PROFESSIONAL REGULATION AND THE LAW

BC College of Teachers Ordered to Provide List of all Registered Teachers

2011-08-26T15:10:00.001-07:00

In Order F11-22, the Office of the Information and Privacy Commissioner ordered the College of Teachers to provide the applicant with a list of the names, current certificate status and current practicing status of all registered teachers.

The College had refused to comply with the request from a journalist on the basis that the information was already available to the public in a searchable database and that disclosure would be an unreasonable invasion of teachers' privacy.

The applicant had received such lists from other colleges including the Law Society of BC and the College of Physicians and Surgeons.

It is not readily apparent from the decision what was bother ing the College of Teachers about the request. Its position that the information was available on its database was not accurate because an applicant could only obtain information about a teacher if the name of the teacher was known. It was not possible to search the database for all or any teachers without a specific name. Additionally, it is difficult to see in light of the jurisprudence to date, and the language of FOIPOP how disclosure could be seen to be an unreasonable invasion of privacy.

The information was ordered to be produced in its entirety.

Parallel Proceedings may Raise Abuse of Process

2011-08-12T15:41:00.002-07:00

The BCCA recently held that a veterinarian who commenced a human rights proceeding alleging institutional bias against the BC Veterinary Medical Association, could not raise the same allegations to challenge a discipline finding against him, in Bajwa v. BCVMA 2011 BCCA 265.
Dr. Bajwa commenced a human rights complaint with the BC Human Rights Tribunal in 2005, which is ongoing. In 2007 he was found to have committeed 2 professional offences by the BCVMA Inquiry committee. He was fined, formally reprimanded and directed to take a medical records course.
While Dr. Bajwa raised the issue of institutional bias before the BCVMA tribunals, they held that they did not have jurisdiction to consider the issue in view of their limited authority under the applicable legislation. He sought judicial review and Justice Allan held that the tribunals in fact had such authority and ought to have considered those allegations. This decision was appealed. In addition to arguments about authority to consider bias, it was argued before the BCCA, that it was inappropriate to raise the issue of bias, since the Human Rights Tribunal was considering it in a comprehensive manner.
The BCCA decided in the circumstances that "it is difficult to discern any practical utility in the process here sought to be invoked by Dr. Bajwa. Such process would cause a duplication, indeed I would say a waste of adjudicative resources because it seems quite unrealistic to think that any decision on bias issues that might be reached by an Inquiry Committee or the Council could have any measure of finality having regard to the scope of the proceedings before the...Tribunal. The central concerns that underpin the doctrine of abuse of process exist here, namely a duplication and waste of resources and the possibility of inconsistent findings by different adjudicative bodies passing upon similar facts and issues..."
The BCVMA's appeal was allowed and so the penalty was reinstated.

The College of Physicians & Surgeons Required to Provide Complainant with a Registrant's Prior Complaint History

2011-08-12T15:25:00.002-07:00

In RM v. The College of Physicians and Surgeons of BC, 2011 BCSC 832, the Health Professions Review Board (HPRB) ordered that documents revealing past complaints concerning a physician, should be disclosed to the complainant seeking the review.
The complaint alleged the physician had used rude, obscene and racially inappropriate language during an appointment. The matter was investigated and it was decided that the medical care was appropriate and the College could not adjudicate the "divergent reports concerning the [physician's] behaviour." The complainant was advised of this.
However, the College advised the registrant that it considered the complaint to be partially substantiated, and that in view of his history of at least 16 complaints some of which were valid, the College would closely monitor him. The registrant's complaint history was not considered by the Inquiry Committee handling the case under review.
When the review was underway, the complainant learned that there was a previous history because some documents were redacted from the disclosure to the HPRB. The College and physician argued that these documents should not be disclosed because they were irrelevant, the rule against character evidence would be infringed and the physician's right to privacy would be infringed. The HPRB ordered their disclosure to the complainant.
The Court decided that the decision to release the information to the complainant was not patently unreasonable or based on irrelevant factors. The Board exercised its discretion properly especially since the documents were not released to the public at large, but only to the complainant, and subject to conditions that they could only be used for the purpose of the review.
The BCSC refused to interfere with the HPRB's decision.

