January 28, 2011

13 Ways Hearing Panels Can Lose Jurisdiction by Appearing Biased: Part 4

Administrative Law
Professional Regulation

We are on the last stretch of our exploring thirteen ways a hearing panel can lose jurisdiction based on actions that appear biased. In the first week, we discussed methods 1, 2 and 3, which focused on exhibiting hostility. In the second week, we discussed methods 4, 5 and 6, which focused on prejudgment. In the third week, we discussed methods 7, 8 and 9, which focused on involvement by the regulator’s administrative staff or counsel.

This week, in the last of our series, we discuss methods 10 through 13, which cover how an appearance of bias may arise from the persons you allow before you, what evidence you may refuse to hear, the issues you decide to address that are not formally before you, and the people with whom you consult while making a decision.

10. Hear from prosecution counsel who trained you.

Bailey v. Saskatchewan Registered Nurses’ Association (1998), 167 Sask.R. 232, 11 Admin. L.R. (3d) 243, [1998] S.J. No. 332 (Sask. Q.B.). Three registrants were found guilty by a disciplinary committee of certain charges. The nurses alleged (among other grounds) that legal counsel for the Association also participated in joint training of the investigation and discipline committees. The court found (as its final decision among a number of judgments in the case) that while the panel had its own legal counsel, and while the panel was not overly familiar with the legal counsel who presented the case against the registrants, that counsel was nonetheless involved in the joint training of the investigation and discipline committees, was probably involved in orientation of persons appointed to the discipline committee, and appeared in court as counsel for the discipline committee. [184] The court concluded a reasonable apprehension of bias: “I would, in the circumstances, be reluctant to conclude that a ‘well-informed person, viewing the matter realistically and practically – and having thought the matter through would [not] have a reasonable apprehension of bias in a substantial number of cases’.” [184] The court ordered that the Association not proceed any further with the charges, on the basis that the defects could not be cured by a subsequent decision of a discipline committee of the Association. [192-194]

11. Refuse to consider relevant evidence.

Bernstein v. College of Physicians & Surgeons (Ontario) (1977), 15 O.R. (2d) 447 (H.C.J. – Div. Ct.). The College’s Discipline Committee found Bernstein guilty of professional misconduct as a result of alleged sexual relations with a complainant-patient, and suspended him for 12 months. In arriving at its decision, the Committee disregarded the complainant’s two diametrically irreconcilable affidavits and her psychiatric history. The Court allowed the appeal. Although the court ultimately addressed the case in terms of standard of proof, Justice Garrett noted that a lengthy cross-examination of the registrant’s brother (concerning his changing his name from Bernstein to Berns) introduced “overtones which I do not like at all,” and was apparently done for “no possible reason… than to create, if not prejudice, an atmosphere of prejudice against the doctor and his witness.” Ultimately, the court found that, along with other errors, the Committee failed to properly assess evidence which showed the complainant’s allegations were uncorroborated. The Court particularly noted that the complainant had a troubled history consisting of over-sexualizing her relationships with men, that she had admitted to falsifying information such as the existence of a diary documenting her affair with Bernstein that she claimed had been stolen, and that she had sworn two affidavits, the first of which stated she had a sexual relationship with Bernstein and the second of which renounced the first affidavit.

This case has been cited by Ontario Court of Appeal has being an instance where “aggressive cross-examination or improper hostile comments by a Discipline Committee member created an atmosphere of prejudice and raised the reasonable apprehension of bias or lack of impartiality.” Milstein and Ontario College of Pharmacy (1978), 20 O.R. (2d) 283, [1978] O.J. No. 3434 (Ont.C.A.)

12. Adjudicate beyond the scope of the matter formally before you.

Grochowski v. Association of Architects (Alberta) (1996), 38 Admin. L.R. (2d) 132 (Alta. C.A.). The Association’s Complaint Review Committee found against a member regarding one of several complaints of “conduct unbecoming” brought against him. On appeal to the Association’s Council, the Council made findings against the member on issues not under appeal, and on one matter for which the member was never charged. The Court of Appeal expressed that “not only did the Council exceed its jurisdiction but it exceeded it in such a way that it must be said that there would be a reasonable apprehension of bias… in connection with any findings that the Council made within its jurisdiction.” [5] The Court affirmed the original decision of the Complaint Review Committee, and solicitor-client costs were awarded against the Council, as the position taken by the Council before the court in asserting a jurisdiction to hear and decide issues not properly before it was “indefensibly unreasonable”.

13. Let yourself appear pressured or swayed by others within your institution

Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952. A recipient of social aid sought to be reimbursed by the Commission of Social Affairs for the cost of dressings and bandages. The Commission denied reimbursement, and the recipient appealed. Two commissioners heard the appeal, which addressed the definition of “medical equipment” under a regulation. Two commissioners wrote a draft a decision favouring the recipient, and sent it to legal counsel for verification, but as legal counsel was on vacation, the Commission’s president reviewed the draft. The president put forth an opposing interpretation, and the dispute on the legal point was discussed at a “consensus table,” where a majority of members disagreed with the position in the draft decision. One commissioner changed her mind. Due to the resulting conflict between the two commissioners, the dispute was submitted to the Commission’s president, who expressed the same view he expressed before. The Commission accordingly denied the recipient’s appeal.

The Superior Court found that the Commission’s decision contravened the rules of natural justice. The Court of Appeal agreed, as did the Supreme Court of Canada.

In terms of fact-finding concerning the decision process, the Supreme Court of Canada clarified that the principle of deliberative secrecy was subject to the fundamental right of a party “to know that the decision was made in accordance with the rules of natural justice” [26]. “It is of the very nature of judicial review to examine inter alia the decision maker’s decision-making process.” [27] Accordingly, the Commission secretary could be questioned about the process by which the Commission dealt with draft decisions.

The court said that generally, the process of assisting decision makers by informing them of precedents, which process the Commission developed to ensure consistency for the many decisions of the Commission – “should not impede the ability of the members of an administrative tribunal to decide as they see fit nor should they create an appearance of bias in the minds of litigants.” [33] The court said that a consultative process designed to promote adjudicative coherence could be acceptable, “provided this process does not involve an interference with the freedom of decision makers to decide according to their consciences and opinions. The process must also… not be designed so as to create an appearance of bias or lack of independence.” [37]

In this case, the decision involved discussions that were in practice compulsory, and in actual fact, constraint outweighed influence. [40] Additionally, the rules for “plenary hearings” created an appearance of bias, as a plenary meeting could be called not only by the decision-makers, but by the president of the Commission, [41] which was itself a constraint on decision makers: “…they may not feel free to refuse to submit a question to the “consensus table” when the president suggests this.” [43] Mandatory consultation could create an impression of bias. [44] Other factors, such as the keeping of minutes of plenary meetings, also created an appearance of “systemic pressure”. [46]