Challenging an Undertaking Never to Re-Apply

Colleges often agree not to proceed with a discipline hearing if the practitioner undertakes to resign and never to re-apply for registration. This type of resolution is often appropriate where the allegations do not require denunciation and where there are mitigating factors such as illness or the practitioner is ending a long and distinguished career. Dr. Stelmaschuk, a dentist in British Columbia, entered into such an undertaking. He suffered from bi-polar disorder. Later he sued his regulatory body to set aside the undertaking on the basis that he did not have capacity to understand the agreement he was signing because he was in an acute stage of his illness at the time. The agreement confirmed that he had legal advice at the time of signing.

In Stelmaschuk v. The College of Dental Surgeons of British Columbia, 2016 BCSC 2196, the regulator sought access to information from the dentist’s lawyers to challenge whether the dentist had capacity to enter the undertaking. The dentist resisted on the basis of solicitor and client privilege. The Court concluded that the dentist had waived this privilege when he asserted his lack of capacity and ordered access of the information to the regulatory College.

The fact that this litigation is ongoing may serve as a warning to regulators to be cautious when entering into such undertakings where there is evidence of an illness that might affect the capacity of the practitioner.

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