A potential lack of court defence about professional standards, during “appeals”

When the Supreme Court of Canada decided in Vavilov that “appellate standards” apply to all statutory “appeals” from tribunal decisions (unless the legislature stipulates otherwise), this changed the standard of review courts must apply to disciplinary appeals under s. 40 of B.C.’s Health Professions Act. Appellate standards refers to how appeal courts address decisions of lower courts. Appeal courts do not defer to lower courts on questions of law, such as interpretations of statute. This approach means that a court will not, when hearing an “appeal”, defer to how a discipline committee interprets the HPA, bylaws, codes of conduct, and codified standards, where a question is not tied to what happened in a given case. The Saskatchewan Court of Appeal recently addressed some of the consequences of Vavilov during an appeal about the meaning of regulatory rules, during a disciplinary appeal, in Abrametz v. Law Society of Saskatchewan, 2020 SKCA 81 (July 3, 2020).

The Abramentz case involved an “appeal” from a decision of a hearing committee of the Law Society of Saskatchewan. The committee disbarred him after finding him guilty of four counts of conduct unbecoming a lawyer, based on breaches of Law Society Rules and the Law Society’s Code of Professional Conduct. The gist of the decision involves undue delay on the part of the Law Society; the court found undue delay, such that the proceedings constituted an abuse of process. But one aspect of the decision involved how the committee interpreted Law Society Rules. One issue was whether a rule prohibiting a lawyer from entering a “business transaction” prohibited the member from “advancing funds” to the client. The member asserted that an “advance” is not a “loan”. A second issue was whether cancelled cheques and statements of adjustments were “books and records” within the meaning of the Rules.

The court (the “SKCA”) noted that appellate standards of review apply a standard of correctness to questions of statutory interpretation, other questions of law, and to mixed questions of fact and law involving an “extricable” question of law. However, a standard of palpable and overriding error applies to questions of fact, and mixed questions of fact and law “absent an extricable error of law”. [74] On the basis that “The interpretation of law society rules has also been treated as a question of law by courts in Saskatchewan and other provinces”, [81] the court identified the questions at issue as “extricable questions of law”, so that a standard of correctness applied. [85] In other words, the committee was not in any better position than the court to decide what the Law Society’s Rules mean, at least in the abstract, during an appeal.

The SKCA found that the conclusion of the hearing committee that statements of adjustments could be records or accounts within Rule 962(f), i.e., that the listing documents was not exhaustive, was correct. It went on, however, to conclude that the committee’s decision that statements of adjustments were records was a question of mixed fact and law subject to review for palpable and overriding error. [116-117] Similarly, the court concluded that the hearing committee was correct to conclude that an advance of monies could be a loan for purposes of the Rules. [125]. The court then went on to find that the committee’s conclusion that the member’s advances did constitute loans was a question of mixed fact and law reviewable on a standard of palpable and overriding error. [128]

The Alberta Court of Appeal took a similar approach in Al-Ghamdi v. College of Physicians and Surgeons of Alberta, 2020 ABCA 71. In that case, the college disciplined a member for eight kinds of “disruptive conduct” over an 11 year period that led to breakdowns in his relationship with co-workers, and amounted to unprofessional conduct. On appeal, the court considered whether “disruptive conduct” constitutes “unprofessional conduct” under Alberta’s Health Professions Act. The Alberta Court of Appeal (“ABCA”) confirmed that the question of whether “unprofessional conduct” can include a long-term pattern of “disruptive behaviour” is “a question of statutory interpretation reviewed for correctness.” [12] In contrast, “whether the specific conduct that is the subject of the proceedings constitutes unprofessional conduct involves an assessment of the facts against that legal standard, and is a mixed question of fact and law.” [12]

The ABCA ultimately concluded that since workplace conduct that has a detrimental effect on the provision of patient care “can fall within the definition of professional misconduct if it is sufficiently egregious,” the charges against the appellant did, as a matter of law, fall within the definition of “professional misconduct”. [18] Given this conclusion about the scope of what “professional misconduct” means, the court went on to confirm that, “Deciding whether a particular act meets the expected standard of professional conduct engages the expertise of the Hearing Tribunal and Review Panel. It is properly characterized as a mixed question of fact and law, a type of decision which is reviewed for palpable and overriding error.” [20]

Both of these cases illustrate that courts will not, during appeals, afford deference to committees on questions of law, but they also illustrate that the deference issue will turn on how courts characterize the issues being decided by a committee. Courts must distinguish between issues that are purely legal issues (e.g., what kinds of situations come within a specific legal term like “professional misconduct”), and issues that involve a committee applying law to particular facts.

Abrametz v. Law Society of Saskatchewan, 2020 SKCA 81 (July 3, 2020).

Al-Ghamdi v. College of Physicians and Surgeons of Alberta, 2020 ABCA 71 (February 19, 2020).

Lisa C. Fong and Michael Ng