Alberta Court of Appeal Decision Provides New Guidance on Sanctions and Hearing Costs Under the Health Professions Act
The recent decision of Charkhandeh v College of Dental Surgeons of Alberta, 2025 ABCA 258 provides a significant update to the law as it relates to sanctions and hearing costs arising out of disciplinary proceedings under the Health Professions Act (“HPA”).
Background
This case involved allegations against the appellant dentist (the “Appellant”) of several non-consensual sexual encounters with a dental assistant. The dental assistant complainant did not work directly under the Appellant but was found to be in a position of vulnerability based on the Appellant’s position of influence and oversight. It is notable that the underlying events took place in and around 2013, prior to HPA amendments which added further particulars and mandatory sanctions relating to the definitions of “sexual abuse” and “sexual misconduct”. As such, these provisions were not at play when assessing sanctions under the HPA.
Ultimately, the Hearing Tribunal found the Appellant guilty of five of the six allegations of unprofessional conduct. The Hearing Tribunal imposed a sanction of $10,000 per offence ($50,000 total), along with cancellation of the Appellant’s registration. It was a condition of the Appellant’s cancellation that they could reapply for admission after 5 years. The Hearing Tribunal also directed the Appellant pay 75% of the costs of the investigation and hearing incurred by the Complaints Director (which totaled $467,233).
The Appellant appealed the decision of the Hearing Tribunal to the Appeal Panel of the Council of the College of Dental Surgeons. The Appeal Panel dismissed all grounds of appeal and upheld the sanction along with costs levied by the Hearing Tribunal and added an additional costs sanction of 75% of the appeal costs (an additional $105,068). In the result, the Appeal Panel directed that the Appellant pay 75% of the total costs of $572,301 in addition to the $50,000 fine, and the cancellation of the Appellant’s licence to practice as a dentist in Alberta.
The Court of Appeal Decision
While the Court of Appeal makes several helpful comments as they relate to hearing procedure, evidence, and the burden of proof, this decision is most notable for the Court’s commentary on sanctions and hearing costs.
Prior to this decision, the College of Dental Surgeons of Alberta had obtained leave of the Court of Appeal to reargue the principles on which costs should be awarded in HPA disciplinary matters as stated in the decision of Jinnah v Alberta Dental Association and College, 2022 ABCA 336 (“Jinnah”). In Jinnah, the Court held that there had to be a “compelling reason to impose a significant portion of the cost to a disciplined member”. It established four categories of compelling reasons and further established a general rule that in most cases the profession as a whole should bear the costs of disciplinary hearings.
With respect to sanction, the Court made a number of notable comments that will help guide practitioners in this area as it relates to future hearings:
The primary purpose of sanction in professional disciplinary cases is protection of the public. Denunciation, retribution, and punishment are not primary objectives of the sanctioning process, except to the extent that they serve that primary purpose.
In accordance with the principle of restraint, the most lenient sanction that would serve the legitimate purposes of the sanctioning process should be selected.
The maximum fine should not become a minimum fine, or even the presumptive fine.
The Court held that the Hearing Tribunal was unduly focused on the gravity of the offences in this case. The Court agreed that the conduct at issue (which was at times referred to as “sexual assaults”) was serious, but missing in the analysis was whether a meaningful suspension as opposed to cancellation of the Appellant’s license would accomplish the same objectives.
Furthermore, it was notable that the Appellant had practiced for approximately 10 years after the assaults, and as such, it was unclear as to what cancellation was intending to accomplish given that it was clear the Appellant was not a threat to the general public. The Court specifically noted that while “the appellant undoubtedly deserves to be sanctioned, it is not obvious that he needs to be deprived, potentially, or permanently, of his livelihood and profession”. The Court stated that the sanctions imposed by the Hearing Tribunal were unreasonably harsh, and rather than remit the matter to the Hearing Tribunal for consideration, exercised its jurisdiction to re-sanction the Appellant. After considering all of the circumstances, the Court issued a 3-year suspension and vacated the $50,000 fine issued by the Hearing Tribunal and upheld by the Appeal Panel.
