One Appeal or Two?

Many discipline panels conduct their hearings in two parts. The first deals with the merits of the allegations (also known as the “finding” stage). If a finding of misconduct or incompetence is made, the issue of sanction (or “penalty”) is then addressed, often on a different day.

An important question that then arises is whether an appeal can be brought with respect to the merits decision or whether there can only be an appeal after a decision on sanction has also been made. Since most appeals must be commenced within a short period of time, knowing the answer can be crucial to exercising one’s rights. Also, some statutes provide for an automatic interim suspension after serious findings have been, such as sexual abuse, until the sanction has been determined. If there is no right of appeal from the merits stage and the sanction hearing is delayed, the registrant could be suspended for a lengthy period of time until they are able to appeal.

An Alberta court addresses this issue in MA v Alberta College of Pharmacy, 2023 ABKB 522 (CanLII). There the regulator declined to process either an internal appeal or a reconsideration of the interim suspension until the decision on sanctions was rendered because, in its view, the hearing was not yet over and so no right of appeal had been created. The registrant brought an urgent application to the Court for a stay of the interim suspension.

The Court noted that appeals are creations of statute, and the registrant could only succeed if the legislation intended to allow for an appeal of the merits decision itself (prior to the sanctions phase). In reviewing the language and the purpose of the scheme, and by making analogies to other proceedings, the Court concluded that there was indeed a right of appeal once there were written reasons produced as a result of the decision on the merits. A further right of appeal existed once a written sanctions decision was issued, otherwise, registrants would have no opportunity to challenge interim suspensions if there was a long delay between the merits stage and the sanctions stage. However, the Court hastened to add that there was no right of appeal for interim decisions made in the course of the hearing (e.g., evidentiary rulings); to allow that that would result in an unintended multiplicity of proceedings.

In the circumstances, the Court concluded that the interests of justice required it to address the issue of whether to stay (i.e., lift) the interim suspension. The Court noted that the legislation required that the hearing panel impose an interim suspension when there was a finding of sexual abuse, and that the principle of zero tolerance of sexual abuse by health professionals weighed heavily in favour of protecting the public (by way of interim suspension) pending the decision on penalty. The “consent” to the conduct by the patient (who was in a long-term relationship with the registrant), was not a mitigating factor. However, in the circumstances, including the fact that there were reasonable arguments to be made by the registrant in their appeal and the adverse consequences for the registrant’s pharmacies because of the suspension, the Court concluded that the public could be protected through other measures. The Court ordered that the suspension was to be lifted subject to various conditions, including that the registrant not be alone with any patients and that the registrant not provide services to anyone with whom they are or were in a sexual relationship.

Participants in discipline hearings must carefully consider whether there are in fact one or two rights of appeal in light of the particular provisions found in the enabling legislation at issue.

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