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					                                                                       Suite 900, 747 Fort Street
                                                                       Victoria British Columbia
                                                                       Telephone: 250 953-4956

                    Health Professions Review Board
                                                                       Facsimile: 250 953-3195
                                                                       Toll Free: 888 953-4986
                                                                       Within B.C.

                                                                       Mailing Address:
                                                                       PO 9429 STN PROV GOVT
                                                                       Victoria BC V8W 9V1



DECISION NO. 2009-HPA-0027(a)

In the matter of an application for review of a disposition of a complaint made by an
inquiry committee under section 50.53(1)(c) and 50.6 of the Health Professions Act
R.S.B.C. 1996 c. 183, as amended

BETWEEN:          The Complainant                                      COMPLAINANT


AND:              The College of Registered Nurses of British                   COLLEGE
                  Columbia

AND:              A Registered Nurse                                      REGISTRANT


BEFORE:
                  J. Thomas English, Q.C., Chair

DATE:
                  Conducted by way of written submissions concluding
                  on December 11, 2009

APPEARING:
                  For the Complainant: self-represented

                  For the College:       Jason Herbert, Legal Counsel

                  For the Registrant:    Sari A. Wiens, Legal Counsel



APPLICATION UNDER SECTION 42 OF THE ADMINISTRATIVE TRIBUNALS ACT

I      DECISION

[1]     Upon considering the applications of the College and the registrant pursuant
to section 42 of the Administrative Tribunals Act (also the “ATA”) to exclude
information or documents from the complainant for purposes of a review under
section 50.53(1)(c) of the Health Professions Act R.S.B.C 1996, as amended (the
“Act”), it is the decision of the Health Professions Review Board (the “Review Board”)
that the applications for non-disclosure pursuant to s.42 are dismissed.
DECISION NO. 2009-HPA-0027(a)                                                       Page 2



II     INTRODUCTION - Applications under s. 42 of the ATA

[2]    The issue before the Review Board on these applications is whether the
Review Board ought to consider portions of the Record on this review without
allowing the complainant to see them. The requests to have the Review Board
consider evidence in confidence and ex parte to the exclusion of the complainant, is
advanced by both the registrant and the College pursuant to s. 42 of the
Administrative Tribunals Act:

       42. The tribunal may direct that all or part of the evidence of a witness or
       documentary evidence be received by it in confidence to the exclusion of a
       party or parties or any interveners, on terms the tribunal considers necessary,
       if the tribunal is of the opinion that the nature of the information or documents
       requires that direction to ensure the proper administration of justice.

[3]    It should be noted at the outset that the Review Board’s jurisdiction over this
review is not in dispute. While the original complaint was filed in 2008, both the
inquiry committee’s disposition (June 29, 2009) and the request for review (July 21,
2009) were made after the new right of review came into force (March 16, 2009). As
such, the review is subject to the new legislation: Health Professions (Regulatory
Reform) Amendment Act, 2008, S.B.C. 2008, c. 29, s. 58(1); B.C. Reg. 396/08; R. v
Puskas, [1998] 1 S.C.R. 1207 at para. 14.

[4]     The Review Board has issued a general Practice Directive entitled Section 42
Applications under the Administrative Tribunals Act, addressing the procedure and
general principles that apply when a s. 42 application is made. Given the nature of
the arguments made on this application, and the fact that this is the first contested s.
42 application decided under the new legislation, a detailed discussion is appropriate.
It is hoped that this discussion will simplify the consideration of future cases.

[5]    As noted, we have in this case received s. 42 applications from both the
registrant and the College. They argue that the complainant should be required to
advance his review without being allowed to see any of the communications between
the registrant and the College. If the applications are granted, it will mean that the
complainant will be required to pursue his application for review based on a College
decision whose substantive reasons are brief and conclusory at best, and without
knowing anything meaningful about what informed its decision and the investigation
process.


III    BACKGROUND - The Communications

[6]   There were two stages of communications between the registrant and the
College in this case that are part of the Record. Since the arguments in relation to
each are slightly different, it will be convenient to describe each stage separately.
DECISION NO. 2009-HPA-0027(a)                                                       Page 3



A.     Communications between October – December 2008

[7]    The registrant and the College submit that the complainant should be barred
under s. 42 from seeing anything the registrant told the College in their first contacts
immediately following the September 17, 2008 complaint, which was the period of
time before the registrant was represented by counsel. Those contacts, in October
2008, consist in the Record of a College official’s notes of a telephone call with the
registrant, a letter and enclosures from the registrant to the College and various
running notes by the investigator. The position is that the complainant should not
see this information because the registrant understood that the information was being
provided in confidence, and because it is presumptively personal information about
educational and work history that would be protected from disclosure under the
Freedom of Information and Protection of Privacy Act.

[8]    These communications were made within the legislative process that existed
under the former legislation, prior to the recent reforms creating the Review Board in
December 2008 and proclaiming the right of review in March 2009. At the time the
complaint was filed, the Health Professions Act (former s. 34) required that the
inquiry committee would make a decision, and a complainant could request that the
College Board internally review the decision. Pursuant to that process, the College
Board decided on December 5, 2008 to remit the complaint to the inquiry committee
based on its view that further investigation was indicated.

[9]    Those earlier communications remained part of the College’s open file
following the December 5, 2008 decision of the College. As such, they were properly
included by the College as part of the Record on this review.

B.     Communications between January – June 2009

[10] The College Board’s remittal of the investigation back to the inquiry committee
gave rise to the second set of communications that are in issue on this application.

[11] Those communications took place in the wake of the College’s January 5,
2009 letter giving the registrant the option of resolving the complaint through what it
calls the “Consensual Complaint Resolution Process”. The College’s January 5,
2009 letter stated:

       ….the CRNBC Board reviewed the complaint on December 5, 2008 and
       determined that further investigation by the Inquiry Committee was required.

       On December 18, 2008, a panel of the Inquiry Committee initiated an
       investigation under Section 33 of the Health Professions Act. This means in
       effect that CRNBC will investigate the complaint further and take whatever
       action is required to resolve the complaint within the provisions of the
       legislation.
DECISION NO. 2009-HPA-0027(a)                                                    Page 4



      When you have had a chance to read this letter and consider your options, we
      ask that you inform us how you would prefer CRNBC to resolve the complaint.

