Carlin v. Registered Psychiatric Nurses Assn of Alberta: An Example of the Failure to Comply Strictly with Jurisdiction

Court of Queen's Bench of Alberta

Carlin v. Registered Psychiatric Nurses' Assn. of Alberta Date: 19960628

Docket: 9603-08586

I.  Introduction:

Binder, J.: This application is for an order of certiorari and prohibition, quashing a decision of the Conduct and Competency Committee (the "Committee") established under the Health Disciplines Act, R.S.A. 1986, c. H-3.5 (the "Act"), and prohibiting any further proceedings relating to a complaint against Julie Carlin (the "applicant," which term shall also include "investigated person") by her employer Alberta Hospital (the "Hospital" or the "Complainant") dated July 12, 1994.

I have determined that there will be an order of certiorari and prohibition for the reasons hereinafter provided.

I point out that I would have based my decision solely on the noncompliance by the respondent with the provisions of the Act, and in particular s. 15.1(2).

At the request of counsel I have, however, dealt with all of the other issues raised or perceived, with the view to hopefully providing some guidance as to the process which should be followed in the case of complaints under the Act.

In that regard, I urge counsel to provide the legislative counsel responsible for the Act with a copy of these reasons so that he or she can review them and in particular address the  matters I have raised under Issue 3 of Part V.

I also wish to acknowledge and commend both counsel on their excellent presentations at the hearing of this application. Unless otherwise specifically indicated in these reasons, highlighting and underlining have been added by me for the purpose of emphasis.

II.  General Outline Of Facts:

The registered Psychiatric Nurses' Association of Alberta (the "respondent") is a corporation established under the Act.

The applicant is a registered psychiatric nurse and has been employed as such by the Hospital since November of 1978.

In July of 1994, the Registrar of the respondent (the "Registrar") received a letter of complaint from the Hospital, alleging unprofessional conduct and breach of professional ethics (the "Complaint").

The essence of the Complaint was that the applicant had, in the summer of 1993, been renting the basement in her house to an ex-patient of the Hospital (who had been discharged in November, 1992) during a period when the ex-patient was still attending a group therapy follow-up program in July, 1993.

According to the Complaint, the ex-patient was therefore still being treated by the Hospital on an outpatient basis after moving into the applicant's basement, resulting in a breach on the part of the applicant of professional ethics.  Under the Act, upon the Registrar receiving the Complaint, the Registrar as required by the Act, conducted a preliminary investigation regarding the Complaint ("Preliminary Investigation").

The Preliminary Investigation was completed on November 2, 1995, approximately 16 months after the Registrar received the Complaint.  By memorandum dated November 21 1995, the Registrar forwarded the Registrar's report resulting from the Preliminary Investigation to "Darlene Gartner, Chair, R.P.N.A.A. Conduct and Competency Committee", in which the Registrar recommended that a tribunal be  selected and a formal hearing be scheduled to hear the Complaint (the "Report").

By letter dated January 23, 1996 (the "January 23 Letter"), the Registrar wrote to  the applicant advising her that a hearing into the Complaint had been scheduled at 10:00 a.m. on Saturday, February 24, 1996 (the "Hearing").

The January 23 letter indicated that the following might be present at the Hearing:

*   A representative from the Health Disciplines Board

*   A court reporter

*     The respondent's lawyer, to act only in a consulting role for the Chairperson of the hearing.

The January 23 Letter also indicated that the Committee would be comprised of three psychiatric nurses namely: Maureen Button, Laurie Holt and Kelly Mantler.

The Hearing commenced on February 24, 1996, which was 114 days after the date the Report was forwarded to Darlene Gartner, Chair.

