Jinnah v Alberta Dental Association and College, 2022 ABCA 336 (CanLII)
In the Court of Appeal of Alberta
Citation: Jinnah v Alberta Dental Association and College, 2022 ABCA 336
Date: 20221013
Between:
Dr. Nimet Jinnah
Appellant
Alberta Dental Association and College and the Appeal Panel of Council
of the Alberta Dental Association and College
Respondents
| Corrected judgment: A corrigendum was issued on October 18, 2022; the corrections have been made to the text and the corrigendum is appended to this judgment. |
_______________________________________________________
The Court:
The Honourable Justice Jack Watson
The Honourable Justice Thomas W. Wakeling
The Honourable Justice Kevin P. Feehan
_______________________________________________________
Appeal from the Decision of the Appeal Panel of the Council
of the Alberta Dental Association and College
_______________________________________________________
_______________________________________________________
The Court:
I. Introduction
[1] Nimet Jinnah, a dentist regulated by the Alberta Dental Association and College,[1] appeals[2] a decision[3] by the College’s appeal panel. It reprimanded her for unprofessional conduct and ordered her to complete a philosophy course on ethics and to pay hearing tribunal costs of $37,500 and one-quarter of the appeal panel costs.
II. Questions Presented
[2] Does “unprofessional conduct”, as defined by section 1(1)(pp)(xii) of the Health Professions Act,[4] capture a dentist’s business practices?
[3] If so, did Dr. Jinnah engage in “unprofessional conduct”?
[4] Did her use of “office charge” instead of “interest” on four accounts to indicate a charge for interest on an outstanding account in accordance with her agreement with a patient constitute unprofessional conduct?
[5] Did Dr. Jinnah’s accounts provide her patient with an adequate explanation of the dental services for which she was asked to pay?
[6] Did Dr. Jinnah’s collection efforts constitute unprofessional conduct?
[7] Did Dr. Jinnah commit unprofessional conduct when she asked her patient to agree to a term that increased the amount outstanding by fifty percent if the patient did not pay the amount due within a stipulated period and Dr. Jinnah retained a collection agency to collect the outstanding account?
[8] Did Dr. Jinnah’s statement to her patient that she would sue if the patient defamed her in the course of making or advancing a complaint with the College constitute unprofessional conduct?
[9] If the College did not err in finding Dr. Jinnah guilty of unprofessional conduct, did it impose reasonable sanctions?
[10] The appeal panel reprimanded Dr. Jinnah and ordered her to take a philosophy course on ethics and to pay $37,500 to cover twenty percent of the costs the College incurred in a two-day hearing before the hearing tribunal and one-quarter of the costs before the appeal panel. Is this a reversible error?
III. Brief Answers
[11] A dentist’s billing and collections practices may be “conduct that harms the integrity of the regulated profession” and properly classified as “unprofessional conduct” under the Health Professions Act.[5]
[12] The appeal panel committed a reversible error in upholding the hearing tribunal’s finding that Dr. Jinnah’s use of “office charge” instead of “interest” in four accounts constituted unprofessional conduct. The patient knew that the words “office charge” were the interest charges she had agreed to pay if she failed to pay on a timely basis. She said so in writing.[6]
[13] The appeal panel also erred in upholding the hearing tribunal’s decision that Dr. Jinnah’s accounts failed to provide her patient with an adequate explanation for the dental services for which Dr. Jinnah billed. The patient admitted in direct[7] and cross-examination[8] that she may have received an invoice prior to the November 28, 2014 invoice[9] about which she complains that referred to a “Balance Forward” of $444.46 and provided no information about the dental services Dr. Jinnah performed. The missing invoice could only have been the May 12, 2014 invoice that Dr. Jinnah’s office printed[10] and that Dr. Jinnah claimed in her April 22, 2015 email to have sent to her patient.[11] The May 12, 2014 statement provided a detailed explanation of dental services covered by the bill.[12]
[14] Taking into account the undisputed fact that Dr. Jinnah’s office printed the May 12, 2014[13] invoice that Dr. Jinnah stated she forwarded to her patient in her April 22, 2015 email to her patient,[14] the patient’s admission that she does not recall whether she received a prior statement,[15] and the fact that the five other accounts Dr. Jinnah’s office printed made their way to the patient, the College has not proved on a balance of probabilities that Dr. Jinnah’s patient did not receive the May 12, 2014 invoice.
[15] Although some may describe the steps Dr. Jinnah undertook to collect her patients’ unpaid accounts – including her April 1, 2015 “Final Notice” [16] – as aggressive, they did not constitute unprofessional conduct.
[16] The appeal panel failed to apply the proper test in holding that Dr. Jinnah acted improperly in asking her patient to agree that the outstanding balance be adjusted upward by fifty percent if her patient failed to pay an outstanding account within the agreed period and Dr. Jinnah retained a collection agency to pursue a delinquent account. It should have asked whether the contested provision was “so manifestly grossly one-sided that its enforcement would bring the administration of justice into disrepute”.[17] The term does not display these features. It was not oppressive. It is enforceable. A dentist that asks a patient to agree to a term that the law will enforce has not committed unprofessional conduct.
[17] It is regrettable that Dr. Jinnah stated in her April 1, 2015 “Final Notice” that the upward adjustment was 100 percent and not fifty percent, which was the contract amount. But this error is attributable to carelessness, and carelessness in this context is not unprofessional conduct.
[18] The appeal panel correctly held that Dr. Jinnah engaged in conduct that harmed the integrity of the profession by informing her patient that she would sue if the patient defamed her in pursuing a complaint. Her conduct, objectively assessed, would cause a patient with backbone – more than ordinary resolve – to consider withdrawing a complaint already filed or not filing a complaint that he or she is contemplating filing.
[19] Dr. Jinnah has no legitimate basis to complain about the reprimand the appeal panel imposed. This is not a severe sanction and it matches her moderate degree of blameworthiness. There was no evidence that Dr. Jinnah intended her April 22, 2015 email to her patient to interfere with the complaints process and her lack of knowledge was not per se culpable. The Code of Ethics does not address the issue. The Health Professions Act[18] is silent on the point and no appeal panel or Court of Appeal decision has tackled the question.
[20] The appeal panel should not have ordered Dr. Jinnah to complete a philosophy course in ethics. There is no reason to believe that Dr. Jinnah would benefit from taking this course. She will acquire the information she needs about the best way to deal with a patient who has filed a complaint by reading the decisions of the appeal panel[19] and this Court.
[21] We set aside the appeal panel’s decision to order Dr. Jinnah to pay $37,500 in hearing tribunal costs and one quarter of the expenses incurred before the appeal panel and refer the costs issue back to the appeal panel for reconsideration in accordance with the costs principles set out in this judgment. The College should bear the costs associated with the privilege and responsibility of self-regulation unless a member has committed serious unprofessional conduct, is a serial offender, has failed to cooperate with investigators, or has engaged in hearing misconduct. It would appear that Dr. Jinnah may be a serial offender.
IV. Statement of Facts
A. Dr. Jinnah Took Steps To Collect a Patient’s Unpaid Account
[22] Dr. Jinnah, after securing the patient’s written agreement to pay interest on outstanding accounts[20], provided dental services to a patient on a number of occasions early in 2014.[21] According to the patient, Dr. Jinnah’s staff told her that they would contact her if the insurer did not cover the full costs.[22]
[23] The patient received a statement from Dr. Jinnah’s office dated November 28, 2014 for $444.46.[23] It provided no details. It described the amount due as “Balance Forward”. This suggests that Dr. Jinnah issued a previous statement that related to the dental services provided and that the patient had not paid, as of November 28, 2014, the amount billed and it remained outstanding.
[24] The patient admitted in direct[24] and cross-examination[25] that she did not remember if she received any invoices prior to November 28, 2014.
[25] The patient testified that she contacted Dr. Jinnah’s office several times after she received the November 28, 2014 account asking for details about the bill.[26] The staff members she spoke to promised to investigate and report to her. The patient claimed this did not happen soon enough.[27] It was not until April 10, 2015 that Dr. Jinnah’s office provided the detailed written explanation the patient sought.[28]
[26] According to Dr. Jinnah’s records, the patient called her office on January 8, 2015 inquiring about the November 28, 2014 account.[29] Her staff promised to obtain the requested information. The patient said she would call back and did so on February 3, 2015. A staff member made a file entry stating that she provided the patient on the phone with the information she requested.[30]
[27] Dr. Jinnah’s office sent out accounts in December 2014 and January 2015 that were identical to the November 2014 account.[31]
[28] Dr. Jinnah’s office sent out a fourth account dated March 2, 2015.[32] It sought payment of $444.46, the sum listed in the November 2014 account, and three amounts of $9.63, $9.84 and $10.06, each designated “office charge”, for a total of $473.98.
[29] On March 9, 2015 the patient, frustrated by her perceived inability to secure the information she requested from Dr. Jinnah’s office, wrote the College seeking assistance in resolving this problem. It is important to note that, objectively assessed, this letter was not a complaint. It was a request for assistance.[33] Part of her letter reads as follows:[34]
1 am seeking assistance to resolve matters with Dr. Nimet Jinnah who works out of SMILEMAKERS DENTAL CENTRE ...
...
Prior to any work being completed I gave permission for her office staff … to seek pre-authorization from the two companies I have dental insurance with. This done, … [the office staff] contacted me to set up an appointment for the crown to be done. At that time I asked … what, if any monies would be owing. She said there would be no or very minimal additional charges and she would be able to verify the amount when I came in for my appointment. I came in for prep work … and asked again if there were any additional charges …, and was told there was no money owing, all was covered [by insurance]. At the end of March 2014, I had my final appointment for the permanent crown to be cemented into place. I asked once again if I owed any additional monies, and was told no. …
In November 2014, I received an invoice for $444.46 … . I contacted SMILEMAKERS DENTAL CENTRE to inquire what the invoice was for … . I was told someone would get back to me. I have since that time contacted their office five times and have been told each time, that someone would get back to me. The last time I called was February 03, 2015, … [when staff] … assured me someone would look into the matter and get back to me by Friday, February 06, 2015. I still have not heard from anyone.
I continue to receive invoices and …, am also accruing interest. … Please provide direction on how I can resolve this matter. I will not pay for work that was not completed and feel completely frustrated by the lack of professionalism being demonstrated by this dental office. I am also not prepared for this situation to affect my credit rating adversely. Thank you for your anticipated assistance in this matter.
[30] This letter makes it clear that the patient understood Dr. Jinnah charged interest on outstanding amounts.
[31] Almost a month – April 8, 2015 – passed before the complaints director forwarded the patient’s March 9, 2015 letter to Dr. Jinnah and encouraged Dr. Jinnah to attempt to talk to her patient and respond to her patient’s concerns.[35]
[32] On April 1, 2015, before Dr. Jinnah learned that her patient had written to the College asking for help in securing information about the dental services to which the charges related, Dr. Jinnah’s office sent a “Final Notice” [36] and a fifth account to the patient[37]. The account was identical to the March 2, 2015 statement with the exception of an April 1, 2015 “office charge” for $10.27.[38] Dr. Jinnah signed this “Final Notice”. Because of its importance, we set it out in full:[39]
This is your final notice concerning your past due account. Because you have not contacted Smilemakers Dental Centre to discuss options for payment or to set up a payment plan, we must take further action.
A great deal of time, effort and cost in attempting to work out arrangements for payment of your account has been invested. At this time, we must, therefore, insist that payment or contact be made immediately to discuss acceptable options available to you if you are having difficulty paying off your balance.
Please accept responsibility for this obligation. Smilemakers Dental Centre would prefer not to resort to a professional agency to collect what you owe, however, it is prepared to do so. I know this will damage your credit rating. Please do not force us to take extreme measures to obtain payment.
In addition, you will be liable for interest incurred as well as all costs associated with the collection proceedings, which is 100% of the FULL balance (including fees) as well as associated legal costs which may be incurred. The collection fee/administration fee has been added to your account. Please contact our office by April 17, 2015 for us to be able to remove this fee for you.
This being your final notice, before initiating third party collection procedures please govern yourself accordingly and immediately begin steps to repay your entire outstanding balance. Please call our office immediately to resolve this matter. Thank you for your prompt consideration.
*Possible actions by the collection agency include credit reporting and legal pursuit of payment.
[33] The reference in this letter to “interest” demonstrates that Dr. Jinnah did not intend to conceal the fact that she charged interest on outstanding accounts. The fact that the patient signed an agreement that obliged her to pay interest on unpaid amounts makes this finding incontestable.[40]
[34] On April 10, 2015, the date the patient received the final notice, she phoned Dr. Jinnah’s office.[41] A staff member informed the patient that the file would not be forwarded to a collection agency, provided the patient with a detailed explanation of the dental services Dr. Jinnah performed, and promised to promptly mail her a complete statement of services provided.[42] The patient told the staff member that she would pay $444.46[43] after she received a statement describing in detail the dental services Dr. Jinnah provided. She also made it clear to the staff member that she would not pay interest that accrued after she called Dr. Jinnah’s office in November 2014. She asserted that if Dr. Jinnah’s office had responded in a timely manner to her November request for information, she would have paid the account at that time and no interest would have accrued.[44]
[35] On April 20, 2015 the patient received in the mail the detailed statement of account Dr. Jinnah’s office promised to deliver to her.[45]
[36] Dr. Jinnah’s next step – an April 22, 2015 email to her patient sent after Dr. Jinnah received notice from the College of her patient’s March 9, 2015 letter to the College – was ill-advised, to say the least. It was not conciliatory in nature and it needlessly exacerbated a problem that probably would have disappeared if it had never been sent:[46]
It has been brought to my attention that there is a balance outstanding for dental treatment completed April 1st, 2014, which is over a year old. You had originally booked your appointment with Sheila who had explained to you that your approximate portion would be $300+ depending on the exact amount of the crown (see attachment which was scanned on March 20th/14 and is noted in our system). She told you this on March 20/14 and proceeded to book your appointment at 2:06 pm the same day, for March 26th. On the 26th of March 2014, you were told to please pay your portion. You stated, as you can see notes on your statement (attached) that you would pay the day we inserted the crown, however, you did not. You were then sent statements May 12/14, Nov 28/14, Dec 9/14, Jan 28/15, Mar 2/15 and April 1/15, as can be … [seen] on the statements. When Sharrie spoke with you on April 10th/2015 you asked for yet another copy of your statement, which she mailed to you. Now, over 2 weeks later, we still have not received payment.
…
Having said all of the above, I would be willing to make a professional courtesy adjustment of $100 to your account, which currently sits at $454.09, for payment made before this Friday, April 24 if we can close this off and let the dental association know that the complaint has been resolved. This ... is purely a professional courtesy and in no way is an acceptance of any wrongdoing on my part. If however, you feel you do not wish to pay the balance or feel that there are other outstanding issues, the full account without any deductions will be sent to a collection agency as mentioned with the addition of administration fees, as per the signed financial policy. Any costs incurred in retaining a lawyer in a situation where it is deemed that the accusations are false or there is any concern of defamation of character will then rest with yourself. I trust the above clearly outlines the options currently available to you.
[37] The email strongly suggests that Dr. Jinnah had no idea a staff member had spoken with her patient on April 10 and that the patient promised to pay the outstanding account on receipt of the detailed statement of services provided.
[38] The patient replied the next day.[47] Her email stated that she now knew, as a result of her April 10, 2015 conversation with a staff member and receipt of a detailed statement of account, “what the charge was for; which is all I have been trying to obtain since November 2014,”[48] and “would pay the $444.46 in full”. She stated that “I will not pay ... any interest as the onus is on you for this matter.”[49]
[40] Dr. Jinnah provided her version of the key events in a May 9, 2015 letter to the College, parts of which follow:[51]
There are notes in our system stating she [the patient] called January 8, 2015 and spoke to Brittney asking about her bill. Brittney said she would look into it as the balance was from our previous software system, which was changed over in July 2014. [The patient] stated as per the notes in our computer system that she would call back the following month. We have a documented call on February 3, 2015 where [the patient] spoke to Brittney who explained all of the charges to her. We still did not receive payment.
B. The College Charged Dr. Jinnah with Unprofessional Conduct
[41] On September 28, 2017, more than 2.5 years after the patient first contacted the College on March 9, 2014,[52] the College issued a notice of hearing,[53] charging Dr. Jinnah with unprofessional conduct in relation to her billing and collections practices. A subsequent amendment to the notice of hearing produced a final charge that Dr. Jinnah[54]
between on or about February 2014 and April 2015 … 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 Principle 5, Articles B5, B.5.1), or that harmed the integrity of the regulated profession, with respect to patient SM, particulars of which include one or more of the following:
a. failing to provide clear and transparent information regarding billing and/ or collection of fees owing;
b. engaging in inappropriate collection practices;
c. failing to engage in usual and customary business practices to collect payment owing by the patient.