      …As much as possible, CRNBC prefers to resolve complaints through the
      Consensual Complaint Resolution Process. This is a process in which
      CRNBC negotiates with the nurse in question to determine how to address the
      concerns expressed in a complaint. You also have the option of choosing to
      resolve the complaint through the Investigation and Inquiry Process.

[12] A publication attached to this letter, entitled Acting on Your Concerns,
describes the Consensual Complaint Resolution “option” as follows:

      Some complaints the CRNBC receives about registrants’ professional conduct
      and practice require a more formal approach. Two options to address the
      complaint are available within the formal process.

          •   Consensual Complaint Resolution

          This involves CRNBC negotiating directly with the nurse in question to
          determine appropriate action to address the concern. This is a confidential
          process.

          •   Investigation and Inquiry Process

          This involves CRNBC gathering evidence and holding a formal hearing
          before a panel of the Discipline Committee. This method is judicial in
          nature, similar to a court proceeding.

          The next two pages describe each of these processes. Once the registrant
          is informed about the complaint, she/he can choose either method to
          resolve the complaint.

[13] The publication goes on to describe the Consensual Complaint Resolution
Process:

          It is a non-adversarial approach where the registrant (and the registrant’s
          lawyer if so desired) meets with a CRNBC representative to share
          information and thoroughly review the issues and possible options. The
          complainant, the registrant’s employer and other health care professionals
          may also be consulted and their interests considered in arriving at a
          solution…

          The agreement must be approved by a panel of the Inquiry Committee…
DECISION NO. 2009-HPA-0027(a)                                                          Page 5

          All negotiations are confidential. Agreements are also confidential unless
          otherwise specified….

[14]   The publication then describes the Investigation and Inquiry Process:

          In the investigation and inquiry process, complaints about CRNBC’s
          registrants are resolved by holding a hearing. The process must meet the
          requirements under the Health Professions Act as well as the principles of
          fairness and natural justice.

          The process begins with an investigation into the registrant’s conduct…
          The investigation report and the registrant’s responses are reviewed by a
          panel of the Inquiry Committee. If the situation does not warrant an
          inquiry, the committee may decide that no further action is required.

          The complainant may request a review of a decision to take no further
          action. If further action is required, the registrant is issued a citation
          outlining the conduct in question with notice of an upcoming hearing.

          Hearings take place before a panel of the discipline committee….

          Hearings are open and anyone may attend….

[15] I will have more to say below about the College’s description of these two
“options” in light of its powers and responsibilities under the Health Professions Act.

[16] On January 19, 2009, counsel for the registrant notified the College that her
client wished to proceed by way of the Consensual Complaint Resolution Process.
On January 29, 2009, a
College official responded enclosing documents and stating: “When you have an
opportunity to discuss the information … I propose that we meet to negotiate a
resolution to the complaint.”

[17] Following this exchange of correspondence, the substantive communications
between the parties all took place after the March 16, 2009 amendments came into
force. They consisted of a letter from the registrant’s lawyer to the College (April
2009), a telephone call between the College and the lawyer (May 2009) and a
meeting between the College, the registrant and her lawyer. A further letter from the
lawyer to the College was provided on June 1, 2009.

[18] The registrant and the College argue that these records (and in the registrant’s
view, any further document, report or decision generated by the College that refers to
information generated in this process), should be prohibited from disclosure to the
complainant on this review based on s. 42. The registrant argues that she relied on
the confidentiality promised in the Consensual Complaint Resolution Process. She
argues that that process is fundamentally undermined if a complainant may access
DECISION NO. 2009-HPA-0027(a)                                                      Page 6

confidential communications made within that process by filing an application for
review. Such an outcome would have a “chilling effect” on the process as no party
could be assured that any communication in that process would ever remain
confidential. The College makes the same point:

      CRNBC is concerned that if its registrants cannot be reasonably assured of
      CRNBC’s ability to maintain the confidentiality of without prejudice
      communications exchanged for the purpose of negotiating a resolution of a
      complaint, registrants will be unwilling to engage in the kind of frank and open
      discussions with CRNBC that are needed to identify the most appropriate
      solutions to address any concerns that may be raised by a complaint, and that
      this will undermine the integrity of the undertaking and consent process
      established under section 36 of the Act, and frustrate the public interest in
      encouraging the consensual resolution of matters investigated by CRNBC.


IV    DISCUSSION AND ANALYSIS

A.    Section 42 of the Administrative Tribunals Act

[19] For convenient reference, s. 42 of the Administrative Tribunals Act is
reproduced below:

      42. The tribunal may direct that all or part of the evidence of a witness or
      documentary evidence be received by it in confidence to the exclusion of a
      party or parties or any interveners, on terms the tribunal considers necessary,
      if the tribunal is of the opinion that the nature of the information or documents
      requires that direction to ensure the proper administration of justice.

[20] Section 42 recognizes every party to a proceeding normally has the right to
advance or defend its case based on access to the same relevant information as all
other parties. This reflects the common law’s strong inclination against “star
chamber” proceedings where evidence is considered in private. However, this
principle is not absolute. Occasions can arise where the nature of the evidence
being considered by a tribunal is so sensitive that an exception to the usual rule must
be made, because the risk of damage to the administration of justice caused by its
disclosure to one or more parties outweighs the benefits of the usual principle of full
disclosure.

[21] However, section 42 does not articulate a lax test. To make an order under s.
42, the tribunal must be of the opinion that the nature of the information or
documents requires that direction to ensure the proper administration of justice.
Unless that test is met, the ordinary rule applies – full and equal disclosure of all
relevant evidence to all parties.
DECISION NO. 2009-HPA-0027(a)                                                                    Page 7

[22] Section 42 of the ATA should not be interpreted in isolation. While s. 42 is
“cut and paste” from the ATA 1 , it must be read and applied as part of the Health
Professions Act. Judgments made under section 42 must be sensitive to the nature,
purpose and context of the statutory scheme into which it has been integrated.

