Wanglin v College of Acupuncturists of Alberta, 2023 ABCA 25, is a new decision where the Alberta Court of Appeal upheld the decision of a professional college to discipline an acupuncturist which was based in part on the acupuncturist’s breach of the conflict of interest policy as Vice President of the College of Acupuncturists of Alberta.
Facts
The following are the pertinent facts summarized by the Alberta Court of Appeal:
- Boxin Wanglin is an acupuncturist regulated by the College of Acupuncturists of Alberta (the “College”)
- Wanglin was the Vice-President of the College, an elected position, at the relevant time
- The College bylaws include a conflict of interest policy
- Wanglin was also the founding member of the Alberta Acupuncturist and Traditional Chinese Medical Practitioner Association (“AATCMPA”) and served as its first president
- The allegation against Dr. Wanglin was that she was serving on the executive of the College at the same time as she was serving as president of the AATCMPA, in violation of the conflict of interest policy, and did not disclose it
- In the professional disciplinary hearing, Dr. Wanglin was found guilty of unprofessional conduct and required to take an ethics course, pay a $3,000 fine, and 50% of the hearing costs up to a maximum of $30,000
- Wanglin denied that she was in a conflict of interest, and argued that even if she was in a conflict of interest, that was something that should have been dealt with through the policy itself and not through a professional discipline hearing.
Analysis / Conclusion
The Court of Appeal upheld the finding of professional misconduct by the Alberta College of Acupuncturists, noting that the College was better equipped to determine if Dr. Wanglin’s actions were detrimental to the public’s interest:
[45] […] The Hearing Panel concluded that Dr. Wanglin’s failure to comply with the Policy and Bylaws “calls into question the integrity and confidence in her leadership as President of the [College]. When the leadership of a regulated health discipline in Alberta is called into question, this is detrimental to the public interest.”: Hearing Panel Merits Decision at para 228.
[46] Dr. Wanglin’s second argument boils down to the following assertion: “the general public would be unlikely to hold strong opinions towards their acupuncturist, should that acupuncturist have engaged in a perceived conflict of interest by holding two executive positions at the same time”: Appellant’s Factum at para 109. Respectfully, this does not show a clear error in the Hearing Panel’s finding that Dr. Wanglin’s conduct was “detrimental to the public interest”.
[47] The crux of this issue is that the Hearing Panel and the Review Panel are better positioned than this Court to assess the impact of Dr. Wanglin’s conduct on the public interest and the reputation of the profession from the perspective of a reasonable member of the public. We must defer to their findings on this topic absent some clearly unreasonable conclusion or clear mistake of fact or error of principle. Dr. Wanglin has not shown any such error.
[48] We agree with Dr. Wanglin that not every breach of a policy, including the College’s Conflict of Interest Policy, necessarily amounts to professional misconduct. However, the factual record in this case is extensive and nuanced, and there is no basis for interfering with the Hearing Tribunal’s conclusions that Dr. Wanglin’s overlapping involvement as President of the College and executive member of the AATCMPA constituted professional misconduct.
The appeal was dismissed.
My Take
I personally found Dr. Wanglin’s argument- that the general public would not have strong feelings on her conduct in this case – to be really persuasive. It is difficult to comment extensively on that point because I am not clear on whether that was her argument in front of the Alberta College of Acupuncturists or if she had any evidence to support it, but it seems very likely to be an accurate statement to me.
I can understand why Dr. Wanglin was required to follow the policy in general, but the conduct here really seems more like an internal policy issue than a professional regulatory issue to me. The fact that the College itself created that policy blurs that boundary, but I found it alarming that the College considered this to be professional misconduct and not just a breach of its policy with consequences set out in the policy.
The Alberta Court of Appeal did not indicate whether it would have ruled the same way, but noted that it was showing deference to the College’s findings on matters of mixed fact and law.
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