[42] It is not clear to us what specific acts of Dr. Jinnah the College claims constitute unprofessional conduct.[55] The notice of hearing does not particularize the conduct it asserts displays the deficiencies highlighted in it. Did the College claim that the “balance forward” entry in Dr. Jinnah’s November 28, 2014, December 9, 2014, January 28, 2015, March 2, 2015 and April 1, 2015 accounts failed to provide “clear and transparent information” about dental services provided? Did the College claim that Dr. Jinnah failed to adequately respond to her patient’s request for more information about the November 28, 2014 account? Did the College claim that either Dr. Jinnah’s final notice or April 22, 2015 email to her patient or both were contrary to customary business practices and constituted unprofessional conduct? Did the College claim that the “office charge” entries in Dr. Jinnah’s accounts were misleading? Did the College assert that Dr. Jinnah interfered with the complaint process?[56]
C. The Hearing Tribunal Held that Dr. Jinnah Engaged in Unprofessional Conduct and Imposed Onerous Sanctions
1. The Merits Decision
[43] The hearing tribunal convened on November 26, 2019.[57] This was more than two years after the College issued a notice of hearing.[58] And, as already noted, the College issued the notice of hearing more than two and a half years after the conduct identified in the notice of hearing was alleged to have occurred.
[44] On March 2, 2020, almost five years after the patient first contacted the College asking for its assistance so that she could determine what she owed Dr. Jinnah, the hearing tribunal concluded that Dr. Jinnah engaged in unprofessional conduct in five ways.
[45] First, it held that four statements – November 28, 2014, December 9, 2014, January 28, 2015 and March 2, 2015 – “lacked clarity and transparency”.[59] It criticized Dr. Jinnah for not providing more information than she did in the November 28, 2014 account.[60] This account contained only the “Balance Forward” entry for $444.46.
[46] Unfortunately, the hearing tribunal did not determine whether Dr. Jinnah’s office forwarded to the patient the May 12, 2014 statement that contained a detailed explanation of the dental services Dr. Jinnah performed and that her office printed. The patient’s evidence was that she could not recall if she had received a statement prior to the November 28, 2014 statement.[61] She has, in effect, acknowledged that she may have received a prior statement. This was an important fact. It is likely that she did given that the sole entry in the November 28, 2014 statement was “Balance Forward”. Dr. Jinnah’s records indicated that an account was printed on May 12, 2014.[62] The fact that the five other accounts Dr. Jinnah’s office printed made it into the patient’s hands, and the fact that Dr. Jinnah’s April 22, 2015 email expressly claimed that “[y]ou were sent statements May 12/14, Nov 28/14, Dec 9/14, Jan 28/15, Mar 2/15 and Apr 1/15,”[63] strongly support the inference that the patient received the May 12, 2014 account.
[47] Second, the hearing tribunal found that the “office charge” entries were misleading. It was satisfied Dr. Jinnah should have used “interest charge”[64] to describe the interest due.
[48] Third, it determined that Dr. Jinnah engaged in inappropriate collection practices:[65] “The Hearing Tribunal finds that Dr. Jinnah’s collection practices with [her] patient ... was conduct that harmed the integrity of the profession and breached Principle 5 of the Code of Ethics such that it amounted to unprofessional conduct under section 1(1)(pp)(ii) and 1(1)(pp)(xii) of the Health Professions Act.”
[49] Fourth, the hearing tribunal also criticized the provision in Dr. Jinnah’s financial agreement that resulted in the outstanding balance being increased by fifty percent if Dr. Jinnah retained a collection agency to chase a debtor patient for an outstanding debt:[66]
[A]lthough the Hearing Tribunal believes it is acceptable for dentists to use the services of a collection agency to collect on outstanding accounts, the Hearing Tribunal finds Dr. Jinnah's 50% administration fee carries with it an implied threat that is incongruent with a dentist-patient relationship. Dr. Jinnah's collection techniques included her threatening to act on the Financial Policy of 50% … and threatening to affect a patient's credit score. These are collection practices that go beyond what the Hearing Tribunal finds acceptable.
[50] The hearing tribunal concluded that Dr. Jinnah “displayed a lack of knowledge, skill and judgment in the provision of professional services that contravened Principle 5, Veracity of the Code of Ethics”.[67] It was satisfied “Dr. Jinnah’s practice of billing and collecting fees from … [her patient] was not truthful and forthright”.[68]
[51] Fifth, the hearing tribunal also concluded that Dr. Jinnah’s final notice and her April 22, 2015 email constituted unprofessional conduct.[69] It held that the “tone” of the final notice was unprofessional,[70] and that Dr. Jinnah should not have “threatened legal action for defamation based on comments made by … [the patient] in her letter of complaint”[71] or stated that the patient’s credit rating would be harmed if Dr. Jinnah retained a collection agency to collect the patient’s outstanding debt.[72]
[52] Of interest, the hearing tribunal urged the College to provide dentists with more guidance on how to collect outstanding accounts:[73] “[T]here is no direction to the profession about what the … [College] expects of dentists and their collection practices. … [T]his case is illustrative of a greater need for clarity for the profession by … [the College]. There should be more guidance for dentists in this area.”
2. Sanction Decision
[53] The hearing tribunal’s sanction decision[74] prohibited Dr. Jinnah from practicing for one month, ordered her to complete a philosophy course in ethics, and imposed costs of $50,000.[75] The hearing tribunal declined to issue a caution or a reprimand because “the proven conduct in this case was far too serious to justify a caution or a reprimand as the sole order under section 82 of the Health Professions Act”.[76] A part of its sanction decision follows:[77]
The conduct was serious and harmed the integrity of the profession. The billing and collection practices were unprofessional and went beyond what the Hearing Tribunal considered acceptable. Dr. Jinnah’s financial information to the patient was not transparent or truthful. The interest charges were disguised as office charges, and when the patient paid the outstanding invoice, the patient did pay interest charges that she was not aware of. Dr. Jinnah threatened legal action and caused a patient to feel bullied, upset and threatened. A patient should not be made to feel this way. Dr. Jinnah was disrespectful to her patient and made personal threats against her patient over the collection of an account.
[54] Given the fact that the patient agreed in writing before Dr. Jinnah provided any dental services to pay interest on outstanding amounts[78] and stated in her June 25, 2015 letter to the College that “office charges” were interest charges and she refused to pay them,[79] it is difficult to understand on what basis the hearing tribunal could find that “[t]he interest charges were disguised”. They were not – plain and simple. Both the patient and Dr. Jinnah understood that an “office charge” was an interest charge.[80]
[55] The hearing tribunal also ordered Dr. Jinnah to take a philosophy course in ethics. It did so because “Dr. Jinnah did not appear to understand or have the knowledge, skill and judgment that her written communications with the patient were unprofessional and inappropriate”.[81] The hearing tribunal did not explain how enrolling in a philosophy course in ethics would assist Dr. Jinnah acquire this knowledge.
D. The Appeal Panel Upheld Parts of the Hearing Tribunal’s Decision
[56] Dr. Jinnah, relying on section 87(1) of the Health Professions Act, [82] appealed[83] both the hearing tribunal’s merits and sanctions decisions to the council of the College.
[57] Although the appeal panel identified two errors on the part of the hearing tribunal – the hearing tribunal should not have heard evidence from a forensic accountant[84] relating to criminal interest rates under the Criminal Code[85] and it placed insufficient weight on records created by Dr. Jinnah’s staff[86] – it substantially upheld the hearing tribunal’s factual determinations and its conclusion that Dr. Jinnah had engaged in unprofessional conduct.[87]
[58] The appeal panel upheld as reasonable the hearing tribunal’s decision that Dr. Jinnah’s accounts failed to provide sufficient details about the dental services for which she billed and that the accounts should have identified interests charges as such and not as “office charges”.[88]
[59] The appeal panel concluded that the hearing tribunal’s critical assessment of the final notice and Dr. Jinnah’s April 22, 2015 email to her patient was reasonable:[89]
In the opinion of the Appeal Panel, it was open to the Hearing Tribunal to conclude that the tone and content of the Final Notice to a patient was unprofessional and this conclusion was not unreasonable in the circumstances. This was an account of less than $500 on which the patient had called a number of times requesting detailed information on how the outstanding amount was calculated. The Final Notice letter was sent to … [the patient] before any attempt was made to provide the detailed information. The Appeal Panel notes that once this detailed information was provided on April 10, 2015, the patient paid the outstanding amount.
….
In the opinion of the Appeal Panel, the concern of the Hearing Tribunal regarding Dr. Jinnah threatening an action in defamation against a patient for making a complaint to the … [College] was valid. The right of patients to file a complaint against a dentist that is then investigated by the … [College] is a fundamental aspect of the role of the … [College] as part of a self-regulating profession that acts to protect the public interest. All dentists must respect this right of a patient and conduct that attempts to discourage or threaten a patient for … [filing] a complaint breaches the conduct required of a dentist.
[60] The appeal panel also upheld the hearing tribunal’s critical assessment of a provision in Dr. Jinnah’s financial agreement with her patient that she pay an additional sum if Dr. Jinnah retains a collection agency:[90]
What the Hearing Tribunal found unprofessional was the manner in which this claim for a 50% … administration fee was used … as “an implied threat” to obtain payment and part of a further threat to affect the patient’s credit score. The Hearing Tribunal found that these actions were “incongruent with a dentist-patient relationship” and “collection practices that go beyond what the Hearing Tribunal finds acceptable.”
In the opinion of the Appeal Panel, it was not unreasonable for the Hearing Tribunal to determine that the manner in which the 50% and 100% administration fee was used by Dr. Jinnah was unprofessional for the reasons set out in … [its] decision.
The Hearing Tribunal noted … that Mr. Thoman stated that he had never come across a collection practice like Dr. Jinnah’s where the account is doubled before being sent to a collection agency. It is clear in the decision that the professional members of the Hearing Tribunal had not seen such a practice and found that it was not a usual and customary practice used in the dental profession to collect outstanding accounts. In the opinion … of the Appeal Panel it was reasonable for the Hearing Tribunal to reach this conclusion.
[61] The appeal panel quashed the one-month suspension and substituted a reprimand,[91] finding that a suspension was disproportionate,[92] and reduced the hearing tribunal costs to $37,500 because the forensic accountant’s evidence on the Criminal Code was unnecessary and irrelevant.[93] The appeal panel found that the hearing tribunal’s sanction of requiring Dr. Jinnah to take an ethics course was reasonable.[94] It also ordered Dr. Jinnah to pay costs equal to one-quarter of the appeal panel costs.[95]
[62] Dr. Jinnah filed a civil notice of appeal[96] and asks this Court to quash the appeal panel’s decision.[97]
V. Statutory and Code of Ethics Provisions
A. Health Professions Act
1(1) In this Act,
…
(t) “investigated person” means a person with respect to whom
(i) a complaint has been made under Part 4,
(ii) information has been treated as a complaint in accordance with section 56, or
(iii) a notice has been given under section 57(1),
and the proceedings with respect to the complaint, information or notice have not been concluded;
…
(z) “practice” means the practice of a regulated profession within the meaning of section 3 of a schedule to this Act;
…
(ff) “professional service” means a service that comes within the practice of a regulated profession;
…
(pp) “unprofessional conduct” means one or more of the following, whether or not it is disgraceful or dishonourable:
(i) displaying a lack of knowledge of or lack of skill or judgment in the provision of professional services;
(ii) contravention of this Act, a code of ethics or standards of practice;
…
(xii) conduct that harms the integrity of the regulated profession;
…
3(1) A college
(a) must carry out its activities and govern its regulated members in a manner that protects and serves the public interest,
(b) must provide direction to and regulate the practice of the regulated profession by its regulated members,
(c) must establish, maintain and enforce standards for registration and of continuing competence and standards of practice of the regulated profession, … .
…
55(2) The complaints director
(a) subject to subsection (2.1) and (2.2), may encourage the complainant and the investigated person to communicate with each other and resolve the complaint,
(a.1) may, with the consent of the complainant and the investigated person, attempt to resolve the complaint,
(b) subject to subsection (2.1) and (2.2), may make a referral to an alternative complaint resolution process under Division 2,
(c) may request an expert to assess and provide a written report on the subject‑matter of the complaint,
(d) may conduct, or appoint an investigator to conduct, an investigation,
(e) if satisfied that the complaint is trivial or vexatious, may dismiss the complaint,
(f) if satisfied that there is insufficient or no evidence of unprofessional conduct, may dismiss the complaint, and
(g) may make a direction under section 118.
…
82(1) If the hearing tribunal decides that the conduct of an investigated person constitutes unprofessional conduct, the hearing tribunal may make one or more of the following orders:
(a) caution the investigated person;
(b) reprimand the investigated person;
…
(d) direct the investigated person to satisfy the hearing tribunal, committee or individual specified in the order that the investigated person is not incapacitated and suspend the investigated person’s practice permit until the hearing tribunal, committee or individual is so satisfied;
(e) require the investigated person to undertake counselling or a treatment program that in its opinion is appropriate;
(f) direct that within the time set by the order the investigated person must pass a specific course of study, obtain supervised practical experience of a type described in the order or satisfy the hearing tribunal, committee or individual specified in the order as to the investigated person’s competence generally or in an area of the practice of the regulated profession;
…
(j) direct, subject to any regulations under section 134(a), that the investigated person pay within the time set in the order all or part of the expenses of, costs of and fees related to the investigation or hearing or both, including but not restricted to
(i) the expenses of an expert who assessed and provided a written report on the subject‑matter of the complaint,
(ii) legal expenses and legal fees for legal services provided to the college, complaints director and hearing tribunal,
(iii) travelling expenses and a daily allowance, as determined by the council, for the complaints director, the investigator and the members of the hearing tribunal who are not public members,
(iv) witness fees, expert witness fees and expenses of witnesses and expert witnesses,
(v) the costs of creating a record of the proceedings and transcripts and of serving notices and documents, and
(vi) any other expenses of the college directly attributable to the investigation or hearing or both;
(k) direct that the investigated person pay to the college within the time set in the order a fine not exceeding the amount set out in the column of the unprofessional conduct fines table that is specified for the college in a schedule to this Act for each finding of unprofessional conduct or the aggregate amount set out in that column for all of the findings arising out of the hearing;
(l) any order that the hearing tribunal considers appropriate for the protection of the public.
…
(4) A fine or expenses ordered to be paid under this section and section 89 are a debt due to the college and may be recovered by the college by an action in debt.
…
89(6) Subject to any regulations under section 134(a), the council may direct the investigated person to pay, within the time set by the council, in addition to expenses, costs and fees referred to in section 82(1)(j), all or part of the expenses of, costs of and fees related to the appeal, including
(a) legal expenses and legal fees for legal services provided to the college, complaints director and council,
(b) travelling expenses and a daily allowance, as determined by the council, for the complaints director and the members of the council who are not public members,
(c) the costs of creating a record of the proceedings and transcripts and of serving notices and documents, and
(d) any other expenses of the college directly attributable to the appeal.
(7) A fine or expenses ordered or directed to be paid under this section are a debt due to the college and may be recovered by the college by an action in debt.
[64] Section 3 in Schedule 7 of the Health Professions Act[99] defines a dentist’s “practice” as doing “one or more of the following”:
(a) evaluate, diagnose and treat, surgically or non‑surgically, diseases, disorders and conditions of
(i) the mouth, which includes teeth, gums and other supporting structures,
(ii) the maxillofacial area, which includes upper and lower jaws and joints, and
(iii) the adjacent and associated structures of the head and neck, to maintain and improve a person’s physical, psychological and social health,
(b) provide restricted activities authorized by the regulations, and
(c) teach, manage and conduct research in the science, techniques and practice of dentistry.
B. Alberta Dental Association and College’s Code of Ethics
[65] The relevant passages from the Alberta Dental Association and College’s Code of Ethics[100] follow:
Purpose, Authority, Accountability
…
The Code of Ethics is an important part of the way in which the Alberta Dental Association and College fulfills its obligation to promote and protect the public interest.
Principles
…
5. Veracity
… The dentist must be truthful and forthright in all professional matters. This means fully disclosing and not misrepresenting information in dealings with patients, the public at large on dental matters, other professionals, and the Alberta Dental Association and College.
…
Article B5: Fees and Compensation for Service
A dentist is responsible for establishing fees for professional services performed for his or her own practice.
…
Article B5.1: Dental Plans and Third Party Carriers
If the patient’s third party carrier plan specifies a co-payment from the patient, the dentist providing the services for the patient must, under the conditions of the plan, engage in usual and customary business practices to collect such co-payments from the patient.
VI. Analysis
A. A Dentist’s Billing and Collection Practices Are Subject to Regulation by the Alberta Dental Association and College
[66] Section 3(1)(a) of the Health Professions Act[101] imposes on the Alberta Dental Association and College the responsibility to “govern its regulated members in a manner that protects and serves the public interest”.
[67] Section 3(1), when read with section 1(1)(pp) of the Health Professions Act, which is set out below, conclusively determines that “unprofessional conduct” captures a dentist’s dental knowledge and skills and business practices:[102]
1(1) In this Act,
…
(pp) “unprofessional conduct” means one or more of the following, whether or not it is disgraceful or dishonourable …
…
(xii) conduct that harms the integrity of the regulated profession … .
