COURT OF APPEAL FOR BRITISH COLUMBIA

Transcription

COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
Bhullar v. British Columbia Veterinary
Medical Association,
2012 BCCA 443
Date: 20121108
Dockets: CA038804
Between:
Dr. Hakam Bhullar
Respondent
(Appellant)
And
British Columbia Veterinary Medical Association
Appellant
(Respondent)
Before:
The Honourable Mr. Justice K. Smith
The Honourable Mr. Justice Frankel
The Honourable Madam Justice Bennett
On appeal from: Supreme Court of British Columbia, February 15, 2011,
(Bhullar v. B.C. Veterinary Medicine Association, 2011 BCSC 182,
New Westminster Registry No. S124093)
Counsel for the Appellant:
Counsel for the Respondent:
P.A. Gall, Q.C.
R. W. Grant
J. G. Thackeray
G. A. Pyper
Place and Date of Hearing:
Vancouver, British Columbia
May 18, 2012
Place and Date of Judgment:
Vancouver, British Columbia
November 8, 2012
Written Reasons by:
The Honourable Madam Justice Bennett
Concurred in by:
The Honourable Mr. Justice K. Smith
The Honourable Mr. Justice Frankel
Bhullar v. British Columbia Veterinary Medical Association
Page 2
Reasons for Judgment of the Honourable Madam Justice Bennett:
Introduction
[1]
The British Columbia Veterinary Medical Association1 (the “BCVMA”) appeals
from the decision of a chambers judge allowing in part Dr. Bhullar’s appeal of the
BCVMA’s ruling to erase his name from its register. The governing legislation, the
Veterinarians Act, R.S.B.C. 1996, c. 476 [the Act], provides Dr. Bhullar with an
appeal, as opposed to judicial review, given the consequences of the decision.
[2]
The Council of the BCVMA (“the Council”) found Dr. Bhullar, a veterinarian, to
be no longer governable as a member of the association following disciplinary
proceedings relating to his treatment of four animals as well as alleged
contraventions of the BCVMA’s marketing guidelines. The Council relied on the
findings of an Inquiry Committee of the BCVMA that many of the charges relating to
treatment of animals and all of the charges relating to contravention of marketing
guidelines had been proven. The Council also accepted the finding of the Inquiry
Committee that Dr. Bhullar’s conduct throughout the proceedings before the
Committee had threatened the integrity of the regulatory role of the BCVMA and of
the veterinary profession in British Columbia.
[3]
In the course of coming to its decision, the Council declined to consider
allegations by Dr. Bhullar of institutional bias against him and others who selfidentified as “Indo-Canadian low-cost veterinarians”. The Council concluded that it
lacked jurisdiction to hear the matter. On appeal, the chambers judge agreed with
Dr. Bhullar that the Council ought to have considered these allegations, relying on
the ruling in the disciplinary matter of another member of this group of veterinarians
(Bajwa v. British Columbia Veterinary Medical Association, 2010 BCSC 848, 9
Admin. L.R. (5th) 245). The chambers judge also concluded that, in rendering its
decision against Dr. Bhullar, the Council was improperly constituted and had failed
to respect bylaw requirements to hold a meeting to consider its decision.
1
The British Columbia Veterinary Medical Association has been continued as the College of
Veterinarians of British Columbia under the new Veterinarians Act, S.B.C. 2010, c. 15. References
are to the former Veterinarians Act, R.S.B.C. 1996, c. 476.
[4]
Page 3
In the result, the chambers judge set aside the decision of the Council, and
remitted to it the matter of the allegations of institutional bias. He declined to
interfere with any of the findings of the Inquiry Committee.
[5]
On appeal to this Court, the BCVMA alleges that the chambers judge made
two errors. First, it submits that the judge erred in concluding that the Council had
jurisdiction to consider the allegations of institutional bias. It relies primarily on this
Court’s decision setting aside the ruling in Bajwa. Second, it says that the judge
erred in finding that the Council was improperly constituted.
[6]
For the reasons that follow, I would allow the appeal.
Background
1. Misconduct proceedings against Dr. Bhullar
[7]
Dr. Bhullar was charged with multiple counts of professional misconduct
following the investigation of complaints against him by a Conduct Review
Committee of the BCVMA. I summarize the charges as follows:
1. Nine charges arising out of debarking surgery and post-operative care of a
dog, “Wendy”;
2. Three charges arising out of surgery on a cat, “Snickers”;
3. Seven charges arising out of the diagnosis and treatment of a dog,
“Princess”;
4. Seven charges in relation to the treatment of a dog, “Joe”; and
5. Five charges of contravening BCVMA marketing guidelines.
The conduct that was the subject of these charges occurred between May 2003 and
July 2004.
Page 4
Legislative scheme for the disciplinary process
[8]
The Act provides for a process for the investigation and conduct of
disciplinary matters. The relevant provisions are ss. 15 and 17:
Complaints regarding member
15 (1) The council may, and if it is requested in writing to do so by 3
members in good standing must, cause an inquiry to be made by an inquiry
committee into a charge or complaint made against a member or into the
conduct or mental condition or capability or fitness to practise of a member of
the association.
(2) The council may at any time investigate, in a manner it considers
appropriate, whether or not a member has and is bringing to the member's
practice of veterinary medicine adequate skill and knowledge.
(3) The council, causing an inquiry to be made under this section, must
appoint an inquiry committee of at least 3 persons.
(4) For the purpose of subsection (3), the council may appoint committee
members who are or are not members of the council or of the association.
(5) For the purpose of determining the member's adequacy of skill and
knowledge of veterinary medicine, the council may require the member to
undergo an examination specified by the council.
...
Inquiry committee
17(1) An inquiry committee appointed under section 15 must
(a) hear and decide on the facts surrounding the charge or complaint,
(b) find whether the charge or complaint, if any, has been proven, and
(c) report its findings to the council in writing.
(2) The council may exercise the powers under subsection (3) if, after
considering the report of the inquiry committee, it determines that a member
(a) has been guilty of unprofessional conduct,
(b) is incapable or unfit to practise, or
(c) should have his or her practice restricted.
(3) On making a determination referred to in subsection (2), the council may,
in addition to requiring the member to pay the costs of the inquiry to the
association,
(a) suspend the member from practice for a period of time the council
considers appropriate,
(b) restrict the member’s practice for a period of time and subject to
conditions the council considers appropriate, to an aspect of
veterinary medicine with respect to which the council is satisfied the
member has adequate skill and knowledge, or
Page 5
(c) direct that the member’s name be erased from the register.
(4) If a member is ordered under subsection (3) to pay the costs of an inquiry,
(a) the costs may be assessed by a registrar of the Supreme Court
under the Supreme Court Rules, and
(b) the amount assessed is a debt owing to the association and may
be recovered by action in any court.
[9]
The bylaws of the BCVMA also address disciplinary proceedings:
Complaints
42.
(1)
For the purposes of this section:
(a)
“misconduct” includes professional misconduct and
unprofessional conduct; and
(b)
“member” includes a former member and a suspended
member.
(2)
Any person may make a complaint to the Association that a
member has engaged or will engage in misconduct.
