Robichaud v. College of Registered Nurses of Nova Scotia, 2011 NSSC 379

SUPREME COURT OF NOVA SCOTIA Citation: Robichaud v. College of Registered Nurses of Nova Scotia, 2011 NSSC 379 Date:

(20111024) Docket: Yar. No. 343614 Registry: Yarmouth Between: Hugh Edward Robichaud, on behalf of the surviving siblings of the late David Arthur Robichaud Applicant v. College of Registered Nurses of Nova Scotia Respondent __________________________________________________________________ LIBRARY HEADING __________________________________________________________________ Judge: The Honourable Justice Pierre L. Muise Heard: November 28, 2011 in Yarmouth, Nova Scotia Final Written Submissions: Received October 11, 2011

Summary: The Complainants laid a complaint with the College of Registered Nurses against the nurse who assessed their brother as having been dead on arrival at the emergency department. The Executive Director, after receiving the investigation report, referred the complaint to the Complaints Committee, which held a meeting and dismissed the complaint. The Complainants sought judicial review of that dismissal. Issue: Did the Complainants have standing to apply for judicial review? Result: The Complainants did not have standing. Since they were not parties to the complaints proceedings, they could

not seek judicial review of the merits of the decision. They did not have a sufficient interest in the proceedings, nor the decision, to review the general fairness of the proceedings. The Registered Nurses Regulations required that the complainants be provided an opportunity to appear before the committee and submit representations. That explicitly granted them an interest in that required procedure. However, they did not show, nor raise a triable issue, that the Committee failed to follow the procedure. Thus they had no standing to review the fairness of the procedure.

Neither the Regulations , nor the Registered Nurses Act , explicitly granted them an interest in receiving a copy of the nurse’s response. SUPREME COURT OF NOVA SCOTIA Citation: Robichaud v. College of Registered Nurses of Nova Scotia, 2011 NSSC 379 Date:

(20111024) Docket: Yar. No. 343614 Registry: Yarmouth Between: Hugh Edward Robichaud, on behalf of the surviving siblings of the late David Arthur Robichaud Applicant v. College of Registered Nurses of Nova Scotia Respondent

Judge: The Honourable Justice Pierre L. Muise Heard: November 28, 2011 in Yarmouth, Nova Scotia Final Written Submissions: Received October 11, 2011 Counsel: Hugh Robichaud, for the plaintiffs Marjorie A. Hickey, Q.C., for the defendant INTRODUCTION: [ 1 ] David Robichaud was a resident of Harbourside Lodge, which is physically connected to the Hospital in Yarmouth. Sadly on the last day of his life, he was found by Harbourside Staff not breathing. His airway was obstructed by food and vomit. He was brought to the Emergency Department (“ED”) of the Hospital.

Nurse X, a registered nurse, was on duty in the ED at that time. She assessed David as having been dead on arrival. She did not effect, request, nor attempt, any resuscitation procedures. [ 2 ] Hugh Robichaud, on behalf of David’s surviving siblings, laid a complaint against Nurse X, with the College of Registered Nurses of Nova Scotia (“College”).

The complaint alleged that Nurse X failed to: conduct an assessment of David; and, undertake initiatives to preserve his life, as required of a registered nurse on duty in the ED. [ 3 ] The Executive Director of the College began an investigation by sending copies of the complaint to an investigator and to Nurse X. After completing the investigation, the investigator sent a report of the investigation to the Executive Director.

The Executive Director then referred the Complaint (and the report of the investigation) to the Complaints Committee. [ 4 ] The Complaints Committee held a meeting and rendered a written decision dismissing the Complaint. The Applicants request a judicial review of that decision. [ 5 ] The Applicants Notice for Judicial Review lists the following Grounds for Review: “1. The Complaints Committee (“committee”) made an erroneous finding of fact that the late David Robichaud was “found sitting in his wheelchair”. The late David Robichaud has never used or owned a wheelchair and had no reason to do so. 2.

The committee made their decision, in part, based on “information from the Advanced Cardiovascular Life Support Manual (ACLS) Supplementary Materials (American Heart Association)” without consideration of representations submitted by Dr. Delbe Robichaud, M.D., contrary to said materials. 3. The committee failed to consider or address representations made by Dr. Delbe Robichaud, M.D., forwarded by e-mail dated August 25, 2010.

