A physician (“Dr. Litchfield”) applied for judicial review of a decision by the Investigating Committee of the College of Physicians and Surgeons (the “College”) finding him guilty on 9 out of 10 charges of inappropriate examinations and performing manual therapy without consent. The Court considered whether it was appropriate to deal with the judicial review application at this stage or whether it should defer to allow for completion of the internal process, including a hearing by Council and a statutory right of appeal, as set out in the Medical Profession Act, R.S.A. 220, c.M-11, (the “MPA”). The general rule is that an adequate internal appeal process should be exhausted but the Court retains discretion to allow judicial review in the face of an internal appeal in exceptional circumstances. Such circumstances did not exist. Council had broad powers to receive and consider relevant new evidence and address issues concerning legal errors and breaches of the College’s duty of fairness and duty to fairly investigate the complaints.

Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Investigations – Appeal process – Physicians and Surgeons – Disciplinary proceedings – Judicial review – Applications – Procedural requirements and fairness – Disclosure – Evidence

Litchfield v. College of Physicians and Surgeons of Alberta, [2005] A.J. No. 1771, Alberta Court of Queen’s Bench, December 16, 2005, Hillier J.

An Investigating Committee of the College of Physicians and Surgeons (the “College”) found Dr. Litchfield guilty on 9 out of 10 charges of inappropriate examinations and performing manual therapy without consent. Prior to the penalty portion of the hearing, Dr. Litchfield sought judicial review against the College for, inter alia, failure to produce and disclose exculpatory evidence, failure to conduct a reasonable investigation, and errors in law by the Investigative Committee.

The threshold question is whether the Court ought to deal with the application at this stage or defer to allow for completion of the internal process set out in the Medical Profession Act. Pursuant to the MPA, an Investigating Committee can be appointed to conduct an investigation and hold a hearing, then make recommendations on penalty to Council. Council is then required to consider the Investigating Committee’s report and obliged to hear representations from the physician and/or the Investigating Committee, including receiving further evidence including requiring disclosure of evidence and hear viva voce evidence, if necessary. Upon determining that a physician is guilty of unbecoming conduct, Council may impose the punishment it considers appropriate in the circumstances. The MPA provides a statutory right of appeal to the Court of Appeal, including a provision to apply for a stay of the penalty pending disposition of the appeal.

The leading decision on the question of granting judicial review in the face of access to an appeal is Harelkin v. University of Regina, [1979] 2 S.C.R. 561. The Supreme Court of Canada confirmed the discretionary nature of judicial review and held that where an applicant has access to an adequate right of appeal, judicial review should generally be declined. Factors to be assessed include: (a) the procedure on the appeal; (b) the composition of the appeal tribunal; (c) the powers of the appeal tribunal; (d) the manner for exercise of such power; (e) the burden of the previous finding; (f) expeditiousness; and (g) costs. Applying the Harelkin factors, the judicial review should be deferred in favour of the statutory right to appeal intended by the Legislature as the most complete, effective, and expeditious process for disposition of the concerns raised by Dr. Litchfield at this stage in the process.

Notwithstanding these factors, it is still within the Court’s discretion to consider whether it may be appropriate, on an exceptional basis, to deal with Dr. Litchfield’s concerns at this stage. One of Dr. Litchfield’s primary procedural arguments is that highly relevant and potentially exculpatory evidence was not before the Investigative Committee due to the College’s breach of its duty of disclosure and duty to fairly investigate the complaints. While not necessary to decide whether the College breached its duty of procedural fairness, there was nothing to indicate that non-disclosure was deliberate and that Council would not receive and consider such relevant material. While the new evidence adduced by Dr. Litchfield is highly relevant, it is not so significant that it taints or vitiates the entire Investigating Committee process. These procedural errors as well as the substantive errors can be addressed by the Council and/or Court of Appeal.

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