Limits on a Reviewing Tribunal’s Ability to Issue Directions

The decisions of many complaints screening committees are subject to scrutiny by an independent tribunal. One of the options for the reviewing tribunal is to return the matter to the complaints screening committee for reconsideration. Sometimes the reviewing tribunal issues directions as to how that reconsideration should be conducted. The case of College of Dental Surgeons Of British Columbia v Health Professions Review Board, 2022 BCSC 941 (CanLII), explores the limits to those directions.

The complaint was about a dental specialist’s conduct towards and care of a patient. The dentist refused to sign an undertaking after the first screening committee’s decision and requested a different panel. The second panel, after hearing from the dentist (but not the complainant) decided to take no action. The complainant sought a review by the tribunal. During the review process, the complainant advised the reviewing tribunal that the dentist had approached them directly in a threatening and intimidating manner. The tribunal directed the dentist not to communicate directly with the complainant.

After the review, the tribunal returned the matter to the screening committee for reconsideration and issued a number of directions. The regulator challenged the reviewing tribunal’s decision and the directions it had provided in Court.

The regulator did not take issue with the directions that the reconsideration be before a differently-constituted panel of the screening committee, that the panel review the reviewing tribunal’s entire decision and reasons (not just a summary of it), and that the panel address the concerns identified by the reviewing tribunal. In addition, the regulator did not take issue with the reviewing tribunal’s direction that any submissions be in writing, which would ensure that the dentist did not have different access to the panel than the complainant and ensure that there was a record of the communications, which could be shared with the complainant for comment.

However, the Court found that the other directions provided were beyond the scope of the authority of the reviewing tribunal. For example, the Court found that it was beyond the tribunal’s jurisdiction to direct the qualifications of those appointed to the new panel; rather, the Court commented that it was for the regulator to decide whether a particular dental specialist needed to sit on the panel. Such decisions involved a number of factors including resources and consideration of alternative methods of obtaining relevant information (e.g., obtaining an independent expert opinion).

The Court took particular exception to the reviewing tribunal’s direction that the regulator order the dentist not to have any direct contact with the complainant, failing which there would be a referral to discipline. According to the Court, any directions had to relate to the reconsideration of the original complaint, and the communication between the dentist and the complainant occurred after the screening committee’s decision. In addition, the Court found there was no jurisdiction for the regulator (let alone the reviewing tribunal) to refer a matter to discipline without the investigation and procedural safeguards specified in the legislation. There was not even jurisdiction for the screening committee to issue a direction prohibiting the dentist from directly contacting the complainant.

This case highlights that directions from a reviewing tribunal to a screening committee to reconsider a matter must relate directly to that reconsideration, must not usurp the functions assigned to the regulator, and must be within the jurisdiction of both the screening committee and the reviewing tribunal.

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