PROCESS: THE DISCIPLINARY HEARING
Kenneth Glasner, Q.C.
The purpose of this paper is to bring to the reader’s attention, the development of the law of natural justice as exhibited in recent decisions in our Courts. These changes include but are not limited to:
The right to a hearing without unreasonable delay;
Knowing the case to be met – disclosure;
The test for bias – “reasonable apprehension”;
The role of legal counsel in disciplinary hearings;
Procedural fairness for the complainant;
The investigative process;
The application of “natural justice” as it was viewed 20 years ago, was recently commented upon by the Chief Justice of our Province in open Court in the Kaburda decision. He indicated his concern with the presentation of case law of some 20 years ago with respect to natural justice, in view of the administrative law climate of today.
The genesis of the obligation with respect to self governing bodies in the disciplinary process commences, in most cases, at the time a written complaint is lodged. At that time, the investigators, not unlike lawyers, resemble historians and thus are largely involved in the process of re-creating historical events. The gathering of this evidence occupies a substantial amount of time, not only for the prosecutor, but also for counsel acting on behalf of the party against whom the complaint is launched.
The self governing body is required to identify, select and marshal the evidence in an organized fashion, while at all times being cognizant of the duty of fairness.
James T. Casey, The Regulation of Professions in Canada (Carswell), sets out at Chapter 7, on page 7-1, the historical perspective of the general duty of fairness.
A professional tribunal considering allegations of professional misconduct has a duty to conduct its proceedings in accordance with the requirements of natural justice. This principle was established in Canada in 1879 in the McConnell case. In this case, an individual has been imprisoned for manslaughter. After completing his sentence he applied to the College of Physicians and Surgeons for registration and was duly admitted and placed upon the register. At the time of his application for registration, the secretary of the College was neither aware of his conviction, nor was he asked any related questions. Subsequently, on ascertaining that fact and without notice to McConnell, the secretary erased his name from the register. The Ontario Court of Appeal stated:
But a more important principle was violated by the proceeding of the council. They took this step, so destructive of all the applicant’s prospects in life and of his rights and status of a professional man, without the slightest notice to him, without hearing him or giving him any opportunity of defending himself, and they did it with such secrecy that he was not aware of the fact for several years after.
Even in 1879, the Court concluded that the law was very clear on the point that McConnell could not be removed from the register without notice and the opportunity of being heard.
At the same time the self governing body (being regulatory in nature) cannot advocate on behalf of the interest of it’s members, but must approach the issue from the perspective of public interest. In doing so it must at all times be cognizant of the professional’s rights.
The issue then is to deal with the prosecution of an appropriate complaint while still maintaining the duty to apply the concept of natural justice, as we know it today. In many instances, the complaint (or problem) may resolve itself through alternative processes within a alternative dispute resolution system.
There are, I respectively suggest, two cases which illustrate judicial concern.
As Lord Hewart stated in The King v. Sussex JusticesEx parte McCarthy, ,
1 K.B. 256 at p.259:But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
Lord Denning said in Lee v. The Showmen’s Guild of Great Britain ,
2 Q.B. 329 at p.343:It is very difficult with domestic tribunals which sit in judgment on the members of a trade or profession. They wield powers as greatas, if not greater than, any exercised by the courts of law. They can deprive a man of his livelihood. They can ban him from the trade in which he has spent his life and which is the only trade he knows. They are usually empowered to do this for any breach of their rules, which, be it noted, are rules which they impose and which he has no real opportunity of accepting or rejecting. In theory their powers are based on contract. The man is supposed to have contracted to give them these great powers; but in practice he has no choice in the matter. If he is to engage in the trade, he has to submit to the rules promulgated by the committee. Is such a tribunal to be treated by these courts on the same footing as a social club? I say no. A man’s right to work is just as important to him as, if not more important than, his rights of property. These courts intervene every day to protect rights of property. They must also intervene to protect the right to work.
Much of the case law that we deal with today stems, directly or indirectly, from the cases quoted.
