October 29, 2012

Minimum standards for addressing credibility in discipline reasons

Administrative Law
Professional Regulation

When a disciplinary panel finds against a registrant based on credibility, the panel needs to justify its credibility findings in its reasons. It needs to go beyond setting out mere conclusions, by explaining why the panel has rejected the registrant’s testimony. That explanation should also ideally go beyond findings based only on witness demeanour. Otherwise, the panel risks reversal on appeal or review, based on inadequacy of reasons.

The need for a panel to justify credibility findings in reasons was recently illustrated in College of Physicians and Surgeons of Ontario v. Noriega, 2012 ONSC 4084, where a panel found that a registrant sexually touched a young girl 30 years earlier. The court found that the panel’s reasons for this decision were “conclusory and insufficient to allow for meaningful appellate review.” The panel failed to analyze the registrant’s evidence, and failed to give reasons for why it did not believe his evidence. “Some analysis of and reasons for rejecting his evidence was required at a minimum.” [4] The panel also failed to explain how confusion on the part of the complainant as to what occurred during a pelvic examination could be “inconceivable,” given the possibility of confusion as to the nature of the examination, as evidenced by the evidence of nurses as to the steps they took to demystify the process. [8-9] The panel put emphasis – implicitly too much emphasis – on the complainant’s demeanour, and did not show any caution about the danger that a witness may be very certain about something and still be mistaken. [10-11] Accordingly the panel’s reasons failed to meet the minimum standard of demonstrating “justification, transparency and intelligibility.” [4]

The importance of adequate reasons, and the many details that reasons may need to contain, makes the development of a checklist for panel reasons, or access independent legal counsel, a sensible precaution.

College of Physicians and Surgeons of Ontario v. Noriega, 2012 ONSC 4084.