Most notably, the Court confirmed that the costs principles outlined in Jinnah should no longer be followed, replacing those reasons with new principles on which costs awards should be made. The Court acknowledged that hearing costs typically fall into several categories: the cost of investigation; the cost of the actual hearing; and the third being the cost of appeal. Hearing costs include counsel fees, administrative fees, and panel member honoraria. Counsel fees for both the Complaint’s Director and the Tribunal tend to make up the largest portion of costs and in this case represented hundreds of thousands of dollars.
The Court recognized that hearing costs continue to escalate and are routinely over $100,000, which in effect become the de facto sanction for a regulated member. The Court provided the following guidance as to how costs should be assessed in future hearings:
The law is clear that costs should not be imposed as a form of punishment—a reasonable opportunity to defend oneself can become “hollow” if the specter of paying exorbitant costs creates a disincentive to do so.
A member who is substantially successful should not expect to pay any costs.
A costs award is intended to allocate the cost of the proceeding, not add another level of punishment. There is an inconsistency between costs not being a sanction, and using seriousness of the allegations to determine where the burden should fall—seriousness of the charges is primarily relevant to sanction, not costs.
The time has come to recognize that the seriousness of the charges is relevant to sanction, but not a relevant consideration to awarding costs.
The length and extent of the hearing, and the conduct of the parties at the hearing are the relevant considerations, not the seriousness of the allegations.
An important factor is whether costs have been increased due to the unreasonable or inefficient litigation conduct of either party. The party whose conduct increases costs can be expected to be held accountable.
The Tribunal should not make an “in gross” percentage of award of cost without having a clear idea of what is included.
While the Tribunal need not know the detail of every dollar spent, it has to have a reasonable idea of the types of expenses that have been incurred.
The Tribunal must consider whether the ultimate award is unduly onerous or a “crushing” burden on the professional. In the case at hand, the award of $429,000 should be presumed to be a crushing burden regardless of personal financial wherewithal.
The ability to pay cost does not make the award reasonable.
Generally, a professional should not have to pay all or a significant portion of the expenses associated with the infrastructure of the hearing, including travel expenses or daily allowances of tribunal members. In the normal course, the professional should be expected to pay only those costs discreetly associated with the hearing itself. While a college can retain whatever counsel it feels is appropriate, there is no presumption that all those costs should be transferred to the disciplined professional. A general rule was stated such that other than the most complex cases, it is not reasonable to transfer to the disciplined member more than the cost of one lawyer at mid-level seniority, at appropriate rates.
- While a Tribunal is entitled to use counsel as it sees fit, it generally will not be reasonable to charge to the disciplined member the cost of having counsel sit through the entire hearing and draft reasons. These expenses are properly part of the regulatory function inherent in self-regulation.
The Court then undertook its own reassessment of what costs should be paid in the underlying matters. The Court noted that sufficient detail with respect to legal costs was required to properly assess whether costs were reasonably incurred. This would presumably include partially redacted invoices, including lawyer identities, rates and the time spent by each timekeeper.
After considering all the factors, the Court levied $60,000 in costs against the Appellant, which represented 10.5% of the total costs incurred by the Hearing Tribunal and Appeal Panel. While nothing is specifically said of this percentage, it is a clear indication by the Court that the primary issue to be considered is one of conduct throughout the hearing. The allegations and finding of guilt were serious and included five counts of non-consensual sexual conduct. Despite this, the Court was clear that the suspension was intended to be the primary sanction, not the award of costs.
This decision significantly limits the ability of professional colleges operating under the HPA to seek costs against their members, even where the conduct at issue involves a high level of moral blameworthiness. The Court’s guidance on both when and how sanctions and hearing costs should be awarded should assist all professional colleges and regulated professions and practitioners in future disciplinary matters. We expect that this decision will provide general guidance to professional disciplinary matters outside the HPA framework. This is due to the broad and general pronouncements by the Court on the overarching rationale and purpose of professional disciplinary proceedings, regardless of the specific enabling legislation.