STANDARDS OF PROOF
In dealing with the standards of proof, the case law is replete with the standards that must be adopted in the prosecution of a professional.
In Hanson v. College of Teachers (British Columbia) 87 B.C.L.R. (2d) 86 at p. 95, the British Columbia Court of Appeal cites and adopts Chambers Judge’s reasons with respect to the standard of proof.
Both counsel were in agreement that the correct standard of proof where a professional person is being tried by his or her professional body in disciplinary proceedings whose effect may be to deprive that person of his or her right to practice, it is a standard less than the reasonable doubt test of criminal law but higher than the balance of probabilities of civil cases. It has been expressed as proof by evidence cogent enough to make it safe to uphold the findings with all their consequences for the professional person’s career and status in the community: see Hirt v. College of Physicians & Surgeons (British Columbia) (1985), 63 B.C.L.R. 185 (S.C.) And Jory v. College of Physicians & Surgeons (unreported), December 13, 1985, Vancouver No. A850601 (B.C.S.C.).
Bhandari v. Advocates Committee,  3 All E.R. 742 (P.C.), at pp. 744-45.
C. (J.) v. College of Physicians and Surgeons (British Columbia) (1988), 31 B.C.L.R. (2d) 383 (S.C.) At pp. 398-99.
ALLEGATIONS OF BIAS
On February 12, 1997, the Chief Justice of British Columbia gave oral reasons in the Kaburda v. College of Dental Surgeons of British Columbia (1997) 30, B.C.L.R. (3d), 345. This case dealt in part with the fact that the counsel for the College was not only acting for the College in a disciplinary matter against Dr. Kaburda, but also it was acting for one of the litigants in an action in which Dr. Kaburda was a party. While finding that there was no mala fides against the College’s firm, the Court nonetheless adopted the Chambers Judge’s comments finding that:
Once there has been a finding of a reasonable apprehension of bias, it is unnecessary to inquire whether the result might have been the same but for the unfairness.
The British Columbia Court of Appeal continued by stating:
It follows, in my view, that the proceedings on these complaints to this date must be set aside
The issue of awarding costs was explored by Mr. Justice Low in Kamani v. The College of Dental Surgeons of British Columbia, unreported, June 13, 1994, Vancouver Registry No. A930189.
In considering the awarding of costs, on a split victory Mr. Justice Low states at page 18 and 19 of his judgment:
There is a related consideration with respect to the College’s decision to bring charges. It should have to do so at some risk of not recovering its costs and at some risk of having to pay costs. If that risk did not exist, there would be a greater potential harm that dentists charged would be deterred from defending for fear of incurring substantial, even financially crippling, unrecoverable legal expenses and perhaps having to pay the College’s full costs even if successful. Given the very high expenses now incurred in the investigation and hearing of complaints against members of professional bodies, successful or partially successful assertions of innocence should result in a fair and reasonably predictable full or partial recovery of costs.
(See also Dr. Roberts v. The College of Dental Surgeons of British Columbia, May 13, 1997, unreported, Vancouver Registry No. A950735, Tysoe J.)
PROCEDURES FOR CONDUCTING AN UNPROFESSIONAL CONDUCT INVESTIGATION
I have grouped the Stefani and Patton decisions in which our Court dealt specifically with how not to conduct an investigation.
Dr. Ralph E. Stefani v. The College of Dental Surgeons of British Columbia, (1997) 27, B.C.L.R., (3d) 34. Warren C.J., sets out an excellent analysis on the procedural steps which a regulatory body must take in conducting investigations into complaints against professionals.
Prior to the Stefani decision, Mr. Justice Thackray made comment in, In The Matter of the Dentists Act and Jimmie J. Walker, unreported, December 12, 1994, Vancouver Registry No. A941004. of the failure of the regulatory body to give proper notice. His Lordship stated:
The doctor was not there and he had every right to be given the opportunity to be so. The College, particularly in having a lawyer on the Panel, should have known that. If they did not know that then they were negligent in not knowing it or they were irresponsible in overlooking it.
