In Tan v Alberta Veterinary Medical Association, the Court of Appeal agreed to stay some of the sanctions imposed by a Hearing Tribunal against a veterinarian until after the appeal on the merits was heard by the Court of Appeal. The Court found that the veterinarian would be subject to “irreparable harm” if the suspension and publication order were implemented before the appeal on the merits was heard by the Court.

In this case, Dr. Tan, a veterinarian, was suspended by a Hearing Tribunal of the Alberta Veterinary Medical Association (ABVMA) for communications and discharge instructions with clients as well as a breach of a previous order. 

The Tribunal imposed a five-part sanction, including a reprimand, suspension of 30 days, a publication order on a “with names” basis, a fine, and a partial payment of the cost of the investigation and hearing. 

Dr. Tan appealed the Tribunal’s decision to the Council of the Association. The Council affirmed the Tribunal’s decision. Dr. Tan then sought a stay of the Tribunal’s judgment pending appeal to the Court of Appeal. He argued that being required to serve the one-month suspension before his appeal was heard was particularly harmful as it would result in loss of income and have negative implications on his reputation. He argued the same for the publication order. 

Justice Watson of the Court of Appeal considered the test that applies when considering whether to grant a stay which involves a consideration of three factors:

1. Whether there is a serious issue to be tried,
2. Whether refusal of the stay will result in irreparable harm for the applicant, and
3. Whether the balance of convenience favours the granting of the stay. Justice Watson acknowledged the well-established deference owed to professional regulatory tribunals but said that he still had to apply the tripartite test to determine whether a stay should be imposed.

Justice Watson’s reasons focused primarily on the nature and degree of the harm that Dr. Tan would suffer if he was required to serve the penalties ordered by the Hearing Tribunal before the appeal on the merits was heard. On the reputational effect of the suspension, Justice Watson opined that if asked by a client about a professional’s absence, the latter would have to answer honestly and divulge that they were suspended. This created a potential for a reputational or stigmatic consequence which would constitute irreparable harm because it could not be undone. 

Justice Watson opined that deferring the start of the suspension without cancelling it would not cause irreparable harm to the Association, as the purpose of the suspension was instructive and not injunctive: it was for a specific time period but did not necessarily have to start right away. Additionally, leaving the suspension in place would risk rendering the appeal moot. 

Justice Watson stressed the impact of reputational harm on a professional, as reputation is “quickly ruined and difficult to re-establish.” The balance of convenience favoured granting the application to stay the suspension and publication. 

The Court, however, rejected Dr. Tan’s argument that the financial components of the sanction (fine and partial costs of hearing and investigation) constitute irreparable harm. In case of financial difficulty, Dr. Tan and the Association are free to enter a payment arrangement. The financial burden arising from the requested payments did not shift the balance of convenience in favour of staying the payments. 

Comment

Most professional regulatory statutes include provisions permitting the registrant to seek a stay of a discipline decision pending the hearing of an appeal. When a stay is sought pending appeal, regulators should carefully consider their position with respect to the stay application. Where it is necessary to enforce the orders immediately in order to adequately protect the public, the regulator may decide to oppose the application for a stay. A regulator seeking to enforce such sanctions pending appeal will have to stress that protection of the public justifies the reputational consequences that the member may suffer as they wait for their appeal to be adjudicated on the merits.  

If regulators have any questions or need assistance with a registrant seeking a stay of a decision, please contact Katrina Haymond, KC or any member of our Professional Regulatory Group.

Link to decision: Tan v Alberta Veterinary Medical Association, 2022 ABCA 413