Adding new charges to a notice of hearing inconsistent with due process: Alberta Court of Appeal

Alberta’s Court of Appeal has ruled that adding additional charges to a notice of hearing for acts done in the same hearing is inconsistent with due process, and that the penalties of professional misconduct should be proportionate and reasonable.

In Alsaadi v Alberta College of Pharmacy, 2021 ABCA 313, a newly admitted pharmacist was charged by a Hearing Tribunal of the Alberta College of Pharmacy for misusing his access to medical records in Netcare, the Alberta Health Services electronic database. During the investigation, the appellant attempted to contact patients of these records to make it appear that the access was consensual. When presented during the hearing, this act was characterized as a failure to cooperate and was added as “further particulars” of the existing complaint to notice of hearing. He was found guilty of professional misconduct.

The Court of Appeal ruled that while the Health Professions Act, RSA 2000, c. H-7 does not preclude the amending of the notice of hearing, the addition of the failure to cooperate during hearing had brought forward an entirely new complaint, bypassing certain provisions of the Act. While the added allegations may have been further instances of non-cooperation, they were different in character from the particulars originally given, said Justice Jack Watson, the author of this decision.

“Obviously, misleading the tribunal, giving false evidence, or failing to be frank are unacceptable. … However, turning the rejection of the appellant’s defence into further disciplinary charges in the same hearing, based on a ‘breach of an ethical duty of honesty’ arising out of that very same hearing, is inconsistent with Canadian concepts of fairness and due process,” said Justice Watson.

As to the penalty, the Tribunal imposed a three-year suspension, the two $10,000 fines, a restriction on practice and the maximum cost of $120,000. It justified the sanction, saying it was intended to be sever and punitive, reflecting the seriousness of the conduct.

The severity of the appellant’s sanction was disproportionate to  the conduct, said the Court. While denunciation and deterrence are legitimate factors in setting a sanction, the ultimate sanction must be measured, proportionate, and reasonable. The Court reduced the penalties to a suspension of six months, fine of $100, a requirement of indirect supervision for 500 hours and costs of the hearing at $100,000.