B.C.J. No. 750
2011 BCSC 518
British Columbia Supreme Court
M.A. Humphries J.
April 21, 2011
Lack of procedural fairness by an administrative tribunal resulted in the British Columbia Supreme Court referring the matter back to the administrative tribunal on an expediated basis with the registrant member having the opportunity to make submissions on conditions, versus suspension.
On January 25, 2011, the Inquiry Committee of the College of Dental Surgeons of BC, the respondent, issued citations against the petitioner in respect of six complaints, and suspended the petitioner's registration pending the hearing of the citations pursuant to the Health Professions Act, R.S.B.C. 1996, c. 183 (the "Act"). The petitioner sought to have the suspension set aside because of an alleged breach of procedural fairness on the part of the Inquiry Committee. In particular, the petitioner argued: (1) that the reasons provided by the Inquiry Committee were inadequate; (2) he was not given adequate notice of the hearing and was not given an opportunity to be heard and (3) the committee relied on material improperly before it. The College, on the other hand argued that the reasons were adequate, adequate notice of the hearing was provided to the registrant and that they legally relied on all material before it.
Regarding the petitioner's first submission, the Court found that although the reasons, taken in the context of all of the material already provided to the registrant, allowed the registrant to understand the concerns of the Inquiry Committee, the reasons did not contain an explanation of why the decision to suspend had to be made immediately. The Court stated that without such an explanation, the reasons were inadequate because the Court was unable to determine if the registrant was deprived of an opportunity to address the issue of conditions, versus suspension, on the basis of urgency.
Regarding the petitioner's second submission, the Court held that the registrant should have been given the opportunity to provide submissions in writing as to whether conditions should be imposed rather than having his practice suspended. Since the registrant was denied this opportunity, and because the Court was not satisfied that the matter was one of urgency, the requirements of procedural fairness with respect to being given adequate notice were not met.
Regarding the petitioner's third submission, the petitioner argued that the College ought to have obtained a Court Order to use those materials that were protected by the implied undertaking of confidentiality. Without the aspect of urgency being proved, the Court agreed with the petitioner.
The Court, in summary, found that the requirements of procedural fairness were breached and thus the petitioner was entitled to a remedy under s. 40(9) of the Act. Although the registrant argued that the appropriate remedy was to remove the suspension, the Court found that there was sufficient basis for concern that the suspension ought not be lifted. Accordingly, the Court referred the matter back to the Inquiry Committee to deal with the matter on an expediated based and to permit the registrant to make submissions with respect to the issue of conditions versus suspension.