The Committee did not deal with the merits of the Complaint at the Hearing, as the applicant's representative at the Hearing, Richard West of the United Nurses of Alberta, raised the preliminary objection that the Committee had lost jurisdiction to hear the Complaint, on the basis that:

(a)    The Hearing had not been commenced within the 90 day period required by the Act;

(b)      the Preliminary Investigation was not "conducted forthwith" nor was the Report "concluded forthwith", or in a timely manner as required by the Act;

(c)    the respondent intended to rely solely on the prosecution of its case on the hearsay Report without calling the Registrar to introduce the Report, the Complainant or any other persons interviewed and referred to in the Report;

(d)    the applicant would be denied the opportunity of cross-examination of the Registrar, the Complainant or any other persons interviewed and referred to in the Report.

Also in attendance at the Hearing was the Registrar Janice E. Trylinski and the respondent's counsel Ms. Yolanda S. Van Wachem.

The Committee, which was comprised of the three individuals named in the January 23  Letter, of which Maureen Button acted as Chairperson, adjourned the hearing at 12:05 p.m. on February 24, 1996.

The Committee provided its reasons (the "Reasons") for denying the preliminary objection of the applicant that the Committeedid not have jurisdiction.

The Reasons which are undated are found at Tab 1 of the Return filed in these proceedings by the respondent in reply to the certiorari notice served on the respondent by the applicant's solicitors (the "Return").

An inference can be drawn from an examination of the reasons that they were prepared by Ms. Van Wachem, by virtue of the following appearing at the end "H:\DOCS]YVW\322987.1", signed by the members of the Committee.

The Committee's Reasons were to the effect that the Committee had not lost jurisdiction and was entitled to proceed with the Hearing.

III.  General Outline Of Scheme Of Act Relating To Complaints And Hearings:

1.   The Act contains the following definitions relevant to this application:

*   Board -- The Health Disciplines Board

*   Committee -- The Conduct and Competency Committee established under s. 7.6.

*   Chair -- The Chair of the Committee.

2.   Part 4 of the Act sets out the process to be followed in the case of a complaint such as the Complaint herein.

The process that was required to have been followed relating to the Complaint was as  follows:

(1)    Forthwith on the receipt of the Complaint (July 12, 1994) the Registrar was required to conduct the Preliminary Investigation (s. 13.1(1)).

(2)    Forthwith on concluding the Preliminary Investigation the Registrar was required to report the Registrar's findings to the Chair (s. 13.1(a)).

(3)     The Chair upon receiving the Report was required to either direct that no further action be taken OR refer the Complaint in writing to the Committee (s. 14(1)).

I pause here to note that:

(a)     Based on the Return it appears that on November 2, 1995 the Chair was Darlene Gartner, at least that was who the Report was addressed to as Chair. The Report was completed on November 2, 1995, approximately 16 months after the Registrar received the Complaint and was given to the Chair under memorandum of the same date.

(b)    Pursuant to s. 4 of Alta. Reg. 509/87 the Committee was established consisting of three registered members of the respondent, appointed by the governing body (referred to by the respondent as the Council) of the respondent.

(c)    Pursuant to Order-in-Council 356/95 Roger Cole was appointed as a member of the Committee by the Lieutenant Governor-in-Council pursuant to s. 7.6(1)(b) for a three- year term expiring May 3rd, 1998.

(d)    Darlene Gartner is not one of the members of the Committee named in the January 23, Letter to hear the Complaint, although she is shown copied with the January 23, Letter and referred to as "Chair, R.P.N.A.A. Conduct and Competency"; Miss Maureen Button is also shown copied and is referred to as "Hearing Chairperson".

(e)    The issue then arises as to whether the Committee was composed of four members of the respondent rather than three as constituted under Alta. Reg. 509/87.

(f)   There is nothing in writing contained in the Return indicating that the Complaint was referred by the Chair to the Committee, as required by s. 14(1)(b).

4) The Registrar was required to serve the applicant and the Hospital with a notice that the Complaint had been referred to the Committee (s. 14(2)).

I pause here to note that the intent of s. 14(2) appears to be that:

(a)     Once a decision is made by the Chair under s. 14(1) to refer the Complaint to the Committee, the Chair so advises the Registrar, and the Registrar so advises the applicant and the Hospital of the Chair's decision.

