Skip to content

Brought to you by

Dentons logo

Dentons Commercial Litigation Blog

Latest trends and developments in commercial litigation.

open menu close menu

Dentons Commercial Litigation Blog

  • Home
  • About us
  • Topics
    • Topics
    • Alternative Dispute Resolution (ADR)
    • Class Action
    • Commercial Litigation
    • Judicial Review
    • Privacy Litigation
    • Professional Liability
    • Securities Litigation
    • Technology and New Media

The fine line: Adding particulars to an existing complaint vs bringing forward an entirely new complaint

By Katherine Martin
April 21, 2022
  • Professional Liability
Share on Facebook Share on Twitter Share via email Share on LinkedIn

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.  

Print Friendly, PDF & Email
Share on Facebook Share on Twitter Share via email Share on LinkedIn
Subscribe and stay updated
Receive our latest blog posts by email.
Stay in Touch
Katherine Martin

About Katherine Martin

Katherine I. Martin is an associate with our Litigation and Dispute Resolution Group in Edmonton. Her growing practice focuses on administrative law, personal injury defence work, medical malpractice and professional negligence matters.

All posts Full bio

RELATED POSTS

  • Class Action
  • Professional Liability

Recent Ontario Court decision confirms presumption on pre-certification motions sequencing: Implications for class actions

By Marina Sampson and A.J. Freedman
  • Professional Liability

Supreme Court of Canada refuses to hear appeal challenging zero tolerance rule for health care practitioners

By Dina Awad, Kate Millar, and Justin Okerman
  • Professional Liability

The Privilege of Self-Governance: Alberta Court of Appeal restricts awarding costs against members of regulated professions

By Michael Sestito and Justin Okerman

About Dentons

Dentons is designed to be different. As the world’s largest law firm with 20,000 professionals in over 200 locations in more than 80 countries, we can help you grow, protect, operate and finance your business. Our polycentric and purpose-driven approach, together with our commitment to inclusion, diversity, equity and ESG, ensures we challenge the status quo to stay focused on what matters most to you. www.dentons.com

Dentons boilerplate image

Twitter

Categories

  • Alternative Dispute Resolution (ADR)
  • Arbitration
  • Civil Litigation
  • Class Action
  • Commercial Litigation
  • Covid-19
  • Energy
  • Environmental Litigation
  • Estates and Trusts
  • General
  • Government Investigations
  • Intellectual Property
  • International Arbitration
  • Judicial Review
  • Medical Malpractice
  • Mining
  • Privacy
  • Privacy and Cybersecurity
  • Privacy Litigation
  • Professional Liability
  • Regulatory
  • Securities Litigation
  • Technology and new media
  • White Collar Crime
  • White-Collar Crime

Subscribe and stay updated

Receive our latest blog posts by email.

Stay in Touch

Dentons logo

© 2023 Dentons

  • Legal notices
  • Privacy policy
  • Terms of use
  • Cookies on this site