January 16, 2019

HPRB reviews: no slicing and dicing of deference

Administrative Law
Complaint Disposition Review
Health Professions Review Board
Inquiry and Investigations
Professional Regulation

The B.C. Supreme Court recently confirmed that the Health Professions Review Board must afford deference to registrars and inquiry committees, when reviewing for adequacy of investigation, and that more specifically, the Review Board may not apply different degrees of deference, e.g., more deference for selecting tools of investigation, and less deference for other aspects of an investigation: College of Physicians and Surgeons of British Columbia v. Health Professions Review Board, 2018 BCSC 2021 (the “Dawson” case).

The Dawson case involved a complaint mostly about how a family physician had treated three ailments of the complainant: a bowel disorder, a mental health issue, and a lesion on the complainant’s nose. For various reasons, the registrant did not diagnose the complainant as suffering from the conditions that specialists ultimately diagnosed or discovered. Given the circumstances, the registrar concluded that the conduct of the registrant for each matter was not a serious matter and dismissed the complaint. The Review Board decided, however, that the matters were “obviously” serious matters (such that they fell outside of the registrar’s jurisdiction), and further that the investigation had been inadequate.

A main issue on judicial review was if the Review Board had properly afforded deference to the registrar by performing a reasonableness review of the various decisions that had led to her dismissing the complaint. The courts had previously decided, in the Moore case in 2013 and 2014, that the Review Board owes deference to colleges respecting adequacy of investigation: Moore v. College of Physicians and Surgeons of British Columbia, 2013 BCSC 2081, aff’d 2014 BCCA 466 (“Moore”). The Review Board relied, however, on its own analysis of Moore by which it reasoned it could select degrees of deference to afford to colleges: 2013-HPA-216(a)) (the “Whiplash” case).

The court confirmed that the registrar was a first instance decision-maker responsible for interpreting the provisions of the HPA, and that the Review Board had to review the College’s interpretation for reasonableness. [132] This deference extended to a registrar deciding if a matter is a serious or non-serious matter, and her characterizing the essence of the allegations in a complaint. [131, 145-148] The Review Board recognized that it owed deference but failed to actually extend deference when it substituted its own assessment of the matters as “objectively serious” matters, based on serious outcomes. [149-150]

With respect to the standard of review that the Review Board owed to the College, the court ultimately rejected propositions that reviews for “adequacy of the investigation” under the HPA involve a “novel” statutory standard; that the Review Board may apply a flexible degree of deference; and that the Review Board is not bound by the standard of reasonableness that courts are bound to apply. [165-167] To the contrary, the Moore decision established a reasonableness standard that is binding on the Review Board. [179, 188] Furthermore, the Review Board’s approach in Whiplash, which it had adopted in the present case, was “fundamentally flawed and therefore patently unreasonable”. [191] Based on a purposive interpretation of the HPA, “adequacy must be reviewed by the Review Board on a reasonableness standard. To conclude otherwise is an irrational interpretation of the statute.” [214]

Further still, the court disapproved of the Review Board attempting to apply different degrees of deference, e.g., where the Review Board afforded deference closer to “correctness” respecting matters not involving medical expertise. The calibrated deference propounded in Whiplash was “opaque”. [215-216]. Notably, the court relied on comments by two justices of the Supreme Court of Canada disapproving of a proliferation of different degrees of deference in Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29). In essence, the court held that the HPA required a single standard of reasonableness for the tribunal, just as courts must apply a single standard of reasonableness, pursuant to the principles the Supreme Court of Canada set out in Law Society of New Brunswick v. Ryan, 2003 SCC 20 (at paras. 43-47).

In summary, the court decided that when reviewing for adequacy of investigation, the Review Board owes deference, and may not apply different degrees of deference, e.g., to different parts of the investigation. College decision-makers also have institutional expertise that warrant deference.

The Review Board has appealed the court’s decision to the Court of Appeal. Lisa C. Fong acts for the College of Physicians and Surgeons.

College of Physicians and Surgeons of British Columbia v. Health Professions Review Board, 2018 BCSC 2021

Lisa C. Fong and Michael Ng