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.

AUGUST 2009 NEWSLETTER

BCSC Upholds Inquiry Committee Interim Suspension Pending Investigation

The College of Pharmacists' Inquiry Committee imposed an extraordinary suspension upon a registrant who was under investigation. After negotiations, the College and registrant reached an agreement whereby the registrant was permitted to work, but under strict conditions and in a different pharmacy. Her practice was audited during this period and when the investigation was completed, audit reports revealed that she was not meeting acceptable standards of practice even under the conditions. The Inquiry Committee referred the matter to the Discipline Committee and again suspended her registration pending the hearing. In the meantime, new allegations of misconduct came to light A Citation was not immediately issued while the new concerns were investigated. The registrant appealed the suspension on several grounds relating to procedural fairness. Her appeal was dismissed. This is an important decision as it is only the second time that the BCSC has considered the extraordinary suspension provisions in the Health Professions Act. The Court approved the steps the College took, including the extent of the Inquiry Committee's written reasons.

Farbeh v. College of Pharmacists of B.C. BCSC 2009