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.