B.      Complainant reviews under the Health Professions Act

[23] The statutory scheme into which s. 42 has been integrated is a recent law
reform package: Health Professions (Regulatory Reform) Amendment Act, 2008,
S.B.C. 2008, c. 29. Operationally, the first stage of the reforms saw the creation of a
specialized and independent Health Professions Review Board on December 9,
2008. The second stage, inter alia, granted complainants a new statutory right to
challenge certain health college complaint dispositions in a review before Review
Board. For several health professions colleges, including the College in question
here, these second stage amendments came into force as of March 16, 2009.

[24] The dispositions a complainant can apply to review are, in the main, college
dispositions that either dismiss a complaint or take an action that falls short of issuing
a formal citation under s. 37 (a citation triggers a formal disciplinary hearing). To fully
appreciate the full significance of these reforms, and to properly address the s. 42
arguments advanced in this case, two fundamental policy judgments made by the
Legislature in the reform package must be put into proper focus.

[25] The first pertains to proper role of complainants in professional regulatory
legislation.

[26] The traditional approach holds that while anyone can complain to a
professional regulatory body, the handling and disposition of a complaint is a matter
that is solely between the registrant and his or her college. The traditional view is
well reflected in the Alberta Court of Appeal’s judgment in Friends of the Oldman
River Society v. Assn. of Professional Engineers, Geologists and Geophysicists of
Alberta (2001), 199 D.L.R. (4th) 85 (Alta. C.A.). The issue there was whether the
Society had standing to apply for judicial review of a college decision dismissing its
complaint. The Court held that the complainant had no such standing: “The Act
makes clear that the disciplinary process is a matter between the Association and the
individual member whose conduct has been questioned. The Act is directed solely to
the Association and its members; the rights, duties and responsibilities contained in
the Act relate only to them”. (para. 41).

[27] The traditional view was qualified and even challenged in an important
judgment of our Court of Appeal, Allen v. College of Dental Surgeons of British
Columbia, [2007] B.C.J. No. 221 (C.A.). The issue in Allen was whether a

1
   Section 42 is one of a series of model “powers and procedures” provisions capable of being
incorporated by reference into the enabling statutes of administrative tribunals. Section 42 applies to
this review through the operation of s. 50.64 and the Schedule to the Health Professions Act, R.S.B.C.
1996, c. 183 (the Act).
DECISION NO. 2009-HPA-0027(a)                                                       Page 8

complainant had standing under the former Dentists Act to appeal as a “person
aggrieved” from what she regarded as an unfair consideration and dismissal of her
complaint at the investigatory stage. Contrary to Oldman River, the Court answered
that the complainant did have standing. While the Court in Allen recognized that
there were legislative differences between Allen and Oldman River, the Court took
direct issue with certain aspects of the Alberta Court’s reasoning (paras. 47-48):

       … I respectfully take issue with two aspects of the above quoted passages.
       The first is that no recognition is given to the importance of the complainant as
       an initiating party. For our purposes, I do not accept that the disciplinary
       process under the Dentists Act is a matter solely between the College and the
       registrant, at least at the investigatory stage, and I have already defined the
       interest which supports the standing of a complainant to bring an appeal as an
       aggrieved person.

       The second disagreement is the analogy to prosecutorial discretion in
       paragraph 42. With deference, I think the analogy is inapt and its use
       attenuates the public interest rationale for allowing professions to regulate
       themselves. It tends to insulate professional bodies from the accountability
       mandated by the modern statutes. [emphasis added]

[28] It is of interest to note that having confirmed the complainant’s right to appeal,
the Court in Allen later held in a separate judgment [2007 BCCA 259] that before
filing her notice of appeal, the appellant was entitled to “a certified copy of all the
proceedings, reports, orders and papers to which she is entitled under s. 57(3) of the
Dentists Act”. Section 57(3) read as follows:

       57(3) The registrar must, on the request of a person desiring to appeal, and on
       payment at the rate of charges in force in the office of the official stenographer
       of the Supreme Court, provide to that person a certified copy of all the
       proceedings, reports, orders and papers on which the council or executive
       committee made the order.

[29] There was no suggestion in Allen that the appellant should be required to
prosecute her appeal without access to the complete record.

[30] The reforms under consideration here decidedly favour the perspective
expressed in Allen. The amendments did not merely shift the review function from an
internal college board to the new external and independent Review Board. The
Legislature has decided to promote transparency and accountability by making the
complainant an active party to the review:

   •   A complainant initiates the review in an application for review: Act, s. 50.61(1).
   •   The application must state the relief being sought, and state why the decision
       or disposition in question should be changed: s. 50.61(1)(b), (c).
DECISION NO. 2009-HPA-0027(a)                                                                       Page 9

    •   A complainant is entitled to challenge both the adequacy of the investigation
        procedure, and the merits of the decision (albeit on a standard of
        reasonableness): s. 50.6(5).
    •   The complainant is a party to the review, with no limitation placed on the
        complainant’s participatory rights:

                50.6 (4) Only the complainant, the college and the registrant may be
                parties to a review under this section. 2

    •   A review is to take place “on the record”, subject to any additional evidence
        that the Review Board allows any of the parties to bring forward: ss. 50.6(6),
        (7).
    •   As a party, the complainant is also entitled to all other procedural rights any
        party may exercise under the incorporated ATA provisions in the Act
        Schedule.

[31] These realities must inform the proper approach to s. 42. It would undermine
the intention of the reforms to argue that a complainant must prove a sufficient
“interest” to be allowed to see relevant documents. The statute now grants
complainants a legitimate interest by making them a full party to a listed disposition,
and an exception is only permissible for a relevant document if the test in s. 42 is
met. 3 It would equally undermine legislative intent to argue that a complainant
should be barred from access to relevant documents on the review merely because
he was “not allowed to see” them in the investigation process. The very point of the
review process is to subject those first instance actions to meaningful review in a
process where a complainant is an active and meaningful participant.

[32] These points lead naturally to a consideration of the second key policy issue
the Legislature was required to address in the reform package – namely, the types of
dispositions that ought to be amenable to review by a complainant. On that issue,
the Legislature has significantly expanded the classes of dispositions complainants
are now allowed to challenge. Of particular interest to the arguments under
consideration on this application, the Legislature has, for the first time, given
complainants the statutory right to challenge consensual resolutions made between a
college and registrant at the internal college level.

