Damages not Available on Judicial Review

In Madadi v. B.C. College of Teachers 2014 BCSC 1062 Madame Justice Gropper considered whether damages could be awarded in judicial review proceedings and whether a statutory exemption from liability for the College of Teachers applied. In this case, the appellant was a teacher who had been prohibited from teaching for one year as a result of a discipline proceeding. The case had taken aproximately 10 years to be completed. Mr. Madadi launched an appeal under section 40 of the Teaching Profession Act. He also claimed compensatory damages as part of the appeal. By the time the case was heard the College had agreed to vacate the discipline order against him, so mootness became an issue. The Act contains an exemption from liability clause in favour of the college, its council, a member, an officer or an employee of the college provided he/she is acting in good faith. The Court held that this provision was a full answer to the claim. However the Justice addressed the applicable principles and in an erudite decision which considered many authorities, determined that damages are not available in proceedings which are tantamount to a judicial review. As her starting point, she followed case law from the SCC to the effect that a statutory appeal and judicial review from decisions of administrative tribunals are subject to the same principles: Dr.Q v. College of Physicians and Surgeons of B.C. 2003 SCC 19. The case is further useful because Mr. Madadi asked the Supreme Court to award him damages under the Human Rights Code. The Court refused to do this on the basis that the Code did not grant such authority to a superior court.

Registration & Criminal Charges

In Chauhan v. Health Professions Appeal and Review Board and the College of Physicians and Surgeons of Ontario 2013 ONSC 1621 (CanLii), the Court considered the effect of outstanding criminal charges on an applicant for registration. In this case, a physician applied for registration in the College. He was in the first year of a residency in plastic surgery and had been charged with several criminal offences arising out inapprpriate drug use and sexual violence against women. These charges had not gone to trial at the time his application for registration was considered and denied. He took the position he was entitled to be registered because of the presumption of innocence. The Registration Committee was careful to say when it denied his application, that he could apply for registration again at a future date. The applicant did not present any evidence to rebutt the charges or otherwise deal with his character or conduct. He simply denied the criminal charges. The Court held the decision to reject the application for registration was reasonable in the circumstances. It noted the seriousness of the charges and the fact the allegations included drug sue and acts of a violent sexual nature involving more than one complainant. It said "the existence of such charges is surely a relevant consideration in an application for membership in a professional organization governed by legislation which requires the College to consider the public interest"(paragraph 45). Further the Court noted "Given the College's public interest mandate, the Registration Committee must consider all the information it has before it. This may even include unproven complaints, for example, because they may be relevant to the protection of the public interest." (paragraph 46.)Finally, the Court said "it is an overstatement of the presumption of innocence to suggest that it means that criminal charges must always be treated as irrelevant to any legal determination involving the accused person". (paragraph 48). Registration Committees must be careful not to take the effect of this decision too far, but at a minimum it recognizes that outstanding criminal charges may be a legitimate consideration when evaluating applications for registration.

Inquiry Committees and Credibility

One of the nuances of an inquiry committee considering how to handle an investigation, is that it is not an adjudicative body and does not make findings of credibility. On the other hand, in order to make a good decision about whether to take no further action, to refer a matter for hearing or what terms to include in a consent agreement,an inquiry committee often has to effectively "weigh evidence" especially where the investigation has yielded conflicting evidence. How far can an inquiry committee go? The Ontario Health Professions Appeal and Review Board considered the role of an Inquiry Committee in Reyhanian v. Ontario (HPARB) 2013 ONSC 297 Ontario Superior Court of Justice (Divisional Court). In this case, a dentist was found guilty of professional misconduct. He had been assessed by a psychiatrist who found him to be suffering from a mental disorder and unfit to practice. The dentist complained about the psychiatrist to the College of Physicians and Surgeons. That College considered the complaint and the evidence to support it. Even though there was some conflicting evidence, it decided to take no further action. The dentist challenged this decision taking the position that unless a complaint was frivolous or vexatious, or of such a minor nature that referral was unnecessary, all complaints had to be referred to the Discipline Committee. This argument was made partly on the basis that an inquiry committee is not adjudicative and does not make findings of credibility. This argument was rejected. The Court held that an inquiry committee is "entitled to take a critical look at the facts underlying the complaint and the evidence that does and does not support it, along with a myriad of other issues (such as, the record of the respondent, special circumstances surrounding the incident, policy concerns, the capacity of the discipline committee, among others). The factual record revealed from the investigation must necessarily be part of that analysis. If the applicant's argument was correct on this issue, the ICRC would be obliged to refer to discipline a case in which a wild and unsupported accusation was made about conduct that occurred in front of 10 independent witnesses, all of whom asserted that the incident did not happen at all. That is simply not the test." While the decision does not articulate a clear test of how far an inquiry committee can permissibly go when considering conflicting evidence, it is useful because it recognizes the practicalities of the committee's role and the inevitablity that some consideration must be given to evidential differences.

