June 19, 2011

The rights of complainants to appeal or review, or to demand procedural fairness

Administrative Law
Health Professions Review Board
Inquiry and Investigations
Professional Regulation

Whenever an inquiry committee decides against sending a complaint matter to a hearing, the next issue is the standing of the complainant under the relevant statutory regime to seek a review, or an appeal, of the decision. Some regimes provide an express right of review, e.g., the right of complainants under the Health Professions Act (under s.50.57) to apply for review to the Health Professions Review Board.

But unless the enabling statute for a regulatory body provides a right to a complainant to seek a review or appeal (to a court or to another body), a complainant does not have automatic standing to challenge the decision of an inquiry committee to resolve a complaint by means other than a hearing. This issue, which a participant raised last week at our 2011 Professional Regulation Conference, was addressed by the BC court in Emerman v. Assn. of Professional Engineers and Geoscientists of British Columbia, 2008 BCSC 1186, [2008] BCJ No 1663 [QL] (S.C.).

In Emerman, the court examined the fact that the Engineers and Geoscientists Act, RSBC 1996, c 116 (“EGA”) provided a right of appeal only to an “aggrieved” person with respect to decisions by the Discipline Committee, and no right of appeal to a complainant. The B.C. Supreme Court found that an “aggrieved person” for purposes of section 39 did not include complainants seeking to appeal decisions of APEG’s investigation committee. To seek a judicial review, the complainant would have to demonstrate a special interest in the proceeding. The court noted that in a disciplinary context, “[20] …the courts have generally found that a complainant does not have an interest in the proceeding.”

The narrow appeal language in the EGA may contrasted with the wide appeal language the Court of Appeal found included complainants under the (former) Dentists Act in Allen v. College of Dental Surgeons of British Columbia, 2007 BCCA 75, [2007] BCJ No 221 (C.A.). Under that statute, s. 55(1) provided a right of appeal to any “aggrieved person” from any determination, action or decision of any committee: “55(1) A person aggrieved by an order, determination, finding, action or decision of the council, the registrar, a committee, a panel or a board of examiners… may appeal to the Supreme Court within 45 days from the date of the order, determination, finding, action or decision.”

A complainant may, however, have some degree of procedural rights, such as a right to reasons. For example, in Emerman, the court (per Kelleher J.) reasoned that, “[t]he complainant was informed of the reasons why a discipline inquiry was not held. As such, the complainant has no basis for seeking judicial review in this regard.” (32) This wording, while not determinative of any complainant having procedural rights, raises the question of whether the court might have reached a different conclusion had the complainant not been informed of the reasons why the inquiry committee rejected a discipline inquiry. Certainly, some statutory regimes do provide complainants to a right to some degree of reasons. For example, the EGA, like the HPA, requires that an investigation committee disposing of a complaint without further investigation inform the complainant and provide a written summary of the disposition (s.34 HPA; s. 29(3) EGA). Some courts also refer to complainants having limited rights of procedural fairness, e.g., King v. Yukon Medical Council, 2003 YKSC 74 at 33-43 (fairness met where complainant met twice) and M.H. v. College of Physicians and Surgeons of Alberta, 2006 ABQB 395 at 29-45 (fairness met by allowing complainant to make submissions); also see Berg v. British Columbia (Police Complaint Commissioner), 2006 BCCA 225 (concerning extent of complainant’s right to participate at a hearing).

Emerman v. Assn. of Professional Engineers and Geoscientists of British Columbia, 2008 BCSC 1186, [2008] BCJ No 1663 [QL] (S.C.)