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ABCA Slaps Down Another Professional Discipline Costs Order
In Jinnah v. Alberta Dental Association and College, 2022 ABCA 336, the Alberta Court of Appeal overturned a significant cost award made by the Appeal Panel of the Counsel of the Alberta Dental Association and College. The Court established a presumption that professions should bear most, if not all, associated costs in proceedings under the Health Professions Act unless compelling reasons exist to rebut the presumption.
This case is important because it is part of a major recent shift in the approach to costs in professional misconduct hearings.
The following are the pertinent facts summarized by the Alberta Court of Appeal
- Jinnah (the charged professional) secured a Patient’s written agreement to pay interest on outstanding accounts. The Patient agreed to a term that increased any outstanding amount owing by 50% if she failed to pay her bill within three months and Dr. Jinnah was forced to use a collection agency (the “Agreement”).
- After various treatments, the Patient received a statement from Dr. Jinnah’s office for $444.46, describing the amount as “Balance Forward” with no further details. The Patient contacted the office several times asking for more information, but each time the office responded by saying that it would “get back to her.” Several months later, the office sent additional statements which described the amount as an “office charge.”
- Frustrated with the office, the Patient sent a letter to the Alberta Dental Association and College (the “College”). The Patient explained that she understood that Dr. Jinnah charged interest on outstanding amounts but was still unsure what the charge of $444.46 was for. The Patient asked for direction on resolving the matter, as she was unwilling to pay for work that she did not receive (the “Patient’s Letter”).
- Before the College notified Dr. Jinnah of the Patient’s letter, Dr. Jinnah sent a letter to the Patient demanding payment (the “Notice letter”). The Notice letter warned that the Patient’s credit rating would be damaged if she did not pay the outstanding interest and that she would be responsible for the full amount plus all costs associated with collection proceedings and potential legal costs.
- 20 days later, the College notified Dr. Jinnah of the Patient’s Letter. Dr. Jinnah responded by sending an email to the Patient that threatened to pursue legal action for defamation concerning the Patient’s complaint (the “Email”).
- The College subsequently charged Dr. Jinnah with unprofessional conduct regarding her billing and collection practices.
Analysis / Conclusion
The Hearing Tribunal had found that Dr. Jinnah engaged in unprofessional conduct – specifically that her billing practices lacked “clarity and transparency,” that her collection practices were inappropriate, and that the Agreement, the Final Notice Letter and the Email were all in contravention of the Code of Ethics. In its sanction decision, the Tribunal ordered that Dr. Jinnah be prohibited from practicing for one month, that she complete a philosophy course in ethics, and that she pay costs of $50,000.
The Appeal Panel upheld the finding of unprofessional conduct. Concerning the sanctions, it substituted a reprimand for the one-month suspension, reduced the cost award to $37,500 and upheld the requirement to take a philosophy course in ethics. It also ordered Dr. Jinnah to pay one-quarter of the appeal panel costs.
The Court of Appeal’s Decision
The Alberta Court of Appeal found that Dr. Jinnah’s billing practices did not amount to unprofessional conduct. Concerning collection methods and the terms of the Agreement, the Court found that the proper question was whether the Agreement was “so manifestly grossly one-sided that its enforcement would bring the administration of justice into disrepute” and found that it was not. However, the Court upheld the Appeal Panel’s finding that the Email amounted to unprofessional conduct. Objectively viewed, sending an email with threats of litigation obstructed the complaint process as it risked having the Patient consider not proceeding with a complaint.
Turning to the issue of costs, the Court of Appeal took the opportunity to establish a presumption that the “profession as a whole” is to bear the costs associated with hearings of unprofessional conduct under the Health Professions Act. To rebut this presumption, one or more of the following “compelling reasons” must exist:
- The member has committed serious unprofessional conduct. For example, a sexual assault on a patient, fraud perpetrated on an insurer, performing a procedure while suspended, or in a manner that is a marked departure from the ordinary standard of care.
- The member is a serial offender. A serial offender engages in unprofessional conduct on two or more occasions. In deciding whether to order costs, the College should consider the severity of the professional’s previous instances of unprofessional conduct. If the professional’s breaches are not serious, costs of less than 25 percent could be appropriate.
- The member has failed to cooperate with investigators. In such a circumstance, it may be justified to order the member to pay costs roughly equal to the unnecessary expenditures attributable to the member’s conduct.
- The member has engaged in hearing misconduct. For example, unnecessarily prolonging a hearing that results in increased costs of prosecution that cannot be justified. In such a circumstance, the member should expect to pay costs that either completely or largely indemnify the college for its unnecessary hearing expenditures.
The Court of Appeal found the costs imposed by the Appeal Panel were unreasonable. It found that Dr. Jinnah had not committed “serious” unprofessional conduct, nor had she failed to cooperate with investigators or engaged in hearing misconduct. However, as she had been subject to other findings of unprofessional conduct, the Court referred the issue back to the Appeal Panel to consider the costs matter in accordance with the above principles.
The Court of Appeal’s reasoning here is part of a relatively recent body of law rejecting the common practice of professional disciplinary bodies to saddle the regulated professional with most of the costs of a professional discipline hearing. The commonness of this previous trend was even described in this case, where the Court noted that in 2021, the College ordered every dentist disciplined that year to pay between 50-100% of the investigation and hearing costs.
As noted by the Court, the presumption that the “profession as a whole” will bear most of the costs of a professional discipline hearing improves the position of a professional charged with an act that is not “serious” unprofessional conduct. The professional will know the cost consequences of an unsuccessful defense in advance and will not feel pressure to plead guilty to avoid the potential of a burdensome costs order.
Bow River Law provides these regular legal blog articles for the purposes of legal education and research for the public and the legal profession. These articles should be considered general information and not legal advice. If you have a legal problem, you should speak to a lawyer directly.
Michael Hernandez is an employment lawyer at Bow River Law. He is a knowledgeable and skilled lawyer, handling employment law, human rights (discrimination) and labour law matters. Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.