BCSC Addresses the Authority to Discipline Former Registrants

2011-08-12T15:14:00.002-07:00

In Anthony v. BC College of Social Workers, 2011 BCSC 729, the petitioner sought an order quashing a citation and prohibiting the college from proceeding with disciplinary action against him. His rationale was that the events under consideration occurred under previous legislation in which the College was not authorised to discipline former registrants. While the new Act provided for this, the petitioner resigned and made the argument that the statute could not apply to events that occurred when the old Act was in force, because penal legislation could not have retroactive effect.

The case contains an excellent analysis of the arguments that were made and the law on this issue.

The conclusion was that professional disciplinary proceedings are not penal in nature, but are for the purpose of protecting the public. Therefore, the new Act had retroactive application and the Petition was dismissed.

BC Privacy Commissioner and Publication of Decisions

2011-08-12T15:06:00.003-07:00

Recently, the BC Privacy Commissioner published a useful article on the OIPC website entitled: Balancing Privacy and Openness: Guidelines on the Electronic Publication of Decisions of Administrative Tribunals July 2011.
This article contains a useful bibliography on this topic and is helpful to independent counsel advising administrative tribunals.
The article is available on the OIPC site.

Ontario SC Considers Investigatory Powers of a College Investigator

2011-05-23T12:00:00.003-07:00

Professional regulatory investigators in Ontario have the same powers as a Commission under the Public Inquiries Act. They have the power to "summons" materials from a third party including from the police.

In the case under review, a 75 year old physician was found guilty of acts of professional misconduct in that he had engaged in sexual acts with 3 boys, one of whom had been a patient. The incidents had occurred many years before the discipline hearing. In addition, the College had learned about them about 8 years before the hearing took place, as the police were conducting a criminal investigation.

The case considers many issues, too numerous to address here, but which include issues of delay, abuse of process, consideration of improperly obtained evidence, and whether the discipline committee was authorized to consider constitutional questions.

One of the more significant rulings was that the summons power did not infringe the constitutional right to freedom from unreasonable search and seizure (S.8 Charter). In a thorough review and analysis of the applicable case law, the Ontario Supreme Court held that the framework in which the summons power operated was not unbridled, and that a physician had only a limited expectation of privacy in his/her professional practice in view of a regulator's obligation to ensure public protection.

The Court also held that the discipline committee is authorized to consider questions of law including constitutional questions, and that the delay of 8 years from the time the College learned of the events and took its own proceedings, although of concern was not an inordinate delay.

The Court upheld the Committee's decision to cancel the registrant's license noting that it had considered all aggravating and mitigating factors, and that its concerns with denunciation and specific deterrence were reasonable. It should be noted that the Committee's award of $95,000.00 in costs against the physician was not disturbed, but the physician did not provide any evidence upon which that finding could be considered and if appropriate, disturbed.

Savant v. College of Physicians & Surgeons of Ontario

2011 ONSC 323

Harassment and the Privacy Commissioner

2011-05-23T11:47:00.002-07:00

The College of Physicians and Surgeons recently refused to disclose contact information to an applicant, among other things.

The case involved a physician (applicant) who resigned from the College. The details are not set out, but the College had resolved to erase his name from the temporary register based on misrepresentations he made in his application for registration. He then resigned, and his resignation was accepted.

The applicant had filed numerous FOI requests with the College. He sued it unsuccessfully for defamation; made a complaint to the Ombudsman which was closed; and filed a complaint to the Human Rights Commission which was dismissed.

In responding to the FOI request under review, the College had refused to disclose contact information of third parties, relying upon S.22(2)(e) of FOIPOP. It was concerned that these third parties would be harassed by the former registrant and that this would constitute "harm" within the meaning of the section.

The Privacy Commissioner did not accept this argument, concluding that exposing these individuals to harm did not meet the test of "serious mental distress or anguish by harassment." Individuals receiving communications from the former registrant may be annoyed or frustrated by them, but this did not meet the test or "harm".

College of Physicians & Surgeons of British Columbia

Order F-11-10, March 31, 2011.

Privacy Commissioner Refuses to Hear a Case Against the Law Society of B.C.

