Health Professions Review Board Suite 900, 747 Fort Street Victoria British Columbia Telephone: 250 953-4956 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-0010(a) In the matter of a request for review under sections 50.54 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 Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia COLLEGE AND: Five Student Registrants REGISTRANTS BEFORE: Margaret Ostrowski Q.C., Member DATE: Conducted by way of written submissions concluding on November 30, 2009 APPEARING: For the Complainant: Self - represented For the College: For the Registrants: Angela R. Westmacott, Counsel Self - represented PRELIMINARY APPLICATION FOR SUMMARY DISMISSAL I DECISION [1] Upon considering the preliminary application made by the College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia (the College ) pursuant to section 31(1) of the Administrative Tribunals Act, S.B.C. 2004, c. 45 (the ATA ) for summary dismissal of the application of the Complainant for review of decisions of the College, I hereby summarily dismiss the application of the Complainant.
DECISION NO. 2009-HPA-0010(a) Page 2 II INTRODUCTION AND BACKGROUND [2] The Health Professions Act (the Act ) was substantially amended by the Health Professions (Regulatory Reform) Amendment Act S.B.C. 2008, c. 29. Under those amendments, a process for the review of college decisions was enacted which included powers and duties of the Health Professions Review Board (the Review Board ), on the application of a complainant under section 50.6, to review a disposition made by the inquiry committee of a college (section 50.53 (1)(c) of the Act) and on application of an applicant under section 50.54, to review the disposition of a registration decision of the college (section 50.53(1)(a) of the Act). [3] The Complainant filed with the Review Board on May 26, 2009 an application for review of decisions of the Inquiry Committee and the Registration Committee of the College that dealt with the educational qualifications of five student Registrants (the Registrants ). The Complainant alleged, inter alia, that the three year program at Naju College in Korea was not equivalent to the four year program at schools in Canada and that the Registrants had used forged transcripts in support of their applications for registration. [4] As a result of the decision of the Inquiry Committee, the five Registrants were notified on March 31, 2009 that their training hours had been re-evaluated and that their credits from Naju College were not acceptable. They were further advised that this decision would be referred to the Registration Committee for review with the recommendation that the individuals be required to accumulate the proper number of hours and retake examinations prior to being granted registration. The Registration Committee accepted those recommendations. The Complainant was informed by letter dated April 21, 2009 as follows: Based on the ICES information, each Registrant s hours of study were re-evaluated and deductions made for Naju College transfer credit hours. On March 31, 2009, letters were sent to each Registrant informing them of the adjustments to their study hours and the affects of such adjustments in relation to the CTCMA Bylaw and Schedule E. [5] The Complainant was further informed by letter dated April 28, 2009 that: The Registration Committee determined, and the Inquiry Committee agreed, that the five students should not receive credit for the time spent at Naju College for the purpose of meeting the educational requirements for registration. As a consequence, the College has advised the five students that their credits from Naju College will not be accepted. [6] The Complainant takes issue with the lack of severity of these decisions and states that fake document users must be disqualified and expelled from this TCM field and CTCMA must conduct its own investigation rather than relying on ICES report, which is limited. He further states that it takes too long time to investigate unnecessarily. CTCMA must exercise its power over foreign students to impose strict rules for credentials checks.
DECISION NO. 2009-HPA-0010(a) Page 3 [7] The Complainant additionally alleges the following in his submission of October 7, 2009: Those students denied their commitment of using phony transcript for transferring to TCM College, in their responding letter to CTCMA, except one student who directly writes to Dr. Watterson in his confession he admitted involvement of this scheme to seek CTCMA s forgiveness. The confession divulges whole secret scheme I request this letter from CTCMA as evidence. This confession letter was not included in the College Record submitted to the Review Board. A request was made by the panel to the College to supply that letter. [8] In section 50.64 of the Act, certain sections of the ATA are deemed applicable for the purposes of a review under section 50.54 and 50.6 of the Act. Included in the schedule of applicable sections is section 31 of the ATA which reads as follows: Summary dismissal s. 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: (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. [9] The College has made an application pursuant to section 31(1)(f) of the ATA for summary dismissal of the application on the basis that there is no reasonable prospect the application will succeed.
