May 5, 2011

Disciplinary decisions not staying within the four corners of the citation and not addressing arguments advanced can be overturned

Administrative Law
Professional Regulation

The importance of discipline panels issuing reasons that adequately support each finding of misconduct, and that stay within the four corners of the citation, was recently illustrated by the Alberta Court of Appeal granting the appeal of a social worker, Nowselsky, in relation to three of five findings of  unprofessional conduct by a Hearing Panel of the Alberta College of Social Workers, and confirmed by the College’s Appeal Panel.

Acknowledging the standard of review of decisions of disciplinary tribunals is reasonableness [4], the court dismissed the registrant’s attempt to tender new evidence, and accepted the Panel’s findings of fact as falling within the scope of reasonable conclusions [5-7]. But the court set aside findings of the Panel on two charges as inadequate, as the reasons failed to address the arguments advanced by the registrant in a transparent and comprehensible way [15-16]. Similarly, the court determined one finding relating to an alleged breach of confidentiality to be unreasonable, as the reasons failed to address why the client’s consent did not entitle the registrant to disclose and discuss her treatment [17].

The court also found the Panel acted outside its powers by adding a “Summary” to its reasons where it raised a number of matters not contained in the specific charges of professional misconduct before it. In the words of the court, “[i]t is a fundamental principle of professional disciplinary proceedings that the tribunal cannot find the member guilty based on matters not in the formal charges… [t]he items mentioned by the Hearing Tribunal in the “Summary” were not before it, and it was not entitled to use them in adjudicating on the professional responsibility of the appellant” [19]. Moreover, the court took issue with some of the Panel’s concerns on this issues. For example, the Panel noted in its Summary that the registrant called one of his clients as a witness, but the court found that this was not objectionable: “[20] … Calling clients as witnesses is not objectionable merely because some of their personal information might be disclosed during their testimony. The member is allowed to mount a defence.”

Given the Panel acted outside its scope by issuing the “Summary,” and given the court set aside three of five findings of misconduct, the court revisited the Panel’s penalty. Since the Registrant had, however, already served the full six month suspension, the court ordered the letter of reprimand  amended to reflect its reasons, and that its reasons be published in the same manner as the Panel decision. Given the registrant’s success on six of eight allegations, the court set aside the order of costs against the Registrant [22].

Nowoselsky v. Alberta College of Social Workers (Appeal Panel), 2011 ABCA 58, [2011] AJ No 413 [QL]