[68] In this context, “integrity” means “[s]teadfast adherence to a strict moral or ethical code”[103] or “[s]oundness of moral principle, the character of uncorrupted virtue, esp. in relation to truth and fair dealing: uprightness, honesty, sincerity”.[104]
[69] The College must be able to regulate the business practices of dentists to ensure that dentists are ethical, honest, and beyond reproach. Persons who deal with dentists expect them to be persons of good moral character who abide by a code of ethics that promotes sound business practices.
[70] Suppose a dentist has top-level abilities to diagnose dental problems and to identify appropriate remedial treatment, the physical skills needed to execute the requisite steps and best-in class interpersonal skills. But the dentist routinely knowingly charges patients for services not provided. The College must have the ability to sanction this dentist. If it did not, the integrity of the profession would be imperiled. The public expects all dentists to be ethical and honest.
[71] In order to protect the public interest, the College must have the authority to regulate the knowledge and skills dentists possess – to protect consumers of dental services from unskilled practitioners – and the business side of the dental practice – to ensure that patients are informed in plain English of the dental services that their dentists have performed and the cost of these services, have their questions about their bills answered politely, promptly and accurately, and are, in general, treated fairly and with respect.
The paramount objective of any professional act is the protection of the public, which is achieved through the establishment of a self-regulating profession charged with that responsibility. It is possible for the public to be adversely impacted by the business practices adopted by a dentist. Furthermore, in order to meet the objective of public protection, it is essential to maintain the honour and dignity of the profession. To meet these objectives, the legislative scheme must allow for controls on a dentist's business. For example, the Association might feel compelled to regulate aggressive collection or marketing practices that could jeopardize the standing of the profession. If "practice of dentistry" were given a narrow interpretation, the capacity for this control would be significantly reduced.
[73] The fact that dentists invariably delegate business tasks – scheduling and billing, for example – to others in their offices does not insulate the dentist from the responsibility for the manner in which these workers discharge these assignments. It simply means that dentists must provide their staff with the training and supervision needed to reduce to a sufficiently low degree the risk that their behavior will adversely affect the dentist’s reputation.
[74] We accept Dr. Jinnah’s argument that other parts of the Health Professions Act[106] and the Dental Profession Regulation[107] define “practice” and “professional service” narrowly so as to exclude the business side of the practice of dentistry. For example, section 3 of Schedule 7 to the Health Professions Act[108] reads as follows:
Practice
3 In their practice, dentists do one or more of the following:
(a) evaluate, diagnose and treat, surgically or non‑surgically, diseases, disorders and conditions of
(i) the mouth, which includes teeth, gums and other supporting structures,
(ii) the maxillofacial area, which includes upper and lower jaws and joints, and
(iii) the adjacent and associated structures of the head and neck,
to maintain and improve a person’s physical, psychological and social health ... .
[75] We also agree that section 1(1)(pp)(i) of the Health Professions Act – part of the definition of “unprofessional conduct” – applies only to professional competence in the provision of dental services, such as diagnosis and treatment, and does not sweep in the business component of the practice of dentistry.
[76] But, as noted above, section 1(1)(pp)(xii)of the Health Professions Act[109] strongly supports the conclusion that a dentist’s billing and collections practices can amount to unprofessional conduct within the Health Professions Act. It is a basic principle of statutory interpretation that an adjudicator must read the entire statute,[110] and not just the part most obviously engaged by the fact pattern.
[77] In summary, the College has the statutory authority to regulate the billings and collection practices of dentists.[111]
B. The Appeal Panel Erred in Holding that Dr. Jinnah’s Statement of Account Failed to Clearly Identify Interest Charges and Provide a Detailed Explanation of the Dental Services to Which the Bill Related and Constituted Unprofessional Conduct
[78] This Court may set aside the appeal panel’s decision[112] that Dr. Jinnah was guilty of unprofessional conduct – a question of mixed fact and law – if we are satisfied it is clearly wrong – a palpable and overriding error – or a product of an error of law or a finding of fact that is clearly wrong.[113]
[79] We are satisfied that the appeal panel erred when it held that Dr. Jinnah’s failure to generate bills that expressly described the charges for $9.63, $9.84, $10.06 and $10.27 as interest instead of “office charges” constituted unprofessional conduct.[114]
[80] The patient knew that these were interest charges. This is incontestable. She said as much in her March 9, 2015 letter to the College.[115] It must not be forgotten that the patient signed an agreement that obliged her to pay interest on unpaid accounts.[116] When the patient spoke with a staff member in Dr. Jinnah’s office on April 10, 2015 she clearly stated that she would not pay interest that accrued after the November 28, 2014 account.[117] She asserted that if Dr. Jinnah’s office had responded in a timely manner to her November 2014 request for information, she would have promptly paid the account and no more interest would have accrued. And the patient expressly acknowledged in her June 25, 2015 letter to the College that the “office charge” represents “charges for interest”[118].
[81] We are also satisfied that the College has failed to prove on a balance of probabilities that Dr. Jinnah’s patient did not receive the May 12, 2014 invoice that Dr. Jinnah referred to in her April 22, 2015 email to her patient.[119] It is likely that she did given that the sole entry in the November 28, 2014 statement was “Balance Forward”. The patient, in effect, admitted that she may have received a prior statement from Dr. Jinnah’s office. If she had, it must have been the May 12, 2014 invoice. Dr. Jinnah’s records indicates that her office printed the May 12, 2014 invoice.[120] Also relevant is the fact that the five other accounts Dr. Jinnah’s office printed made it into the patient’s hands. So is the fact that Dr. Jinnah’s April 22, 2015 email expressly claimed that “[y]ou were ... sent statements May 12/14, Nov 28/14, Dec 9/14, Jan 28/15, Mar 2/15 and Apr 1/15”.[121] Given that the patient received five other invoices that Dr. Jinnah’s office printed the likelihood Dr. Jinnah’s office did not forward the May 12, 2014 invoice to her is extremely low.
[82] This means that the “Balance Forward” entry in the November 28, 2014 account must be read with the information in the earlier account. And when it is, the charge of inadequate information is met head on. The May 12, 2014 account provides a detailed explanation of the dental services for which Dr. Jinnah seeks payment.
[83] As a result, we find it is more likely than not that Dr. Jinnah provided her patient with an adequate explanation of the dental services for which Dr. Jinnah billed her – the May 12, 2014 invoice.[122]
C. The Appeal Panel Erred in Holding that the Tone and Content of the April 1, 2015 Final Notice Constituted Unprofessional Conduct
[84] We have reviewed Dr. Jinnah’s April 1, 2015 “Final Notice” line by line and see no basis for the criticism that both the hearing tribunal and the appeal panel have directed at it.
[85] Informing a patient whose account is outstanding that the patient must either pay the sum due or contact Dr. Jinnah’s office to discuss payment options is appropriate.
[86] So is a clear message from the creditor that failure to take either of these two steps may cause Dr. Jinnah to retain a collection agency to collect the amount due. This should not be a surprise to the patient. She signed a financial agreement that contained this provision:[123] “If your account remains unpaid after three months, it will be turned over to a collection agency including outstanding interest, plus an additional charge of 50% (administration fee for being sent to the collection agency) which will be added to your balance”. And informing the patient that a collection agency is the next step is in line with the College’s own guidance to its members for collecting overdue accounts[124] of which the hearing tribunal appears to have been unaware.[125]
[87] There is nothing objectionable about informing the patient that Dr. Jinnah’s use of a collection agency may damage the patient’s credit rating. This is true. And if it is information that a patient does not know, it is a fact the patient needs to know in deciding how to deal with a debt. These observations are sound even though some patients may find information of this nature threatening.
[88] Nor is there anything improper about informing the patient that if Dr. Jinnah is forced to sue to collect the unpaid account, the patient may be on the hook for Dr. Jinnah’s legal costs.
[89] In any case, neither the Complaints Director,[126] the hearing tribunal,[127] nor the appeal panel[128] took issue with a dentist sending an account to a collection agency – rather, it seems that what they considered problematic was the tone of Dr. Jinnah’s communications informing the patient of this fact. But Dr. Jinnah’s April 1, 2015 “Final Notice” is not so different from the sample letter included in the College’s draft final-notice letter in its Practice Manual.[129]
[90] While some patients may characterize the tone of the “Final Notice” as aggressive, one must not overlook the fact that it is designed to cause a patient-debtor to pay an outstanding account. It is, after all, a business letter – from a creditor to a debtor.
[91] One part of the “Final Notice” is questionable. Dr. Jinnah incorrectly described the additional charge as a 100% upward adjustment. The financial agreement set the upward adjustment at fifty percent. But Dr. Jinnah corrected this error in her April 22, 2015 email to her patient:[130] “Unfortunately, your account is now in arrears and we have no choice but to forward the account to a third party collection agency. As per your signed financial policy (attached). You will note the additional administration fee of 50% to be added to your balance”. A mistake of this nature, although unfortunate and the product of carelessness, is not unprofessional conduct.[131]
D. The Appeal Panel Erred in Holding that the Term in the Financial Agreement Adjusting the Outstanding Balance by Fifty Percent Under Stipulated Conditions Constituted Unprofessional Conduct
[92] The appeal panel agreed with the hearing tribunal that Dr. Jinnah committed unprofessional conduct when she asked her patient to agree to a term that increased the amount outstanding by fifty percent if the patient failed to pay her bill within three months and Dr. Jinnah turned the account over to a collection agency.
[93] The appeal panel also agreed with the hearing tribunal’s reasons, the key part of which follows: “Dr. Jinnah’s 50% administration fee carried with it an implied threat [adversely affect a patient’s credit score] that is incongruent with a dentist-patient relationship”.[132]
[94] We disagree with the appeal panel on both points.
[95] Dealing with the latter conclusion first, the contested contract provision does nothing more than allow for an upward adjustment of the amount outstanding if the patient does not pay as promised and Dr. Jinnah retains a collection agency so that the collection agency’s fee is passed on to the patient and not borne by Dr. Jinnah. The provision does not threaten the patient, either expressly or implicitly.
[96] Second, the disputed contract term is not inconsistent with the common law.
[97] Commercial contracts often impose on a defaulting promisor the obligation to pay the legal costs the promisee incurs to enforce compliance on the part of the promisor.
14. I also covenant and agree with the mortgagee that
...
(e) All solicitor’s ... fees and expenses ... in exercising or enforcing or attempting to enforce or in pursuance of any right, power, remedy or purpose hereunder ..., and legal costs as between solicitor and client are to be secured hereby and shall be a charge on the mortgaged premises, together with interest thereon ... and all such moneys shall be repayable to, the Mortgagee on demand ... and all such sums together with interest thereon are included in the expression ‘the mortgage moneys’.
[99] We also reject as irrelevant the evidence of a chartered accountant “that he … never … [came] across a collection practice … where the account is doubled before being sent to a collection agency”[134] or the experience of the professional members of the hearing tribunal to the same effect.
[100] There is no provision in the Code of Ethics that states a dentist may adopt only “usual and customary business practices” when pursuing delinquent debtor-patients. While Article B5.1 of the Code of Ethics incorporates that language it does so in a different context. Article B5.1 focuses on dental plans with third party carriers and directs a dentist to “engage in usual and customary business practices to collect such co-payments from the patient”. This is a minimum standard that a dentist who has received a payment from an insurer must meet to discharge his or her ethical obligations. Article B5.1 does not prohibit a dentist from adopting more aggressive collection methods.
[101] Suppose a charity operates a lemonade stand and advertises that the charge for a glass of lemonade is not less than $5. This does not prevent a consumer and donor from giving the charity $100 for a glass of lemonade. The $5 reference is a minimum charge and not a statement that the charity will refuse larger donations.
[102] The correct inquiry is whether Dr. Jinnah’s stipulated-consequence-on-breach term is oppressive.[135] A stipulated-consequence-on-breach term is oppressive if it is “so manifestly grossly one-sided that its enforcement would bring the administration of justice into disrepute”.[136] In making this determination an adjudicator must be mindful of the well-known fact that dentists are not in short supply, like family doctors are, and that a patient who does not like the business terms a dentist proposes can easily seek out another service provider. This is not a case of inequality of bargaining power[137] that is a component of the “unconscionability” equitable doctrine incorporating the “improvident bargain” concept.[138]
[103] If a term is oppressive, a court will not enforce it. If it is not, a court will enforce it.
[104] We are satisfied that a dentist who asks a patient to agree to an oppressive provision engages in conduct that harms the integrity of the profession and is unprofessional conduct. And we are also of the view that a dentist who asks a patient to agree to a term that is not oppressive is not guilty of unprofessional conduct.
[105] The complaints director has not led any evidence[139] that supports the conclusion that the contested term in Dr. Jinnah’s financial agreement is oppressive – it is “so manifestly grossly one-sided that its enforcement would bring the administration of justice into disrepute”.[140] The evidence before the hearing tribunal supports the opposite conclusion. Dr. Jinnah’s evidence is that collection agencies charge her a fee and that the contested provision allows her to pass this cost on to her patient.[141]
[106] This term is not “manifestly grossly one-sided”.
[107] Nor is it an improvident bargain,[142] the test applied if there is unequal bargaining power between the promisor and the promisee.[143] It does not unduly disadvantage Dr. Jinnah’s patient. It does nothing more than pass on the costs a collection agency imposes on Dr. Jinnah to her debtor-patient. A debtor-patient cannot reasonably complain about being asked to pay a reasonable cost that never would have been incurred if the debtor had paid the account in a timely manner.
[108] The appeal panel’s determination that Dr. Jinnah has violated the Health Professions Act by asking her patient to agree to the contested term must be set aside.
E. The Appeal Panel Did Not Err in Holding that Dr. Jinnah Obstructed the Complaint Process
[109] A regulated member obstructs the complaint process under the Health Professions Act[144] if he or she acts in a manner that would, objectively assessed,[145] cause a patient with backbone to consider withdrawing a complaint already filed or, if not filed, not proceeding with a complaint under consideration.[146]
[110] The appeal panel did get it right when it held that Dr. Jinnah’s April 22, 2015 email to her patient constituted unprofessional conduct:[147]
[T]he concern of the Hearing Tribunal regarding Dr. Jinnah threatening an action in defamation against a patient for making a complaint to the … [College] was valid. The right of patients to file a complaint against a dentist that is then investigated by the … [College] is a fundamental aspect of the role of the … [College] as part of a self-regulating profession that acts to protect the public interest. All dentists must respect this right of a patient and conduct that attempts to discourage or threaten a patient for … [filing] a complaint breaches the conduct required of [a] dentist.
[111] From our perspective, this email, read objectively, would cause a patient with backbone to consider withdrawing a complaint already filed or not filing a complaint that he or she is contemplating filing. The likelihood that a patient who is told he or she will be sued by the subject of a filed complaint or a potential complaint[148] will consider altering course is not insignificant.
[112] This is an objective test. The fact that a patient does not change or does change course after receiving a message from a dentist is not determinative. A patient who stays the course may have a backbone of steel. This does not preclude an adjudicator from holding that a challenged message is unprofessional conduct. A patient who alters course may not be strong-willed. This does not stop an adjudicator from bestowing its stamp of approval on a contested message. What is critical is the anticipated reaction of the hypothetical reasonable patient.
[113] A dentist whose conduct assessed objectively discourages a patient from making a complaint to the College or pursuing an existing complaint frustrates the effective implementation of a valuable protocol designed to enhance the quality of the interaction between dentists and consumers of dental services.
[114] Obstructing the complaint process is conduct that harms the integrity of the profession and therefore constitutes unprofessional conduct.[149] This Court concluded that the College’s finding that a dentist’s demands that certain members of the Alberta Society of Orthodontists withdraw their complaints against him, accompanied by threats to make professional disciplinary complaints against a large number of the Society’s members, harmed the integrity of the profession was reasonable.[150]
[115] The primary goal of the College is to protect the public.[151] The existence of an effective complaint process is a crucial part of maintaining the integrity of the profession, and therefore protecting the public. Protecting the complaint process is an important part of the College’s obligation to ensure that professional standards of conduct are complied with.
[116] Criminal law systems generally make it an offence to obstruct the truth-seeking function of adjudicators. For example, section 139(3)(a) of the Canadian Criminal Code[152] provides that “every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed, … dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence”.
[117] Similar prohibitions exist in labor legislation to reduce the risk that employers or trade unions penalize their employees or members for invoking a legal process that is intended to protect their interests. Section 94(3)(e)(iii) of the Canada Labour Code[153] stipulates that “[n]o employer … shall … seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, … to refrain from … making an application or filing a complaint under this Part.”