DECISION NO. 2009-HPA-0010(a) Page 4 [10] All parties were given an opportunity to make written submissions on the application. III ISSUE [11] The issue before the panel is whether the applications for review should be summarily dismissed under section 31(1) of the ATA on the following grounds: (i) to the extent that the application seeks to challenge a decision of the registration committee, should it be dismissed under section 31(1)(a) as the applicant has no standing to challenge decisions of the registration committee; and (ii) to the extent that the application seeks to challenge a decision of the inquiry committee, should it be dismissed under section 31(1)(f) as there is no reasonable prospect that the application will succeed. IV DISCUSSION AND ANALYSIS Complainant s Request for Review of the College s Registration Committee Decision [12] As set out in paragraph [3] above, there were two decisions here that the Complainant requested to have reviewed by the Review Board. I will first consider the Complainant s request for review of the Registration Committee decision. The Inquiry Committee, based on its own decision, recommended to the Registration Committee that the individuals be required to accumulate the proper number of hours and retake examinations prior to being granted registration. The Registration Committee accepted those recommendations. [13] Though the Act gives jurisdiction to the Review Board in section 50.53(1)(a) to review a registration decision, in section 50.54 the Act sets out in clear terms who may apply for review of a registration decision: Review of registration decisions 50.54 (1) In this section, "applicant" means (a) a person applying for registration as a member of a college who is refused a grant of registration under section 20, except for a refusal under section 20 (2.1) or (3), (b) a registrant who is granted registration in a class of registrants under section 20 (2) with limits or conditions on the practice of the designated health profession by the registrant, except limits or conditions imposed under section 20 (2.1) or (3), or (c) a person applying for certification as a certified non-registrant who is refused certification.
DECISION NO. 2009-HPA-0010(a) Page 5 (2) An applicant may apply to the review board for a review of a registration decision.. (5) Only the applicant and the college may be parties to a review under this section. [14] I am in agreement with the submissions of the College that the only persons who can apply to the Review Board for the review of a registration decision are applicants for registration, registrants, or a person applying for certification. As the Complainant does not fall within any of those categories, he does not have standing as an applicant under section 50.54 of the Act. The Complainant has made no submissions on this issue. Accordingly pursuant to section 31 (1)(a) of the ATA, I dismiss the Complainant s application for review of the College s registration decisions for the Registrants. Complainant s Request for Review of the College s Inquiry Committee Decision [15] Section 31(1)(f) of the ATA states that the tribunal may dismiss all or any part of an application if it determines that there is no reasonable prospect that the application will succeed. The language of section 31(1)(f) has been applied for many years by appeal court judges in addressing applications for leave and applications for indigency status. The courts have held that the phrase should be construed as meaning that the appeal is bound to fail before a panel: Grinshpun v. University of British Columbia, [1999] B.C.J. No. 2274 (C.A.) per Southin J.A.: The words "discloses no reasonable claim or defence as the case may be" are not precisely apt to the business of this Court. When what is at issue is an appeal, I take them to mean that the appeal has no reasonable prospect of success. Perhaps the test should be "bound to fail". Quality Concrete Formwork Ltd. v. Vanbots Construction Corp., [1999] B.C.J. No. 2644 (C.A.) per Prowse J.A.: The first test which Quality was required to meet on this application was that it had some reasonable prospect of success on the appeal, or, to frame the test in a somewhat different way, that its appeal was not bound to fail. S.B. v. Holmgren, [2002] B.C.J. No. 2295 (C.A.), per Ryan J.A.: Now that the wording of the Rule has been changed, should the words in Rule 56, "lacks merit", be equated with its old formulation, "has no reasonable prospect of success"? I think that the answer to that question must be yes. In my view the new Rule 56 was meant to re-cast the old rule to fit more appropriately with the nomenclature of the work of the appeal court. It was not meant to reformulate it.
