May 5, 2011

Implied powers of registration committees when holding fitness hearings

Administrative Law
Professional Regulation
Registration and Fitness

One of the key decisions to be made when addressing an application for registration that raises fitness or good character issues is whether procedural fairness requires that an oral hearing be conducted.  This issue has been particularly troublesome where the enabling legislation has not expressly set out the power of a registration committee to hold oral hearings, issue summonses for attendance or document/information production, and permit the calling and cross-examination of witness testimony.  A good example, is of such legislation is the Health Professions Act, which is silent on the powers of the registration committee to hold oral hearings and do all that is corollary to holding a fair hearing.

The British Columbia Court of Appeal recently provided guidance on the content of the duty of fairness in registration hearings in Joshi v. Veterinary Medical Assn. (British Columbia) 2010 BCCA 129. When an applicant’s credibility is at issue, the regulator and the applicant have a right to a hearing which can include oral testimony on oath (or affirmation) and cross-examination, if necessary to resolve witness credibility issues, even if the enabling statute does not expressly confer a power on the body to use such a process.

In Joshi, the Council of the BC Veterinary Medical Association (now the College of Veterinarians) denied the registration application of Dr. Joshi. Although the applicant had passed all necessary examinations and supplied character references, the Registrar had received information indicating the applicant had previously performed surgery at an animal hospital, contrary to the Veterinarians Act, R.S.B.C. 1996, c.476 and the bylaws. Dr. Joshi denied the allegations. The Registrar provided statements from two former employees of the animal hospital who said they observed Dr. Joshi performing surgery.

The Council directed a full hearing, including witness evidence under oath. The scheduled hearing was adjourned due to an apparent settlement agreement under which the parties did not actually agree to terms. The hearing was adjourned when it became apparent both parties had irreconcilable views on the agreement.

Afterwards, Dr. Joshi changed counsel and took the position the Council had no jurisdiction to hold a registration hearing with oral evidence. Several months later, Dr. Joshi petitioned the court for judicial review to have the Council consider his registration application. As a result, Council reconvened the hearing, but Dr. Joshi took the position the Council had no jurisdiction to hold such hearing. Council decided not to hear the two former employees, and adjourned the hearing, [6] but then rejected Dr. Joshi’s application for registration. [7] On appeal, the Council was ordered to give reasons. [7]

The B.C. Supreme Court found that while the Veterinarians Act did not expressly set out powers to hold an oral hearing,the Council had a necessary power to hold an oral hearing about the applicant’s good character. [10] That lower court also found, however, the Council’s power to hold an oral hearing did not extend to examination of witnesses under oath or affirmation, or to cross-examination of witnesses. [11] On that basis, the court set aside the Council’s decision and directed a new hearing. The BCVMA appealed, and Dr. Joshi cross-appealed for an order that the Council admit him without a new hearing, based on delay.

The B.C. Court of Appeal concluded “[11] … procedural fairness requires that the Council have the discretion to take evidence on oath or affirmation and allow cross-examination where credibility is in issue. […] In my respectful view, the judge erred in finding that these powers were not part of the powers necessarily incidental to the jurisdiction of the council when conducting admission hearings.” Even more notable was the court’s reference to a possible right of an applicant to such measures: “[11] … The Council may also be required to grant those rights to an applicant in the interests of natural justice when credibility is in issue, and an applicant so requests.”

The court affirmed the decision below to order a new hearing, despite Dr. Joshi’s jurisdictional position (in part) against a hearing. [12-13]. The court rejected Dr. Joshi’s cross-appeal for an order admitting him to membership based on delay. [14] The new hearing was also to occur before Council members who had not previously considered Dr. Joshi’s application. [15] The parties were not to refer to the affidavits and statements in the 2004 proceedings in any new hearing. [15]

Joshi v. Veterinary Medical Assn. (British Columbia), 2010 BCCA 129, 3 B.C.L.R. (5th) 269 (B.C.C.A.)