- Home
- Services
- Overview
- Constructive Dismissal
- COVID-19
- Discrimination / Human Rights
- Employee Sued by Employer
- Employment Contracts: Drafting / Review / Negotiation
- Employment Policy Drafting / Review
- Fiduciary Obligations
- Harassment / Bullying
- Independent Contractors
- Just Cause For Termination
- Lay-Offs
- Non-Competition / Non-Solicitation
- Professional Regulation
- Severance Review / Negotiation
- Union / Labour Law
- Workplace Investigations
- Wrongful Dismissal / Unjust Dismissal
- About
- Our Team
- Blog
- Call Now: 587-391-7601
- Contact Us
ABCA upholds Cost Award Re Dentist Unprofessional Conduct

The Alberta Court of Appeal in Kherani v Alberta Dental Association, 2025 ABCA 2 upheld a significant costs award against a regulated member, Dr. Kherani, after several findings of unprofessional conduct. The case provides helpful guidance on applying unwritten standards of practice in regulated professions and when delay should serve as a mitigating factor in sanctioning a member.
The decision also highlights the Court of Appeal’s willingness to uphold significant cost awards despite the recent decision in Jinnah v. Alberta Dental Association and College, 2022 ABCA 336. In Jinnah, the Court of Appeal established a presumption that the “profession as a whole” is to bear costs of unprofessional conduct under the Health Professions Act unless the professional body can rebut the presumption by demonstrating “compelling reasons.”
Bow River Law’s blog on the important Jinnah case can be found here.
Facts
The following is a summary of the key facts:
- Kherani, a general dentist, began treating the complainant in 2008 for a complex case. Dr. Kherani treated the complaint between May 2008 – December 2009. After a brief pause, the complainant returned to Dr. Kherani in September of 2012.
- In 2014, the complainant grew frustrated with the lack of progress and sought opinions from three orthodontists, ultimately switching to Dr. Carlyle in December of 2015.
- In March of 2016, the complainant filed a complaint against Dr. Kherani with the Alberta Dental Association and College. Following an investigation, the College issued a Notice of Hearing, outlining eight allegations of unprofessional conduct.
- At the hearing, the Tribunal found Dr. Kherani guilty of four allegations of unprofessional conduct, these being: (1) failure to create and maintain a treatment plan; (2) failure to obtain appropriate diagnostic information during the treatment periods; (3) failure to appropriately manage patient care; and (4) failure to create and maintain adequate patient records.
- Following a sanction hearing, the Tribunal issued a reprimand, fined Dr. Kherani $7,500 per proven allegation, and required her to retain a coach/mentor for one year. The Tribunal also ordered that Dr. Kherani pay 50% of the estimated $150,000 cost of the investigation and hearing.
- Kherani appealed both the merits and sanctions decision to the Appeal Panel. The Appeal Panel dismissed the appeal, but adjusted the cost award to $40,000 for the investigation and hearing, as well as 40% of the costs of the appeal hearing.
Before the Alberta Court of Appeal, Dr. Kherani argued that the Appeal Panel erred in their determination as to the applicable standards of practice and that a cost award was justified.
Analysis / Conclusion
Dr. Kherani argued that the Tribunal failed to reference specific written Standards of Practice and, therefore, could not properly find her guilty of unprofessional conduct. The Notice of Hearing read as follows:
IT IS CHARGED that between on or about May 2008 and December 2015 you engaged in conduct that displayed a lack of knowledge of, or a lack of skill or judgment in the provision of professional services, that contravened the Code of Ethics (one or more of Principles 1, 2 and 3 and Articles A5, A8 and A12), the Standard of Practice: Informed Consent, the Standard of Practice: Patient Records or that harmed the integrity of the regulated profession, which respect to [the complainant], particulars of which include one or more of the following:
(…)
ALL OF WHICH is contrary to the provisions of the Health Professions Act, R.S.A. 2000, c. H-7 as amended or the regulations, By-laws, Standards of Practice or Code of Ethics enacted pursuant thereto, constituting unprofessional conduct.
