Dr. Q v. BC

1. Whether the reviewing judge exceeded the limits of judicial review by engaging in the reconsideration of Committee’s findings?

2. Whether the Court of Appeal applied an inappropriate test in assessing the decision of the reviewing judge?

Whether the reviewing judge exceeded the limits of judicial review by engaging in reconsideration of Committee’s findings?

Erroneous Assumptions (2): Where the Reviewing Judge went wrong

Clear and Cogent Evidence

"Positive, explicit, precise as opposed to ambiguous or contradictory proof"

The Pragmatic and Functional Approach in determining the standard of review

1) Correctness:

-OK to overrule or set aside a decision.

-Lowest degree of deference

2) Reasonablness Simpliciter:

-Was the initial ruling reasonably justified?

-If Yes it shall be maintained,

-If Not it shall be set overrulled.

*Deference lies somewhere in the middle

3) Patent Unreasonableness

-All 4 factors suggest that high deference is due

"Applying the pragmatic and functional approach in this case, the 4 factors lead to a standard of reasonableness simpliciter."

Administrative Law

310-563-OS GR. 0001

For: Marianthi Kakouratos

Matthew Fernandes

Racquel Chouha

Emanuel Lucia

Dr. Q. v College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 SCR 226 (CanLII).

Medical Practitioners Act

Duties: To serve and protect the public, and to exercise its powers and discharge its responsibilities under all enactments in the public interest.

= Fines and Suspensions

Enacting Legislation:

Medical Practitioners Act, RSBC 1996, c 285

Allows for review of decision

Governed by:

The College of Physicians and Surgeons of British Columbia

Enforced by:

Inquiry Committee of the College

Facts

Dr. Q (therapist) was treating Ms. T (patient) for depression. Ms. T alleged that, at some point, the relationship became sexual and that it lasted for approximately 16 months. Dr. Q denied Ms. T’s allegations.

The Inquiry Committee of the College of Physicians and Surgeons of British Columbia found that Dr. Q was guilty.

The Council of the College of Physicians and Surgeons suspended Dr. Q from the practice of medicine for 18 months.

Dr. Q appealed this decision to the British Columbia Supreme Court.

The reviewing judge set aside the Inquiry Committee’s decision.

Conclusion

The Committee then appealed to the Court of Appeal of British Columbia, which dismissed the appeal.

Appeal allowed with costs and the order of the College restored

The Committee appeals to the Supreme Court of Canada.

Questions in Dispute

1.

When determining the appropriate standard of review, the reviewing judge must take into account the 4 following factors of the pragmatic and functional approach:

3.

1.

Purpose of the legislation

Presence or absence of a

Privative Clause

2.

4.

Nature of the Question

Relation of the expertise

between decision maker and

reviewing body

3.

Considering that the standard used was that of clear and cogent evidence, the reviewing judge was required to re-visit the committee's findings of credibility and fact.

Purpose of the legislation

1.

Presence or absence of a

Privative Clause

When a case is "quasi-judicial" more deference is due. The case at bar is more of dispute resolution, thus greater deference to the committee's findings.

Here the court looks if there is or isn't a privative clause.

If there is, the reviewing judge must determine its strength in order to rate its deference. Therefore a stronger privative clause means the judge should allow a greater respect of the initial decision.

4.

2.

Nature of the Question

Relation of the expertise

between decision maker and

reviewing body

In the initial case the question to ask here is if the committee had greater expertise of the matter in dispute than a reviewing tribunal. If yes, a higher deference must be awarded (when decision maker is more of an expert than the courts). In this case however, they were not , since the question at bar was the credibility of the evidence.

A reviewing judge can only interfere (with regards to evidence) if the decision maker made a

palpable and overriding error

or in their finding, they were CLEARLY wrong. Which was not the case

Considering that the Act grants a right of appeal, the matter could be dealt with without recourse to the usual administrative law principles pertaining to standard of review.

Role of Reviewing Judge

The Inquiry Committee

-2 Physicians

-1 Public representative

-1 Member of the Bar of B.C

Merits of the complaint are determined on the basis of the evidence and its findings on credibility

Set aside the Committee's findings and re-evaluate the evidence.

Ms. T

3 Tasks

Standard of proof

Dr. Q

1. Make findings of fact

2. Select appropriate standard of proof

3. Apply standard of proof to the facts to reach conclusion

Assess the appropriate standard of review by applying the pragmatic and functional approach

3 Standards of Review

2.

Whether the Court of Appeal applied an inappropriate test in assessing the decision of the reviewing judge?

The Court of Appeal erred in failing to overturn the reviewing judge’s order.

The Court of Appeal determined that the standard to be applied in assessing the reviewing judge's judgment,

was whether in her re-weighing of the evidence she was wrong.

This was not the appropriate test.

The role of the Court of Appeal was to determine whether the reviewing judge had chosen and applied the correct standard of review, and in the event that she had not, to assess the administrative body’s decision in light of the correct standard of review.

Moreover, the Court of Appeal erred by giving deference where none was due.

The Court of Appeal should have corrected the reviewing judge’s error, replaced the appropriate standard of administrative review, and assessed the Committee’s decision on this basis.

Judging on the proper standard of reasonableness, there was sufficient evidence to support the Committee’s conclusions.

-Dr. Q vs. Ms. T (Clear and Cogent evidence)

-Pragmatic and Functional Approach

-The 4 Factors

-The 3 Standards of Review

Things

to remember

Thank You