Administrative law – Decisions of administrative tribunals – College of Optometrists – Optometrists – Professional governance and discipline – Disciplinary proceedings – Competence – Hearings – Disclosure – Evidence – Judicial review – Investigations – Procedural requirements and fairness
Levesque v. Nova Scotia College of Optometrists,  N.S.J. No. 28, 2014 NSSC 22, Nova Scotia Supreme Court, January 27, 2014, M.J. Wood J.
The Applicant Optometrist (Dr. Levesque) was the subject of a complaint made to the Respondent, Nova Scotia College of Optometrists (the “College”). The College’s processes are governed by the Optometry Act and the associated Regulations thereto. The Act establishes a complaints committee and a hearing committee. The complaints committee investigates complaints and decides whether to dismiss the complaints or refer them to the hearing committee.
A complaint was made to the College about Dr. Levesque in October 2012. The complaint alleged Dr. Levesque delayed in referring a patient to an ophthalmologist when she presented with certain symptoms. The College disclosed the written complaint to Dr. Levesque and he submitted a written response to the College. The College also obtained a copy of Dr. Levesque’s records.
In addition to the above steps, the chair of the complaints committee of the College contacted a colleague in New Brunswick and requested an independent opinion about a similar scenario to the scenario present in Dr. Levesque’s complaint matter. The colleague provided a written opinion to the chair of the complaints committee.
In December 2012, the complaints committee visited Dr. Levesque’s office to conduct an audit of some of his charts. On December 23, 2012, the chair of the complaints committee wrote to the chair of the College advising of the investigatory steps taken and recommended that the patient care issue be referred to the hearing committee.
Dr. Levesque filed an application for judicial review of the complaints committee decision. Dr. Levesque argued the process was unfair because he was not told of the New Brunswick opinion and given an opportunity to respond. Dr. Levesque also argued the decision of the complaints committee was unreasonable.
The Court reviewed the Optometry Act and confirmed the complaints committee was required to act in accordance with the requirements of procedural fairness. In considering the content of the duty of fairness in the circumstances of this case, the Court referred to a BC Court of Appeal decision (Puar v. Association of Professional Engineers and Geoscientists). The Court held there was no breach of the limited duty of fairness owed to Dr. Levesque by the complaints committee.
The Court then held the decision of the complaints committee was reasonable as Dr. Levesque could not meet the burden of showing there was no reasonable basis for the decision.
The Court dismissed the application for judicial review and fixed the costs payable by Dr. Levesque.
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.
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