The Alberta Court of Appeal confirms the broad nature of professional misconduct and that deference must be given to tribunals assessing a member’s conduct.

The Alberta Court of Appeal’s decision in Al-Ghamdi v. College of Physicians and Surgeons of Alberta, 2020 ABCA 71 involved an orthopedic surgeon practicing out of the Queen Elizabeth II Hospital in Grande Prairie, Alberta who was charged by the College of Physicians and Surgeons of Alberta (the “CPSA”) with engaging in professional misconduct. Interestingly, the professional misconduct in question did not involve Dr. Al-Ghamdi’s surgical skills but instead focused on his behavior towards colleagues and other medical staff. Specifically, the CPSA alleged that Dr. Al-Ghamdi engaged in disruptive conduct over an 11 year period.

After a 47 day hearing involving approximately 67 witnesses, the Hearing Tribunal of the CPSA found that 8 of the 13 particulars had been proven, the overall allegation of disruptive conduct was made out and it constituted unprofessional conduct under the Health Professions Act (the “HPA”). This finding was upheld by the CPSA’s Council. Dr. Al-Ghamdi appealed the finding of unprofessional conduct and sanctions to the Court of Appeal where he argued, among other things, that the Council made an error in determining that the disruptive behaviour described in the allegation could constitute unprofessional conduct under the HPA.

This case is notable as not only is it one of the first decisions to consider the standard of review in the professional regulatory context following the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (“Vavilov”), but it provides interesting commentary on the scope of professional misconduct and specifically, the definition of unprofessional conduct under the HPA.

The standard of review is the lens through which the reviewing body, here the Court, must examine the decision being appealed; it dictates the level of deference the Court must give to the tribunal’s decision. The Court of Appeal considered the ruling in Vavilov and determined that the interpretation of the HPA is reviewed on the standard of correctness. This is the least deferential standard as it permits to Court to engage in its own independent analysis of the law and evidence before the tribunal to determine if it made the right decision. In contrast, the Court held that the determination of whether Dr. Al-Ghamdi’s conduct met the expected standards (i.e. whether it constituted unprofessional conduct) is a question of mixed fact and law reviewable on the most deferential standard of review – palpable and overriding error. Under this standard, the reviewing Court may not interfere with the tribunal’s decision unless there has been an obvious error that goes to the very core of the outcome of the case.

In determining that Dr. Al-Ghamdi’s behaviour constituted unprofessional conduct, the Court rejected the argument that because the term “disruptive behavior” is not included in the legislation, Code of Ethics, or Standards of Practice, it cannot be considered unprofessional conduct. The Court of Appeal held that the definition of “unprofessional conduct” in the HPA is not an exhaustive list of acts or omissions but is “cast at a conceptual level” as indicated by the definition itself which uses terms such as “lack of care and skill” or “harm to the integrity of the profession” with no further qualifiers. Similarly, despite the fact that the relevant Code of Ethics and Standard of Practice are general in scope, the CPSA was permitted to reduce such general principles into a specific allegation of unprofessional conduct.

Ultimately, the Court of Appeal found the Tribunal properly determined that Dr. Al-Ghamdi’s conduct constituted professional misconduct and was deserving of sanction. The Court dismissed Dr. Al-Ghamdi’s appeal and upheld a costs award of $717,421 against him.

Notably, the Court held that not all workplace issues should be characterized as professional misconduct and prosecuted by regulators; often, workplace issues should be dealt with through workplace remedies. However, where (as was the case of Dr. Al-Ghamdi) the workplace conduct has “a serious detrimental effect on the provision of patient care, and the efficient and sustainable operation of a healthcare facility” and it is “sufficiently egregious to be what could reasonably be called ‘misconduct’”, it can constitute professional misconduct.

Comment:

The Court of Appeal’s decision on the standard of review is a good one for regulators. In finding that determinations on whether a member’s conduct constitutes unprofessional conduct should be reviewed on the standard of palpable and overriding error, the Court recognized that the profession is the best positioned to make this decision. This case also highlights the broad nature of professional misconduct and confirms that a statutory definition of professional misconduct should not be interpreted in a manner that unreasonably narrows its application. To do so would be contrary to the goal of public protection. However, the decision also signals that regulators should have care in deciding what workplace issues constitute professional misconduct and therefore require intervention. As instructed by the Court of Appeal, regulators should consider: (a) whether the conduct has a detrimental impact on the public and provision of professional care; and (b) whether the conduct is sufficiently egregious to constitute misconduct.

Field Law’s Professional Regulatory Group is well equipped to provide you with guidance in determining whether a member’s conduct falls within the meaning of professional misconduct under the relevant legislation as well as assistance on the applicable standards of review.