(3)
Without limiting anything above, misconduct includes:
(a)
the failure to bring an adequate level of skill and
knowledge to the practice of veterinary medicine;
(b)
the lack of capability, fitness, or mental condition to
practice veterinary medicine, including a lack of
capability, fitness or mental condition that results from
an addiction to or use of a drug, alcohol or other
substance that impairs the member’s ability to practice
veterinary medicine;
(c)
the commission of any offence at law relevant to the
fitness to practice veterinary medicine;
(d)
the violation of the Act, Bylaws including the Code of
Ethics, and any Practice Standards and Practice
Facility Standards, or any other rules of the
Association; and
(e)
the obtaining of membership by fraud or
misrepresentation.
(4)
A complaint about a member must be made to the Registrar in
writing.
(5)
Subject to section 43, the Registrar must consider every
complaint received about a member under this section.
(6)
Any information received from any source that indicates that a
member has engaged or may engage in misconduct must be
treated as a complaint.
(7)
The Registrar may appoint one or more Complaint Officers to
deal with complaints.
(8)
The Registrar may delegate tasks relating to the receipt,
termination, investigation, dismissal and resolution of
complaints.
Page 6
Investigation Declined
43.
(1)
(2)
The Registrar shall decline to investigate any matter that:
(a)
does not raise a matter of misconduct;
(b)
does not allege any facts that if proven could constitute
misconduct;
(c)
is otherwise not within the regulatory jurisdiction of the
Association; or
(d)
is vexatious, frivolous, made in bad faith or otherwise
an abuse of process.
The Registrar may decline to investigate any complaint that is
not received in writing.
Investigation Terminated
44.
(1)
(2)
Where after investigation of a matter it appears that the
complaint:
(a)
cannot be substantiated;
(b)
does not disclose conduct serious enough to warrant
further action or intervention of the association; or
(c)
the complaint is vexatious, frivolous, made in bad faith
or otherwise an abuse of process;
(d)
the Registrar shall decline to investigate the matter
further and shall take no further action.
The Registrar may take no further action on a complaint if the
Registrar is satisfied that the matter giving rise to the
complaint has been resolved.
Notification
45.
(1)
In every case of a decision under section 43 or section 44, the
Registrar shall advise the member and the complainant in
writing.
(2)
Further, in every case of a decision under subsection 44(1),
the notice thereof to the member and the complainant must
include:
(a)
the reason for the decision; and
(b)
instructions on the right, and how to apply, for a review
of the decision.
Page 7
Complaint Investigation
46.
(1)
The Registrar may conduct an investigation to the extent and
by whatever means are appropriate and reasonably relevant to
the investigation and without limiting anything above may:
(a)
require any member to submit original medical records
and other materials and documents;
(b)
attend at a facility during reasonable business hours to
inspect the facility or to obtain original medical records
and other materials and documents;
(c)
conduct interviews of any person to obtain information;
(d)
seek the opinion of legal and other advisors; and
(e)
retain the services of private investigators.
(2)
The Registrar must deliver a copy, or where appropriate a
summary, of the complaint to the member.
(3)
Despite subsection (2), if the Registrar considers it necessary
for the effective investigation of a complaint, the Registrar may
delay notification to the member.
(4)
When acting under subsection (2), the Registrar may decline to
identify the complainant or the source of the complaint.
(5)
The Registrar may require the member who is the subject of the
investigation to respond to the substance of the complaint.
Conduct Review Committee
47.
(1)
The Council shall appoint a Conduct Review Committee of
between seven and nine persons who are members of the
Association, one of whom shall be appointed as the Chairman.
(2)
Members of the Conduct Review Committee shall hold office
at the pleasure of the Council.
(3)
Four members of the Conduct Review Committee shall
constitute a quorum.
Further Action After Investigation
49.
(1)
If after investigation a decision has not been made under
section 43 or 44 and it appears that the matter may warrant an
inquiry under subsection 15(1) of the Act, the Registrar shall
refer the complaint including a report of the results of the
investigation, with or without recommendations, to the Conduct
Review Committee.
(2)
In such case, a copy of the report shall be delivered to the
member at least fourteen days prior to it being considered by
the Conduct Review Committee.
(3)
The member may make written representations to the Conduct
Review Committee in response to the report.
(4)
Page 8
Members may request to appear before the Conduct Review
Committee in person, and it is a matter for the Committee to
decide upon its discretion.
Decision of the Conduct Review Committee
50.
(1)
(2)
The Conduct Review Committee may in respect of any matter
that comes before it for consideration:
(a)
dismiss the matter;
(b)
approve a consent resolution of the matter;
(c)
refer the matter back to the Registrar for further
investigation or clarification;
(d)
on request by the member permit the member to
appear before it for the purpose of making
submissions;
(e)
request that the Council direct an inquiry and hearing
under subsection 15(1) of the Act;
(f)
request that the Council direct an investigation under
subsection 15(2) of the Act;
(g)
request that the Council direct an examination under
subsection 15(5) of the Act;
(h)
approve a request by the Registrar for a stay or
withdrawal of inquiry and hearing of the matter; or
(i)
take an action under section 51 of the Bylaws.
The Registrar shall notify the complainant and member of any
decision by the Conduct Review Committee.
Inquiry and Hearing
54.
(1)
The Registrar shall be responsible for the drafting and
presentation of the grounds of complaint against the member
on inquiry.
(2)
During an inquiry, the Registrar may conduct further
investigations into the matter.
(3)
Unless it otherwise directs, the Inquiry Committee shall
conduct its hearings and deliberate its findings in camera.
Inquiry Committee Report
55.
(1)
The Inquiry Committee shall make its decision under
subsection 17(1) of the Act as soon as practicable after the
close of its hearing(s) into the matter.
(2)
The Inquiry Committee shall report its findings to the Council in
writing at least fourteen days prior to the meeting at which the
report will be considered by the Council.
(3)
The Registrar shall deliver a copy of the Inquiry Committee
report to the member and the complainant if any, together with
Page 9
notice of the date, time and place that the report is to be
considered by the Council, at least seven days prior to the said
date.
Council Decision
56.
(1)
The Registrar and the member may make submissions to the
Council respecting the findings of the Inquiry Committee,
sanctions, remedial actions and costs.
(2)
The Council shall make its decision under subsection 17(2) of
the Act on the basis of the report of the Inquiry Committee and
any submissions made to it respecting the matter.
(3)
The Council in making its decision under subsection 17(2),
may:
(4)
(5)
(a)
accept the findings of the Inquiry Committee;
(b)
if in its opinion the Inquiry Committee has committed a
significant procedural, factual or legal error, direct a
new inquiry or hearing; or
(c)
if in its opinion there is new evidence that was not
reasonably available earlier and could reasonably be
expected to affect the outcome of the case, require the
Inquiry Committee to reopen the matter and hold a
further hearing.
The Council may dismiss the case, or determine that the
member:
(a)
has engaged in misconduct;
(b)
is incapable or unfit to practice veterinary medicine
overall or in a particular area of veterinary medicine;
(c)
is otherwise in violation of the Act or rules; or
(d)
obtained membership by fraud or misrepresentation.
All proceedings before the Council shall be conducted in
camera unless otherwise directed by the Council.
Sanctions
57.
(1)
The Council may do any of the following as it considers
appropriate:
(a)
order the member to pay the costs of the inquiry;
(b)
issue a warning to the member;
(c)
issue an admonishment or a reprimand to the member;
(d)
order the member to pay a fine to the Association;
(e)
suspend the member from practice for a period of time;
(f)
restrict the member’s practice, for a period of time or
subject to conditions; or
(g)
(2)
[10]
Page 10
revoke the member’s membership and direct that their
name be erased from the Register.
