Dentist seeks judicial review of College’s actions in negotiating, entering into, and enforcing a settlement agreement with him due to the fact that he was suffering from bipolar disorder at the time

Dentist sought judicial review of College’s actions in negotiating, entering into, and enforcing a settlement agreement with him as he was suffering from bipolar disorder at the time. In the alternative, he sought an order converting the petition to a Supreme Court action. No relief was available in the circumstances under the Judicial Review Procedure Act (“JRPA”), but an order converting the petition to an action was granted.

Administrative law – Abuse of process – Certiorari – College of Dental Surgeons – Compliance with legislation – Decisions of administrative tribunals – Dentists – Disciplinary proceedings – Governance – Incompetence – Judicial Review – Penalties and suspensions – Permits and LIcences – Practice and procedure – Remedies – Settlements – Statutory powers

Stelmaschuk v. College of Dental Surgeons of British Columbia, [2015] B.C.J. No. 2108, 2015 BCSC 1766, British Columbia Supreme Court, September 30, 2015, P.D. Leask J.

A dentist filed a petition to obtain relief through the JRPA in respect of a settlement agreement he had reached with the College of Dental Surgeons. The College had issued a citation after receiving a number of complaints. Prior to the disciplinary hearing, the parties reached an agreement whereby the College cancelled the citation and discontinued further investigation of new complaints in exchange for the dentist’s licence being terminated without possibility of re-instatement.

In his petition, the dentist stated he was suffering from bipolar disorder when negotiating and signing the settlement agreement. As a result, notwithstanding that he had counsel at the time, he said he was not capable of understanding his legal rights, the agreement or its consequences. He asked the court to review the actions of the College’s inquiry committee by relying on its certiorari powers or by recognizing that entering into the agreement and enforcing it through the mechanism of the inquiry committee is an exercise of a “statutory power of decision” as contemplated in the JRPA. In the alternative, the dentist sought an order converting his petition to a Supreme Court action pursuant to Rule 22-1(7). The College submitted that the petition was an abuse of process.

The court concluded there was no relief available under the JRPA, but granted the order converting the petition to an action/notice of civil claim. The court said there is no general rule that says challenging an agreement between a regulatory body and regulated person is necessarily an abuse of process. The factual disputes between the parties were determined to be well-suited for resolution by trial. Converting the petition would enable the parties to have the full discovery process and a hearing where viva voce evidence could be given and witnesses could be cross examined. According to the judge, this would provide a more just and equitable result.

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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