In Jinnah v Alberta Dental Association and College, 2022 ABCA 336 (Jinnah), the Court of Appeal of Alberta (the Court) heard an appeal of a finding of unprofessional conduct on the part of Dr. Nimet Jinnah and took the opportunity to provide some much-needed clarity on the law regarding costs in the context of disciplinary investigations and hearings under the Health Professions Act. In short, the Court clarified that costs ought to be awarded against professionals only where there was a “compelling reason” to do so.
Procedural history
Dr. Jinnah faced allegations of unprofessional conduct, which flowed from her billings and collections practice. A Hearing Tribunal found Dr. Jinnah had engaged in unprofessional conduct on numerous grounds, including criticizing her communication with the complainant as being inappropriate and engaging in improper and inappropriate billing and collection practices.[1]
In so finding, the Tribunal suspended Dr. Jinnah for one month, ordered her to complete a philosophy course in ethics, and awarded costs against her totaling CA$50,000.[2]
Dr. Jinnah appealed this finding to the council of the Alberta Dental College and Association (ADA&C). The Appeal Panel identified two minor errors on the part of the Tribunal[3] but otherwise upheld the Tribunal’s findings of unprofessional conduct as reasonable. The Appeal panel did quash the suspension, substituted a reprimand, and reduced costs to CA$37,500, but upheld the ethics course requirement and additionally ordered Dr. Jinnah to pay one-quarter of the Appeal Panel costs.[4]
Dr. Jinnah appealed to the Court of Appeal, seeking to have the Appeal Panel’s decision quashed.[5]
Court of Appeal on sanctions
The Court of Appeal was critical of the findings of the Tribunal and the sanction it imposed, overturning the Appeal Panel’s findings on four of the five charges of unprofessional conduct.[6] The Court concluded that a reprimand was an appropriate sanction for Dr. Jinnah.
Court of Appeal on costs
Having set out the sanction, the Court then went on to address costs. The Court criticized the historical conduct of the Tribunal and Appeal Panel in awarding costs, especially substantive costs, in the vast majority of cases of unprofessional conduct. The Court distinguished costs from fines – costs are not supposed to be a sanction,[7] and are not punitive.[8] If a regulated member needs to be punished for their conduct, then a fine should be awarded, rather than costs.[9]
Accordingly, the Court was emphatic that, as a general rule, costs are not to be awarded against regulated members.[10] The Court held that costs are a justifiable and inevitable part of self-regulation, and that self-regulation is a privilege that has been awarded to professions from which all members benefit.[11]
The Court then held that this general rule would apply to every case, absent the existence of “a compelling reason” to award costs.[12] Where such a compelling reason exists, the College must also “provide clear and transparent justification for a costs order.”[13]
A “compelling reason” will exist where a regulated member engages in “serious unprofessional conduct” that the regulated member must have known was “completely unacceptable.”[14] The Court held the regulated member, in such a case, may be required to indemnify the College for “a substantial portion or all of its expenses in prosecuting a complaint,” but notably does not state that the regulated member will be compelled to indemnify the College for costs of the investigation, nor a subsequent appeal.[15]
The Court clarifies that “serious unprofessional conduct” includes sexual assault on a patient, defrauding an insurer, performing a procedure while suspended, or a marked departure from the ordinary standard of care. It remains unclear whether “serious unprofessional conduct” can be found outside of these specific instances, for example, a sexual assault of a non-patient or other forms of fraud.
A “compelling reason” will also exist where a regulated member is a “serial offender,” which the Court defines as one who “engages in unprofessional conduct on two or more occasions.”[16] In this case, a costs award may be levied against the regulated member; however, the seriousness of each offense must be considered in determining the amount of costs.[17] The following is a helpful summary of the Court’s discussion on this approach:
- Both breaches were serious – a substantial portion or all of its costs would be appropriate.
- Neither breach was serious – only a small amount of costs (less than 25%) could be justified.