The Panel exaggerated its error by suggesting it would hear it because it might not impact in any event on what had already been heard. This makes it appear that the Panel knew they should not hear the evidence but chose convenience over proper procedure.
Doctor Robert E. Patton v. The College of Dental Surgeons of British Columbia, unreported, May 9, 1997, Vancouver Registry No. A963157.
There are two decisions in the Patton case. Firstly, on January 24, 1996 the Honourable Mr. Justice Cohen ruled in favour of Dr. Patton when Dr. Patton appealed the decision of the College made pursuant to section 39.6 (1)(b) to suspend his registration.
In his decision Mr. Justice Cohen quoted from The Regulation of Professions in Canada, when he said at page 25:
In his text, The Regulation of Professions in Canada by James T. Casey, the author deals with interim suspensions and describes this power in the governing statutes for professions as a draconian power because the professional’s ability to practice his or her profession and to earn a livelihood has been suspended with the possibility of permanent damage to his or her reputation without there being a finding of any misconduct.
“On May 9, 1997, Mr. Justice Fraser in Patton, made a number of comments, some of which I include for your consideration.
Robert Patton must surely rue the day–28th January 1994–when he wrote a letter. Sending it triggered a chain of events that threatens his entitlement to continue to practise in his profession.
Dr. Patton applies, under the Judicial Review Procedure Act, for an order in the nature of prohibition, extending not only to the proposed inquiry, but also as to further investigation by the College and as to the weekly inspections (“audits”) conducted on his practice for last two years or so. These audits cost him $500 each.
What is meant by a “Practice Review” seems to be an examination of a member’s patient files (a “chart review”) by representatives of the College, sometimes (or perhaps always) followed by a meeting of the member and these representatives. Dr. Evelyn McNee, a Deputy Registrar of the College, explained the terminology in a letter to Dr. Patton of 28th June 1995. But I cannot find any basis in the Act or the Rules for a chart review. Nor could Warren, J., as appears from his decision of 16th August 1996 in Stefani v The College of Dental Surgeons (A950239 Vancouver Registry)at paragraph 22.
The letter of Dr. Turner concluded with this statement:
“I can see no need for the involvement of the College any further. I feel there are no reasonable and rational grounds for concerns relating to the quality of care you were providing your patients, the appropriateness of your care, or the manner in which you provide those services.”
This letter was based on the report prepared by Dr. Croft. Dr. Croft now says that Dr. Turner’s reporting letter, which I have just quoted, was inaccurate. This is difficult to accept, given that other such reporting letters from Dr. Turner tend to repeat precisely what is in the report, only changing the third-person references in it to second-person ones (e.g., changing “he” to “you”). As it happens, Dr. Croft’s 1993 report cannot be found.
(Page 6 – 7)
Drs. Croft and Cheung also recommended a Practice Review. This time Dr. Patton agreed, despite having received legal advice not to. The Practice Review panel ended up receiving 92 charts, of which 22 had been selected by Dr. Patton, 50 supplied by him according to criteria laid down by the College based on the use of general anesthesia, and 20 selected by Dr. Rosamund Harrison, on behalf of the College. The written instructions given to Dr. Harrison were entirely nonspecific, save that the charts selected should involve treatment in the previous two or three years. But Dr. Harrison, it seems to me, must have had something else guiding her selection, since it took her something like two hours to do it. According to Dr. Patton, it only took ten minutes for Dr. Croft and him to select 20 files in 1993.
The analysis here involves my discretion. The decision of Esson, C.J.S.C. in Hammond v Association of British Columbia Professional Foresters (1991) 47 Admin. L.R. 20 confirms, if confirmation was needed, that the remedies of judicial review can, in some circumstances, extend to the investigatory stage of discipline proceedings. The occasion for a court to intrude at that stage should be scarce, but nonetheless will sometimes be necessary.
