Administrative law – Physicians and surgeons – Disciplinary proceedings – Inquiry committee decisions – Fairness – Evidence – Sentencing – Judicial review – Appeal process – Scope of appeal
M.M. v. College of Physicians and Surgeons of British Columbia,  B.C.J. No. 2833, British Columbia Supreme Court, November 4, 2002, Bauman J.
M.M., a medical doctor, appealed from the decisions of the Inquiry Committee and the council of the College of Physicians and Surgeons of British Columbia that found him guilty of infamous conduct and suspending him from the practice of medicine for a period of 15 months.
The Appellant argued that the Inquiry Committee failed to properly assess the credibility of the principal players, namely the Complainant and the doctor whose conduct was in question.
The Appellant highlighted the overly critical approach which the Inquiry Committee took in assessing the doctor’s evidence and the correspondingly benign approach which the committee took in assessing the evidence of the Complainant. The Appellant raised a long list of what he said were definite frailties in the evidence of the Complainant and took the position that the Committee improperly stereotyped homosexual relationships.
In determining the appropriate scope of appeal, the court referred to s. 71(1) of the Medical Practitioners Act, R.S.B.C. 1996 c. 285 which provides the Appellant with the right of appeal to the Supreme Court from a decision of the council of the College. The court further referred to s. 73 of the Act which states:
The appeal under section 71 must be determined by the court on the merits, despite any lack of form, but the court may give directions for a proper hearing and adjudication.
The court went on to state that the leading authority on the scope of appeal under the Medical Practitioners Act, is Jory v. College of Physicians and Surgeons (British Columbia),  B.C.J. No. 320 where Justice McLachlin stated:
The Court’s task under these provisions is similar to that of a Court of Appeal sitting on appeal from the judgment of a lower Court. Since the appeal is “on the merits”, the Court is not confined to consideration of errors of law or breaches of natural justice in the course of the hearing or the decision. It is to consider all of the evidence and proceedings in the case and reverse the decision below if the findings of fact are clearly wrong or if some injustice occurred: Latimer v. College of Physicians & Surgeons of B.C. (1931), 55 C.C.C. 132,  3 D.L.R. 304 (B.C.C.A.). The failure of the tribunal below to consider material evidence may be as important as the evidence which it in fact considered: Hirt v. College of Physicians and Surgeons of B.C., (1985), 63 B.C.L.R. 185 (S.C.) at 206.
The court went through the Inquiry Committee’s reasons in detail. In doing so, the court concluded that the Inquiry Committee properly identified the appropriate standard of proof and found that the College had met its evidentiary burden. The court noted that the credibility of the principal players was a critical issue and that if the decision maker accepted the evidence of the Complainant and rejected the evidence of the doctor there was clear, cogent and convincing evidence in support of the allegations. In considering the Committee’s finding on credibility, the court was guided by the many cases which caution appellate judges to interfere with the findings of tribunal on matters of credibility. In reviewing the transcripts, the court concluded that this was not one of the exceptional cases justifying interference with the Committee’s findings and the appeal was not allowed. In reviewing the sentence imposed, the court noted that case law supports a deferential approach when reviewing the sentence imposed by a specialized tribunal. The court refused to interfere with the College’s view that a suspension of 15 months was appropriate in the case.
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