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In recent years, legislators have given regulators increased powers to take enforcement action prior to a hearing or the exhaustion of all appeals. Depending on the legislative framework of the regulator, this may include injunctive orders, restriction or suspension of licenses, publication of information, or imposition of penalties. These powers have been justified by law makers as protecting the public from harm, increasing administrative efficiencies and increasing transparency. They have argued, in some instances, that the imposition of a penalty before a hearing is in the best interests of the penalized person, as these penalties are intended to be less onerous than alternative measures (such penalties are usually described as “administrative” in nature).
A growing number of regulators, including election officials, Canada Revenue Agency bureaucrats and statutory commissioners, now have the power to impose administrative penalties without a hearing or before the conclusion of all reviews or appeals. As some penalties may be imposed without a hearing or the involvement of a court, they must be applied fairly. Unfortunately, a fair process is not always followed by administrators. See, for example, Rumpel v Election Commissioner of Alberta, 2019 ACQB 938 where the court found the Election Commissioner failed to comply with its obligations under the legislation and, as a result of the circumstances, including an issue of procedural fairness as a result of the applicant being denied the opportunity to respond, Justice Dario rescinded the administrative penalty and ordered the applicant’s name be removed from the Commissioner’s website posting. See also Rebel News Network v Election Commissioner of Alberta, 2021 ABCA 376 where the panel stated “that some aspects of the Notice could (and probably should) have been phrased differently, [and] that it would have been preferable not to have entitled the Notice as ‘Notice of Adverse Findings and Proposed Penalty’, or to have raised the nature of the administrative penalty being considered until a final determination had been made regarding the contravention of the Act.”
While the powers of health profession regulators to impose penalties arise after a hearing, their powers to use other measures before a hearing, including their duty or discretion to publish or otherwise disclose personal information about regulated members, also raise issues of procedural fairness and the appropriate use of discretion. This is particularly so where other regulatory tools are in place to fulfill a regulator’s mandate to protect the public. Courts have been skeptical of the exercise of such powers, but have generally not interfered with their use because of clear legislative intent. Until, that is, the decision of the Court of Appeal of Alberta in AB v College of Physicians and Surgeons of Alberta, 2021 ABCA 320. In that case, Justice Thomas Wakeling placed limits on the power of government regulators to publish information that may cause irreparable harm to a regulated member before a final determination of the merits after the exhaustion of all appeals.
Dr. B is a regulated member of the College of Physicians and Surgeons of Alberta. In May 2020, the College discovered that Dr. B had been charged with sexual assault. Following this discovery and discussions with the College, Dr. B signed an undertaking requiring him to have a chaperone present whenever he was seeing a female patient. The presence of the chaperone has been a practice condition for Dr. B for over a year.
In October of 2020, following the request of Dr. B, the Registrar agreed the College would not issue a press release. However, the Registrar would not agree to refrain from publishing a notice on the College’s public website that Dr. B had been charged with sexual assault and was subject to a practice condition.
Dr. B applied for judicial review of the Registrar’s decision, as well as an interim injunction preventing the College from publishing the notice on the website pending the final determination of the application for judicial review.
Dr. B’s application for judicial review was denied by the chambers judge.
Dr. B proceeded to appeal the chambers decision which, at the time of the Court of Appeal decision, was set to be heard in the near future.
Application for Interim Relief
In applying to the Court of Appeal for interim relief, Dr. B argued that an interlocutory injunction was necessary for the protection of his interests. If the College is able to publish the information regarding Dr. B’s criminal charge of sexual assault and subsequent practice condition on its website before the final determination of the judicial review application, a decision that the College erred in finding it had an obligation to the publish the information will not result in a valuable remedy. Once the information is published, the “harm done cannot be undone.”
Judicial Authority of the Court of Appeal
Justice Wakeling determined that a single justice of the Court of Appeal was entitled to hear the application according to Rule 14.37 of the Alberta Rules of Court, Alta Reg 124/2010. Rule 14.37 states that “a single appeal judge may hear and decide any application incidental to an appeal.” Justice Wakeling concluded that Dr. B’s application for interim relief was “incidental” to his judicial review appeal.
The authority to stay the Registrar’s decision to publish the contentious information about Dr. B comes from Rule 3.23(1) of the Alberta Rules of Court, which states that “[t]he Court may stay the operation of a decision or act sought to be set aside under an originating application for judicial review pending final determination of the originating application.” Rule 3.23(1) applies to appeals by way of Rule 14.2(1), which indicates that “[s]ubject to this Part, to any enactment, and to any direction by an appeal judge, if this Part does not deal with a matter, other Parts of these rules apply to appeals, with any appropriate modifications.”
Contradictory Principles of Interlocutory Injunctions
Justice Wakeling was of the opinion that an application for an interlocutory injunction requires the court to engage with “potentially contradictory principles.” Referencing BrettYoung Seeds Ltd v Dyck, 2013 ABQB 319 (“BrettYoung Seeds”), Justice Wakeling quoted the following reasoning on the subject of conflicting principles:
The first is that relief should be available at a time when it is needed to protect legitimate interests of the applicant. This principle recognizes that to be effective a judicial remedy may have to be issued before a trial occurs if it is to have any value to the applicant. The second recognizes that a respondent should not be directed to do or refrain from doing a specific act until the judicial process has progressed to a point where the respondent has had an adequate opportunity to present her case. … Conflict arises when the point the applicant needs relief precedes the point in the litigation where the respondent has had an adequate opportunity to probe the weaknesses of the applicant’s position and marshall the facts and the law which demonstrate the merits of the respondent’s case.