[118] In coming to the conclusion that Dr. Jinnah’s April 22, 2015 email contained passages that amounted to unprofessional conduct, we are not asserting that Dr. Jinnah sent it to her patient knowing it was wrong to do so. There is no reason to imply this. First, no provision in the Code of Ethics or the Health Professions Act[154] warns dentists of the need to be careful when communicating with patients who have filed or might file a complaint. Second, we do not think that the point would be so obvious to a lay person that a reasonably well-informed dentist should have this knowledge – should know that a dentist-creditor cannot warn a patient-debtor who has filed a complaint that the dentist will sue if the patient defames him or her in the course of the complaint process. In other words, in the dental practice environment that existed before the release of the appeal panel’s decision and this Court’s judgment, a dentist whose knowledge bank does not contain this information is not, on this account, per se culpable.[155]
[119] This determination requires us to consider whether the absence of an intention to contravene the Code of Ethics or the Health Professions Act[156] is inconsistent with a finding that Dr. Jinnah has committed unprofessional conduct and should result in a dismissal of the charge against her[157] or whether its effect should be confined to the sanction.[158]
[120] The best course is to give effect to this absence of an intention to contravene the Code of Ethics or the Health Professions Act when considering the appropriate sanction. Use of the unprofessional conduct concept is an effective didactic device to inform dentists that they must proceed with caution when communicating with a patient about a complaint. In our opinion, a contrary finding may harm the standing of the dental and other professionals in the community. Most people believe that ignorance of the law is no excuse. Professor Glanville Williams observed roughly forty years ago that “almost the only knowledge of the law possessed by some people is that ignorance of it is no excuse”.[159] Professor Keedy opined over 100 years ago that “[i]gnorantia juris non excusat, ignorantia facti excusat is a maxim familiar to layman as well as to the lawyer”.[160]
[121] In doing so, we follow the lead of the criminal law. Section 19 of the Criminal Code[161] declares that “[i]gnorance of the law by a person who commits an offence is not an excuse for committing that offence”. But this provision does not preclude a finding that an actor who does not appreciate that a course of conduct is wrong or unlawful is less blameworthy than a person who does. For example, in The Queen v. Campbell,[162] Judge Kerans, then a judge of the District Court of Alberta, granted an absolute discharge to an exotic dancer who was convicted of giving an immoral performance because she did so in the belief nude dancing was lawful – a superior court judge had said so[163] – and could not reasonably predict this decision would be overturned on appeal.[164] It was asking too much of the young dancer to require her to have a better grasp of the law than a superior court judge.
[122] The appeal panel’s decision to impose a reprimand as opposed to any other harsher sanction is consistent with our conclusion that Dr. Jinnah did not intend to contravene the Health Professions Act[165] or the Code of Ethics and her failure to know that obstruction of the complaint process was unprofessional conduct was not, by itself, culpable. In short, Dr. Jinnah’s lack of knowledge about the impropriety of her April 22, 2015 email to her patient is not culpable. As a result, the seriousness of her unprofessional conduct is at the low end of the scale.
F. The Appeal Panel’s Costs Order Was Unreasonable and Must Be Set Aside
[123] Dr. Jinnah argues that the costs the appeal panel imposed – the appeal panel reduced the $50,000 costs order issued by the hearing panel to $37,500[166] and ordered Dr. Jinnah to pay costs equal to one-quarter of the appeal panel costs[167] – were excessive for a hearing involving one allegation by a single patient unrelated to patient care on the low end of the seriousness scale.[168]
[124] We agree. These sums are so large that they, in effect, become the primary sanction. Costs are not supposed to be a sanction.
[125] Costs in a professional disciplinary context are discretionary and subject to the standard of reasonableness.[169]
[126] Sections 82(1)(j) and 89(6) of the Health Professions Act[170] set out a nonexhaustive list of expenses that a hearing tribunal or appeal panel may order a dentist who is found to have engaged in unprofessional conduct to pay. The dentist may be ordered to pay “all or part of the expenses of, costs of and fees related to the investigation or hearing or both”.[171]
1. The Purpose of Costs in the Health Professions Act Is Full or Partial Indemnification of the College in Appropriate Cases
[127] Both K.C. v. College of Physical Therapists of Alberta[172] and the text of sections 82(1) and 89(6) of the Health Professions Act[173] establish that the purpose of costs is to fully or partially indemnify the College for its costs and expenses. Costs are not to be punitive in nature.[174] Fines are punitive in nature. The College may fine a member to sanction him or her for unprofessional conduct.[175]
2. A Hearing Tribunal and an Appeal Board Must Justify a Decision To Impose Costs
[128] Costs should not be awarded in every case.[176] Statutory powers must not be confused with the manner in which they are to be exercised.[177]
[129] This Court in K.C. v. College of Physical Therapists of Alberta[178] held that the College must consider factors “in addition to success or failure” including “the seriousness of the charges, the conduct of the parties and the reasonableness of the amounts" when determining whether to impose costs and in what amount.
[130] In Alsaadi v. Alberta College of Pharmacy,[179] Justice Khullar pointed to many of the problems with a default approach to calculating costs that often imposes a very high amount on a disciplined professional.[180] Justice Khullar favored a more principled approach to calculating costs:[181]
A more deliberate approach to calculating the expenses that will be payable is necessary. Factors such as those described in KC should be kept in mind. A hearing tribunal should first consider whether a costs award is warranted at all. If so, then the next step is to consider how to calculate the amount. What expenses should be included? Should it be the full or partial amount of the included expenses? Is the final amount a reasonable number? In other words, a hearing tribunal should be considering all the factors set out in KC, in exercising its discretion whether to award costs, and on what basis. And of course, it should provide a justification for its decision.
3. Professions Should Bear Most, if Not All Costs Associated with the Privilege and Responsibility of Self-Regulation Unless a Member Has Committed Serious Unprofessional Conduct, Is a Serial Offender, Has Failed to Cooperate with Investigators or Has Engaged in Hearing Misconduct, in Which Case, the Disciplined Member Must Assume Some of the Costs
[131] A costs problem presents a number of related questions that if posed in the correct order increase the likelihood that the most defensible answer will be produced.[182] A defensible answer is one that is principled and predictable.
[132] As Justice Khullar observed, the first question is whether a hearing tribunal or an appeal panel should make a costs order against a regulated member.
[133] A number of considerations are at play in answering this question.
[134] It is the profession as a whole, not just the disciplined member, that benefits from the privilege of self-regulation. A regulator’s decision adjudging a member to have committed unprofessional conduct communicates an unequivocal message to the public that the regulator protects the public’s interest. This, in turn, increases the public’s belief that the utilisation of professional services will protect their health and best interests. This positive evaluation of the profession probably increases the public’s utilization rate of dental services. Arguably, the professional found to have committed misconduct does not receive a benefit from this determination.
Professions in Alberta are extended the privilege of self-regulation. With that comes the responsibility to supervise and, when necessary, discipline members. The disciplinary process must necessarily involve costs, and any self-regulating professional organization must accept those costs as an inevitable consequence of self-regulation. It is acceptable for the profession to attempt to recover some of those costs back from disciplined members, but the burden of the costs of regulation are to some extent inevitable.
[136] The imposition of all or a significant percentage of the costs of self-regulation on the profession as a whole is fair because all members benefit from self-regulation. These advantages include the profession’s ability to limit competition by restricting who may enter the profession and implementing other anti-competitive measures such as fee schedules and restrictions on advertising. These measures increase the income and status of the profession’s members.[184]
[137] Most regulated members of a profession are likely to benefit, in some way, from the public review of the conduct of members.[185] Some dentists may not appreciate that a specific behavior is inappropriate. They may never have turned their minds to it or, if they had, failed to appreciate the problems associated with the behavior. A decision of a hearing tribunal or an appeal panel may remind a segment of the dentist population of the high standards to which dentists must adhere. It may reinforce in the minds of regulated professionals the very existence of boundaries that a member may not cross.
[138] While it is true that a member who commits unprofessional conduct displays a trait that distinguishes him or her from other members of the profession who have not committed unprofessional conduct,[186] this fact, by itself, does not convince us that it is appropriate, as a general principle, to impose a significant portion of the costs of an investigation into and hearing of a complaint on a disciplined dentist unless a compelling reason to do so exists.[187]
[139] When does a compelling reason exist?
[140] A compelling reason exists in four different scenarios.[188] While we refer to dentists in this discussion, our observations apply to all professionals[189] regulated by the Health Professions Act.[190]
[141] First, a dentist who engages in serious unprofessional conduct[191] – for example, a sexual assault on a patient,[192] a fraud perpetrated on an insurer,[193] the performance of a dental procedure while suspended or the performance of a dental procedure in a manner that is a marked departure from the ordinary standard of care[194] – can justifiably be ordered to indemnify the College for a substantial portion or all of its expenses in prosecuting a complaint. A dentist guilty of breaches of this magnitude must have known that such behavior is completely unacceptable and constitutes unprofessional conduct. It is not unfair or unprincipled to require a dentist who knowingly commits serious unprofessional conduct to pay a substantial portion or all the costs the regulator incurs in prosecuting a complaint.
[142] Second, a dentist who is a serial offender engages in unprofessional conduct on two or more occasions may be ordered to pay some costs. If a dentist is guilty of two acts of unprofessional conduct and both of the findings of unprofessional conduct were serious breaches, a costs order indemnifying the College for a substantial portion or all of its expenses would be appropriate.[195] If both breaches were not serious, a small amount of costs – something less than twenty-five percent – could be justified. If only the first breach was serious and the dentist had already been ordered in a previous proceeding to pay a substantial costs order on account of the serious offence, a small costs order for the second breach may be appropriate. If only the second breach was serious, a costs order indemnifying the College for a substantial portion or all of its costs would be appropriate. There is a big difference between a dentist who has been sanctioned once and a dentist who has been sanctioned two or more times. A dentist who has been sanctioned once should be extra vigilant in how he or she practices dentistry. It seems to us, based on our review of the College’s 2019, 2020 and 2021 annual reports[196] and the decisions finding unprofessional conduct published[197] on the College’s website,[198] that only a very small percentage of dentists engaged in active practice have ever been sanctioned. And of this group, we strongly suspect that an even smaller fraction are repeat offenders.[199] It is not unfair to place on the shoulders of this small group of dentists a disproportionate share of the costs of implementing the discipline process.
[143] Third, a dentist who fails to cooperate with College investigators and forces the College to expend more resources than is necessary to ascertain the facts related to a complaint cannot, with justification, object when ordered to pay costs set at an amount roughly equal to the unnecessary expenditures attributable to his or her intransigence.
[144] Fourth, a dentist who engages in hearing misconduct – behavior that unnecessarily prolongs the hearing or otherwise results in increased costs of prosecution that are not justifiable[200] – should expect to pay costs that completely or largely indemnify the College for its unnecessary hearing expenditures.
[145] It follows that the profession as a whole should bear the costs in most cases of unprofessional conduct.
[146] This presumption has merit and makes good sense.
[147] First, it will force the College to carefully evaluate the investigative and prosecutorial options that it has in a given case and select the course that makes the most sense, keeping in mind that the members as a whole will often ultimately bear the costs incurred. The College will probably have little or no appetite for expenditures that it must absorb itself unless they provide a significant benefit to the overall administration of the discipline process.[201] Some forms of unprofessional conduct may be adequately dealt with by an informal reminder of what is expected of a dentist[202] and a recommendation that a dentist apologize to a patient for what may be nothing more than a misunderstanding.
[148] Second, it will improve the position of a dentist charged with an act that is not serious unprofessional conduct. A dentist will know in advance what the costs consequences of an unsuccessful defence are very likely to be. He or she will not be pressured unduly to plead guilty to avoid the prospect of a burdensome costs order.[203] A prospective costs sanction should not be the primary reason why a dentist decides to plead guilty to a charge of unprofessional conduct. A dentist’s right to provide a full answer and defence[204] should not be undermined by a potential large costs order. “The disciplinary system should not include a cost regime that precludes professionals raising a legitimate defence”.[205]
[149] Third, the presumption will mean that most dentists found guilty of unprofessional conduct will not be subject to a costs order.[206] This, in effect, levels the playing field. The governing legislation does not allow either the hearing tribunal or the appeal panel to order the College to pay costs to a dentist who successfully defends a complaint.[207] This one-sided norm is of questionable merit.[208]
[150] Fourth, professional bodies’ discipline proceedings share with regulatory prosecutions the practical factor that “selective enforcement”[209] is at play. Whether or not a particular professional body has a zero-tolerance policy for any type of misconduct, the fact remains that only some cases will be subject to discipline proceedings. The situation is akin to the reality that only a small portion of traffic violations come to the attention of traffic law enforcement officers and that not all of these will be prosecuted. With this in mind, it is important to ask whether the imposition of the burden of the costs of enforcement on specific offenders who happen to be prosecuted is fair.
[151] Fifth, the protocol will have marginal, if any impact, on dentists’ membership fees.[210] The College’s financial statements for the years ending December 31, 2020 and December 31, 2021 indicate that revenues exceeded expenditures by $2,353,867 in 2020 and $1,921,226 in 2021.[211] The College’s 2021 complaints statistics report that there were only seventeen hearings conducted in 2021, and 105 complaints were closed.[212] While we do not know when the corresponding hearings took place, in 2021 the College’s Hearing Tribunal released eleven decisions finding unprofessional conduct[213] and ordered the disciplined dentist to pay costs in all of them – between half and all the costs of the investigation and hearing in ten and a specified sum in the remaining one.[214] The College spent $1,314,000 for “Professional Conduct” that year.[215]
[152] And the propositions we have formulated are relatively easy to follow. A norm that simplifies and clarifies is usually beneficial in any regulated process.[216] It substantially increases the likelihood that parties affected by it can accurately predict the adjudicator’s ultimate response. This relieves the parties of the need to contest the issues before the adjudicator. Time and money are saved.
[153] We encourage the College’s complaints director to continue to take an active role in resolving complaints as soon as they reach the College.[217] The low number of hearings compared to the high number of resolved complaints suggests that this already happens to an extent. Resolution of complaints at the earliest opportunity is in the interest of patients, dentists, the College, and the public. Not only does timely resolution minimize the College’s costs and resources, but it leads to more satisfactory outcomes and minimizes the psychological burden on patients and dentists. This is also in the public interest.
[154] In cases where the College decides to impose costs, exercising its discretion in accordance with the principles set out in this judgment, the College must provide clear and transparent justification for a costs order against a disciplined dentist[218] – not, as seems to be the case in the published penalty decisions – costs are imposed on the dentist in every single instance of unprofessional conduct.[219]
4. The Appeal Panel Imposed Unreasonable Costs on Dr. Jinnah
[155] The appeal panel found reasonable the hearing tribunal’s costs order[220], apart from reducing it because the evidence of one of the witnesses in relation to the interest rate was “unnecessary and irrelevant” and “extended the length and the cost of the hearing”, on the basis that the Complaints Director proved the unprofessional conduct.[221] And in imposing costs for the appeal the appeal panel only appeared to consider Dr. Jinnah’s success on each of her grounds of appeal.[222] Not surprisingly, it considered none of the features of the principles we have fashioned.[223] This led to an order of excessive costs in light of the nature of the charges and the conduct of the College and Dr. Jinnah.
[156] Based on the record before us, there is nothing in the circumstances of this case that justifies departing from the presumption that no costs be awarded against Dr. Jinnah. She did not engage in serious unprofessional conduct. Nor did she refuse to cooperate with investigators or engage in hearing misconduct.[224] While our research discloses that Dr. Jinnah has been subject to other findings of unprofessional conduct, we are not in a position to assess the significance of this and the impact it should have on the costs issue given the limited information available in the public notices.[225] For this reason, we exercise our authority under section 92(c) of the Health Professions Act[226] and refer back to the appeal panel the costs matter for determination in accordance with the principles set out in this judgment.
G. We Encourage the College To Take Steps To Prevent Future Similar Cases
[157] This judgment provides the direction Dr. Jinnah and other health care providers subject to the Health Professions Act need to avoid stepping on a mine in the minefield created when a health care professional communicates with a complainant.
[158] The regulator can also learn from this case.
[159] The College has an obligation under section 3(1)(b) of the Health Professions Act[227] to “provide direction to … its regulated members.”
[160] Dentists must understand that the complaints process is a critical component of the self-regulation of dentistry and that members must act responsibly when communicating with patients about complaints. It is certainly unprofessional conduct to threaten patients who have filed a complaint. Our review of the College’s Code of Ethics did not reveal that it addressed this topic. The College could expand on the information that it provides in its guide to its members about complaints processing[228] to make this important point. Some reasonably well-informed dentists may not appreciate the importance of an effective complaints process and the harm that may occur if a dentist acts in a manner that may cause a patient with backbone to avoid using it.
[161] We agree with the hearing tribunal that the College should provide more direction on how to collect unpaid accounts.[229]
[162] To date, the College has given limited guidance to the profession on standards of conduct for collection of outstanding accounts and how to respond properly to complaints.[230] Providing guidance to the profession on these questions, such as through amending the Code of Ethics or Practice Manual, adopting standards of practice and providing up-to-date sample letters that it considers acceptable in content and tone – going further than the “general background information” the College currently sets out in the Practice Management Manual that includes such letters [231] – and providing more specific guidance in its Patient Communication Guide[232] would likely go a long way to prevent similar cases from occurring in the future. The College should amend its Code of Ethics to expressly record best practices that will allow a dentist to interact with a complainant or potential complainant without making the situation worse.
[163] The College estimates that seventy percent of the complaints it receives “could have been resolved through better communication between dentist and patient”.[233] Developing the tools and skills necessary for dentists to become adept at avoiding unprofessional conduct that stems from failures of communication and resolving patient concerns at an early stage is valuable for dentists, the College, and the public. The need for investigations and hearings arising from routine issues that can be resolved by better communication would decrease, leading to reduced costs for regulating the profession. And the public would benefit from helpful, professional and attentive responses to questions they might have in relation to their dental care.
