January 19, 2011

13 Ways Hearing Panels Can Lose Jurisdiction by Appearing Biased: Part 3

Administrative Law
Professional Regulation

We are continuing with our journey of outlining thirteen ways by which a hearing panel can lose its jurisdiction based on actions that make it appear biased. In the first week, we detailed methods 1, 2 and 3, which focused on exhibiting hostility and thereby appearing biased. Last week, we discussed methods 4, 5 and 6, which focused on losing jurisdiction through prejudgment. This week, we outline methods 7, 8 and 9, which focus on involvement by the administrative arm of the regulator and counsel.

Here are three examples of cases where the panels’ decisions were set aside based on involvement by, or assistance from, the regulator’s administrative staff, independent legal counsel, or prosecution counsel.

7. Permitting the Registrar or the administrative arm of the regulator draft the decision

Misra v. College of Physicians and Surgeons of Saskatchewan, [1988] S.J. No. 342 (C.A.). Misra’s licence to practice medicine was suspended for about 5 years pending disciplinary proceedings based on criminal charges of trafficking in narcotics and procuring a person to assault and cause bodily harm. Though Misra was convicted of the offences, the charges were stayed on appeal based on unreasonable delay. When the appeal was allowed, Misra’s licence was reinstated only to be temporarily suspended again about 2 weeks later pending the resolution of disciplinary proceedings for professional misconduct based on the same facts that gave rise to the criminal charges. Before the hearing suspending Misra’s licence for the second time, Misra overheard the Registrar “dictating a draft resolution in terms identical to the ultimate resolution” adopted by the Executive Committee of Council to suspend Misra. The lower Court dismissed Misra’s application for certiorari and prohibition, but it was allowed by the Court of Appeal. Based on what Misra overheard, the Court of Appeal found a reasonable apprehension of bias by the Council existed. Given the delay, the previous suspension, and the reasonable apprehension of bias, natural justice had been denied. Ultimately, the Court of Appeal granted the application for certiorari to quash the temporary suspension and prohibited the College from bringing further charges based on the facts at hand.

8. Permitting independent legal counsel to actively participate in the hearing

Adair v. Ontario (Health Disciplines Board), 15 O.R. (3d) 705 (Div. Ct.). The Board conducted a review of a decision by the Complaints Committee of the College of Nurses of Ontario regarding the conduct of 5 nurses who engaged in an illegal strike. The Board retained independent legal counsel (“ILC”) to play an advisory role in the review. The ILC questioned the nurses’ counsel and made it known that he was of the view that the nurses conduct was not only illegal but that it amounted to “dishonourable, unprofessional and disgraceful” conduct. Ultimately, the Board referred the matter back to the College with instructions to send the matter to the College’s Discipline Committee based partially on the illegal strike, even though the Board was not interested in this aspect of the matter before the ILC expressed his views. The Court found that a “substantial and material portion of the reasons of the board [were] in the very words of the [ILC] to the board.” The Court held that the Board lost its jurisdiction, finding that the appearance existed that the Board had abandoned its decision-making responsibility to the ILC, thereby creating the appearance that it failed to treat the nurses fairly.

9. Permitting prosecution counsel to assist in writing reasons and select cases to support the reasons

Despres v. New Brunswick Lands Surveyors Association, [1992] N.B.J. No. 710. The Association’s Discipline Committee found Despres guilty of professional misconduct in relation to a land survey certificate that failed to show two easements affecting the property at issue. The lower court dismissed the appeal by Despres but the Court of Appeal allowed it, finding a reasonable likelihood of bias existed. The Association’s counsel, Yerxa, attended the Discipline Committee hearing on behalf of the Association and conducted its case. Subsequently, after the Committee reached its decision, it called Yerxa to assist in wording the decision; in other words, Yerxa acted as an adviser to the Committee after arguing that Despres was guilty of the complaint against him.

Law Society of Upper Canada v. Hicks, [2006] L.S.D.D. No. 3 (Ont.). In relation to allegations of professional misconduct, the Society’s Hearing Panel found Hicks ungovernable and ordered him to be disbarred. After the Panel made a finding of ungovernability, it instructed the Society’s counsel to use her discretion and provide the Panel with cases where ungovernability was found. In allowing the appeal by Hicks in part, the Society’s Appeal Panel held the Hearing Panel’s reasons failed to meet the standard of reasonableness and it erred in law in enlisting the aid of counsel. By asking counsel to provide cases after a decision on the issue had been made and the other side could no longer give any meaningful input, the perception that was left was that the Society assisted the Panel in writing its reasons.

Next week we will cover methods 10 through13 for a hearing panel losing jurisdiction based on an appearance of bias, including adjudicating beyond the scope of the claim and unreasonably refusing to admit evidence.