Can a hearing tribunal permit a complaints director to add new allegations to a notice of hearing during a hearing? As the Alberta Court of Appeal recently clarified in Alsaadi v Alberta College of Pharmacy, 2021 ABCA 313 (Alsaadi), in most cases, the answer will be “no”.
Background
In Alsaadi, the Alberta College of Pharmacy (the College) received a complaint of unauthorized access to medical records by the regulated pharmacist (the Complaint). The College commenced an investigation and the matter was sent to a hearing.
During the middle of the hearing, the Complaints Director applied to add “further particulars” of Count 7, which alleged a failure to cooperate and to be honest during the investigation, to the Notice of Hearing. The Hearing Tribunal granted the request, a decision upheld by the Panel of Council of the College. The regulated member appealed.
Analysis
A Notice of Hearing can be amended, even at the hearing, but regard must be had to the effect it has on the entire process and, in particular, taking into account the fairness to the member subject to discipline. Correcting clerical errors or details in the Notice of Hearing is one thing, but adding entirely new allegations will seldom be appropriate.
The Complaint Director’s request to amend the Notice of Hearing was granted on the basis that the addition was authorized by Section 79(3) of the Health Professions Act, RSA 2000, c H-7 (HPA) which reads:
73(3) The hearing tribunal may hear evidence on any other matter that arises in the course of a hearing, but the hearing tribunal must give the investigated person notice of its intention to hear the evidence and on the request of the investigated person must grant an adjournment before hearing the evidence.
The Court noted that it is a rule of professional discipline hearings that a professional cannot be found guilty of any misconduct other than that specifically set out within the four corners of the Notice of Hearing. Section 79(3) of the HPA is a qualification to this rule which recognizes that evidence of events other than those forming the basis of the charges can be relevant to the charges that are included within the four corners of the notice of hearing.
Writing in obiter, the Court noted that this exception was not intended to allow the addition of new allegations in the middle of a hearing. Unfortunately, in resolving the appeal, the Court determined it was not necessary to decide whether Section 79(3) permits adding new allegations once the hearing has commenced, stating: “[e]ven if possible, adding entirely new allegations in the middle of the hearing is generally undesirable and inappropriate and can easily become unfair to the member being charged, particularly when the new allegations are unrelated to the previous particulars.” The Court further emphasized that even if further particulars of existing allegations can be added to a Notice of Hearing, that should only be done with caution if the hearing has already commenced.
In this matter, the Court determined that it was unreasonable for the Hearing Tribunal to allow the Complaints Director to add the new allegations, which were different in character from the existing ones and arose from the self-represented appellant’s presentation of his defence. As such, the Court allowed the appeal.
Takeaways
There is a fine line between adding particulars to an existing complaint vs bringing forward an entirely new complaint. It is a fundamental principle of the professional discipline process that a member charged with professional misconduct is entitled to a fair opportunity to make full answer and defence to the charges. Where an amendment ventures into the realm of an entirely new complaint, it is unlikely to be appropriate.
For more information about professional negligence actions in Alberta or Canada, please contact Katherine I. Martin or another member of Dentons’ professional Liability group.
