Billing Practices, Costs, and Diverging Courts

For the most part, regulators give registrants some leeway in managing their billing practices, viewing them as a civil matter. However, where the billing is without prior explanation, misleading, dishonest, or abusive, regulators will treat the matter as potential misconduct. Jinnah v Alberta Dental Association and College, 2022 ABCA 336 (CanLII), is such a case.

Dr. Jinnah (the registrant) was disciplined for various non-clinical aspects of her practice, including billing issues and communications with a patient. The regulator reprimanded the registrant, ordered her to complete a philosophy course on ethics, and to pay the hearing costs totalling $37,500 (along with one-quarter of the internal appeal panel costs).

The Court accepted that the regulator had the authority to regulate the business practices of registrants “to ensure that patients are informed in plain English of the dental services that their dentists have performed and the cost of these services, have their questions about their bills answered politely, promptly and accurately, and are, in general, treated fairly and with respect.”

The Court also accepted that registrants were responsible for the business conduct of their staff:

The fact that dentists invariably delegate business tasks – scheduling and billing, for example – to others in their offices does not insulate the dentist from the responsibility for the manner in which these workers discharge these assignments. It simply means that dentists must provide their staff with the training and supervision needed to reduce to a sufficiently low degree the risk that their behavior will adversely affect the dentist’s reputation.

However, the Court found that the evidence did not support the findings that the registrant in this case misled the patient about her fees or failed to provide detailed invoices. The Court also found that the tone of the registrant’s demand letters, while aggressive, did not amount to unprofessional conduct. The Court also set aside the finding that it was unprofessional for the registrant to increase the account by 50% if it were to be sent to a collection agency. The Court said that this was an acceptable practice for creditors at common law and thus was not oppressive. These determinations by the Court suggest a less deferential stance by an appellate court than what regulators usually see, at least in Ontario.

The Court did uphold the misconduct finding where the registrant threatened to sue the patient for defamation for making a complaint to the regulator. The Court said:

Obstructing the complaint process is conduct that harms the integrity of the profession and therefore constitutes unprofessional conduct. … The primary goal of the College is to protect the public. The existence of an effective complaint process is a crucial part of maintaining the integrity of the profession, and therefore protecting the public. Protecting the complaint process is an important part of the College’s obligation to ensure that professional standards of conduct are complied with. [citations omitted]

However, because the registrant appeared not to have known that such a threat was unprofessional, the Court supported the sanction of only a reprimand. The Court set aside the order to complete a philosophy course on the basis that the registrant would learn all she needed to know (e.g., about threatening legal action against a complainant) through the hearing process.

The Court set aside the costs order and established a new framework for costs for health regulators in Alberta. The Court stated that costs were not intended to be punitive and should not be awarded in every case. The Court indicated that costs should not be ordered against a registrant unless one of the following “compelling reasons” exists:

  • The registrant engages in serious unprofessional conduct,
  • The registrant is a serial offender.
  • The registrant fails to cooperate with the regulator, or
  • The registrant engages in hearing misconduct.

The Court said that the profession as a whole should bear the costs in most cases of unprofessional conduct. The Court discussed at length the rationale for this approach including encouraging regulators to carefully screen concerns before referring them to discipline and “levelling the playing field”. The issue of costs was returned to the regulator for reconsideration. This approach reinforces an earlier decision by the same Court in: Dr. Ignacio Tan III v Alberta Veterinary Medical Association, 2022 ABCA 221 (CanLII) that similarly scrutinized a costs award made against a registrant. Again, this approach is not consistent with the approach taken by courts in Ontario. See, for example: Walia v. College of Veterinarians of Ontario, 2021 ONSC 4023 (CanLII).

Where courts in different provinces take different approaches on similar issues, regulators are in a difficult position. Over time the approaches do tend to reconcile either by courts reflecting on the different approaches to the issue or through guidance from the Supreme Court of Canada. However, in the interim regulators face uncertainty.

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