An application for production of documents from a decision maker in the context of a judicial review application is denied

Administrative law – Decisions of administrative tribunals – College of Veterinarians – Hearings – Conduct of hearings – Judicial review – Application – Bias – test – Disclosure – Relevance of information disclosed – Discretion of court

Brar v. College of Veterinarians of British Columbia, [2011] B.C.J. No. 267, 2011 BCSC 215, British Columbia Supreme Court, February 11, 2011, E.M. Myers J.

The claimants are veterinarians who allege that the College of Veterinarians of British Columbia (“the College”) discriminated against them by adopting new English-language proficiency requirements for membership in the College and by investigating and prosecuting disciplinary complaints in a way that has disadvantaged low-cost Indo-Canadian veterinarians. During proceedings before the Human Rights Tribunal which dealt with these allegations, the presiding member, Member Parrack, advised the parties that their hearing would have to be adjourned because her appointment to the Tribunal was going to expire at the end of the July 2010, it was unclear whether she could complete her work during the remainder of her term, and she felt that it would be inappropriate and unfair to the parties to continue to expend their resources by continuing with the hearing given these uncertainties. Member Parrack referred specifically to the fact that she had sought a reappointment to the Tribunal which had not been approved.

In August 2010, Member Parrack was offered an authorisation to continue to adjudicate the case and the hearing resumed. The College sought a recusal of Member Parrack on the ground of reasonable apprehension of bias, which was declined. The College filed a petition for judicial review of Member Parrack’s decision. As part of the judicial review proceedings, the College applied for an order requiring Member Parrack and the Tribunal to disclose all documents in their possession, control, or power pertaining to the expiry of Member Parrack’s term on July 31, 2010 and the possible re-appointment of Member Parrack following the expiry of her term.

The court confirmed that it has the jurisdiction to order the production of documents from a decision maker during a judicial review application, but that this is a discretionary decision that must be exercised with great caution, only in exceptional circumstances, and only when the documents are both necessary and relevant. Relevance must be assessed in the context of the pleadings and here the College’s argument was that Member Parrack erred by failing to recuse herself on the basis of reasonable apprehension of bias. The court held that production of the documents were not necessary or relevant to this standard; the documents sought by the College have no bearing on the appropriate test to assess reasonable apprehension of bias, namely whether a reasonably informed person would apprehend that Member Parrack was biased based on her statements and consequent actions. The court also considered the factor of proportionality, as set out in the Supreme Court Civil Rules, and concluded that to allow production of the documents would allow a relatively straightforward judicial review application to be used to delve into the process of appointing tribunal members. The application for document production was denied.

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