HPRB hearings: oral versus written hearings

The need for an oral hearing before the Health Professions Review Board (the “HPRB”), where requested by an applicant, was recently confirmed by the HPRB in a recent decision: No. 2011-HPA-0009(a). In that matter, an applicant seeking registration with the College of Traditional Chinese Medicine Practitioners and Acupuncturists (the “College”) requested an oral review hearing (under Rule 32 of the HPRB Rules) as she felt she would be better able to express herself in an oral hearing, especially as she had successfully resolved a prior dispute with the College with a face-to-face meeting. The College submitted the hearing could easily proceed by way of written submissions, especially considering the “interests of proportionality and cost.” [3]

The Review Board found it had discretion as to the format of the hearing, under s.36 of the Administrative Tribunals Act. HPRB Rule 43(2) laid out an oral hearing as merely a default position in the absence of a better alternative, rather than as the standard. [6] The HPRB found, however, in the circumstances, that despite the cost-effectiveness and ease of a written hearing, the Applicant’s conclusion she would be better able to present her case in an oral hearing, in a matter which concerned “her livelihood and career,” was the most important factor: “[i]t is essential that she sees the opportunity given to her to present her case as equally fair and full as that given to the College.” [9]

While the panel’s emphasis that an oral hearing is merely a default position rather than the standard indicates the HPRB may in some cases require a hearing to be in some format other than an oral hearing, the substance of the decision points, nonetheless, quite strongly to the preferences of an applicant being a determinative factor. If, for example, a complainant were to seek an oral hearing on the basis oral argument was vital to his or her opportunity to present a case, little could reasonably be expected to overcome such an assessment, since the “fair and full opportunity” test appears to be based on an applicant’s subjective view. Similarly, if an applicant were to request a written hearing, citing prejudice relating to the applicant having to appear in person and proceeding orally (due perhaps to travel costs, or to language issues, or to a lack of representation), one might doubt a College could ever establish sufficient prejudice, in being required to proceed in writing, to overcome such a request.

Applicant v. College of Traditional Chinese Medicine Practitioners and Acupuncturists, HPRB Decision No. 2011-HPA-0009(a)