The Council shall forthwith deliver notice of its decision under
subsection (1) to the member.
In summary, complaints are investigated by a Complaint Officer, who
provides a report to a Conduct Review Committee. The Conduct Review Committee
decides whether to refer any charges or complaints to an Inquiry Committee. If a
referral is made, the Inquiry Committee holds a hearing and delivers a written report
of its findings to the Council. The Council may hear further submissions. Finally, the
Council determines whether the member has engaged in unprofessional conduct
and, if so, whether to impose one or more penalties.
Proceedings before the Inquiry Committee
[11]
In September 2005, Dr. Bhullar was notified that an Inquiry Committee (“the
Committee”), composed of two members of the BCVMA and a lay member, would
conduct a hearing into the charges. Additional charges against Dr. Bhullar in respect
of other allegations of misconduct were dismissed on the basis that the notice of
hearing had not been properly filed.
[12]
Prior to the commencement of the substantive hearings, the Committee
addressed several preliminary issues. These included Dr. Bhullar’s allegation of a
reasonable apprehension of bias on the part of two BCVMA members of the
Committee, Dr. Gerard and Dr. Cornish, and his allegation of institutional bias and
discrimination against him on the part of the BCVMA as a whole.
[13]
It is relevant that, in 2004, Dr. Bhullar and several other members of the
BCVMA commenced a complaint before the Human Rights Tribunal (the “Tribunal”)
alleging discrimination against them by the BCVMA. Specifically, the complainant
veterinarians say they have been discriminated against:
on the basis of their race, colour, ancestry, place of origin and political belief
as Indo-Canadian, foreign trained, veterinary graduates working at low-cost
community clinics who believe in helping to improve animal welfare,
regardless of owner income, including for those owners who may not
Page 11
otherwise be able to afford such services, such as those on social assistance
and/or newer immigrants.
[14]
They further allege that the BCVMA has been treating them unfairly through
its disciplinary process. They say that complaints against them are being “vigorously
investigated” in a way that similar or more serious complaints against other
veterinarians are not; that they are not being offered “reasonable consent resolution
options” comparable to those offered to their peers; that they are denied an “equal
and reasonable” level of procedural fairness in the complaint investigation and
hearing process; and, that warnings or sanctions made against them are
disproportionate to those made against their peers.
[15]
After approximately 300 hearing days, the proceedings before the Tribunal
have been completed. No decision has been rendered as of the date of these
reasons.
[16]
In February 2006, the Committee ruled that there was no evidence to support
a reasonable apprehension of bias, either in the conduct of the members whose
impartiality Dr. Bhullar had impugned or in the manner in which they had been
appointed.
[17]
In June 2006, the Committee ruled that it did not have jurisdiction to consider
the allegations of institutional bias against the BCVMA. It was of the view that it had
a narrow statutory mandate to hear and decide on facts in respect of charges or
complaints against a member. It did not have a mandate to consider the conduct of
the BCVMA itself. It subsequently ruled that there was no effective difference
between the allegations of institutional bias and of discrimination, and that it similarly
had no jurisdiction to consider the latter.
[18]
In addition to his allegations of bias against both Dr. Gerard and Dr. Cornish,
Dr. Bhullar also objected to Dr. Gerard’s inclusion on the basis that he had been
improperly appointed. Originally, separate Inquiry Committees were to hear each set
of charges against Dr. Bhullar. Motions by the Council had named specific members
to each Inquiry Committee panel, all of whom had previously been approved by
Page 12
Council for inclusion in the pool of potential committee members. The motions of the
Council, however, also stated that:
...in the event that one or more of the named persons is unavailable to attend
on the day the hearing is scheduled, they may be substituted by any of the
people on the list previously approved by council as eligible to serve as
Inquiry Committee members.
[Emphasis added.]
Such substitutions were to be made by the registrar of the BCVMA.
[19]
After members of several of the committees established by the Council
became unavailable, Dr. Gerard and another BCVMA member, Dr. Cornish, were
named as substitutes to a single committee that was to hear all of the charges
against Dr. Bhullar. Both Dr. Gerard and Dr. Cornish were approved for inclusion in
the pool after Council’s motions establishing the original committees, but prior to
being named to the new committee.
[20]
Dr. Bhullar objected to Dr. Gerard’s inclusion on the basis that the words
“previously approved” in Council’s motions meant “previous to the date of the
motion”, not “previous to the member’s appointment to the Committee in substitution
for an unavailable member”. He argued that because Dr. Gerard was not part of the
pool of potential committee members at the time of the motions, he could not have
been properly named to the committee that ultimately considered the charges.
Although Dr. Cornish had been appointed in the same circumstances, Dr. Bhullar did
not initially object to her inclusion.
[21]
In a ruling made in December 2005, the Committee disagreed with Dr.
Bhullar’s interpretation of the words “previously approved”, stating that this was an
“unnecessarily restrictive interpretation and not in keeping with the practical realities
of assuring that a Committee is available to conduct a hearing”. It concluded that a
potential committee member was “previously approved” as long as he or she had
been appointed to the pool prior to the hearing. As a result, it concluded that Dr.
Gerard was entitled to serve on the Committee.
[22]
Page 13
In July 2006, Dr. Bhullar brought a motion for dismissal on the basis of “undue
delay”. In November, 2006, Dr. Bhullar “discontinued” this application before the last
witness on the application was called to testify.
[23]
The substantive portion of the hearing before the Committee began on
November 20, 2006. On November 22, Dr. Bhullar brought an application for
recusal of the BCVMA’s counsel, Mr. Wexler. That application was dismissed. On
November 22, Dr. Bhullar also brought an application to quash or dismiss the
charges on the basis of lack of particulars, ambiguity, duplicity and vagueness. That
application was also dismissed. On November 23, Dr. Bhullar brought an
application for recusal of all three members of the Inquiry Committee based, in part,
on a reasonable apprehension of bias. On April 13, Dr. Bhullar brought a fresh
application for recusal. On April 16, the Committee rendered a decision dismissing
the first application for recusal. On April 16, the Committee rendered a decision on
the application to dismiss the charges and, on the same day, dismissed Dr. Bhullar’s
second application for recusal. The hearing before the Inquiry Committee
proceeded over 27 hearing days. The Committee rendered its decision in September
2008, finding 17 of the charges in respect of Dr. Bhullar’s treatment of animals, as
well as all five charges in respect of contraventions of BCVMA marketing guidelines,
to have been proven. It also found that during the course of the hearing, Dr. Bhullar
had influenced or induced members of the BCVMA and a notary public to give
untruthful evidence. The Committee noted that his conduct throughout the
proceedings had “threatened the integrity of the BCVMA’s regulatory role and that of
the veterinary profession in British Columbia”.
Proceedings before the Council
[24]
Prior to the Council’s consideration of the Committee’s findings, Dr. Bhullar
brought a motion, as he had before the Committee, that the Council lacked
jurisdiction to hear the matter on the basis of institutional bias. In March 2009, the
Council concluded, as had the Committee, that it did not have jurisdiction to consider
the issue of institutional bias. In its view, such allegations could only be made before
the Supreme Court of British Columbia or the Tribunal.