4. The committee failed to act on a request by the Applicant (Complainant) for a copy of the Response filed by the nurse respondentand allowing the Complainant (Applicant herein) time to review said Response and provide submissions to the panel as deededappropriate, contrary to principles of fundamental justice and due process. 5. Other grounds as may appear.” [6] The preliminary issue to be determined is whether the Applicants have standing to apply for judicial review on thosegrounds. LAW AND ANALYSIS General Principles [7] As stated at paragraph 25 of Emerman v.

Assn. of Professional Engineers and Geoscientists of British Columbia, 2008BCSC 1186: “[W]here governing legislation explicitly grants a right of appeal or an interest to the complainant, such a complainant may have standingto seek judicial review.” [8] The complaint procedure in the case at hand is governed by the Registered Nurses Act, S.N.S. 2006, c. 21 (“Act”), and theRegistered Nurses Regulations, N.S. Reg. 65/2009 (“Regulations”).

Section 55 of the Regulations gives complainants the right to havea dismissal of their complaint by the Executive Director reviewed by the Complaints Committee.

There is no provision in the Act, norRegulations explicitly giving complainants a right to request or have a review of a decision of the Complaints Committee dismissingtheir complaint. [9] Whether or not there is a provision explicitly granting an interest to the complainant will be discussed later. [10] In establishing standing, the burden is on the Applicants in the case at hand to show that they have “some special interest,private interest or sufficient interest” in the decision or proceeding. [Pieters v Ontario College of Teachers, [2008] O.J. No. 527 (S.C.J.),at para 4, quoting Cowan v.

Canadian Broadcasting Corp. (ON CA), [1966] 2 O.R. 309; Emerman, supra, at para 19.] [11] The Applicants can discharge that burden by demonstrating that the College has infringed a legal right of theirs, or that theyhave a legal right which will “cause or threaten to cause [them] some special damage over and above that suffered by the general public”.They must be more than “interested observers”. [Behr v College of Pharmacists of British Columbia, 2005 BCSC 879, paras 15, 18 and28.] They can discharge the burden by showing the decision affected their “personal or economic rights or obligations”. [Friends of theOld Man River Society v.

Ass'n of Professional Engineers, Geologists and Geophysicists of Alberta, 2001 ABCA 107, at paras 32 &41; Metropolitan Centre Inc. v Abugov Kaspar Architecture, Engineering, Interior Design, 2007 ABQB 419, at paras 25 and 28.] [12] It is not sufficient to be interested in the decision. The party applying for judicial review must have a special, private orsufficient interest in the decision or proceeding. That will be satisfied when that party’s rights or obligations have been, are or will beaffected more than the general public.

Specific Cases - Comparison and Principles [13] Two cases were submitted, in this proceeding, where judicial review was found to be available to complainants. However,

judicial review was available on issues relating to procedural fairness only, not on the merits of the decision. [ 14 ] One of those cases is Allen v College of Dental Surgeons of British Columbia , 2007 BCCA 75 . In that case, a complaint was filed in relation to the way the dental surgery was performed and the attitude and behavior of the surgeon’s assistant. The Registrar decided to take no action in respect of the complaint. He did not address the portion of the complaint relating to the assistant.

Unlike the case at hand, the governing legislation had no provision for an internal review of the Registrar’s decision. However, it did have a provision (s. 55(1)) permitting an appeal to the Supreme Court, if the complainant was a “person aggrieved” by the Registrar’s action or decision. The court found that Ms. Allen was a “person aggrieved” on the basis that, since she had a right to make a complaint, she had an interest in having it considered fairly. Therefore, she had standing to appeal.

However, the court limited the scope of the appeal to the fairness of the procedure by which her complaint was considered. On this last point, the court, at paragraph 24, stated: “The scope of the right [to appeal] is limited by the participatory role of the complainant under the scheme of the Act . While not a direct participant, the complainant is the moving party with a legitimate personal interest in a fair consideration of the complaint.

