May 28, 2019

No separate civil claims of investigation and complaint dispositions

Administrative Law
Health Professions Review Board
Inquiry and Investigations
Regulator Liability

Complainants who file complaints with colleges against health professionals, and have their complaints dismissed, sometimes choose not to proceed with the Health Professions Review Board and instead commence civil action against the college and the health professional. The exclusive jurisdiction of the Review Board was the basis for the Supreme Court to dismiss a civil claim against the College of Physicians and Surgeons of BC (the “College”) in Bigham v Northern Health Authority, 2019 BCSC 377.

The Bigham case involved a former patient who brought separate civil claims against a treating physician, the College, and a health authority. The claimant alleged a treating male physician had sexually assaulted her by performing a breast examination. The claimant had previously filed a complaint with the College, but the Inquiry Committee dismissed her complaint. The claimant had completed an intake form where she said she had no objection to a breast examination, and a female medical assistant present during the examination confirmed no inappropriate behaviour by the physician. [8-10] The complainant applied for review by the Review Board, but later withdrew her application. She then filed separate civil claims against each of the defendants.  Her claim against the College focused on its investigation and disposition.

The three defendants asked the court to strike the claims as limitation barred, and otherwise disclosing no chance of success.

Respecting the plaintiff’s action against the College, the court found that HPA s. 50.63 granted the Review Board “exclusive jurisdiction” over the issues the Plaintiff raised concerning the Inquiry Committee’s conduct. [25] HPA s. 50.63 stipulates the Review Board “has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined in a review or an investigation….” The provision may be read with HPA s. 50.6(5), which allows and obliges the Review Board to “conduct a review of the disposition” where it may consider both the adequacy of the investigation, and the reasonableness of the disposition.

The court found that, similar to the reasoning of the court in Gill v. WorkSafeBC, 2017 BCCA 239, the “only recourse” for the plaintiff was to proceed by way of review, where a reviewing tribunal has exclusive jurisdiction. [26] Accordingly, she had no reasonable prospect of succeeding at a trial. [27] She raised issues that the HPA required that she raise with the Review Board.

The court also found, in the alternative, that the plaintiff had commenced her civil claim against the College out-of-time. Assuming that the plaintiff knew of her claims at latest when she withdrew her application for review to the Review Board (Feb. 16, 2016), she did not bring her civil claim until more than two years later (on April 10, 2016). [34-35] Her claims against the College and against the health authority [82-83] were outside the two-year limitation period under the Limitation Act, S.B.C. 2012, c. 13.

The court did not address the plaintiff’s burden to overcome the college’s immunity under theDisciplinary Authority Protection Act, R.S.B.C. 1996, c. 98.

The court similarly dismissed the plaintiff’s claims against the physician. First, her claims other than sexual assault were barred by a limitation period. [53] Second, the plaintiff did not put forward any evidence to refute the physician’s assertion of no sexual assault. [64-66]

The Bigham decision confirms that complainants who are unsatisfied by a complaint investigation or a complaint disposition cannot skip the Review Board process by attacking the college in court.

The plaintiff appealed the dismissal against the health professional and the health authority, but not against the College.

Bigham v Northern Health Authority, 2019 BCSC 377

Lisa C. Fong and Michael Ng