Sep 28, 2020

A recurring issue for regulators is the scope of investigations. In Yu v College of Dental Surgeons of British Columbia, 2018 BCSC 1315, http://canlii.ca/t/htc3c, a complaint was made about Dr. Yu’s approach to orthodontics. Concerns were identified and an undertaking was proposed. Dr. Yu declined to provide the undertaking. The committee learned that Dr. Yu had more orthodontic patients than he had previously indicated and initiated a review of a larger sampling of files. Dr. Yu sought an injunction to halt the review, in part, because the regulator was expanding the scope of the original complaint.

The Court was of the view that since there were broader concerns and since the committee had the authority to initiate an investigation on its own authority, the review was not of concern. However, the Court found there was an issue to consider about whether the strong expression of opinion by one of the committee members about Dr. Yu’s approach to orthodontics (which the committee member called “unscientific”) may have influenced the decision to conduct the review even though the committee member had been removed from the committee. However, the Court concluded that Dr. Yu had not established irreparable harm and the balance of convenience favoured allowing the file review to proceed. The Court concluded:

The public’s need to be assured that the profession is being regulated and that they are protected from incompetent practice, far outweighs the needs of the individual dentist. The individual dentist never had a high expectation of privacy or right to practice without inspection and regulation.