Culbert v. Island Health

In 2016, a Medical health Officer (MHO) imposed a condition on the Appellant’s licence which prevented her from managing the daycare or directing any aspect of the care. The Appellant did not seek reconsideration of that condition or seek to appeal it. In 2017, the MHO inspected the facility, which resulted in a subsequent risk assessment report that set out a “high” risk rating. That inspection led to an investigation, which required the Appellant to submit a health and safety plan. The plan, which the MHO approved, contained 4 terms. The Appellant appealed the MHO’s findings of regulatory non-compliance to the Board. The Board sought submissions from the parties on the preliminary issue of the Board’s jurisdiction over the appeal. The Chair of the Board ultimately held that the Board lacked jurisdiction to consider the appeal because the regulatory action taken by the MHO did not fall under section 29 of the Community Care and Assisted Living Act (CCALA). In particular, the Chair held that the Board did not have jurisdiction under section 29(2)(d) of the CCALA as there was no evidence that the Appellant or any other party to the proceeding was a person whose Early Childhood Educator certification was at issue. The Chair further held that the Board lacked jurisdiction under section 29(2)(b) of the CCALA because the health and safety plan had expired so could not constitute “summary action” under section 17 of the CCALA, and went further to note that even if the plan had still been in effect, not all supervisory or regulatory restraints imposed by an MHO amount to an action or summary action under section 17 of the CCALA.