Administrative law – Decisions of administrative tribunals – College of Optometrists – Optometrists – Disciplinary proceedings – Billing matters – Penalties and suspensions – Judicial review – Compliance with legislation – Standard of review – Reasonableness simpliciter – Costs
Bishop v. Alberta College of Optometrists,  A.J. No. 486, 2009 ABCA 175, Alberta Court of Appeal, May 7, 2009, C.A. Fraser C.J.A., J.E.J. Côté and P.T. Costigan JJ.A.
The Appellant was an optometrist who had been investigated by the Respondent College with respect to his billing practice for two different eye tests. The Respondent billed and instructed his associates to bill for a more comprehensive and lucrative test every time they did a simpler test on a patient using the assistance of a computer. This was in contravention of guidelines from the College instructing optometrists on the manner in which the two different eye tests should be billed. The Appellant claimed that he had been instructed to bill in this manner by a representative of the College.
The College reviewed the Appellant’s billing practices and ultimately charged him with billing for the more comprehensive test when the simpler test was performed, and requiring optometrists working under his direction to bill in the same manner. A hearing tribunal concluded that he was guilty of unprofessional conduct. The tribunal did not accept the Appellant’s arguments regarding the interpretation of the fee codes and found that the Appellant understood the distinction between the codes. It rejected his contention that a representative of the College instructed him to bill in the manner he did and found there was a significant financial incentive for the Appellant to adopt, and direct his associates to adopt, the impugned billing practice. The hearing tribunal ordered that a reprimand be permanently placed in the Appellant’s file at the College and that he be fined a total of $8,750, along with the costs of the investigation and the hearing.
The Appellant appealed the hearing tribunals’ decision to the Council. A Council panel upheld the hearing tribunal’s decision in its entirety. It found the tribunal’s reprimand order to be fair and reasonable and the fines imposed by the tribunal to be reasonable. The Council increased the awards against the Appellant to $75,227.41, to include the costs of the appeal.
On appeal to the Court, the Appellant argued that the Council erred in finding that he misinterpreted the fee agreement, concluding that his conduct constituted unprofessional conduct under the Health Professions Act, and imposing inappropriate penalties on him.
The Court first considered the applicable standard of review. The jurisprudence had not determined the degree of deference attributable to the questions at issue in this appeal, and it was therefore necessary to conduct a contextual standard of review analysis. Considering the nature of the questions on appeal, along with the role and expertise of the Council, the standard of review applicable to each ground of appeal was reasonableness.
Considering first the finding that the Appellant had misinterpreted the agreement and billed using the wrong code, the Court found that the Council was entitled to accept the expert evidence on which it relied (that the optometry profession accepted the distinction between the billing codes in question) and reject the expert evidence led by the Appellant. Based on the evidence before it, the Council’s conclusion that the Appellant misinterpreted the agreement was reasonable.
The Court also found that it was open to the Council to find unprofessional conduct on the facts of the case. The evidence did not suggest that the Appellant was confused by the two fee codes. It was of no consequence that there was no complaint against the Appellant. The Health Professions Act does not make investigation, hearing or appeal proceedings conditional on the College receiving a complaint about an optometrist. The College provides the disciplinary oversight. Moreover, there is nothing in the Act that would suggest being forthcoming with the College, or admitting the alleged conduct, creates a bar to a finding of unprofessional conduct. In the result, the Council’s conclusion that the Appellant was guilty of unprofessional conduct was reasonable.
Finally, on the issue of penalty, the Court found that, given the financial gain associated with the impugned billing practice and the opportunity the Appellant had to seek direction from the College, the penalties imposed on him were not unreasonable. The Court also rejected the submission that the Appellant was being penalized twice, since he was clearly responsible for the billing practice of his associates and their failure to utilize the appropriate billing code was separate and distinct from his own failure. Moreover, the Council had jurisdiction to make a full costs order and there was no need to provide specific reasons for doing so.
In the result, the appeal was dismissed.
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