Bargen v. Medical Board of Inquiry (N.W.T.), (2010) 487 A.R. 233 (CA)

• Judge: Martin, Charbonneau and McDonald, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: January 19, 2010
• Jurisdiction: Northwest Territories
• Citations: (2010), 487 A.R. 233 (CA)

Bargen v. Medical Bd. of Inquiry (2010), 487 A.R. 233 (CA);

      495 W.A.C. 233

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JN.092

Dr. Richard Bargen (appellant) v. Medical Board of Inquiry of the Northwest Territories (respondent)

(2009-000005; 2010 NWTCA 6)

Indexed As: Bargen v. Medical Board of Inquiry (N.W.T.)

Northwest Territories Court of Appeal

Martin, Charbonneau and McDonald, JJ.A.

May 27, 2010.

Summary:

The Medical Board of Inquiry found a physician guilty of inappropriately obtaining personal health care information about an individual (B.S.) who was not his patient. The Board directed that the physician take patient/physician boundary training. The physician appealed.

The Northwest Territories Supreme Court, in a decision with neutral citation 2009 NWTSC 5, dismissed the appeal. The physician appealed, alleging, inter alia, reasonable apprehension of bias on the part of the Board and that the Board should have drawn an adverse inference from the failure to call B.S. as a witness.

The Northwest Territories Court of Appeal dismissed the appeal.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The Medical Board of Inquiry found a physician guilty of inappropriately obtaining personal health care information about an individual who was not his patient - The physician's appeal was dismissed by the Supreme Court - The physician appealed, for the first time, raising an issue respecting reasonable apprehension of bias respecting the Board - The physician claimed that upon reading the Supreme Court's decision, he discovered that the Minister of Health, who had been a named defendant in a related civil case initiated by the physician, had appointed the Board members - The Northwest Territories Court of Appeal rejected the physician's "late appearing" argument because the appointment of Board members was a power conferred on the Minister by statute and that information was available and readily discoverable before the hearing - In any event, the court noted that the Board only pursued the complaint because the physician formally requested a full inquiry - Further, some effort was made to appoint Board members who did not know the physician - See paragraphs 12 to 21.

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - The Medical Board of Inquiry found a physician guilty of inappropriately obtaining personal health care information about an individual who was not his patient (B.S.) - The physician's appeal was dismissed by the Supreme Court - The physician appealed again, arguing that the Board should have drawn an adverse inference from the failure to call B.S. - The physician argued that only B.S. could speak to whether he had an expectation of privacy regarding his health records and only he could claim doctor/patient confidentiality - The Northwest Territories Court of Appeal rejected the physician's argument - The court stated that the question was one of professional standards and conduct - The opinion of B.S. regarding the alleged misconduct, after the fact, was irrelevant - See paragraphs 22 to 26.

Medicine - Topic 2101

Discipline for professional misconduct - Evidence - General - [See Evidence - Topic 2401 ].

Medicine - Topic 2162

Discipline for professional misconduct - Practice - Constitution of panel and quorum requirements - [See Administrative Law - Topic 2088 ].

Cases Noticed:

Ocean Port Hotel Ltd. v. Liquor Control and Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193; 2001 SCC 52, refd to. [para. 15].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 21].

Counsel:

A.A. Garber, for the appellant;

C. Boyer, for the respondent.

This appeal was heard on January 19, 2010, before Martin, Charbonneau and McDonald, JJ.A., of the Northwest Territories Court of Appeal. The following memorandum of judgment was filed by the court in Yellowknife, N.W.T., on May 27, 2010.