2014 NBCA 74, 2014 NBCA 74

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 41-14-CA DR. GARY FECTEAU APPELLANT GARY FECTEAU, Ph. D APPELANT - and - - et - THE COLLEGE OF PSYCHOLOGISTS OF NEW BRUNSWICK RESPONDENT COLLÈGE DES PSYCHOLOGUES DU NOUVEAU-BRUNSWICK INTIMÉ Dr. Fecteau v. The College of Psychologists of New Brunswick, 2014 NBCA 74 Fecteau c.

Collège des psychologues du Nouveau- Brunswick, 2014 NBCA 74 CORAM: The Honourable Justice Deschênes The Honourable Justice Bell The Honourable Justice Quigg CORAM : L'honorable juge Deschênes L'honorable juge Bell L'honorable juge Quigg Appeal from a decision of the Discipline Committee of the College of Psychologists of New Brunswick: November 5, 2013 Appel d’une décision du Comité disciplinaire du Collège des psychologues du Nouveau-Brunswick : Le 5 novembre 2013 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Appeal heard: October 28, 2014 Appel entendu : Le 28 octobre 2014 Judgment rendered: December 18, 2014 Jugement rendu : Le 18 décembre 2014 Reasons for judgment by: The Honourable Justice Bell Motifs de jugement : L'honorable juge Bell

Concurred in by: The Honourable Justice Deschênes The Honourable Justice Quigg Souscrivent aux motifs : L'honorable juge Deschênes L’honorable juge Quigg Counsel at hearing: For the appellant: John P. Barry, Q.C. John Morrissy For the respondent: Enrico Scichilone Avocats à l'audience : Pour l’appelant : John P. Barry, c.r. John Morrissy Pour l’intimé : Enrico Scichilone THE COURT The appeal is allowed with costs of $2,500. LA COUR L’appel est accueilli avec dépens de 2 500 $. The judgment of the Court was delivered by BELL, J.A. I. Introduction and

Summary [ 1 ] Dr. Gary Fecteau is a licensed psychologist authorized to practice psychology pursuant to the College of Psychologists Act , S.N.B. 1980, c. 61 (the Act ). In the years leading up to 2009, Dr. Fecteau contributed to the development of Worksafe NB’s (Worksafe) policy on stress claims. On January 13, 2009, Worksafe provided Dr. Fecteau with a complete file on one of its claimants and requested he provide advice about whether the claimant met the criteria for a stress related compensation claim. On January 30, 2009, Dr.

Fecteau provided his opinion. [ 2 ] The claimant learned about the content of that opinion, was not pleased with it, and eventually brought a court action against Dr. Fecteau and others. The claimant also filed a complaint with the College of Psychologists in which he alleged, among other things, that Dr. Fecteau had “diagnosed” him without having met him. The complaint was reviewed by the Complaints Committee of the College who referred it to the Discipline Committee.

In its referral of the complaint, the Complaints Committee reported, in part, as follows: It is recommended that this matter be referred to the Discipline Committee, because the plaintiff has filed a Notice of Action against the psychologist and is alleging negligence. [ 3 ] The Notice of Hearing prepared by the College contended Dr. Fecteau had, among other things, made a diagnosis of adjustment disorder and speculated about the claimant’s pre-existing conditions without having seen him. The Notice also alleged Dr.

Fecteau had breached several principles of the Canadian Code of Ethics for Psychologists . [ 4 ] On September 25, 2013, following a three day hearing in August 2013, the Discipline Committee dismissed the complaint. It concluded Dr. Fecteau was “not guilty of professional misconduct and no sanction is warranted”.

[ 5 ] On September 26, immediately following receipt of the decision, Dr. Fecteau’s counsel wrote to counsel for the College and counsel for the Discipline Committee, requesting an opportunity to make representations with respect to costs. I set out verbatim the letter from Dr. Fecteau’s counsel: Gentlemen: Pursuant to Section 16(6) of the College of Psychologists Act , I wish to make a presentation to the Discipline Committee with respect to recovery of costs in this matter.

Please acknowledge receipt and please advise what documentation you will require including Affidavit evidence relative to the costs incurred. It would be my intention as well to call expert evidence that the commencement of the proceedings was unwarranted. Yours very truly, John P.

Barry [ 6 ] Section 16(6) of the Act reads as follows: 16(6) Where the Discipline Committee is of the opinion that the commencement of the proceedings was unwarranted, the Committee may order that the College reimburse the member for his costs or such portion thereof as the Discipline Committee fixes. 16(6) Lorsque le comité disciplinaire est d’avis qu’il n’était pas justifié d’entamer des procédures, il peut ordonner au Collège de rembourser au membre la totalité de ses frais ou la

partie de ceux-ci que fixe le comité disciplinaire. [ 7 ] The following day counsel for the College, by way of letter to the Discipline Committee’s counsel, informed the Committee that, in the College’s opinion, the Committee was “ functus officio ” and unable to deal with the issue of costs, having already rendered a final decision on the matter. [ 8 ] The Discipline Committee received submissions from the College and Dr. Fecteau regarding the applicability of the doctrine of functus officio .