DECISION NO. 2009-HPA-0010(a) Page 6 [16] Tribunals have also considered this phrase. Language identical to that of s. 31(1)(f) of the ATA has existed for some time in s. 27(1)(c) of the Human Rights Act. The Human Rights Tribunal takes a slightly different approach than the courts to this language. The test applied by the Human Rights Tribunal was considered in a recent judicial review decision, Gichuru v. British Columbia (Workers Compensation Appeal Tribunal), [2009] B.C.J. No. 1342 (S.C.), a case where a Tribunal adjudicator summarily dismissed a complaint by a lawyer that WCAT fired him because he was black. The Tribunal member articulated the test to be applied as follows (para. 13): The role of the Tribunal, on an application, is not to determine whether the complainant has established a prima facie case of discrimination, nor to determine the bona fides of the response. Rather, it is an assessment, based on all of the material before the Tribunal, of whether there is a reasonable prospect the complaint will succeed: Bell v. Dr. Sherk and others, 2003 BCHRT 63. The assessment is not whether there is a mere chance that the complaint will succeed, which would be the lowest threshold a complainant would have to meet. Nor is it that there is a certainty that the complaint will succeed, which would be at the highest threshold a complainant would have to meet. Rather, the Tribunal is assessing whether there is a reasonable prospect the complaint will succeed based on all the information available to it. [17] The petitioner, who represented himself, argued that in summarily dismissing his complaint on the basis of no reasonable prospect of success, the Tribunal improperly engaged in fact-finding and improperly usurped the panel s role on the merits. The Court rejected this argument, but it is important to carefully consider the Court s reasons: [18] Mr. Gichuru has submitted that there has been a breach of natural justice because the Tribunal Members made findings of fact on a preliminary application, including findings upon issues of credibility. I do not find that to have occurred. The Member was clearly aware of the nature of the Tribunal s role on a preliminary application and made numerous references to not finding facts, for example, para. 15: without making any findings of fact, para 36: scant if any evidence of adverse or differential treatment, para 38: The information before me does not tend to substantiate Mr. Gichuru s allegation..., para. 39:... the information before me does not tend to suggest... rather the information before me tends to suggest..., para 40: does not tend to substantiate..., para 44: The materials before me do not tend to support any allegations... I read the decision and, in particular, those comments to indicate the member was examining what inferences could fairly be drawn from the information in order to decide whether Mr. Gichuru s complaint had a reasonable prospect of success... [20] Mr. Gichuru submits that the member applied the wrong legal test in deciding the application. The legal test is set out in Rule 27(1)(c). The complaint may be dismissed if the member determines there is no reasonable prospect that the complainant will succeed. I agree with Mr. Gichuru s submission that the prospect of success refers to the prospect of success if the complaint proceeds to a hearing, however the statute clearly allows the member to assess the prospect of success at a preliminary stage under 27(1)(c). The member s ruling at paragraph 46 is Considering the matter as a
DECISION NO. 2009-HPA-0010(a) Page 7 whole, I am satisfied that the complaint has no reasonable prospect of success. I therefore exercise my discretion to dismiss the complaint under 27(1)(c). The test has been described as whether the evidence takes the case out of the realm of conjecture (reasoning of Donald J.A. at paragraph 26 of the case of Lee v. British Columbia (Hydro and Power Authority), 2004 BCCA 457, approved by the B.C. Court of Appeal at paragraph 24 in the case of Berezoutskaia v. British Columbia (Human Rights Tribunal), [2006] B.C.J. No. 436). Mr. Gichuru has submitted that the Member improperly considered the matter on the basis of the balance of probabilities. I do not read the decision in that manner. In using words such as does not tend to suggest, the Member was considering whether or not the evidence would support Mr. Gichuru s complaint to the extent that it had a reasonable prospect of success and concluded that it did not. The inference Mr. Gichuru drew from what occurred was that he was the victim of discrimination, however, the Tribunal Member in assessing the evidence did not assess it as supporting his case to the level of a reasonable prospect of success. The question of the onus of proof is not a factor in this decision