It is important to allow self-regulating professional bodies, such as the College here, to do their duty. It must be recognized, as well, that the members of these various bodies, while they may receive some guidance as to concepts of fairness, are doing this work on the side, on their own time and, typically, without pay. They are not expected to be sophisticated about legal ideas of fairness.
This is where the Court comes in. The supervisory jurisdiction of the Court is in place to guard the concept that things must be done fairly. When a Court sets aside something done by a body such as the College, it does so from the experience of a professional lifetime considering issues of fairness.
I agree with the analysis of Warren, J. In Stefani that the disciplinary process of the College of Dental Surgeons is entirely complaint-driven.
I imagine that Dr. Patton would, if asked, characterize his treatment philosophy as conservative and compare it favourably with the more extensive treatment and more frequent use of x-rays endorsed by his critics.
Nonetheless, many of his peers see his ways as inadequate. I see no reason to characterize their actions as springing from anything other than a wish to protect the public. I imagine that they see Dr. Patton as someone who can sustain a high-volume practice because of sloppy procedures. The converse analysis, of course, would be that it is the critics of Dr. Patton who advocate the more extensive procedures which generate more fees.
(Page 11 – 12)
My conclusion is that so much of the evidence to be presented to the Inquiry has been assembled illegitimately that the relief sought by Dr. Patton must be granted. The taint extends to the three complaints.
Dr. Ralph E. Stefani v. The College of Dental Surgeons of British Columbia
Glenn A. Urquhart, Q.C., as Editor-in-Chief for Professional Liability and Discipline Litigation, volume III, No. 3 discusses the Stefanidecision. Referring to Warren J., Glenn Urquhart says:
In summary, he found:
that the initial stage of the proceedings was tainted because there was an unwritten complaint, but the Dentists’ Act required a written complaint;
the Professional Review Committee failed to submit its report as required by the Dentists’ Act within 15 days after completing its review;
no copy of the actual report was furnished to Dr. Stefani, merely a summary. This issue went to the question of fairness and natural justice;
the Review Committee acted upon an oral complaint which was not supported by anything in writing;
the rules do not permit fishing expeditions, yet the College attempted to improperly conduct an investigation without having a written complaint;
Dr. Stefani at his hearing ought to have been entitled to be represented by counsel. This refusal by the College amounted to a breach of natural justice. This was so because refusal to permit counsel to act and to adduce evidence violated Dr. Stefani’s right to be heard, even though the Committee was only functioning in an investigative capacity. The refusal of the Commitee to permit the introduction of evidence as to Dr. Stefani’s dental treatment was improper, and the failure to allow Dr. Stefani to be represented by counsel was contrary to Section 50of the Dentist’ Act;
the Practice Review was improper, as was the three-person inspection of March 8, 1994. The Dentists’ Actpermitted only permitted one investigator while the College sent in three; and
Delay: the Court also found that because of the 16-month delay and the subsequent delays in dealing with the complaints that were made against Dr. Stefani, and, relying on an earlier decision in Brown v. The Association of Professional Engineers & Geoscientis (British Columbia), that the delay resulted in an unfairness and denial of natural justice.The case is an excellent detailed analysis of procedural steps which a regulatory body must take in conducting investigations into complaints against professionals.
On the matter dealing with delay, representation, and the investigative process, the tenor of his Lordship’s decision is reflected in some of his comments:
I conclude therefore that the deputy registrar and the Review Committee acted without jurisdiction and that there was inordinate delay resulting in an abuse of process and a denial of natural justice.
Mr. Justice Warren also found that a dentist is entitled to have, and be represented by legal counsel at a Peer Review – a contrary position taken by the College for some considerable time.
As for the Committee’s refusal to allow the petitioner to be represented by his counsel at the hearing, this was contrary to the express requirement of sec. 50 of the Act. Dr. Stefani was most certainly a person “whose status or conduct” was the subject of an inquiry. As such he was entitled to be represented by his counsel.
