PROFESSIONAL REGULATORS MAY OBTAIN TRANSCRIPTS FROM PROCEEDINGS SUBJECT TO A PROVINCIAL COURT PUBLICATION BAN IN SOME CIRCUMSTANCES

Recently, the College of Teachers obtained an order producing the transcript of evidence of a child witness at a preliminary hearing in respect of a teacher, Mr. Sidhu, who had been criminally charged with sexually offending against a child: The BC College of Teachers v. British Columbia 2010 BCSC 847.
Mr. Sidhu had resigned from the College a few years before the charges were laid. He was ordered to stand trial following the preliminary hearing, but ultimately the charges were stayed and did not proceed. There were 2 publication bans pursuan tto s.539(10) and 486.4(2) of the Criminal Code.
The College intended to proceed against Mr. Sidhu in a discipline hearing and had applied for access to the transcript of the child's evidence for use in those proceedings. The ban pursuant to s.539 was made at the beginning of the preliminary inquiry and was in effect until such time as Mr. Sidhu was discharged or the trial had ended. Mr. Sidhu argued that the stay of proceedings was not an end to the trial, as no trial had been commenced so that the ban remained in effect. The Court did not accept this argument and found that in the circumstances, in light of the stay and the fact that one year had passed since the stay had been entered, the trial was at an end, and so the publication ban was at an end.
The situation with respect to a s.486.4(2) ban was different. This section requires the consent of the complainant before the ban may be lifted. The complainant was still an infant, was not in the jurisdiction and was not expected to testify before the College.
The Court decided to release the transcript, but not in a manner in which the ban would be violated. The transcript had to be reviewed by the Crown first and where applicable, all information that could identify the child complainant had to be removed.
The case is helpful because it indicates the court's willingness to interpret publication ban provisions liberally so as to assist professional regulators to carry out their duties. It is not clear how the College could use the transcript, if such important information is removed from it and the child witness was not going to testify, but that is another matter.

LSBC DECISION NOT TO HOLD A DISCIPLINE HEARING IS NOT SUBJECT TO JUDICIAL REVIEW

In Taylor v. the Law Society of British Columbia 2010 BCSC 1098, the B.C. Supreme Court held that the decision of the Discipline Committee not to hold a discipline hearing with respect to a particular matter, is not subject to judicial review. The LSBC's Conduct Review Committee (CRC) had made a finding that there had been professional misconduct on Mr. Taylor's part and that a citation should be issued, but for reasons that were not set out in the judgment, the Discipline Committee decided not to proceed. Mr. Taylor applied to quash the decision of the Discipline Committee because it had accepted the CRC's conclusions and this information formed part of his record at the Law Society. The Court found that the decision not to proceed was an administrative one and as such was not subject to the Judicial Review Procedure Act. In the course of giving its reasons the Court noted that the LSBC was obliged to maintain the documents in Mr. Taylor's file as part of its duties to the regulate the practice of law and to protect the interests of its members and its duties to the public.
I think that the reasoning in this decision would apply to decisions of Inquiry Committees under the Health Professions Act - in other words their decisions are not subject to judicial review.

LACK OF BOARD OVERSIGHT MAY HAVE CAUSED PROBLEMS FOR THE COSTMETOLOGISTS

The decision in Cosmetology Industry Association of British Columbia v. Nguyen, 2010 BCSC 1051, may serve as a warning to regulatory boards, that they must pay attention to the activities of their employees and carefully consider how much authority ought to be delegated to their registrars or executive directors.
The province decided to deregulate cosmetologists in December 2003, at which point the cosmetologists incorporated pursuant to the Society Act. Therefore, a cosmetologist does not have to be a member of a professional organisation in order to work and use titles associated with the industry, but practically, most salon owners require certification from the Society before hiring. Unfortunately in this case, the Association's CEO and a former board member "ran amok" causing serious financial loss for the Association which it was unable to recover.
In an effort to make it easier for BC cosmetologists to work in the USA an examination process was developed. The Association contracted to an organisation known as "NIC" to administer NIC's examinations. It would charge candidates a fee to take the exams. The idea was that candidates who passed these exams would be qualified to work in most US states. The project was viewed as beneficial financially to the Association. It is important to note that the CEO was not required to obtain approval for this contract from the Board of Directors. It appears from the decision that the Board knew nothing about it.
The CEO and former director Nguyen produced a questionable list of candidates to NIC, obtained the first examination and answer sheet and completed the exams with the assistance of another employee. The candidates did not complete the exams at all! However, it was not long before NIC concluded that there had been cheating and who was responsible for it.
NIC sued the Association for its expenses to ($254,000.00) to develop a new examination. A compromise was reached and the Association paid NIC nearly $200,000.00 Canadian funds to settle the claim.
The Association fired the CEO and unsuccessfully sued the former director, Nguyen in fraud to seek to recover its losses. It tried to put the blame all on the shoulders of the former director despite the fact that its CEO was heavily involved in the scheme from the beginning. Since she was found to be the Association's directing mind and was authorized to enter into the contract without reference to the Board of Directors, it could not be said that she was acting on her own and no fraud occurred because the Association, through its directing mind, did not rely on Nguyen and was not deceived by him.
This decision is a reminder that boards must be careful about the extent of authority granted to employees. Further, a board is responsible to oversee its operations and act responsibly in doing so. It appears that the board of this Association, at least in respect of this matter, was not fulfilling its duties.