In Fawcett v College of Physicians and Surgeons of Alberta (Complaint Review Committee), 2022 ABCA 416 (Fawcett) and Tan v Alberta Veterinary Medical Association, 2022 ABCA 413 (Tan), the Alberta Court of Appeal highlighted the importance of timing when seeking a stay in relation to the administrative processes of professional regulatory tribunals.
The well-known test for a stay pending appeal turns on the following factors:
(1) There must be a serious issue to be tried;
(2) The applicant must suffer irreparable harm if the application is refused; and
(3) The balance of convenience favours granting the stay.[1]
Fawcett
In Fawcett, the Court dealt with an application to stay a decision of the Complaint Review Committee (CRC) of the College of Physicians and Surgeons of Alberta (the College) pending appeal. The interim decision directed the College’s Complaints Director to investigate a claim of unprofessional conduct against Dr. Fawcett, a psychiatrist. After this investigation, the CRC would determine whether the matter warranted a hearing.[2]
Fawcett argued that she met all three elements of the test for a stay pending appeal because (1) the judicial review application was not premature and the CRC’s decision was unreasonable; (2) the additional stress, mental harm and inconvenience constituted irreparable harm; and (3) the conduct forming the complaint occurred eight years prior.[3]
As the interim decision directed the Complaints Director to conduct or direct an investigation to determine whether the matter warranted a hearing, Justice Feehan characterized the appeal as likely premature.[4] His Lordship cited judicial concern for litigation by instalment grounded in premature applications for judicial review, a practice that is strongly discouraged unless rare and exceptional circumstances are present.[5]
Regarding irreparable harm, the Court determined that Dr. Fawcett failed to provide sufficient evidence of the inconvenience, stress, or mental harm flowing from an additional investigation. Equally important, Dr. Fawcett remained a licenced, practicing psychiatrist, and the administrative process was devoid of any determination to bring her claims outside the speculative and hypothetical. At most, Dr. Fawcett could only demonstrate administrative inconvenience, which did not, without more, constitute irreparable harm.[6]
In considering the balance of convenience, Justice Feehan noted that granting a stay would delay or prevent the College from fulfilling its legislative mandate. By protecting the College’s ability to discharge its regulatory duties, avoiding litigation by instalment, and recognizing the self-regulating nature of the medical profession, the balance of convenience weighed against granting the stay,[7] and Dr. Fawcett’s application for a stay pending appeal was dismissed.
Tan
In Tan, the Court addressed an application to stay a judgment imposed by the Hearing Tribunal of the Alberta Veterinary Medical Association (Association), and affirmed by the Association’s Council regarding four separate allegations made against a veterinarian, Dr. Tan.
The allegations against Dr. Tan involved communications and discharge instructions, and breaching a previous order given by the Association that restricted Dr. Tan’s practice.[8] Dr. Tan received a five-part sanction that included a reprimand, a one-month suspension, a CA$5,000 fine, 20% of the investigation and hearing costs and publication of the order on a “with names” basis.[9] Unlike Fawcett, there was a fully concluded administrative process under the Veterinary Profession Act, RSA 2000, c V-2 (VPA).
From Dr. Tan’s perspective, the suspension and publication created obvious financial implications but, more importantly, triggered reputational effects.[10] Justice Watson reasoned that client questions about Dr. Tan’s absences would require an honest response in light of professional obligations. Consequently, real reputational consequences existed, which, in turn, constituted irreparable harm.[11]
Since the suspension was for one month, and it was unclear whether the suspension period had to start immediately, Justice Watson found that the balance of convenience weighed in favour of Dr. Tan. Justice Watson accordingly granted the application to stay the suspension and publication pending a decision on the merits of the appeal.
Conclusion
Taken together, both cases underscore the importance of exhausting administrative processes envisaged by the applicable legislation. In Fawcett, the investigation was early in the administrative process and there was no finality, thus rendering the application premature. Tan involved an order from the Hearing Tribunal confirmed by the Council, providing finality through the VPA’s legislated complaint process.
Although the first part of the tripartite test generally represents a low bar, demonstrating irreparable harm and balance of convenience remain significant hurdles, especially in the context of premature applications. Dr. Fawcett remained practicing amidst the investigation and could only proffer speculative evidence of harm, while Dr. Tan faced a significant suspension with identifiable financial implications. Ensuring professional regulatory tribunals can properly discharge their legislative functions will almost always sway the balance of convenience against granting a stay.
For more information, please contact Christy Lee, Kate Millar or another member of Dentons’ professional Liability group.
[1] RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311, 334, 111 DLR (4th) 385 [RJR-MacDonald].
[2] Fawcett v College of Physicians and Surgeons of Alberta (Complaint Review Committee), 2022 ABCA 416 at paras 1, 15, 18 [Fawcett].
[3] Fawcett, supra note 1 at paras 9-11.
[5] RJR-MacDonald; see also Santoro v Bank of Montreal, 2018 ABCA 264 at para 4; see also Knelsen Sand & Gravel Ltd v Harco Enterprises Ltd, 2021 ABCA 362 at para 53.
[6] Fawcett, supra note 1 at para 22.
[7] Ibid at paras 25-27.
[8] Tan v Alberta Veterinary Medical Association, 2022 ABCA 413 at para 1.
[9] Ibid at para 4.
[10] Ibid at para 5.
[11] Ibid at paras 6, 12.