[33] This aspect of the reforms recognizes that professional health colleges have in
recent years begun to promote and encourage consensual and negotiated
2
  Section 50.64 stands in contrast to other professions legislation which has expressly limited the role
of complainants: see Berg v. Ryneveld, 2006 BCCA 225. It also stands in contrast to s. 38 of the
Health Professions Act, which makes clear that in a formal discipline hearing, the registrant and the
college are the parties, while the complainant is limited to giving evidence: s. 38. While a complainant
does not have a right to appeal a discipline decision, the complainant does have a right to be a party if
the college or registrant appeals: s. 40(4)(c).
3
  If a document, included in the record, is clearly irrelevant to the review, a different approach may be
taken. This will be discussed further below.
DECISION NO. 2009-HPA-0027(a)                                                                      Page 10

resolutions to professional conduct issues. There are many benefits to these
processes. Difficulties arise however when such processes exclude the participation
of the complainant. Transparency, accountability and legitimacy are not enhanced
when a private arrangement is arrived at behind closed doors between a college and
registrant, to the exclusion of the complainant who initiated the complaint and who is
advised only of the end result.

[34] To address this concern, the reforms have significantly expanded the breadth
of dispositions that a complainant has standing to challenge before the Review
Board. Rather than limiting a complainant to challenging those dispositions they
were allowed to review under the former legislation (dismissal of a complaint as
being frivolous, vexatious, or out of mandate), the reform package, in new s. 50.6,
expands the right of review to include all those dispositions listed in new s.
50.53(1)(c) of the Act. Given the somewhat difficult drafting of the provisions, it will
be useful to “unpack” the provisions to fully describe the dispositions now open to
challenge by a complainant:

    •   A registrar’s decision under s. 32(3) either to dismiss a complaint or to request
        the registrant take an act described in s. 36(1), if the registrar determines that
        the complaint: (a) is trivial, frivolous, vexatious or made in bad faith; (b) does
        not contain allegations that, if admitted or proven, would constitute a matter
        subject to investigation by the inquiry committee under s. 33(4), or (c) contains
        allegations that, if admitted or proven, would constitute a matter, other than a
        serious matter, subject to investigation by the inquiry committee under s.
        33(4). 4

    •   An inquiry committee’s disposition of a complaint under s. 33(6) to: (a) take no
        further action if the inquiry committee is of the view that the matter is trivial,
        frivolous, vexatious or made in bad faith or that the conduct or competence to
        which the matter relates is satisfactory, (b) take any action it considers
        appropriate to resolve the matter between the complainant and the registrant,
        or (c) act under section 36.

    •   A consent order disposition made under s. 37.1, which is operative both at the
        investigative stage and even after a citation has been issued:

                 37.1 (1) The registrant may give the inquiry committee a written
                         proposal at any time before the commencement of a hearing
                         under section 38

4
  Section 33(4) states that: “The inquiry committee may, on its own motion, investigate a registrant
regarding any of the following matters: (a) a contravention of this Act, the regulations or the bylaws;
(a.1) a conviction for an indictable offence; (b) a failure to comply with a standard, limit or condition
imposed under this Act; (c) professional misconduct or unprofessional conduct; (d) competence to
practise the designated health profession; (e) a physical or mental ailment, an emotional disturbance
or an addiction to alcohol or drugs that impairs his or her ability to practise the designated health
profession.”
DECISION NO. 2009-HPA-0027(a)                                                  Page 11

                       (a) admitting the nature of the complaint or other matter
                       that is to be the subject of the hearing,
                       (b) consenting to the making of an order under section 39
                       (2) or (8) as set out in the proposal,
                       (c) consenting to indemnify the college for the investigation
                       under section 33 in an amount not to exceed the costs for
                       the inquiry calculated under the tariff of costs established
                       under section 19 (1) (v.1), and
                       (d) if the registrant gives the proposal to the inquiry
                       committee less than 7 days before the hearing is
                       scheduled to commence, consenting to indemnify the
                       college for preparing for the hearing in an amount not to
                       exceed the costs of preparing for the hearing calculated
                       under the tariff of costs established under section 19 (1)
                       (w.1).

                 (2) The inquiry committee may accept or reject a proposal
                 received under subsection (1) based on the investigations
                 described in section 33 respecting the complaint.

                 (3) If the inquiry committee accepts a proposal received under
                 subsection (1),
                         (a) the inquiry committee must make an order consistent
                         with the proposal, and the order is considered to be an
                         order of the discipline committee made under section 39,
                         and
                         (b) [Repealed 2008-29-38.]
                         (c) section 38 does not apply to the citation.

                 (4) If the inquiry committee rejects a proposal received under
                 subsection (1),
                         (a) a hearing of the citation must proceed as though the
                         proposal had not been made, and
                         (b) the discipline committee must not consider the
                         admission described in subsection (1) (a) or the consent
                         described in subsection (1) (b) in determining the matter or
                         in making an order under section 39.

                 (5) If the hearing under section 38 has commenced
                         (a) the registrant may give to the inquiry committee a
                         written proposal
                                (i) described in subsection (1) (a) to (c), and
                                (ii) consenting to indemnify the college for
                                preparing for and conducting the hearing in an
                                amount not to exceed the costs of preparing for and
DECISION NO. 2009-HPA-0027(a)                                                        Page 12

                                  conducting the hearing calculated under the tariff of
                                  costs established under section 19 (1) (w.1), and
                           (b) the inquiry committee may accept or reject the
                           proposal in its discretion.

                     (6) If the inquiry committee accepts a proposal under subsection
                     (5), it must make an order consistent with the proposal, the order
                     is considered to be an order of the discipline committee made
                     under section 39, and section 38 has no further application to the
                     complaint or matter that is the subject of the hearing.

                     (6.1) Section 39 (3) (a) to (c) applies to an order made under this
                     section as if the order had been made by the discipline
                     committee.

                     (7) Subsection (4) applies if the inquiry committee rejects a
                     proposal received under subsection (5).

