A complainant is not entitled to judicial review of the College of Physician and Surgeons’ decision to take no further action regarding her complaint. The only parties to the investigation were the physicians subject to the complaint and the College itself. A complainant is not made a party to either the investigation or the disciplinary process itself. The College exercised a power akin to prosecutorial discretion that is particularly ill-suited to judicial review. There was no impropriety on the part of the College or the expert retained in investigating the complaints. Judicial review was not available in the circumstances.

Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Investigations – Procedural requirements and fairness – Judicial review – Availability – Compliance with legislation – Standard of review – Patent unreasonableness

M.H. v. College of Physicians and Surgeons of Alberta, [2006] A.J. No. 668, Alberta Court of Queen’s Bench, May 26, 2006, Coutu J.

The applicant complained to the College of Physicians and Surgeons (the “College”) about the care provided by 6 physicians during her hospitalization as a patient under the Mental Health Act, R.S.A. 2000, c.M-13. After an investigation, the Investigation Chair of the College directed that no further action be taken. The applicant appealed this decision to the Council of the College which dismissed her appeal. The applicant then sought judicial review of Council’s decision and an order that the complaints go to a hearing.

Judicial review was not available in these circumstances. The Medical Professions Act, R.S.A. 2000, c.M-11, made it clear that the disciplinary process is a matter between the College and the individual member whose conduct had been questioned. The only parties are the physician subject to the complaint and the College itself (Friends of the Old Man River Society v. Association of Professional Engineers, Geologists and Geophysicists of Alberta (2001), 277 A.R. 378 (Alta.CA), 2001 ABCA 107 (leave to appeal refused: [2001] S.C.C.A. No. 366)). The College exercised a power akin to prosecutorial discretion that is particularly ill-suited to judicial review. In the absence of some flagrant impropriety, the discretion to stay a private prosecution is not reviewable. In the case at bar, it appeared the College took the complaints seriously and behaved in an entirely appropriate manner in investigating the complaints.

In the event that judicial review was available, the College more than met its duty of fairness to the applicant. The duty of fairness owed to her was at the lower end of the spectrum as the nature of the decision was discretionary and the Investigating Chair and Council followed the statutory procedures. Although the applicant seemed to have expected that she would be more significantly involved in the process of Council in considering her complaint, the nature of procedure and discretion vested in Council did not make them legitimate expectations. In addition, there was no reasonable apprehension of bias, and Council provided adequate reasons for its decision.

With respect to the standard of review, there is a high level of deference to be afforded to Council which has specialized knowledge and expertise and had been extended considerable deference by legislation. The proper standard of review of a decision to proceed with inquiry or dismiss a complaint is therefore patent unreasonableness. In the Court’s view, Council’s decision was not patently unreasonable or even unreasonable.

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