2011-05-22T12:45:00.003-07:00

The Law Society of B.C. (LSBC) was involved in civil litigation by a non practicing member who had launched a human rights complaint against it. The LSBC retained counsel to defend it. The member applied for correspondence between the LSBC counsel and third parties, some of which were disclosed. The LSBC took the position that the balance of the requested records were subject to solicitor client privilege pursuant to S.14 of FOIPOP and asked the Commissioner not to hold a hearing because it was plain and obvious that the privilege applied. The Commissioner agreed and exercised his discretion not to hold a hearing.

The decision contains a very good summary of the principles of litigation and solicitor-client privilege quoting from a BCSC decision called B. v. Canada [1995] 5 WWR 374.

Decision F11-01

LAW SOCIETY OF BRITISH COLUMBIA,

March 15, 2011.

BCCA Considers Non-Cooperative Accountant

2011-05-22T12:30:00.002-07:00

The Institute of Chartered Accountants of B.C. was investigating an accountant. It made arrangements several times to attend his office to review files. The registrant was completely uncooperative. Ultimately he was disciplined for failing to cooperate in the investigation and he signed an undertaking in which he agreed to provide the requested files. He failed to comply with this undertaking and was disciplined for failing to do so.

This time a hearing took place at which the registrant represented himself. He was advised several times to seek legal counsel. At the last minute, the registrant sought an adjournment to retain counsel. This request was denied. During the hearing, the discipline committee requested its own counsel to assist the registrant to present his defense. The registrant's license to practice was cancelled.

The BCCA decided that the Discipline Committee did not breach the duty of procedural fairness to the registrant when it refused his adjournment request and noted that this kind of tribunal has the right to govern its own proceedings.

The case contains a useful summary and analysis of the legal principles that apply to this situation. It applied the correctness standard of review to the question of whether there had been a breach of the duty of fairness.

MACDONALD V. INSTITUTE OF CHARTERED ACCOUNTANTS OF B.C.

2010 BCCA 492

Can a Court Interfere with the Examination Process

2011-05-22T11:56:00.003-07:00

The Ontario Supreme Court recently considered the degree to which a Court may interfere with the process followed by an examination body for a professional college. This is an important decision as it is the first to consider the issue in this context.

The Ontario College of Chiropractors requires successful completion of an examination for registration. This examination is administered by the Canadian Chiropractic Examining Board (CCEB), a not for profit corporation comprised of the provincial licensing bodies that regulate chiropractic practice. The Board schedules examinations 3 times per year in various locations. All of its policies and procedures, including deadlines for registration and late applications were clearly available on its website.

The applicant missed the deadline for registration for the examination, the last step she had to complete in order to be registered. She had a position waiting for her upon completion of this requirement. She said that she was late due to financial problems. When she tried to submit the examination fee past the deadline, it was not accepted by the CCEB and she could not take the examination. She lost the job opportunity noted above as she had to wait another 4 months to take the next offered examination.

She launched and was granted several internal appeals. The CCEB took these appeals seriously and presented much evidence regarding what happened, the reason for its policies and so forth.

She was unsuccessful in all internal appeals and appealed to the Court by judicial review. The main issues were whether the CCEB was a public body that was subject to judicial review, and whether it abused its discretion when it refused to allow her to register late for the examination.

The Ontario Supreme Court held that the CCEB did not have any statutory or regulatory power, even though it was comprised of the regulatory authorities. It did say that the CCEB was bound by the rules of natural justice and procedural fairness. As to how the applicant had been treated, the Court stated that "reviewing courts remain unwilling to interfere with policies established by such non-statutory entities or the procedural decisions they reach in the absence of manifest unfairness."

Another important point was that the applicant had argued that her financial situation was a hardship that was an extraordinary circumstance. She had incurred significant debt while completing her studies. The CCEB had rejected her argument and the Court held that its decision in this regard was reasonable.

FAWCETT V. CANADIAN CHIROPRACTIC EXAMINING BOARD

2010 ONSC 4903 (CanLii)

PROFESSIONAL REGULATORS MAY OBTAIN TRANSCRIPTS FROM PROCEEDINGS SUBJECT TO A PROVINCIAL COURT PUBLICATION BAN IN SOME CIRCUMSTANCES