[35] Section 36(1) is referred to in both of the first two bullets above. Its focus is
clearly on attempting to promote consents and undertakings by registrants:

              36 (1) In relation to a matter investigated under section 33, the inquiry
                  committee may request in writing that the registrant do one or
                  more of the following:
                          (a) undertake not to repeat the conduct to which the matter
                          relates;
                          (b) undertake to take educational courses specified by the
                          inquiry committee;
                          (c) consent to a reprimand;
                          (d) undertake or consent to any other action specified by the
                          inquiry committee.

              (1.1) If a consent or undertaking given under subsection (1) relates to
                    a complaint made under section 32 (1), the inquiry committee
                    must, within 30 days of the consent or undertaking being given,
                    deliver to the complainant a written summary of the consent or
                    undertaking advising the complainant of the right to apply for a
                    review by the review board under section 50.6.

              (2) If a registrant refuses to give an undertaking or consent requested
              under subsection (1), or if a registrant fails to comply with an
              undertaking or consent given in response to a request under
              subsection (1), the inquiry committee may direct the registrar to issue a
              citation for a hearing by the discipline committee regarding the matter.
DECISION NO. 2009-HPA-0027(a)                                                      Page 13

[36] A close reading of ss. 36 and 37.1 makes clear that many of the dispositions
the Legislature has decided to open up to challenge by a complainant are
dispositions arrived at after discussion and negotiation between the college and the
registrant. The remedies open to the Review Board on a review of any of these
dispositions include directing the inquiry committee to make any order that could
have been made by the inquiry committee in the matter, which includes the issuance
of a citation. The legislative interests at play here are clearly transparency and
accountability.

[37] In giving consideration to what would or would not frustrate the proper
administration of justice for the purpose of s. 42, we are required to take seriously the
Legislature’s decision to bring these arrangements into the orbit of those reviews a
complainant should have a right to challenge before the Review Board, with full
participatory status, based on the record.

C.     The October – December 2008 Communications

[38] As noted earlier, the October – December 2008 communications in the Record
that are identified as triggering s. 42 consist of a College official’s notes of a
telephone call with the registrant, a letter and enclosures from the registrant to the
College and various running notes. The registrant submits that the complainant
should not be allowed to see this information: (i) because it is presumptively
“personal information” about educational and work history that would be protected
from disclosure under the Freedom of Information and Protection of Privacy Act
(FOIPPA), (ii) because the registrant understood that the information was being
provided in confidence, and (iii) because these communications all took place before
the new Review Board process was in place.

[39] These arguments do not persuade me that the information should be withheld
from the complainant to ensure the proper administration of justice.

[40] The argument founded on FOIPPA is unhelpful. FOIPPA is a statute about
whether the general public has the right to information. In that context it is
understandable that FOIPPA would protect personal information for that reason
alone. The context here is entirely different. This case is about whether a statutory
party to a proceeding should be deprived of his ordinary right to know the information
being relied on by everyone else involved in the matter. The context here is about
whether the law should countenance the procedure of considering certain information
privately, or ex parte, so that not even a party to the proceeding can see it. The
inapplicability of FOIPPA to this kind of situation is recognized in FOIPPA itself:

       3(2) This Act does not limit the information available by law to a party to a
       proceeding.

[41] The test in s. 42 is not based on whether information is “personal” or
“confidential”. Personal and confidential information is disclosed every day in our
DECISION NO. 2009-HPA-0027(a)                                                          Page 14

judicial and administrative law justice system. The question section 42 asks is
whether the nature of the information or documents is such that one or more parties
should be required to advance their case without seeing the information or
documents in order to ensure the proper administration of justice.

[42] The College accepts that the educational and work history information under
consideration here is relevant to the review. It was requested by the College in
October 2008 precisely because it was important to properly orient the College to the
particular duties and responsibilities of the registrant. The information remains
relevant for that purpose today. If the complainant is to be barred from seeing it, that
must be because justice requires it, not merely because it deals with “personal”
education or work history as defined in FOIPPA.

[43] The registrant’s argument that she “understood” her October 2008
communications to be “confidential” – a point she made to the College in November
2008, after learning that the complainant had filed an FOI request for her response -
is also insufficient. A blanket claim that “I thought my communications were
confidential” – without pointing to anything that makes that information especially
sensitive or privileged - is not sufficient to frustrate the rights of a party to pursue the
rights they have been granted by the Legislature. A central purpose of the
amendments was to shed light on processes that the Legislature has clearly
concluded require more accountability and transparency.

[44] Section 42 should not be used as a back door mechanism to frustrate that
objective. Section 42 should only be used to bar access to relevant information
where there are clearly definable justice considerations in a case that outweigh the
justice requirement that a complainant should have a meaningful opportunity to
exercise his or her statutory right of review by way of equal access to all relevant
information. A registrant’s claim that essentially amounts to “I wanted to keep this
private”, without more, is insufficient.

[45] I should emphasize that I have reviewed the information itself. It is apparent
that the information is a business-like response from a professional to a legitimate
request to cooperate from that person’s professional body. There is nothing in it that
comes close to being so sensitive as to justify proceeding ex parte.

[46] The third argument - that the Review Board process was not in place when
these communications were made - is also not helpful. Where the law grants a court
or tribunal jurisdiction over a matter, and where that body is given jurisdiction to deal
with cases arising in the transition, the parties are bound by that jurisdiction for all
purposes. The fact that they did not expect to have to provide the information is not
a proper basis for refusing to provide it now. It does not change the test that has to
be met under s. 42.

[47] For all these reasons, it is my opinion that the October – December 2008
communications do not satisfy the test in s. 42.
DECISION NO. 2009-HPA-0027(a)                                                       Page 15

D.     Communications between January – June 2009: the “Consensual
       Complaint Resolution Process”

[48] While no special claim of privilege is made with regard to the October 2008
communications, the College does advance a privilege claim with regard to all
January - June 2009 communications exchanged and related to the Consensual
Complaint Resolution Process described above.