(b)    The advice under (a) was to be sent prior to the Registrar serving on the applicant and the Hospital a copy of the Complaint, and a notice of the Hearing stating the date, time and place of the Hearing as required by s. 15.1(3).

(c)    There is nothing in the Return indicating compliance with (a) above.

(5)    On the referral to the Committee of the Complaint by the Chair, the Committee was required to hold the Hearing (s. 15.1(1)).

(6)    The Hearing under s. 15.1(1) was required to commence not more than 90 days after the date on which the Complaint was referred to the Committee under s. 14(1)(b) (s. 15.1(2)).

(7)    The Registrar was required, not less than 30 days before the date set for the Hearing to serve the applicant with a copy of the Complaint and was also required to serve the applicant and the Hospital with a notice of the date, time and place of the Hearing (s. 15.1(3)).

(8)      The applicant and the Hospital were entitled to appear and be represented by counsel at the Hearing (s. 16(1)).

(9)   The Committee was entitled to be represented by counsel at the Hearing (s. 16(2)).

(10)    The Committee was not bound by the rules of law respecting evidence applicable to judicial proceedings (s. 17(1)).

(11)      The applicant and any other person having knowledge of the Complaint were compellable witnesses at the Hearing (s. 17.1(1)).

(12)    If the Committee had held a Hearing on the merits of the Complaint, the Committee would then have been required within a reasonable time after the conclusion of the Hearing to provide a written decision on the matter and forward the same to the Registrar, who would then have been required to serve the same on the applicant and the Hospital, including a statement of the right of the applicant and the Hospital to  appeal the decision to the Board (s. 21.1).

(13)    The applicant or the Hospital would then have had the right to appeal the finding or the order, or both, of the Committee to the Board by notice in writing served not more than 30 days after the date on which the decision of the Committee was served on the applicant and the Hospital.

There are several issues. Part of the issues relate to statutory requirements under the Act and part of the issues relate to the common law doctrine of natural justice.

Statutory Issues

1.  What significance if any, is there between the "Chair" of the Committee (as defined in s. 12(1)(a) of the Act) and a "Chair Person of a Hearing"?

2.  Was there compliance with s. 13.1(1) and (8) of the Act?

3.  Was there compliance with s. 14(1)(b) of the Act?

4.  Was there compliance with s. 14(2) of the Act?

5.  Was there compliance with s. 15.1(2) of the Act?

6.  Was there a right of appeal from the Reasons of the Committee, to the Board under s. 23.1 of the Act? If so, should the applicant have exercised such right rather than bringing this application for certiorari and prohibition? If not, should the Hearing proceed reserving to the applicant her right of appeal to the Board, upon the Committee rendering its decision on the merits of the Complaint?

7.  To what extent does s. 17(1) of the Act, relieve the Committee from calling witnesses?

Natural Justice

1.  Should the applicant have been provided with the arguments, materials and case law relied on by the Committee in arriving at its Reasons which were not argued or presented at the Hearing; if so, should the applicant have been given the opportunity to respond prior to the Committee delivering its Reasons?

2.   Did the Chairperson of the Committee appear to relinquish her role to counsel to the Committee?

3.  Did council to the Committee step into or appear to step into the role of the Registrar or "prosecutor" at the Hearing?

4.   Are there reasonable inferences and apprehension that counsel to the Committee wrote the Committee's Reasons?

I will deal with each of the above issues in turn.

V.  Analysis Of Statutory Issues:

1.  What Significance, If Any, Is There Between The "Chair Of The Committee" (As Defined  In

S.  12(1)(a) Of The Act) And A "Chairperson Of A Hearing"?

This issue was not raised by either party. I raise it because in my opinion it is but another example of some of the confusing and imprecise provisions of the Act which I have reviewed.

Section 12.1(a) of the Act defines "Chair" as the "Chair of the Committee and includes a vice- chair".

Section 7.6(1) of the Act requires the respondent to establish, in accordance with the Regulations, the Committee consisting of not less than three nor more than nine o] the respondent's members, and one member at large appointed by the Lieutenant Governor-in- Council.