[25]
Page 14
Dr. Bhullar also brought a motion that certain Council members recuse
themselves due to a reasonable apprehension of bias. He argued further that there
was a reasonable apprehension of bias on behalf of the entire Council on the basis
that he had not been permitted to fully argue the issue of institutional bias.
[26]
One of these members recused himself despite denying the accusation. The
Council ruled in April 2009 that there was no reasonable apprehension of bias on the
part of individual members or the Council as a whole on the evidence presented by
Dr. Bhullar, which it considered to be inconclusive, speculative and largely
unreliable.
[27]
In July 2009, Dr. Bhullar brought an application to have the findings of the
Inquiry Committee dismissed on the basis that the BCVMA breached its duty to
disclose documents. This application was dismissed in September 2009.
[28]
The substantive hearings before the Council took place over nine days
between February and September of 2009. The parties also made written
submissions. During this period, the Council was composed of nine members.
However, in addition to the member who had recused himself, another member, who
was the president of the BCVMA and had testified in the proceedings before the
Committee, did not participate in the deliberations. This left seven Council members
participating in the decision respecting Dr. Bhullar: Drs. Grognet, Kirby, Gummeson,
Snopek, McKelvey, Lang and Ms. Rhonda Murray.
[29]
After the hearings concluded, the terms of three of these seven members
expired. They did not seek re-election. The decision was signed by the members of
the Council between November 25 and December 2, 2009. As a result, of the seven
individuals who signed the decision between November 25 and December 2, 2009,
only four were actually members of the Council at that time. The terms of Dr.
McKelvey, Dr. Lang and Rhonda Murray had expired after the hearings concluded
but before they signed the decision. The Council, as it was then constituted, had
eight members, including two new members who had replaced those whose terms
had expired. Dr. Bhullar’s case was decided by the former Council. The chambers
Page 15
judge had said, at para. 33, that by November 25 to December 2 “three new
members had been elected to the Council”. However, it appears that the chambers
judge was incorrect, as Rhonda Murray had not been replaced by December 2,
2009. All parties agree that there were only eight Council members when the
decision was rendered.
[30]
The Council held that all of the charges against Dr. Bhullar found to be proven
by the Committee amounted to unprofessional conduct, and that many of these
charges demonstrated an “extreme degree of moral turpitude”. It also found that his
attitude toward the discipline process was disrespectful and contemptuous. As a
result, all of the signatories to the decision concluded that he was not a governable
member of the BCVMA. Five members concluded that his conduct was deserving of
erasure from its register, the most severe penalty available.
[31]
Two signatories, Dr. McKelvey and Dr. Lang, dissented on the issue of
penalty. They recommended instead that the Council entertain an application for
reinstatement after four years. The two dissenting signatories were no longer on
Council when the decision was rendered.
[32]
Thus, at the time the decision was rendered, four of the seven Council
members were still active in their positions.
2. The decision of the chambers judge
[33]
Dr. Bhullar appealed the decision of the Council under s. 24 of the Act, which
granted a right of appeal where certain serious penalties, including erasure, had
been imposed. He advanced numerous grounds of appeal: unfairness,
discrimination or bias, and included the issue of whether the Committee and the
Council erred in concluding that they lacked jurisdiction to consider institutional bias.
[34]
The decision of Madam Justice Allan in Bajwa, referred to above, was
important to the ruling of the chambers judge. Dr. Bajwa, another member of the
complainant group of “Indo-Canadian low-cost veterinarians”, sought judicial review
of the Council’s decision to discipline him in response to findings of misconduct by
Page 16
an Inquiry Committee. Dr. Bajwa argued that the Committee had erred in concluding
that it lacked jurisdiction to consider allegations of institutional bias. Madam Justice
Allan agreed. She quashed the Council’s decision, and remitted the matter to the
BCVMA.
[35]
As the chambers judge felt that there would be considerable overlap in the
issues of unfairness, discrimination and institutional bias raised by Dr. Bhullar, he
adjourned all but two of the issues on appeal pending the reconsideration of
institutional bias by the Council in Bajwa. Dr. Bhullar’s appeal proceeded only on two
issues: first, whether there had been a fundamental error in the composition of the
Committee and the Council that deprived either of them of jurisdiction; and second,
whether Bajwa ought to be followed on the issue of whether the BCVMA was
required to consider the allegations of institutional bias.
[36]
On the first issue, Dr. Bhullar argued that neither Dr. Gerard nor Dr. Cornish
was eligible to serve on the Committee as neither had been part of the pool of
approved members at the time the original inquiry committees were established. The
chambers judge disagreed. He was of the view that the essential feature of the
Council’s motions was that substitute members come from an approved list; whether
the date on which they were approved was before or after the date on which a
committee was originally established was irrelevant.
[37]
He reached a different conclusion on the composition of the Council. Dr.
Bhullar had alleged that the Council’s decision was void on the basis that the four
signatories who were actually members of Council at the time the decision was
endorsed and released did not constitute a quorum of the nine-member Council as
required by its bylaws. The BCVMA conceded the absence of a quorum. However, it
argued that given the periodic turnover of the Council’s membership, a more flexible
approach was necessary to enable the Council “to effectively and efficiently carry out
its purpose”. It suggested that the members whose terms had expired, having heard
all of the submissions on the matter, remained empowered to participate in the
decision.
[38]
Page 17
The chambers judge found that the focus on the question of whether the
quorum requirement was satisfied was misplaced. In his view, the salient issue was
that no meeting of the Council, as it was constituted at the relevant time, had been
held to consider the decision. He noted BCVMA bylaws 3(10) and 18(1) provide that
decisions are to be considered at a meeting at which a majority of Council members
are present. Decisions are to be made on the basis of a vote of the majority of those
members present. The chambers judge recited these bylaws as follows:
[31] The Association’s bylaws provide that decisions of the Council are to be
made at a meeting on the basis of a vote of a majority of members present. A
duly constituted meeting requires a quorum of a majority of members of the
Council. The specific provisions, set out in articles 3 and 18, are as follows:
Council
3.
(10) All matters that require a decision of the Council shall be
considered on and decided at a duly called and constituted
Council meeting and … on the basis of a vote of the majority
of members present at the meeting.
...
Council Meetings
18.
(1) The Council shall hold regularly scheduled meetings.
(2) The Council shall additionally hold special meetings as the
interests of the Association may require, which may be called
by the President or at the request of three or more council
members by reasonable notice to each Council member.
(3) A majority of Council members shall constitute a quorum.
[39]
The chambers judge continued at para. 36:
[36]
... A duly constituted meeting of the Council could have taken place
with only five members in attendance; if the four signatories were among
those five, the signatories would have constituted a majority. But no meeting
was ever held. The Council’s bylaws require a decision of the Council to be
“considered” and voted on at a duly called and constituted meeting.
“Consideration,” in my view, implies at least the opportunity for discussion
and debate. With no meeting having been called, the newly-elected members
of the Council had no opportunity to consider the decision, no opportunity to
debate, and therefore no opportunity to persuade the four signatories to
change their minds. [Emphasis added.]
[40]
Page 18
He rejected the submissions of the BCVMA that the failure to hold a meeting
was merely a procedural irregularity, and that the members whose terms had
expired remained empowered to decide the matter. In his view, the newly constituted
Council ought to have considered the matter. The chambers judge concluded:
[43]
... The views of both – the retiring members who participated in the
hearings and the new members who have been elected to express the will of
the membership – are necessary to enable the Council to exercise its role.