2010-09-03T13:06:00.004-07:00

Recently, the College of Teachers obtained an order producing the transcript of evidence of a child witness at a preliminary hearing in respect of a teacher, Mr. Sidhu, who had been criminally charged with sexually offending against a child: The BC College of Teachers v. British Columbia 2010 BCSC 847.
Mr. Sidhu had resigned from the College a few years before the charges were laid. He was ordered to stand trial following the preliminary hearing, but ultimately the charges were stayed and did not proceed. There were 2 publication bans pursuan tto s.539(10) and 486.4(2) of the Criminal Code.
The College intended to proceed against Mr. Sidhu in a discipline hearing and had applied for access to the transcript of the child's evidence for use in those proceedings. The ban pursuant to s.539 was made at the beginning of the preliminary inquiry and was in effect until such time as Mr. Sidhu was discharged or the trial had ended. Mr. Sidhu argued that the stay of proceedings was not an end to the trial, as no trial had been commenced so that the ban remained in effect. The Court did not accept this argument and found that in the circumstances, in light of the stay and the fact that one year had passed since the stay had been entered, the trial was at an end, and so the publication ban was at an end.
The situation with respect to a s.486.4(2) ban was different. This section requires the consent of the complainant before the ban may be lifted. The complainant was still an infant, was not in the jurisdiction and was not expected to testify before the College.
The Court decided to release the transcript, but not in a manner in which the ban would be violated. The transcript had to be reviewed by the Crown first and where applicable, all information that could identify the child complainant had to be removed.
The case is helpful because it indicates the court's willingness to interpret publication ban provisions liberally so as to assist professional regulators to carry out their duties. It is not clear how the College could use the transcript, if such important information is removed from it and the child witness was not going to testify, but that is another matter.

LSBC DECISION NOT TO HOLD A DISCIPLINE HEARING IS NOT SUBJECT TO JUDICIAL REVIEW

2010-08-20T16:21:00.003-07:00

In Taylor v. the Law Society of British Columbia 2010 BCSC 1098, the B.C. Supreme Court held that the decision of the Discipline Committee not to hold a discipline hearing with respect to a particular matter, is not subject to judicial review. The LSBC's Conduct Review Committee (CRC) had made a finding that there had been professional misconduct on Mr. Taylor's part and that a citation should be issued, but for reasons that were not set out in the judgment, the Discipline Committee decided not to proceed. Mr. Taylor applied to quash the decision of the Discipline Committee because it had accepted the CRC's conclusions and this information formed part of his record at the Law Society. The Court found that the decision not to proceed was an administrative one and as such was not subject to the Judicial Review Procedure Act. In the course of giving its reasons the Court noted that the LSBC was obliged to maintain the documents in Mr. Taylor's file as part of its duties to the regulate the practice of law and to protect the interests of its members and its duties to the public.
I think that the reasoning in this decision would apply to decisions of Inquiry Committees under the Health Professions Act - in other words their decisions are not subject to judicial review.

LACK OF BOARD OVERSIGHT MAY HAVE CAUSED PROBLEMS FOR THE COSTMETOLOGISTS

2010-08-20T10:12:00.003-07:00

The decision in Cosmetology Industry Association of British Columbia v. Nguyen, 2010 BCSC 1051, may serve as a warning to regulatory boards, that they must pay attention to the activities of their employees and carefully consider how much authority ought to be delegated to their registrars or executive directors.
The province decided to deregulate cosmetologists in December 2003, at which point the cosmetologists incorporated pursuant to the Society Act. Therefore, a cosmetologist does not have to be a member of a professional organisation in order to work and use titles associated with the industry, but practically, most salon owners require certification from the Society before hiring. Unfortunately in this case, the Association's CEO and a former board member "ran amok" causing serious financial loss for the Association which it was unable to recover.
In an effort to make it easier for BC cosmetologists to work in the USA an examination process was developed. The Association contracted to an organisation known as "NIC" to administer NIC's examinations. It would charge candidates a fee to take the exams. The idea was that candidates who passed these exams would be qualified to work in most US states. The project was viewed as beneficial financially to the Association. It is important to note that the CEO was not required to obtain approval for this contract from the Board of Directors. It appears from the decision that the Board knew nothing about it.
The CEO and former director Nguyen produced a questionable list of candidates to NIC, obtained the first examination and answer sheet and completed the exams with the assistance of another employee. The candidates did not complete the exams at all! However, it was not long before NIC concluded that there had been cheating and who was responsible for it.
NIC sued the Association for its expenses to ($254,000.00) to develop a new examination. A compromise was reached and the Association paid NIC nearly $200,000.00 Canadian funds to settle the claim.
The Association fired the CEO and unsuccessfully sued the former director, Nguyen in fraud to seek to recover its losses. It tried to put the blame all on the shoulders of the former director despite the fact that its CEO was heavily involved in the scheme from the beginning. Since she was found to be the Association's directing mind and was authorized to enter into the contract without reference to the Board of Directors, it could not be said that she was acting on her own and no fraud occurred because the Association, through its directing mind, did not rely on Nguyen and was not deceived by him.
This decision is a reminder that boards must be careful about the extent of authority granted to employees. Further, a board is responsible to oversee its operations and act responsibly in doing so. It appears that the board of this Association, at least in respect of this matter, was not fulfilling its duties.