as the member has clearly found the evidence insufficient to meet the test. [emphasis added] [18] There is a question as to whether the bound to fail test differs significantly from the out of the realm of conjecture test. Whatever the answer, both tests require a preliminary dismissal decision to take considerable care in distinguishing between the gatekeeper role on summary dismissal and the role of the panel on the merits. The underlying policy of the legislation is that a complainant is entitled to have his matter heard on the merits unless it is not worthy to be put before a panel. Only the latter question is properly before a member on a summary dismissal application under s. 31(1)(f). In this regard, I agree with and adopt the approach to this section as recently described by the Review Board in decision 2009-0052(a): [35] These provisions serve a gatekeeper function. Their ultimate purpose is to weed out applications that are unworthy of consideration by a panel of the Review Board, and thus to avoid the waste of time and resources occasioned by allowing such cases to go to hearing. To go beyond this, however to use them in order to conduct adjudications of legitimate issues (often before the record has even been produced) would only undermine the right of review, encourage preliminary applications and create unnecessary barriers, cost and delay to what is intended to be a summary process. [36] In short, sections 31(1)(c) and (f) applications should not be the occasion for a disguised adjudication of the merits where a serious issue has been raised. While it is obviously necessary to engage in a preliminary assessment of the merits, that assessment must be undertaken solely for the purpose of determining whether the tests in s. 31(1)(c) and 31(1)(f) have been satisfied. [52] the Review Board must be able to conduct a preliminary assessment of both the law and the evidence. That said, the difference in formulation probably makes very little substantive difference. A person applying for summary dismissal bears the onus of satisfying the Board that
DECISION NO. 2009-HPA-0010(a) Page 8 summary dismissal is appropriate. If a person relying on s. 31(1)(f) cannot satisfy a panel member on a preliminary application that that the prospect of success is unreasonable in all the circumstances, the appropriate decision is to dismiss the preliminary application and to allow the matter to proceed to a hearing Panel. [19] This is the analysis of the law and test that I have used in this case. I note as well that I have on this application had the benefit of reviewing the record. [20] Under the Act, a review by the Review Board of decisions of the Inquiry Committee requires the following: 50.6 (5) On receipt of an application under subsection (1), the review board must conduct a review of the disposition and must consider one or both of the following: (a) the adequacy of the investigation conducted respecting the complaint; (b) the reasonableness of the disposition. [21] In the context of a gatekeeper, I will first deal with the adequacy of the investigation conducted by the Inquiry Committee and consider the issue of procedural fairness as to whether the investigation was sufficiently incomplete so as to deny the Complainant the right to an adequate investigation. I will not be weighing evidence but will be examining what inferences can be fairly drawn from the information provided in order to decide whether the Complainant has a reasonable prospect of success. (a) Adequacy of the investigation: [22] In a letter to the Complainant dated April 28, 2009, the College describes the decision of the Inquiry Committee as follows: the Inquiry Committee initiated an investigation following receipt of your complaint. The College contacted the five students named in your complaint letter and sought additional information regarding their educational training at Naju College. Specifically, the Inquiry Committee requested the students to submit International Credential Evaluation Services ( ICES ) reports for their studies at Naju College. The investigation conducted by ICES in relation to the students studies took some time to complete. ICES ultimately concluded that the student transcripts from Naju College were not comparable to the completion of educational training at a recognized postsecondary educational institution in British Columbia or elsewhere in Canada. Based on this information, the Inquiry Committee took action under s. 33(6)(b) by referring the issue of the five students educational qualifications to the Registration Committee. The Inquiry Committee was of the view that this was an appropriate action because you had correctly identified that the student transcripts from Naju College should not be accepted and this related to the issue of registration.