As I see it, the right of appeal goes no further than that and would not permit the complainant to question what follows a fair consideration of the complaint.” [ 15 ] At paragraph 38, the court, further discussing the scope of the right to appeal, stated: “The appellant can appeal under s. 55(1) against an unfair consideration of her complaint but cannot challenge any later stage of the process.” [ 16 ] In the case at hand, there is no provision, in the Act or Regulations , providing a right of appeal to the Supreme Court. Instead there is an internal right of review.

There was no need to utilize it because the Executive Director referred the complaint to the Complaints Committee. Allen is easily distinguishable on that basis. It was focused on determining whether Ms. Allen was a person aggrieved by the Registrar’s decision, such that she would have the benefit of the statutory right to appeal to the Supreme Court. [ 17 ] In addition, it was clear that a portion of Ms. Allen’s complaint was not even considered, a blatant reason to grant standing to review the fairness of the complaints process followed.

That is not the situation in the case at hand. [ 18 ] The other case is Mitten v College of Alberta Psychologists , 2010 ABCA 159 . In that case, the court upheld the chambers judge’s decision to strike all paragraphs in the originating notice for judicial review, except those related to procedural fairness. In arriving at its decision, the court analyzed Old Man River , and, at paragraph 17, stated: “While the role of the complainant in discipline proceedings at the investigative stage is limited, the statute does afford the complainant some rights.

The College and the investigated psychologist may be the only full parties at that stage, but the claimant is clearly a participant in the appeal of the decision not to proceed to hearing. The Act specifically gives that right of appeal to the complainant. What the obiter comments in Old Man River signify is that the complainant cannot turn the appeal of the decision not to proceed to a hearing into a surrogate hearing on the merits.

Old Man River should not be read as suggesting that a complainant who launches an appeal under the statute has no remedies if the appeal process is conducted in a fundamentally unfair manner.” [ 19 ] The court in Mitten , at paragraph 18 , stated that: the appellant was “entitled to judicial review of the appeal process”; but, could “not seek judicial review of the underlying investigation”. [ 20 ] In Mitten , the claimant was a “participant in the appeal of the decision not to proceed to a hearing” because the following circumstances existed. After investigating Ms.

Mitten’s complaint, the Registrar dismissed the complaint. Ms. Mitten appealed the dismissal to the Discipline Committee. The governing legislation granted her the right to make that appeal. Her appeal was dismissed. She applied for judicial review of the Discipline Committee’s decision to dismiss her appeal. Since she was the one who brought the appeal to the Discipline Committee, that made her a “participant” in the appeal, giving her a right to a judicial review of the appeal process which she had instituted.

It did not make her a party to the discipline proceedings; and, it did not entitle her to a review of the underlying investigation, nor of the merits of the Discipline Committee’s decision.

[ 21 ] In the case at hand, the Executive Director, after the conclusion of the investigation by the investigator, referred the complaint to the Complaints Committee. Since the Executive Director did not dismiss the complaint, the Complainants did not institute a review of that dismissal by the Complaints Committee, as they would have had the right to do under s. 55 of the Regulations . Therefore, they did not become “participants” in the proceeding before the Complaints Committee, in the way that Ms. Mitten did by instituting the appeal.

Their participation was limited to filing the complaint, appearing before the Committee, and submitting “representations, explanations and documentation” relevant to it. [ Regulations , s. 58(1)(b)] [ 22 ] In my view, Mitten does not lead to a conclusion that the Complainants in the case at hand should be entitled to a judicial review of the general process before the Complaints Committee.

Any entitlement to judicial review available to them, if it exists, would be limited to review based on an interest in appearing before the Committee and submitting “representations, explanations and documentation” relevant to the complaint. That will be explored further later. [ 23 ] In Pound v Lunney , 2007 BCSC 85 , the proceedings appeared to unfold in a manner similar to those in the case at hand. A complaint was made to the British Columbia College of Chiropractors.

The complaint was referred to the Ethics and Discipline Committee, which investigated the complaint and determined that conduct complained of was not in contravention of the governing legislation. The complainant sought judicial review of the Committee’s determination. The court determined that the complainant did not have standing to request a judicial review of the College’s decision.

