Health Professions Review Board

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1 Health Professions Review Board Suite 900, 747 Fort Street Victoria British Columbia Telephone: Toll Free: (within BC) Facsimile: Mailing Address: PO 9429 STN PROV GOVT Victoria BC V8W 9V1 Website: DECISION NO HPA-084(a) In the matter of an application for summary dismissal under s. 31 of the Administrative Tribunals Act S.B.C. 2004, c.45 (the ATA ) in respect of an application for review of a complaint disposition made by an Inquiry Committee under Health Professions Act R.S.B.C. 1996, c. 183, as amended (the Act ). BETWEEN: The Complainant COMPLAINANT AND: The College of Physicians and Surgeons of BC COLLEGE AND: The Registrant REGISTRANT BEFORE: J. Thomas English, Q.C., Chair REVIEW BOARD DATE: Conducted by way of written submissions concluding on August 21, 2014 APPEARING: For the Complainant: Self-represented For the College: For the Registrant: Sarah Hellmann, Counsel Deborah K, Lovett, Q.C., Counsel I BACKGROUND [1] The Complainant filed an application (the Complainant s Application ) for review of a complaint disposition made by an Inquiry Committee. [2] The Registrant filed an application dated July 21, 2014 for summary dismissal of the Complainant s Application under s. 31 of the ATA. The College similarly filed an application dated August 15, 2014 for summary dismissal. [3] Section 31 of the ATA reads as follows: 31 (1) At any time after an application is filed, the tribunal may dismiss all or part of it if the tribunal determines that any of the following apply:

2 DECISION NO HPA-084(a) Page 2 (a) the application is not within the jurisdiction of the tribunal; (b) the application was not filed within the applicable time limit; (c) the application is frivolous, vexatious or trivial or gives rise to an abuse of process; (d) the application was made in bad faith or filed for an improper purpose or motive; (e) the applicant failed to diligently pursue the application or failed to comply with an order of the tribunal; (f) there is no reasonable prospect the application will succeed; (g) the substance of the application has been appropriately dealt with in another proceeding. (2) before dismissing all or part of an application under subsection (1), the tribunal must give the applicant an opportunity to make written submissions or otherwise be heard. (3) if the tribunal dismisses all or part of an application under subsection (1), the tribunal must inform the parties and any interveners of its decision in writing and give reasons for that decision. [4] Each of the ATA applications of the Registrant and the College were copied to the Complainant. The Complainant was given the opportunity, pursuant to a Review Board letter dated July 23, 2014, to make a submission in relation to the applications and did so on August 16, I find that the requirement in s. 31(2) of the ATA has been satisfied. [5] Section of the Act provides that s. 31 of the ATA applies for the purposes of a review of the Complainant s Application. II FACTS [6] In August 2010, after the Complainant was convicted of disobeying a court order relating to his former wife and given a three year suspended sentence, the Complainant was required to attend at the Forensic Psychiatry Services Commission ( FPS ) as a condition of his probation. The Registrant was assigned as the Complainant s treating psychiatrist. [7] In the process of developing a treatment plan for the Complainant, the Complainant made it clear his goals were to right wrongs done to him in respect of his father being infected with HIV contaminated blood, his ex-wife s upbringing of their son and a diagnosis of Delusional Disorder by a psychiatrist in the above court proceedings. [8] The Registrant also diagnosed the Complainant as having a Delusional Disorder condition complicated by a personality disorder. An independent psychiatrist confirmed