On November 5, 2013, the Discipline Committee released its decision with respect to the costs issue and concluded it was functus . The Committee relied upon three grounds in reaching this conclusion: 1. The Act does not grant the Committee authority to “reopen” a decision once it has been rendered; 2. Neither party suggested the Committee committed a “slip or error” that required correction; 3. No formal request for costs was made to the Committee “prior to the committee rendering its decision”. II. Proceedings in the Court below and on appeal [ 9 ] On January 17, 2014, Dr.

Fecteau’s counsel filed a Notice of Application in the Court of Queen’s Bench

seeking judicial review of the November 5, 2013, decision on the costs issue.

Section 17 of the Act provides for an appeal directly to the Court of Appeal on questions of fact and law. The

section reads as follows: 17(1) Any party to proceedings before a Discipline Committee may appeal from its decision or order to the Court of Appeal in accordance with the Rules of Court. 17(2) An appeal under this

section may be made on questions of law or fact or both and the court may affirm or may rescind the decision of the Discipline Committee and may exercise all powers of the Committee and may direct the Committee or the College to take any action which the Committee or the College may take and as the court considers proper, and for such purposes the court may substitute its opinion for that of the Committee, or the court may refer the matter back to the Committee for rehearing, in whole or in part, in accordance with such directions as the court considers proper. [Emphasis added.] 17(1) Toute

partie à des procédures entamées devant un comité disciplinaire peut interjeter appel de son verdict devant la Cour d’appel en se conformant aux Règles de la Cour. 17(2) Il peut être interjeté appel en application du présent

article sur des questions de droit, de fait ou de droit et de fait et la Cour peut confirmer ou casser la décision dont appel, exercer tous les pouvoirs dont le comité est investi et ordonner au comité ou au Collège de prendre les mesures qui sont en leur pouvoir que la Cour juge opportunes et, à ces fins, elle peut soit substituer son opinion à celle du comité, soit renvoyer la question au comité en totalité ou en partie, avec les directives que la Cour juge appropriées. [C’est moi qui souligne.] [ 10 ] On March 4, 2014, a judge of the Court of Queen’s Bench heard the application for judicial review.

On March 21, 2014, he rendered an oral decision in which he held he had no jurisdiction: Fecteau v. Craft , 2014 NBQB 122 , 419 N.B.R. (2d) 395 . He concluded, correctly, in my view, that the Court of Appeal was clothed with jurisdiction to deal with the matter. He stated: In this case, then, the question is whether or not this Court's jurisdiction is superseded by

Section 17 of the Act which prescribes an appeal directly to the Court of Appeal. In my view, it clearly is. As for the question of whether or not

Section 17 applies to all decisions of the Discipline Committee, if Section 17(1) were read by itself, Dr. Fecteau's argument may have some merit. However, when I look at Section 17(2) and see the broad powers vested in the Court of Appeal under that section, it becomes clear and I find that this

section is intended as the exclusive avenue of appeal from all decisions of the discipline committee under the Act . Dr. Fecteau urges that if I make this finding that the matter is within the exclusive jurisdiction of the Court of Appeal then I should not dismiss the application but rather direct it be made returnable before the Court of Appeal as set out in Rule 69.04(1)(

b) or transfer it to the Court of Appeal under Rule 69.11. However, doing either would still make the matter a judicial review under Rule 69 rather than an appeal under Rule 62 which is what is clearly contemplated by

Section 17 of the Act . In the result, Dr. Fecteau's application is dismissed. In the circumstances, I make no order for costs. [Paras. 23-26] [ 11 ] A justice of this Court granted Dr. Fecteau an extension of time within which to appeal, and leave to appeal. The Amended Notice of Appeal sets out the following grounds of appeal: a. The Discipline Committee erred in law or fact or both when it found that the issues necessary to engage s. 16(6) of the College of Psychologists Act were not raised during the course of the proceedings. b.

The Discipline Committee erred in law when it found that the doctrine of functus officio applies in the present circumstances to prohibit the Appellant from making submissions with respect to costs pursuant to s. 16(6) of the College of Psychologists Act , in the absence of any provision of the College of Psychologists Act which requires decisions as to costs pursuant to s. 16(6) of the Act to be issued at the same time as the Discipline Committee’s decision on the merits of the complaint. c.

The Discipline Committee breached its duties of procedural fairness to the Appellant by failing to consider or appreciate the key arguments made by the Appellant; failing to give adequate reasons for their decision; and failing to advise the Appellant of its procedural rules with respect to submissions on costs prior to its refusal to hear submissions on costs of November 5, 2013, despite having knowledge through its counsel that the Appellant intended to make submissions on costs.

