oct. 15. 2020

Where there is a history of contentious proceedings between a regulator and a practitioner, additional challenges arise. As the Court pointed out in Fitzpatrick v College of Physical Therapists of Alberta, 2019 ABCA 254, http://canlii.ca/t/j13wn, actions by one party are more likely to be interpreted less generously by the other. Allegations of bias are more likely to arise as many staff and committee members of the regulator will have had prior involvement with the practitioner. However, it is still possible for a regulator to navigate these shoals.

In the Fitzpatrick case the practitioner had been disciplined previously. While some of the findings were set aside, others were upheld and sanctions involving certain remedial steps (e.g., courses, inspections) and payment of costs were ordered. Discussions ensued to arrange the inspection but the practitioner stopped responding to correspondence and it was never scheduled. In one case an extension and substitution for a course was requested the day before the deadline; the request was refused. The practitioner brought a civil suit against the regulator and some of its employees. The Registrar initiated a complaint for non-compliance that was referred to discipline. Findings were again made and a three-month suspension was ordered. The suspension would continue (or be re-instituted) if the remediation steps were not completed in accordance with an updated schedule. The practitioner was also required to provide payment plans for the outstanding costs.

The Court dismissed appearance of bias concerns:

While we can appreciate that the legislative framework established by the HPA can create the impression of a unitary College, in fact the legislation separates the disciplinary process from the regulatory process. When a party is exercising their authority as explicitly contemplated in the governing legislation, the mere exercise of that authority cannot give rise to a reasonable apprehension of bias ….

The Court was not troubled by the Complaints Director appointing herself as the investigator in the circumstances. The Court noted that the regulator had made the effort to ensure that those sitting on tribunals hearing the practitioner’s case had not been previously involved with her matters. Any procedural unfairness that may have occurred during the investigation was cured during the discipline hearing and internal appeal hearing.

The Court also upheld the findings of non-cooperation based on such conduct as ceasing to respond to communications attempting to schedule inspections, failing to complete a course on time, and declining to provide responsive answers to questions in the subsequent investigation (rather just challenging the investigation itself). Based on the fact that the practitioner was actively practising at the time, the tribunals were entitled to reject the argument that she was too emotionally drained to complete the course on time.

The Court also accepted as reasonable in the circumstances the indefinite length of the suspension and the requirement to provide information about payment of the costs.