[49] The College’s position is that any communications made under the umbrella of
the Consensual Complaint Resolution Process cannot be disclosed to a complainant,
regardless of what the content of the information might be. In support of its s. 42
argument, the College advances a “blanket claim” of privilege based on Middlekamp
v. Fraser Valley Real Estate Board, [1992] B.C.J. No. 1947 (C.A.), where the Court of
Appeal held as follows (para. 18):

       …the public interest in the settlement of disputes generally requires ‘without
       prejudice’ documents or communications created for, or communicated in the
       course of, settlement negotiations to be privileged. I would classify this as a
       ‘blanket’, prima facie, common law or ‘class’ privilege because it arises from
       settlement negotiations and protects the class of communications exchanged
       in the course of that worthwhile endeavour.

[50]  Before addressing this submission in detail, it may be useful to begin by
examining the legal status and proper role of the Consensual Complaint Resolution
Process given the statutory responsibilities of the College.

[51] The Consensual Complaint Resolution Process is not mentioned anywhere in
the Act or in the College’s by-laws. It does not have the force of law. It is really in
the nature of a practice approach the College has designed to help facilitate the
resolution of complaints. The College needs to have the flexibility to develop
practices that will help it achieve its mandate. At the same time, the College must
ensure that those practices are not described or carried out in a fashion that amends
the statute or conflicts with the legislated duties and procedures the College is legally
bound to carry out.


[52] One of the College’s publications represents that while an “investigation”
involves CRNBC “gathering evidence and holding a formal hearing before a panel of
the Discipline Committee”, the Consensual Complaint Resolution Process is a
distinct alternative to the “hearing” process. There are good questions about whether
the impression this conveys is legally accurate. For one thing, an investigation does
not necessarily require any formal hearing. For another, too sharp a distinction
between an “investigation” on the one hand and the Consensual Complaint
Resolution Process on the other, could obscure the fact that under s. 33 of the Act
the inquiry committee is required to investigate every complaint that (subject to s.
32(3)) is referred to it by the registrar under s. 32(2) (or as here, remitted to it by the
DECISION NO. 2009-HPA-0027(a)                                                       Page 16

College board), that the inquiry committee ask must every registrant to provide it
with information, and that the inquiry committee must in every case make the
disposition it considers appropriate based on the information available:

        33 (1) If a complaint is delivered to the inquiry committee by the registrar
            under section 32 (2), the inquiry committee must investigate the matter
            raised by the complainant as soon as possible….

            (5) The inquiry committee must request the registrant who is the subject
            of an investigation under this section to provide it with any information
            regarding the matter that the registrant believes should be considered by
            the inquiry committee.

            (6) After considering any information provided by the registrant, the
            inquiry committee may

                   (a) take no further action if the inquiry committee is of the view that
                   the matter is trivial, frivolous, vexatious or made in bad faith or that
                   the conduct or competence to which the matter relates is
                   satisfactory,
                   (b) in the case of an investigation respecting a complaint, take any
                   action it considers appropriate to resolve the matter between the
                   complainant and the registrant,
                   (c) act under section 36, or
                   (d) direct the registrar to issue a citation under section 37.

[53] The fact that the College is required to investigate every complaint referred to
it under s. 32(2) does not prevent the College from collecting information via informal
means in order to determine what potential resolutions are appropriate under s. 33,
s. 36 or s. 37.1(2). However, a college should not create the impression that it can
suspend its investigative mandate with reference to some other process of its own
design.

[54] It is important to note that on the facts of this case the College’s concurrent
January 5, 2009 letters to the registrant and the complainant made clear that the
inquiry committee was in fact purporting to act under s. 33 following the referral back
from the College Board:

      On December 18, 2008, a panel of the Inquiry Committee initiated an
      investigation under Section 33 of the Health Professions Act. This means in
      effect that CRNBC will investigate the complaint further and take whatever
      action is required to resolve the complaint within the provisions of the
      legislation.

[55] It is also important to note that, as shown by other documents in the Record,
the investigator and the inquiry committee necessarily relied on what the registrant
DECISION NO. 2009-HPA-0027(a)                                                                Page 17

told them in making their decision to take no further action. Clearly, the Consensual
Complaint Resolution Process was used as part of the investigation process, not
some process of the college’s own creation that is entirely separate from it.

[56] That is as it should be, as a College cannot amend its statute by creating
collateral processes that do not accord with its statutory responsibilities. Nor can it
act as if it were merely a private party, and create a process intended to “settle”
complaints (particularly where the complainant is not involved in the process) merely
to put an end to a dispute. As recently said by the Court of Appeal, a professional
body’s jurisdiction does not consist of private law rights, but rather of public law
functions which the Legislature has entrusted to it. 5 While the College has the
undoubted right to negotiate, both the College and its registrants must be clear that
no negotiated resolution is appropriate or acceptable unless the College is satisfied
that the outcome accords with its paramount obligation under s. 16(1) of the Act:

           16 (1) It is the duty of a college at all times

                         (a) to serve and protect the public, and
                         (b) to exercise its powers and discharge its responsibilities under
                         all enactments in the public interest.

[57] It is precisely this paramount public interest duty – and the need to ensure that
this duty is being met in a closed process that requires accountability – that triggered
the Legislature’s decision to make these dispositions between a college and
registrant subject to review by complainants, on the record, before the new
independent Review Board.

[58] With these points made, one can usefully turn to the College’s position that as
soon as the Consensual Complaint Resolution Process is offered and accepted, the
confidentiality the College promises in that process should extend to any review, so
that the information is forever barred from being disclosed to a complainant, no
matter what was said, even though that information is properly part of the Record
disclosed to the Review Board.

[59]     In my opinion, the College’s submission cannot succeed.

