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 discipline panel ordered the dentist to reimburse the regulator $350,425.00, representing 75% of its total costs.
It is on the issue of costs that the Court blazed an entirely new path. Previously, the approach in Alberta, enunciated in the Court’s prior decision in Jinnah v Alberta Dental Association and College, 2022 ABCA 336, was that regulators should presumptively have to bear their own costs. Doing so was the price of regulation. There would be rare exceptions, such as where the registrant had engaged in serious professional misconduct. The Jinnah approach has not been accepted in the rest of Canada, where the general approach is that the profession as a whole should not have to bear the burden of the expense of discipline hearings, especially where the allegations are serious: Dhaliwal v College of Veterinarians of Ontario, 2025 ONSC 1931.
The Court proposed a “fresh” approach based on first principles. The authority to award costs against a registrant “should be exercised in a principled, transparent and reasonable manner”. The Court was concerned about the approach that has developed where a discipline panel awards a percentage of the total expense of the process in costs. The Court proposed the following approach:
1. The Court entirely rejected the approach that costs should be ordered in most cases where a finding is made on the basis that it would be unfair for the profession to bear the entire expense for addressing a registrant’s misconduct.
2. Costs should not be considered a part of the sanction. As such, the seriousness of the misconduct should be addressed entirely in the sanction stage and should have no bearing on costs.
3. The most relevant consideration for a costs order is whether either party inappropriately added to the expense of the hearing. The Court said:
An important factor is whether costs have been increased due to the unreasonable or inefficient litigation conduct of either party. That would include things like introducing unnecessary or irrelevant evidence, overcharging by the College, refusing to admit uncontested facts, bringing unnecessary applications, delaying proceedings, or failing to meet reasonable deadlines. The party who wastes costs can expect to be held accountable. Both parties have an obligation to streamline the hearing, for example by outlining uncontested facts in advance in writing, and preparing lists of uncontested records.
4. Costs should only be awarded where it is reasonable to transfer the expense from the regulator to the registrant. The Court suggested that in many cases it is inappropriate to transfer “overhead” expenses to the registrant. Such costs “are an inherent component of self-regulation and properly fall on the regulator.” The Court suggested an example of overhead expenses are the “travel expenses and daily allowance for the tribunal members. In the normal course the types of expenses that the professional should be expected to pay are those costs discretely associated with the hearing itself.” The Court also suggested that some of the expenses of independent legal counsel might fall into the overhead category.
5. The costs awarded must be reasonable. This requires an assessment of the choices made by the regulator. For example, a regulator might well wish to use senior legal counsel or have two lawyers present its case. However, it might not always be reasonable for the registrant to pay for those choices. The Court suggested that there should be a breakdown of the types of expenses involved so that the discipline panel can evaluate their reasonableness. Also, from the Court’s perspective, even if the individual registrant might have the financial wherewithal to pay the costs, that does not make in and of itself them reasonable.
6. Finally, the global amount calculated above must be scrutinized from the perspective of its impact on the discipline system. The Court said:
… the costs are calculated, the ultimate award cannot be an unduly onerous or “crushing” burden on the professional. This factor effectively puts a cap on what would be a proportionate costs award in many cases. As noted in Alsaadi at paras. 114-15 and Jinnah at para. 148, the potential of a punitive costs award should also not deprive professionals of the opportunity to make full answer and defence, nor to prompt them to admit responsibility for conduct which they do not agree is unprofessional. The argument that the costs were only incurred because of the professional’s misconduct cannot extend to the point where it prevents a person from defending those allegations.
To bring finality to the process, despite acknowledging that it did not have a sufficiently detailed costs breakdown “to permit a forensic examination”, the Court fixed the costs of the hearing at $50,000.00 and the costs of the investigation at $10,000.00, for a total of $60,000.00.
The Court’s approach is inconsistent with the analysis currently undertaken by most Canadian courts. The Jinnah decision did not gain traction in the rest of Canada; it will be interesting to see if this revised approach does.
