Sunday, September 20, 2015

Hryciuk and Katzman: Two Significant Court of Appeal Decisions on Jurisdictional Error

  
   Jurisprudence from the Court of Appeal for Ontario proclaims that whether and how a statutorily mandated pre-conditional investigation is conducted can adversely impact the legal legitimacy of a subsequent hearing or put another way deprive a hearing panel of jurisdiction to entertain the matter referred to it for hearing.  The cases of Hryciuk  v.  Ontario 31 O.R. (3d) 1 (Ont.C.A.) and Katzman v.  Ontario College of Pharmacists 2002 Canlii 16887 (Ont.C.A.) firmly establish that jurisdiction to hold a hearing may be lost where there is non compliance with a prescribed mode of procedure or where the referring body investigates matters not referred to it and orders a hearing on them.  In Hryciuk (supra) the court held that the failure to follow the express statutory scheme calling for complaints of judicial misconduct to be investigated by the Review Council prior to proceeding to a hearing was fatal and set aside an order removing a provincial court judge from office.  In Katzman (supra) a decision suspending a pharmacist for professional misconduct was also set aside where the Court of Appeal found that "the Complaints Committee did not act within its jurisdiction in referring the matters it did to the Discipline Committee."

   In this post I will endeavor to outline for the readership the factual circumstances in which the Court of Appeal for Ontario has addressed the question at hand by reference to their decisions in Hryciuk (supra) and Katzman (supra)  Two general legal propositions stem from these two cases on the question at hand.  The first, stemming from Katzman, is that a statutory body entrusted to conduct an investigation of professional misconduct does not have an unfettered discretion to investigate. The scope of the investigation it is authorized to undertake will be ascertained from the enabling legislation.   The second, stemming from Hryciuk (supra), is that the failure to satisfy a statutory pre-condition to proceeding to a hearing will result in a loss of jurisdiction. The factual background in these two cases along with the court's analysis is instructive and worth reviewing in some detail.

Katzman (supra):

   In this case the Complaints Committee was to investigate two complaints relating to dispensing errors involving two persons(Cole and Yellen).  In the course of the investigation of the two matters other allegations of misconduct were discovered and referred to the Discipline Committee.  Mr. Katzman was convicted, suspended for two months and sought leave to appeal.  Leave to appeal was granted on the question of the jurisdiction of the Complaints Committee to refer allegations of professional misconduct to the Discipline Committee of the the Ontario College of Pharmacists. The question for adjudication amounted to this: Did the Complaints Committee have jurisdiction to refer the matter of dispensing errors not involving Ms. Cole and Mr. Yellen to the Discipline Committee ?

   The Court of Appeal for Ontario unanimously ruled that the Complaints Committee in that case lacked jurisdiction to seek out and refer additional complaints to adjudication.  They stated the following:

[37]   In summary, given the design of the Code, the jurisdiction given to the Complaints Committee by s.26(2) paragraph 1 is to refer to discipline a specified allegation which concerns, in some way, the matter complained of.  Section 26(2) paragraph 1 does not give the Complaints Committee jurisdiction to refer to discipline allegations of other misconduct uncovered during the investigation of the complaint;

[38]   In this case, there is no need to test the outer limits of what can properly be referred under s.26(2) paragraph 1.  Here the alleged dispensing errors involving other individuals, but not Ms. Cole or Mr. Yellen, came to light during the investigation of the Yellen complaint.  They do not concern the Cole and Yellen complaints at all.  They were not themselves the subject of complaints to the Complaints Committee.  Thus they could not be referred to discipline by the Complaints Committee pursuant to s.26(2) paragraph 1.

[42]   In conclusion, we find that the Complaints Committee did not have jurisdiction to refer to discipline allegations of dispensing errors having nothing to do with the Cole and Yellen complaints. Hence those allegations were not properly placed before the Discipline Committee and the findings of misconduct based on them must be set aside.

