February 18, 2018

Deference all the way, or in bits and pieces: does the Moore case require HPRB deference to more than choices of investigative procedures?

Administrative Law
Health Professions Review Board
Inquiry and Investigations
Professional Regulation

For colleges under BC’s Health Professions Act that have had the Health Professions Review Board reverse complaint dismissals by the registrar, based on an inadequate investigation of an “objectively” serious matter, the issue as whether the Review Board owes deference to how a registrar investigates and subsequently dismisses a complaint matter is a once again a live issue before the courts.

At least at first glance, the law would seem well-settled. In a case where, in 2010, a registrar dismissed a complaint on the basis it involved a non-serious matter (under HPA s. 32(3)(c)), the Review Board remitted the matter to the inquiry committee, based on the matter being serious (and thus beyond the jurisdiction of the registrar), and the investigation being inadequate. In 2013 and 2014, the BC Supreme Court and the BC Court of Appeal reversed this outcome, deciding instead that the registrar was a specialized tribunal entitled to deference from the Review Board concerning her exercises of discretion, including the scope of the investigation: Moore v. College of Physicians and Surgeons of British Columbia, 2013 BCSC 2081, affirmed 2014 BCCA 466.

Immediately after the lower-court decision, however, the Review Board interpreted the outcome in Moore very narrowly. In particular, it held that the Review Board only had to defer to the registrar’s “choice of procedures” and not with respect to the adequacy of any investigation. Further, a complaint matter could be “objectively” serious, meaning the Review Board could oust any registrar decision about a non-serious matter by deciding that it was “objectively” serious: Complainant v. College of Registered Nurses of British Columbia, Decision No. 2013-HPA-216(a) (the “Whiplash case”). The Review Board has since repeatedly applied the Whiplash case, and thus its own interpretation of Moore, throughout its decisions.

More recently, the Review Board disagreed with a registrar decision that various complaint matters were non-serious matters, and it sent the matter back to an inquiry committee based on an investigation having been inadequate for the serious complaint matters. The Review Board reached these conclusions, however, by applying the Whiplash case and not affording full deference to the registrar: HPRB Decision No. 2015-HPA-006(a).

In a five-day judicial review hearing before the court, legal counsel (Lisa C. Fong and Sara Hellmann for CPSBC; Frank Falzon, Q.C. for the HPRB; and William Clark for the registrant) revisited the Review Board’s duty to defer to the registrar’s exercises of discretion, instead of re-deciding seriousness, and reweighing evidence: College of Physicians and Surgeons of British Columbia v. Health Professions Review Board, B.C.S.C. Court File No. VLC-S-S-158032 (Vancouver Registry).

This is an important case for both colleges and the Review Board. For colleges, this case will clarify the vulnerability of decisions about how to investigate complaints, especially for colleges that use the registrar’s stream. For the Review Board, this decision will speak to its proposition, in court, that it may decide how to apply court decisions about its own duties, in different cases, as long as it acts rationally.

College of Physicians and Surgeons of British Columbia v. Health Professions Review Board, B.C.S.C. Court File No. VLC-S-S-158032 (Vancouver Registry) concerning HPRB Decision No. 2015-HPA-006(a).