relatively brief decision, it is nevertheless instructive as a reminder of the possibility that professional standards can include written and – more notably – unwritten components.
This is particularly relevant as it relates to the standard use in construction contracts of provisions requiring a party – typically the contractor, but also possibly the engineer or architect depending on the agreement in question – to perform their obligations in a manner consistent with "good industry practice". Frequently, the term is not defined, although on very large projects, it is often a defined term within the construction contract. One example of such a provision is as follows:
Contractor agrees toperform each Services Agreement with due care and diligence, in a good and workmanlike manner, in accordance withgood industry practicesand in accordance with any additional written policies or guidelines that are agreed to by Contractor and Operator and attached to an applicable Services Work Order. 3 [emphasis added]
For contractors, engineers, architects, and other construction professionals, there are varying degrees of licensing requirements and regulations that dictate the minimum level(s) of qualifications and performance that those professionals must meet in order to remain in good standing. However, as the Court in Kherani aptly observed, it is simply not practical to reduce every single aspect of work to writing; accordingly, there is room as it relates to construction professionals to argue that unwritten standards are relevant to determining good industry practice (as compared, for example, to 'minimum acceptable industry practice').
Parties negotiating construction contracts would therefore be well advised to turn their minds towards the use of a 'good industry practice' provision and what specifically it entails, including whether to articulate a more explicit definition to clarify whether it includes unwritten standards. For parties in dispute over whether good industry practice has been satisfied, it is equally worthwhile to bear in mind the extent to which expert evidence will have to consider unwritten standards in addition to written ones.
Footnotes
1 Section 22.21 of Ontario's Regulated Health Professions Act provides a similar provision for establishing or amending occupational standards.
2 The Court of Appeal allowed the appeal as it pertained to the fines and coaching order imposed by the Tribunal; however, we do not review that aspect of the decision.
3 Horizon Resource Management Ltd. v. Blaze Energy Ltd., 2011 ABQB 658 Horizon Resource Management Ltd v Blaze Energy Ltd, 2011 ABQB 658 at para 546.
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.
