March 24, 2011

Allowing a litigant to seek review of an HPRB decision anonymously under a pseudonym is an exceptional order

Administrative Law
Health Professions Review Board
Professional Regulation

Three recent decisions address the issue of registrants of colleges being entitled to anonymity while seeking judicial review of decisions of the Health Professions Review Board (“the Board”). By way of background, all of these cases involved complaints regarding treatment or care provided by specific physicians, all of whom were governed by the College of Physicians and Surgeons of BC. Complaints went through the College’s inquiry process, and the Inquiry Committee made no findings of wrongdoing. The complainants then failed to comply with the prescribed time limits under the Health Professions Act, R.S.B.C. 1996, c. 183, but the Board granted extensions for the complainants to apply for reviews. The physicians filed petitions to review the Board’s decisions. The main dispositions are pending, but the court decided whether the physicians were entitled to anonymity.

The physicians sought orders to proceed with their petitions under pseudonyms, a publication ban of filed documents, and a sealing of the court file. They submitted that without these orders their personal and professional reputations would be damaged, and they might not proceed with their petitions, depending on the outcome of their applications for anonymity. The BC Supreme Court, after reviewing relevant authorities, said this (in V.F. v. E.B. at para. 20, in R.S. v. C.O. at para. 21, and in V.F. v. S.T. at para. 21):

“The authorities suggest whether to grant an application to allow a litigant to proceed by way of pseudonym requires the court to consider:

1. whether there is any extraordinarily sensitive personal information about the physician, the complainant or a third party;

2. whether the party affected objects to the disclosure; and

3. whether disclosure of the information would undermine the very purpose of the judicial review application.”

The Court ultimately dismissed the applications, finding none of the factors existed, and the applicants failed to satisfy the test for publication bans articulated by R. v. Mentuck, 2001 SCC 76.

V.F. v. E.B., 2010 BCSC 1870, December 31, 2010; R.S. v. C.O., 2010 BCSC 1872, December 31, 2010; V.F. v. S.T., 2010 BCSC 1874, December 31, 2010.