BCCA CONFIRMS AUTHORITY OF DISCIPLINE COMMITTEES TO SET STANDARD FOR PROFESSIONAL MISCONDUCT

2010-08-18T16:41:00.002-07:00

In Salway v. Association of Professional Engineers and Geoscientists, 2010 BCCA 94, the B.C. Courth of Appeal had to consider the degree of deference owed to a discipline committee's assessment of whether certain behaviour constituted professional misconduct.

The member had been found guilty of professional misconduct for failing to respond to correspondence from clients in a timely manner. His clients had retained him to prepare a report in connection with a subdivision plan. They wanted to be exempted from the application of a city bylaw and required the report to support this application. The member was required to have his report peer reviewed before the city would accept it. The clients wrote or emailed him on 3 occasions regarding the peer review in a 3 month period, but the member did not respond. The discipline committee found that the behaviour constituted professional misconduct and imposed a reprimand and an order to pay for the costs of the hearing.

The member appealed on the basis that his behaviour was not severe enough to be characterized as professional misconduct. The Judge hearing the appeal in Supreme Court agreed and found that while the conduct was negligent, it was not "flagrant" and therefore was not professional misconduct.

The Association appealed to the Court of Appeal, which allowed the appeal. It found that the reviewing Judge had not given appropriate deference to the Discipline Committee's views following the decision in Dunsmuir v. New Brunswick [2008] 1 S.C.R. 190.

The Court of Appeal's reasons are of interest to lawyers in that they include a good review and analysis of the Dunsmuir decision.

The decision is very important to Colleges given that it clearly stated that the reviewing Judge had not paid sufficient deference to the tribunal's views and expertise. From a practical point of view, it confirms that as long as the conduct can be reasonably characterized as professional misconduct, that is all that is required: It clearly stated that the conduct did not need to be "dishonourable, disgraceful, blatant or cavalier" to be characterized as unprofessional. It said at paragraph 32:

.....it is the disciplinary body of the professional organization that sets the professional standards for that organization. So long as its decision is within the range of reasonable outcomes - ie., it is justified, transparent and intelligible - it is not for courts to substitute their view of whether a member's conduct amounts to professional misconduct.

3 CASES OF NOTE: JANUARY- MARCH 2010

2010-03-14T18:22:00.002-07:00

We are only into the first half of March, and already, 3 important decisions, 2 from the BC Court of Appeal, all in the area of professional regulation, have come down.

On January 21, the BC Supreme Court rendered its decision in College of Opticians of British Columbia v. Coastal Contacts Inc. and Clearly Contacts Ltd. 2010 BCSC 104. This case deals with the significant impact of the College's lack of a bylaw requiring registrants to report their business location to the Registrar.

This case, is one of the decisions arising from the College's efforts to stop businesses from selling contact lenses and glasses over the internet. The College of Opticians does not have a bylaw requiring its registrants to provide the Registrar with his or her business address and telephone number. In this case, the College became aware that a registrant was employed by such an internet business, but it did not know who that registrant was. Efforts aimed at having the registrant disclose this information had failed.

The College brought an application asking the Court to require Coastal Contacts to provide it with the name of any licensed optician, optometrist or qualified medical practitioner engaged by them to supervise dispensing of corrective lenses. The application was not brought pursuant to S. 29 of the Health Professions Act, but sought the order relying on an equitable remedy of "pre-action discovery", or the Court's inherent jurisdiction.

