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Professional law: The judgment rendered in Baker requires that a high degree of procedural fairness be applicable in matters relating to professional law

On August 22nd 2019, the Court of Queen’s Bench of Alberta confirmed that all administrative entities had the obligation to respect the principle of procedural fairness, notably when an individual’s rights and interests could be affected by that entity’s decision. When procedural fairness is not respected by said entity, its decision is at risk of being invalidated by a court of law (Mohamed v. College of Physicians and Surgeons of Alberta, 2019 ABQB 657).

The professional is an anesthesiologist who has three diplomas from a renowned Egyptian university, as well as sixteen years of relevant work experience. In order to exercise his profession in the province of Alberta, the Health Professions Act requires that he complete a Practice Review Assessment (herein after “PRA”). An informative letter was sent to the professional in question, explaining that the process would take roughly three months, and that he would be given a second opportunity to complete the PRA if it was failed on his first attempt.

Three weeks following the start of the PRA, the professional was advised that his assessor did not see any likelihood that he successfully complete the PRA, and that it was recommended that he do an additional two years of university before he reapplied to do the PRA a second time.  

Invoking that the College had failed to respect the principle of procedural fairness and had taken an unreasonable decision affecting his rights and interests, the professional applied for the judicial review of the decision.

In its judgement, the Court confirmed, by applying the criteria established by the Supreme Court of Canada in Baker, that the College had the obligation to respect a relatively high degree of procedural fairness, the degree applicable in matters relating to professional law. The PRA manual had been violated on several levels: the College had failed to inform the professional of its expectations of him, and had failed to outline the evaluation tools that would be used, as well as the PRA’s specific objectives. In addition, the College’s website, as it was not up-to-date, did not provide any further information necessary to complete the professional’s comprehension of the process.

The only information available to the professional was the information that was provided to him in the letter sent by the College, which referenced specific evaluation tools that were never used by the College in order to assess the professional in question. Otherwise said, the College had falsely informed the professional that he would be evaluated with the use of certain tools when, in fact, completely different tools were used.

Also, the Court explained that even if the College had the discretion to put an end to the PRA before the three-month period was over, a discussion with the professional within the first three weeks could have settled the differences between the parties and helped ease the professional’s confusion concerning the evaluation tools and the process as a whole.

The Court concluded its analysis by affirming that the College, who has the necessary latitude to determine its own procedure and expectations in regards to the professional, must make the efforts to assure that the process and its objectives are fair and fairly followed. The Court quashed the decision and granted the professional the right to undertake a new PRA, under the evaluation of a new assessor, and for this undertaking to be considered his first attempt Dubé Légal inc., professional law lawyers.