Written By Brynne Harding and Tyler McDonough
In Alberta, punitive cost awards in administrative proceedings may be a thing of the past. In Jinnah v Alberta Dental Association and College, Alberta’s top court established a new presumption that the profession as a whole—and not individual members—should bear the costs of all but the most serious disciplinary proceedings.
Overview
One of Dr. Jinnah’s patients complained about her collection efforts on a $444.46 invoice for dental services. A Hearing Tribunal of the College held that the collection efforts amounted to professional misconduct and ordered Dr. Jinnah to stop practising dentistry for one month, complete a philosophy course in ethics and pay $50,000 in costs.
Dr. Jinnah sought an administrative appeal, through which the Appeal Panel quashed the one-month suspension and reduced the hearing tribunal costs award to $37,500, covering just 20 percent of the College’s hearing costs. Pursuant to a statutory right of appeal, Dr. Jinnah appealed to the Alberta Court of Appeal.
The Decision
The Court of Appeal set aside the $37,500 costs award and held that it was so large as to have become the primary sanction for Dr. Jinnah’s misconduct. This was a reviewable error, applying the longstanding principle that costs awards are designed to indemnify and not to punish. The Court had counselled restraint in past cases but had stopped short of establishing a rule.
Curtailing the discretion to award costs, the Court created the new presumption that “the profession as a whole should bear the costs in most cases of unprofessional conduct”. Four types of “compelling reasons” could justify a departure from the presumption: a member (1) has committed serious unprofessional conduct; (2) is a serial offender; (3) has failed to cooperate with investigators; or (4) has engaged in hearing misconduct.
In establishing the presumption, the Court took notice of publicly available financial statements of the College, concluding that the new rule would have “marginal, if any” impact on the College’s financial position. Of interest, this evidence had not formed part of the appeal record and the parties had not been invited to make submissions on the financial impacts. As Alberta’s professional colleges vary in size and financial means, the new presumption may affect some more than others.
The Supreme Court of Canada denied the College’s application for leave to appeal.
Impacts on Self-Regulated Professional Organizations
The breadth of Jinnah’s application to professional regulators in Alberta and beyond is unsettled. The Court indicated that its framework applies to all professionals regulated by the Alberta Health Professions Act. Outside of healthcare, some regulators have rejected the decision, contending that it does not govern their statutory mandate (e.g., Law Society of Alberta v Beaver).
With its holding that the profession as a whole should presumptively bear the cost of misconduct proceedings, except where one of the four categories of “compelling reasons” applies, the Jinnah decision may discourage regulators from pursuing disciplinary proceedings. This may, in turn, encourage informal resolution of complaints, which would be less costly, but can also create a prejudicial disciplinary history for professionals. Fewer or smaller costs awards may also mean fewer appeals by professionals from hearing decisions against them.
Regulators should stay up to date on the evolution of the four categories of “compelling reasons” to award costs and how the decision is interpreted and applied.
*This article was first published in the Summer 2023 edition of Keeping Tabs from The Advocates' Society.
Bennett Jones