The Court refused to make the order on both grounds. In the case of an order based on a right to pre action discovery, the Court found that the College did not meet the criteria. As to the Court exercising its inherent jurisdiction, the College argued that such an order was appropriate because the Court may aid a tribunal to administer justice fully and effectively preventing frustration of its statutory mandate. The argument was that the refusal to provide the College with the name of the registrant employed by Coastal, frustrated its attempt to fulfill its statutory mandate to protect the public.

The Court would not make such an order because the College has control over its bylaws and should have created a bylaw requiring registrants to provide this information.

On February 24, the BC Court of Appeal, rendered its decision in Salway v. Association of Professional Engineers and Geoscientists of B.C. 2010 BCCA 94.

This is an important decision because it confirms that professional tribunals have the right to interpret their own professional standards, regardless of whether they are written or unwritten.

In this case, the registrant had been retained to prepare a report to assist his clients to obtain an exemption from a municipal requirement for a restrictive covenant, as part of a subdivision approval. The clients contacted the registrant on 3 occasions over a 3 month period concerning a problem that arose with the report, and he did not respond to them. He was disciplined for unprofessional conduct on the basis that he had failed to respond. The discipline committee found that the offense had been proven. The engineer appealed to the Supreme Court where the Judge found that a failure to respond did not amount to unprofessional conduct, because such conduct had to be flagrant, disgraceful, blatant or cavalier.

The BC Court of Appeal restored the decision of the discipline committee. It found that the Judge had failed to properly analyze the case in light of the 2 step process for review set out in Dunsmuir v. New Brunswick 2008 SCC 9. Most importantly, it said that reviewing Courts must "adopt a significant degree of deference to disciplinary decisions... concerning ... professional standards, regardless of whether those standards are written or unwritten....[para. 30]..... it is the disciplinary body of the professional organization that sets the professional standards for that organization. So long as its decision is within the range of reasonable outcomes -ie, it is justified, transparent and intelligible - it is not for courts to substitute their view of whether a member's conduct amounts to professional misconduct....[para 32]."

Finally, on March 12, 2010, the BC Court of Appeal rendered a decision in Joshi v. British Columbia Veterinary Medical Association, 2010 BCCA 129.

This case has been ongoing for 6 years. Dr. Joshi applied for registration in the Association but was unable to meet the requirement in s. 11(5) of the Veterinarians Act, that he be a person of good character. The Association received complaints at the time his application was being considered, that Dr. Joshi had been performing surgery on animals while unlicensed and without supervision. Dr. Joshi denied the allegations. The Council of the BCVMA was willing to hold a hearing to determine whether the allegations were true, but Dr. Joshi took the position that it had no jurisdiction to do so. He refused to participate in such a hearing. The BCVMA refused to register him. He sought an order requiring the BCVMA to register him.

The Association's bylaws did not provide for an oral hearing on such a matter, but the Council decided to hold one, so that the matter could be fairly determined in accordance with the principles of procedural fairness. The Court of Appeal held that the BCVMA had authority in these circumstances to hold an oral hearing. Procedural fairness required that a discretion to do so existed. Although there was no explicit power in the bylaws, the authority to hold such a hearing was a necessary incidental power available to the Council in the circumstances (paras. 10 and 11).

STAY OF EXECUTION NOT ALLOWED in BHULLAR V. BCVMA

2010-01-31T12:19:00.002-08:00

The SCBC recently refused an application for a stay of execution imposed by the BCVMA. Dr. Bhullar lost his licence to practice because of many findings of unprofessional conduct. He has challenged the decision on judicial review raising jurisdictional issues. The Court refused his application because the findings on the charges of unprofessional conduct themselves suggested that a stay could not be granted because it was not in the public interest. Bhullar v. BCVMA

2010 BCSC 85

SCC NEW RULING ON THE CHARTER AND MATURE MINORS

2010-01-27T17:38:00.004-08:00

The SCC recently considered the situation of a 16 year old devout Jehovah's Witness who gave an advance medical directive at age 15, not to be given blood under any circumstances in A.C. v. Manitoba (Director of Child and Family Services) 2009 SCC 30. She suffered from lower gastrointestinal bleeding caused by Crohn's disease. Her physician believed that the internal bleeding created imminent, serious risk to her health and that she required blood transfusions. The Director apprehended her and sought a Court Order authorizing treatment in accordance with her physician's recommendations. The patient and her parents opposed the application. The Manitoba legislation a presumption that where a child was age 16 or older, that child's views as to treatment were determinative unless it was shown that the child did not understand a decision or appreciate its consequences. Since this patient was under age 16, the presumption did not apply. The Court ordered the blood transfusions and this order was upheld on appeal. The parents and the patient argued that she was a mature minor so that her treatment decision ought to have been respected and that the Manitoba legislation infringed her rights under sections 2(a), 7 and 15 of the Charter. The majority judgment upheld the legislation.