[60] Settlement privilege is not absolute: Dos Santos (Committee of) v. Sun Life
Assurance Co. of Canada, [2005] B.C.J. No. 5 (C.A.). As noted in
Telecommunication Workers Benefit Plan (Trustees of) v. Thurston, [2006] B.C.J. No.
73 (S.C.) at paras. 6-8:

         To affix the words “without prejudice” to a written communication made in the
         course of litigation or settlement negotiations is not an ironclad guarantee that
         everything in the communication, in all circumstances, will be subject to

5
    Salway v. Assn. of Professional Engineers and Geoscientists of British Columbia, 2009 BCCA 350.
DECISION NO. 2009-HPA-0027(a)                                                       Page 18

       privilege: See: Middelkamp v. Fraser Valley Real Estate Board (1992), 71
       B.C.L.R. (2d) 276, 96 D.L.R. (4th) 227 (C.A.) and Berry v. Cypost Corp.
       (2003), 21 B.C.L.R. (4th) 186, 2003 BCSC 1827.
       In Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada (2005), 40
       B.C.L.R. (4th) 245, 249 D.L.R. (4th) 416, 2005 BCCA 4, a case with some
       similarity to the case at bar, Chief Justice Finch of our Court of Appeal noted
       at para. 19:
              ... the test for discharging the burden to establish an exception
              [to blanket privilege] should not be set too low. The public policy
              behind settlement privilege is a compelling one. It is so
              compelling that even threats arising in the context of settlement
              negotiations may not justify an exception: [Unilver, plc v. The
              Proctor & Gamble Co., [2000] 1 W.L.R. 2436 (C.A.)] at pp. 2449-
              50.
       The Chief Justice went on to say, at para. 20:
              To establish an exception in this case, the defendant must show
              that a competing public interest outweighs the public interest in
              encouraging settlement. An exception should only be found
              where the documents sought are both relevant, and necessary in
              the circumstances of the case to achieve either the agreement of
              the parties to the settlement, or another compelling or overriding
              interest of justice.
[61] If settlement privilege does apply to the Consensual Complaint Resolution
Process, an exception clearly applies to the new Review Board review process. The
parties themselves admit as much when they concede that the information is at least
properly part of the Record before the Review Board. However, the need for the
information goes beyond its use by the Review Board. The information at issue is
relevant – it is the very information the registrant has relied on to answer the
complaint. The information is necessary to achieve a compelling or overriding
interest – namely, the public interest in carrying out the intention of the reform
legislation to give complainants a fair and meaningful opportunity to pursue their right
of review before an independent adjudicative body, including a review of private
discussions and arrangements which did not include the complainant. It is not
sufficient to argue, as the parties have, that the Review Board can see the material.
The Review Board itself is compromised if one of the parties to an adjudicative
process is categorically deprived of the information necessary to meaningfully
advance its case merely because the other two parties have previously decided
between themselves that the disposition should be preceded by confidential
communications.

[62] The registrant argues that to disclose the information to the complainant would
represent a misunderstanding of the Review Board’s role, which is to review the
disposition for reasonableness and to review the adequacy of the investigation
process, rather than to retry the case. I disagree. The reasonableness of a decision
DECISION NO. 2009-HPA-0027(a)                                                    Page 19

cannot be ascertained without regard to the record on which it was based. That is
equally true with regard to the ability to assess the adequacy of the investigation
process.

[63] It is important to note that this is not a case such as Middlekamp where a party
to a private civil proceeding is attempting to coerce an opposing party to produce
documents generated in a collateral legal proceeding (in that case, documents
produced negotiating a resolution of potential criminal charges). This case is about
disclosure to a party within the same legislative and regulatory structure in which the
communications were made, and whose purpose is to ensure meaningful review of
that process, to ensure that it operated in the public interest. The parties whose
actions are expressly made subject to review should not be allowed to cloak their
actions from meaningful review in that very legislative process by deciding between
themselves that the process involves “confidential negotiations”.

[64] The registrant submits that “it is not appropriate for a complainant to gain
access to a registrant’s general personal information that was supplied to the
CRNBC within the Consensual Dispute Resolution Process by simply filing a
complaint against a registrant and then appealing a decision denying the complaint.”
To treat the complainant as if he were a stranger to the proceedings misunderstands
the purpose of the amendments. The whole point of the amendments is to ensure
that colleges and registrants do not insulate their actions from challenge by a
complainant in a fair and independent process. The “proper administration of justice”
in s. 42 cannot be interpreted in a fashion that undermines the very purpose of the
regulatory scheme in which it operates. Whatever protection these discussions might
have “outside” of the process (discussed further below) cannot have the same weight
on the “inside” without compromising the legislative process itself. Should a case
ever arise where a registrant can demonstrate that a complainant has commenced a
review for a colourable purpose, or that a complainant has no interest in the subject
matter of the complaint, different considerations would arise under s. 42. However,
that is not this case.

[65] A college and registrant cannot contract out of general law. Whatever the
College chose to say to describe and represent the confidentiality in the Consensual
Complaint Resolution Process in its publications and to the registrants, the law
makes clear that the College was not in a legal position to make promises of absolute
confidentiality to the registrant, and that would be so even in the absence of the new
review process which was already in place when the parties were having their
discussions. If a college did purport to make such promises, it would not be just to
use s. 42 to enforce them even if the registrant (who had her own legal advice) relied
on them, particularly given the general law and particularly when doing so would
override the intent of the legislation and the right of a complainant to relevant
information enabling a meaningful review.

[66] It is not persuasive to suggest that disclosure of any information from the
Consensual Complaint Resolution Process to a complainant on review, regardless of
DECISION NO. 2009-HPA-0027(a)                                                        Page 20

its content, will impose an undesirable chilling effect on the College’s ability to
encourage negotiated agreements with registrants. The Legislature itself has
decided that such agreements should not be sacrosanct – in short, that a degree of
“chill” is appropriate in respect of private arrangements between a registrant and a
college, in the interests of transparency and accountability.

[67] Nor should the chilling effect argument be overblown. Practically speaking, it
will always be in the interest of most registrants to cooperate with their college at the
pre-citation stage of an investigation. While they may not be compellable at that
stage, their records and offices are subject to inspection and potential search and
seizure: Act, ss. 28, 29. If they don’t provide information, they take the risk that a
citation will be issued without benefit of their input, resulting in the discipline process
under ss. 37 and 38.

[68] The registrant argues that there is no basis for distinguishing the protection
given to the Consensual Complaint Resolution Process from the Review Board’s
mediation process. The registrant argues that the Review Board can claim no greater
right to this information than a Court could claim on a judicial review from a Review
Board mediated outcome.