DECISION NO. 2009-HPA-0010(a) Page 9 [23] In the letter to the Review Board requesting a review, the Complainant stated, as set out in paragraph [6] above, how and why he disagrees with the decisions of the College. His directive that fake document users must be disqualified and expelled from this TCM field goes to the severity of the remedial action and the Complainant is of the opinion that the action chosen by the College is not severe enough. He further points out that the College must conduct its own investigation rather than relying on the International Credential Evaluation Service ( ICES ) report and that it takes too long to investigate unnecessarily. CTCMA must exercise its power over foreign student to impose strict rules for credential checks. [24] The College submitted that it has broad discretion under Part 3 of the Act in the conduct of its investigations. It further submits that administrative decision-makers must be afforded considerable latitude in the way that they conduct investigations and that deference must be given to an assessment regarding the extent and scope of investigation. In support of its submission the College cited the case of Tahmourpou v. Canada (Solicitor General), [2005] S.C J. No. 543 (C.A.),(Tahmourpou) a common law natural justice case arising on judicial review,where the court stated: [39] Any judicial review of the Commission's procedure must recognize that the agency is master of its own process and must be afforded considerable latitude in the way that it conducts its investigations. An investigation into a human rights complaint cannot be held to a standard of perfection; it is not required to turn every stone. The Commission's resources are limited and its case load is heavy. It must therefore balance the interests of complainants in the fullest possible investigation and the demands of administrative efficacy: see, for example, Slattery v. Canada (Human Rights Commission) at para. 55; Canadian Human Rights Commission, Annual Report for 2001 (Ottawa: Minister of Public Works and Government Services, 2002), p. 33. [25] In that case, the Federal Court of Appeal ruled in favour of the appellant, said that it was an exceptional case, and found that the commission, in failing to investigate and analyze the statistical data and to interview other cadets, constituted a failure to investigate obviously crucial evidence and did not meet the test of thoroughness set out in the case of Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574, aff d (1996), 205 N.R. 383 (F.C.A.)) [26] I note that the Legislature has not framed s. 50.6(5)(a) of the Act in terms of natural justice but has created a specialized administrative tribunal assigned to review the adequacy of a college s investigation. In McKee v. Health Professions Appeal and Review Board, [2009] O.J. No. 4112 (S.C.J.), the Ontario Superior Court recently addressed the test the Ontario Review Board is to apply under this branch of its jurisdiction this way (paras. 32-34): The difficulty with the Board's decision is that having apparently appreciated that it owed deference in its review of the Committee's decision, the Board failed to extend it. The question the Board ought to have asked is whether the Committee exercised its investigative discretion reasonably having regard to the Committee's function as a screening process to determine how and in what manner the particular complaint should be dealt with.
DECISION NO. 2009-HPA-0010(a) Page 10 As is apparent from the powers conferred on the Complaints Committee under the Code, the nature of complaints that arise and which are to be screened by the Committee is wide ranging and includes issues of incapacity, incompetence, negligence and moral turpitude as well as allegations of unprofessional conduct of an attitudinal nature as was the case in this complaint. The question as to the adequacy of investigation that was properly before the Board was whether the investigation undertaken was reasonable in the circumstances. [27] This test is arguably more flexible than the crucial evidence test applied in Tahmourpour and instances may arise in which several lesser deficiencies add up to an unreasonable investigation, even if obviously crucial evidence was not missed. [28] Section 33 of the Act sets out certain directions and parameters for investigations by inquiry committees. Relevant sections are as follows: 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. [29] The information regarding the investigation process followed by the College is that the College requested and reviewed the input from the five Registrants. It also obtained an ICES report to verify the transcripts that the Complainant questioned and it