The failure to hold a meeting and to allow the newly-elected Council
members to debate, discuss, and vote is more than a mere irregularity. It is
fatal to the Council’s decision.
[44] This does not mean that hearings and deliberations of the former Council
members became a nullity once the election was held. The Council, duly
constituted, was obliged to continue its work. So long as sufficient safeguards
were in place to provide for procedural fairness – and wholly aside from the
issue of bias, as discussed below – the Council, with its newly-elected
members, could have – and ought to have – considered the written decision
and the record of the evidence, including the available transcripts of the
Council hearings. With due consideration to that material, it would then have
been open to the Council to decide whether further hearings would be
required, or to accept the written decision in whole or in part and then vote on
the appropriate penalty.
[45] Without these steps having been taken, the striking of Dr. Bhullar’s name
from the registry was improper. The appellant succeeds on this ground of
appeal.
[41]
On the second issue, that of institutional bias, the chambers judge concluded
that there was no reason why Bajwa should not be followed. He rejected the
submission of the BCVMA that the only appropriate venue for Dr. Bhullar’s
complaints was the Tribunal. He disagreed that remitting the matter to the BCVMA
for consideration of the bias allegations would create a parallel proceeding with a
risk of inconsistent findings or would prejudice either party. While he acknowledged
that there would be some overlap between the proceedings before the BCVMA and
the Tribunal, he was of the view that the inquiries were nonetheless distinct:
[57]
... The purview of the Human Rights Tribunal is allegations of
discrimination contrary to the Human Rights Code. The issue to be
considered by the Association is whether a reasonable apprehension of
institutional or systemic bias exists sufficient to deprive the Association of
jurisdiction. As would be the case in any similarly based and concurrent
proceedings, e.g., a discrimination proceeding before the Human Rights
Tribunal and a wrongful dismissal claim in this Court, there may be some
Page 19
factual overlap between the proceedings; however, in no sense will they
duplicate each other. The mandate of each body is distinct.
[42]
In the result, the chambers judge set aside the decision and penalty of the
Council, and remitted the matter of the allegations of institutional bias to the former
council. Although the new Veterinarians Act, S.B.C. 2010, c. 15 (the “new Act”), was
in effect by that time, he concluded in supplemental reasons that one of the
transitional provisions of the new Act, s. 88, applied to permit the Council to decide
the matter on the basis of the report of the Committee as it would have done under
the former Act.
[43]
Finally, the chambers judge declined to interfere with the findings of the
Committee because the grounds of appeal relating to that issue were among those
he adjourned. He indicated in his order that he remained seized of these grounds of
appeal. I will have more to say about the process applied by the chambers judge
later in my reasons.
3. This Court’s decision in Bajwa
[44]
It is of considerable import for this appeal that in June 2011, several months
after the chambers judge rendered his decision, this Court allowed the appeal of the
BCVMA in Bajwa (2011 BCCA 265, 19 B.C.L.R. (5th) 239).
[45]
On the issue of the jurisdiction of the Committee and the Council to consider
institutional bias, the Court was of the view that “bodies such as [these] would
normally be considered to have the capacity to adjudicate on issues of bias raised at
a hearing notwithstanding that an extant legislative regime may not expressly grant
such jurisdiction” (at para. 27).
[46]
However, the Court considered this issue to be essentially moot, as it was of
the view that Dr. Bajwa’s application for judicial review was an abuse of process in
light of the proceeding before the Tribunal. It found that to remit the matter to the
BCVMA was duplicative and a waste of adjudicative resources, as the Tribunal was
Page 20
in the process of “addressing the very issues that were sought to be raised by Dr.
Bajwa in the discipline proceedings” (at para. 37). The Court said:
[30]
... The complaint about the disciplinary process articulated on behalf
of Dr. Bajwa is essentially a complaint of systemic discrimination by the
Association against him and certain of his colleagues. While sometimes the
complaint is denoted as “institutional bias” I think it more accurate to
characterize the complaint as one manifesting a discriminatory attitude to Dr.
Bajwa and others because of racial origin and practice of alleged low cost
veterinary service to the public. As well, Dr. Bajwa asserts that he and his
colleagues face an overly rigorous review and prosecution policy on the part
of the Association.
[47]
The Court also noted that given the broad scope of the proceedings before
the Tribunal, it was unrealistic that a decision on issues of bias by either an inquiry
committee or the Council “could have any measure of finality” (at para. 35).
[48]
The Court allowed the appeal, dismissing Dr. Bajwa’s petition for judicial
review.
[49]
Dr. Bajwa’s application for leave to appeal to the Supreme Court of Canada
was refused on February 23, 2012: [2011] S.C.C.A. No. 386.
[50]
In light of this Court’s decision in Bajwa, Dr. Bhullar applied to have this
appeal heard by a five-justice division. This request was refused by the Chief Justice
on October 14, 2011.
Issues on appeal
[51]
The BCVMA raises the following grounds of appeal:
1. Did the chambers judge err in concluding that the Council had jurisdiction
to consider the issue of institutional bias?
2. Did the chambers judge err in finding that the Council was improperly
constituted?
[52]
The BCVMA also seeks to admit fresh evidence. I will address this issue first
before continuing on to the substantive issues on appeal.
Page 21
Analysis
1. Fresh evidence
[53]
The BCVMA seeks to adduce the argument of the complainant veterinarian
group made before the Tribunal. It suggests that while this is not necessary to its
arguments on appeal, it may be helpful to the Court in providing more detail
regarding the nature and scope of the issues being considered in the human rights
proceedings. This, it says, is relevant to the issue of whether permitting the Council
to consider allegations of institutional bias would be an abuse of process.
[54]
The principles applicable to the admission of fresh evidence in civil cases is
articulated in Topgro Greenhouses Ltd. v. Houweling, 2004 BCCA 39, 23 B.C.L.R.
(4th) 351 at para. 26:
[26]
The admissibility of fresh evidence is governed by the principles set
out in Palmer v. The Queen (1979), [1980] 1 S.C.R. 759 at 775-76:
(1) The evidence should generally not be admitted if, by due diligence,
it could have been adduced at trial provided that this general principle
will not be applied as strictly in a criminal case as in civil cases: see
McMartin v. The Queen, [1964] S.C.R. 484.
(2) The evidence must be relevant in the sense that it bears upon a
decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably
capable of belief, and
(4) It must be such that if believed it could reasonably, when taken
with the other evidence adduced at trial, be expected to have affected
the result.
[55]
I agree that this evidence is relevant to the question raised in Bajwa, that is,
whether the institutional bias argument is an abuse of process in light of the matter
before the Tribunal. However, in my view, the evidence is unnecessary for this
appeal. This Court concluded in Bajwa that to raise the arguments of institutional
bias at the Inquiry Committee stage and Council stage was an abuse of process.
The distinguishing factor between this case and the Bajwa case does not refer to the
substance of the claim, but the remedy. This will be discussed further below.
[56]
I would, accordingly, dismiss the application to adduce fresh evidence.
Page 22
2. Standard of review
[57]
When this Court is reviewing the decision of a chambers judge, the standard
of review is correctness (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235;
Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19,
[2003] 1 S.C.R. 226 at para. 43). The parties are not arguing that the chambers
judge applied the incorrect standard of review.
