The Applicant, Dr. Cimolai applied for an order setting aside an investigative report. Dr. Cimolai also sought an order to prohibit the Respondent Hospital from proceeding with a complaint against him, and for the Applicant’s reinstatement to his former position with the Hospital. The Court concluded that it would be premature to conduct a judicial review and dismissed the application.

Administrative law – Physicians and surgeons – Hospital privileges – Decisions of administrative tribunals – Investigations – Judicial review application – Premature – Procedural requirements and fairness – Evidence – Witnesses – Compliance with legislation

Cimolai v. Children’s and Women’s Health Centre of British Columbia, [2006] B.C.J. No. 2199, British Columbia Supreme Court, October 3, 2006, Cullen J.

A report was produced following an investigation into a complaint brought against the Applicant for personal harassment by one of his colleagues (the “Report”). The complaint included allegations of intimidation, verbal threats, hostility, and humiliation. The Applicant denied the allegations, and argued that he was the victim of a conspiracy designed to remove him from his employment at the Hospital Clinic.

The Applicant’s application concerned the second investigation into complaints regarding the Applicant. After the first investigation, the Hospital terminated the Applicant’s privileges; the Applicant had successfully brought the decision before the Courts, which set aside the Board’s decision; however, it declined to order the Applicant’s reinstatement or remuneration pending the resolution of the outstanding complaints against him.

The Applicant’s position was that the second investigation currently taking place and the Report were subject to judicial review as the internal review processes of the investigation were flawed, as held by the Court of Appeal when deciding on the first investigation. The Applicant submitted that a variety of flaws in the investigation impeded him from presenting his defence to the complaints and have created a distorted picture of the events at issue. In particular, the Applicant submitted that the investigator failed to interview witnesses who would help establish the proper context in which to consider the complainant’s allegations; she treated trivial incidents as serious; she failed to disclose some of the evidence she considered, thus preventing the Applicant from responding; and she failed to interview most of the witnesses put forward by the Applicant. Without the full opportunity to respond to the evidence in the ways he identified, the Applicant alleged he was prevented from developing his defence to the complaints and from obtaining a fair hearing.

The Respondent’s position was that the application was premature because no substantive decision had yet been made, and the Applicant has not exhausted any of the procedural steps of internal review available to redress the asserted procedural and substantive deficiencies in the investigation and Report.

The Court narrowed down the matter into two issues. First, whether the Report and the investigator’s recommendations were justicible under the Judicial Review Procedure Act, R.S.B.C. 1996, c.241; and second if they were justicible, whether the Court should exercise its discretion to conduct judicial review of the Report where the process for considering whether to accept the Report or recommendations is yet to be engaged.

The Court concluded that the Report played a significant role in the process of internal review and significant consequences can flow from acceptance of the determinations made at the investigation stage. Therefore, the Court held that the Report is subject to judicial review.

With regard to the Court’s discretion, it concluded that it was not appropriate for the Court to review, at this stage, the adequacy of procedural fairness of the second investigation.

The Court concluded that it would be premature to conduct a judicial review and it dismissed the application.

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