In doing so, it appeared to accept the College’s argument, referred to at paragraph 25, that the complainant was “a mere member of the public who is not directly affected ... , and whose rights have not been infringed ... and he has not suffered any damage by the College’s handling of his complaint, or by its decision to dismiss it”.

However, at para 37, the court stated: “I think that he could properly challenge the College’s handling of his complaint, if he could establish unfairness.” [ 24 ] The court found, at paragraph 38, that the complaint had been given fair consideration because the Committee gave reasons for its decision and followed the rule “governing the handling of complaints”. The court did not examine, as the court in Mitten had, whether or not the appeal procedure in general was fair. [ 25 ] In the case at hand, the Complaints Committee was required to give reasons and to follow rules for proceedings before it.

Reasons were given. However, if the Complainants have shown that the Committee did not follow the rules for the proceedings in question before it, they may be able to establish standing. I will explore whether or not the Complainants have shown this later. [ 26 ] In Old Man River , the complainant had appealed, as it was statutorily authorized to do, a decision of the Discipline Committee terminating the investigation. The appeal was to the panel referred to in the governing legislation as “ Council ” .

The governing legislation did not require that Council conduct a hearing of the appeal, nor that the complainant be entitled to participate in any way. In addition, the complainant was not “ entitled to reasons for Council ’ s decision to confirm the determination of the Discipline Committee ” . Given this statutory structure, the court found the complainants “appeal” right was merely a right to have council review the decision as an “extension of the investigative process”. [Paragraph 36] It found that Council’s decision to end the investigation was discretionary.

It did not affect the complainants’ “personal or economic rights or obligations” and the governing legislation made it clear that they were not parties. Judicial review of Council’s discretionary decision was not available to them. [ 27 ] Section 58(1) of the Regulations states: “When a matter is referred to a Complaints Committee, it must do 1 of the following: (

a) dismiss the complaint and provide any guidance the Complaints Committee considers useful to the complainant, the respondent or any other person associated with the complaint, if the Complaints Committee determines that any of the following apply:

(

i) the complaint is outside the jurisdiction of the College, (ii) the complaint cannot be substantiated, (iii) the complaint is frivolous or vexatious, (iv) the complaint constitutes an abuse of process, (

v) the complaint does not allege facts that, if proven, would constitute professional misconduct, conduct unbecoming, incompetence or incapacity, or would merit a counsel or a caution, or both; (

b) give the complainant, the respondent, and any other person the Complaints Committee considers appropriate a reasonable opportunity to appear before the Complaints Committee and to submit representations, explanations and documentation, including medical information and other information relevant to the complaint.” [ 28 ] In the case at hand, the Complaints Committee did not dismiss the complaint, without anyone appearing before it, on the basis of one or more of the situations in s. 58(1)(a)(

i) to (

v) applying. Therefore, pursuant to s. 58(1)(

b) of the Regulations , it was required to give the Applicants a reasonable opportunity to appear before it and to “submit representations, explanations and documentation, including medical information and other information relevant to the complaint”. [ 29 ] In the case at hand, s. 41 of the Act , requires that the Complaints Committee give a written decision and send a copy to the complainant. [ 30 ] These differences between the governing legislation and/or circumstances in Old Man River , and those in the case at hand, distinguish the two cases and make it such that this Court cannot simply adopt the conclusions in Old Man River as being directly applicable to the case at hand. [ 31 ] Old Man River stated that it did not decide the issue of standing.

However, it based its conclusion that judicial review was not available, in part, on a finding that Council’s decision did not affect the complainants’ rights or obligations. Those are factors to be considered in determining the issue of standing. [ 32 ] It also determined that the duty of procedural fairness had been fulfilled.

Consequently, there was no outstanding issue in relation whether the complainants’ procedural rights had been infringed. [ 33 ] In M.H. v College of Physicians and Surgeons of Alberta , 2006 ABQB 395 , the court, at paragraph 25, found that the circumstances in that case were “virtually indistinguishable” from those in Old Man River , and concluded, that judicial review was not available. At paragraph 41, it noted that the complainant had been given the opportunity to make submissions in person, even though she was not entitled to do so under the governing legislation.

