June 9th Conference Preview: 9:15-11:00am Applications for Registration – Implied Powers

Registration committees only have those powers that statutes give them expressly, or give them implicitly, when such powers are practically necessary to such committees fulfilling  their mandates. Unfortunately, an implied power is more a matter of assertion than a matter of certainty, and registration committees often lack many of the express powers of inquiry and discipline committees. For example, under the Health Professions Act, Inquiry Committees have an express mandate to investigate matters, and can obtain court assistance to obtain relevant evidence from non-parties (HPA s.29), whereas registration committees do not. Similarly, Discipline Committees have an express power to administer oaths to witnesses (HPA s.38(4)), and may order a witness to attend a hearing (HPA s.38(6)), with courts assisting to enforce such orders (HPA s.38(7)), whereas Registration Committees do not have equivalent powers, at least expressly. As a result, many registration committees face the challenge of addressing fitness issues based on “implied” powers which are open to challenge by applicants.

In the absence of express provisions, what powers do registration committees have, or are likely to have, to investigate fitness matters, to seek information and obtain documents from non-parties and patients, to make interim agreements during the registration process, to demand fitness assessments during the registration process or set other conditions before completion of the application process, or to otherwise control fitness hearing processes?

The scope of a registration committee’s implied powers may not be obvious. For example, courts have generally proceeded on the basis that coercive powers, such as summoning witnesses and requiring that people to produce documents or other evidence, must be conferred on a body expressly. Yet in Joshi v. BCVMA, 2010 BCCA 129, the Court of Appeal recognized an implied power of the BCMVMA Council to take oral evidence on oath or affirmation, and to allow the cross-examination of witnesses, since the absence of such powers would be “contrary to the statutory obligation of the Council to only admit applicants with satisfactory evidence of good character.” The “necessary incidental jurisdiction” of the BCVMA to “conduct an oral hearing” where evidence relevant to good character is in conflict strongly implies a power of any body charged with admitting only fit applicants to access and test all relevant evidence.

In the first session of the June 9th conference, we will be speaking on registration application topics including the scope of the implied powers that registration committees probably have, probably do not have, and why.