Know your limits – review board cannot dictate process to College

Administrative law – Decisions reviewed – Health Professions Review Board – Judicial review – Standard of review – Patent unreasonableness – Dentists – Investigations

College of Dental Surgeons of British Columbia v. British Columbia (Health Professions Review Board), [2022] B.C.J. No. 1011, 2022 BCSC 941, British Columbia Supreme Court, June 7, 2022, S. Wilkinson J.

A patient complained to the petitioner, College of Dental Surgeons of BC (the “College”), about a dentist’s orthodontic treatment plan.  The College conducted an investigation.  The College’s Inquiry Committee met to consider the complaint.  The Inquiry Committee asked the dentist to agree to a memorandum of understanding.  The dentist refused and asked for a reconsideration.

The Inquiry Committee met again and decided to vary its decision.  The Inquiry Committee decided not to take any action.

The patient applied to the respondent, Health Professions Review Board (the “Board”), to seek a review of the Inquiry Committee’s decision.

The HPRB directed the College to reconsider its decision but added several other directions, including these:

…

(b) The College appoint an orthodontist (experienced in Invisalign treatment for adult patients) to this new (third) Inquiry Committee;

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(d) The new (third) Inquiry Committee must require, under its s.36(1)(d) power, the Registrant to have no direct contact with the Complainant and to include notice to the Registrant that if he either refuses to give this undertaking or fails to abide by it, then the Inquiry Committee will (not may) direct the registrar to issue a citation for a hearing by the discipline committee regarding the matter;

…

The College applied to the court to seek judicial review of the above two directions provided by the Board.

The court confirmed the standard of review was patent unreasonableness.

The court reviewed the Board’s jurisdiction.  The Board has statutory authority to review the reasonableness of the College’s decision and the adequacy of the College’s investigation.  If directing the matter be reconsidered, the Board can provide directions relating to the College’s reconsideration.  However, the Board cannot pre-emptively fetter the College’s internal discretionary processes for managing complaints.

The court held that the Board did not have the jurisdiction to dictate the composition of the Inquiry Committee panel on the reconsideration.  The Board’s direction at (b) was therefore patently unreasonable.

The court held that the Board did not have the jurisdiction to direct the Inquiry Committee to take certain actions if the registrant contacted the complainant.  The Board’s direction at (d) was therefore patently unreasonable.

The judge granted the College’s petition and quashed the Board’s directions at (b) and (d) of its decision.

The College did not seek costs.

This case was digested by Scott J. Marcinkow, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Scott Marcinkow at smarcinkow@harpergrey.com.

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