Interim Order Banning Regulator from Posting Information on its Website

Increasingly, regulators post information about criminal charges against practitioners on their websites to provide all relevant information to the public and to enable the public to make informed choices. If the practitioner challenges the regulator’s legal authority to post the information, should the information appear on the regulator’s website while the challenge is ongoing?

On the one hand, the information about the criminal charges is publicly available, just not well known. The value of making the information public diminishes if there is a delay in posting it. The public expectation of a regulator making such information public, where the regulator knows about it, is likely high.

On the other hand, there will probably be permanent harm to the reputation of the practitioner if the legal challenge succeeds and the Court determines there is no authority to post the information on the regulator’s website. In effect, the practitioner will have no meaningful remedy to challenge the regulator’s interpretation of its legal authority because the publication will have already occurred.

In AB v College of Physicians and Surgeons of Alberta, 2021 ABCA 320 (CanLII), the Court said that there should be a balancing of the competing interests. In that case the practitioner had been charged with the criminal offence of sexual assault. The practitioner agreed to a restriction on his practice to only see female patients with a chaperone present. Information about that practice condition was available to anyone who searched the practitioner’s profile on the regulator’s website.

The Court concluded that, on the facts of this case, an order should be granted prohibiting the regulator from publishing information about the criminal charges until the court case on the merits had been determined. The Court emphasized the short period of time for which this prohibition would be in place and the public interest protection already provided by the chaperone requirement and the public’s access to information about that practice condition.

This case may be limited to its particular facts since a balancing of public interest considerations is required. In addition, the effectiveness of chaperone-based restrictions is being questioned by many regulators.

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