3. Did the chambers judge err in finding that the BCVMA had jurisdiction to
consider institutional bias?
Positions of the parties
[58]
The BCVMA submits on the basis of this Court’s decision in Bajwa that Dr.
Bhullar’s claim of institutional bias is an abuse of process. As such, this Court need
not consider whether the Council had jurisdiction to consider the allegations. It says
there is no basis upon which to distinguish Bajwa. Dr. Bhullar is part of the same
complainant group in the same human rights complaint. Similarly, he has raised in
the disciplinary proceedings against him broad allegations of discrimination by the
BCVMA in its investigation and adjudication of complaints against this group. It says
that the allegations of institutional bias sought to be advanced before the BCVMA’s
disciplinary bodies and those being considered by the Tribunal are one in the same.
The chambers judge accordingly erred in concluding that the mandates of the two
were distinct. To permit parallel proceedings, it contends, would be duplicative and a
waste of resources.
[59]
In the event this Court chooses not to apply Bajwa, the BCVMA submits that
the Council did not have jurisdiction to consider the issue of institutional bias. It says
that the mandate of inquiry committees and the Council is narrowly circumscribed by
the Act to adjudicate matters of professional conduct. Neither body has the authority
to engage in a free-ranging inquiry into the conduct of the entire BCVMA.
[60]
Further, while the BCVMA acknowledges that inquiry committees and the
Council have jurisdiction to deal with individual or institutional bias arising in the
disciplinary process, the allegations raised by Dr. Bhullar are not of “bias” as that
Page 23
term is properly understood. Rather, they are complaints of systemic discrimination.
Such complaints are within the purview of the Tribunal, not the BCVMA.
[61]
Dr. Bhullar submits that Bajwa should not be applied. He argues that
discrimination is only one component of the concept of institutional bias; the two
should not be treated as synonymous. In this case, he characterizes the issue of
institutional bias as one of a “marketplace feud” rather than of discrimination. He
argues that the BCVMA is seeking, through its disciplinary process, to eliminate the
low-cost business model that threatens the established fraternity of veterinarians,
rather than discriminating against the Indo-Canadian veterinarians who practice this
model on the basis of their ethnicity.
[62]
He submits that the human rights proceeding deals only with the issue of
discrimination. The Tribunal does not have jurisdiction to address issues of bias and
fairness in the disciplinary process. Consequently, he says the Court in Bajwa erred
in concluding that adjudication of institutional bias vests in the Tribunal, and that
consideration of this issue by the BCVMA would be duplicative.
[63]
In any event, he says that Bajwa can be distinguished. While the Tribunal has
authority to grant the remedies sought by Dr. Bajwa on judicial review, namely the
quashing of the fine and the order to complete additional training, it cannot grant the
remedy sought by Dr. Bhullar: reinstatement. Under s. 16(1) of the Act, re-entry to
the register may occur only by direction of the Council or by an order of the Supreme
Court or the Court of Appeal on an appeal provided for under the Act. As he is
unable to raise the issue of institutional bias or adduce evidence thereof for the first
time on appeal, Dr. Bhullar says that precluding the Council and the Committee from
dealing with this issue leaves him in a vacuum in which institutional bias will go
unaddressed. Permitting these bodies to address the issue could not, therefore,
constitute an abuse of process.
[64]
Dr. Bhullar submits that even if the Tribunal were to find institutional bias in
the BCVMA’s disciplinary process (assuming it had the authority to consider the
issue), it is uncertain how the decision of the Committee or of the Council could be
Page 24
set aside, as it is not clear whether the courts would be bound by the Tribunal’s
decision.
[65]
In reply, the BCVMA argues that these concerns are overstated. Although the
Tribunal cannot reinstate Dr. Bhullar, it could, if it were to find institutional bias in the
disciplinary process, declare that process to be flawed and that penalties imposed
on the members of the complainant group should not stand. If this is correct, it is not
a matter of “reinstating” Dr. Bhullar, but setting aside the original decision to
expunge him.
Discussion
[66]
In Bajwa, Hall J.A., speaking for the Court, stated the following at para. 29:
[29]
As appears from the reasons for preliminary decision on the tribunal’s
jurisdiction, Brar et al v. British Columbia Veterinary Medical Association and
Osborne, 2007 BCHRT 363, the Human Rights Tribunal found that it had
quite a broad jurisdiction to review the heads of complaint being advanced
before it on behalf of Dr. Bajwa and his fellow complainants:
[67]
... I have no difficulty finding that in the circumstances of this
case, the Tribunal has jurisdiction to review the processing of
complaints by the BCVMA, including the appointment of Inquiry
panels and the nature and extent of the penalties imposed on its
members if it is with regard to issues of discrimination under the
Code. For example, if complaints being filed by members of the public
against Indo-Canadian veterinarians are more vigorously pursued to
the next stage than those filed against non-Indo-Canadians then that
might suggest that, in this early stage of the complaint process, there
is discrimination based on a protected ground. Further, if Inquiry
panels are more often convened when the respondent is an IndoCanadian, or after a hearing, they receive more severe penalties, this
might reveal that discrimination was an operating factor. ...
These proceedings are currently extant and have been ongoing for a
considerable time period as I noted in para. 4.
[67]
He concluded that the issues in the discipline hearing were the same issues
that were brought before the Tribunal (at para. 30).
[68]
In my view, the only distinguishing feature from this case and the factual
matrix of Bajwa is the fact that Dr. Bhullar has been expunged from the rolls of the
College. Under the Act, only the Supreme Court, this Court and the Registrar can
Page 25
reinstate Dr. Bhullar. There is, therefore, a live issue as to whether the Tribunal may
be able to reinstate him as a remedy if it finds institutional bias. As counsel for
BCVMA suggests, however, it seems more likely that the Tribunal has the
jurisdiction to simply set aside the entire disciplinary proceeding, including the
penalties.
[69]
It is clear then that the decision by the chambers judge to remit the matter on
the issue of institutional bias must be set aside on the basis of this Court’s decision
in Bajwa. This case falls squarely within the factual matrix of Bajwa. To allow
proceedings to continue at the Council concurrently with the Tribunal would
constitute an abuse of process.
[70]
This does not leave Dr. Bhullar without a remedy. If the Tribunal finds in
favour of Dr. Bhullar, and either does not have the jurisdiction to set aside the
proceedings (an issue we are not deciding today) or the BCVMA chooses not to hold
a new hearing in accordance with the findings of the Tribunal, this matter is returning
to the Supreme Court in any event to address other issues raised as a result of this
Court’s conclusion that the appeal must be allowed. In this way, the Supreme Court
will have the ability to address the issue of the reinstatement question if the Tribunal
decision concludes there were problems in the disciplinary process.
[71]
The order of the chambers judge is relevant to the issue of the proper
remedy. Notably, as stated above, he adjourned several issues and remained seized
of the matter. His order states as follows:
The appeal is granted in part:
1.
The decision of the Council, issued December, 2009 is set aside;
2.
The report of the Inquiry committee dated September 16, 2008, is
remitted back to the former council pursuant to s. 88 of the Veterinarians Act,
S.B.C. 2010, c. 14, for determination in accordance with that provision.
3.
The former council shall receive and consider Dr. Bhullar’s evidence
and submissions on institutional bias, prior to making a determination;
4.