At paragraph 45, it concluded that Council had met its duty of fairness. Therefore, my comments in relation to Old Man River apply to M.H. as well. The statutory scheme in the case at hand is different. Considering those differences, Old Man River and M.H. , do not necessarily lead to a finding that there is no standing in the case at hand. [ 34 ] In Metropolitan Centre , supra , the court addressed the issue of standing to apply for judicial review of a decision by “Council” to dismiss a complaint after a hearing on the merits.

It noted that was different from the circumstances in Old Man River , where a decision was made to dismiss the complaint at the “ investigation stage ” . However, in denying standing, it applied the reasoning of its Court of Appeal, in Old Man River , that the complaint process was a matter between the “ Association ” and the member complained of.

At paragraph 29, it added: “Whatever remedies a complainant might have against an individual whose conduct that complainant has put into question are separate and apart from the complaint procedure being considered here.” [ 35 ] Though it is not clear in the decision, the applicants in Metropolitan Centre appear to have had a statutory right to make representations before “Council”. That would make it comparable to the case at hand. However, the applicants in Metropolitan Centre were seeking a review on the merits of the decision, not on the fairness of the procedure before “Council”.

The authorities presented in the case at hand all appear to be in agreement that a non-party cannot seek judicial review of the merits of the disciplinary body’s decision. [ 36 ] It is clear and uncontested that the Applicants, in the case at hand, are non-parties in the complaints proceeding. “Party” is defined, in s. 2 (ag) of the Act , as meaning “the College or a respondent”. It does not include a complainant.

As such, they cannot seek judicial review of the merits of the Committee’s decision. [ 37 ] Ground for Review #1 in the Notice for Judicial Review alleges the Committee made an erroneous finding of fact. That goes directly to the merits of the decision. Ground for Review #2 alleges the Committee based its decision on information from the Advanced Cardiovascular Life Support Manual without considering the representations of Dr. Delbe Robichaud to the contrary. That ground is getting into the reasoning behind the Committee’s decision. Therefore, it goes to the merits of the decision.

The portion dealing with consideration of Delbe’s representations is repeated in Ground for Review #3 and will be addressed later in this decision. In the meantime, it is clear that the Applicants do not have standing to apply for judicial review on the basis of Grounds for Review #1 and #2. [ 38 ] The Applicants in the case at hand referred to paragraph 4, of Macdonald v College of Registered Nurses of Nova Scotia , 2010 NSSC 430 , where the court noted that the Director had informed Ms. Macdonald of her right to request a review of the dismissal.

The Applicants say that, in contrast, the Complaints Committee’s decision makes no reference to any right of appeal. There is good reason for that. Neither the Act , nor the Regulations , provide the complainant any right of appeal or request for review from a decision of the Complaints Committee.

Section 55 of the Regulations does give the complainant the right to have a decision by the Executive Director dismissing their complaint reviewed by the Complaints Committee. That is the review right Ms. Macdonald was informed of. Neither the question of standing, nor the question of availability of judicial review, was discussed in Macdonald . Therefore, it does not assist in determining the preliminary issue of standing in the case at hand.

Whether Applicants Established Interest Giving Them Standing [ 39 ] Unlike in Mitten and Allen , in the case at hand, the Complainants are not seeking review of an internal appeal process instituted by them, nor review by the Supreme Court pursuant to a statutory provision explicitly authorizing it. [ 40 ] Therefore, in my view, they have not established standing on the basis of the rulings in those cases. [ 41 ] I must examine whether, in the circumstances of the case at hand, the applicants have established “some special interest, private interest or sufficient interest” in the decision or proceeding, giving them standing to apply for judicial review. [ 42 ] I will do that by addressing the following questions: 1.

What interest, if any, do the Applicants have in the decision of the Complaints Committee?

2. What interest, if any, do the Applicants have in the proceedings before the Complaints Committee?

What interest, if any, do the Applicants have in the decision of the Complaints Committee? [43] Section 44(5) of the Act provides that “a decision of the Complaints Committee ... is not admissible in a civil proceeding otherthan an appeal or a review pursuant to” the Act. [44] Consequently, the decision of the Complaints Committee would not have any effect on any rights, duties or obligations of theApplicants in connection with any civil action related to this matter. [45] The Applicants are very interested in the decision because the patient in question was their brother.

