Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Physicians and Surgeons – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Judicial review – Procedural requirements and fairness – Natural justice – Compliance with legislation – Evidence – admissibility – Remedies – Alternative remedies
Cockeram v. College of Physicians and Surgeons of New Brunswick,  N.B.J. No. 267, 2014 NBQB 227, New Brunswick Court of Queen’s Bench, October 14, 2014, J.J. Walsh J.
The applicant medical doctor applied for judicial review of a preliminary decision made by the College of Physicians and Surgeons of New Brunswick in the course of disciplinary proceedings. His main allegation was that the College failed to provide him with procedural fairness and natural justice in the course of deciding to recommend to the Governing Council of the College that numerous complaints against him be referred for a public hearing. There were 24 complaints made against him and many involved allegations that he performed unnecessary and unprofessional breast examinations on patients. The applicant argued that the Complaints Committee, in making its decision to refer the matter to a public hearing, failed to take into account a number of patient charts that he had provided in support of his submission that the breast examinations were warranted. He further argued that the Complaints Committee failed to take into account the expert report prepared by another physician in support of applicant.
An evidentiary issue was raised by the applicant at the outset of the hearing. The College filed an affidavit for the judicial review hearing which appended the 24 letters of complaint. The applicant objected to the admissibility of the complaint letters on privacy and privilege grounds, pointing to the statutory prohibition imposed on their use in legal proceedings outside of the Medical Act as per section 71.2(2) of the Act. The Court agreed the complaint letters were inadmissible and struck them from the judicial review record.
In respect of the judicial review application, the College argued that the concerns raised by the applicant could be effectively dealt with within the confines of the Medical Act, and the complainant failed to exhaust his administrative remedies before seeking judicial review. Section 61 of the Act provides for an external right of appeal to the Court of Appeal on any point of law from the findings of the College’s Board of Inquiry or an order of the Council. In addition, section 57(12) of the Act provides complainants with an opportunity to seek a reconsideration by the Complaints Committee of any findings or recommendations made by it. The Court noted that it is not enough for the College simply to point to an alternative remedy in theory, but the remedy must also be an “effective” one. The Court noted that an application back before the Complaints Committee would have been the most efficient, expeditious and the least expensive route available and the Committee would have been capable of curing the breaches of fairness that allegedly occurred in arriving at their initial decision. As a result, the Court found that there were adequate alternative remedies available to the complainant, and declined to exercise its supervisory jurisdiction over the matters, dismissing the judicial review application.
This case was digested by Kara L. Hill of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at firstname.lastname@example.org or review her biography at http://www.harpergrey.com.
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