A significant point of contention was whether professional standards must be formally written and adopted under section 133 of the Health Professions Act (HPA). Dr. Kherani argued that standards not adopted through this process could not be applied to her case. The ABCA rejected this argument, emphasizing that professional standards are not limited to written rules:
However, while s 133 of the HPA outlines the formal process for adopting written Standards of Practice, it was not an error of law for the Tribunal to assess Dr Kherani’s conduct under standards not adopted pursuant to s 133. Professional standards can be developed either through the regulator establishing written standards or by referencing the common expectations of the profession. In this case, Dr Kemp gave expert evidence on the common standards of practice for the profession. To effectively regulate the profession, there must be standards to which a professional can be held that go beyond the written standards of practice. Not every detail of being a professional can practically be reduced to writing. If the Standards of Practice adopted under s 133 are the only relevant standards, no professional could be found guilty of unprofessional conduct based on a lack of knowledge, skill, or judgment where written standards do not exist, an absurd conclusion not supported by the language of s 133. The definition of “unprofessional conduct” under s 1(1)(pp)(i) of the HPA presupposes the existence of unwritten standards to which a professional’s knowledge, skill, and judgement can be assessed.
Dr. Kherani’s sanctions included $7,500 per proven allegation ($30,000 total), and a one-year requirement to retain a coach and review her orthodontic cases. The Tribunal reasoned that these sanctions were proportionate considering the seriousness of Dr. Kherani’s misconduct.
Dr. Kherani argued that the delay between her alleged misconduct (2008–2015) and the imposition of sanctions in 2022 should have been considered a mitigating factor. The Alberta Court of Appeal agreed, finding that the Tribunal’s failure to consider the delay as a mitigating factor constituted an error in principle. The ABCA ultimately reduced the sanctions by 50% and amended the coaching order to a time-limited mentorship of six hours of meetings over 90 days.
Costs:
The Tribunal originally ordered Dr. Kherani to pay 50% of the estimated $150,000 costs of the investigation and hearing, reflecting her partial success in defending against four of the eight allegations. Following the Tribunal’s decision, the Appeal Panel reduced the costs to $40,000 in light of Jinnah v Alberta Dental Association and College, 2022 ABCA 336. In Jinnah, the ABCA established a presumption that “the profession as a whole” is to bear the costs of unprofessional conduct under the Health Professions Act, unless the impugned profession can rebut the presumption by demonstrating “compelling reasons.”
Before the ABCA, Dr. Kherani challenged the cost order, arguing that the nature of the proven allegations did not fall into the categories outlined in Jinnah and that, given the circumstances, a cost order was unwarranted. The ABCA declined to interfere with the decision, finding the revised order reasonable and proportionate given the significance of the proven allegations, which justified Dr. Kherani bearing some financial burden associated with the proceedings.
My Take
In Jinnah, the Alberta Court of Appeal established a presumption that the regulatory body is to bear the costs associated with hearings of unprofessional conduct. To rebut the presumption, the profession must show that “compelling reasons” exist. Examples of “compelling reasons” outlined by the ABCA in Jinnah included:
- The member has committed serious unprofessional conduct, such as sexual assault, fraud, 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 and has engaged in unprofessional conduct on two or more occasions;
- The member failed to cooperate with the investigators; or
- The member engaged in hearing misconduct.
The ABCA in Kherani declined to comment on Dr. Kherani’s argument that the proven allegations do not fall into the categories outlined in Jinnah. There was no evidence of failure to cooperate, serial misconduct, or hearing misconduct. The ABCA perhaps believed Dr. Kherani’s conduct amounted to a marked departure from the ordinary standard of care, but this is not actually stated in the decision.
Before the Tribunal in Kherani, the Alberta Dental Association relied on expert evidence to demonstrate that Dr. Kherani’s conduct fell outside of the common standards of practice. However, it was also noted as a “complex case.”
It is unfortunate the ABCA declined to analyze this aspect of the case. While Dr. Kherani’s conduct may have fallen below the ordinary standard, this will be true for many professionals sanctioned for unprofessional conduct. Guidance on how tribunals are to interpret whether the conduct was a “marked departure” would have been helpful for future professionals subjected to regulatory proceedings.
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.