The Appellant, Dr. Bhullar, is awarded costs in the cause for the
appeal to date on Scale B;
Page 26
5.
Mr. Justice Saunders shall remain seized of the appeal and the
parties are at liberty to apply for further directions on the implementation of
this order as necessary; and
6.
All issues on appeal, other than the issues of the composition of the
Inquiry Committee, the composition of the Council, and the jurisdiction of the
Council to hear the Appellant’s allegations of institutional bias, are adjourned
generally. [Emphasis added.]
[72]
This was an improper order to make. Once the decision of Council was set
aside and remitted for reconsideration, the appeal to the Supreme Court was at an
end. The chambers judge had no jurisdiction to adjourn other parts of the appeal and
remain seized of the appeal. A similar case was recently decided in this Court. In R.
G. Facilities (Victoria) Ltd. v. Liquor Control and Licensing Branch, 2012 BCCA 220,
36 Admin. L.R. (5th) 175, the chambers judge quashed the ruling of an arbitrator and
sent it back for reconsideration on the issues of a due diligence defence and the
appropriate penalty. He gave certain directions controlling the process that were
“unusual”. The parties proceeded with a re-hearing. The appeal to this Court from
the chambers judge’s decision was adjourned. The parties received a decision from
the second arbitrator, and then the appellant (R.G. Facilities) sought to proceed with
the appeal of the first arbitrator. This Court held that once the chambers judge made
the decision to set aside the arbitrator’s decision and proceed to a re-hearing, the
appeal from the first arbitrator’s decision was moot (at paras. 7, 15, 16). The Court
said the following:
[7]
The Branch cross-appealed the Order. The focus of its appeal was
paragraph 3 of the Order. In its view, the chambers judge did not have the
jurisdiction to decline to quash the penalty imposed by the first adjudicator
when he quashed the alleged contravention and remitted it for rehearing. The
Branch has since abandoned the cross-appeal, as in its view the effect of the
Order was to quash the first adjudicator’s decision, thereby allowing the
second adjudicator to make his own determination as to the appropriate
penalty if he found the Arena had contravened s. 33(1) of the Act. In short, in
its view, paragraph 3 of the Order giving directions to the second adjudicator
on the penalty phase of the rehearing was moot once the Order was made
quashing the first adjudicator’s decision.
...
[15]
Regretfully, we have concluded that engaging in a deliberation of this
legal issue would not be appropriate in the circumstances. The appeal from
the Order reviewing the first adjudicator’s decision is moot and it is common
ground that there is no jurisdiction for the Court to consider an appeal of the
Page 27
second adjudicator’s decision. The factual context in which the Order under
appeal was made no longer exists, as the first adjudicator’s decision was
quashed; the factual context in which the second adjudicator’s decision was
made, which was based on a different interpretation of the relevant statutory
provision and which imposed a different penalty from that of the first
adjudicator, is not before the Court. Judicial review of the second
adjudicator’s decision has not been pursued at this time. Accordingly, there is
no basis to review the second adjudicator’s decision. Furthermore, it is not
the usual practice of the Court to address moot issues.
[Emphasis added.]
In this case, when the chambers judge set aside the decision of Council, he no
longer had any jurisdiction to consider other grounds of appeal, as the decision of
Council no longer existed.
[73]
However, since this Court is reversing the order of the chambers judge, in
fairness, Dr. Bhullar should be permitted to pursue his other grounds of appeal. If the
parties wait until the decision of the Tribunal to bring the matter back before the
Supreme Court, that Court would have jurisdiction to consider the question of
remedy, if necessary. I note that R.G. Facilities was not decided when the
chambers judge made his decision.
[74]
Counsel for BCVMA also pointed out a second difficulty with the order in that
it was remitted to the Council to address the institutional bias issue when it should
have been referred to the Inquiry Committee. However, nothing turns on this
problem given the decision to allow the appeal.
[75]
In conclusion, this Court’s decision in Bajwa is dispositive of this issue; a
hearing before the BCVMA’s disciplinary panels on institutional bias would amount
to an abuse of process. If the Tribunal decides in Dr. Bhullar’s favour, he will have a
remedy as counsel for the BCVMA concedes that the Tribunal has the ability to set
aside the disciplinary process that struck him from the register. Alternatively, the
matter is returning to the Supreme Court in any event, which has the jurisdiction to
consider reinstatement if the Tribunal concludes there was institutional bias or
discrimination, but that it cannot reinstate Dr. Bhullar. In addition, the Supreme
Court has yet to consider the other grounds of appeal.
[76]
Page 28
I would give effect to this ground of appeal.
4. Did the chambers judge err in finding that the Council was improperly
constituted?
Positions of the parties
[77]
The BCVMA now submits that the four signatories to the decision who were
members of the Council at the time the decision was endorsed and released
constituted a quorum. It notes that the former Act did not specify a fixed number of
Council members. It required only that it be composed of between five and nine
members. Due to the two recusals, the Council was composed of only seven
members at the time of the decision, four of which satisfies the requirement in bylaw
18(3) that “a majority of Council members shall constitute a quorum”. It submits that
this also satisfies the requirement in s. 18(2)(b) of the Interpretation Act, R.S.B.C.
1996, c. 238. That provision states that where there is no fixed number of members
(as is the case for the Council under either the new or former Act), “at least ½” of the
number of members constitutes a quorum”.
[78]
On this basis, the BCVMA argues that this Court need not determine whether
the three members whose terms had expired were empowered to continue, by
necessity, to participate in the decision-making process. It says their participation
was not necessary to satisfy the quorum requirement.
[79]
The BCVMA also submits that the chambers judge erred in assuming that
BCVMA bylaws governing meetings apply to its disciplinary decisions. It says that
the Council engages in different kinds of decision-making, which may necessitate
different procedural rules. While the meeting requirement would clearly apply to
Council’s exercise of the BCVMA’s powers (for example, the disposition of property
or the management of a scholarship and bursary fund), it says that nothing in the Act
specifies that it should also apply to the adjudication of disciplinary proceedings, a
wholly different kind of decision-making.
[80]
In the alternative, it says that to the extent that the bylaws purport to apply to
Council’s disciplinary decisions, bylaw 18(3) is void and of no effect. Section 10 of
Page 29
the former Act, which grants the Council bylaw-making authority, provides in
paragraph 2(g) that the Council may pass bylaws “establishing the discipline by
warning, reprimand, fine, suspension, expulsion, suspension or revocation of the
licence of any member who is found to have been guilty of unprofessional conduct or
violation of the rules or bylaws”. The BCVMA contends that this does not extend to
providing authority to pass a bylaw establishing the quorum requirement for
Council’s disciplinary decisions.
[81]
In the absence of the quorum requirement under bylaw 18(3), it says that the
requirement in the Interpretation Act of “at least ½” would apply. The four signatories
who remained members in December 2009 would therefore constitute a quorum of
what then was an eight-member Council.
[82]
In any event, the BCVMA submits that it was not appropriate for the
chambers judge to remit the matter for the new Council members to consider the
decision. It says that requiring new members who did not hear submissions or
evidence to participate in a decision disregards the basic requirement of natural
justice in adjudicative decision-making that “only those who hear can decide” (audi
alteram partem). There is nothing in the Act that evidences an intention to depart
from this principle.
