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).
No comments:
Post a Comment