May 23, 2022
Procedural fairness is a necessary requirement for any administrative tribunal hearing. However, that does not mean that the courts will uphold objections from parties in all cases a party feels they were unfairly treated.
Procedural fairness has its limits. This includes the right to multiple adjournments of a hearing. It is important that tribunals achieve finality in a timely fashion and is particularly important when the tribunal has a duty to protect the public interest.
The Divisional Court decision in Gill v. College of Physicians and Surgeons of Ontario, illustrates what can happen if a party crosses the limits.
In this case, the doctor faced allegations of misconduct going back to 2014, which had led to a formal complaint in 2017. A hearing was initially scheduled in April 2018. Shortly before the hearing date, the doctor requested an adjournment because he had to change lawyers. A new date was set in November 2018 even though there were earlier dates available, so that the doctor would have lots of time to find and instruct a new lawyer.
Shortly before the new date, the doctor’s new lawyer contacted the tribunal and indicated he was not available on the scheduled date. The tribunal granted a further adjournment to April 2019, almost a year after the original hearing date. That hearing date was marked as “peremptory”, which means that the doctor would not be granted any further adjournments and would have to proceed on the scheduled date.
During the almost two years from 2017 to April 2019, the doctor had a pattern of not cooperating with the tribunal on prehearing matters and was found to have misled the tribunal as to his legal representation situation.
Just before the scheduled April date, another new lawyer contacted the tribunal requesting a further adjournment. That request was denied on the basis that the allegations against the doctor were serious, and that the public interest required that the hearing proceed so that the issues could be resolved.
The doctor did not attend the hearing and the tribunal preceded in his absence. He was found guilty of professional misconduct and was found to be incompetent.
The doctor’s lawyer then served in motion to reopen the hearing claiming that the doctor had been ill on the date of the original hearing. The motion also suggested that there was further evidence that the tribunal should consider.
The motion to reopen the hearing was not finally argued until December 2019 when the tribunal found that the doctor had not been ill at the time of the original hearing, and that his conduct was part of a pattern of ongoing manipulation designed to create delay.
Finally in April 2021, seven years after the events complained of in four years after the formal proceedings began, the doctor’s certificate of registration was revoked.
The doctor appealed to Divisional Court wanting to introduce fresh evidence and arguing that the refusal of the adjournment had been an error on the part of the tribunal.
The Divisional Court determined that the fresh evidence would not have affected the decision to refuse the adjournment and then in any event it should have been available at the original hearing date if the doctor had exercised due diligence. The Divisional Court was persuaded that the failure to introduce that evidence had been a tactical decision by the doctor and that he must live with the result.
The Divisional Court also found the decision to refuse an adjournment to be reasonable. It was based on the seriousness of the allegations against the doctor, and the fact that there had been two previous adjournments resulting in the scheduled date being marked as peremptory. The need for a timely hearing to protect the public outweighed any reasons for an adjournment.
The Divisional Court also found that the decision to proceed in the absence of the doctor was reasonable. The Statutory Powers Procedures Act allows the tribunal to proceed in a member’s absence if he or she fails to appear once they have received notice. The court reviewed the process followed by the tribunal and decided that it was fair.
The dismissal of the motion to reopen was also found to be fair. The court found that the tribunal had carefully weighed all of the evidence at that hearing. Allegations that the lawyer who represented the College at the motion acted inappropriately were found just to be part of the normal role of a lawyer in adversarial proceedings.
A reopening of a case at a tribunal is very rare relief granted only in exceptional circumstances. There is a strong public interest in achieving finality in disciplinary proceedings. This was not a case where reopening was in the public interest.
Finally, the Divisional Court upheld the decision to revoke the certificate of registration. The doctor argued that a suspension would be an adequate punishment. The court agreed with the tribunal that the breadth, severity and persistence of the misconduct, which included both poor patient care and dishonesty, justified the revocation of his certificate.
The appeal was dismissed, the doctor lost his license.
If you are faced with responding to a hearing at a tribunal, whether a professional discipline complaint or other matter, this case demonstrates the importance of proceeding honestly and not putting yourself in a situation where the public interest outweighs your interest in a fair hearing.
One of the best ways to achieve this is to retain the right lawyers as soon as you know there is an investigation, tell them the truth, and seek a fair hearing, rather than playing games.
At Weilers Law, we have a number of lawyers experienced in a variety of areas of administrative law. We can provide you with the advice and assistance that you require to obtain procedural fairness. We understand what the expectations of tribunals and courts are in that regard. We can explain those expectations to you.
Although professional discipline proceedings are thankfully rare in Thunder Bay, they do happen. In addition, there are a wide variety of other tribunal matters that our clients encounter. Trying to represent yourself or hiring a lawyer without the right experience or expertise may not be in your best interests. If you want to know more about our experience in administrative law, contact us at Weilers Law.