Courts strongly discourage registrants from judicially challenging the validity of a referral of allegations of professional misconduct to discipline. The latest court decision on the topic out of Alberta highlighted many of the possible arguments a registrant can make: Akinnawonu v College of Physicians and Surgeons of Alberta, 2025 ABKB 644 (CanLII).
The physician was the subject of two complaints from colleagues related to allegedly making inappropriate sexual propositions. After allegations were referred to discipline, the physician applied to the Court to have the referral set aside on several grounds including:
- The investigation was incomplete when the referral was made. The investigator’s report that was relied on in support of the referral was labelled “preliminary” and evidence that arose subsequently, such as a statement from a key witness exonerating the physician and criticizing the investigation, was inadequately pursued. In addition, investigative steps continued after the referral was made.
- Issues related to race and ethnicity had tainted the complaints and the investigation.
- The referring entity breached its statutory duty to consider the strength of the evidence before sending the matter to discipline.
The Court determined that the physician’s application was premature. It explained that administrative proceedings should proceed to their conclusion before judicial intervention unless there were rare and exceptional circumstances. “Concerns about procedural fairness or bias are not rare and exceptional circumstances so long as the process allows the issue to be raised and an effective remedy to be granted….” The Court said that the physician should dispute the case against him at the hearing, where the physician could challenge the credibility and biases of the witnesses and even of the investigator. If the physician was unsuccessful, he could appeal the decision to the courts.
In terms of the completeness of the investigation, the Court said:
The HPA [the enabling statute] does not require the investigator to take direction from the investigated person regarding who should be interviewed, how their evidence should be interpreted, or when the investigation is sufficiently complete. It will be prudent in most cases for the investigator to interview and consider the investigated person’s views before finalizing a report, but it is the investigator’s job to form an independent view on the totality of the information received. In this case, the record shows the investigator did both these things in a manner that was consistent with his obligations. Dr. Akinnawonu can bring forward additional evidence at the hearing and argue that on the totality of the record it is clear that the Complaints should be dismissed, but he cannot stall the hearing by making repeated demands that the investigator take further steps or take a different view of the evidence.
The Court also noted that additional investigation of late-arising information after the referral was made was appropriate and did not mean that the initial investigation was incomplete.
In the circumstances of this case, the Court found that “the application was an abuse of process and likely brought to delay or interfere with the investigation and hearing process under the [legislation].”
Rare and exceptional circumstances justifying judicial intervention will indeed be rare and exceptional.
