Administrative law – Decisions of administrative tribunals – College of Dental Surgeons – Investigations – Health Professions Review Board – Dentists – Disciplinary proceedings – Competence – Judicial review – Standard of review – Patent unreasonableness – Jurisdiction
College of Dental Surgeons of British Columbia v. Health Professions Review Board,  B.C.J. No. 2443, 2014 BCSC 1841, British Columbia Supreme Court, October 1, 2014, S.A. Donegan J.
The Petitioner, the College of Dental Surgeons of British Columbia (the “College”), investigated a complaint made by the Respondent, Ms. Patsy McConville. Ms. McConville complained to the College about dental treatment she received from the other Respondent, Dr. Ronald Scammell.
Ms. McConville’s complaint was made in February 2008. The College conducted an investigation into the complaint over the course of several months. In February 2009, the College’s investigator made a recommendation that he meet with Dr. Scammell to discuss the treatment of Ms. McConville, and to potentially ask Dr. Scammell to provide access to some of his records for other patients.
Dr. Scammell met with the College’s investigator in March 2009 and then subsequently provided several radiographs (from other patients) to the College for review. Some of the radiographs were provided by the following process: Dr. Scammell disclosed a list of patient names and then the College investigator selected five of the charts to review. The College investigator recommended that no further action be taken by the Inquiry Committee of the College. The Inquiry Committee accepted that recommendation and decided to take no further action. That decision was communicated to Ms. McConville in November 2009.
Ms. McConville made an application to the Respondent, the Health Professions Review Board (the “HPRB”). She subsequently prepared a written submission and filed that with the HPRB in July 2011. The College and Dr. Scammell prepared and filed a written submission in August 2011. In May 2012, the HPRB held an oral hearing and then, in September 2012, it rendered a decision. The HPRB decided that the College’s investigation was inadequate because the College reviewed a selection of records that were effectively selected by Dr. Scammell. The HPRB also held that the College’s disposition was unreasonable.
The College commenced a petition for judicial review. The College accepts that its chart review investigation was inadequate and did not seek a review of that part of the HPRB’s decision. The College sought judicial review of the HPRB’s decision that the disposition was unreasonable.
The College argued that it was reasonable to decide not take any further action because the evidence indicated to the Inquiry Committee that Ms. McConville’s concerns were isolated and not indicative of Dr. Scammell’s general competence or conduct. The College put forward two primary arguments.
First, the College argued that the HPRB fundamentally misunderstood its review role and failed to apply a reasonableness standard of review to the Inquiry Committee’s interpretation of the governing legislation and the assessment of the evidence. Second, the College argued that the HPRB’s decision was incorrect or patently unreasonable.
The Court reviewed the statutory framework created by the Health Professions Act, and noted the screening/investigative process undertaken by the Inquiry Committee when assessing how to dispose of a complaint.
The Court next confirmed that the standard of review was mandated by the Administrative Tribunals Act provisions. The Court held that the issue was not a true question of jurisdiction and therefore the correctness standard did not apply. The Court also held that the issue was not a matter of demarcating the jurisdiction between two competing tribunals. The Court also held that the issue was not one of concurrent jurisdiction between the HPRB and the Court. The Court concluded that the standard of review was patent unreasonableness.
The Court considered whether the HPRB was patently unreasonable in its approach to reviewing the College’s interpretation and application of section 33(6)(a) of the Health Professions Act. The Court held that the HPRB did not apply the reasonableness standard to this statutory interpretation issue. The Court also held that the HPRB failed to properly apply the reasonableness standard when it reviewed the evidence considered by the College. The HPRB therefore misunderstood its review role and its decision was patently unreasonable.
The Court held that the petition was allowed and the HPRB decision was set aside. The matter was remitted to the College for reconsideration because part of the HPRB decision (finding the investigation was inadequate) was not disturbed by the Court.
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 firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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