VII. Conclusion
[164] The appeal is allowed in part.
[165] We uphold the appeal panel’s finding on the merits that the part of Dr. Jinnah’s April 22, 2015 email to her patient obstructed the complaint process under the Health Professions Act[234] and constituted unprofessional conduct. We set aside the other misconduct determinations. The reprimand must be corrected to reflect these determinations.[235] The order that Dr. Jinnah complete a philosophy course and pay the costs of the investigation, hearing, and appeal is also set aside. We send back to the appeal panel the matter of costs before the hearing tribunal and appeal panel for determination in accordance with the principles set out in this judgment.[236]
[166] Exercising our authority under section 92(d) of the Health Professions Act,[237] we order the College to repay Dr. Jinnah half of the amount she paid for preparation of the record.
Appeal heard on January 5, 2022
Memorandum filed at Edmonton, Alberta
this 13th day of October, 2022
Watson J.A.
Wakeling J.A.
Feehan J.A.
S.M. Renouf, K.C./L. Anaka
for the Appellant
J.C. Gagnon/E. Banfield
for the Respondent, Alberta Dental Association and College
D.N. Jardine
for the Respondent, Appeal Panel of Council of the Alberta Dental Association and College
_______________________________________________________
Corrigendum of the Memorandum of Judgment
_______________________________________________________
Page 55, counsel’s name “L. Anaka” has been added.
[1] There was a name change effective June 1, 2022. The new name is the College of Dental Surgeons of Alberta.
[2] Health Professions Act, R.S.A. 2000, c. H-7, s. 90(1). See Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, ¶ 29 per Rowe, J. (“This case is a statutory appeal pursuant to The Legal Profession Act, 1990. Therefore, the standard of review is correctness for questions of law and palpable and overriding error for questions of fact and of mixed fact and law”).
[3] Decision of the Appeal Panel of Council of the Alberta Dental Association and College dated November 10, 2020 [hereinafter cited as Appeal Panel Decision], ¶¶ 118, 119 & 164, Appeal Record 87 & 95.
[4] R.S.A. 2000, c. H-7, s. 1(1)(pp)(xii) (“In this Act ... (pp) ‘unprofessional conduct’ means one or more of the following, whether or not it is disgraceful or dishonourable: ... (xii) conduct that harms the integrity of the regulated profession”).
[5] R.S.A. 2000, c. H-7, s. 1(1)(pp)(xii). See Part V. of this judgment for the text of the provision.
[6] Respondent’s Extracts of Key Evidence 8, 53 & 56.
[7] Transcript of Proceedings Before the Hearing Tribunal [hereinafter cited as Transcript] 30:26-31:2, Appeal Record 131-32.
[8] Transcript 37:20-22, Appeal Record 138.
[9] Hearing Tribunal Decision ¶ 31, Appeal Record 17 & Respondent’s Extracts of Key Evidence 54.
[10] Respondent’s Extracts of Key Evidence 35.
[11] See Respondent’s Extracts of Key Evidence 16.
[12] Id. 22 & 35.
[13] Id. 35.
[14] Id. 16.
[15] Transcript 30: 26-31:2 & 37: 20-22, Appeal Record 131-32 & 138.
[16] Respondent’s Extracts of Key Evidence 13. The “Final Notice” is reproduced verbatim in paragraph 32 of this judgment.
[17] Capital Steel Inc. v. Chandos Construction Ltd., 2019 ABCA 32, ¶ 106; 438 D.L.R. 4th 195, 241, majority aff’d, 2020 SCC 25, per Wakeling, J.A.
[19] Appeal Panel Decision ¶ 88, Appeal Record 81.
[20] Respondent’s Extracts of Key Evidence 33 (“If the amount due is not paid in full in 30 days you will be charged interest on the outstanding amount at the rate of 2% per month, compounded monthly: 26.28% annually. If your account remains unpaid after three months it will be turned over to a collection agency including outstanding interest, plus an additional charge of 50% (administration fee for being sent to the collection agency) which will be added to your balance”) & Transcript 23:18-23, Appeal Record 124.
[21] Hearing Tribunal Decision ¶ 12, Appeal Record 14.
[22] Respondent’s Extracts of Key Evidence 8. See Transcript 14:19-24, Appeal Record 115.
[23] Hearing Tribunal Decision ¶ 31, Appeal Record 17 & Respondent’s Extracts of Key Evidence 54.
[24] Transcript 30: 26-31:2, Appeal Record 131-32.
[25] Id. 37: 20-22, Appeal Record 138.
[26] Hearing Tribunal Decision ¶ 15, Appeal Record 14.
[27] Id. ¶¶ 16-20, Appeal Record 14-15.
[28] Id. ¶ 23, Appeal Record 15 &16.
[29] Respondent’s Extracts of Key Evidence 37& 42.
[30] Id. 24.
[31] Hearing Tribunal Decision ¶¶ 16 & 17, Appeal Record 14.
[32] Id. ¶ 19, Appeal Record 15 & Respondent’s Extracts of Key Evidence 9 & 56.
[33] Transcript 10:2-6, Appeal Record 111 (“[My March 9, 2015 letter to the College] was the original letter I sent to the College seeking their assistance to get information from Dr. Jinnah’s office regarding an invoice I had received.”); Transcript 15:26-27, Appeal Record 116 (“What I was seeking was information in terms of what the fee was for”); Transcript 16:10, Appeal Record 117 (“I was only seeking information”); Transcript 21:25-26, Appeal Record 122 (“I was simply asking to know what the bill was for in detail”). It is only after Dr. Jinnah sends her patient on April 1, 2015 a final notice, that the patient refers to her March 9, 2015 letter as a complaint. Respondent’s Extracts of Key Evidence 11, 12 & 17.
[34] Respondent’s Extracts of Key Evidence 8 (emphasis added).
[35] Id. 102-03.
[36] Id. 13 & 57. Dr. Jinnah explained that the administrative charge listed as 100% instead of 50% as outlined in the Financial Policy was an administrative error, and this error was corrected in Dr. Jinnah’s email to the patient on April 22, 2015. Hearing Tribunal Decision, ¶ 60, Appeal Record 23.
[37] Respondent’s Extracts of Key Evidence 20.
[38] Id. 36.
[39] Id. 13 (emphasis added).
[40] The patient promised to pay interest on an overdue account and an “administration fee” of 50% of the outstanding account if she failed to pay her account within three months and Dr. Jinnah retained a collection agency to collect the outstanding account. Respondent’s Extracts of Key Evidence 33.
[41] Hearing Tribunal Decision, ¶¶ 23 & 110, Appeal Record 15 & 32-33.
[42] Id. ¶ 23, Appeal Record 15 & 16.
[43] Transcript 45:20-21, Appeal Record 146 & Respondent’s Extracts of Key Evidence 11.
[44] See Respondent’s Extracts of Key Evidence 17-18 (“If you or your office staff had responded to my initial call in November 2014 I would never had to contact the ... [College]. AT NO TIME did I indicate that I would not pay for services rendered. I only asked someone to explain to me what the charges were for ... . Now that I have it, I will pay the $444.46 in full. I will not pay for any late charges or any interest as the onus is on you for this matter not being handled in a timely manner”).
[45] Hearing Tribunal Decision, ¶ 24, Appeal Record 16. See Respondent’s Extracts of Key Evidence 21-22.
[46] Respondent’s Extracts of Key Evidence 16.
[47] Id. 17-18.
[48] Id. 17.
[49] Id. 18. See also Transcript 26:8-14, Appeal Book 127 (“I also said that ... I would not be paying for any later outstanding charges because ... it wasn’t my issue in terms of her inability to navigate things appropriately”).
[50] Hearing Tribunal Decision ¶ 110, Appeal Record 33 & Respondent’s Extracts of Key Evidence 53.
[51] Respondent’s Extracts of Key Evidence 24. See also id. 44-46.
[52] This delay is troubling. The important facts were not in dispute and the issues were not complicated. In The Queen v. Chief Constable of the Merseyside Police, ex p. Calveley, [1986] 1 Q.B. 424, 435 per Sir John Donaldson, M.R. (C.A. 1985) the Court, in a judicial review application, set aside an order of the Chief Constable convicting the officers of misconduct because “the applicants had no formal notice of the complaints for well over two years. This is so serious a departure from the police disciplinary procedure that, in my judgment, the court should, in the exercise of its discretion, grant judicial review, and set aside the determination of the Chief Constable”. It is not in anyone’s best interests – not the complainant’s, the dentist’s, the public’s, or the College’s – for years to pass before unprofessional conduct cases are resolved. If a dentist needs to alter his or her business practices, this fact should be brought to the dentist’s attention promptly, not years later. If the College regularly takes this much time to process complaints, it should search for ways to streamline its procedure. See Blencoe v. British Columbia Human Rights Comm’n, 2000 SCC 44, ¶¶ 140 & 144; [2000] 2 S.C.R. 307, 384 & 386 per Lebel, J. (“Unnecessary delay in ... administrative proceedings ... [is] a problem that must be brought under control if we are to maintain an effective system of justice, worthy of the confidence of Canadians. .... When we ask whether there has been an administrative law abuse of process, we ask the same fundamental question: has an administrative agency treated people inordinately badly?”) & Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, ¶ 46 per Rowe, J. (“Inordinate delay in administrative proceedings ... is contrary to the interests of society. Decisions by administrative decision makers need to be rendered promptly and efficiently. Administrative delay undermines a key purpose for which such decision-making authority was delegated – expeditious and efficient decision-making”). Is it not an abuse of process for the College to wait more than 2.5 years after the patient first contacted the College to issue a notice of hearing and then convene a hearing more than two years after the issuance of a notice of hearing? See D. Jones, Q.C. & A. de Villars, Q.C., Principles of Administrative Law 271-72 (7th ed. 2020) (“The Supreme Court’s decision in Blencoe did not leave much room for the direct application of section 7 of the Charter to the practices and procedures adopted by statutory delegates. However, the case did open the door to the argument that a serious delay may, in rare cares, render administrative proceedings an abuse of process and contrary to the interests of justice and justify the granting of a stay of proceedings”).
[53] Appeal Record 4.
[54] Revised Notice of Hearing and Notice to Attend and Produce dated September 5, 2019, Appeal Record 7-8.
[55] See Morris v. Royal College of Dental Surgeons of Ontario, 127 O.A.C. 282, 283 & 284 (Div. Ct. 1999) per Lane, J. (“The second charge is entirely devoid of particulars apart from confining the act or acts to the year 1997. …. [T]he second charge is quashed for want of particularity”).
[56] If so, has the College in its notice of hearing charged Dr. Jinnah with obstruction of the complaints process? Does a charge that relates to billing and collection practices cover an allegation that Dr. Jinnah obstructed the complaints process?
[57] Hearing Tribunal Decision, Appeal Record 11.
[58] This delay is also troubling. See Veterinary Professions Act, R.S.A. 2000, c. V-2, s. 42(2) (“Within 30 days after the date on which the chair refers a complaint or conduct to the Committee, the Committee shall hold a hearing on the complaint or conduct”) & 42(3) (“The Council may, on the written request of the chair of a review panel, extend the period mentioned in subsection (2) for one or more additional periods, each not exceeding 30 days”).
[59] Hearing Tribunal Decision ¶ 112, Appeal Record 33.
[60] Id. ¶ 113, Appeal Record 34.
[61] Transcript 30:26-31:2& 37:20-22, Appeal Record 131-32 & 138.
[62] Respondent’s Extracts of Key Evidence 35.
[63] Id. 16.
[64] Hearing Tribunal Decision, ¶¶ 115 & 120, Appeal Record 35 & 37.
[65] Id. ¶ 126, Appeal Record 39.
[66] Id. ¶ 130, Appeal Record 39-40.
[67] Id. ¶ 118, Appeal Record 36. See Alberta Dental Association and College, Code of Ethics (October 2007) (“The dentist must be truthful and forthright in all professional matters. This means fully disclosing and not misrepresenting information in dealings with patients, the public at large on dental matters, other professionals, and the Alberta Dental Association and College”).
[68] Id. ¶ 120, Appeal Record 37.
[69] Id. ¶ 126, Appeal Record 39.
[70] Id. ¶ 124, Appeal Record 38-39.
[71] Id.
[72] Id.
[73] Id. ¶ 132, Appeal Record 40.
[74] Hearing Tribunal Decision on Sanctions, Appeal Record 41.
[75] Id. ¶ 50, Appeal Record 55-56.
[76] Id. ¶ 51, Appeal Record 56.
[77] Id. ¶ 55, Appeal Record 56 & 57 (emphasis added).
[78] Respondent’s Extracts of Key Evidence 33.
[79] Id. 53 & 56.
[80] Id.
[81] Hearing Tribunal Decision on Sanctions, ¶ 52, Appeal Record 56.
[82] R.S.A. 2000, c. H-7. See Part V. of this judgment for the text of the provisions.
[83] Appeal Record 9.
[84] Appeal Panel Decision, ¶ 39, Appeal Record 71.
[86] Appeal Panel Decision, ¶¶ 59 & 118, Appeal Record 75 & 87.
[87] Id. ¶¶ 54, 66 & 110, Appeal Record 74, 77 & 87.
[88] Id. ¶¶ 51 & 54, Appeal Record 73 & 74.
[89] Id. ¶¶ 80 & 88, Appeal Record 80 & 81.
[90] Id. ¶¶ 114-16, Appeal Record 86-87.
[91] Id. ¶¶ 146 & 160, Appeal Record 92 & 95.
[92] Id. ¶¶ 145-46, Appeal Record 91-92.
[93] Id. ¶¶ 149-151, Appeal Record 93.
[94] Id. ¶¶ 147-148.
[95] Id. ¶ 157, Appeal Record 94.
[96] Appeal Record 96.
[100] (October 2007). Factum of the Appellant Appendix A.
[101] R.S.A. 2000, c. H-7. See Part V. of this judgment for the full text.
[102] Emphasis added.
[103] The American Heritage Dictionary of the English Language 911 (5th ed. 2016).
[104] 7 Oxford English Dictionary 1066 (2d ed. 1989).
[105] 2002 ABCA 24, ¶ 30; [2002] 5 W.W.R. 221, 230 per Russell, J.A. (emphasis added). See also Yee v. Chartered Professional Accountants of Alberta, 2020 ABCA 98, ¶ 23 per Slatter, J.A. (“The ultimate objective of professional regulation is protection of the public”) & Bishop v. Alberta College of Optometrists, 2009 ABCA 175, ¶¶ 27-30; 96 Admin. L.R. 4th 1, 7-8 (the Court upheld a decision of the College of Optometrists that a regulated member’s billing practice could be a ground of unprofessional conduct).
[106] R.S.A. 2000, c. H-7, s. 1(1)(z), 1(1)(ff) & Sch. 7, s. 3.
[110] Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, 41 per Iacobucci, J. (“The words of an Act are to be read in their entire context”); Estate of Hicklin v. Hicklin, 2019 ABCA 136, ¶ 49; [2019] 6 W.W.R. 238, 255 (“an adjudicator interpreting a ... statute must read the whole ... statute”); Attorney General v. Prince Ernest Augustus of Hanover, [1957] A.C. 436, 463 (H.L.) per Viscount Simonds (“no one should profess to understand any part of a statute ... before he had read the whole of it”); K & S Lake City Freighters Pty. Ltd. v. Gordon & Gotch Ltd., [1985] HCA 48, ¶ 4; 157 C.L.R. 309, 315 per Mason, J. (“to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context”); K Mart Corp. v. Cartier Inc., 486 U.S. 281, 291 (1988) per Kennedy, J. (“In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole”) & Panama Ref. Co. v. Ryan, 293 U.S. 388, 439 (1935) per Cardozo, J. (“the meaning of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in view”). See also A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012) (“Context is a primary determinant of meaning. A legal instrument typically contains many interrelated parts that make up the whole. The entirety of the document thus provides the context for each of its parts”); R. Sullivan, The Construction of Statutes 393 (7th ed. 2022) (“The context of a legislative provision includes both the whole of the Act in which the provision appears and also any related legislation that may cast light on the meaning or effect of the provision”) & D. Pearce, Statutory Interpretation in Australia 136-37 (9th ed. 2019) (“The starting point to the understanding of any document is that it must be read in its entirety. ... It is often tempting to look only at the section that seems immediately applicable to the problem in hand. However, this is as likely to lead to a misconception of the total effect of the provision as is the reading of a passage of a novel out of context”).
[111] See Al-Ghamdi v. College of Physicians and Surgeons of Alberta, 2020 ABCA 71, ¶ 17; 6 Alta. L.R. 7th 42, 51-52, leave to appeal ref’d, [2020] S.C.C.A. No. 272 (“The appellant is correct in arguing that ‘unprofessional conduct’ must be situated within the definition in the Health Professions Act. That definition, however, is cast at a conceptual level; it does not purport to list in detail all acts or omissions that would constitute unprofessional conduct... the reference to harm to the integrity of the profession is intended to be very wide-ranging”) & Zuk v. Alberta Dental Ass’n and College, 2018 ABCA 270, ¶ 125; 426 D.L.R. 4th 496, 534, leave to appeal ref’d, [2018] S.C.C.A. No. 439 (“conduct ‘that harms the integrity of the regulated profession’, should...be read broadly enough to ensure conduct that contravenes ethical standards and professionalism is disciplinable, even if the conduct is not caught under other definitions of ‘unprofessional conduct’”).