35 Year Delay not an Abuse of Process

Recently, the B.C. Court of Appeal considered whether a 35 year delay in prosecuting a teacher for sexual misconduct with students was an abuse of process. In this case, allegations of sexual misconduct had been made against a teacher in 1976, but for reasons which are not known had not been adjudicated. One of the complainants learned in 2005 that the teacher had continued to teach over the next 30 years and brougt the matter to attention of the Vancouver School Board and new proceedings were commenced. One of the arguments the teacher made was that a 35 year delay was an abuse of process. The Court of Appeal reviewed all of the circumstances and applied the principles described in Blencoe v. British Columbia (Human Rights Commission) 2000 SCC 44. The Panel had determined that there was insufficient evidence of hearing or individual prejudice and that the public's sense of decency and fair play would not be offended by the 35 year delay. The Court of Appeal agreed with this conclusion stating among other things that ...."permitting Mr. Robertson to avoid facing a disciplinary hearing in these circumstances would carry with it a serious risk of bringing the regulatory process into disrepute." It should be noted that there was one dissent, but at this time it is not known whether there will be a further appeal to the SCC. Robertson v. British Columbia (Teachers Act, Commissioner)2014 BCCA 331

College of Opticians of B.C. in Trouble for Delegating its Statutory Role

Recently the BCSC considered the rule against sub-delegation by a statutory body. This decision is alarming for regulatory colleges under the Health Professions Act, many of which delegate credentialling and examinations to other entities. This case involves the College of Opticians which has recognized 4 optician training programs at educational institutions. The Petitioner runs a program and asked the College to recognize it. The College would not do so unless the program went through an accreditation process operated by a national association. The Petitioner would not go through the process. He argued that this process offended the rule against sub-delegation and that the College was required to set its own educational standards. Although the Court held that the College had not in fact delegated its power to the national body because it did not say that it would grant or refuse recognition solely on the basis of the national body's analysis, the decision is of concern because the Court ruled that the College was required to receive and consider such evidence as the Petitioner chooses to submit in support of its application to be recognized as a program for training opticians. It said the College "cannot close its mind to the possibility that in an individual case, there may be other evidence capable of demonstrating that an institution's graduates meet an acceptable academis standard. The problem for Colleges is that generally, they are not equipped to review and analyse material in support of educational credentialling and are reliant on outside experts to help them with this task. BC College of Optics Inc. v. The College of Opticians of BC 2014 BCSC 1853

Health Professions Review Board Overturned

Recently, the BCSC overturned a decision from the Health Professions Review Board which had interfered with disposition from the Inquiry Committee for the CDSBC. The Board had concluded that the investigation into a complaint was inadequate and the disposition was unreasonable. The complaint involved an allegation of incompetence arising out of only one negligent error made by a dentist. The IC's view was that one mistake did not establish that the dentist was incompetent. It conducted a review of several other files where the patients had been properly treated. Therefore it decided that there was no pattern of incompetence. The Review Board determined that one incident could indeed form the basis of an incompetency finding and sent the matter back to the IC with specific direction that action had to be taken against the registrant even if there was only one error. The decision contains a lengthy analysis of when a reviewing court will intervene, but the bottom line was that the Review Board's decision was overturned because it was patently unreasonable. The Review Board applied the wrong standard of review when it considered the College's interpretation of the Health Professions Act and when it assessed the evidence before it (the standard is reasonableness). It had applied its own assessment of the evidence instead of asking whether the IC's assessment was reasonable. In short, the Review Board failed to extend deference to the IC's decision. College of Dental Surgeons of B.C. v. Health Professions Review Board, et al 2014 BCSC 1841