Interim Orders – Take Two

The Alberta regulator for chiropractors got the interim order process right on its second try.

In Basaraba v College of Chiropractors of Alberta, 2025 ABKB 572 (CanLII), the regulator received information that a chiropractor had inappropriately touched patients without informed consent and, in fact, faced criminal charges for sexual assault relating to some of them. An interim order was issued requiring supervision by another regulated health professional and requiring notice be given to patients. The regulator received additional information that the chiropractor may not have fully complied with the supervision order. The regulator upgraded the order to an interim suspension, relying heavily on the non-compliance concern. A court quashed the interim suspension on the basis that the regulator had failed to provide the chiropractor with sufficient disclosure and an opportunity to respond. The practice restrictions (i.e., supervision and patient notice) remained in effect.

The regulator restarted the interim order process providing appropriate disclosure and an opportunity to respond. The regulator issued a second interim suspension based on concerns of failing to comply with the practice restrictions and because additional sexual assault criminal charges had been laid (now totalling eleven). The chiropractor again sought a stay of the interim suspension. This time the Court upheld the order with the following observations:

• The Court applied the traditional test for issuing a stay:
  • Was there a serious issue to be tried?
  • Will the chiropractor suffer irreparable harm?
  • Balance of convenience. Specifically, will the harm to the regulator in staying the suspension be greater than the harm to the chiropractor in refusing the stay?
• As the chiropractor was disputing the allegations, the first part of the test was easily met.
• On the second part of the test, the Court found that the financial impairment and reputational damage from the interim suspension constituted irreparable harm. On this point the Alberta Court disagreed with the Ontario decision of Aboujamra v. The College of Physicians and Surgeons of Ontario, 2023 ONSC 1136 (CanLII), which suggested that such consequences were an expected outcome of an interim order and, without more, did not constitute irreparable harm.
• On the third part of the test, the Court considered the degree of evidence that was required for an interim order as part of its assessment of the balance of convenience. The Court held that it was not feasible for a regulator to make determinations of contested facts when deciding on an interim order. The regulator is entitled to act on complaints unless they are manifestly unfounded or exaggerated. This is called the prima facie standard. “A robust inquiry into the merits is premature and impractical.”
• Disciplinary proceedings are an “inherently fluid” process. That the regulator once accepted that practise restrictions were adequate to protect the public does not prevent the regulator from seeking an interim suspension later, especially where additional information becomes available.
• That some of the concerns have now been referred to discipline supports the view that the prima facie standard has been met.
• That there were now eleven criminal charges reasonably increases the regulator’s public protection concerns.
• The prima facie failure to fully comply with the supervision and patient-notification requirements is relevant to whether an interim suspension should be ordered.
• Similarly, prima facie evidence that the chiropractor blamed others relating to his communications with patients about the allegations and was dismissive of their seriousness (when fulfilling his duty to notify patient of the concerns) is also relevant to whether an interim suspension should be ordered.
• The six weeks delay to initiating the second interim suspension process was a concern, but the regulator’s explanation for the delay was reasonable.
• A degree of deference should be afforded to the regulator which is better informed of the risk to the public, especially where the alleged misconduct is serious.
• The Court received some comfort in the fact that the regulator had scheduled the hearings promptly and that they were to begin soon.
• Ultimately, the balance of convenience favoured the regulator and the protection of the public.

This decision is helpful in illustrating some of the circumstances a court will consider when a challenge is made to a regulator’s interim order.