A dentist registered in British Columbia who attempted judicial review of a decision of the Alberta Dental Association and College refusing his registration as a dentist in Alberta, was unsuccessful

24. March 2015 0

Administrative law – Decisions of administrative tribunals – College of Dental Surgeons – Dentists – Governance – Licence to practice – Jurisdiction – Judicial review – Compliance with legislation – Standard of review – Correctness – Reasonableness simpliciter

Lum v. Council of the Alberta Dental Association and College, Review Panel, [2015] A.J. No. 19 , 2015 ABQB 12 , Alberta Court of Queen’s Bench, January 7, 2015, R.A. Graesser J

Dr. Lum practised dentistry in British Columbia, as a registered member of the College of Dental Surgeons of British Columbia from 1999 until 2011. In September 2011, Dr. Lum applied for registration to the Alberta Dental Association and College (“ADAC”). He provided letters of reference attesting to his good character and reputation and signed a consent for release of additional information permitting the ADAC to obtain information from the College of Dental Surgeons of British Columbia.

When the BC College provided the certificate of standing regarding Dr. Lum, it was accompanied by an 11-page report summarizing 22 complaints against Dr. Lum made between August 2001 and December 2011. Two of the reports remained outstanding at the time that the certificate of standing was provided. In addition, the British Columbia College had entered into Memoranda of Agreement and Understanding with Dr. Lum producing an informal resolution to some of the complaints against him. Because none of the complaints resulted in an adverse finding against Dr. Lum or even in the issuance of a citation against him, Dr. Lum felt that he was of good character.

However, the Alberta College registrar denied his application in March of 2012. Dr. Lum appealed to the Review Panel of the ADAC arguing that the registrar’s decision should be overturned but the Review Panel found that the registrar’s decision was reasonable and entitled to deference and dismissed his internal appeal. Dr. Lum then sought judicial review of the Review Panel’s decision.

On standard of review, Dr. Lum argued that the standard of review of the Review Panel decision should be correctness. He contended that since the Alberta legislation contained no privative clause and the Review Panel had little expertise, and the question of whether he was of good character and reputation was a question of law of general importance, the less deferential correctness standard ought to apply.

The court disagreed, finding that the standard of review by the Review Panel for registration decisions of the registrar should be reasonableness, since the registrar’s role is to hear and make decisions in all registration applications, including making fact findings and exercising discretionary powers as to the nature and volume of information needed to make an assessment of good character and reputation.

The court then moved on to characterize the question of whether an applicant is of “good character and reputation” as a question of mixed fact and law. This case did not raise any constitutional issues or pure questions of law, and there were no jurisdictional issues between competing tribunals. There were no true questions of jurisdiction or vires. Therefore, the Review Panel was correct in determining that it should give deference to the registrar on registration decisions. It was correct in its determination that the appropriate standard of review was one of reasonableness.

With respect to the court’s standard of review to be applied to the Review Panel’s decision, Dr. Lum argued that the correctness standard should once again be selected. However, the court cited the Supreme Court of Canada decision in Zenner v. Prince Edward Island College of Optometrists, 2005 SCC 77 which applied the reasonableness standard to the review of registration decisions. The court did not consider that the case was exceptional such that it should fall outside the application of Zenner. Thus, a reasonableness standard should apply to the question of whether the Review Panel appropriately reviewed the question of his good character and reputation.

However, Dr. Lum also argued that the Review Panel was without expertise to interpret or apply the Trade, Investment and Labour Mobility Agreement (“TILMA”) between Alberta and British Columbia which, in Dr. Lum’s submission, required recognition of his British Columbia dentistry licence in Alberta.

The TILMA argument was raised for the first time on judicial review. The court acceded to Dr. Lum’s arguments regarding the standard of review to be applied on the TILMA question. The issue was whether and to what extent the Review Panel should interpret and apply the Alberta Health Professions Act and the Alberta regulations in the context of TILMA.  The court characterized this as an extricable question of law, and one outside the experience or expertise of the Review Panel. It is also a question of general importance to the legal system, since TILMA is of general application to all regulated trades and professions, and the application of TILMA to out of province applications for registration is important in this broad sense. Thus, the court agreed that the Review Panel’s interpretation of TILMA and its application to Dr. Lum’s registration issues ought to be reviewed on a correctness standard.

The court then turned to the question of whether the registrar’s decision regarding Dr. Lum’s character and reputation should be upheld on a reasonableness standard. The court held that the Review Panel applied the correct standard of review and appropriately assessed the reasonableness of the registrar’s decision, and upheld that decision as holding the necessary details, transparency and justification to conclude that Dr. Lum had not shown evidence of good character sufficient to ground his registration in Alberta.

Dr. Lum argued that the Review Panel failed to give appropriate weight to his reference letters. The court held that re-weighing the evidence is not the role of the Review Panel. Although there was evidence of good character and reputation provided by Dr. Lum, there was also a significant complaint history. The registrar was the person best positioned to understand the significance of his more than 20 complaints over a six year period. The reasons given by the Review Panel for upholding the registrar’s assessment of good character and reputation were intelligible and justified.

Even if the registrar had mischaracterized the nature of the complaints and the timing of any remedial education by Dr. Lum, that would not be enough to make his decision unreasonable. Informal counselling could fairly be characterized as remedial education. Even though correctness is not the applicable standard of review, there are compelling arguments to find that the registrar was correct in his assessment regarding good character.

On the question of the application of TILMA, Dr. Lum agreed that TILMA would not preclude consideration of good character by a professional regulatory body in assessing a registration application. However, Dr. Lum argued that TILMA affected the legal standard by which good character and reputation should be assessed. He contended that the bar should be lower when TILMA applies to an applicant who is already registered in another jurisdiction.

The court rejected his argument that there should be a reverse onus about the assessment of good character and reputation where an application was made by a registered worker from another TILMA jurisdiction. Dr. Lum suggested that the applicant would not have to satisfy the requirement of establishing good character and reputation, but rather the College receiving the application would have to disprove that component, if the person was already registered in a TILMA jurisdiction.

The court held that TILMA, since it post-dated the Alberta Health Professions Act and its regulations, could not have the effect of amending prior legislation. The existing legislation should be interpreted in a manner consistent with the agreement, but that is not mandatory.

TILMA contemplates that there is still room for governing bodies to consider issues relating to public safety and consumer protection. Assuring minimal qualifications for dentists practising in Alberta is the primary responsibility of the ADAC, and the consideration of public safety is important.  It is appropriate for a regulatory body to consider the reputation of the profession or occupation as a whole, even for a TILMA applicant. The registrar was not entitled to rely upon an evaluation of another regulatory body, even if the other body was in British Columbia or Saskatchewan.

Dr. Lum’s application was dismissed.

To stay current with the new case law and emerging legal issues in this area, subscribe here.