July 23, 2019

Whether committees are bound by their own procedure manuals

Administrative Law
Inquiry and Investigations
Professional Regulation

The extent to which registrants may rely on processes set out in inquiry and discipline committee process or procedural manuals was addressed by the Ontario Divisional Court, where a registrant sought to challenge disciplinary processes, based on a procedure set out in a “manual” of the ICRC and the Discipline Committee of Ontario’s College of Audiologists: Berge v. College of Audiologists and Speech Language Pathologists of Ontario, 2019 ONSC 3351.

The underlying discipline matter involved the use of the title “Doctor” by an audiologist with a doctorate degree, which proceeded to a decision by the Ontario Divisional Court (summarized here). After higher appellate courts refused to grant leave to appeal, the registrant asserted to the Divisional Court that counsel for the college had withheld a procedural manual — a manual followed by the investigation panel (ICRC) and the discipline committee — which allegedly required that the ICRC “pass a formal motion sending the matter to discipline and approve the words of the charge of professional misconduct in ‘Form 8’.” [24]

The registrant asserted that the College, in initially refusing to disclose the manual, “concealed the fact that the ICRC had not in fact enacted the formal motion required by its own procedural manual and had that been known, the Discipline Committee and the Divisional Court would have reached a different decision on whether or not the discipline hearing was properly constituted.” [27] In response, the College submitted that the ICRC had decided to refer the matter to discipline, and later approved the referral of specific charges. The formality of enacting a Form 8 motion did not result in any failure of natural justice. [28]

The court decided the evidence did not support a finding that the manual had been improperly withheld, but even if a material omission had occurred, the omission would not have altered the decision of the tribunal or the court. [29] “Non-compliance with the manual would be assessed – initially by the Tribunal – on a standard of procedural fairness, not strict compliance and there is no basis for supposing that the alleged non-compliance was procedurally unfair to the Applicant in the circumstances of this case.” [29]

More specifically, the court ruled that this was not a case involving a statutory precondition to jurisdiction. [30] Rather, “The ICRC referred the matter to the proper body and the proper body considered the matter.  The failure to use ‘Form 8’ was a failure to use the procedure the College had established for itself but, at least in this case, there was substantive compliance with the statutory requirements and there was no failure of natural justice.” [31]

The court ruled, essentially, that the inquiry committee was not bound to use the procedure that the College had established for itself, as long as the process actually used was procedurally fair.

Berge v. College of Audiologists and Speech Language Pathologists of Ontario, 2019 ONSC 3351

Lisa C. Fong and Michael Ng