BCCA GRANTS LEAVE TO APPEAL A PENALTY DECISION

The BCCA has granted leave to appeal to the Court of Appeal, a decision from the BCSC upholding a discipline committee's decision to cancel registration to practice pharmacy in Farbeh v. College of Pharmacists of B.C. 2015 BCCA 348.  Ms. Farbeh argues that the panel did not adequately consider whether she could safely practice as a pharmacist under conditions, especially since she practiced pharmacy without any problems for 7 years before the events in question.  The BCCA granted leave to appeal on the basis that there is some prima facie merit to the appeal (para. 17) and the Court may clarify the extent to which deference to the tribunal precludes consideration of whether alternatives to cancellation have been sufficiently considered and whether the severity of the discipline can be reviewed to determine whether it falls within a range of comparable cases (para. 14). 

BCSC Considers Section 35 Interim Suspension

In Scott v. College of Massage Therapists of B.C. January 7, 2015, the BCSC added to the growing list of important cases considering the standard of evidence required to support  action pursuant to section 35 of the Health Professions Act.  In this case, the inquiry committee imposed  severe restrictions on a massage therapists ability to practice.  In particular he could not treat female patients without a chaperone and had to post notice of his conditions in all the treatment rooms. In this case, a female patient reported that the massage therapist had masturbated while he was massaging her back and that he put his penis on her wrist twice during  treatment.  The patient did not see these events because she was lying face down on the treatment table.  Instead she inferred them based upon sounds she heard and conjecture.  The Court held that the Committee did not apply the correct standard when it imposed the conditions.  It required evidence of a strong prima facie case and that the evidence in this case did not meet that test.  The Court said that reliance upon an unsubstantiated statement based upon what the complainant thought she heard and felt, rather than what she saw, was insufficient to establish that the offence had occurred.  She found that the Inquiry Committee did not assess the plausibility of the complainant's account of what had happened, especially in light of the fact that the massage therapist worked in a clinic with other therapists including his wife, and did not have a history of prior complaints or a criminal record.

BCCA Confirms Test for Reinstatement to a Profession

In Kay v. the Law Society of British Columbia, 2015 BCCA 303, the BCCA has confirmed that the test for reinstatement to a professional college after loss of registration due to misconduct issues is the test in Watt v. Law Society of Upper Canada [2005] OJ No. 2431. In this case a lawyer was disbarred after he left the jurisdiction in 1998 leaving unpaid debts to a client and a bank and without closing his law practice properly. He left B.C. in order to avoid his creditors. He moved to France where he worked in real estate, again wracking up debts and eventually declaring bankruptcy in 2010. He returned to B.C. and in 2012 applied for reinstatement in the LSBC. A hearing panel decided to reinstate him on the basis that had acknowledged his mistakes, was remorseful and was "currently of good repute". The LSBC appealed this decision to the Benchers who decided the panel had not applied the correct test and rejected the application. The applicant appealed to the BCCA. The judgment contains an excellent discussion about the law in this area and confirmed the decision must be based upon whether the applicant for reinstatement is of good character, as opposed to of good repute. Could the LSBC now trust him to act honestly, ethically and in the best interest of his clients? The BCCA held that applying the Watt criteria - was it extremely unlikely that the applicant would misconduct himself again? - it could not be said the applicant was rehabilitated and of good character. The Benchers' decision not to reinstate him was upheld. The case also contains useful analysis about the standard of review in a case of this kind.

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

Ontario College of Pharmacists v. 1724665 Ontario Inc (DOB Global Pharmacy)  2013 ONCA 381 is an important case and the first one to consider the impact of international internet pharmacies and the ability of a provincial regulatory college to regulate them.  A call centre operating in Ontario arranged for prescription drugs manufactured mostly in India to be delivered to patients in the USA.   The call centre referred to itself as a "pharmacy"  and used other prohibited words such as "pharmacist" and "drug".  The drugs did not enter Canada.  The corporate entities running this business and their employees were not licensed in Ontario.  The argument was that they were not selling prescription drugs within Ontario because the drugs did not enter Canada, the patients were in the USA among other things.  The OCA upheld the trial judge's conclusion that there was a sufficient connection to Ontario to ground the Ontario College of Pharmacists' jurisdiction over the business.

