The court cited the premature nature of the action and the lack of evidence for irreparable harm
The Alberta Court of Appeal has dismissed an appeal by a psychiatrist seeking to stay disciplinary proceedings against him under the Health Professions Act (HPA) until his application for judicial review is determined.
The disciplinary proceedings began following complaints in 2020 and 2021 from two colleagues alleging Dr. Anthony Akinnawonu engaged in unprofessional conduct. The College of Physicians and Surgeons of Alberta (CPSA) appointed an investigator, as required by s. 55(2)(d) of the HPA, to look into these complaints.
The CPSA investigator issued preliminary investigation reports concluding that Dr. Akinnawonu had violated certain provisions of the Canadian Medical Association Code of Ethics and Professionalism. These reports were provided to both the complaints director and Dr. Akinnawonu.
Dr. Akinnawonu’s counsel responded to these reports, challenging the findings and later submitted additional evidence. Despite these submissions, the complaints director referred the complaints to a formal hearing under s. 66(3)(a) of the HPA.
Subsequently, Dr. Akinnawonu applied for judicial review of the decision to refer the complaints to a hearing. He argued that the notice of hearing should be set aside, claiming the investigation was incomplete and the investigator was biased. He also sought to stay the notice of hearing and the scheduled hearing pending the judicial review.
The chambers judge denied the stay application, determining that Dr. Akinnawonu had not met any part of the tripartite test set out in case law. The appellant then appealed this decision.
In reviewing the appeal, the Alberta Court of Appeal emphasized that factual findings related to irreparable harm and balance of convenience are entitled to deference and that the ultimate exercise of discretion in granting or denying a stay will not be overturned unless it is based on an error of principle or is unreasonable.
The chambers judge had found that Dr. Akinnawonu’s judicial review application was premature and constituted impermissible litigation by installment, failing to establish a serious issue to be tried. The judge also determined that any potential for irreparable harm, such as the judicial review being rendered moot or posting the notice of hearing on the CPSA website, was speculative and not supported by clear evidence.
Additionally, the chambers judge ruled that the balance of convenience did not favor granting the stay. The Court of Appeal agreed, noting the strong public interest in allowing the CPSA to fulfill its mandate and the importance of timely complaint adjudication.
Concluding that there was no reviewable error in the chambers judge's decision, the Alberta Court of Appeal dismissed Dr. Akinnawonu’s appeal.
