Administrative law – Decisions of administrative tribunals – Veterinary Associations – Veterinarians – Disciplinary proceedings – Judicial review application – Premature – Hearings – Conduct of hearings – Jurisdiction – Procedural requirements and fairness – Evidence – Standard of review – Reasonableness simpliciter
Bajwa v. British Columbia Veterinary Medical Association,  B.C.J. No. 1131, British Columbia Supreme Court, June 12, 2008, H.A. Slade J.
The applicant veterinarian (the “Applicant”) was investigated by the respondent medical association (the “BCVMA”) because of complaints it received from members of the public. Both complaints related to the adequacy of the Applicant’s response to requests made by the BCVMA. In October 2003, the BCVMA issued a form of charge against the Applicant and constituted an inquiry committee (the “Committee”) under Section 15 of the Veterinarian’s Act. On the second and third days of the three day hearing before the Committee, the Committee indicated its preliminary opinion was that the evidence was insufficient to prove either charge. In both of the specific statements made by the Committee, it alluded to dismissing the charges against the Applicant. The Applicant, given the apparent opinion of the Committee, called no evidence in response to the allegations. The Committee agreed that the Applicant did not adequately respond to the requests made by the BCVMA but could not find the Applicant guilty of misconduct. This conclusion of the Committee went to the Council of the BCVMA (the “Council”).
The Council has the power, under the BCVMA bylaws, to accept the findings of the Committee or, if it finds the Committee has committed a significant procedural, factual, or legal error, the Council may direct a new inquiry or hearing. The Council concluded that the majority of the Committee suffered from a significant legal error in that the Committee suggested there were sufficient facts to prove some of the charges but then dismissed them. The Council ordered a new hearing be convened before a new inquiry Committee because the Committee did not have the power to dismiss the charges nor determine whether a member had been guilty of unprofessional conduct.
The BCVMA argued the Council’s decision was not amenable to judicial review because the Council, in directing a new hearing, was not exercising a statutory power of a decision because its decision affected the activity of the Committee and not the Applicant’s legal rights. In addition, the BCVMA argued the Council was not exercising a statutory power. In the alternative, the BCVMA argued the application was premature because the Council had not rendered a final decision. The Applicant argued the application was not premature because the hearing of the Committee was completed and the issue to be resolved was one of jurisdiction.
The Court concluded that the Committee did not have the power to summarily end a proceeding initiated by the Council and did not have the jurisdiction to make findings binding on the Council. Therefore, the Council’s order for a new hearing is the result of an interlocutory decision because the Committee could not have rendered a final decision in the proceedings against the Applicant.
The Court held that the jurisdictional question exception did not apply because the Council did not have to explicitly determine whether its statutory grant of power gave it the authority to decide how to proceed. The true jurisdictional question, of whether the Committee’s report was a final decision binding the Council, was not explicitly determined by the Council but was resolved by the Court’s finding that the Committee could not have finally ended the proceedings against the applicant. Therefore, the application for judicial review was dismissed for being premature.
If the Court was wrong about the application being premature, the Court reviewed the substance of the Council’s decision. The Court considered the decision in Sharma v. BC Veterinary Assn., 2008 BCSC 240 where the Court applied the standard of reasonableness to two decisions made by the Council. The first decision related to the appropriateness of a penalty and the second decision related to the admission of opinion evidence regarding the state of the veterinarian’s medical records and applicable standard of care. The decisions under review in Sharma were not similar enough to this case to import the standard of review from that case. The expertise of the Tribunal, the purpose of the Tribunal, and the provision in issue, were all neutral on the question of standard of review. However, the Veterinarians Act provides an explicit right of appeal, which suggests less deference. In addition, the nature of the question at issue is procedural and discretionary in that it was essentially as follows: “how do we proceed now that we have the Committee’s report?” The nature of the question therefore suggested a more deferential standard of review. The Court found, in light of these factors, the appropriate standard of review was reasonableness.
The Court held the Council’s decision to order a new hearing was reasonable because it found the Committee committed a significant legal error by dismissing the charges against the Applicant. In addition, it was reasonable for the Council to conclude that the Committee committed a significant procedural error in ending the hearing before the Applicant had the opportunity to present a defence even though the Committee did not expressly deny the Applicant the opportunity to present a defence.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at email@example.com or review his biography at http://www.harpergrey.com.
To stay current with the new case law and emerging legal issues in this area, subscribe here.