In Kumar v College of Physicians and Surgeons of Alberta, 2019 ABQB 514, http://canlii.ca/t/j1cqs a pediatrician was charged criminally with sexual assault and sexual interference with a minor. The charges were unrelated to his professional practice. As is often the case, the regulator was unable to obtain much evidence about the allegations pending the completion of the criminal process. The practitioner undertook to practise with a chaperone and post a sign in his clinic notifying patients of the requirement. Yet the regulator still imposed an interim suspension. The Court set aside the interim suspension (but maintained the terms of the undertaking) on the basis that the balance of convenience favoured the practitioner. The harm to his practise of a suspension was so significant that the public interest in protecting patients from harm did not justify such an intrusive step on the basis of the evidence then available to the regulator.
In applying the balance of convenience test, the Court indicated that some deference should be accorded to the regulator, but that the Court was not limited to assessing only whether the regulator’s decision was unreasonable. The Court did note that the facts of each case would determine the degree of risk to the public when assessing the balance of convenience.