A Useful Decision from the Ontario Supreme Court

Yazdanfar v. College of Physicians & Surgeons of Ontario 2013 ONSC 6420 (CanLii) is a useful decision that considers many issues.  The case was lengthy taking up over 68 days of hearing and considered allegations of professional misconduct and incompetence involving over 30 patients.    There were concerns around the physician's advertising of her professional services by using patients' testimonials in addition to the evidence around incompetent practice.  The College investigator gave expert opinion evidence, after interviewing the physician, who was compelled to attend the interview.  The transcript of that interview, was entered into evidence.  The Discipline Committee imposed very strict and severe conditions on the physician's practice that effectively made it difficult for her to practice.  The physician argued, among other things, that there were no written guidelines involving some of the practice concerns in issue.  The Court confirmed the well known principle that standards of practice do not need to be written down and exist by reference to evidence of a common understanding within the profession as to expected behaviour of a reasonable professional….(para 36).  The Court  held that a compelled statement is admissible in the context of a discipline hearing.  This is important because there has been some question about whether the criminal law concept of the right to silence has a place in this regulatory context (para 73).  The Court approved the use of the in house investigator as an expert and noted this was common practice within the regulatory context (para 75).  It further upheld the College's advertising guidelines around the use of testimonials and superlatives noting the vulnerable position of patients in relation to physicians (para 114).  Finally, the Court concluded that even though the imposition of conditions may have been tantamount to a revocation of licence to practice, the more important value was protection of the public.  The penalty was reasonable. (para 164)

HPRB's Interference Quashed by BCSC

In Moore v. The College of Physicians and Surgeons of B.C. & the Health Professions Review Board, 2013 BCSC 2081, the BCSC "slapped the Board's wrists" and reigned in its interventionist approach in this case.  The College's Registrar is authorized under section 32(3) of the HPA to investigate and dismiss certain kinds of complaints.  An individual who was a prisoner in the correctional system at the time, complained that a physician had wrongly changed his prescription for a particular drug.  The Registrar investigated the complaint.  The complainant's story was inconsistent with the physician's version of events.  Nevertheless, in view of the nature of the complaint, and the evidence considered, the Registrar dismissed it.  The Review Board decided that the investigation was inadequate and directed the Registrar to review the file, interview the complainant and ask him certain specified questions.  The BCSC concluded that the Review Board's decision was patently unreasonable in that it failed to take into account the statutory provisions around the Registrar's role (para 113) and did not accept the deference it owed to the College (para 118).  It said that the Registrar's decision fell within a range of outcomes that were reasonable and rational.  Therefore the Board was not entitled to intervene.  (para 121)

Entitlement to Special Costs

In Malik v. the Law Society of British Columbia 2013 BCCA 337, a member of the Law Society who had been disciplined unsucessfully, asked for special costs against the Law Society.  The member had been involved in a Rowbotham application seeking state funding for his father's defence against criminal charges.  The judge hearing the application expressed some concerns about the member's conduct in his reasons.  These came to the Law Society's attention.  It investigated the member and a Citation was issued.  Ultimately, all of the allegations against the member were dismisssed.  They were serious in nature alleging such things as filing a false or misleading affidavit and participating in a scheme to provide false information to the Court.

The member argued that he was entitled to special costs, because the Law Society's conduct of his case had been reprehensible, and that the Law Society review panel ought to have considered the special costs regime in the Rules of Court and applied it.  These arguments were rejected on two bases.  The first was that as a matter of fact, there was no reprehensible behaviour on the part of the Law Society.  As to the argument that  the Court's regime for special costs was applicable, the Court held that since the Law Society was authorized in its legislation to regulate assessment of costs, and had done so, the Court's regime did not apply, although the Court's jurisprudence might be a helpful consideration (see Shpak v. Institute of Chartered Accountants of B.C. 2003 BCCA 149.)

 http://canlii.ca/t/fzqb1

JOINT SUBMISSIONS AND DISCIPLINE PROCEEDINGS

In Nanson v. Saskatchewan College of Psychologists, 2013 SKQB 191, the Saskatchwan Court of Queen's Bench considered a situation where  the College and Registrant had reached an agreement on the facts and penalty for certain professional infractions.  Counsel for both parties made a joint submission to the Discipline Committee regarding these matters.   The hearing took 5 minutes.  Some time later, the Discipline Committee issued a 13 page decision in which it rejected the recommendations made by both parties, substituting its own conclusions on characterization of the offences and penalty.  There were several issues on appeal, but the most important one for today's post, is that the Discipline Committee did not advise counsel that it was considering rejection of the joint submission.  It did not give counsel an opportunity to respond to its concerns.  The Court ruled that this was a breach of procedural fairness and allowed the appeal in part. 

In reaching this conclusion, the Court made several important observations about the role of joint submissions.  It said, among other things, at paragraph 48:

Generally, the negotiations that are needed to arrive at a joint submission can only work effectively if both the offender and the prosecutor are able to proceed with a considerable amount of confidence that the agreement will be implemented. There is, of course, no guarantee that this will be done by the sentencing judge. However, the cases clearly state that such a judge should only depart from a joint submission after applying carefully considered principles. This law respecting the rejection of a joint submission is well known, and ought to have been known to the Discipline Committee here given the reference to Rault. The trial judge should not reject a joint submission unless it is unfit or unreasonable. A joint submission should only be departed from where the proposed sentence is contrary to the public interest, and, if accepted, would bring the administration of justice into disrepute. The obligation of a trial judge to give serious consideration to a joint sentencing submission stems from an attempt to maintain a proper balance between respect for the arrangement reached, and the sentencing court’s role in the administration of justice.

