Alberta’s Court of Appeal appointed a special five-Justice panel to consider important aspects of discipline hearings. In a blockbuster decision, the Court addressed three recurring issues:
1. The standard of proof where there is a credibility contest.
2. Principles for imposing disciplinary sanctions.
3. Criteria for assessing costs that registrants should pay where a finding of misconduct is made.
I will deal with each of these issues in separate blogs.
In Charkhandeh v College of Dental Surgeons of Alberta, 2025 ABCA 258, the Court upheld a finding of professional misconduct by a dentist who engaged in five instances of forced, non-consensual sexual activities, including intercourse, with a colleague. The colleague was in a dependent and vulnerable position. While not an employee of the dentist, it was not unreasonable to call her part of the dentist’s “staff”. An alleged sixth incident was found not to have been established.
The findings depended on the assessment of the credibility of the staff person and the dentist. The main issue in dispute was whether the staff person consented to the acts. In upholding the finding, the Court made the following points:
• “In a civil case, where the standard of proof is on a balance of probabilities, and there is evidence on both sides of an issue, the burden of proof is rarely determinative…. The trier of fact will assess the reliability and credibility of all the evidence and reach a conclusion on the disputed fact.”
• “Believing the evidence of [the staff member] on a balance of probabilities on this issue must necessarily involve disbelieving the [dentist].”
• “The trier of fact is expected to come to a decision on disputed questions of fact; it cannot generally “sit on the fence….”
• “Rebutting a defence or justification put forward by the defendant does not amount to reversing the burden of proof. Therefore, pointing out that there were no indicia of a romantic relationship, contrary to the appellant’s account, did not amount to a reversal of the burden of proof.”
• The staff member reported the matter to the police, who chose not to lay charges. Even if the police did so because they believed there was consent (which apparently was not the case), “a third party’s opinion on the ultimate issue of whether the acts in question were consensual (which depended almost entirely on assessments of credibility), or the opinion of one witness (including the police service) about the credibility of another witness, were inadmissible and entitled to no weight….”
The Court had no difficulty in finding that the conduct had a sufficient connection to the practice of dentistry so as not to inappropriately encroach into the private life of the dentist.
The Court also commented on the inappropriateness of the dentist’s cross-examination of the staff member on her sexual history, her continued interactions with the dentist after the events, and her delay in reporting the events. The Court said:
This questioning was pursued even though in a criminal context this line of cross-examination would be impermissible or of no probative value, as it relies on stereotypical myths about the conduct of sexual assault victims…. These questions were no more acceptable, probative, or properly considered in professional disciplinary proceedings and ought not to have been permitted.
These comments by the Court reinforce other recent decisions on the burden of proof, admissibility of evidence, and the assessment of credibility.
