The complaints decisions of many regulators are subject to external scrutiny. The scrutiny is often focused on whether the public interest was served. The test for such scrutiny varies, but perhaps the most common one has two components: 1) Was the investigation adequate? 2) Was the decision reasonable?
British Columbia’s highest Court again waded into the meaning of that test in The College of Physicians and Surgeons of British Columbia v. The Health Professions Review Board, 2022 BCCA 10 (CanLII), https://canlii.ca/t/jlpc1. The Court slightly modified its view about the test that it had set out in Moore v. College of Physicians and Surgeons of British Columbia, 2014 BCCA 466 (CanLII), https://canlii.ca/t/gfk07 only eight years earlier around whether regulatory investigations were adequate. The Court described that test as follows:
Adequacy describes a relationship between an action and a goal. An investigation is “adequate” if it is sufficient to meet its goals. There may be many goals of an investigation of a complaint against a physician. Obvious goals include public accountability and uncovering the truth. A further possible goal is to gather sufficient information to allow an effective remedy to be crafted. Scarcity of resources dictates that one goal of investigations will be to obtain necessary information without squandering resources. There are, no doubt, other goals that can be ascribed to the investigative process.
In this case, the complaint decision was first reviewed by the province’s Review Board. According to the Court, it was insufficient for the Review Board simply to assert that more investigation should have been done. Instead, the Review Board should have identified the ways the investigation was inadequate, which in turn would have been likely to produce relevant information that might have affected the disposition of the complaint. The Court found that most of the additional investigatory steps suggested by the Board related to matters where it was likely that the relevant information had already been obtained, meaning that the additional steps related to portions of the investigation that were adequate. There was only one area in the investigation where the Court agreed additional relevant information should be sought as it might affect the decision.
In terms of the component of the review focused on whether the disposition was reasonable, the Court said:
[The legislation] indicates that, in respect of the disposition, the statute’s focus of deference is on the College. A failure by the Review Board to afford deference to the College would be a fundamental violation of the statutory scheme. … The reasonableness standard of review recognizes that there will often be a range of acceptable outcomes on questions of law or fact. Each of those outcomes will be characterized as reasonable, and a tribunal does not fall into error by choosing one of the reasonable outcomes. Any of those outcomes will be a “right” answer.
This legislation also provided for a streaming of complaints into serious and less serious categories. The Court held that it was beyond the jurisdiction of the Review Board to question which stream had been selected; rather the Board should have focused only on whether the investigation was adequate and the decision reasonable.
Other regulators with similar complaints scrutiny criteria will be guided by this decision.