The appeal of the College of Hearing Aid Practitioners of Alberta (the “College”) from the decision of the Health Disciplines Board (the “Board”) reversing a decision of the College Conduct and Competency Committee (the “Committee”) regarding the conduct of a member (“Zieniewicz”) was dismissed. The Court of Appeal found that the Committee failed to properly consider all evidence at the hearing of Zieniewicz and that the Board properly applied the standard of review in reversing the Committee’s decision.

27. January 2004 0

Administrative law – Decisions of administrative tribunals – College of Hearing Aid Practitioners – Disciplinary proceedings – Evidence – Professional misconduct or conduct unbecoming – Supervision of trainee – Delegated supervision – Judicial review – Standard of review – Reasonableness simpliciter – Correctness

College of Hearing Aid Practitioners of Alberta (Council of) v. Zieniewicz, [2003] A.J. No. 1435, Alberta Court of Appeal, November 26, 2003, Picard and Ritter JJ.A. and Lee J. (ad hoc)

Zieniewicz was a member of the College of Hearing Aid Practitioners of Alberta. The College is responsible for regulating hearing aid practitioners. An allegation was made that Zieniewicz allowed a trainee to perform the work of a hearing aid practitioner without supervision, contrary to the bylaws of the College. Article 6.8.2 of the bylaws provides that the supervising hearing aid practitioner “shall at all times be available and in close proximity to the trainee for the purpose of consultation and assistance” until such time as the trainee has met certain qualifications. In an Admission of Facts dated September 11, 2001, Zieniewicz acknowledged that she was the trainee’s supervising hearing aid practitioner and that the trainee had performed a hearing test on a patient at the patient’s home. Zieniewicz was not present for this test and the nearest registered member of the Association was at another office of her clinic.

A hearing was held pursuant to s. 33 of the Health Disciplines Act, R.S.A. 2000, c. H-2. Zieniewicz testified that she had attended at her father’s funeral in another province on the relevant date and had asked another registered practitioner to supervise the trainee while she was away. Both the trainee and the other practitioner agreed in their testimony that this was the arrangement. The Committee concluded that Zieniewicz was guilty of unskilled practice and professional misconduct and required her to pay a fine of $2,500 and costs of $22,508.57. The Committee decision was based primarily upon Zieniewicz’s admission of facts. Zieniewicz appealed the Committee decision to the Board, which allowed the appeal. The Board found that Zieniewicz had made adequate arrangements for the supervision of the trainee. The College appealed the decision of the Board on the ground that it applied an incorrect standard of review to the decision of the Committee.

The Court of Appeal noted that the question to be decided was the appropriate standard of review to be used by one administrative tribunal on the review of the decision of another administrative tribunal. The court held that the standards of review are the same as the three outlined in Dr. Q v. College of Physicians and Surgeons of British Columbia (2003), 223 D.L.R. (4th) 599 (S.C.C.), being correctness, reasonableness simpliciter and patent unreasonableness. The court indicated that the correct standard of review of an administrative decision is determined using the pragmatic and functional approach and the four contextual factors set out in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. The court reviewed the relevant provisions of the Act and found that there was a statutory right of appeal from the Committee to the Board and no privative clause in relation to the Committee’s decision. An examination of the Committee and Board’s respective level of expertise was not found conclusive in ascertaining the proper standard of review as between those two bodies. Similarly, a consideration of the purposes of the Health Disciplines Act was also inconclusive.

The Court of Appeal reviewed the Committee decision and found that, even if the appropriate standard of review was reasonableness simpliciter, the Board had been entitled to reach the conclusion it did based upon the fact that the Committee decision only considered, or placed inappropriate reliance on, the admission of facts signed by Zieniewicz and not the full testimony given at the hearing. The Committee neglected to address the delegated supervision, or its appropriateness, which were central to the question of whether Zieniewicz was guilty of unskilled practice and professional misconduct. In the result, the court held that it was unnecessary to determine which of the two proposed standards of review the Board should have applied to the Committee decision and upheld the decision of the Board. The appeal of the College was dismissed.

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