Administrative law – Physicians and surgeons – Disciplinary proceedings – Inquiry committee decisions – Suspensions – Judicial review – Standard of review – Reasonableness simpliciter
Dr. Q v. College of Physicians and Surgeons of British Columbia,  S.C.J. No. 18, Supreme Court of Canada, April 3, 2003, McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
Dr. Q. began treating Ms. T for depression in 1994. In 1995, the relationship became sexual. In making findings on credibility, the Inquiry Committee accepted Ms. T’s evidence that sexual acts had occurred, and disbelieved Dr. Q’s denial of any sexual involvement. Dr. Q appealed the Inquiry Committee’s decision to a single justice of the British Columbia Supreme Court, as provided for by Section 73 of the Medical Practitioners Act, R.S.B.C. 1996, c.285, which allows an appeal “on the merits” of the case.
The chambers judge reviewed the evidence, overturned the Inquiry Committee’s finding on credibility, and set aside the finding of infamous conduct. The College appealed to the British Columbia Court of Appeal, which dismissed the appeal on the basis that the British Columbia Supreme Court decision was not “clearly wrong”. The College appealed to the Supreme Court of Canada.
The Supreme Court of Canada reviewed the respective roles of an administrative tribunal and the courts, and confirmed that the standard of proof to be applied in professional conduct inquiries in British Columbia is the standard of “clear and cogent evidence” enunciated in Jory v. College of Physicians and Surgeons of British Columbia,  B.C.J. No 320, (SC).
This standard of proof was to be applied by the Inquiry Committee, but not by the British Columbia Supreme Court in reviewing the Inquiry Committee’s decision. Rather, the reviewing judge should have applied the “pragmatic and functional approach”, used in Pushpanathan v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 982, to determine the appropriate standard of review in the given circumstances.
In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors – the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question – law, fact, or mixed law and fact. The factors may overlap. (paragraph 26)
After proceeding through the consideration of these four factors, a court must apply one of the three currently recognized standards of review:
Where the balancing the four factors above suggests considerable deference, the patent unreasonableness standard will be appropriate. Where little or no deference is called for, a correctness standard will suffice. If the balancing of factors suggests a standard of deference somewhere in the middle, the reasonableness simpliciter standard will apply. (paragraph 35)
The Supreme Court of Canada held that, since the Medical Practitioners Act provided a broad right of appeal, the question was one of fact, and the Inquiry Committee was no more expert than the courts on the issue in question, which was a finding of credibility, a low degree of deference should be given and a standard of reasonableness simpliciter should apply. The purpose of the statute was held to give an ambivalent result, on the one hand being designed to adjudicate the discrete issue of one physician’s alleged professional misconduct, but on the other hand involving the College’s role in balancing competing interests and multiple policy objectives, such as the protection of the public, education, and setting the standards of ethics and practice.
The reviewing judge should have asked whether the Committee’s assessment of credibility and application of the standard of proof to the evidence was unreasonable, in the sense of “not being supported by any reasons that can bear somewhat probing examination.” (paragraph 39)
The Supreme Court of Canada held that the reviewing judge erred by applying “too exacting a standard of review and substituting her own view of the evidence for that of the Committee” (paragraph 42). The Court of Appeal also erred in affording deference to the decision of the British Columbia Supreme Court where, because the question of the standard of review was one of law, none was due.
The Court of Appeal, in conducting appellate review of a subordinate court, should have “… corrected the reviewing judge’s error, substituted the appropriate standard of administrative review, and assessed the Committee’s decision on that basis.” Judged on the proper standard of reasonableness, there was ample evidence to support the Inquiry Committee’s decision. The appeal was allowed and the order of the College against Dr. Q., which included an 18-month suspension and strict conditions for returning to the profession, was reinstated.
To stay current with the new case law and emerging legal issues in this area, subscribe here.