[ 12 ] The parties agree the standard of review with respect to the second ground of appeal is correctness. They also agree the standard for the first and third grounds is reasonableness. I am of the view this matter can be disposed of on the basis of the second ground of appeal. As a result, I do not intend to address grounds one and three. The issue squarely before the Court is whether the Discipline Committee was functus officio on the issue of costs. III. Analysis A.

Standard of Review [ 13 ] Although the parties agree the standard of review on the issue of functus officio is correctness, I am of the view it remains for this Court to adjudicate upon that issue: J.D. Irving, Limited v. North Shore Forest Products Marketing Board et al. , 2014 NBCA 42 , 422 N.B.R. (2d) 233 , at para. 6 . As the first step in any appellate analysis, the Court must apply the jurisprudence, independently of submissions from counsel, in its search for the appropriate standard of review: Bainbridge et al. v R. , 2005 NBCA 29 , 282 N.B.R. (2d) 125 , at para. 12 ; Godin v.

Star-Key Enterprises and Carquest Canada , 2006 NBCA 91 , 305 N.B.R. (2d) 180 , at para. 7 . That said, I appreciate counsel’s views in this regard and find them helpful to my analysis. [ 14 ] In Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190 and Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339 , the Court identified the approach to be employed in the search for the proper standard of review. This approach applies both to administrative decisions reviewed by way of application for judicial review and to those reviewed pursuant to a statutory right of appeal ( Dr.

Q. v. College of Physicians and Surgeons of British Columbia , 2003 SCC 19 , [2003] 1 S.C.R. 226 , at para. 21 ). Over-arching the whole of the analysis is the principle that the focus remains on the nature of the issue that was “before the administrative tribunal under review”: Khosa , at para. 4 , per Binnie J.

The nature of the issue must be considered within the context of the legislation and the expertise of the tribunal. [ 15 ] Dunsmuir instructs us that the standard of correctness will apply to constitutional questions, questions of law that are of central importance to the legal system as a whole and outside the tribunal’s area of expertise, and true jurisdictional questions. In my view this list is not exhaustive: see , for example, J.D. Irving, Limited v.

North Shore Forest Products Marketing Board et al. , where Robertson J.A. found the correctness standard will apply on review to questions of fairness (para. 25). Further, the standard of correctness is more likely to apply where the legislator has chosen, in clear language, to provide for a broadly worded statutory right of appeal, though such a provision is not determinative: Dr. Q. v. College of Physicians and Surgeons of British Columbia ; Khosa , at para. 55 ; J.D. Irving, Limited v. North Shore Forest Products Marketing Board et al. , at para. 7 ; The New Brunswick Real Estate Association v.

Moore , 2007 NBCA 64 , 319 N.B.R. (2d) 147 , at para. 7 , leave to appeal refused [2007] S.C.C.A. No. 510 (QL). [ 16 ] The Act contains no privative clause. To the contrary, as already mentioned, it permits an appeal from “decisions” or “orders” to the Court of Appeal, on both questions of law and fact, in conformity with the Rules of Court . The Court is then given very broad powers on review. [ 17 ] The Discipline Committee of the College is a body responsible for the enforcement of professional standards among its members. Association des courtiers et agents immobiliers du Québec v.

Proprio Direct Inc. , 2008 SCC 32 , [2008] 2 S.C.R. 195 provides that a professional association’s discipline committee has the expertise needed “to apply – and necessarily interpret – the statutory mandate of protecting the public and determining what falls beyond the ethical continuum for members of the Association” (para. 21).

While the Discipline Committee in this matter possesses expertise within the domain of its statutory mandate, the identification of what constitutes a breach of conduct and the determination of the appropriate sanction in the event of a breach, it does not purport to have any special expertise in the application of such legal doctrines as “ functus officio ” which arise at common law (see also Law Society of New Brunswick v.

Ryan , 2003 SCC 20 , [2003] 1 S.C.R. 247 ). [ 18 ] The issue at hand, being whether the Committee was functus officio with respect to the issue of costs, is not one that solely involves interpreting the Committee’s home statute to determine if there has been a breach of professional standards, as was the case in Proprio Direct and Ryan. Rather, it involves a question of law of central importance to the legal system in New Brunswick and outside the expertise of the Committee.

Parties appearing before the Discipline Committee are entitled to know their rights in relation to the finality, or purported finality, of the decision-making process. If one were to adopt a reasonableness standard, differently constituted discipline committees operating under the Act could come to different results on that issue. In my view, the potential that the rule of law might be held up to ridicule by opposing, but “reasonable” conclusions, on the same issue, militates in favour of the correctness standard.