Court's Analysis:

[30]   The disciplinary legislation here is the Health Professions Procedure Code.  It provides the procedure for the initiation and conduct of discipline proceedings against health professionals including pharmacists.  As set out in the sections quoted earlier one route to a hearing before the Discipline Committee begins with the filing of a complaint against the pharmacist.  This is then investigated by the Complaints Committee which pursuant to s.26(1) paragraph 1 may then "refer a specified allegation of the member's professional misconduct or incompetence to the Discipline Committee if the allegation is related to the complaint." [Emphasis added.]

[31]   The first and main question to be addressed is the scope of the underlined phrase.  Does it permit the Complaints Committee to refer any allegation which has arisen during the investigation of the complaint, as the respondent argues ?  Or is it limited to an allegation concerning, in some way, the matter complained of, as the appellant contends ?

[33]   In our view, there are a number of aspects of the Code which make the latter interpretation the correct one.

   The court looked to the statutory language in order to ascertain the scope of the investigatory powers of the Complaints Committee.  The court noted that "s.26(2) requires the Complaints Committee to consider (or make reasonable efforts to do so) all records and documents it considers to be relevant to the complaint. The phrase "relevant to the complaint" qualified the scope and ambit of the jurisdiction to investigate the court found.  Interestingly, the court noted that "the member's due process rights in relation to the Complaints Committee suggests that the narrower interpretation was intended."  Since s.25(5) of the Code mandated that the member receive both a copy of the complaint and a notice that he may make written submissions - which submissions the Complaints Committee was required to consider before deciding to refer an allegation to discipline - the court reasoned that this further supported the narrower interpretation because the broader interpretation could result in a situation where the member had no prior right to comment on the allegation.

[37]   In summary, given the design of the Code, the jurisdiction given to the Complaints Committee by s.26(2) paragraph 1 is to refer to discipline a specified allegation which concerns, in some way, the matter complained of.  Section 27(2) paragraph 1 does not give the Complaints Committee jurisdiction to refer to discipline allegations of other misconduct uncovered during the investigation of the complaint.

[38]   In this case, there is no need to test the outer limits of what can properly be referred under s.26(2) paragraph 1.  Here the alleged dispensing errors involving other individuals, but not Ms. Cole or Mr. Yellen, came to light during the investigation of the Yellen complaint.  They do not concern the Cole and Yellen complaints at all.  They were not themselves the subject of complaints to the Complaints Committee.  Thus they could not be referred to discipline by the Complaints Committee pursuant to s.26(2) paragraph 1.

Hryciuk  v.  Ontario (supra)

    The Hryciuk case is one of the few cases of judicial misconduct involving sexual misconduct by a judicial officer.  Justice Hryciuk faced the following matters of complaint before the public inquiry:

The complaint:

1.   That His Honour Judge Walter P. Hryciuk, on Saturday, January 18, 1992, at Old City Hall, Toronto, did sexually assault....an Assistant Crown Attorney for the Toronto Region, by kissing her without her consent.

2.   That His Honour Judge Walter P. Hryciuk, in 1988, made remarks of a sexual nature
to ....an Assistant Crown Attorney, and drew her attention to a sexually graphic light switchplate in his judicial chambers.


General Background Facts:

   After Justice Hryciuk closed his case the inquiry was adjourned to accommodate witnesses who were not immediately available.  Just before the inquiry reconvened Justice Hryciuk was informed of there additional complaints which were never made to the Judicial Council and were not referred to in the order-in-council appointing the inquiry judge.  Despite Justice Hryciuk's objections the inquiry judge ruled that she was duty bound to hear all relevant evidence.  At the conclusion of the inquiry the learned judge recommended that Justice Hryciuk be removed from office.  Justice Hryciuk's application for judicial review was dismissed by the Divisional Court.  He successfully appealed his removal from office.

