The court emphasized that overturning its precedents is not taken lightly
The Alberta Court of Appeal granted the College of Dental Surgeons of Alberta permission to argue for reconsideration of a decision that mandates regulatory bodies bear full disciplinary proceeding costs.
The decision in question is Jinnah v Alberta Dental Association and College, 2022 ABCA 336, which established a presumption that regulatory bodies should bear the full costs of disciplinary proceedings unless there is a compelling reason otherwise.
Dr. Shouresh Charkhandeh, challenged a decision by the appeal panel of the College of Dental Surgeons of Alberta regarding his unprofessional conduct, and the appeal panel itself took no position on this application. The College of Dental Surgeons contends that the Jinnah decision contradicts the established approach to costs in disciplinary proceedings, as outlined in KC v College of Physical Therapists of Alberta, 1999 ABCA 253. This previous approach emphasized judicial discretion, considering factors such as the charges' seriousness, the parties' conduct, and the reasonableness of the costs rather than defaulting to full indemnity costs.
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The Court of Appeal highlighted that overturning its precedents is not taken lightly. Factors from R v Arcand, 2010 ABCA 363, guide this process, including the precedent's recency, any disapproval by other courts, obvious flaws, and whether it overlooked binding statutes or authorities.
The Jinnah decision, dated October 13, 2022, is relatively recent and has not created settled expectations in the jurisdiction. However, it has not been consistently followed, as noted in cases like Dr. Ignacio Tan III v Alberta Veterinary Medical Association, 2024 ABCA 94, and Rashid v Alberta (Securities Commission), 2023 ABCA 53. The Court's reconsideration procedure was not properly followed in creating the Jinnah precedent warranting reconsideration.
Given these factors, the Alberta Court of Appeal found that the applicant demonstrated a proper basis for permission to argue that Jinnah should be reconsidered. The application was granted, allowing for the possibility of a change in how costs in disciplinary proceedings are handled by regulatory bodies in Alberta.
