It is commonly presumed in professional regulation that standards of practice for the profession must be written to be enforceable. However, this is not a correct presumption; not every standard must be written to be valid and enforceable. Sometimes standards develop in a profession organically and over time. These unwritten expectations and norms can become so well established in practice that they evolve into a minimum expectation for professional interactions and behaviours.

Unwritten standards can pose a challenge for regulators trying to discipline regulated members for breaching the unwritten standard: If a standard of practice is not documented, can it be relied upon in a disciplinary hearing to find unprofessional conduct, and if so, how?

The recent decision by the Alberta Court of Appeal in Kherani v Alberta Dental Association, supports that not all standards must be written to be enforceable. A member can breach a standard of practice that exists beyond the written standards, and a hearing tribunal can rely on expert evidence to inform itself on the common expectations of the profession.

In Kherani, a general dentist was providing a patient with complex orthodontic treatment from 2008 to 2014. In 2014, the patient became frustrated with the ongoing costs of the treatments and lack of progress and switched to an orthodontist. The patient filed a complaint with the Alberta Dental Association and College (the “College”). The hearing tribunal found the dentist guilty of unprofessional for failure to create and maintain a treatment plan, failure to obtain appropriate diagnostic information, failure to appropriately manage patient care, and failure to create or maintain adequate patient records. As there was no written standard regarding a general dentist performing orthodontic work, the hearing tribunal instead relied on the College’s expert’s evidence to inform them of the relevant standards of practice for a general dentist performing orthodontic work.

The dentist appealed the decision to the College’s appeal panel and ultimately to the Court of Appeal, where she argued, among other things, that the hearing tribunal and appeal panel erred in finding misconduct in the absence of written standards of practice and in how they treated the expert evidence.

The Court of Appeal dismissed the dentist’s appeal on the findings of unprofessional conduct and costs, while allowing the appeal on order of fines and coaching.

In upholding the findings of unprofessional conduct, the Court held that both the hearing tribunal and appeal panel sufficiently outlined the standards of practice and properly considered expert evidence to inform it of the standards of practice of a general dentist performing orthodontic work. The findings were reasonable and based on a coherent line of analysis. The Court confirmed that there are sources of the standards of practice other than the written standards; not every rule or standard needs to be written down.

The Court rejected the dentist’s argument that the only enforceable standards of practice were those adopted by the College under section 133 of the Health Professions Act. The Court held that while section 133 outlines the formal process for adopting written standards, it is not an error of law for a Tribunal to assess conduct under standards established by other means. The Court noted that “[p]rofessional standards can be developed either through the regulator establishing written standards or by referencing the common expectations of the profession”. Here, expert evidence was provided on the common standards of practice for the profession.

The Court further noted that there must be standards to which a professional can be held that go beyond the written standards of practice, noting that not every detail of being a professional can be written. The written standards adopted under section 133 provide clarity to expectations flowing from some common standards. However, if the standards of practice adopted under section 133 were the only relevant standards, no professional could be found guilty of unprofessional conduct based on a lack of knowledge, skill, or judgment, which would be an absurd conclusion.

Key Takeaways

• In a disciplinary hearing, the tribunal must identify the applicable professional standards and determine whether the standards have been met.
• The standards do not always have to be written. Instead, the hearing tribunal may find standards based on the common practice of the profession.
• If the standards are not written, expert evidence will be required to establish the professional standard at issue and whether it was breached.
• While not discussed in Kherani, other decisions have held that expert evidence may not be required where the standard is so obvious or the breach so egregious that no evidence is required to inform the hearing tribunal of the misconduct.

While it is best practice and recommended to have clearly written standards of practice that outline the core expectations of the profession, there is no rule that a standard must be in writing to be enforceable. Not having a written standard is not fatal to an allegation of unprofessional conduct for a breach of a professional standard. However, in a disciplinary hearing, the regulator will be required to provide expert evidence to establish the unwritten standard and prove it was breached.

If you need assistance navigating professional standards or support with disciplinary matters, contact Tracy Zimmer, Kimberly Precht or any member of Field Law's Professional Regulatory Group.

Relevant links:

• Kherani v Alberta Dental Association, 2025 ABCA 2
• Health Professions Act, RSA 2000, c H-7