However, it is not enoughto be interested in the decision. The Applicants must have an interest in the decision, that is, they have to have an interest that is or willbe affected by the decision. [46] They have not alleged, nor provided evidence showing, that they have such an interest. They have not alleged, nor shown, thatthe decision affected, is affecting or will affect their “personal or economic rights or obligations”, nor that they have a legal right makingit that the decision will “cause or threaten to cause [them] some special damage over and above that suffered by the general public”.

What interest, if any, do the Applicants have in the proceedings before the Complaints Committee? Reasonable Opportunity for Dr. Delbe Robichaud to Submit Representations [47] The Applicants, in the course of this application for judicial review, have filed a Statement of Particulars specifying that Dr.Delbe J. Robichaud is one of the surviving siblings of David Robichaud who is included amongst the Applicants.

The Notice forJudicial Review alleges, among other things, that the Complaints Committee failed to consider representations forwarded by Delbe. [48] The complaint was made on behalf of David’s surviving siblings, including, Delbe. Therefore, he is one of the complainants. [49] Pursuant to s. 58(1)(

b) of the Regulations, the Complaints Committee was required to give Delbe “a reasonable opportunity toappear before the Complaints Committee and to submit representations ... relevant to the complaint”. A copy of the e-mail containingDelbe’s representations was attached to the Applicants’ brief. They are relevant to the complaint. [50] In my view, s. 58(1)(

b) explicitly grants Dellbe an interest in the proceedings before the Complaints Committee.

That interestis limited to an interest in being given “a reasonable opportunity to appear before the Complaints Committee and to submitrepresentations ... relevant to the complaint”. [51] Since this limited interest is explicitly granted to Delbe in the Regulations, he may have standing to seek judicial review if theComplaints Committee failed to follow the procedure required by the Regulations. [Emerman, paras 25 and 28.] Such a judicial reviewwould be limited to whether the Complaints Committee fulfilled its duty of fairness in relation to providing Delbe that opportunity.

Thedetermination of whether that duty of fairness was fulfilled would require a contextual analysis. [M.H., at paras 30 to 32, citing Baker v.Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817.] [52] In my view, the Applicants have not established, nor even shown that there is a triable issue, in relation to whether or not theComplaints Committee, received Delbe’s e-mail for its consideration, let alone as to whether it gave Delbe a reasonable opportunity tosubmit representations.

[ 53 ] They argued, in their brief on standing filed June 27, 2011, that the Complaints Committee’s decision did not refer to Delbe’s representations and that it may not have been considered by the Committee.

They provided no direct evidence that Delbe’s representations were not before the Committee for its consideration. [ 54 ] Subsequent to the hearing of the motion to determine the issue of standing, following the Court’s request for affidavit evidence in relation to whether or not Delbe’s e-mail was before the Committee for its consideration, the College filed the affidavit of Ann Rose, Investigations Consultant with the College, outlining correspondence with Hugh Robichaud, Pam Robichaud and Delbe Robichaud, three of David’s siblings.

She confirmed receipt of the e-mail in question from Delbe and that it had been included in the Investigative Report for the Complaints Committee. [ 55 ] Hugh Robichaud requested an opportunity to appear before the Court on a motion to strike portions of Ms. Rose’s affidavit. The College subsequently filed the affidavit of Ethel Gunn, who was the Chair of the three person panel appointed to act as the Complaints Committee that dealt with the complaint in the case at hand.

In response, by correspondence dated October 11, 2011, Hugh Robichaud indicated that the Applicants were no longer seeking a further hearing in relation to the content of the affidavits, nor cross- examination on the affidavits. They requested that the Court render a decision on standing without that occurring. [ 56 ] The affidavit of Ms.

Gunn confirmed that: Delbe’s e-mail was included in the Preliminary Investigative Report that was before the Committee; and, the Committee reviewed the entire Report, including Delbe’s e-mail, before deliberating and arriving at its decision. [ 57 ] Thus, there is no question that Delbe was given a reasonable opportunity to submit representations. As a result, the Applicants have no standing to apply for judicial review on the basis that the Complaints Committee failed to provide him that opportunity. Reasonable Opportunity for Dr.

