March 29, 2012

The Ontario HPARB: A scope of review limited to what is sought

Health Professions Review Board
Inquiry and Investigations
Professional Regulation

Ontario’s Health Professions Appeal and Review Board (HPARB) cannot review a decision with respect to multiple registrants if a complainant limits her application for review to one registrant only. That conclusion led an Ontario court to find a decision of HPARB concerning its duty to review to be unreasonable in Wilcock v. Ontario (HPARB), 2012 ONSC 1249.

Based on two complaints against three physicians, Drs. A, J and W, the Complaints Committee decided to take no action against any of them. In particular, it decided to take no action against Dr. A due to his retiring, and due to his giving undertakings. The two complainants requested review, but later withdrew their requests concerning Drs. J and W. Their request for review continued in relation to Dr. A.

The HPARB advised it planned to proceed with a review respecting all of the physicians. Dr. J and Dr. W objected, but the HPARB asserted jurisdiction over all parties in the decision, [4]  although acknowledging its past practice of generally limiting its review to the submissions of the requesting party. [5]

The court accepted that since the HPARB was interpreting provisions of the Health Professions Procedural Code, the standard of review was reasonableness. [10] But while the Complainants had only partially withdrawn their request for review, HPRB’s view that a request for review of one registrant required a review of all registrants was an unreasonable interpretation. [14] As only Dr. A was a treating physician, the committee drew separate conclusions respecting Dr. A and Drs. J and W. [15] The public interest was not engaged without a request for review concerning Drs. J and W. Further, if the HPARB’s interpretation were correct, a decision to refer Dr. A to the Discipline Committee would close the door on any review concerning any physician, which would be unreasonable. [19] The court accordingly quashed the decision to proceed with a review relating to Dr. J and Dr. W. [24]

Wilcock v. Ontario (HPARB), 2012 ONSC 1249 (February 21, 2012)