March 17, 2011

Bias: The need to maintain Discipline Committee impartiality and independence from regulatory staff

Administrative Law
Professional Regulation

Professional disciplinary proceedings are quasi-judicial fora in which the impartiality of decision-makers is a vital and necessary factor. Where a registrant can show this impartiality has been significantly compromised, proceedings against them can be permanently quashed.  In Lim v. Assn. of Professional Engineers of Ontario, 2011 ONSC 106 (Divisional Court) [February 8, 2011], a registrant successfully obtained this powerful remedy. The Lim case illustrates the importance of a regulatory body maintaining the independence of its discipline committee from the staff charged with providing it with logistical support.

The Lim case arose out of two complaints made against an engineer and his corporate business. The first of these complaints was originally to be heard in December 2007. Due, however, to scheduling conflicts between Committee members and the Registrant, the Committee imposed a later date without consulting the Registrant as to his availability. [15] The Registrant had to bring a motion to adjourn the proceedings, on the ground he would be out of the country. [16] This motion succeeded, and the hearings ultimately did not begin until October of 2008. [18] Although this first complaint was dismissed after a full hearing, the scheduling issues would prove to have a significant bearing on the hearing of the second complaint.

When attempting to set a date for a hearing of the second complaint, counsel for the registrant encountered resistance from the Association’s Manager of Legal and Regulatory Affairs, in a form that the Court would ultimately describe as “astonishing” and through correspondence and acts which the Court described as “demonstrating an overbearing, uncooperative and unprofessional attitude” , “showing ignorance of the limits of his role and authority” and exhibiting a “lack of appreciation of the need for absolute independence in the Discipline Committee”. [31 and 91]

Counsel for both parties sought to be consulted on hearing dates and provided available dates to the Manager. The Manager responded with correspondence to counsel for both parties to the hearing, asserting that any future attempts to reschedule hearings would need to be accompanied by “compelling evidence” of unavailability and that unavailability due to other scheduled hearings, vacations or excursions or other “disingenuous excuses” without compelling evidence would be rejected by the discipline committee. [40] The Manager’s correspondence led to an acrimonious exchange of correspondence between the Manger and registrant’s counsel.  Ultimately, the Manager’s behaviour proved to be so questionable as to cause counsel for the Association to write to the Chair of the Discipline Committee asserting that the Manager’s behaviour usurped the jurisdiction of the Disciplinary Committee and calling the Manager’s language  “inappropriate and disrespectful” to both counsel. [48]

Counsel for the registrant brought a preliminary application to stay the hearing on grounds including the behaviour of the Association’s administrative staff. In response, the Manager appeared at the preliminary application, on behalf of the Association’s administrative staff, seeking inter alia, status as a party and for the staff to be recognized as its own tribunal, all of which was rejected by the member of the Disciplinary Committee hearing the application.

Although the Court noted that the Manager’s behaviour was bizarre and troubling, the case was ultimately decided on the basis of the Chair of the Discipline Committee adopting the Manager’s views as his own. In particular, the Chair went so far as to overrule the directions of its own member that the Association’s administrative staff not be joined as a party. [75] This issue, in and of itself, raised serious questions with respect to impartiality; as the Court observed, the Chair thereby “failed to appreciate the function and role of staff as distinct from that of the Discipline Committee.” [106] On this basis, the Court granted the relief sought, and permanently quashed proceedings against the registrant.

Lim v. Assn. of Professional Engineers of Ontario, 2011 ONSC 106 (Divisional Court) [February 8, 2011]