Balancing a regulator’s duty of transparency against a registrant’s interest in privacy can often be challenging. Perhaps none would be more daunting than the balancing that had to be done in Charkhandeh v College of Dental Surgeons of Alberta, 2025 ABCA 24 (CanLII). The dentist was found guilty of professional misconduct involving non-consensual sexual acts with a “staff member”. It was ordered that his right to practise be cancelled. The dentist appealed and an interim stay of the sanction was ordered pending the outcome of the appeal. Despite this, the regulator published a summary of the decision that included a description of the conduct. Eventually the fact of the appeal and the stay was included in the summary.
The dentist brought a motion to remove the summary from the regulator’s website until the appeal was heard. The Court did not grant the motion.
The Court concluded that there was some merit to the dentist’s request. It also concluded that the dentist had experienced irreparable harm in all the circumstances, of which the publication formed a part:
Dr Charkhandeh says he has suffered and is continuing to suffer irreparable harm as a result of the publications. Shortly after the College’s first publication on July 8, 2024 he was charged criminally by the Edmonton Police Service in relation to this matter, even though they had not laid criminal charges or even interviewed him over the intervening ten years. He believes the publication was the instigation for the criminal charges.
Dr Charkhandeh says he has received communications from many patients and colleagues over the publications and they were “often shocked when [he explained] to them that [his] permit has not been cancelled.” He says he and his clinic have been subject to negative online reviews accusing him of inappropriate behaviour towards patients, which was not the case. He says his staff have questioned whether he has continued to practice without an active license and insisted he prove to them that he remained an active member of the College. Patients have left his care, seeking alternative care. Dr Charkhandeh says he is no longer able to participate on a number of boards and committees with which he has been engaged for many years….
There is no doubt that Dr Charkhandeh’s reputation and practice has suffered as a result of the publications to date. It is difficult to determine whether the continuation of those publications between now and the hearing date of the appeal, March 7, 2025, or later reasons, will increase or exacerbate that damage. In any event, the damage that has and may occur will be irreparable….
However, the Court found that the balance of convenience favoured the transparency interests of the regulator. While the statute itself did not absolutely mandate the publication, it did encourage it pending an appeal and the by-law provisions made publication mandatory.
These legislative and bylaw provisions are clearly aimed at transparency in process and reporting. The courts should defer to regulatory protection of the profession and the public. A regulator must be “afforded considerable latitude in making rules based on its interpretation of the ‘public interest’ in the context of its enabling statute”. Such a rule “will be set aside only if the rule ‘is one no reasonable body informed by [the relevant] factors could have [enacted]’” …. Given the emphasis on deference to a regulator in protecting the public interest, and the importance of public interest in determining balance of convenience, the balance of convenience here favours the decision of the regulator, made mandatory by the bylaws of the College, to publish the summaries of the decisions of the Hearing Tribunal and Appeal Panel, as it has, particularly with the addition of the stay information.
It is difficult to contemplate a circumstance in which both the registrant’s right to privacy and the public’s right to know could be more pronounced.