Investigation of physician's conduct continued, stay pending appeal denied: Alberta Court of Appeal

To allow stay was litigation by instalment

Investigation of physician's conduct continued, stay pending appeal denied: Alberta Court of Appeal
Complaint of physician’s conduct required further investigation

The Alberta Court of Appeal refused to stay a complaint review committee’s order for the investigation against a physician’s conduct pending appeal and ruled that to allow the stay was litigation by instalment.

In September 2017, a staff member of the Alberta Hospital Edmonton made a complaint against psychiatrist Dr. Sherry Fawcett. The complaint concerned Fawcett’s conduct from 2014 to 2017. However, after an initial assessment, the Alberta Health Services dismissed the complaint.

A year later, the complainant made the same complaint with the College of Physicians and Surgeons of Alberta. The Complaints Director dismissed the complaint due to insufficient evidence of professional conduct. However, upon review, the Complaint Review Committee concluded that the director should not have summarily dismissed the complaint. It also ordered an investigation into Fawcett’s conduct.

Fawcett sought judicial review of the interim decision, which was dismissed. The judge held that the application for review was premature and constituted litigation by instalment. The judge also found that the Committee’s decision was justified, transparent, and demonstrated a clear line of analysis.

Fawcett appealed and requested a stay of the investigation pending appeal.

The appellate court disagreed

Investigation still in early stages

In Fawcett v College of Physicians and Surgeons of Alberta (Complaint Review Committee), 2022 ABCA 416, the appellate court ruled that the current complaint is still at the early stages, since the order simply directed an investigation for further information. The court found that there was no determination on the matter at hand.  

“It is generally inappropriate to short circuit this administrative process by the bringing of a judicial review mid-process, except in rare and exceptional circumstances. That is litigation by [instalment] and merely adds costs, delays proceedings, wastes judicial resources, and may constitute an abuse of process,” said the court.

No irreparable harm, balance of convenience does not favour stay

Further, on the stay application, the appellate court disagreed that irreparable harm will be sustained if the stay was not granted. The harms alleged by Fawcett are speculative, hypothetical, and only arguable at best, said the court.

Lastly, the appellate court ruled that balance of convenience does not favour granting a stay, since it would delay or prevent the College from acting in accordance with the administrative process as assigned by the Health Professions Act, RSA 2000, c H-7.

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