November 12, 2014

The price of deference: inconsistency is OK

Administrative Law
Health Professions Review Board
Inquiry and Investigations
Professional Regulation

The BC Supreme Court recently found that the Health Professions Review Board improperly failed to defer to an interpretation of the Health Professions Act by a college under that statute, where its Inquiry Committee dismissed a complaint about what appeared to be a single instance of negligence, rather than a general pattern of incompetence: College of Dental Surgeons of British Columbia v. Health Professions Review Board, 2014 BCSC 1841 (appeal filed by the HPRB on October 27, 2014). One implicit result of the HPRB needing to defer to how an inquiry committee interprets its own “home” statute is that the committees of different colleges may interpret the same provisions in different ways, as long as their individual interpretations are “reasonable” ones. This raises a spectre of inconsistent approaches to the same statute. Subject to what an appellate court may say, however, the law appears to accept such possible inconsistency as the price of deference.

The dismissal of a complaint for mere negligence: Following a complaint to the college about a respondent’s allegedly substandard work on a dental crown and a bridge, which the complainant had replaced, the college’s Inquiry Committee carried out a chart review of several files relating to the respondent’s crown and bridge work. The review allowed, however, the respondent to select the files from which the Inquiry Committee could select work samples for review. After concluding against any pattern of problems, the Inquiry Committee dismissed the complaint, and the complained applied to the HPRB for review.

A dispute about the meaning of a statutory provision: The HPRB remitted the matter to the Inquiry Committee on two grounds. First, the investigation was inadequate, as the “chart review” process was “fundamentally flawed”. The college did not contest this finding. Second, the HPRB held that the Inquiry Committee’s approach of dismissing a complaint for lack of any pattern of problems was unreasonable, as section 33(6)(a) permitted the committee to dismiss the complaint (if it was not “trivial, frivolous, vexatious or made in bad faith”) only if “the conduct or competence to which the matter relates is satisfactory”. The HPRB applied a different interpretation of “satisfactory” which excluded a single instance of substandard work. The College took issue with how the HPRB concluded that the Inquiry Committee’s decision to dismiss was unreasonable.

A failure by the HPRB to defer to the Inquiry Committee’s interpretation of the statute: The court reviewed the HPRB’s decision on a standard of “patent unreasonableness” (as the HPRB had the benefit of a privative clause engaging the highest standard of deference under the Administrative Tribunals Act for any decisions within the HPRB’s exclusive jurisdiction). However, despite the HPRB acknowledging that it had to assess the committee’s disposition on a standard of reasonableness, it went on to apply its own interpretation of section 33(6)(a) of the HPA, without addressing whether the committee’s interpretation of a provision of its own “home” statute, section 33(6)(a), was a reasonable one. [125]

[128]      … The College, as the first instance decision-maker, is charged with interpreting the provisions of its home statute, the HPA, in the exercise of its functions. The Review Board is charged with reviewing some of those decisions, not as an appellate body, but as a body reviewing for reasonableness. It too must interpret the provisions of the same home statute in discharging its functions, but it is to review the College’s interpretation of those legislative provisions for reasonableness. (emphasis added)

The court found that the HPRB had failed to determine whether the College’s interpretation of section 33(6)(a) was reasonable. As such, its decision was “openly, clearly, and evidently unreasonable”. [132]

The prospect of different interpretations of the HPA: A duty of the HPA to defer to any single college’s interpretation of the HPA implies that if any provision is open to several “reasonable” interpretations, different colleges may adopt different “reasonable” interpretations. For example, different inquiry committees might decide differently about “satisfactory” conduct or competence never, sometimes or always including a single instance of careless work. Different colleges may interpret the HPA differently, and apply it as they see fit. While such a result is somewhat surprising – such a result within any level of the courts would practically invite appellate intervention – our look into the possibility shows that courts have stated that in an administrative law context, this is the price of deference.

On the issue of inconsistent decisions by administrative tribunals, for example, the Supreme Court of Canada noted in 1993 that, “[83] The advisability of judicial intervention in the event of conflicting decisions among administrative tribunals, even when serious and unquestionable, cannot, in these circumstances, be determined solely by the “triumph” of the rule of law.” And further: “[94] … If Canadian administrative law has been able to evolve to the point of recognizing that administrative tribunals have the authority to err within their area of expertise, I think that, by the same token, a lack of unanimity is the price to pay for the decision-making freedom and independence given to the members of these tribunals.” Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756. The Ontario Divisional Court said similarly in 1998 that “[4] … lack of uniformity is a price legitimately to be paid for the avoidance of improper judicial trespass in areas of administrative finality and is not a consideration that should change the applicable standard of review.” Maple Leaf Foods Inc. v. Alejandro, [1998] O.J. No. 2425 (Ont.Div.Ct.).

College of Dental Surgeons of British Columbia v. Health Professions Review Board, 2014 BCSC 1841 (appeal filed by the HPRB on October 27, 2014)

Lisa C. Fong and Michael Ng