January 13, 2014

Adequacy of reasons and credibility

Administrative Law
Professional Regulation
Registration and Fitness

Where a hearing panel assesses the credibility of an applicant’s account of events, the panel may not need to set out a detailed credibility analysis if it demonstrates that it grappled with the substance of the credibility issue. This principle is illustrated by a recent court decision overturning a regulator’s internal review board, and restoring a credential committee’s panel decision allowing an applicant to enroll as an articled student, in Mohan v. Law Society of British Columbia, 2013 BCCA 489.

Background: Prior to law school, an undergraduate student received an academic suspension for cheating on a mathematics exam. Later, during law school, he also received a lengthy suspension for plagiarism. [3] In 2010, he sought to enrol with a regulator as an articled student. After the regulator scheduled a good character hearing, to address the applicant’s earlier academic suspensions, the regulator’s counsel acquired a copy of what appeared to be The applicant’s thesis paper for his bachelor’s degree- a paper that appeared to contain substantial plagiarism. The credentials committee adjourned the fitness hearing to permit the applicant to deal with the additional allegation. [8]

The fitness hearing: At the fitness hearing, the applicant said he never submitted the version of the thesis paper the regulator had procured for grading. Although he had planned to use that draft if he ran out of time to do original work, he later revised the draft, attributed sources, eliminated plagiarized material, and submitted a non-plagiarized thesis to the university. [10] He said he accidentally delivered the original version to his professor when asked to provide an archival copy. [11]

A majority of the panel concluded that the applicant was of good character and repute [12-13], and allowed him to enrol as an articled student; they decided that apart from suspicion and doubt, no evidence was inconsistent with Mr. Mohan’s evidence. [15-16] A dissenting panelist did not believe the applicant’s explanation. [17]

The Review Board decision: A seven-member Review Board set aside the panel’s order (and rejected the applicant) on the basis the panel made no credibility finding [20-22]; the Review Board concluded that the panel majority did not state they believed Mr. Mohan’s evidence or found it credible. [34] Further, even if the Hearing Panel had implicitly made a finding, they had not stated their reasons for such a conclusion “in accordance with the preponderance of probabilities in the case”. [24]

Reversal by the appellate court: The Review Board erred in concluding that the majority made no credibility finding; the court concluded that, “the majority of the Hearing Panel must be taken to have made a finding that the appellant was credible.” [40] Accordingly the Review Board owed, but failed to afford, deference to the majority’s conclusion on credibility. [35]

The majority listed the circumstantial evidence from which it could have concluded facts inconsistent with Mr. Mohan’s evidence, but decided the evidence was not sufficient for the majority to disbelieve the applicant’s account. [50] The majority was “entitled” (or in other words, it had some basis) to reject the circumstantial evidence as “only suspicion and doubt”. [51] The Review Panel failed to defer to the majority’s finding of credibility — the Review a Panel did not identify any error by the majority, apart from deciding wrongly that the majority made no credibility finding — and the court restored the panel’s decision to enroll the applicant as an articled student. [55]

Takeaway: Generally, reasons for judgment ought to be read as a whole, and need not set out every finding or conclusion made by a panel in the process of its arriving at the verdict. [37] As the Supreme Court of Canada held in R. v. R.E.M., 2008 SCC 51 – a case where the highest court addressed sufficiency of reasons relating to credibility [38] – a fact-finder must “seize” the substance of the issue, but it need not provide a detailed account of the conflicting evidence. The court in R.E.M. said that, “assessing credibility is a difficult and delicate matter that does not always lend it-self to precise and complete verbalization.” While reasons “may require at least some reference to the contradictory evidence,” the factors supporting or detracting from credibility “may be clear from the record,” and the ultimate question is if the reasons “show that the judge has seized the substance of the issue”. [38]

That said, the matter here involved the applicant’s version of events that did not directly conflict with the evidence. In more typical and complicated scenarios, such as where two witness accounts conflict, and believing one witness’s account means disbelieving the other, a hearing panel is always well served by explicitly addressing and resolving key conflicts in the evidence. This degree of effort may stave off assertions that the panel failed to consider relevant evidence.

Mohan v. Law Society of British Columbia, 2013 BCCA 489