The Applicant physician was partially successful in seeking a declaration from the Respondent College relating to the status of his license practice medicine in New Brunswick.

Administrative law – Decisions of administrative tribunals –  College of Physicians and Surgeons – Physicians and Surgeons – Governance –  Licence to practice – Statutory provisions – Interpretation – Judicial review  –  Compliance with legislation

Houshmand v. College of Physicians and Surgeons of New Brunswick, [2012] N.B.J. No. 324, 2012 NBQB 293, New Brunswick Court of Queen’s Bench, August 23, 2012, H.H. McLellan J.

The Applicant, Dr. Houshmand, is an anesthesiologist practising in New Brunswick. The Respondent, College of Physicians and Surgeons of New Brunswick (the “College”) regulates the practice of medicine in that province. The Applicant completed his medical education in Iran in 1981. He later moved to New Brunswick and, on December 6, 2000, he was first licensed to practice by the College. That initial license was a “public service license”.

On July 3, 2007, the Applicant received a new registration notice from the College. The new license was for his specialty in anesthesia. The College advised him he had a “full license” on the “regulated licenses register”. The regulated licenses register was created pursuant to section 28.1(1) of the Medical Act. There was also the “medical register”, which was created pursuant to section 23(1) of the Medical Act.

In September 2008, the Applicant went to New York for training and he returned to New Brunswick two years later. In 2009, the legislature in New Brunswick repealed section 28.1 of the Medical Act, thereby repealing the category of the regulated licenses register. In August 2010, the College adopted a new category of license called a “defined license”. The College treated this new category as a change of name from the category of regulated licenses register.

When the Applicant returned to New Brunswick, he was granted a “defined locum license” in September 2010 and then a “defined license” in June 2011. The Applicant  filed this application for judicial review in July 2012. He resented the condition that he had to have ongoing clinical activity in the Province for the defined license. He argued that he was fully licensed in 2007. He sought a declaration that he continue to hold a full license that is not based on the needs in the Province or his ongoing clinical activity in the Province.

The Applicant argued that he should be classified as a full member under the medical register because he was a full license holder under the regulated license register before it was dissolved by the legislature.

The Judge ordered that the Applicant was entitled to a declaration that he hold a “full license” on the “regulated licenses register” and has held such a license since July 3, 2007. The Judge did not feel it necessary to make an order regarding the continuation of that license in the circumstances. The Judge ordered each party to bear their own costs since the success was divided.

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 smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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