April 29, 2011

Judicial review for apprehension of bias: Brar and the College of Veterinarians of BC

Administrative Law
Human Rights
Professional Regulation

As the latest turn in the ongoing human rights claim by a group of Indo-Canadian veterinarians against the College of Veterinarians of British Columbia (formerly the BCVMA), Mr. Justice Davies of the BC Supreme Court has dismissed the College’s petition to have Member, Ms. Judy Parrack, disqualified from continuing to hear the complaint, based on a reasonable apprehension of bias: Brar v. College of Veterinarians of British Columbia, [2011] B.C.J. No. 701 (B.C.S.C.).

The College brought its petition after Member Parrack made a statement and adjourned the hearing, upon being notified that the government was, at that point, declining to reappoint her as a member of the Human Rights Tribunal. By that point, she had presided over more than 200 days of hearing. In her statement, Member Parrack advised the parties that the Minister intended to let her appointment expire and that the only possible way to continue her appointment was a six-month Chair’s appointment pursuant to the section 6 of the Administrative Tribunals Act, S.B.C. 2004, c. 45 (the “ATA”). In response, one of the complainant veterinarians, as well as one of their legal counsel, made comments to the Vancouver Sun alleging the failure to reappoint Member Parrack was part of a political manoeuvre by the BC government. Counsel for the complainants also wrote to the BC Attorney General and the Chair of the BCHRT, urging them to take the steps necessary to enable Member Parrack to continue to hear the complaint. On August 12, 2010, the Acting Chair of the Tribunal authorized Member Parrack to continue exercising her powers as a member “until a final decision rendered” under s.7 of the ATA. On September 8, 2010, the College applied to have Member Parrack recuse herself based on a reasonable apprehension of bias. On November 10, 2010, Member Parrack dismissed the application.  The College alleged these events led to a reasonable apprehension of bias by Member Parrack.

1. No apprehension of bias arising from Member Parrack’s neutral statements to counsel: The College alleged the Member deliberately failed to address another avenue for for reappointment, namely s.7 of the ATA, as part of “a deliberate attempt to politicize the failure of the government to re-appoint her to her advantage and place blame upon the government for her inability to continue hearing the Complaint.” [16] The College submitted Member Parrack “incited” a predictable response by the complainants who then campaigned for her re-appointment. [65]

The court found, however, that Member Parrack was obligated to advise the parties about the uncertainty that had arisen, [68] and her statement was neutral, concerned merely with process, [71] and motivated not by self-interest but legitimate concern for the parties. [68] Nothing in the statement incited the complainants to act as they did, [72] and Member Parrick could not have predicted the complainants and their counsel would “react by direct intervention in the appointment process.” [73] The court found further the parties did not rely on Member Parrack’s failure to refer to possible reappointment under s. 7, as communication between the parties established they were aware of its availability. [69]

2. No apprehension of bias arising from complainant and counsel statements to the media: The College submitted a reasonable apprehension arose from comments by the complainants and their legal counsel to the news media about government efforts to thwart the hearing of the complaint.  While the complainants made statements which possibly suggested Member Parrack being aligned to their cause, [80] the court found no evidence that the Member, as distinct from the complainants, played a role in “linking” the reappointment process and an alleged College agenda. [75] Member Parrack remained impartial: “I am satisfied that no informed, right-minded and reasonable person viewing the matter realistically and having thought the matter through would conclude that the unsubstantiated accusations and speculation attributed to [the complainant] and politically motivated speculation in a newspaper displaces the presumption of impartiality.” [83] Furthermore, while the complainants continued to “link” the government’s action to the College’s agenda in their response to the recusal application, [84] Member Parrack made clear in her reasons declining to recuse herself that she was not affected by any course of action by the complainants, or the reactions of the College. [88]

3. No costs to successful complainants: The court declined to award costs to the complainants in successfully defending against the College’s application because it disapproved of the complainants and their legal counsel’s statements to the media and their writing to the BC Attorney General and the Chair of the BCHRT to advocate for the reappointment of Member Parrack.

Brar v. College of Veterinarians of British Columbia, [2011] B.C.J. No. 701 (S.C.)