[112] The role of a statutory delegate in a structure featuring more than one delegate is determined by the architecture adopted in the enactment creating the structure. This is a question of statutory interpretation. Moffat v. Edmonton Police Service, 2021 ABCA 183, ¶ 128 per Wakeling, J.A. (“A legislature that creates more than one statutory delegate may establish in whatever detail it considers appropriate the role each statutory delegate plays, including the degree of autonomy of the appeal tribunal. For example, the Health Professions Act contains a comprehensive code setting out the precise responsibilities of three statutory delegates – the complaint review committee, the hearing tribunal, and the council of the college – relating to questions of fact, law, and mixed fact and law. In essence, each statutory delegate is authorized to independently determine the facts and answer questions of law and mixed fact and law, as it sees fit. Under this structure, standard of review is not a controversial question”). Other acts adopt a similar structure. See Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561, 590-91 per Beetz, J. (“One should ... expect that ... an appeal [from a university council committee to the senate committee] is more likely to take a form resembling that of a trial de novo than that of a ‘pure’ appeal. There are three main reasons for this. First, nothing in the Act nor in the new by-laws indicates that the council committee's record shall be transferred to the senate committee on an appeal from a council committee decision. Second, university bodies like the Faculty of Social Studies and the council are not courts of records. Such records as they keep ... ordinarily consist of terse minutes, bare resolutions and concise documents. ... The third reason why an ‘appeal’ within a university should not be given a restricted or technical meaning flows from the fact that the members of a university appeal committee are not usually trained in the law. ... [T]hey would be almost irresistibly inclined to ‘re-try’ the case ... . This inclination is so strong that professional appellate courts sometimes find it difficult to resist. It would be more realistic to expect that a body of laymen would abide by technically less strict standards than a professional court of appeal”). Some statutes do not. See Newton v. Criminal Trial Lawyers’ Ass’n, 2010 ABCA 399, ¶ 84; 14 Admin. L.R. 5th 181, 210, per Slatter, J.A. (“The [Law Enforcement Review] Board should proceed primarily from the record created by the hearing before the presiding officer. It should extend deference to the decision of the presiding officer on questions of fact, credibility, and technical policing issues”) & Moffat v. Edmonton Police Service, 2019 ABLERB 29, ¶ 37 (“as the Presiding Officer was the decision maker of first instance, we owe deference to his assessment of each witness’s testimony and credibility”).
[113] Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, ¶ 29 per Rowe, J. (“This case is a statutory appeal pursuant to The Legal Profession Act, 1990. Therefore, the standard of review is correctness for questions of law and palpable and overriding error for questions of fact and of mixed fact and law”) & Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65, ¶ 37; [2019] 4 S.C.R. 653, 703 per Wagner C.J., Moldaver, Gascon, Côté, Brown, Rowe & Martin, JJ. (“where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review ... . Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning the scope of a decision maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen ... . Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable)”).
[114] Appeal Panel Decision, ¶¶ 51 & 54, Appeal Record 73-74.
[115] Respondent’s Extracts of Key Evidence 8.
[116] The patient promised to pay interest on an overdue account and an “administration fee” of 50% of the outstanding account if she failed to pay her account within three months and Dr. Jinnah retained a collection agency to collect the outstanding account. Respondent’s Extracts of Key Evidence 33.
[117] Transcript 45: 20-25, Appeal Record 146 & Respondent’s Extracts of Key Evidence 11.
[118] Respondent’s Extracts of Key Evidence 53 & 56.
[119] Id. 16.
[120] Id. 35.
[121] Id. 16.
[122] Id. 22 & 35.
[123] Id. 33.
[124] Alberta Dental Association and College, Practice Management Manual 64-65 (2003) (“Step 6: Follow up with a final letter as shown in Figure 15. This letter informs the patient of their extreme delinquency and of the action that you plan to take. ... Figure 15: ‘... On the advice of our attorney, we intend to turn this account over for collection unless we have payment in full by ______.’ ... Step 7: Follow up with a collection agency or legal action”) (emphasis omitted).
[125] Transcript 262:23-263:2 (“Ms. Brook [Hearing Tribunal Member]: Ms. Gagnon, [d]oes the College have any standards for collection activities? Now, that may have been mentioned in passing. I just want to make sure that I understand this. Ms. Gagnon [legal counsel for the Alberta Dental Association and College]: No, there are no standards in place for collections”). Appeal Record 363-64.
[126] Hearing Tribunal Decision, ¶¶ 82-83, Appeal Record 28 (“Ms. Gagnon clarified that the Complaints Director does not take issue with a dentist sending an account to collections. However, dentistry is a health care profession, so collection practices must be reviewed in the context of members of the dental profession providing services for a fee and members of the public receiving services from a health care professional on the basis that a professional fee will be recovered. The collection practices of banks and payday loans should not be considered. There are four appropriate collection practices: (1) attempting to internally collect an account (e.g. reminders to a patient, phone calls); (2) starting legal action; (3) sending the account to a collection agency; and (4) writing it off, but only after attempting to collect the amount in accordance with a dentist's obligations under Article B5.1 Dental Plans and Third Party Carriers of the Code of Ethics. The tone of those communications has to be scrutinized, but certainty a dental practice is entitled to take steps to have their accounts paid”).
[127] Id. ¶ 127-28, Appeal Record 39 (“Dentistry is a health care profession and as health care professionals, dentists must not be seen to threaten patients or be confrontational in written communications to patients. ... Dr. Jinnah's written communication to S.M. (Final Notice letter and email of April 22, 2015) used threatening language such that the patient felt bullied, upset, threatened by legal action and threated that her credit rating would be discredited. S.M. also thought she would be responsible for Dr. Jinnah's legal costs and the administration fees. This is not how a patient should be made to feel when they are making inquiries to get more information to have their account balance resolved and there are delays in the patient getting this information. Moreover, the Hearing Tribunal finds that the tone in the written correspondence was not what the Hearing Tribunal, members of the dental profession and members of the public receiving services from a health care professional would expect. As a result of the above, the Hearing Tribunal finds that the collection practices were not acceptable in the circumstance”).
[128] Appeal Panel Decision ¶¶ 79-80, Appeal Record 80 (“It is clear that the Hearing Tribunal did not agree with Mr. Renouf’s description of the Final Notice/Demand letter as ‘professional if not polite.’ In the opinion of the Appeal Panel, it was open to the Hearing Tribunal to conclude that the tone and content of the Final Notice to a patient was unprofessional and this conclusion was not unreasonable in the circumstance”).
[129] Alberta Dental Association and College, Practice Management Manual at 64-65 (2003) (“Sample letter for accounts 61-90 days overdue ‘Dear ______, Your account with this office is seriously overdue. We have contacted you on ______ and ______ by letter and on ______ and ______ by telephone. Each time, you agreed to pay and did not. On the advice of our attorney, we intend to turn this account over for collection unless we have payment in full by ______. Please contact my office immediately at 555-1212 to discuss this matter with our financial secretary. Regards, Dr. _____D.D.S.’”) & Letter from Dr. Jinnah to patient dated April 1, 2015 (“This is your final notice concerning your past due account. Because you have not contacted Smilemakers Dental Centre to discuss options for payment or to set up a payment plan, we must take further action. A great deal of time, effort and cost In attempting to work out arrangements for payment of your account has been invested. At this time, we must, therefore, insist that payment or contact be made immediately to discuss acceptable options available to you if you are having difficulties paying off your balance. Please accept responsibility for this obligation. Smilemakers Dental Centre would prefer not to resort to a professional agency to collect what you owe, however, it is prepared to do so. I know this will damage your credit rating. Please do not force us to take extreme measures to obtain payment. ... This being your final notice, before initiating third party collection procedures please govern yourself accordingly and immediately begin steps to repay your entire outstanding balance. Please call our office immediately to resolve this matter”). Respondent’s Extracts of Key Evidence 13.
[130] Respondent’s Extracts of Key Evidence 16.
[131] We also note that the April 22, 2015 email strongly suggests that Dr. Jinnah had no idea a staff member had spoken with her patient on April 10 and that the patient promised to pay the outstanding account on receipt of the detailed statement of services provided.
[132] Appeal Panel Decision ¶ 110, Appeal Record 85.
[133] This provision was enforced in Central Mortgage and Housing Corp. v. Conaty, 1967 CanLII 517 (AB CA), 61 D.L.R. 2d 97 (Alta. Sup. Ct. App. Div. 1967). See also id. 105 per Allen, J.A. (“I must … hold that in an action against the original mortgagor the mortgagee in this case would have been entitled to add to the amount secured by the mortgage, fair and reasonable legal costs incurred by him as between solicitor and client in exercising or enforcing or attempting to enforce his rights under the mortgage and in connection with collection of mortgage arrears, and it is admitted that the solicitor and client charges involved in this matter were so incurred and are fair and reasonable”) (emphasis added); Canada Deposit Ins. Corp. v. Canadian Commercial Bank, 1989 ABCA 150, ¶ 19; 61 D.L.R. 4th 161, 170 (“Solicitor-client costs … have frequently been ordered in Alberta foreclosure actions, as a matter of course, in accordance with the contract between the parties”); Re Griffith, Jones and Co., 50 L.T.R. 434, 434 (C.A. 1883) (“a mortgagor must pay all the costs of the mortgagee including those payable by the latter to his solicitor”) & Credit Foncier Trust Co. v. Hornigold, 1984 CanLII 1256 (AB KB), 59 A.R. 103, 106; 35 Alta. L.R. 2d 341, 345-36 (Q.B. 1984) (“Contractual provisions entitling the mortgagee to … total indemnification … have been held valid in this jurisdiction and elsewhere”).
[134] Hearing Tribunal Decision, ¶ 52 & Transcript 101:11-15, Appeal Record 22 & 202. The financial agreement contained a 50% upward adjustment. This does not result in a two-fold increase of the outstanding balance.
[135] Elsley v. J.G. Collins Ins. Agencies Ltd., 1978 CanLII 7 (SCC), [1978] 2 S.C.R. 916, 937 (“the power to strike down a penalty clause is a blatant interference with freedom of contract and is designed for the sole purpose of providing relief against oppression for the party having to pay the stipulated sum. It has no place where there is no oppression”). Canadian courts regularly enforce stipulated-consequence-on-breach terms that are not oppressive. E.g., RCAP Leasing Inc. v. Martin, 2016 ABQB 542; 62 B.L.R. 5th 336 (Master) (the Master refused to enforce an administrative fee payable on the lessee’s default in an equipment lease agreement because it was unconscionable and oppressive); City of Edmonton v. Triple Five Corp., 1994 CanLII 9024 (AB KB), 158 A.R. 293 (Q.B. 1994) (the Court enforced a term allowing the City to draw on a letter of credit because the term was not oppressive); Prudential Ins. Co. of America v. Cedar Hills Properties Ltd., 1994 CanLII 1960 (BC CA), [1995] 3 W.W.R. 360, 369-70 (B.C.C.A. 1994) (the Court enforced a $100,000 interest-rate-standby fee in a $6.4 million commercial loan agreement because it was not oppressive); Bankers Mortgage Corp. v. Plaza 500 Hotels Ltd., 2016 BCSC 722; 65 R.P.R. 5th 120, aff’d, 2017 BCCA 66 (the Court enforced a $96,000 exit fee in a loan agreement on the basis that it was not an unenforceable penalty); Volvo Truck Finance Canada Ltd. v. Premier Pacific Holdings Inc., 2002 BCSC 1137; 29 B.L.R. 3d 213 (the Court enforced an interests-escalation-on-default term in a commercial contract because the promissor had not demonstrated that it was oppressive) & Wolfe Chevrolet Oldsmobile Ltd. v. 552234 B.C. Ltd., 2004 BCPC 154; 49 B.L.R. 3d 247 (the Court enforced a term in a vehicle-sale agreement that obliged the purchaser to pay the vendor $5,000 if the purchaser resold the vehicle in the United States).
[136] Capital Steel Inc. v. Chandos Construction Ltd., 2019 ABCA 32, ¶ 106; 438 D.L.R. 4th 195, 241, majority aff’d, 2020 SCC 25, per Wakeling, J.A. This is the test used to identify unenforceable terms in commercial contracts between entities that have sufficient resources to retain counsel. There is no inequality in bargaining power. Courts will seldom conclude that a stipulated-consequence-on-breach term in a commercial contract between parties with sufficient resources to retain counsel is oppressive. Id. at ¶ 108, 438 D.L.R. 4th at 241. “The oppression concept may be engaged more frequently in consumer contracts. A less demanding standard for oppression in consumer contracts – rental-car, parking, credit-card and utility adhesion contracts and perhaps also increasingly online contracts of adhesion, such as Facebook’s ‘terms of use’ – may be appropriate. In these situations a dominant party provides a service or a product to a large number of consumers who are not in a position to extract any concessions from the service or product provider. If the consumer wishes to acquire the services or the product provided by the dominant party, it will be only on the terms stipulated by the dominant party”. Id. at ¶ 109, 438 D.L.R. 4th at 241. It is not accurate to characterize a dentist as the dominant party in the dentist-patient relationship. There are hundreds of dentists who are potential service providers. A patient who does not like the terms one dentist proposes can seek out another service provider. It is safe to say that the oppression concept may not be engaged in cases like this as frequently as in contracts of adhesion.
[137] Uber Technologies Inc. v. Heller, 2020 SCC 16, ¶¶ 66 & 74 per Abella & Rowe, JJ. (“An inequality of bargaining power exists when one party cannot adequately protect their interests in the contracting process. …. A bargain is improvident if it unduly advantages the stronger party or unduly disadvantages the more vulnerable”).
[138] A term may be an “improvident bargain” but not be “so manifestly one-sided and grossly unfair that its enforcement would bring the administration of justice into disrepute”. In other words, it is easier to establish that a term is an “improvident bargain” as opposed to “oppressive” – “so manifestly one-sided and grossly unfair that its administration would bring the administration of justice into disrepute”.
[139] See Capital Steel Inc. v. Chandos Construction Ltd., 2019 ABCA 32, ¶ 110; 438 D.L.R. 4th 195, 241 majority aff’d, 2020 SCC 25, per Wakeling, J.A. (“A promisor that asks to be relieved of a burden that it promised to discharge bears the legal burden of establishing the facts it relies on to support its oppression claim”); Mortgage Makers Inc. v. McKeen, 2009 NBCA 61, ¶ 47; 312 D.L.R. 4th 82, 104 per Robertson, J.A. (“At common law the onus is on the defendant to establish that the clause is not a genuine pre-estimate of damages”) & Robophone Facilities Ltd. v. Blank, [1966] 3 All E.R. 128, 142 (C.A.) per Diplock, L.J. (“The onus of showing that such a stipulation is a ‘penalty clause’ lies on the party who is sued on it”).
[140] Capital Steel Inc. v. Chandos Construction Ltd., 2019 ABCA 32, ¶ 106; 438 D.L.R. 4th 195, 241, majority aff’d, 2020 SCC 25 per Wakeling, J.A.
[141] Transcript 142:27 - 143:1-3; Appeal Record 243-244. Collection agencies, most certainly, will charge customers who use their services infrequently to collect a very small sum a significant portion of any sum ultimately secured.
[142] Uber Technologies Inc. v. Heller, 2020 SCC 16, ¶ 74 per Abella & Rowe, JJ. (“A bargain is improvident if it unduly advantages the stronger party or unduly disadvantages the more vulnerable”).
[143] Id. ¶ 54 (“Unconscionability is an equitable doctrine that is used to set aside ‘unfair agreements [that] resulted from an inequality of bargaining power’”).
[145] Lane v. Registrar of the Supreme Court of New South Wales, [1981] HCA 35, ¶ 10; 148 C.L.R. 245, 258 per Gibbs, C.J. & Mason, Murphy, Wilson & Brennan, JJ. (“An intention to interfere with the administration of justice is not necessary to constitute a contempt; the critical question is whether the act is likely to have that effect, but the intention with which the act was done is relevant and sometimes important”) & Attorney General v. Butterworth, [1963] 1 Q.B. 696, 726 (C.A. 1962) per Donovan, L.J. (“an intention to interfere with the proper administration of justice is not an essential ingredient of the offence of contempt of court. It is enough if the action complained of is inherently likely so to interfere”).
[146] Attorney-General v. Butterworth, [1963] 1 Q.B. 696, 719 (C.A. 1962) per Lord Denning, M.R. (“there can be no greater contempt than to intimidate a witness before he gives his evidence or to victimize him afterwards for having given it. How can we expect a witness to give his evidence freely and frankly, as he ought to do, if he is liable, as soon as the case is over, to be punished for it by those who dislike the evidence he has given?”).
[147] Appeal Panel Decision ¶ 88, Appeal Record 81.
