The Court quashed part of the Health Professions Review Board’s decision to return a complaint matter to the Inquiry Committee, including all of the additional documents submitted by the complainant as new evidence. An adjudicator previously assigned to the case at the Review Board had already decided that only 5 of the 9 additional documents were admissible. Thus, the part of the Review Board’s decision which directed the Inquiry Committee to consider all 9 of the additional documents was quashed. The petitioner had also made an application for the use of pseudonyms in the case, and the sealing of the file. The Court dismissed the application because the petition did not involve any extraordinarily sensitive personal information and disclosure would not undermine the purpose of the petition.

Administrative law – Decisions of administrative tribunals – Health Professions Review Board – Physicians and Surgeons – Competence – Judicial review – Jurisdiction of tribunal – Procedural requirements and fairness – Evidence – Fresh evidence – Admissibility – Publication ban

JC v. Health Professions Review Board, [2014] B.C.J. No. 404, 2014 BCSC 372, British Columbia Supreme Court, March 7, 2014, W. Ehrcke J.

In the complainant’s application for review to the Health Professions Review Board (the “Review Board”) of the decision of the College of Physicians and Surgeons of BC (the “College”) regarding her complaint about the petitioner, an ophthalmologist, submitted with her statement 9 documents totalling 97 pages of additional information that she sought to introduce as new evidence. The original Review Board panel decided that only 5 of the 9 documents were admissible as additional evidence in the review proceedings. Several months later, the chairman of the Review Board wrote to all parties to advise that the original Review Board panel was unable to adjudicate the matter. His letter stated that he seeks the consent of the parties to the appointment of a new panel chair to undertake this adjudication afresh. One year later, the chairman issued the decision of the Review Board. The decision did not mention the preliminary decision that had been made about the admissibility of the additional evidence, and he ordered that the matter be sent back to the Inquiry Committee with all 9 of the documents submitted by the complainant.

The petitioner filed an application for judicial review seeking an order from the Court to quash the decision of the chairman on the basis that it should not have taken into account the 4 documents that had been excluded by the previous decision. The Court held that if the chairman intended to revisit the issues in the previous document decision, procedural fairness required that he specifically put the parties on notice of that very issue, rather than relying on such general language as seeking consent to “undertake the adjudication afresh”. The Court ordered that only the part of the chairman’s decision which directs the Inquiry Committee to consider all 9 of the documents of additional evidence be quashed, and that the remainder of the decision remain in place.

The Court’s decision also includes a discussion on the use of pseudonyms. After a discussion of the law, the Court determined that this petition did not involve any extraordinarily sensitive personal information and that disclosure would not undermine the very purpose of the petition. It dismissed the petitioner’s application for the use of pseudonyms and for sealing the file.

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 khill@harpergrey.com or review  her biography at http://www.harpergrey.com.

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