The Court must intervene to ensure the doctrine of functus officio is applied consistently and fairly by

all discipline committees constituted under the Act (see Dunsmuir, at para. 60). The application of the doctrine of functus officio is not, inmy opinion, an issue about which “reasonable” discipline committees are entitled to disagree. [19] Given the broad statutory right of appeal, the lack of a privative clause, and the nature of the issue, being theapplication of an important common law principle for which the Discipline Committee lacks expertise, I conclude the standard of reviewis correctness (The New Brunswick Real Estate Association v. Moore, at para. 7). B.

Was the discipline committee correct when it concluded it was functus officio as it relates to the issue of costs? [20] The doctrine of functus officio is meant to prevent the reopening of a final decision: Chandler v. AlbertaAssociation of Architects, (SCC), [1989] 2 S.C.R. 848, [1989] S.C.J. No. 102 (QL), at para. 19. No final decision wasreached with respect to costs by the Discipline Committee.

Despite the process outlined in s. 16(6) of the Act, the Committee did notturn its mind to the issue of whether the proceedings were warranted and the consequent possibility of costs. [21] Words of a statute are presumed to have meaning. As Professor Sullivan so aptly states in her text, Sullivan on the Construction of Statutes (5th ed. Markham, Ont.: LexisNexis, 2008), “[e]very word in a statute is presumed to make sense and to havea specific role to play in advancing the legislative purpose” (p. 210) (see also The Estate of Caroline J. Higgins v. Arseneau, 2014 NBCA65, [2014] N.B.J. No. 283 (QL), at para. 63).

To this end, the language of s. 16(6) must be considered within the context of the Act as awhole. [22] My analysis begins with s. 16(5). It provides that where a Discipline Committee finds a member guilty ofprofessional misconduct or incompetence, the Committee may by order impose one of 5 potential sanctions. It also provides that thesanction(

s) may be suspended or postponed. It is trite law that a party found guilty of a discipline violation is entitled to an opportunity tobe heard regarding the sanction: Glaspy v. Glaspy, 2011 NBCA 101, 381 N.B.R. (2d) 137, at para. 10; Therrien (Re), 2001 SCC 35,[2001] 2 S.C.R. 3, at para. 82. In my view, section 16(5) contemplates a two-step process in which the Discipline Committee adjudicatesupon the issue of liability and then, presuming a finding of “guilty”, adjudicates on the issue of the appropriate sanction. [23] Section 16(6) contains wording very similar to s. 16(5).

After coming to a conclusion that the commencementof the proceedings is unwarranted, the Discipline Committee may order that the member be awarded costs. If s. 16(5) contemplates atwo-step process of adjudication and imposition of a sanction, it reasonably follows that s. 16(6) also contemplates a two-step processconsisting of dismissal, followed by a consideration of the costs issue. The respondent contends the appellant was required to raise theissue of costs during the hearing. I do not agree. Section 16(6) cannot be engaged until after a “decision” to dismiss the allegations ofmisconduct.

I am of the view the Discipline Committee would fail to respect principles of fundamental fairness if it were to make adecision about whether proceedings were warranted without first receiving submissions from the College and the member concerned. [24] The language of s. 17(1) lends further support to my view that the decision of the Discipline Committee andthe imposition of a sanction and/or an award of costs constitute a two-step process. That

section provides that an appeal may be madefrom a “decision or order”. If all words of a statute are intended to have meaning, it is apparent that the legislator contemplated adistinction between a “decision” of the Discipline Committee and an “order”. Section 16(5) contemplates the making of an “order” aftermaking a decision that the member is guilty of misconduct or incompetence.

Section 16(6) contemplates the making of an “order” forcosts after making a decision that a proceeding was unwarranted. [25] Since the matter of costs was not addressed by the Discipline Committee, as contemplated by the two-stepprocess in s. 16(6) of the Act, the doctrine of functus officio cannot apply to foreclose the “reopening” of a final decision, no finaldecision with respect to costs having been made. This case is distinguishable from Douglas v. SLH Transport Inc., 2010 CHRT 25. Inthat case the Canadian Human Rights Tribunal was not enabled by its legislation to award costs.

As a result, its decision on thecomplaint raised could be final without any consideration of the costs issue. IV. Conclusion [26] Based upon all of the above, I am satisfied the Discipline Committee was not functus officio on the issue ofcosts until such time as it made an order in that regard. No final order is possible until it hears from both the College and Dr. Fecteau onthat issue. I would direct that the Discipline Committee hear the parties on the issue of whether the proceedings were warranted and, inthe event it concludes they were not, on the issue of costs.

[ 27 ] For these reasons I would allow the appeal and order costs of $2,500. _________________________________ B. RICHARD BELL, J.A. WE CONCUR: __________________________________ ALEXANDRE DESCHÊNES, J.A. __________________________________ KATHLEEN A. QUIGG, J.A.