The Court dismissed an appeal from a decision of the Health Disciplines Board, which had overturned a decision of the Acupuncture Committee. The Committee had found the Respondent guilty of professional misconduct and unskilled practice, following a complaint that the Respondent had made false allegations of sexual harassment against a fellow acupuncturist and made false allegations of improprieties in relation to acupuncture examinations against another acupuncturist. The Court upheld the Board’s finding that the Committee had failed to find justification or rationale for its conclusions.

Administrative law – Decisions of administrative tribunals – Acupuncture Committee – Acupuncturists – Professional misconduct / conduct unbecoming – Public interest – Judicial review – Failure to provide reasons – Compliance with legislation – Standard of review – Reasonableness simpliciter

Yu v. Wanglin, [2009] A.J. No. 453, 2009 ABCA 166, Alberta Court of Appeal, April 30, 2009, M.S. Paperny, P.W.L. Martin and F.F. Slatter JJ.A.

The Respondent was an acupuncturist and had been the subject of a complaint to the Acupuncture Committee that she had made false allegations of sexual harassment against a fellow acupuncturist and made false allegations of improprieties in relation to acupuncture examinations against another acupuncturist.

The case before the Committee was argued on the basis that the allegations against the Respondent constituted lack of judgment in the practice of acupuncture under Section 41(1)(c) of the Health Disciplines Act, R.S.A. 2000, c.H-2. The ultimate question was whether, if proven, the allegations constituted conduct that was detrimental to the best interests of the public (s. 41(1)(a)). The Committee found the Respondent conducted herself “in detriment to the best interest of the public, professional misconduct, and displays a lack of judgment in the discipline of Acupuncture”. The Respondent was held responsible for hearing costs of $10,000, to be paid within one month subject to suspension of her acupuncture licence pending full payment. She was also required to attend a continuing education course on the Alberta standards of practice for acupuncture, if and when a course was offered.

The Respondent appealed the Committee’s decision, pursuant to s. 48 of the Act, to the Health Disciplines Board, alleging errors in fact and law, irrelevant considerations, failing to make findings of fact and failure to provide reasons for its conclusions. The Board held that the Committee’s reasons provided neither justification nor rationale to support how the impugned actions were dishonest or malicious, detrimental to the best interests of the public, or constituted professional misconduct. The Committee appealed the Board’s decision, and argued that it had erred in the application of the standard of reasons it required of the Committee. Alternatively, it argued that the Board’s decision to quash rather than return the matter to the Committee for further reasons was unreasonable.

The Court first considered the appropriate standard of review, the possible standards being reasonableness and correctness. The Court must first ascertain whether the jurisprudence has already satisfactorily determined the degree of deference to be accorded to the decision-maker with regard to this particular category of questions. If not, then the Court must identify the proper standard of review by analysing relevant contextual factors. The Court noted that while there were similarities with existing jurisprudence, the case law had not specifically dealt with decisions of this nature from this body. Accordingly, a standard of review analysis was warranted.

The appropriate standard of review to be applied by the Court to the Board’s decision largely depended on how the issue was framed. Here, the question was most properly characterized as follows: did the reasons given provide an appropriate foundation for the decisions made, given the allegations properly before the Committee and the evidence tendered? While the Board may have limited expertise on purely legal questions, it is nevertheless charged with conducting appeals from several health disciplines regarding professional misconduct and is accordingly obliged to consider whether the decision appealed from and the reasons given withstand scrutiny in the context of these types of allegations. Despite the Board’s narrow characterization of the issue, a review of the record suggested that the scope of the appeal was broader than the adequacy of the reasons. The Board had decided that the record and the reasons taken together did not support the conclusion reached by the Committee that the conduct complained of the matter to professional misconduct or conduct detrimental to the public interest. As such, the standard of review of the Board’s decision was reasonableness.

Applying this standard to the Board’s decision, the Court agreed that the Committee had not explained the basis for its findings, nor did it analyse how the evidence related to the grounds in s. 41(1) of the Act. The Committee simply recited the language of parts of s. 41(1)(a) and (c) as one collective ground. This was insufficient. The Board had reasonably found that the Committee failed to provide justification or rationale for its conclusions and for that reason quashed the Committee’s findings.

While false and unsubstantiated allegations can have an adverse effect on the public interest and amount to professional misconduct, the mere finding of an allegation having been made against a fellow member does not necessarily amount to professional misconduct. Relevant considerations include the intention of the person making the allegation, the nature of the allegation, the person or body to whom the allegation is made, the outcome of any investigation and the surrounding circumstances. The Committee here failed to consider the context of the allegations.

As to the appropriate remedy, the Court noted that, generally speaking, the remedy for inadequate reasons is not to quash the charges, but rather to call for better reasons or to direct a new hearing. The basis of the Board’s decision, however, was that the facts as found by the Committee did not support the charges. Although it would have been appropriate for the Board to be more clear as to the basis for its decision to quash rather than to remit the matter to the Committee, its decision was reasonable given the state of the record. In the result, the Court declined to interfere with the Board’s decision.

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