Every now and then there are cases raising important legal and regulatory issues in which the decision does not satisfactorily address the concerns. College of Chiropractors of British Columbia v Health Professions Review Board, 2023 BCSC 529 (CanLII) is such a case. There, a registrant filed two complaints against two other registrants who were on the board of directors of the regulatory body. The complaints were filed on the eve of an election to the board. The respondents to the complaint were running for re-election. The by-laws provided that a candidate was ineligible for election if they were the subject of a complaint investigation. The complaints, about statements on the respondents’ website, appeared to have some substance.
The Registrar for the regulator processed the complaints, on a very expedited basis, through a summary procedure and decided to take no action because they did not raise a serious matter (i.e., something that would likely result in terms and conditions or a suspension if it went to discipline). Under the legislation, the summary decision stood unless the screening committee intervened. After taking no action, the Registrar took some informal, educational measures, to encourage the respondents to consider making changes to their websites.
This scenario raises serious questions, including the following:
- Should the public complaints process enable the disruption of the elections to the board of directors through the mere filing of a complaint?
- Could the complaint be viewed as an abuse of process?
- Should the complaints summary procedure process be used for a complaint made against members of the board of directors?
- Should the Registrar be the person to review a complaint made against what is, in effect, the Registrar’s boss? If so, should the Registrar involve a statutory committee, with publicly appointed members on it, to foster transparency and accountability?
The complainant sought a review before an independent tribunal. The tribunal reversed the Registrar’s decision on the basis that the investigation was inadequate and that the decision was unreasonable, primarily because the Registrar had not involved the screening committee before deciding to take no action. The regulator sought judicial review. The Court reversed the tribunal’s decision and reinstated the decision of the Registrar to take no action on the complaints.
The Court’s decision was based on a highly technical analysis. The Court focused on the degree to which the complainant raised bias concerns in their original complaint, the legal structure of the summary complaints procedure, and the limited authority of the reviewing tribunal to assess the adequacy of the investigation and the reasonableness of the decision. For the most part, the Court sidestepped the broader issues raised by the scenario. The Court also did not address the issue of whether the decision-maker (rather than the parties to the complaint) should take the lead in defending its own decision.
The Court did discuss the value of a summary procedure for complaints:
The dispositions permitted the registrar to address matters that were not serious, as the legislation defines serious matters, without the spectre of disciplinary sanctions creating a fraught or adversarial atmosphere that interfered with a proactive and constructive approach.
However, regulators are left to deal with the broader issues raised by the case on a policy basis. Perhaps election and complaints procedures can be designed to avoid or reduce the unfortunate appearances of these kinds of situations.