[83]
Dr. Bhullar submits that the bylaws are clear that a Council meeting must be
held to consider and render a decision. He also says that a majority of the total
number of Council members at a given time, whether or not all of those members
are participating in a particular decision, is required to constitute a quorum. On this
interpretation, the two recusals did not affect the number of Council members or the
number required for a quorum. He submits that as there were eight members of the
Council at the time the decision was rendered, at least five were required to vote in
favour of imposing erasure for that penalty to be valid.
[84]
He further submits that the former Council members should not be found to
have remained empowered to participate in the decision after their terms had
expired. He notes that Mr. Justice Truscott, in an earlier proceeding in this litigation,
Page 30
stated in obiter that the Act does not make applicable s. 7(1) of the Administrative
Tribunals Act, S.B.C. 2004, c.45 (2010 BCSC 85 at para. 22). That section provides
that a tribunal member who resigns remains empowered until the final decision in a
proceeding over which he or she had jurisdiction immediately before the end of his
or her term. Likewise, the chambers judge in this case identified a number of other
statutes related to the regulation of professionals that had provisions for completing
unfinished business. He found no such provision in the Act (at para. 40).
Discussion
[85]
The issues that arise under this ground of appeal are (1) whether there
needed to be a “meeting” pursuant to bylaw 3(10) and, if so, whether there was a
meeting; and, (2) whether there were a sufficient number of active Council members
to render a decision. I reproduce bylaw 3(10) for convenience:
3.
[86]
(10) All matters that require a decision of the Council shall be
considered on and decided at a duly called and constituted Council
meeting and, subject to section 5(2) of these Bylaws, on the basis of a
vote of the majority of the members present at the meeting.
The chambers judge found that it was necessary to hold a meeting, and that a
meeting was not in fact held. He found that this voided the decision because the new
members of Council (none of whom were present for the evidence and
submissions), were not able to participate in the decision or persuade those who had
been on the Council committee to change their minds. I repeat his reasoning:
[34] There was no meeting of the Council in respect of the decision. The
decision was not debated by the Council, and was not endorsed by it. A copy
of the decision was delivered to Dr. Bhullar on December 4, 2009 advising
him that the penalty would take effect as of 12:01 a.m. the next day,
December 5, 2009.
...
[36]
The parties’ focus on whether the four Council members who were
still in office when the decision was signed constituted a quorum is somewhat
misplaced. Decisions of the Council are not to be made by a quorum; they
are to be made by a majority of those in attendance at a meeting at which a
quorum of the Council is present. A duly constituted meeting of the Council
could have taken place with only five members in attendance; if the four
signatories were among those five, the signatories would have constituted a
majority. But no meeting was ever held. The Council’s bylaws require a
Page 31
decision of the Council to be “considered” and voted on at a duly called and
constituted meeting. “Consideration,” in my view, implies at least the
opportunity for discussion and debate. With no meeting having been called,
the newly-elected members of the Council had no opportunity to consider the
decision, no opportunity to debate, and therefore no opportunity to persuade
the four signatories to change their minds.
[Emphasis added.]
[87]
In my respectful opinion, the reasoning of the chambers judge is flawed with
respect to his conclusion that there was no meeting, and his reasoning as to why
there must be a meeting. I will briefly address the last point first. The basic principle
of law of audi alteram partem applies to administrative tribunals unless legislation
states otherwise. See I.W.A. v. Consolidated-Bathurst Packaging Ltd., [1990] 1
S.C.R. 282 at 329-330, citing Kane v. Board of Governors of the University of British
Columbia, [1980] 1 S.C.R. 1105 at 113; Ellis-Don Ltd. v. Ontario (Labour Relations
Board), 2001 SCC 4, [2001] 1 S.C.R. 221. Had the Council proceeded on the basis
suggested by the chambers judge, it would have in all likelihood resulted in an actual
breach of this principle. The chambers judge is suggesting that new Council
members should decide the case without hearing the evidence or giving the parties
an opportunity to be heard in submissions. In addition, he implicitly suggests that the
two members who disqualified themselves should participate in the decision-making
process as they were still active Council members. The plain meaning of the bylaws
cannot have intended such a result.
[88]
I agree that the bylaws contemplate a meeting to be held in order for the
Council to make a decision. If the BCVMA wished to have a discrete process for
disciplinary proceedings, it could easily have accomplished that with clearly worded
bylaws.
[89]
I turn to the question of whether a meeting was held. In Bajwa, Hall J.A.
discussed the disciplinary procedure under the Act and bylaws. He described
Council as meeting to consider the report of the inquiry committee (at paras. 16-17).
In my view, the plain meaning and sensible interpretation of the bylaw is that
adverted to by Hall J.A.: when the Council commenced its hearing to consider the
report of the inquiry committee, it was “meeting” under the terms of the bylaw. To
Page 32
suggest that a second meeting, with persons who were disqualified from the Council
or not involved in proceedings, was required to give effect to any decision does not
make sense in the context of statutory interpretation. It would be an absurd result.
[90]
Therefore, in my opinion, the process of considering the report, hearing
submissions and evidence constituted a meeting under the bylaws.
[91]
The next question is whether there was a sufficient number of Council
members to render a decision. The bylaw is clear that a decision may be rendered
by a majority of the members present at the meeting. Here, four of the seven
members were still active and capable of rendering a decision. The only dissension
was in relation to penalty. Only two of the seven members would have imposed a
lesser penalty. If the two dissenters were part of the four remaining members, then
the issue of penalty would have to be returned to Council. However, the four
remaining members were unanimous on the result, and could therefore render a
decision.
[92]
I would give effect to this ground of appeal.
Remedy
[93]
Dr. Bhullar submits that this Court should dismiss the appeal and declare the
decisions of the Committee and Council to be void. In the alternative, he requests
that the matter be remitted to the BCVMA to consider evidence and submissions on
institutional bias. If he is not successful on that point, he submits that the decision
should at the very least be remitted to a properly constituted Council.
[94]
In the event that the Court allows the appeal on the basis of Bajwa, he asks
the Court to quash the decisions of the Committee and the Council pending the
outcome of the human rights proceedings. He also asks that the Court declare that
the BCVMA and the Supreme Court of British Columbia are bound by the decision of
the Tribunal.
[95]
Page 33
The BCVMA requests that the decision of the Council be reinstated. If the
conclusions of the chambers judge on the issue of the composition of the Council
are upheld, however, it argues that it would not be appropriate to order that the
entire process be recommenced afresh. It says that it would be impractical to do this
every time one or more Council members’ terms expired following hearings in a
matter but before a decision has been rendered. Particularly in lengthy and complex
cases such as this one, this could lead to the clearly unsatisfactory result that a
disciplinary proceeding is never finally adjudicated.
[96]
In my view, the appropriate remedy is to remit the matter to the Supreme
Court. It would not be appropriate to make any declaration regarding the potential
results of the Tribunal.
Disposition
[97]
I would dismiss the application to adduce fresh evidence. I would allow the
appeal, set aside the decision of the chambers judge and restore the decision of the
Council. I would remit the case to Supreme Court to await the decision of the
Tribunal and to address the remaining grounds of appeal.
“The Honourable Madam Justice Bennett”
I agree:
“The Honourable Mr. Justice K. Smith”
I agree:
“The Honourable Mr. Justice Frankel”

COURT OF APPEAL FOR BRITISH COLUMBIA

Transcription

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