reviewed transcripts from other educational institutions that the Registrants had attended. The ICES report confirmed that Naju College transcripts were not considered comparable to the completion of post-secondary school study in British Columbia. The College then had the Naju College credits removed from the Registrants records. [30] In submissions from the Complainant dated October 7, 2009, he, in summary, states that the Registrants were complicit in the matter of the phony transcripts with Naju College, that they violated their professional Code of Ethics, and that they demonstrated a pattern of incompetence and untrustworthiness by using unqualified transcripts. He says the decision by the College allowing them to stay as students is dangerous to the public health and creates a loophole that others can follow. In essence, the Complainant is critical of the lenient finding and penalty the College imposed on the Registrants. It is the submission of the College that there was an adequate investigation of the complaint of the Complainant and that the College was entitled to rely on ICES s expertise regarding the verification of the international qualifications. [31] There is no statement from the Complainant that he found fault with the finding of ICES that student transcripts from Naju College were not comparable to the completion of education training in Canada. He finds fault with the investigation in that it does not find the Registrants complicit and guilty of ethical breaches. Using the test of the
DECISION NO. 2009-HPA-0010(a) Page 11 McKee case, the question I must consider is whether there are inferences that I can draw from the information provided that the investigation undertaken was reasonable in the circumstances. [32] I note that the Complainant was in direct contact with ICES and in the ICES report dated March 4, 2009 to the College, that allegations and documentation regarding the wrongdoing of the Registrants was considered by the ICES in making its report: I believe that you have been in contact with an individual named [ the Complainant ]. Please note that he has also been in contact with our service and has submitted several documents for review. His allegations are quite serious in the fact that he s alleged that the individuals possessing transcripts from Naju College have committed some sort of forgery. Unfortunately we have not been able to come to any solid conclusions to confirm his allegations other than what we have received from the authorities in Korea. The student transcripts that we forwarded to the Ministry of Education of Science and Technology, the Korean Educational Development Institute (KEDI) Academic Credit Bank System (ACBS) and Naju College itself have all been verified for authenticity. [33] The Complainant has given no reason to discredit the work of ICES other than describing the report as limited ; however he submitted that the College should have conducted its own investigation. [34] There is also the further information from the Complainant to consider that the Complainant alleged one student confessed to the College the whole secret scheme - are there inferences to be drawn from this confession? I am in receipt of the letter from the College referred to by the Complainant (a copy of which was forwarded to the Complainant and submissions dated November 30, 2009 received from him in response) 1 the letter is not from one of the registrants but another student who attended Naju College and is dated March 9, 2009. I have reviewed the contents of the letter carefully to see if it accurately reflects the allegations of the Complainant. I find it does not and in fact supports a view that students had no knowledge of Naju College s failings. The student states: Mr. and Naju College have absolutely misled me and bona-fide students, TCM Ruling Body outside of Korea by using the blind spot of Korean Law. The student describes how he was misled by Naju College there was no indication in his letter that it was a pre-meditated scheme on behalf of any students and how Naju College continues to mislead the Ruling Body outside of Korea. The student set out in his letter that he did indeed take classes at Mr.. s office along with twenty other students but it is clear that his understanding was that these were bona fide classes for Naju College and only at a later time found out that he was misled. The other students that took the classes were not named in this letter and therefore I cannot presume that the Registrants were those students but if they were, I have no reason to 1 The Complainant must have seen this letter previously as he referred to it several times in his submissions including his initial request for review.