The issue, Justice Wakeling indicated, is that regardless of the outcome of the application for interim relief, either the applicant’s or the respondent’s rights will be sacrificed or diminished. The problem such pretrial relief applications pose to courts is summarized by Professor Zuckerman in Civil Procedure: Principles of Practice (4th ed. 2021):
Whether the court grants or refuses an application for an interim injunction it inevitably runs a risk of harming rights. Where the court grants a claimant an interim injunction in order to protect their rights, it runs the risk that if the claimant fails to establish their claim in final judgment, the court will have harmed the defendant’s rights. Similarly, when a court refuses to grant an interim injunction out of consideration for the defendant’s rights, it may run the risk that should the claimant establish their rights in final judgment, such rights may have been harmed in the meantime.
Justice Wakeling opined that it is preferable when there is a “concordance” between the decision on pretrial relief and the ultimate decision. This preferable outcome was the result in Black v Law Society of Alberta, 144 DLR 3d 439 (Alta QB Chambers 1983), rev’d in part 8 DLR 4th 346, 352 (Alta CA 1983), where two plaintiff lawyers successfully applied for an interlocutory injunction pending the determination of their action challenging the Law Society rules preventing national law firms in Alberta.
Where the final determination favours the party whose rights were put at risk by the pretrial relief, the result is that the “party who ultimately prevailed had to endure for the period the adverse order was in effect a legal state inconsistent with his or her rights.” This legal inconsistency was the result in Bruderheim Community Church v Board of Elders of the Canadian District of the Moravian Church in America, 2017 ABQB 355, where the Moravian Church was temporarily restricted from evicting the Bruderheim Community Church from the Moravian lands due to a interlocutory injunction.
Justice Wakeling, referring to his own decision in BrettYoung Seeds, stated that the ultimate question posed by an application for interlocutory relief is whether “justice requires pretrial relief.” Since a question of this nature is too abstract to be of a practical value to the court, the court must turn to the test which was been articulated by the common law.
The Test for an Interlocutory Injunction
The test for interlocutory injunction is well-established.
The first hurdle the applicant faces is to pass a “merits-based test.” This first step is essentially a question of whether the judge considers that the applicant’s claim presents a “serious issue to be tried.” This is not meant to be an onerous test; it is simply meant to weed out claims that are “frivolous and vexatious,” hopeless, baseless, or otherwise not arguable.
The second step for an interlocutory injunction is to demonstrate to the court that the failure to grant the interim relief “will cause the applicant irreparable harm.” Irreparable harm is harm that cannot be adequately remedied by damages in the result of a successful final determination of the case.
Third, and finally, the court must consider whether the harm the applicant will face if the interim injunction is not granted outweighs the harm that the respondent will face if the relief is granted.
Since an interlocutory injunction is an equitable remedy, it may be denied even when the above tests are met. This may be the case, for example, where the applicant does not apply for the relief promptly or there are other equitable bars to relief.
Result of the Present Application for an Interlocutory Injunction
Justice Wakeling concluded that an interlocutory injunction was the appropriate relief for Dr. B, pending the outcome of the judicial review process.
Justice Wakeling made this determination on the grounds that the matter before the Court of Appeal was not “frivolous or vexatious” and the denial of relief would cause irreparable harm to Dr. B’s reputation and to the value of a successful appeal. Further, the potential harm to Dr. B if the injunction was not granted was greater than the potential harm to the College. The harm to the College is partly alleviated by the practice condition governing Dr. B (which is also set out on his profile on the College website) and the short time-period the order will be in effect for. Thus, on a balancing of interests, Justice Wakeling found it appropriate to protect Dr. B’s interests.
Dr. B’s application was, therefore, granted.
Discussion on Irreparable Harm
Often, the most difficult prong of the interlocutory injunction test for an applicant to demonstrate is that he or she will suffer from irreparable harm should the pretrial relief not be granted.
Justice Wakeling referenced several other decisions which discuss the types of harm that may be irreparable.
In RJR-MacDonald Inc v Canada,  1 SCR 311, the Supreme Court of Canada stated that “‘[i]rreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm which cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.” In Capital Vision Inc v Minister of National Revenue, 191 FTR 183 (2000), the court found that the “mere laying of a criminal charge carries real potential for great prejudice to the applicants and their reputation, even if they are ultimately acquitted.” In Douglas v Canada, 2014 FC 1115, the court stated that “[t]here is consistent authority to the effect that harm to an individual’s personal or professional reputation amounts to irreparable harm.” These decisions were helpful to Justice Wakeling when analyzing the reputational harm Dr. B would suffer from should the College be allowed to publish the fact of his sexual assault charge before the judicial review decision was finalized.
In Prosper Petroleum Ltd v Alberta, 2020 ABCA 85, Justice Strekaf was of the opinion that “[i]t is recognized that irreparable harm will generally be established when a refusal to grant a stay might render an appeal nugatory.” In Maverick Equities Inc v Condominium Plan No 942 2336, 2008 ABCA 190, the court emphasized that “rendering nugatory an appeal, or a large distinct part of an appeal, is traditionally regarded as sufficient to satisfy this branch of the test for a stay pending appeal.”
Publication of Dr. B’s name on the website prior to the judicial review of the Registrar’s decision to publish the name cannot be undone. Therefore, Justice Wakeling granted a stay, as not granting one would have rendered the appeal useless.
Justice Wakeling’s decision highlights the problem of publishing information about a regulated professional which could cause irreparable harm prior to the exhaustion of all appeals. This is particularly so where other measures are in place to appropriately protect the public. As Justice Renke noted in Al-Naami v College of Physicians and Surgeons of Alberta, 2021 ABQB 549, “interim measures should not be a pre-punishment”. The protection of the public interest does not require the abandonment of the presumption of innocence.