3 DECISION NO HPA-084(a) Page 3 the Registrant s diagnosis. The Complainant s view was that the correct diagnosis was that he had Asperger s Syndrome. [9] During these sessions with the Registrant the Complainant fell in love with the Registrant and began sending her a series of disturbing s, some with a sexual content. [10] Given the content and inappropriateness of the s the Registrant withdrew from providing any services to the Complainant. Nonetheless the s continued. [11] The Complainant then sought Freedom of Information access to the Registrant s clinical notes of her sessions with him. The FPS refused to disclose these records which decision was upheld by the Information Privacy Commissioner who concluded his investigation with the following: I find the Commission (FPS) has proven that the disclosure of the withheld information could reasonably be expected to threaten the health and safety of the Psychiatrist (Registrant). [12] The Complainant then filed a complaint about the Registrant with the College alleging that the Registrant: (a) was flirtatious and teasing; (b) dismissed his allegations against his ex-wife in relation to their son; (c) minimized his trauma over the HIV matter; and (d) failed to correctly diagnosis his Asperger s Syndrome. [13] The Complainant s communications with the Registrant then became a criminal matter which resulted in criminal harassment charges being laid against the Complainant who was released on bail subject to a number of bail conditions including no contact or communication with the Registrant. [14] The Complainant breached the bail conditions on several occasions and was convicted and sentenced to jail. [15] Throughout this period the Complainant continued to send s (some of them love s) to the Registrant contrary to numerous conditions imposed on him. [16] In May 2012, the Complainant was involuntarily committed to an institution by another psychiatrist under the Mental Health Act. [17] In May 2013 the Inquiry Committee concluded in dismissing the Complainant s complaint, that there was absolutely no evidence that [the Registrant] encouraged your romantic feelings. It also found that the Registrant and the other treating physicians provided reasonable medical justification for their diagnoses.

4 DECISION NO HPA-084(a) Page 4 III SUBMISSIONS OF THE REGISTRANT AND COLLEGE [18] Each of the Registrant and the College applied for summary dismissal specifically under s. 31(1)(c),(d) and (f) which read as follows: (c) the application is frivolous, vexatious or trivial or gives rise to an abuse of process; (d) the application was made in bad faith or filed for an improper purpose or motive; and (f) there is no reasonable prospect the application will succeed. [19] In support of her application, the Registrant sought to admit additional information and evidence pursuant to Rule 50 of the Rules of Practice and Procedure for Reviews under the Act. Rule 50(1) reads as follows: (1) The review board is not bound by the legal rules of evidence and may admit any information or evidence it considers relevant to the matter before it and appropriate in the circumstances. [20] The additional evidence consists of: (a) an affidavit of the manager of relevant FPS clinic confirming that certain paragraphs of the Registrants application were factually correct; (b) the Complainant s communications and letters to or about the Registrant; (c) the Complainants Freedom of Information request; (d) Court-ordered assessment of the Complainant; and (e) legal (criminal) records and orders. [21] I rule pursuant to Rule 50(1) that all the additional evidence is relevant to the matter before me and I have reviewed the same as part of these proceedings. IV ANALYSIS [22] The meaning of the words frivolous and vexatious in s. 31(1)(c) were commented on by the Review Board in Decision No HPA-0052(a) as follows: [44] The term frivolous focuses on the substance of the claim. An application will be frivolous where it is, in all circumstances, readily recognized as being groundless, fanciful, lacking in substance or seriousness, or as wasting the Review Board s time. [45] The term vexatious focuses on the good faith of the claim. An applicant whose intent as determined in all of the circumstances, is to annoy, harass,

5 DECISION NO HPA-084(a) Page 5 embarrass, abuse another party or abuse Review Board process, will properly be considered vexatious. [23] I find based on the facts cited above and the additional evidence that the Complainant s Application is frivolous in that it is groundless, fanciful and lacking in substance. I find that the Complainant s Application is vexatious in that its intent is to annoy, harass, embarrass and abuse the Registrant. [24] I also find based on the facts cited above and the additional evidence that s. 31(1)(d) applies also in that the Complainant s Application was made in bad faith and filed for an improper purpose. [25] As the summary dismissal applications have not produced a record for the College of its proceedings I decline to rely upon s. (31)(1)(f) as a grounds to dismiss the Complainant s Application although it would be difficult to establish that the disposition by the Inquiry Committee was not reasonable. [26] In making this decision I have considered all of the information and submissions before me whether or not I have specifically referenced them. V DECISION [27] Based on s. 31(1)(c) and (d) of the ATA I dismiss the Complainant s Application. J. Thomas English J. Thomas English, Q.C., Chair Health Professions Review Board September 10, 2014

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