- The first breach was serious, but the second was not – small costs order for the second breach may be appropriate.
- The first breach was not serious, but the second was – a substantial portion or all of its costs would be appropriate.
In developing this scheme, the Court found only a very small percentage of regulated members are sanctioned for unprofessional conduct, and an even smaller fraction are repeat offenders. Accordingly, “it is not unfair to place on the shoulders of this small group of dentists a disproportionate share of the costs of implementing the discipline process.”[18]
A “compelling reason” will also exist where a regulated member fails to cooperate with a College investigation, forcing the College to expend more investigatory resources than necessary.[19] In such a scenario, the regulated member will only be required to pay costs that are roughly equivalent to the otherwise unnecessary expenditures attributable their conduct.[20]
A “compelling reason” will also exist where a regulated member engages in hearing misconduct, defined as “behavior that unnecessarily prolongs the hearing or otherwise results in increased costs of prosecution that are not justifiable.”[21] Any costs award under this reason will be limited to what would otherwise have been unnecessary expenses flowing from said misconduct.
The Court recognized that the narrowness of these exceptions will result in the profession bearing full costs in most cases; however, the Court found “this presumption has merit and makes good sense.”[22] It increases College accountability, ensures the College considers all investigative and prosecutorial options, and selects the most appropriate and proportionate course of action.[23] Regulated members also gain certainty as to all possible sanctions, and prevents undue pressure on a regulated member to plead guilty to avoid a substantive costs award.[24] It also “levels the playing field” between regulated members who are found guilty and those who are not, as those found not guilty cannot have costs awarded against them.[25] It also engages the practical factor of “selective enforcement” – as in criminal law, not all cases will be subject to disciplinary proceedings, and it is unfair to impose the “burden” of costs on those offenders who happen to be prosecuted.[26] Finally, the Court found this direction will have minimal impact on costs to regulated members, given the substantive revenues generated by Colleges compared to the modest costs of investigation and prosecution of unprofessional conduct.[27]
Conclusion
In short, the Court of Appeal has simplified and clarified how costs are awarded in findings of unprofessional conduct, increasing predictability and saving both time and money.[28]
Colleges now cannot, as a general rule, seek an award of costs against a regulated member absent a “compelling reason” to do so. A “compelling reason” is narrowly defined as serious unprofessional conduct, members who are serial offenders, where members fail to cooperate with an investigation, or where members engage in hearing misconduct. Even where there is a “compelling reason” to award costs, a full indemnity costs award is not automatic and is generally reserved only for egregious conduct.
While some uncertainty remains, Jinnah has brought a degree of simplicity and certainty to members of regulated professions facing allegations of unprofessional conduct.
For more information, please reach out to the authors, Michael Sestito and Justin Okerman.
[1] Jinnah at paras 45-51.
[2] Jinnah at para 53
[3] Jinnah at para 57
[4] Jinnah at para 61
[5] Jinnah at para 62
[6] Jinnah at paras 78-108. Interestingly, the Court also criticized the decision to require completion of an ethics course – it questioned how an ethics course would improve Dr. Jinnah’s knowledge, skill, and judgement in written communications with patients
[7] Jinnah at para 124
[8] Jinnah at para 127
[9] Jinnah at para 127
[10] Jinnah at para 128
[11] Jinnah at paras 134-135, 137
[12] Jinnah at para 138
[13] Jinnah at para 154
[14] Jinnah at para 141
[15] Jinnah at para 141
[16] Jinnah at para 142
[17] Jinnah at para 142
[18] Jinnah at para 142
[19] Jinnah at para 143
[20] Jinnah at para 143
[21] Jinnah at para 144
[22] Jinnah at para 145-6
[23] Jinnah at para 147
[24] Jinnah at para 148
[25] Jinnah at para 149
[26] Jinnah at para 150
[27] Jinnah at para 151
[28] Jinnah at para 152