DECISION NO. 2009-HPA-0010(a) Page 12 believe that they were not similarly misled. Further in the Complainant s submission of November 30, 2009, he states that students also helped [Mr..] recruiting business by sending mail to Canadian TCM Schools to collect 40% of the commission for recruiting students from Asia It proves they have organized together for the purpose of misleading students for this degree mill business on an ongoing basis. This was not referred to in the letter of March 9, 2009 from a student. The passage in the Record referred to by the Complainant on this issue is an offer of commission for recruiting students from Asia and there is no evidence that the Registrants took up the offer or alternatively, if they did, that they knew that Naju College was not bona fide. I have reread the ICES report of February 24, 2009, noted that they have confirmed that Naju College was a recognized institution by the Ministry of Education and Human Resource Development but that the three year diploma program under the Department of Herbal Medicine Resource Development is not an approved program and it duly advised the College of these inadequacies of Naju College. I do not find that the confession letter contains a confession of complicity on behalf of the student and it does not implicate other students of complicity in a cover up as alleged by the Complainant. Without making any findings of fact, there are no inferences in favour of the Complainant s application that I can make from the information he has focused on in his application. [35] I note that in the Tahmourpour case referred to in paragraph [22] above, the court stated that the agency is master of its own process and it must balance the interests of complainants in the fullest possible investigation and the demands of administrative efficacy (at para. 39). I have considered the position of the Complainant that the College should have done the front-line investigation of Naju College and I do not find in favour of the Complainant on this position. The undisputed fact is that the College did its own investigation and that part of the investigation was the hiring of an international credential evaluation service. The use of such a service is consistent with the demands of administrative efficacy. In its investigation the College also asked for input from the Registrants. I further note that documentation specific to wrongdoing by the Registrants (an allegation of forgery of transcripts) was sent to ICES and ICES investigators could not come to any solid conclusions to confirm the Complainant s allegation. The transcripts were verified for authenticity. To conclude, there is no information whatsoever for me to draw any inference that there was an inadequate investigation by the College. [36] I am in agreement with the College s submissions that the Complainant s contention that the investigation took too long is without substance. The investigation was completed in less than 120 days, a requirement now in force under section 50.55 of the Act and section 7 of the Health Professions General Regulation B.C. Reg. 275/2008, but not in force at the time the complaint was filed. [37] Upon considering all the submissions, I am not persuaded that the Complainant has a reasonable prospect of establishing at a hearing that the investigation was inadequate within the meaning of section 50.6(5)(a) of the Act or that there was a breach of procedural fairness in regard to the investigation.
DECISION NO. 2009-HPA-0010(a) Page 13 (b) Reasonableness of the Disposition [38] In New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, the Supreme Court of Canada described reasonableness in the following terms: Reasonableness is one of the most widely used and yet most complex legal concepts. In any area of law we turn our attention to, we find ourselves dealing with the reasonable, reasonableness or rationality. But what is a reasonable decision? How are reviewing courts to identify an unreasonable decision in the context of administrative law and, especially, of judicial review? Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation with the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulation the reasons and the outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decisionmaking process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [39] If this matter were to proceed to a panel, the question would be: was it reasonable for the Inquiry Committee to take action pursuant to section 33(6) of the Act and reassess the training hours of the Registrants, void their hours attributed to Naju College, and refer their files to the Registration Committee for review? The Complainant submitted that the College was too lenient and should have expelled the Registrants. [40] As set out in paragraph [32] above, in the report from ICES, the investigators were not able to come to any solid conclusions regarding the allegations of the Complainant even with the receipt of submissions and documents directly from him. The Inquiry Committee accepted the ICES report. In any event, the Inquiry Committee did not have the authority to expel the Registrants as its remedies are limited and set out in sections 33(6) and 36 of the Act. Given those two conclusions, I find that there is no reasonable prospect that the applicant would succeed before a hearing panel in establishing that the decision made by the Inquiry Committee, that is, to not accept credits from Naju College, to re-evaluate their training hours, and to send their files to the Registration Committee for review, was an unreasonable outcome of the investigation. VII CONCLUSION [41] This is a summary dismissal application by the College. I have reviewed the application of the Complainant in detail and in my analysis herein have made no findings of fact. In both the request for review of the College s Registration Committee decision and the request for review of the Inquiry Committee s decision, there has been
DECISION NO. 2009-HPA-0010(a) Page 14 no information or argument from the Complainant from which an inference could be made to support a favourable decision for the Complainant. Accordingly I find there is no reasonable prospect that the application by the Complainant for review of the decisions set out therein will succeed. [42] In making this decision, I have considered all of the information and submissions before me, whether or not they are specifically referred to in these reasons. [43] For all of the reasons set out above, I allow the application of the College for summary dismissal and accordingly dismiss the application of the Complainant under sections 31(1)(a) and (f) of the ATA. Margaret Ostrowski Margaret Ostrowski Q.C., Member Health Professions Review Board January 25, 2010