April 29, 2011

Extraordinary suspensions and procedural fairness; College use of documents acquired by complainant through litigation requires leave of the Court

Administrative Law
Inquiry and Investigations
Professional Regulation

In a recent decision, Madam Justice Humphries of the BC Supreme Court found a lack of procedural fairness where the Inquiry Committee of the College of Dental Surgeons of BC directed citations on six complaints, and imposed an interim suspension on a registrant under s.35 of the Health Professions Act (“HPA”), pending a discipline hearing, [3] without giving him adequate notice of the matter at issue (interim conditions versus interim suspension), or opportunity to make submissions. [14] Stelmaschuk v. The College of Dental Surgeons of BC, 2011 BCSC 518 (S.C.).

The registrant asserted a lack of notice as to the true issues being considered by the Inquiry Committee, [17 and 18] a lack of urgency to support his being suspended without opportunity to respond, [13 and 14] reliance on materials improperly before the Inquiry Committee (where the complainant provided documents in breach of a confidentiality agreement and an implied undertaking), [19-21] and a lack of reasons as to why the Inquiry Committee chose to suspend him, rather than impose conditions. [12]

The court found that while the reasons allowed the registrant to understand the Inquiry Committee’s concerns, and the reasons for them, they did not explain why the decision to suspend had to be made immediately, and were therefore inadequate to sustain a decision made without the registrant having an opportunity to address the issue of conditions versus suspension. [32-34] Notice to the registrant as to the issues before the Inquiry Committee was misleading, and therefore inadequate. [40] The registrant should have been given opportunity to make submissions. [44] Finally, no urgency excused the College from seeking an order to allow it to receive confidential materials, even though the College was not bound by the implied undertaking of parties in litigation to use documents obtained in litigation only for purposes of the litigation. [48] “[47] … It is evident that third parties, generally government bodies, even those in the position of protecting the public, should respect the court process to the extent of seeking an order to be allowed access to such material.”

For various reasons, the court referred the matter back to the Inquiry Committee on an expedited basis, [58] with the member to have opportunity to make submissions on conditions versus suspension. [61]

Stelmaschuk v. The College of Dental Surgeons of BC, 2011 BCSC 518 (S.C.)