June 30, 2011

Concurrent proceedings before a disciplinary hearing panel and the BC Human Rights Tribunal: can the same issue be decided by both at the same time?

Administrative Law
Human Rights
Professional Regulation

The issue of whether a professional disciplinary tribunal can rule on institutional bias, and the relevance of concurrent human rights proceedings addressing the same issue, was addressed by the B.C. Court of Appeal on June 13, 2011 in Bajwa v. British Columbia Veterinary Medical Association, 2011 BCCA 265, another decision in the ongoing dispute between a group of Indo-Canadian veterinarians and their regulatory body (now the College of Veterinarians of BC).

In 2007, an inquiry committee (the “Committee”) was convened by the Association to hear two charges of professional misconduct against Dr. Bajwa (the “Registrant”). A majority of the Committee found insufficient evidence for professional misconduct. The Association’s Council decided, however, the Committee lacked jurisdiction to dismiss the charges, or to terminate the hearing at the close of the prosecution’s case, and it ordered a new hearing. The Registrant petitioned for judicial review of the Council’s ruling, but the review was dismissed and the discipline matter remanded. At a hearing before a new Committee, the Registrant alleged the new Committee was ‘institutionally biased’ against him. The new Committee decided it had no jurisdiction to decide the issue of institutional bias [14], heard the matter, and found professional misconduct. The Council accepted the findings of the new Committee, and penalized the Registrant, who appealed to the B.C. Supreme Court.

On appeal, Madam Justice Allan found the Council and the Committee had erred in holding they had no jurisdiction to consider institutional bias. [21]

On further appeal to the B.C. Court of Appeal, the Association argued that the legislative scheme (the Veterinarians Act, R.S.B.C. 1996, c. 476 (the “Act”)) gave no jurisdiction to the Committee or the Council to “enter upon an inquiry into the issue of general discrimination or bias”. [22] The Association also argued that such an analysis, even had it been within its jurisdiction, was already being undertaken in related proceedings before the Human Rights Tribunal, making the matter an abuse of process.

Jurisdiction: Mr. Justice Hall, writing for the Court, found that the tribunal could have considered the charge of institutional bias:

“Bias is something that should be comprehensible by informed persons even if not legally trained. It will often be the case as well that a tribunal will have the assistance of legal counsel who should be able to assist in enunciating the relevant legal framework in which to consider such a question. I consider that bodies such as the Committee and the Council would normally be considered to have the capacity to adjudicate on issues of bias raised at a hearing notwithstanding that an extant legislative regime may not expressly grant such jurisdiction. [27]

Abuse of process: The court held further, however, that the bias issue was moot because of its conclusions on the second ground of appeal. The ongoing human rights hearings were examining “complaints of discriminatory conduct including differential treatment of complaints against them as compared to other practitioners, biased hearings, a lack of opportunity to informally resolve complaints and disproportionate penalties.” As such, they were “entirely congruent” with the complaint of institutional bias the Registrant sought to have heard by the Committee, which was essentially a complaint of systemic discrimination because of racial origin. [30] Thus, the process the Registrant sought to invoke would cause a duplication of proceedings, which would be of little practical utility, would waste adjudicative resources, and risk the possibility of inconsistent findings. [35-36]

Before the Supreme Court, Registrant’s counsel asked, “If Dr. Bajwa can’t raise the issue of institutional bias before the [Respondent’s] Inquiry Committee and he can’t raise it before the [Respondent’s] Council, and he can’t raise it in this Court, when can he raise it?” [38] According to the Court of Appeal, the proper answer, given the scope of the parallel proceedings, was “in the Human Rights proceedings”. [39]

Bajwa v. British Columbia Veterinary Medical Association, 2011 BCCA 265.

UPDATE: Leave to appeal dismissed (without reasons) by the Supreme Court of Canada on February 23, 2012.