January 4, 2011

13 Ways Hearing Panels Can Lose Jurisdiction by Appearing Biased: Part 1

Administrative Law
Professional Regulation

There are a multitude of ways a disciplinary hearing panel can lose its jurisdiction, including failing to give a registrant a fair opportunity to be heard, failing to maintain impartiality, and making unreasonable decisions.  This month, our blog will introduce thirteen ways a panel can lose its jurisdiction based on actions that make it appear biased against the registrant.

Hearings can be difficult, and emotions can run high for all those involved, especially for the registrant who is before a hearing panel.  Being an adjudicator means exhibiting impartiality at all times, regardless of the intensity in the hearing room.  This doesn’t mean that adjudicators cannot be firm and provide direction in managing the hearing process.  But it does mean that adjudicators need to ensure they are not exhibiting hostility towards a party or a witness for a party, not taking on the role of a party’s counsel, and advocating for one party.  Here are three ways to invalidate your decision by exhibiting hostility.

1. Making hostile comments about the registrant

Milstein v. College of Pharmacy et al. (1978), 87 D.L.R. (3d) 392 (Ont. C.A.). At the hearing, members of the College’s Discipline Committee made several comments indicative of their annoyance and dislike of the registrant, Milstein. For example, one of the committee members said, “… I take umbrage with you, with your attitude that you have the colossal nerve to sit there and hassle at these people…who have a very distasteful job to discipline people like you…just who do you think you are?” Though the Court of Appeal affirmed the conviction, the court found the penalty, for which the committee had given no reasons, had been increased by reason of the committee’s annoyance at the member’s cavalier attitude and personality [25], and accordingly the committee gave weight to the member’s attitude in an improper manner [26]. The court quashed the penalty and remitted the matter to the Discipline Committee [27].

2. Taking on the role of the prosecutor by excessive and irrelevant questioning of the registrant

Solicitor “X” v. Nova Scotia Barristers’ Society (1998), 19 Admin. L.R. (3d) 174 (N.S.C.A.). At the hearing, the Society’s Disciplinary Panel extensively questioned “X” about unrelated matters, such as his other business ventures and personal information about his partners in those ventures. 75 pages of the transcript from the hearing consisted of questions put to “X” by the Panel, compared to 26 pages from the examination and 27 from the cross-examination. The panel also insinuated bad faith dealings by the member. The Court of Appeal found a reasonable apprehension of bias; the extent, manner, and substance of the questioning “brought the adjudicators into the arena, with the demeanor of prosecutors” [21] .The reasonable apprehension of bias could not be validated by the later decision of the tribunal.

3. Questioning the registrant’s witnesses in a hostile manner or a manner which assumes guilt

Golomb v. College of Physicians & Surgeons (Ontario) (1976), 12 O.R. (2d) 73 (H.C.J. – Div. Ct.). At the hearing before the College’s Discipline Committee, the registrant Golomb had called a Minister as a character witness. One of the members of the Committee attacked the veracity of the Minister’s testimony stating to the witness that the evidence of Ministers in general was of little value. The Court of Appeal found that at least a reasonable apprehension of bias existed. The Court also found that the nature of the questioning from the Committee was indicative of the presumption that Golomb was guilty of the charge.

Next week we will cover methods 4 ,5 and 6 for a hearing panel to lose jurisdiction based on an appearance of bias.