INVESTIGATORS POWER INCLUDES POWER TO OBSERVE

2010-01-25T13:26:00.002-08:00

In Gore v. College of Physicians & Surgeons (Ontario) 2008 O.J. No. 3757, several physicians who performed high risk cosmetic surgeries were investigated. In one case, the investigation commenced because a patient had died. The Court was asked to consider the scope of the power to investigate - in particular, whether it included the power to directly observe surgical procedures performed by the registrants under review. They argued that the investigators could not do so. The court dismissed the applications for review holding that the powers of investigators are wide ranging, particularly in light of the purpose of the applicable legislation to protect the public. The Court followed the Supreme Court of Canada in Pharmascience Inc v. Binet [2006] 2 S.C.R. 513m in which it held that: it should be expected that individuals with not only the power, but also the duty to inquire into a professional's conduct will have sufficiently effective means at their disposal to gather all information relevant to determining whether a complaint should be lodged. (paras. 36 - 37).

DISCLOSURE OBLIGATIONS AT THE INVESTIGATION STAGE

2010-01-24T12:25:00.003-08:00

It is always difficult to know how much information must be disclosed to a registrant under investigation, before a discipline hearing has been launched. In 2009, the BCCA confirmed that the duty of fairness at the investigation stage is minimal. In particular, a registrant under investigation is not entitled to the investigation report at the investigation stage of a matter that is going through the inquiry and discipline process: Puar v. Assn. of Professional Engineers and Geoscientists 2009 BCCA 487

PRIVACY AND TRIBUNALS

2010-01-24T12:10:00.003-08:00

The Privacy Commissioner recently published an excellent tool for tribunal members to refer to in connection with their decisions. It is entitled Access and Privacy Issues: A Guide for Tribunals and is available on the Commissioner's website at www.oipc.bc.ca/pdfs/public/Guide_Admin_Trib(Jan2010).pdf.

SALWAY V. ASSN. OF PROFESSIONAL ENGINEERS

2010-01-24T11:20:00.003-08:00

Last year, the B.C. Court of Appeal dealt a potentially heavy blow to professional regulatory bodies who achieve agreements with wayward registrants. In Salway v. Assn of Professional Engineers and Geoscientists of B.C., 2009 BCCA 350,it overturned a consent agreement that had been achieved via a non statutory process developed by the regulatory body (the "Engineers").

At the time of the events, the Engineers did not have legislation in place that supported a consent resolution process in respect of disciplinary matters. Accordingly, they developed a process known as the "Stipulated Order Process". The registrant agreed to peer and practice review, in addition to paying significant costs following an investigation into his practice. The terms of the review were onerous and permitted the Engineers to suspend his membership if he breached terms of the agreement. The review process became expensive and protracted. Ultimately the registrant's membership was suspended. He successfully challenged the decision on judicial review.

It is important to understand that the decision is probably limited to its facts because the Court reached its conclusions having regard to the specific provisions of the Engineer's legislation in force at the time. The Stipulated Order Process was inconsistent with the enabling legislation in certain specific respects. This meant that those provisions had to be struck down. In addition, the Process delegated functions that had been given to the discipline committee by the enabling legislation to another body. This amounted to an improper delegation of the Engineer's disciplinary functions and could not be sanctioned by the Court.

Thus, while the decision on its face is a blow to consensual resolution of disciplinary matters, it is probably limited to the situation facing the Engineers at the time. Most regulatory bodies have enabling legislation that provides for a consent resolution process. Accordingly, the Salway decision should not apply in most cases.

