Moore is replaced with an investigation gap analysis, and the end of patent unreasonableness

In British Columbia, under the Health Professions Act (HPA), the way the Health Professions Review Board (HPRB) conducts reviews of inquiry committee dispositions (of public complaints) has been the subject of much litigation. When must the HPRB defer to colleges? And when must courts defer to the HPRB? The legal landscape of reviews — and how courts may review HPRB decisions — has now been significantly clarified, and shifted, by the BC Court of Appeal: College of Physicians and Surgeons of BC v. Health Professions Review Board2022 BCCA 10 (or the ”Dawson” decision, named after the Complainant in that case).

The legal dispute is an esoteric one, but one with many practical implications. That dispute is ultimately about deference to decision makers: (a) when the HPRB can override the decisions of college inquiry committees, and (b) when courts can override the decisions of the HPRB.

Background

The basis of the dispute: With respect to complaint dispositions, the HPRB’s jurisdiction, under s. 50.6(5) of the HPA, is two-fold: (a) “the adequacy of the investigation conducted respecting the complaint;” and (b) ”the reasonableness of the disposition.”

The question that started the dispute: Must the HPRB afford deference to inquiry decisions about how they investigate complaints?

The Moore case: In 2014, the BC Supreme Court decided that the HPRB had to afford deference to inquiry committees by applying a “reasonableness” standard — even though s. 50.6(5)(a) only refers to the “adequacy” of an investigation, and not to “reasonableness” or “reasonable adequacy”. (More on that to come!) That case was Moore v. College of Physicians and Surgeons of BC, 2013 BCSC 2081. A three-member panel of the Court of Appeal agreed: 2014 BCCA 466. And thus, the Moore line of cases started.

The HPRB dodges Moore: The HPRB declined to strictly comply with Moore. On what rationale? The HPRB decided that since it was a tribunal free to interpret its own statute, this meant it was free to interpret what “reasonableness” meant, meaning it could decide to afford more, or less, deference to colleges. And since it had a privative clause as against the court, a court could not (said the HPRB) interfere with HPRB interpretations unless they were irrational, or absurd. (The HPRB is covered by s. 58 of the Administrative Tribunals Act, which says essentially that the HPRB’s findings “must not be interfered with [by a court] unless it is patently unreasonable….”)

As a result, the HPRB developed a new approach to how much deference it owed to colleges, which was somewhat limited. In what has been termed the Whiplash case (2015 BCHPRB 77, 2013-HPA-216(a)), the HPRB decided that it could assess whether an investigation was “adequate” using a less deferential standard than reasonableness. This approach was, in turn, applied by the HPRB in the Dawson case, where it held that an investigation had not been adequate. Additionally, even though the College had diverted the complaint matter to the registrar’s stream (for matters that are “other than” serious, meaning non-serious), the HPRB decided that the matters were “serious” matters, and therefore should have been streamed to the Inquiry Committee itself.

Thus began the court cases in Dawson about the HPRB’s obligation to afford deference on investigative decisions. In 2018, the B.C. Supreme Court decided to apply Moore, and agreed that the registrar was entitled to deference concerning her decisions about how to investigate the complaint matters: 2018 BCSC 2021.

The Court of Appeal decision

The appellate decision has three main take-aways.

Take-away #1 – the HPRB cannot review all Inquiry Committee procedures

First, because the HPRB is not a court, its jurisdiction is limited to what the statute confers on it. [186-189] In the context of self-governing professions, the HPRB’s jurisdiction is limited (with respect to complaints) to examining the adequacy of investigations, and the reasonableness of dispositions. [191-192] As the decision by a College to stream the complaint matters to the Registrar (instead of to the Inquiry Committee) did not decide the course of the investigation or the disposition, the court clarified, “[196] [t]he Review Board has no authority to deal with process errors that do not impact the adequacy of the investigations or the reasonableness of the disposition.” If anyone has issues with process errors that do not fall within the jurisdiction of the HPRB, they may address such errors with a court on judicial review.

(In making this decision, the court overruled Ridsdale v. Anderson, 2016 BCSC 942, to the extent that Ridsdale decided that “dispositions by the inquiry committee were not subject to judicial review.” [198] However, we note that the court in Ridsdale also applied other reasoning that might not have been overturned, i.e., that a judicial review of an IC disposition might also be refused on the basis that the issue is moot, because the decision under review never impacted the respondent to begin with, and therefore a judicial review to fix the decision is pointless.)

Take-away #2 – an adequate investigation meets its goals

The second take-away is that the court decided to overturn Moore but to replace it with some useful guidance — guidance for both Inquiry Committees and the HPRB — about what adequacy of investigation means, and when the HPRB may act patently unreasonably (i.e., clearly wrongly) when deciding that some aspect of an investigation has been inadequate.

The court decided that it had to set aside the Moore decision, [107] on the basis that the wording in the HPA about adequacy of investigation does not say anything about deference. Therefore, where the HPRB considers the “adequacy” of an investigation, “it is entitled (as long as it does not act patently unreasonably) to characterize the goals of the investigation and to make judgments as to whether the efforts expended were commensurate with those goals.”