Delbe Robichaud to Appear Before the Committee [ 58 ] In his letter of October 11, 2011, Hugh Robichaud indicated the affidavits do not address whether Dr. Delbe Robichaud was “offered a reasonable opportunity to attend at the hearing”. The Notice for Judicial Review did not allege the Committee failed to give Delbe a reasonable opportunity to appear before the Committee. There was no evidence to that effect, nor that Delbe requested or even wanted to appear before the Committee.

The onus is on the Applicants to establish a failure to follow procedure giving them standing to challenge the fairness of the procedure. I have not seen any evidence to suggest Delbe was denied a reasonable opportunity to appear before the Committee. [ 59 ] In my view, the Applicants have not shown, nor even raised a triable issue, that the Committee failed to follow the procedure required by the Regulations as it relates to Delbe ’ s opportunity to appear before the Complaints Committee. Thus, they have not established they have standing to apply for judicial on that basis.

Failing to Provide Nurse ’ s Response to the Complainants [ 60 ] The Notice for Judicial Review also alleges that: the Complainants requested a copy of the Response filed by Nurse X ; and, the Complaints Committee failed to provide it, and to provide time for the Complainants to review it and make submissions to the Committee. [ 61 ] Pursuant to s. 58 of the Regulations , the Committee was required to provide the Complainants a reasonable opportunity to submit representations relevant to the complaint.

Did that require the Committee to provide the Complainants a copy of Nurse X’s response, for the them to review prior to submitting their representations? [ 62 ] Section. 41(3) of the Act states:

“In a proceeding before the Complaints Committee, a respondent has the right to (

a) be represented by legal counsel, a union representative or another representative; (

b) disclosure of the complaint, any written reports of the investigator provided to the Committee and any other document produced or received by the Committee; and (

c) a reasonable opportunity to present a response and make submissions.” [ 63 ] The Act does not have a provision requiring that the complainants be given a copy of the nurse’s response. In contrast, s. 41(2) does provide that both complainants and respondents must be given a copy of the decision of the Complaints Committee.

Therefore, the lack of a corresponding provision requiring that the complainants be given a copy of the nurse’s response, suggests that, those who drafted the Act did not intend that complainants be entitled to receive that response. [ 64 ] The nurse who is the subject of a complaint is the one who faces all of the jeopardy in professional conduct proceedings under the Act . Such proceedings can have very serious ramifications for the nurse. The complainant faces no such jeopardy.

Therefore, it appears reasonable that the nurse would be entitled to procedural safeguards, that the complainant would not be entitled to. [ 65 ] Neither the Act , nor the Regulations , explicitly grants the Applicants an interest in receiving the nurse’s response. [ 66 ] They are non-party complainants.

They have no “special interest, private interest or sufficient interest” in the decision or proceeding, giving them standing to apply for judicial review on the basis that they did not receive a copy of the nurse’s response. [ 67 ] Their interest is limited to being afforded a reasonable opportunity to appear at the hearing and submit representations pursuant to s. 58(1)(

b) of the Regulations . CONCLUSION [ 68 ] I have found the following: 1. The Applicants have not established any sufficient interest that has been, is or will be affected by the decision . In addition, as non- parties, they cannot seek judicial review of the merits of the disciplinary body ’ s decision. 2. The Applicants have not shown, nor raised a triable issue, that Committee failed to follow the procedure required by the Regulations as it relates to Delbe’s opportunity to appear before the Committee and submit representations relevant to the complaint. 3.

The Applicants have not shown that they have an interest explicitly granted in statute, nor a sufficient interest in the decision or proceeding, giving them standing to apply for judicial review on the basis that they did not receive a copy of the nurse ’ s response. [ 69 ] Therefore, I conclude that the Applicants do not have standing to apply for judicial review on the basis of any of the grounds for review outlined in the Notice for Judicial Review. Consequently, their application is dismissed. COSTS

[ 70 ] If the parties are unable to agree on the issue costs, I will received submissions by correspondence. __________________________________ PIERRE L. MUISE, J