AUGUST 2009 NEWSLETTER

2009-08-17T18:15:00.004-07:00

BCSC Upholds Inquiry Committee Interim Suspension Pending Investigation

The College of Pharmacists' Inquiry Committee imposed an extraordinary suspension upon a registrant who was under investigation. After negotiations, the College and registrant reached an agreement whereby the registrant was permitted to work, but under strict conditions and in a different pharmacy. Her practice was audited during this period and when the investigation was completed, audit reports revealed that she was not meeting acceptable standards of practice even under the conditions. The Inquiry Committee referred the matter to the Discipline Committee and again suspended her registration pending the hearing. In the meantime, new allegations of misconduct came to light A Citation was not immediately issued while the new concerns were investigated. The registrant appealed the suspension on several grounds relating to procedural fairness. Her appeal was dismissed. This is an important decision as it is only the second time that the BCSC has considered the extraordinary suspension provisions in the Health Professions Act. The Court approved the steps the College took, including the extent of the Inquiry Committee's written reasons.

Farbeh v. College of Pharmacists of B.C. BCSC 2009

BCSC UPHOLDS CONSENT AGREEMENT

2008-07-25T15:14:00.008-07:00

The Association received a serious complaint about a member’s work. A Discipline Hearing was scheduled, but the Association and member reached an agreement known as a “Stipulated Order” beforehand. In this agreement, the member acknowledged that he understood the legal implications of entering into it without a hearing. Among other things, he consented to a peer review, a practice review (both at his own expense) and to pay costs of nearly $40,000.00 over time.

The agreement contained an interesting provision whereby a member of the Discipline Committee, known as the “Reviewing Member”, oversaw the member’s compliance with it. If he determined that the member failed to comply with its terms, he had the power to impose further conditions, or suspend or revoke the members license to practice.

The member cancelled the practice review and made a change regarding his peer review. As a result, the reviewing member imposed further conditions on the reviews.

The member then challenged the agreement in Court on the basis that the Association had acted outside its jurisdiction in implementing the Stipulated Order process. He argued that since the Stipulated Order procedure was not contained in the legislation, the agreement was invalid.

The Judge rejected this argument and upheld the Agreement. She found that the agreement was a contract because it was reached by a consensual process. She pointed out that the Association had taken great care to implement an alternate dispute process that was fair and thorough. Since the member had agreed to it, and there was no reason to conclude that he had been improperly treated, the agreement was upheld.

Salway v The Association of Professional Engineers and Geoscientists of British Columbia, [2008] BCSC 803

STANDARD OF PROOF

2008-07-23T11:21:00.009-07:00

This case is a useful reminder that there is a difference between the standard of proof and the evidential burden and that these standards are applied at different points during a proceeding.

A registrant of the BC Veterinary Medical Association (BCVMA) was charged with professional misconduct for failing to cooperate with an investigator looking into 2 complaints against him. A hearing took place and at the close of the case for the BCVMA, the Inquiry Panel indicated that the evidence was insufficient to prove the charge of professional misconduct even though it expressly found there was evidence of a failure to cooperate. It dismissed the case before calling upon the registrant to elect whether to call a defence

The Veterinarians Act provides for a two step discipline process. At the first stage, the Inquiry Committee conducts a hearing at which it is authorized to:

(a) “hear and decide on the facts surrounding the charge or complaint,(b) find whether the charge or complaint, if any has been proven and(c) report its findings to the council.(Section 17(1))

Upon review of the report from the Inquiry Committee the Council is authorized to determine whether a professional offence has been proven and if so, to impose a penalty.[Section 17(2)].

The Council of the BCVMA considered the result and decided the panel had made a substantial legal error when it dismissed the case at that stage. It referred the matter back for a new hearing. The registrant appealed this decision to the Court.

The Court upheld the Council’s decision and found the panel exceeded its jurisdiction when it “dismissed” the charges, because it did not have legislated authority to do so. It further held that the Council’s decision to refer the matter back for a new hearing was reasonable, because the Inquiry Panel did not have authority to dismiss the charge and should have put the registrant to his election regarding whether to call a defence.

Further, the Court held in a well reasoned analysis that the application for judicial review of the Council’s decision was premature and that the case should be completed before coming to Court since there was nothing exceptional in the circumstances to attract judicial intervention at this stage.

Bajwa v British Columbia Veterinary Medical Association, 2008 B.C.S.C. 748 (June 12, 2008).

PROFESSIONAL REGULATION AND THE LAW

2008-06-10T11:15:00.005-07:00