May 16, 2011

Where a Discipline Committee is “contaminated” by exposure to an inquiry settlement process, judicial review will be premature if an unbiased panel might still be convened

Administrative Law
Inquiry and Investigations
Professional Regulation

Upon an inquiry committee referring a matter for discipline, prejudice from investigative delay does not make judicial review at that point less premature. Further, if the discipline committee (and the entire Board) have been exposed to a “mediation agreement” relating to the respondent, such that the members of the Discipline Committee might be precluded from hearing the matter, due to a reasonable apprehension of bias, a judicial review will still be premature if any possibility remains an unbiased discipline panel being convened. These aspects of prematurity were addressed by the Ontario court, which quashed an application for judicial review as premature in Haigh v. College of Denturists of Ontario, 2011 ONSC 2152, 2011 OJ No 1851 (Ont. Div. Ct.).

In that case, the Inquiries Complaints and Reports Committee (the “ICRC” or “Inquiry Committee”) of the College of Denturists of Ontario (“College”), began a lengthy investigation of a registrant in 2007, sparked by a complaint from a former employee. The investigation went for a year before the Inquiry Committee informed the registrant. After a further 16 months, the registrant asked the HPARB to take over the investigation due to delay, but the HPARB declined to intervene at that point. After yet another year, the Inquiry Committee referred the matter to the College’s Discipline Committee. [14-16]

The registrant applied for judicial review, alleging prejudice due to delay (e.g., as a result of the complainant dying during the three year investigation) [20] and no possibility the College could convene an unbiased Discipline Committee panel. [13 and 20]

The court found that while the registrant did raise serious issues, and indeed seemed to have a very strong case, [23] the Discipline Committee “has not had any opportunity to consider them” [23] and the registrant would have opportunity to raise his allegations and issues as part of the Discipline Committee hearing. [25 and 30] Furthermore, while many potential members of any Discipline Committee panel would be disqualified, the impossibility of the College convening an unbiased panel was merely speculative [26] – unlike a situation where a particular adjudicator has already been named. [29] The registrant would have a right of appeal of any Discipline Committee finding. [30]

The court confirmed a judicial review while administrative proceedings are ongoing will be premature except when exceptional circumstances are demonstrated, e.g., the tribunal clearly lacks jurisdiction to proceed, the interlocutory decision determines a particular issue, or a hearing going forward would result in an unfair hearing. [28]

Haigh v. College of Denturists of Ontario, 2011 ONSC 2152, 2011 OJ No 1851 (Ont. Div. Ct.)