BCSC UPHOLDS CONSENT AGREEMENT

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

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