April 30, 2015

Do “expert” panels need expert witnesses?

Administrative Law
Professional Regulation

Since one or more members of any professional discipline hearing panel are typically members of that profession, one might ask why such an “expert” panel must hear at all from colleagues about professional standards they already know. Since Panelists are expected to apply their professional knowledge, what’s so important about expert witnesses and standards?

The answer lies in the need for evidence to be both known to all parties, and subject to testing.

Discipline cases often turn on professional standards that set the line for minimally acceptable or competent conduct. Unless a standard is written, or is (if unwritten) uncontroversial to the point of being undisputed, a standard for any given situation must be proven. But by whatever evidence one side (whether regulator or respondent) may try to prove a standard, the other side may test that evidence. For the benefit of the parties, the public (including other members of the profession), and any reviewing or appellate courts, standards must be proven, rather than sprung from the unspoken and untested knowledge of panelists. Standards must arise by force of law (e.g., through a code of conduct forming a part of a regulator’s bylaws), or if unwritten, be based on the testimony of professionals who can speak to their credentials and their knowledge of professional practices. As witnesses, experts may be questioned on the grounds for their opinions, the limits of their knowledge, and how their opinions might change depending on the situation. Panels can interpret evidence, but they cannot create evidence; if they could, the parties would need opportunity to test the expertise and knowledge of the panelists, which would likely turn any hearing into an unseemly brawl. See Huerto v. College of Physicians and Surgeons (1994), 117 D.L.R. (4th) 129, [1994] S.J. No. 390 (Sask.Q.B.) at paras. 30-31 and 36, affirmed (1996), 133 D.L.R. (4th) 100, [1996] S.J. No. 56 (Sask.C.A.).

The need for evidence on the record becomes even greater where a panel includes “public” members who are not members of the profession, as such members must base their decisions on the evidence, and not on the “secret” and untested evidence of their fellow panelists. See Reddall v. College of Nurses (Ontario) (1983), 149 D.L.R. (3d) 60 (Ont.C.A.).

Lisa C. Fong