STAY OF EXECUTION NOT ALLOWED in BHULLAR V. BCVMA

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

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

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

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

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

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.