Where a matter is remitted for reconsideration, statutory decision maker is presumed to give full weight to the decision of the reviewing court

Administrative law – Decisions reviewed – Dental Board Association and College – Judicial review – Appeals – Standard of review – Reasonableness – Dentist – Professional misconduct or conduct unbecoming – Law of reconsideration

Zuk v. Alberta Dental Association and College, [2020] A.J. No. 500, 2020 ABCA 162, Alberta Court of Appeal, April 29, 2020, B.K. O’Ferrall, F.L. Schutz and D. Pentelechuk JJ.A.

The appellant dentist was involved in protracted disciplinary proceedings with the Alberta Dental Association and College (the “College”).

In prior proceedings, the Court of Appeal affirmed multiple findings of unprofessional conduct against the appellant. On three counts, the Court allowed an appeal, and remitted the matter to the College for further consideration of sanction and costs.

The appellant disputed whether the Appeal Panel of the College could hear the matter on reconsideration.

The appellant argued the Appeal Panel was biased and ought to have disqualified itself from the reconsideration, because it had already expressed its opinion regarding the seriousness of the proven unprofessional conduct.

The Court of Appeal found the appellant failed to establish a reasonable apprehension of bias on the part of the Appeal Panel. Where a matter is remitted, the law presumes a tribunal will give full weight to the decision of the reviewing court. The appellant failed to rebut that presumption. There was no issue of impartiality.

The Court of Appeal also found the reconsideration decision was reasonable. The Appeal Panel considered the directions from the Court, submissions, case law, and relevant factors. The decision was thorough, reasonable, and owed deference.

The Court of Appeal dismissed the appeal.

This case was digested by Joel A. Morris, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Joel A. Morris at jmorris@harpergrey.com.

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