Mr. Justice Warren continues on page 35 by saying:
Further, I find that the deputy registrar exceeded his jurisdiction when he wrote to the petitioner in order to implement a “practice review”, a process not known in the Act or the rules. Consequently his referral to the Regulatory Quorum in order to get an inspection was without jurisdiction. When a person in a position of authority such as that of the deputy registrar asks for agreement by the registrant to a process, it can hardly be said to be voluntary. A “request” for compliance coming from the registrar of the governing body of the respondent’s profession, can scarcely be considered a “request”. It was a coercive and improper attempt to get the petitioner to participate in a process that was not authorized by the Act or rules.
On September 15, 1997, the Supreme Court of British Columbia dealt with yet another decision with respect to procedural unfairness inDoctor James Findlay v. The College of Dental Surgeons of British Columbia, Vancouver Registry No. A963629.In Findlay, Mr. Justice Low found that the College in disbanding the review panel without presenting it’s report to the Registrar, accepted that the complaint process was legally flawed. He granted the College the jurisdiction to bring review proceedings to a halt and “start all over again”.
His Lordship went on to state:
 I am not persuaded that the whole process of investigating all the complaints, as well as the College’s proposal for continuing the investigation of those remaining, is irremediably flawed. Despite Mr. Cadman’s very able and forceful submissions to the contrary, I accept the College’s position that the only procedural error before the old review panel was denial of counsel participation before it to the extent required by the Stefani decision.
 As to whether the College can lawfully replace one panel with another in the circumstances, I think a complete answer is found in Hammond, supra. In that case, there were serious irregularites in the investigation of three complaints brought against the petitioner by fellow foresters. Esson, C.J.S.C. (now J.A.) found a lack of procedural fairness and quashed the recommendation of an investigating committee. However, he did not prohibit further proceedings even though the flawed proceedings had taken twenty-two months. His concluding remarks have application to the present case. He said (p.35):
It follows that the direction for an inquiry which resulted from that recommendation should also be quashed but it does not follow that the Association should be prohibited from conducting a hearing or taking any further steps. Having regard to the preliminary nature of the committee’s determination, to prohibit all further proceedings would be to give inadequate weight to the public interest in professional bodies such as the Association carrying out their duty of ensuring that high standards be maintained in the profession.
The appropriate remedy in my view is to direct that a fresh investigating committee be struck to carry out the investigation and to recommend whether there should be a hearing. The new committee should have available to it the report of the first committee subject to any excisions which may be made on proper grounds of privilege. The report in the form in which it is available to the new committee should also be available to the member prior to any meeting, hearing or interview which the committee may have with him.
DISCLOSURE OF MATERIAL
Chief Justice Williams in Hammami v. College of Physicians and Surgeons of British Columbia, unreported, June 27, 1997, Vancouver Registry No. A912442, (B.C.S.C.). Williams C.J., dealt with the issue of a professional’s right to have disclosure from an administrative tribunal in accordance with the principals enunciated in R. v. Stinchcombe,  1 W.W.R. 97 (S.C.C.). In this case, the licensed opthamologist asked for and was refused disclosure of his file. The physicians recommended that his right to practice be restricted and the College followed those recommendations. The issue was whether or not the College made an error in not disclosing the file. Chief Justice Williams in his judgment of June 27, 1997 cited Mr. Justice Oppal who dealt with the same party in another decision (November 3, 1989), wherein Mr. Justice Opal cited R. v. Sussex Justices.
Chief Justice Williams continues in Part VI of his decision, citing R. v. Stinchcombe (a criminal case) stating:
The Crown is under a duty in indictable offences to disclose to the defence all material evidence whether favourable to the accused or not.
Chief Justice Williams cites one of the first administrative law cases, applying the Stinchcombe disclosure principal.In the Ontario Human Rights Commission v. House (1993), 91 O.A.C. 72. The Court recognized the principal in the Stinchcombe when it stated:
R. V. Stinchombe also recognized that the “fruits of the investigation” in the possession of the Crown “are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice be done” (p.331). We are of the opinion that this point applies with equal force to the proceedings before a Board of Inquiry and that the fruits of the investigations are not the property of the Commission.
