The Court dismissed the appeal of Psychologist “Y” from the decision of the lower Court dismissing his assertion that the Nova Scotia Board of Examiners had no jurisdiction to pursue charges against him. The Court of Appeal held that an Order of prohibition was a drastic remedy to be used only in the clearest of cases and, in this case, it was desirable to have a full hearing and a determination of the issues on the merits. It was not clear that the Board had no authority to continue with the proceeding.

Administrative law – Decisions of administrative tribunals – Board of Examiners of Psychologists – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Accreditation – Misrepresentation – Jurisdiction of tribunal – Judicial review – Stay of proceedings – Remedies – Prohibition – Availability

Psychologist “Y” v. Nova Scotia Board of Examiners in Psychology, [2005] N.S.J. No. 350, Nova Scotia Court of Appeal, September 2, 2005, T.A. Cromwell, L.L. Oland and M.J. Hamilton JJ.A.

An appeal was commenced by the Plaintiff, Psychologist “Y”, from the decision of the Supreme Court dismissing his application for an Order in the nature of prohibition preventing the Nova Scotia Board of Examiners from proceeding with the charges of professional misconduct against him. The Board alleged that “Y” committed acts of professional misconduct by having a sexual relationship with a former client. “Y” claimed that the relationship occurred before “Y” became a registered psychologist and before the current legislation and Code of Professional Ethics came into force. “Y” alleged that the Board therefore had no jurisdiction to pursue charges against him and he applied to the Supreme Court for an Order prohibiting the Board from proceeding. The Court dismissed the application and “Y” appealed.

The Court of Appeal noted that prohibition was a drastic remedy and was to be used only when a Tribunal has no authority to undertake (or to continue with) the matter before it. Prohibition would be refused if the existence of jurisdiction was debatable or turned on findings of fact that had yet to be made. An Order for prohibition would lie only where it was clear and beyond doubt that the Tribunal lacked authority to proceed.

While the Court noted that the complaint related to the time before the Appellant was a registered psychologist, it held that whether and to what extent earlier conduct may constitute professional misconduct on the part of a registered psychologist was a legal question which the hearing committee had jurisdiction to decide. With respect to the Appellant’s alleged misrepresentation on his applications for registration, the Court noted that there was authority for the view that misrepresentation at the time of application for accreditation was a continuing act of professional misconduct so long as the accreditation continues. The Court held that it was far from clear that the hearing committee had no authority to inquire into the Appellant’s conduct in relation to his applications for registration. The present case raised complex factual and legal issues regarding conduct before and at the time of admission to a profession and it was not appropriate for the Court to pre-empt the hearing committee from addressing them. The matters for the hearing committee were not so plainly beyond the committee’s jurisdiction that it ought to be prohibited from proceeding. The appeal was therefore dismissed.

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