Muradov v College of Naturopathic Doctors of Alberta, 2024 ABCA 224
Internal appeal panels within a profession's disciplinary process (i.e. an internal appeal of a disciplinary decision) often have broad powers to review, reverse or quash the decision of a lower hearing tribunal. However, this broad power is usually subject to review by the Court.
In a recent Alberta Court of Appeal decision, the Court reversed an appeal panel decision where the appeal panel had quashed a lower sanction decision and then substituted its own sanction decision. The basis for the appeal panel quashing the lower sanction decision was their finding that the hearing panel below had breached procedural fairness by not allowing the parties to comment on one aspect of its sanction decision. The aspect of the sanction decision in question required an annual audit of the professional's files for the next three years at the professional's expense. The Complaints Committee argued it was a breach of procedural fairness for it (and presumably the member) not to have the opportunity to comment on such a direction when neither party had raised it nor addressed it.
A majority of the Court of Appeal found that the appeal panel had incorrectly concluded there was a breach of procedural fairness – and, therefore, it had no basis for quashing the sanction decision of the lower hearing panel. The Court of Appeal found it was a direction clearly open to the hearing panel, and there was no breach of procedural fairness in failing to specifically solicit submissions on this aspect of the sanction decision.
Specifically, the Court of Appeal found at para. 18:
The situation here differs significantly from that in the cases relied upon by the Complaints Director. This is not a case where a harsher or more severe sanction than the one recommended was imposed on the regulated member, as in Becker and Visconti. Nor is it a case where the tribunal disregarded a joint submission on penalty, without hearing additional submissions, as in College of Physicians and Surgeons of Ontario v Petrie (1989), 1989 CanLII 4276 (ON SC), 68 OR (2d) 100, 37 Admin LR 119 (ON SC). There is a distinction between, on the one hand, a substantially more severe sanction being imposed on a regulated professional, such as removal of a license instead of a temporary suspension, and on the other hand, the imposition of a direction for practice reviews aimed at ensuring competence in documentation and communication practices where the underlying practice issues were raised by the parties, as were the merits of both harsher and more lenient penalties.
This case provides clarity that parties to a disciplinary matter need not be provided with an opportunity to comment on each aspect of a sanction order where such aspects relate directly to the practice issues in question and such directions are not substantially more or less severe than those proposed and addressed by the parties. The decision confirms the latitude to be available to panels in their sanction orders to make directions that suit the case before them.
| our two cents for free
Thinking carefully about procedural fairness in the disciplinary process is important because, as noted in the Muradov decision, a breach of procedural fairness typically results in a decision being quashed. Having a fair process, in the beginning, goes some distance to ensuring the decision ultimately reached is not quashed on this basis. Particularly in professional regulation, where a party's ability to earn an income may be affected, a party's rights to procedural fairness are generally at the high end of the spectrum. This means a party's rights will be more robust in terms of knowing the case they have to meet, being entitled to full disclosure and having a full opportunity to present their case and challenge the evidence against them. |
question
Frequent breaks during a hearing are one way to prevent decision-making fatigue in panel members. However, this goal sometimes conflicts with the need to complete a hearing within a certain time frame. How do you balance the need for an efficient hearing with the need to ensure decision-makers are not tuning out or becoming too cognitively fatigued to be alert and present in a hearing? |
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