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

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

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

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

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

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

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

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.

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

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

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)