[148] Respondent’s Extracts of Key Evidence 16 (“Any costs incurred in my retaining a lawyer in a situation where it is deemed that the accusations are false or there is any concern of defamation of character will then rest with yourself”). See The Queen v. Kellett, [1976] Q.B. 372, 391 (C.A. 1975) per Stephenson, L.J. (“the exercise of a legal right or the threat of exercising it does not excuse interfering with the administration of justice by deterring a witness from giving the evidence which he wishes to give before he has given it. ... In Shaw v. Shaw, (1862) 6 L.T. 477 the respondent to a divorce suit called on a former servant and threatened her with prosecution for perjury if she gave evidence of his cruelty to his wife. The Judge Ordinary found that the respondent went with the intention of intimidating the servant and preventing her from giving evidence ... . ... [E]ven if the servant’s evidence had been false and the respondent had believed that she might be prosecuted for perjury after giving it, the threatening language he used would ... have been enough to convict him of the attempt”).
[149] Zuk v. Alberta Dental Ass’n and College, 2018 ABCA 270; 426 D.L.R. 4th 496, leave to appeal ref’d, [2018] S.C.C.A. No. 439.
[150] Id. at ¶¶ 161-67; 426 D.L.R. 4th at 540-41.
[151] Health Professions Act, R.S.A. 2000, c. H-7, s. 3(1)(a) (“A college must carry out its activities and govern its regulated members in a manner that protects and serves the public interest”). See Brown v. Alberta Dental Ass’n, 2002 ABCA 24, ¶ 30; 299 A.R. 60, 69 (“The paramount objective of any professional act is the protection of the public, which is achieved through the establishment of a self-regulating profession charged with that responsibility”) & Farooq v. Alberta College of Pharmacists, 2010 ABCA 306, ¶ 46; 499 A.R. 223, 233, leave to appeal ref’d, [2010] S.C.C.A. No. 477 (“The primary purpose of the complaints process is public protection”).
[152] R.S.C. 1985, c C-46. See The Queen v. Pare, 2010 ONCA 563, ¶ 9; 268 O.A.C. 118, 122 per Rosenberg, J.A. (“The gist of the offence [Criminal Code, s. 139(3)(a)] is the use of corrupt means to influence a witness. ... [M]erely attempting by reasoned argument to have a witness tell the truth is not an offence. But attempting to persuade a witness to change their testimony, even to change the testimony to what the witness believes is the truth, is an offence where the means of persuasion is corrupt. Offering money to a complainant in a criminal case to change her testimony is a classic example of corrupt means”). See also 18 U.S.C. § 1512 (a)(2) (“Whoever uses physical force or the threat of physical force against any person, or attempts to do so, with intent to – (A) influence, delay, or prevent the testimony of any person in an official proceeding; ... (C) hinder, delay, or prevent the communication to a law enforcement officer ... information relating to the commission or possible commission of a Federal offence or a violation of conditions of probation, supervised release, parole, or release pending judicial proceedings ... shall be punished as provided in paragraph (3)”); Cal. Penal Code § 136.1 (b) (“Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is a witness to a crime from doing any of the following is guilty of a public offence and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: ... (2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof”); Criminal Justice and Public Order Act 1994, c. 33, s. 51(1) (U.K) (“A person commits an offence if – (a) he does an act which intimidates, and is intended to intimidate, another person (“the victim”), (b) he does the act knowing or believing that the victim is assisting in the investigation of an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence, and (c) he does it intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with”); Crimes Act 1900, No. 40, s. 315A(1) (New South Wales) (“A person who threatens to do or cause, or who does or causes, any injury or detriment to any other person intending to influence any person not to bring material information about an indictable offence to the attention of a police officer or other appropriate authority is liable to imprisonment for 7 years”) & Crimes Act 1961, No. 43, s. 117(a) (New Zealand) (“Corrupting juries and witnesses: Every one is liable to imprisonment for a term not exceeding 7 years who ... dissuades or attempts to dissuade a person, by threats, bribes, or other corrupt means, from giving evidence in any cause or matter (whether civil or criminal, and whether tried or to be tried in New Zealand or in an overseas jurisdiction”).
[153] R.S.C. 1985, c L-2. See also Labour Relations Code, R.S.A. 2000, c. L-1, s. 149(1) (“No employer ... shall ... refuse to employ or to continue to employ any person or discriminate against any person in regard to employment or any term or condition of employment because the person ... (vi) has made an application or filed a complaint under this Act”).
[155] R. Perkins, Criminal Law and Procedure 960 (4th ed. 1972) (“nothing could be more absurd than to suggest as a common sense conclusion, based on ordinary experience, that everyone knows all of the law”).
[157] The King v. Ross, 1944 CanLII 241 (BC SC), 84 C.C.C. 107, 110 (B.C. County Ct. 1944) (the Court allowed a conviction appeal by a hunter convicted of hunting in an area closed for hunting because an unpublished ministerial closure order was enacted while the hunter was in the closed area for the purpose of hunting: “I think it hardly compatible with justice that a person may be convicted and penalized, and perhaps lose his personal liberty …, for the violation of an order of which he had no knowledge or notice at any material time”). See G. Williams, Textbook of Criminal Law 452 (2d ed. 1983) (“What is the reason for the rule [that ignorance of the law is no excuse?] … [T]he orthodox answers are two. 1. The difficulty of proving that the defendant knew the law. 2. The risk that such a defence would make it advantageous for people to refrain deliberately from acquiring knowledge of their legal duties”).
[158] The King v. Bailey, 168 Eng. Rep. 651, 653 (Cr. Cas. Res. 1800) (the Court recommended a pardon for a sea captain convicted of an offence created by legislation while he was sailing near the African coast).
[159] G. Williams, Textbook of Criminal Law 405 (1978).
[160] “Ignorance and Mistake in the Criminal Law”, 22 Harv. L. Rev. 75, 76 (1908).
[162] 1972 CanLII 1395 (AB KB), 10 C.C.C. 2d 26, 35-36 (Alta. Dist. Ct. 1972). This problem not infrequently arose when British values conflicted with the values of those whose lands were absorbed into the British Empire and subject to British laws. E.g., The King v. Mukasa, 11 E.A.C.A. 114, 115 (1944) per Sir John Gray, C.J. (the Court substantially reduced the penalties imposed on herders who had killed suspected foodstuff thieves because the community considered this justifiable: “The appellants are natives of Buganda … . [P]rior to the advent of British rule the killing of persons caught stealing food crops was held by the Buganda to be justifiable homicide. … [W]hilst the severe beating … cannot be justified and cannot be allowed to go unpunished, we are of the opinion that … the sentences are excessive”) & The King v. Chima, 10 W.A.C.A. 223 (1944) (the Court acquitted a woman who killed her twins because she believed, as did other community members, that twins were the product of the union of the mother and evil spirits).
[163] The Queen v. Johnson (No. 1), 1972 CanLII 203 (AB KB), 6 C.C.C. 2d 462 (Alta. Sup. Ct. Tr. Div. 1972), rev’d, 1972 ALTASCAD 46 (CanLII), 8 C.C.C. 2d 1, rev’d, 1973 CanLII 198 (SCC), [1975] 2 S.C.R. 160.
[164] The Queen v. Johnson, 1972 ALTASCAD 46 (CanLII), 8 C.C.C. 2d 1 (Alta. Sup. Ct. App. Div. 1972), rev’d, 1973 CanLII 198 (SCC), [1975] 2 S.C.R. 160.
[166] Appeal Panel Decision, ¶¶ 49-51, Appeal Record 93.
[167] Id. ¶ 157, Appeal Record 94.
[168] Appellant’s Factum, ¶ 109.
[169] Alsaadi v. Alberta College of Pharmacy, 2021 ABCA 313, ¶ 16; 463 D.L.R. 4th 335, 348 per Watson & Slatter, JJ.A. (“Sanctions in professional disciplinary matters involve mixed questions of fact and law and engage the professional judgment of the governing bodies, and they are therefore reviewed for reasonableness. ... Decisions on the costs of hearings are also reviewed for reasonableness”) & K.C. v. College of Physical Therapists of Alberta, 1999 ABCA 253, ¶ 94; [1999] 12 W.W.R. 339, 369 (“Costs awards of disciplinary bodies are subject to judicial review on a standard of reasonableness”).
[170] Health Professions Act, R.S.A. 2000, c. H-7, ss. 82(1)(j) & 89(6). See Part V. of this judgment for the text of the provisions.
[171] Id. s. 82(1)(j). Legislation regulating health professions in British Columbia, Saskatchewan, Manitoba, Ontario, New Brunswick, Prince Edward Island, Nova Scotia, Newfoundland, Northwest Territories and Nunavut also allows costs awards against a disciplined professional to partially indemnify the regulatory body. Health Professions Act, R.S.B.C. 1996, c. 183, ss. 39(4)-(8); The Medical Profession Act, 1981, S.S. 1980-81, c. M-10.1, ss. 45(12)(g) & 54(1)(i); The Regulated Health Professions Act, C.C.S.M. c. R117, ss. 104(4) & 127(1)(a); Regulated Health Professions Act, S.O. 1991, c. 18, ss. 53 &53.1; New Brunswick Dental Act, 1985, S.N.B. 1985, c. 73, s. 48(1); Regulated Health Professions Act, R.S.P.E.I. 1988, c. R-10.1, s. 58(2)(g); Discipline Regulations, N.S. Reg. 3/2002, s. 29(1)(i) under Dental Act, S.N.S. 1992, c. 3; Health Professions Act, S.N.L. 2010, c. H-1.02, ss. 42(1)(e) & 43(2)(a) & (e) & Dental Profession Act, R.S.N.W.T. 1988, c. 33 (Supp), s. 64(2). However, unlike Alberta’s Health Professions Act which does not confer jurisdiction to award costs to a professional who successfully defends allegations, British Columbia’s, Ontario’s and Newfoundland’s legislation allows a professional to recover costs from the disciplinary body if no professional misconduct is found. See Health Professions Act, R.S.B.C. 1996, c. 183, ss. 39(4)-(8); Regulated Health Professions Act, S.O. 1991, c. 18, ss. 53 &53.1 & Health Professions Act, S.N.L. 2010, c. H-1.02, s. 43(2)(a). British Columbia’s College goes further and, as empowered under statute, prepared a tariff under which costs can range between $200 - $400 for investigations and $9,300 - $31,350 for hearings, depending on which items are applicable. Health Professions Act, R.S.B.C. 1996, c. 183, s. 19(1)(v.1) & (w.1) & Bylaws of the British Columbia College of Oral Health Professionals (September 1, 2022), Schedules I & H. The Northwest Territories, Nunavut and New Brunswick also allow the regulatory body to order a complainant to pay its costs where the complaint was unwarranted or an abuse of process. The former two jurisdictions limit to $2,000 the security for costs that a complainant may be required to pay and that could later be used towards costs. Dental Profession Act, R.S.N.W.T. 1988, c. 33 (Supp), s. 51; Dental Profession Regulations, R.R.N.W.T. 1990, c. 4 (Supp), s. 12 & New Brunswick Dental Act, 1985, S.N.B. 1985, c. 73, s. 48(1).
[172] K.C. v. College of Physical Therapists of Alberta, 1999 ABCA 253, ¶ 94; [1999] 12 W.W.R. 339, 369.
[173] Health Professions Act, R.S.A. 2000, c. H-7, ss. 82(1)(j), 89(6). See Part V. of this judgment for the text of the provisions.
[174] K.C. v. College of Physical Therapists of Alberta, 1999 ABCA 253, ¶ 94; [1999] 12 W.W.R. 339, 369 (“Costs are not a penalty, and should not be awarded on that basis”).
[175] Health Professions Act, R.S.A. 2000, c. H-7, ss. 82(1)(k) & 158. See Part V. of this judgment for the text of the provisions.
[176] K.C. v. College of Physical Therapists of Alberta, 1999 ABCA 253, ¶ 94; [1999] 12 W.W.R. 339, 369.
[177] Alsaadi v. Alberta College of Pharmacy, 2021 ABCA 313, ¶ 119; 463 D.L.R. 4th 335, 375 per Khullar, J. (concurring), citing H.L. v. Canada, 2005 SCC 24, ¶ 88, [2005] 1 S.C.R. 401, 431.
[178] 1999 ABCA 253, ¶ 94; [1999] 12 W.W.R. 339, 369.
[179] 2021 ABCA 313; 463 D.L.R. 4th 335.
[180] Id. at ¶ 108; 463 D.L.R. 4th at 373 (“The costs situation under HPA is unique. It is not like civil litigation where the successful party is presumptively entitled to costs ... . It is not like criminal law where, generally speaking, no costs are awarded and the state bears the cost for the investigation and the hearing, even when the state is successful. Rather, the HPA creates a scheme where only the professional is liable to pay costs, only the College can recover costs, and the quantum is potentially very high”). See Pillar Resource Services Inc. v. PrimeWest Energy Inc., 2017 ABCA 19; 96 C.P.C. 7th 1, per Wakeling, J.A. (concurring) for an overview of costs in the civil litigation context. For example, the prospect of a costs award on a full-indemnity basis may not discourage civil litigants with a defensible legal position given the rarity of such substantial awards. Id. at ¶¶ 113-15; 96 C.P.C. 7th at 46. However, it may have a much stronger deterrent effect on investigated professionals because the costs are often more severe than the sanctions imposed on the professional. See Alsaadi v. Alberta College of Pharmacy, 2021 ABCA 313, ¶ 114; 463 D.L.R. 4th 335, 374 per Khullar, J. (concurring).
[181] Alsaadi v. Alberta College of Pharmacy, 2021 ABCA 313, ¶ 120; 463 D.L.R. 4th 335, 375-76 per Khullar, J. (concurring).
[182] Humphreys v. Trebilcock, 2017 ABCA 116, ¶ 162; [2017] 7 W.W.R. 343, 394, leave to appeal ref’d, [2017] S.C.C.A. No. 228 (“the motions court failed to ask the right questions in the correct order. The failure to adopt this strategy unnecessarily increases the risk that the decision maker will overlook an important consideration and arrive at an unsound conclusion”); Estate of Rogers v. Commissioner of Internal Revenue, 320 U.S. 410, 413 per Frankfurter J. (“In law also the right answer usually depends on putting the right question”); Alberta Union of Provincial Employees v. Alberta, 2019 ABCA 411, ¶ 105; 440 D.L.R. 4th 245, 282 per Wakeling, J.A. (“The likelihood that an adjudicator will select the best solution to a legal problem increases significantly if the adjudicator poses the right questions in the correct order”) & Lederman, “The Balanced Interpretation of the Federal Distribution of Legislative Powers in Canada” in The Future of Canadian Federalism 107 (P.A. Crepeau & C. MacPherson ed. 1965) (“If you can frame the right questions and put them in the right order, you are half way to the answers”).
[183] College of Physicians & Surgeons Alberta v. Ali, 2017 ABCA 442, ¶ 110; 67 Alta L.R. 6th 16, 46, leave to appeal ref’d, [2018] S.C.C.A. No. 433 per Slatter, J.A., dissenting. See also Tan v. Alberta Veterinary Medical Ass’n, 2022 ABCA 221, ¶ 42 (“Professions in Alberta are extended the privilege of self-regulation. With that comes the responsibility to supervise and, when necessary, discipline members. The disciplinary process must necessarily involve costs, and any professional regulator must accept some of those costs as an inevitable consequence of self-regulation. It is acceptable for the profession to attempt to recover some of those costs from disciplined members, but some burden of the costs of regulation is unavoidable and a proper consequence of the regulator’s mandate”).
[184] E.g., Goldsmith v. National Bank of Canada, 2015 ONSC 4581, ¶ 8 per Belobaba, J. (“the legal profession continues to enjoy protection from market forces”) & Ontario Ass’n of Architects v. Ass’n of Architectural Technologists of Ontario, 2002 FCA 218, ¶ 69; 215 D.LR. 4th 550, 572, leave to appeal ref’d, [2002] S.C.C.A. No. 316 per Evans J.A. (“I would also agree with the Applications Judge that the fact the activities of the AATO may also benefit its members is not a fatal objection to characterizing them as benefiting the public. The mix of public and private benefit tends to be a feature of professional self-regulation, even when, as in the case of the legal profession for example, a statutory body regulates the practice of the profession and a non-statutory body acts as its advocate. Both perform functions (professional education, for example) that serve the interests of the public as citizens and clients, as well as those of members of the profession)”. See Adams “Health professional regulation in historical context: Canada, the USA and the UK (19th century to present)” 18 Human Resources for Health 1, 4 (2020).
[185] See 3 Royal Commission Inquiry into Civil Rights 1183 (J. McRuer Commissioner 1968) (“There are three groups with an interest in the efficacy and fairness of disciplinary proceedings of self-governing bodies. They are: (1) The public, whose benefit and protection are the primary objectives of the whole process; (2) Members of the self-governing body, who are or may be subjected to discipline; and (3) The profession or occupation itself, which has a general interest in ensuring the maintenance of high standards of professional or occupational conduct”).
