The Appellant family physician appealed the Respondent College’s disciplinary decision. The College’s decision was upheld except with respect to the penalty imposed against him.

Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Physicians and surgeons – Disciplinary proceedings – Competence – Penalties and suspensions – Judicial review – Investigations – Delay – Bias – Procedural requirements and fairness – Evidence – Standard of proof

Wachtler v. College of Physicians and Surgeons of Alberta, [2009] A.J. No. 347, Alberta Court of Appeal, April 2, 2009, C.M. Conrad and K.G. Ritter JJ.A. and G.A. Verville J. (ad hoc)

The Appellant, Dr. Wachtler, is a family physician who practiced in a drop-in clinic. In April and May 2001, the Respondent College received complaints regarding the Appellant’s conduct in respect of three separate patients.

There was a delay until February 2003 (21 months later) before the College notified the Appellant of the complaints and obtained the Appellant’s patient files to assess the complaints.

An Investigating Committee hearing was held in May 2005 at which time the Appellant objected to the expertise of the College’s expert witness. The Appellant also argued reasonable apprehension of bias in respect of an Investigating Committee member because that member had previously worked with the College’s expert witness.  The member did recuse himself and, as a result, the Investigating Committee needed to be re-convened at a later date. At the re-hearing, the College introduced a second expert witness and the Appellant unsuccessfully objected to the admission of that evidence.

The Investigating Committee held that 12 of the 17 allegations against the Appellant were proven and recommended a variety of penalties including a suspension, continuing education, and certain reviews of his practice. The Appellant appealed to the Council of the College and the Council rejected the procedural motions advanced by the Appellant. For instance, the Council found that the 21-month delay was not a breach of procedural fairness. The Council upheld 15 of the 17 findings of the Inquiry Committee and imposed the penalty recommended by the Investigating Committee.

The Appellant sought judicial review of the Council’s decision and alleged that the Council had erred in rejecting his procedural motions, upholding the Inquiry Committee’s decision on the merits, and failing to adequately consider the mitigating factors that indicated a lesser penalty.

The Court rejected the Appellant’s argument relating to the use of a second expert. It is often expected that a hearing will not be completed once it commences. At the re-hearing, all parties may present evidence including evidence that they may not have presented had the first hearing continued to its conclusion.

The Appellant’s allegation of unreasonable delay was also rejected. The time period from the complaint to the conclusion was 53 months. The Court found that 12 months was an expected time for investigation. Of the other 41 months of time, the College was responsible for 34 months and the Appellant for 7 months. The Appellant argued that he would have been more credible if the hearing was conducted earlier. The Court rejected this submission because some of the damaging findings were based on his chart entries and not on his oral evidence. The Appellant also argued that he suffered personal hardship (anxiety and stress) because of the delay. The Court found there was some prejudice to the Appellant but there was insufficient prejudice to justify a stay of proceedings being granted. One of the key factors in the Court’s decision was that the Appellant was not aware of the existence of the delay for the initial 21 months.

The Court rejected the argument that the College applied the wrong standard of proof because the balance of probabilities standard was explicitly referred to in the Investigating Committee’s reasons.

The Court accepted the Appellant’s argument about the penalty imposed by the Council. The Council’s penalty determination was unreasonable because it failed to adequately take into account the delay already experienced by the Appellant. In order to avoid further delays, the Court decided the appropriate penalty rather than sending the penalty determination back to the Council.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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