However, the Court clarified what adequacy of investigation means: “[114] “adequate” if it is sufficient to meet its goals. There may be many goals of an investigation of a complaint against a physician. Obvious goals include public accountability and uncovering the truth. A further possible goal is to gather sufficient information to allow an effective remedy to be crafted. Scarcity of resources dictates that one goal of investigations will be to obtain necessary information without squandering resources. There are, no doubt, other goals that can be ascribed to the investigative process.”

The Court then went on to decide that the HPRB, in finding aspects of the investigation in Dawson inadequate, made a number of patently unreasonable conclusions of inadequacy, e.g., when it clearly misapprehended evidence about a period of “mismanagement” by the physician, [134] or its focusing entirely on the seriousness of the Complainant’s health problems rather than the extent to which the physician’s care fell below standards, [135] or its demand for more information that either existed in the record or would not be helpful. [136-140]

The Court’s decision provides guidance as to what committees must consider when deciding if their investigation is adequate, and for when an assessment of inadequacy by the HPRB may be patently unreasonable.

Take-away #3 – the “end” of patent unreasonableness

Perhaps the most significant decision by the Court is how the courts should approach judicial reviews of HPRB decisions. The question is this: if the HPRB has decided that a college disposition is unreasonable, how is a court to decide whether the HPRB’s decision is itself patently unreasonable?

The court engaged in an analysis which led it to conclude that, despite deference to the HPRB, the court need only look at the reasonableness of the inquiry committee’s disposition: “[174] …it is my view that, in deciding whether the Review Board’s view that the College’s decision was unreasonable was, itself, patently unreasonable, the Court can properly take a shortcut. It need only analyze the reasonableness of the College’s decision.”

In essence, the court decided that reasonableness is a single standard, and the question of whether a disposition is reasonable always has one right answer. Therefore, if the HPRB comes to a different conclusion than a court, the HPRB’s decision is patently unreasonable.

The court effectively eliminated the HPRB’s right to deference, with respect to reasonableness of dispositions. If the HPRB decides that a disposition is unreasonable, and a college seeks judicial review, the court may simply decide for itself if the disposition is unreasonable. If the court disagrees with the HPRB, then the HPRB’s decision is patently unreasonable.

[174] For reasons that follow, it is my view that, in deciding whether the Review Board’s view that the College’s decision was unreasonable was, itself, patently unreasonable, the Court can properly take a shortcut. It need only analyze the reasonableness of the College’s decision. A further inquiry into the question of whether the Review Board’s decision on review was patently unreasonable will not add any substance to the inquiry. It will be an empty mechanical exercise. […]

[178] In determining whether a decision by the College is a reasonable one, does the Review Board enjoy the luxury of having a range of acceptable dispositions, or will there be only a single acceptable outcome? In my view, the answer is that there will only be one acceptable outcome. The reasonableness standard is not intended to be amorphous. It is a single standard, not a variable one (Vavilov at para. 89). In order to be meaningful as a standard, and to have a rightful place in a system based on rule of law, it must yield a single, predictable, reproducible result. The question of whether a decision is reasonable is a binary one: a particular outcome to a legal or factual problem will be either reasonable or unreasonable. Its characterization as one or the other should not depend on the identity of the decision maker.

[179] Where an administrative body is asked to determine whether another administrative body has acted reasonably, only a single answer will fall within the range of acceptable outcomes. While the administrative body may have to undertake a detailed analysis of the context, and may have to reflect on the issues, there will, ultimately, be only one acceptable answer.

[184] If the Review Board had the authority to determine the reasonableness of the decision to stream Mr. Dawson’s complaint into the summary process, therefore, the question for the court on judicial review would simply be whether the Review Board’s determination was “right” in the sense of being the one acceptable outcome. In other words, the court would be called upon to examine the reasonableness of the College’s decision. (emphasis added)

Practically, this means the HPRB is either right or wrong about the reasonableness of a college’s disposition, and there is no leeway or margin of appreciation for the HPRB to be wrong.

Conclusion

The Court decision has greatly clarified constraints that apply to the HPRB when it reviews complaint disposition.

1. The HPRB has no jurisdiction over the Inquiry Committee’s procedural decisions that do not impact the adequacy of an investigation or the reasonableness of a disposition.

2. With respect to adequacy of investigations, it reversed the Moore decision (which the HPRB was not complying with in anyway), but then provided a method for assessing the adequacy of an investigation, with a view to various goals. It illustrated this method by overturning HPRB decisions to demand more information, where for example that information would not have accomplished investigative goals (e.g., to assess if a complainant failed to meet standards.

3. With respect to reasonableness of disposition, the Court has clarified that when a court is reviewing an HPRB decision about the reasonableness of a disposition, the proper approach is to re-decide the question that was before the HPRB, i.e., whether the original disposition was reasonable. The HPRB’s privative clause, which insulates it from interference unless its findings are patently unreasonable, has no practical meaning when the issue is the reasonableness of an initial disposition.

The end result is that the Review Board may decide what adequacy means, but adequacy must be assessed with respect to investigation goals. Such a test requires that the HPRB justify any finding of inadequate investigation by identifying a gap and why it is meaningful. With respect to any judicial review about a decision concerning the reasonableness of a disposition, it will (functionally) receive no deference from a court.

We were pleased to represent the College in this matter.

College of Physicians and Surgeons of BC v. Health Professions Review Board2022 BCCA 10

Lisa C. Fong, Q.C. and Michael Ng