We are also of the opinion, while not necessary to our decision, that the role of the Commission counsel is analogous to that of the Crown in Criminal proceedings.
Chief Justice Williams then goes on to cite the Markandey v. Ontario Board of Ophthalmic Dispensers,  OJ. No. 484, (14 March 1994), Doc. 2661/96 (Ont. Gen. Div.), at paragraph 65:
The importance of full disclosure to the fairness of the disciplinary proceedings before the Board cannot be overstated. Although the standards of pre-trial discosure in criminal matters would generally be higher than in administrative matters (See Biscotti et al. v. Ontario Securities Commission, supra), tribunals should disclose all information relevant to the conduct of the case, whether it be damaging to or supportive of a respondent’s position, in a timely manner unless it is privileged as a matter of law… The Board has a positive obligation to ensure the fairness of its own processes. The failure to make proper disclosure impacts significantly on the appearance of justice and the fairness of the hearing itself. Seldom will relief not be granted for a failure to make proper disclosure. For comparable principles in the context of criminal prosecutions see M.H.C. v. The Queen (1991), 63 C.C.C. (3d) 385 (S.C.C.); R. v. Stinchcombe…
Clearly the court in this case considered that full disclosure is a necessary component of fairness whether in the criminal or administrative case context.
The Markandey decision also sets out the scope of disclosure at page 45, quoting Trafford J.:
Minimally, this should include copies of all witness statements and notes of the investigators. The disclosure should be made by counsel to the Board after a diligent review of the course of the investigation. Where information is withheld on the basis of its irrelevance or a claim of legal privilege, counsel should facilitate of review of these decisions, if necessary. The absence of a request for disclosure, whether it be for additional disclosure or otherwise, is of no significance. The obligation to make disclosure is a continuing one.
DERIVATIVE USE IMMUNITY
Many self governing bodies have by statute the authority to compel their members to give statements under oath and to produce documents. The issue arises where those powers are invoked for the purposes of an investigation, and where answers are given and documents are provided by witnesses who in turn are at a later date prosecuted on the basis of the evidence obtained through this compellable process. This matter was dealt with in the Supreme Court of British Columbia in British Columbia (Securities Commission) v. Branch  2, R.C.S 3.
In his publication, Grey Areas, (July 1995), Richard Steinecke discusses the Branch decision. At p. 3 he says:
The court said that, where a person is compelled to give evidence during an investigation, the state cannot use that evidence to locate other witnesses, documents or things to then use against the person in a prosecution. This protection is called derivative use immunity. If the derivative use immunity is applied to disciplinary investigations, then there will be a number of significant implications for regulators:
regulators would not wish to compel members under investigation to give a statement because the derivative use immunity might taint other evidence the regulator might locate afterwards;
where a colleague of a member under investigation is compelled to give a statement, it will be difficult for the regulator to then discipline the colleague if it appears that he or she participated in the conduct; and
where the conduct under investigation is also the subject of a criminal investigation, the police will probably urge the regulator to postpone its use of its summoning power until after the police investigation is completed for fear of creating a derivative use immunity.
Like the labyrinth at Knossos, a regulatory body must embark on the correct pathway in order to protect the public interest. It’s duty is not as one would recall in an old western movie – “to add another notch in the six shooter”.
That pathway normally commences with the presentation of a valid complaint – hopefully not one borne out of vindictiveness by a former employee or associate who wished to “get even” with the member.
A fair assessment of the complaint must be made promptly and that assessment should be re-visited during the process, while at all times remembering that there is a presumption of innocence.
A regulatory body which fails to follow the appropriate process and to apply the doctrine of fairness does a disservice to the public by failing to appropriately deal with a member of their profession. The test is the proper prosecution (not the persecution) of the professional.
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Kenneth J. Glasner, Q.C.
Tel: (604) 683-4181 / Fax: (604) 683-0226
Suite 1414, Nelson Square, Box 12156, 808 Nelson Street
Vancouver, British Columbia, V6Z 2H2 Canada