HPRB deference on adequacy of investigations

At the start of 2014, we blogged here about a decision of the B.C. Supreme Court that B.C.’s Health Professions Review Board (the “HPRB”) must, when reviewing the adequacy of an investigation, grant deference to a registrar who conducts an investigation and summarily dismisses a complaint: Moore v. College of Physicians and Surgeons of British Columbia, 2013 BCSC 2081. The BC Court of Appeal has since heard and recently dismissed the HPRB’s appeal: Moore v. College of Physicians and Surgeons of British Columbia, 2014 BCCA 466.

The Court of Appeal provided minimal reasons, instead adopting the reasons of the reviewing judge below. Accordingly, the Court of Appeal appears to have affirmed the reasoning of the B.C. Supreme Court on at least two key issues.

First, a registrar who has summary dismissal powers is a “specialized” tribunal entitled to deference.

Secondly, and more broadly, the HPRB must defer to a College on the adequacy of any investigation, such that the HPRB must intervene only “where there is either no investigation or only a cursory investigation that is inconsistent with the nature of the complaint, or where even though there has been a proper, full investigation the disposition of the College is unreasonable” [2013 BCSC 2081 at paragraph 121].

The BC Supreme Court quoted an Ontario court decision, concerning Ontario’s HPARB, that said “The question as to the adequacy of investigation that was properly before the Board was whether the investigation undertaken was reasonable in the circumstances”.

This result appears to require a major change in the HPRB’s approach, which to date has been to determine the adequacy of any investigation without deferring to decisions of inquiry committees under the Health Professions Act. This means that inquiry committees are entitled to receive, from the HPRB, a degree of latitude concerning how far they may decide to investigate matters, based in part on the nature of the given complaint.

Moore v. College of Physicians and Surgeons of British Columbia, 2014 BCCA 466, affirming 2013 BCSC 2081

Lisa C. Fong and Michael Ng