April 23, 2012

HPRB infers the existence of a “registration decision” and decides the case without a hearing on the merits

Administrative Law
Health Professions Review Board
Professional Regulation
Registration and Fitness

Registration processes do not occur instantaneously; applicants send in applications for registration, and regulators may then respond, at an administrative level, to advise that some requirements have been met but others have not. Until recently, the role of the Health Professions Review Board (HPRB) has been to intervene only at the end of the process, following a final decision of a registration committee. Indeed, in an early decision the HPRB found that since an applicant for review had to be (among other possibilities) a person “refused a grant of registration under section 20,” the HPRB did not have jurisdiction to address a registration committee acting to insist that an applicant write an examination, at least until the registration committee had finally decided to reject her application based on her refusal to write the exam: see The Applicant v. The College of Psychologists of British Columbia, 2009-HPA-0008(a).

In a recent decision, however, the HPRB

  • treated notice that an application was incomplete under College bylaws as being a “registration decision,” based on the HPRB ‘inferring’ that the registration committee had given “instructions” to the registrar to reject applications not complying with the by-laws;
  • found that the Health Professions Act does not support bylaws that created conditions precedent to applications coming before the registration committee; and
  • after dismissing the application for summary dismissal, went on to decide the merits of the review, without any hearing on the merits.

This remarkable change in the HPRB’s process, if that be the case, can be seen in The Applicant v. The College of Traditional Chinese Medicine Practitioners and Acupuncturists of BC, 2011-HPA-109(a).

Background: The College’s Bylaw s. 48 imposes a substantive requirement that an applicant successfully complete required examinations, as well as related formal requirements (such as the payment of an examination fee). The examination requirement does not, however, come within the College’s power to recognize “substantial equivalence” (s.48(4)), which power only refers to specific educational requirements.

Insistence on a bylaw requirement can amount to a registration committee decision to refuse: The HPRB’s decision in this matter appears to determine that even if an “application” is held in abeyance or rejected on formal grounds, such a step is in fact a decision of the registration committee. Further, such screening before the application gets to the registration committee is not supported by the Health Professions Act:

“[11]  as per s.20(6)(b) described earlier, the registration committee includes the registrar. I am going to infer that the registrar had received instructions from the registration committee not to allow applications unless the requirements of s.48 of their Bylaws were followed, a condition precedent that is not supported by statute. I consider her refusal to accept the application as a refusal by the registration committee.” (emphasis added)

This approach seems, however, to ignore the legal effect of bylaws that can stand independent of a registration committee’s discretion under HPA s.20(1). For example, HPA s.20(2) only requires a registration committee to grant registration where a person applies “in accordance with the bylaws”. Instead, the HPRB has taken an approach by which it can treat any intermediate insistence by staff that bylaw requirements be met as being both illegal, and attributable to a decision of the registration committee itself. Further still, in finding that bylaws cannot create condition precedents to an application reaching a registration committee, the HPRB has engaged in an interpretation of the Health Professions Act that should have been the subject of a review hearing on the merits.

A decision on the merits of the application for review: Further, the HPRB did not merely deny the purported application for summary dismissal, but it went on to decide the application for review as part of the jurisdiction matter, without any review hearing:

[15] Given that the Review Board has jurisdiction this matter is referred back to the College for their decision on the merits of the Application. If that decision is adverse to the Applicant, he may apply for a review of that decision under s.50.54(2). (emphasis added)

If the HPRB is now making final decisions as part of jurisdictional or summary dismissal applications, such processes may, in effect, become summary hearings without warning. This, of course, raises significant procedural fairness concerns, in addition to bypassing entire steps set out in the HPRB’s rules (such as the production of the record, mediation, and an actual review hearing that is open to the public).

The Applicant v. The College of Traditional Chinese Medicine Practitioners and Acupuncturists of BC, 2011-HPA-109(a).

(Link here)