The applicant physician sought to quash a decision of the respondent College to proceed to a disciplinary hearing and to prohibit such a hearing when allegedly, the respondent’s decision not to proceed to hearing allowed by the governing statute had already been made. The applicant argued that the statutory power had been exhausted and there is no statutory authority to review or reconsider that decision. The court held that there was never an unconditional and final direction by the investigation chair that no further action be taken, and dismissed the application.

Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Judicial review – Statutory powers – Investigations – Hearings

Ferrari v. College of Physicians and Surgeons of Alberta, [2008] A.J. No. 262, Alberta’s Court of Queens Bench, March 10, 2008, Foster, J.

A complaint was made to the respondent College regarding alleged unprofessional conduct on behalf of the applicant physician. The College began a preliminary investigation to which the applicant provided a written response. After some correspondence and meetings between the applicant and the respondent, the assistant registrar of the College directed that the file could be closed without a hearing if the applicant agreed to attend a “professional boundaries” course. The applicant wrote to the respondent enquiring whether an on-line course could be taken rather than having to attend an out-of-province course. The respondent advised that an on-line course was not acceptable. The applicant repeated the request for an on-line course and the respondents advised again that this was not acceptable and that the investigation file would be closed prior to attending the course if the applicant signed an undertaking that he would complete the course within six months. The applicant then wrote to the respondent asking the College to reconsider the request that he attend the boundaries course. The respondent advised that the request to reconsider the need for the boundaries course demonstrated a lack of appreciation and insight by the applicant regarding his conduct and that the matter would be proceeding back to the Investigation Chair for direction. The Investigation Chair directed that the complaint be sent to hearing.

The court reviewed the statutory framework and relevant case law and determined that a direction of the Investigation Chair is not a final adjudication and does not attract the principle functus officio. The court further held that although there was ongoing negotiation as to what could be agreed in terms of resolution, no agreement was reached. Specifically, there was never an unconditional and final direction by the Investigation Chair that no further action be taken. Had such a final direction been made, the College was required to notify the complainant of the outcome of that complaint and the complainant would be advised of a right to appeal. No such notification had occurred. The court held that the applicant confused the decisions during the investigative phase with those dealing with the final adjudication. In the result, the application was dismissed.

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