It may be helpful for counsel to cite this decision to a discipline committee in situations where a joint submission is being made.

http://canlii.ca/t/fxlc0

SCC Addresses Guidelines in Administrative Context

The SCC has issued a useful decision in Agraira v. Canada (Public Safety and Emergency) 2013 SCC 36, a case involving review of a Ministerial decision denying a Libyan citizen relief from an order that he was not admissible to Canada because of sustained contact with known terrorist and/or terrorist connected organizations.  Although it is not directly relevant to professional regulation, the decision contains an excellent summary of current jurisprudence about the reasonableness standard on an application for judicial review (Paragraph 48 ff).  Beginning at paragraph 76, it also contains a useful analysis of the principles of statutory interpretation, examining the purpose of the legislative provision in question and the context in which it operates.  The main reason I have noted the decision is because it may be the first in which the SCC discusses the use that may be made by an administrative agency of guidelines - in other words, directions that are in the form of policy rather than legislation.  In this case the Minister made his decision regarding the applicant, in part relying on a manual prepared by Citizenship and Immigration Canada entitled Inland Processing Manual:"Refusal of National Security Cases/Proecessing of National Interest Requests".  At paragraph 60 the SCC said that the  manual's guidelines contained a set of factors that were relevant and reasonable to be used in evaluating applications of the kind before the Minister.  It noted that these guidelines did not have to be applied formulaically, but guided the exercise of his discretion and assisted in framing a fair administrative process for such applications.  As a result, the Guidelines can be of assistance to the Court in understanding the Minister's implied interpretation of...."  In my mind this is an important recognition which can be relied upon in the regulatory context of professions.  Inquiry Committees, Discipline Panels, Registrars and others working within the system can safely rely upon policy directives, knowing that they have weight before a Court.

http://canlii.ca/t/fz8c4

Pharmacy Clearing House Subject to Provincial Jurisdiction

In Ontario College of Pharmacists v. 1724665 Ontario Inc (Global Pharmacy Canada),   2013 ONCA 381, the Ontario Court of Appeal upheld an injunction granted by the Ontario Supreme Court ruling that an internet pharmacy business  (Global) based in Mississauga, Ontario, selling drugs to Americans, supplied by pharmacists in India, is subject to the jurisdiction of the Ontario College of Pharmacists.  Global operated a call center from which its employees received internet orders for prescription medication from Americans.  Canadians were blocked from accessing the site.  The orders were processed, payment received or refunded if necessary, and problems were solved at Global.  The drugs were sent directly to the American customers from pharmacists in India and did not enter Canada.  The drug packages were sent into the US labelled as "health products for personal use".  Global argued that it was not subject to provincial regulation because it was not selling prescription drugs to customers in Ontario and the contracts were not substantially connected to Ontario. The OCA upheld the trial judge's analysis that the purposive approach  to statutory interpretation meant that there was a substantial connection to Ontario notwithstanding that the public affected was outside the jurisdiction.

http://canlii.ca/t/fz49z

Off Duty Conduct & Standard of Review

In Fountain v. BC College of Teachers 2013 BCSC 773, the BCSC recently considered the standard of review in an interesting case involving off duty conduct of a teacher.  He was experienced in the use of firearms and had qualified for a Firearm's Acquisition Certificate.  He had some difficulties with his sons who were young men at the time of the events.  The family lived  on a farm and there was an incident as a result of which the teacher fired a rifle above the heads of his sons to warn them away from the farm house.  He was convicted of careless use of a firearm, but the conviction was overturned on appeal, and he was acquitted. 

The College of Teachers inquired into this conduct and found that his conduct amounted to professional misconduct.  The discipline panel was aware that the criminal conviction had been overturned and the reasons why.  He appealed the findings from the College and they were overturned.

The decision contains an excellent summary of the role of a reviewing court especially where  off duty conduct is concerned.  In its decision, the panel did not explain why the conduct in this particular case was relevant to  the teacher's ability to function as an educator or whether it would harm the education system. 

In addition, the panel had not taken into account the reasons why the criminal conviction had been overturned.  The court concluded that the reasons did not demonstrate a line of analysis and pass the test for reasonableness as to how they arrived at their decision when the facts found by the panel are reviewed, together with the conclusion.  (paragraph 46)

http://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc773/2013bcsc773.html

Patient Physician Confidentiality

The BCCA has refused an order on behalf of the plaintiff in a class action for the names and contact information of patients  from a large number of physicians who may have injected their patients  with  Dermalive.  The physicians were not parties to the class action.  The objective of the application was to facilitate giving notice of the class action to people who may be members of the class. 

The Court  reviewed 2 decisions of the SCC on the special place of confidentiality in the physician patient relationship in Canada:  Halls v. Mitchell [1928] S.C.R. 125 and McInerney v. MacDonald [1992] 2 S.C.R. 138, and concluded that although the value of redress through the justice system is significant....one cannot say that recovery of money trumps the rights of the patient to keep private both the nature of medical services received and contact information held by the physician. (para 18)

Logan v. Dermatech et al  2013 BCCA 49

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.