[186] Shulakewych v. Alberta Ass’n of Architects, 1997 ABCA 157, ¶ 6; 196 A.R. 312, 314 (“We think it would be grossly unfair to leave the costs of the successful prosecution on the shoulders of the general membership of the Association”); Hoff v. Alberta Pharmaceutical Ass’n, 1994 CanLII 8950 (AB KB), 18 Alta. L.R. 3d 387, 395 (Q.B. 1994) (“As a member of the pharmacy profession the appellant enjoys many privileges. One of them is being part of a self-governing profession. Proceedings like this must be conducted by the respondent association as being part of its public mandate to assure to the public competent and ethical pharmacists. Its costs in so doing may properly be borne by the member whose conduct is at issue and has been found wanting. Appellant’s request for cancellation or reduction [of costs likely to be in excess of $27,000] is accordingly refused”) & Chuang v. Royal College of Dental Surgeons of Ontario, 2006 CanLII 19433 (ON SCDC), 211 O.A.C. 281, 284 (Div. Ct. 2006), leave to appeal refused, 2006 CarswellOnt 8677 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 482 (“The members of the Royal College of Dental Surgeons should not be liable for the costs of guilty members”).
[187] In our experience, regulators do not impose costs or a significant costs award on a regulated member unless there is a compelling reason to do so. This may be attributable to the fact that the objectives of the regulation process are to edify the member, to vindicate professional boundaries and to reengage the member with the profession’s standards. The practical realities may be different for each regulated profession. See Vavilov v. Canada, 2019 SCC 69, ¶90 (“The approach to reasonableness review that we articulate in these reasons accounts for the diversity of administrative decision making by recognizing that what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review. These contextual constraints dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt”).
[188] See Essa v. Ass’n of Professional Engineers and Geoscientists of Alberta, 2021 ABCA 116, ¶ 22; 22 Alta. L.R. 7th 239, 245 (“A costs award requires consideration of many factors, including the outcome of the hearing, the reasons the complaint arose, the financial burden on the regulator and the professional, and the way the defence was conducted”).
[189] See Vavilov v. Canada, 2019 SCC 65, ¶ 90 (“The approach to reasonableness review that we articulate in these reasons accounts for the diversity of administrative decision making by recognizing that what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review. These contextual constraints dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt”).
[190] R.S.A. 2000, c. H-7, Part 10.
[191] Alsaadi v. Alberta College of Pharmacy, 2021 ABCA 313, ¶ 64; 463 D.L.R. 4th 335, 362 per Watson & Slatter, JJ.A. (“The sanctity of private healthcare information is obviously an important consideration. Healthcare professionals who have access to that information have a duty not to misuse it or access it unless medically necessary. However, the appellant's conduct did not involve any risk of harm to any patient, did not demonstrate any lack of pharmaceutical skill, did not involve sexual misconduct or fraud, and did not involve any misuse of drugs. The appellant did not profit or gain from his conduct”).
[192] Clokie v. Royal College of Dental Surgeons of Ontario, 2017 ONSC 2773, ¶ 3 (Div. Ct.) (the Court upheld the College’s decision to revoke the license of a dentist who had sexual intercourse with a patient).
[193] Piros v. Newfoundland Dental Board, 1993 CanLII 8279 (NL SC), 363 A.P.R. 73, 79-91 (Nfld. Sup. Ct. Tr. Div. 1993) (the Dental Board imposed a three-month suspension and other conditions on a dentist who defrauded the insurer by billing for services never performed).
[194] Tan v. Alberta Veterinary Ass’n, 2022 ABCA 221 (a veterinarian performed an unnecessary operation on a dog – he had not conducted the necessary presurgical tests).
[195] See Chuang v. Royal College of Dental Surgeons, 2006 CanLII 19433 (ON SCDC), 211 O.A.C. 281 (Div. Ct. 2006) & 2006 CanLII 63739 (ON SCDC), 216 O.A.C. 207, 208 (Div. Ct. 2006) (the College’s Discipline Committee revoked Dr. Chuang’s license after finding him guilty of fifteen acts of professional misconduct that the Divisional Court described as “outrageous” and ordered him to pay $250,000 of the $400,000 in costs incurred to investigate and hear the charges; the Court reduced the costs award to $200,000 on the ground that the $250,000 costs order was “unduly high”).
[196] Our review of the College’s 2019, 2020 and 2021 annual reports demonstrates that in this period the number of new complaints as a ratio of the number of regulated dentists is less than five percent. Alberta Dental Association and College, Annual Report 2019, at 12 & 18 (2020), Alberta Dental Association and College, Annual Report 2020, at 13 & 22 (2021) & Alberta Dental Association and College, Annual Report 2021, at 17 & 22 (2022). For example, in 2020 there were 2,930 regulated dentists and 119 new complaints filed. The ratio of complaints to regulated dentists is four percent. Out of the 281 complaints before the college that year – of which 162 carried over from previous years – ten complaints and dentists were referred to a hearing, and 141 complaints were closed. This suggests that a large proportion of complaints are resolved without any finding that the dentist has committed unprofessional conduct.
[197] Alberta Dental Association and College Bylaws, s. 19.7 (January 1, 2022) (“In the event that an investigated member is found by a Hearing Tribunal to have engaged in unprofessional conduct, then a summary of the Hearing Tribunal’s decision shall be published in the newsletter of the Alberta Dental Association and College and on the Alberta Dental Association and College’s websites. The summary shall include the name of the investigated member”).
[198] There are thirty-three penalty decisions finding unprofessional conduct available on the webpage between 2017 and 2022. Of these, we count eight decisions issued in 2020 and eleven in 2021. https://www.cdsab.ca/patients-general-public-protection/solving-a-concern/hearing-tribunal-decision-summaries/.
[199] Of the 35 dentists with respect to whom the College published unprofessional conduct decisions between 2017 and 2022, we count only two that were the subject of more than one such determination in separate decisions – Dr. Jinnah and another dentist.
[200] See Al-Ghamdi v. College of Physicians and Surgeons of Alberta, 2020 ABCA 71, ¶ 47;6 Alta. L.R. 7th 42, 59, leave to appeal ref’d, [2020] S.C.C.A. No. 272 (“The appellant was largely responsible for the complexity of the proceedings. The appellant commenced 14 pre-hearing applications for various kinds of relief. The 47 days of hearing generated 10,039 pages of transcript. Counsel for the College estimates that 10 days would have been required to put in its case, but that the proceedings were lengthened by excessive, repetitive and irrelevant cross-examination by the appellant. The appellant called 50 witnesses, and attempted to call even more. Many of the witnesses he called had nothing of substance to add to the record, and did not assist his case. Ordering the appellant to pay costs proportionate to the number of particulars that were proven was likely generous to the appellant”) & Law Society of Ontario v. Khan, 2021 ONLSTA 7, ¶ 12 (“The Lawyer’s conduct of the appeal and numerous motions brought all of which were without merit, unnecessarily complicated the appeal”).
[201] Most people tend to be better stewards of their own money than that of others. See Tan v. Alberta Veterinary Medical Ass’n, 2022 ABCA 221, ¶ 43 (“Leaving some of the burden of the costs of disciplinary proceedings on the professional regulator helps to ensure that discipline proceedings are commenced, investigated, and conducted in a proportional … [manner], with due regard to the expenses being incurred”) & A. Roberts, George III The Life and Reign of Britain’s Most Misunderstood Monarch 179 (2021) (“[Lord] North had been a Lord of the Treasury from 1759 to1765, and was considered to be a good financier (except with regard to his own money, his management of which was a disaster)”).
[202] Id. ¶ 44 (“the regulator must always ascertain whether perceived shortcomings in the profession are serious enough to justify the expense of disciplinary proceedings”).
[203] 2 J. Casey, The Regulation of Professions in Canada 14-18 (looseleaf release no. 2021-4 June 2021) (“An award of costs can have a devastating impact on an individual with the financial hardship arising from the award of costs often being greater than the imposition of the discipline”).
[204] Alsaadi v. Alberta College of Pharmacy, 2021 ABCA 313, ¶ 29; 463 D.L.R. 4th 335, 352 per Watson & Slatter, JJ.A. (“A member charged with professional misconduct is entitled to a fair opportunity to make full answer and defence to the charges”).
[205] Tan v. Alberta Veterinary Medical Ass’n, 2022 ABCA 221, ¶ 45. See also Alsaadi v. Alberta College of Pharmacy, 2021 ABCA 313, ¶ 115; 463 D.L.R. 4th 335, 375 per Khullar, J.A. (“A reasonable opportunity to defend oneself can become hollow if the spectre of paying exorbitant costs creates a disincentive to do so”).
[206] Most complaints are about the care the patient received. In 2019 roughly 94% of the 139 new complaints, in 2020 roughly 99% of the 119 new complaints, and in 2021 roughly 94% of the new complaints, this was the case. In this three-year period only 11 complaints alleged sexual misconduct. Alberta Dental Association and College, Annual Report 2019, at 18 (2020), Alberta Dental Association and College, Annual Report 2020, at 19 (2021) & Alberta Dental Association and College, Annual Report 2021, at 22 (2022).
[207] Alsaadi v. Alberta College of Pharmacy, 2021 ABCA 313, ¶ 103; 463 D.L.R. 4th 335, 372 per Khullar, J.A. (“costs can only be awarded one way ‒ against a professional who has been found guilty of unprofessional conduct. There is no jurisdiction for a hearing tribunal to award costs to a professional who successfully defends allegations”) (emphasis in original).
[208] Id. at ¶ 108; 463 D.L.R. 4th at 373 (“The costs situation under ... [the Health Professions Act] is unique. It is not like civil litigation where the successful party is presumptively entitled to costs, whoever that is. It is not like criminal law where, generally speaking, no costs are awarded and the state bears the cost for the investigation and the hearing, even when the state is successful. Rather, the ... [Health Professions Act] creates a scheme where only the professional is liable to pay costs, only the College can recover costs, and the quantum is potentially very high”).
[209] The Queen v. Beaudry, 2007 SCC 5, ¶ 37; [2007] 1 S.C.R. 190, 208 per Charron, J. (“Applying the letter of the law to the practical, real‑life situations faced by police officers in performing their everyday duties requires that certain adjustments be made. Although these adjustments may sometimes appear to deviate from the letter of the law, they are crucial and are part of the very essence of the proper administration of the criminal justice system … . The ability – indeed the duty – to use one’s judgment to adapt the process of law enforcement to individual circumstances and to the real-life demands of justice is in fact the basis of police discretion”).
[210] The College’s 2022 fee structure obliged a member to pay a practice permit fee of either $5,050 or $5,550 depending on when the payment was made. Alberta Dental Assoc. and College 2022 Fee Structure available at https://www.cdsab.ca/becoming-a-dentist/. See also Alsaadi v. Alberta College of Pharmacy, 2021 ABCA 313, ¶ 115; 463 D.L.R. 4th 335, 375 per Khullar, J.A. (“A reasonable opportunity to defend oneself can become hollow if the spectre of paying exorbitant costs creates a disincentive to do so”).
[211] Alberta Dental Association and College, Annual Report 2020, at 31 (2020) & Alberta Dental Association and College, Annual Report 2021, at 35 (2021).
[212] Alberta Dental Association and College, Annual Report 2021, at 22 (2021).
[213] https://cdsab.ca/patients-general-public-protection/solving-a-concern/hearing-tribunal-decision-summaries.
[214] The tribunal ordered the dentist to pay 50% of the costs in four decisions, 75% in four decisions, 80% in one decision, all of the costs in one decision, and $20,000 towards costs in the remaining decision. Id.
[215] Alberta Dental Association and College, Annual Report 2021, at 35 (2021).
[216] Alberta Teachers’ Ass’n v. Buffalo Trail Public Schools Regional Division No. 28, 2022 ABCA 13, ¶ 36 per Wakeling, J.A. (“Judges should strive to simplify the law whenever possible and not, without good reason, complicate it”).
[217] Health Professions Act, R.S.A 2000, c. H-7, ss. 55(a.)-(b). See also Alberta Dental Association and College, Annual Report 2021, at 21 (2021) (“Where formal complaints are made to the ADA&C, dentists and complainants are encouraged by the Complaints Director, or with the assistance of the Complaints Director, to work together to resolve the complaint”).
[218] Wright v. College and Ass’n of Registered Nurses of Alberta, 2012 ABCA 267, ¶ 75; 355 D.L.R. 4th 197, 235, leave to appeal ref’d, [2012] S.C.C.A. No. 486 per Slatter, J.A. (a costs decision under the Heath Professions Act must be “justifiable, transparent and intelligible”).
[219] Of the 33 published decisions finding unprofessional conduct, the hearing tribunal ordered costs in all of them, ranging from 50 to 100% of investigation and hearing costs (with 72% on average) and from $5,000 to $671,359.21 (with $74,479 on average). This does not include appeal costs.
[220] The hearing tribunal imposed a $50,000 costs order because Dr. Jinnah refused to admit any of the alleged conduct. Hearing costs were in excess of $70,000. Hearing Tribunal Decision, ¶¶ 65-67, Appeal Record 58-59. We note, however, that the tribunal has ordered costs even when the dentist admitted the charges. See, for example, Dr. Bleau (admitted guilt, ordered to pay $20,000), Dr. Buyn (admitted the charges but contested sanction, ordered to pay all of the costs), Dr. Cao (admitted charges, ordered to pay 75% of costs being $24,896.93), Dr. Chaaban (admitted charges, ordered to pay 50% of costs being $12,500). The appeal panel reduced the hearing costs award by 25% on the basis that the evidence of one of the witnesses in relation to the interest rate was “unnecessary and irrelevant” and “extended the length and the cost of the hearing”.
[221] Appeal Panel Decision, ¶¶ 149-151, Appeal Record 93.
[222] Appeal Panel Decision, ¶¶ 152-157, Appeal Record 93-94.
[223] K.C. v. College of Physical Therapists of Alberta, 1999 ABCA 253, ¶ 94; [1999] 12 W.W.R. 339, 369.
[224] The fact that her attempt at resolution was unsuccessful and was viewed as an escalation is not an indication that she intended to be uncooperative. See Hearing Tribunal Decision, ¶ 75, Appeal Record 27.
[225] The College’s website lists three decisions involving Dr. Jinnah: the matter before this court – the decision “in the matter of M.S” in which the hearing tribunal found unprofessional conduct on November 10, 2020; the decision “in the matter of C.D.” in which the hearing tribunal found unprofessional conduct on December 17, 2021, where Dr. Jinnah admitted that she did to ensure “information regarding fees, interest and billing is provided to patients in a clear and transparent manner”); and one “in the matter of M.K.” for which a decision is pending following an appeal to the council, for which no file is linked or date provided.
[227] Id.
[228] See, for example, Alberta Dental Association and College, Guide for Members about Complaints Processing 5 (“In an investigation, the dentist’s response will be forwarded to the complainant who will be provided an opportunity to respond to the letter of response. ... In any response letter it is important to consider the tone of the letter and the avoidance of threatening to sue or personally attacking the complainant. The tone in the response letter can have a significant impression on the patient and their future responses in an investigation. As a regulated professional, your professional obligations include responding to a complaint”). https://www.cdsab.ca/patients-general-public-protection/solving-a-concern/hearing-tribunal-decision-summaries/understanding-the-complaints-process/.
[229] Hearing Tribunal Decision, ¶ 132, Appeal Record 40.
[230] Appeal Panel Decision, ¶ 126 (“The Appeal Panel agrees with Mr. Renouf that ... the ADA&C has not provided explicit rules regarding many aspects of billing practices”), Appeal Record 88. Alberta Dental Association and College, Code of Ethics (October 2007).
[231] Alberta Dental Association and College, Practice Management Manual 1 (2003) (“This publication of the Alberta Dental Association and College is intended to provide general background information on practice management issues and financial arrangements in a dental practice. It does not constitute policy or recommendations of the Alberta Dental Association and College”). See also Chapters 7 (Communicating Financial Policies to Patients) and 8 (Collecting Patient Revenues), including sample letters and a stepped process to collect overdue accounts.
[232] Alberta Dental Association and College, Patient Communication Guide 7 (“While there are a multitude of patient needs – six basic needs stand out: ... 6 Information The patient wants to know about fees and services but in a pertinent and time-sensitive manner”).
[233] Alberta Dental Association and College, Patient Communication Guide 5 (“Open dialogue with patients results in better patient retention and a reduction in complaints. It is estimated that 70% of the complaints received at the ADA&C could have been resolved through better communication between dentist and patient and never evolved into written complaints”).
[235] Revised Notice of Hearing, ¶ 1, Appeal Record 7. Hearing Tribunal Decision, ¶ 133, Appeal Record 40. Appeal Panel Decision, ¶ 164(a), Appeal Record 95.
[236] Health Professions Act, R.S.A. 2000, c. H-7, s. 92(c) (“The Court of Appeal on hearing an appeal may ... refer the matter back to the council for further consideration in accordance with any direction of the Court”).
[237] Id. s. 92(d) (“The Court of Appeal on hearing an appeal may ... where the appellant is the investigated person, if the appeal is wholly or partly successful, direct that all or part of the cost of preparation of the record referred to in section 91 be repaid by the college to the appellant or be applied to reduce the amount of penalties or costs otherwise payable to the college by the appellant”).