Court's Analysis:

"Pursuant to s.46 of the Courts of Justice Act, there can be no removal of a provincial court judge unless two prior conditions have been met: that a complaint has been made to the Judicial Council and that the removal is recommended for any of the reasons set ou in s.46(1)(b) after an inquiry has been held pursuant to s.50.  The three new complaints heard by the inquiry judge after Judge H had concluded his defence were not first made to, or investigated by, the Judicial Council.  These complaints could not therefore, be entertained by her.  The language of the statute is unambiguous, and leave no discretion to a judge conducting a s.50 inquiry to hear new complaints not previously screened by the Judicial Council....By hearing three additional complaints not so referred, she exceeded her jurisdiction.  The Inquiry Judge based her recommendation on all of the complaints she heard, including the ones she had no authority to hear.  The evidence of those three complaints formed an integral part of her recommendation that Judge H be removed.  It was, therefore, impossible to say what her recommendation would have been if her finding had been based only on the two complaints she had jurisdiction to hear."

Commentary:

   What guidance do these two decisions provide to administrative tribunals and litigants who appear before them on dealing with the thorny and often challenging question of whether or not the tribunal has jurisdiction to entertain a matter ?  It seems clear from from the Court of Appeal's decision in Katzman (supra) that they placed great significance on the litigant's opportunity to know and respond to the allegations against him or her in advance of a decision referring the matter to a hearing. This makes perfect sense - especially where the referring body has a statutory power of decision. That is the referring body has the power to dismiss the complaint for example for frivolousness, abuse of process or jurisdiction.  Hryciuk (supra) makes it clear that the failure to follow a prescribed statutory procedure which may lead to a formal hearing challenging a judge's office is fatal to jurisdiction. The
Court of Appeal in Hryciuk (supra) made specific mention of the fact that the Judicial Council under that statutory scheme performs a screening function with respect to complaints brought to its attention.  J.A. Abella's words on the statutory intention with respect to the two-stage process in Hryciuk(supra) is instructive:

"The two-stage process represents a clear statutory intention that not all complaints about judges should be subjected to public disclosure.  Any such disclosure, even if the complaint is subsequently found to be without merit, can cause irreversible damage to reputation and, more importantly, to a judge's ability to maintain public confidence in his or her judicial capacities.  On the other hand, there is a significant public interest in having some complaints aired publicly for the same purpose, namely, to maintain public confidence in the judiciary. These are the competing schemes the legislative scheme is designed to balance.  The Judicial Council has, therefore, been charged with responsibility for screening allegations against provincial court judges, and to determine, after an investigation and/or hearing, whether the complaint raises a genuine issue about the judge's capacity to continue to perform his or her judicial functions.....Circumventing the statutory requirement that there be a prior vetting by the Judicial Council defeats the whole purpose of the legislative scheme, and violates the mandatory nature of the two-stage process set out in s.46 of the Courts Of Justice Act.

......The Lieutenant Governor's discretion in s.50, therefore, to order an inquiry into whether a judge should be removed, is limited to the complaints investigated by the Judicial Council.  Read in this way, the removal from office referred to in the concluding paragraph of the order-in-council is a potential outcome of the inquiry;s examination into the authorized complaints, not a general mandate."

   The arguable points of law flowing from these two decisions are as follows:

1.   An administrative actors right to conduct an investigation is typically governed by a statute and the court will look to, among other things,  the overall legislative objective and the language of the statute in ascertaining the scope of investigation that the administrative actor is lawfully entitled to undertake.

2.   The use of the words "the complaint" in the intake, investigation and disposition portions of the enabling legislation appears to be a qualifier on the misconduct which is the subject of a formal hearing and grounds for removal from office(with judges).  Commonality between the intake "complaint", the investigation "complaint" and the disposition "complaint" appears to be a fundamental requirement for jurisdiction.  The disposition "complaint" can not exceed the intake "complaint" according to Hryciuk (supra).

3.   A statutory actor that exceeds the investigatory authority granted to it or a decision maker who entertains and relies upon grounds of misconduct which were not previously vetted in accordance with a mandatory scheme calling for such vetting commit jurisdictional error which a Superior Court is entitled to quash.












      

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