November 22, 2011

Whose decision is it, the panel or its legal counsel?

Administrative Law
Professional Regulation

Deliberating and writing hearing decisions is a challenging task for hearing panels, especially if no panel members have adequate hearing experience or legal expertise.  Hearing panels that need legal assistance can and should retain their own lawyer, an action typically expressly provided for in a regulator’s enabling statute or bylaws, but normally available in any event as a power necessary to a panel carrying out statutory duties.  A lawyer who acts for a hearing panel is commonly referred to as an independent legal counsel.  Myriad legal issues arise respecting the advice an ILC may give to a hearing panel.  The recent case of  Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819 is helpful in setting out some of the  boundaries of the legal advice ILCs can properly provide to a hearing panel.

In Rudinskas, a registrant appealed on grounds including that the panel’s independent hearing counsel gave advice to the hearing panel that favoured the prosecutor, and became improperly involved in drafting the Discipline Committee’s decision.  The court noted that s.44 of the Regulated Health Professions Act (“RHPA”) provides that a panel obtaining legal advice shall make the advice known to the parties and the parties may make submissions with respect to the advice.  The court reviewed the record of the proceeding and noted that s. 44 RHPA had been followed. The fact of advice given by the independent legal counsel to the panel being consistent with the prosecutor’s argument on admissibility of certain evidence did not reveal any impropriety.

The record showed that the panel  announced its decision before the reasons were drafted, advising that written reasons for its decision would follow and evidence was tendered that the draft of the decision was written by a member of the Committee and sent to the independent counsel for comment.  The registrant argued that the independent legal counsel ‘s role in the preparation of the Committee’s decision should have been limited to “simply proofreading or correcting typographical errors”.   The court disagreed, and followed the Ontario Court of Appeal in Khan v. College of Physicians and Surgeons of Ontario (1992), 9 O.R. (3d) 641, deciding that independent legal counsel’s involvement in assisting a hearing panel with finalising a hearing decision was not limited to mere proofreading.  The key issue for independent legal counsel’s involvement is no interference with the Committee’s ultimate responsibility for making the decision and giving its reasons for the decision.

Note that in British Columbia, the Health Professions Act does not require that panels disclose the advice of ILCs to permit the parties’ counsel to make submissions on the advice.  In practice, this may mean that an independent legal counsel may not give advice on a substantive issue, but instead advise the panel to seek the parties’ submissions on that issue.

Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819

(CANLII link here.)