[69] The comparisons made are not apt. First, the role of the Review Board is not
precisely the same as the role of the Court. While the role is similar with regard to
the merits of the decision, the Review Board’s role in assessing “the adequacy of the
investigation” involves more than just common law natural justice. The role that
“confidential” discussions played in the disposition of a complaint might in many
cases be quite central to the potential problems identified in such a decision.
Second, unlike the discussions between the college and registrant under
consideration here, settlement discussions in the Review Board process necessarily
involve all the parties, and those discussions are subject to a statutory confidentiality
protection (ATA, s. 29). To repeat, it is precisely because of the concerns arising
from similar processes within the colleges that do not involve all the parties that the
Legislature has, in the interests of transparency and accountability, enacted the
reform legislation under consideration here. As noted above, section 42 should not
be used as a backdoor means to undermine that intention.

[70] Moving from the general to the particular, the point needs to be made that for
all the emphasis on “negotiations” in the College’s publications and in the arguments
advanced on this application, the actual communications in question here look a
great deal more like submissions than anything that could properly be called
“negotiations”. This only emphasizes the difficulties in using a label as a substitute
for the proper assessment of communications.

[71] I wish to be clear that even if the Record did reflect true “negotiations”, that
reality alone will be insufficient to trigger s. 42. Whether negotiations end in an
agreement, or alternatively end in the inquiry committee concluding the complaint
without further action, the positions the parties “offered” and “accepted” in such
DECISION NO. 2009-HPA-0027(a)                                                      Page 21

negotiations will often be central to determining whether the outcome was reasonable
and/or the investigation adequate. Unless there is something especially sensitive in
the content of those negotiations that warrants the application of s. 42, the mere fact
that the parties are negotiating is insufficient to trigger s. 42.

[72] For all these reasons, the claim of blanket privilege vis-à-vis over all
communications undertaken in the Consensual Complaint Resolution Process is
rejected.

E.     Other arguments

[73] Having rejected the claim of blanket privilege, the question then becomes
whether there is anything in the actual communications that satisfies the test in s. 42.

(i)    The Record

[74] Counsel for the registrant argues that certain portions of the Record should
not be disclosed to the complainant because they were not before the Inquiry
Committee, and because they do not pertain to the complainant’s application for
review which only challenges the merits of the inquiry committee’s decision.

[75] As to the latter argument, both the adequacy of the investigation and the
reasonableness of the outcome are subject to review by the Review Board: Act, s.
50.6(5). While a complainant is required to commence the review by identifying the
disposition being challenged, it would be unreasonable to require the complainant to
specify whether he has issues with an investigation he knows nothing about until he
has seen the Record.

[76] As to the former, the Record properly includes documents the inquiry
committee did not receive: see our Practice Directive No. 2. Disclosure of the
College’s investigation process is properly disclosed to the complainant for the
purpose of the review.

(ii)   Performance evaluations

[77] The registrant submits that her performance evaluations contained in the
Record do not bear directly on the complaint, and should be excluded under s. 42
given the personal information contained in them.

[78] While I agree that it would be appropriate in certain cases to exclude
information that is clearly irrelevant to a review, or whose relevance is outweighed by
its highly sensitive nature, I do not agree that this information falls into either
category.

[79] I think that these documents are relevant. Just as the job description is
relevant, the employer’s appraisal of the registrant’s performance of her functions is
DECISION NO. 2009-HPA-0027(a)                                                       Page 22

relevant to understanding the details of the registrant’s responsibilities, and
potentially relevant to some of the arguments the complainant has made regarding
whether the employer’s expectations conflict with the registrant’s professional
responsibilities. Nor is the particular information, given its format, especially sensitive
or prejudicial. In my view, it does not meet the test in s. 42 and is properly disclosed
to the complainant.

(iii)   Handwritten notes

[80] The registrant argues that disclosing to the complainant the College’s
handwritten notes of the May 2009 meeting between the registrant and college risks
“real prejudice” because the notes are capable of being misconstrued, and the
registrant has not verified them. The obvious answer to this is that if the notes are
inaccurate or need to be put in proper context, it is open to the parties to do that on
the review.

F.      Concluding points

[81] To ensure that the points made above are properly understood and applied,
three concluding points are in order.

[82] First, the issue that has been decided here concerns whether the College and
registrant can, under the umbrella of a Consensual Complainant Resolution Process,
assert a broad settlement privilege as against a complainant who is exercising a
statutory right of review under the Act. The analysis does not speak to the right of a
party to rely on settlement privilege if a party to this review were to attempt to use
documents from the Record for a collateral purpose, or if a third party involved in a
collateral process were to attempt to obtain those records.

[83] Second, we wish to emphasize that the documents disclosed in this process
can only be lawfully used in this process. Over and above the general law regarding
implied undertakings of confidentiality which would apply, Rule 20 of our Rules of
Practice and Procedure makes clear that the Record must not be used by any party
for any purpose other than the review. Thus, the disclosure of the Record to the
complainant in a Review Board proceeding does not entitle that complainant or
anyone else to use the Record for any other purpose, and does not waive any
privilege or other argument the ollege or registrant would be entitled to assert if a
complainant were to attempt to do so.

[84] To provide added assurances, we have decided to add to our cover letters
providing the Record to complainants, a reminder of the requirements of Rule 20,
that the Record is not to be copied, disclosed to anyone else or used for any purpose
other than the review. It is also open to the Review Board in any individual case to
make an order directing that the complainant return its copy of the Record to the
Review Board at the conclusion of the review, where the Review Board believes that
would be appropriate.
DECISION NO. 2009-HPA-0027(a)                                                     Page 23



[85] Finally, I wish to make it clear that nothing in this decision should be taken or
implied as a finding as to whether the complainant’s application for review is or is not
valid on the merits. That can only be decided after the actual application for review is
heard.

V      CONCLUSION

[86]   The s. 42 applications of the registrant and the College are dismissed.

[87] The registrant and the College will have until January15, 2010 to advise
Review Board staff whether they intend to challenge this decision by way of judicial
review. If the Review Board does not receive such notice within that time, the
Review Board will disclose the Record to the complainant as soon as possible
thereafter.

[88] If such notice is given, the Record will remain sealed pending the prosecution
of a timely judicial review application, as there is little point engaging in extensive
severances of the Record in circumstances where the information not in issue
provides very little if any substantive information not already available to the
complainant.



“ J. Thomas English”


J. Thomas English, Q.C., Chair
Health Professions Review Board

December 22, 2009

				
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