Interim suspensions (or other orders) during an investigation are always challenging for Courts to decide. Typically, they are challenged through an application for judicial review. On such applications a court will generally review whether a fair procedure was followed and whether the regulator reasonably applied the statutory criteria for imposing such an order. In Kalia v Real Estate Council of Alberta, 2021 ABQB 950 (CanLII), https://canlii.ca/t/jkxnn a different process was specified in the enabling statute. Under that legislation, a practitioner could ask the Court to “stay” the interim order. As such, the Court applied the interim injunction test (i.e., issue to be tried, irreparable harm, balance of convenience). Despite this unusual procedure, the Court’s decision provides some interesting perspectives on interim orders that may be relevant to other legislative schemes.
The Court reviewed the purpose of interim orders:
The legislative purpose of a temporary or interim suspension is to protect the public while the regulatory body undertakes conduct proceedings, including the investigation into the allegations against its licensee and any hearing of the merits. In deciding whether to impose an interim suspension, the regulatory body is not determining whether the complaints are “true” or choosing between two competing versions of events. Instead, the regulator is assessing whether a prima facie case of misconduct is established such that in the surrounding circumstances, and having regard for the personal impact on the licensee, action is necessary to protect the public on an interim basis until the conduct proceedings are concluded….
In satisfying itself that a prima facie case is established, the regulator examines whether the evidence, if believed, covers all of the essential elements of the alleged misconduct and justifies a finding against the licensee in the absence of an answer. The regulator generally does not weigh the credibility or merits of a disputed allegation, except to discount evidence that is inconsistent with objective or undisputed evidence or which is manifestly unreliable. At this stage of the conduct proceeding, the regulator only seeks to exclude complaints that are manifestly unfounded or exaggerated…. [citations omitted]
The Court then looked at the procedural fairness extended by the regulator. Reliance on hearsay information was appropriate in this context. And while some disclosure, particularly of the particulars of the allegations, is necessary, full disclosure of all information is not. In fact, such disclosure could affect the integrity of the ongoing investigation:
However, full disclosure might properly be withheld during the investigation as a review officer gathers and tests the reliability of evidence. For example, a review officer might seek to explore the credibility of the licensee by collecting the licensee’s version of events before confronting the licensee with contrary evidence.
The Court also discussed the types of considerations that can be taken into account when balancing the practitioner’s interests against the public interest:
a) whether a prima facie case of misconduct is shown on the merits;
b) the nature and gravity of the impugned conduct;
c) the circumstances in which the impugned conduct occurred;
d) whether interim relief remains necessary to protect the public from a real risk of harm;
e) the likelihood of the impugned conduct being repeated;
f) the licensee’s disciplinary history, if any;
g) new allegations of misconduct reported or arising during the suspension;
h) the extent of the licensee’s cooperation with the investigation, which may assist in demonstrating the licensee’s respect for regulatory compliance and professional governance in the immediate future;
i) the overall passage of time in the conduct proceedings, including the likely timeline until the conclusion of the proceedings;
j) the extent of the irreparable harm to which the licensee will continue to be exposed; and
k) whether means less restrictive than a suspension are available to adequately protect the public.
In this case the Court had little difficulty in determining that the risk to the public warranted an interim suspension and that monitoring conditions were not suitable. However, the Court did indicate that if the hearing did not commence within four months, the stay application could be renewed.
While regulators should always look to the criteria for imposing interim orders set out in their legislation, the above comments can offer some guidance as to how a court will review their determination.