A doctor’s petition for judicial review of the College’s rejection of his application for independent registration was dismissed. While the first of the two College assessments of the doctor was more favourable than the second, it was made clear that the first assessment was an interim one and the second was final, so the College was entitled to rely upon the findings of the second assessment over the first

18. September 2018 0

Administrative law – Decisions reviewed – College of Physicians and Surgeons – Professions – Physicians and surgeons – Judicial review – Compliance with legislation – Procedural requirements and fairness – Standard of review – Correctness – Reasonableness

Alfahem v. College of Physicians & Surgeons of Alberta, [2018] A.J. No. 869, 2018 ABQB 539, Alberta Court of Queen’s Bench, July 13, 2018, R.A. Graesser J.

Dr. A moved to Alberta after practising as a family doctor in Libya. He applied to the College of Physicians and Surgeons of Alberta for independent practice registration. He had an interim assessment conducted by one assessor selected by the College, who felt that one of his eight “sentinel habits” was unsatisfactory. All eight habits needed to be satisfactory in order to pass the assessment. The College registrar appointed a new assessor to complete the remainder of the assessment, which was the final assessment, in order to “ensure fairness and improve the quality of the assessment.”

The second assessor deemed Dr. A to be satisfactory in regards to the one habit previously at issue, but unsatisfactory in two of the other habits, meaning he failed the assessment. Dr. A pointed out the inconsistency between the two assessors’ findings and suggested that the second assessment be deemed invalid, and that he be afforded an opportunity to redo it. The College refused Dr. A’s application for independent practice registration. Dr. A appealed the decision to the Appeals Committee, who dismissed the appeal. The Committee found the registrar’s decision was reasonable based on her review of both assessment reports.

On his application for judicial review, Dr. A argued, in part, that the registrar denied him procedural fairness because she failed to provide adequate reasons for her decision, including why she gave more weight to the second assessor’s findings than the first assessor’s, whose findings were more favourable. He also argued that the decision was unreasonable. The court found the registrar’s reasons could be inferred from the Record, including that she wanted a second opinion as she was concerned about the first assessor’s objectivity, and that she did not have to choose between the findings of the two assessors. She was entitled to rely on the second assessment over the first one, as it was the final one. Before dismissing the application, the court noted it was somewhat tempting to conclude that a further assessment could be done if Dr. A was prepared to pay for it, but “that would disrespect the assessment process, the ‘two strikes’ principle that applies to all applicants, and the judicial review process itself.”

This case was digested by Kara Hill, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Kara Hill at khill@harpergrey.com.

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