Alta. Reg. 509/87 fixed the respondent's members of the Committee at three, and by Order- in-Council 356/95 Roger Cole was appointed as the member at large.

The Report is addressed to "Darlene Gartner, Chair R.P.N.A.A. Conduct and Competency Committee" and the January 23 Letter is copied to her as such, but she is not included in the composition of the Committee of three.

Instead, Ms. Maureen Button is referred to as "Hearing Chairperson".

The transcript of the hearing (the "Transcript") found at Tab 9 of the Record, contains the following at pp. 8 through 9:

"MR. WEST:... I would ask the Conduct and Competency Committee the whereabouts of this member of the public and is there a member of the public? (p. 8, lines 5-8)

THE CHAIRPERSON: On the committee there is a member of the public. This is a tribunal and my understanding was that they were very different things. (p. 8, lines 9-12)

MS. TRYLINSKI: I think we are confusing two issues here. First of all, there is the issue of the counsel of the P.P.N.A.A., which has Roger Cole as the public member and the Conduct and Competency Committee and your (sic) absolutely right, the Act says that the Conduct and Competency Committee has to have a member of the public, but it also says in 7.6(6), that the powers, duties and operation of a Conduct and Competency Committee are not affected by the fact that no one is appointed as a public member of the committee." (p. 8, lines 26-27; p. 9, lines 110)

Having regard to the above, one is left with the following unanswered questions:

(a)     Has the respondent created a hearing committee separate from the Committee, to hear complaints? If so, on what authority?

(b)    Does Roger Cole sit as a member of the governing body (that is the Council) of the respondent and not the Committee?

(c)    Is Darlene Gartner a member of the Committee or simply the Chair of the Committee; if the latter, can the Chair be Chair without being a member of the Committee?

(d)    If the respondent has created a Hearing Committee, separate from the Committee, who comprises the Committee?

Conclusion:

The above analysis, raises in my mind a question as to whether the Committee was validly constituted in accordance with the requirements of the Act.

2.  Was There Compliance With S. 13.1(1) And (8) Of The Act?

Although the investigation may have been commenced forthwith, that is within a reasonable time, but was not in my opinion, completed within a reasonable time, having taken 16 months.

However, the Alberta Court of Appeal unanimously held in Rankel et al. v. Alberta Association of Psychologists (1993), 141 A.R. 250; 46 W.A.C. 250; 9 Alta. L.R.(3d) 337 (C.A.), that the remedy for breach of a section such as ss. 13(1) and (8) of the Act, is mandamus, not certiorari.

Rankel is, of course, binding on me.

I point out, however, that in my opinion Rankel is authority only as to the investigation stage of a complaint - in this application s. 13 of the Act.

My reasons for so interpreting Rankel are:

(a)     The rationale of the court recorded in the form of a memorandum delivered orally from the Bench by Côté, J.A., was to the effect that notwithstanding a s. 13 kind of breach, it was nevertheless in the best interests of the public that a complaint against a member of a professional body (in Rankel, a psychologist) be investigated and the investigation be completed, failing which mandamus would issue.

(b)    The rationale is expressed in the briefest of terms which leads me to believe that the court did not direct its mind to any part of the complaint process beyond the investigation stage.

(c)    Just as it is in the public interest to complete the investigation of a complaint, it is in my view of equal or greater importance and in the public interest that thereafter the disposition of the complaint be determined as soon as reasonably possible. That, in my opinion, was the basis of the policy of the government in prescribing the 90-day time period contained in s. 15.1(2) of the Act.

If I am wrong and the rationale in Rankel also applies to s. 14 of the Act, I would hold for all of the reasons given herein, that the whole process relating to the Complaint has been so tainted that it would he unjust and unfair to allow the Hearing to proceed and certiorari and prohibition should nevertheless be granted.

Conclusion

The remedy for a breach of s. 13 of the Act, where required is mandamus, not certiorari or prohibition.

3.  Was There Compliance With S. 14(1) (b) Of The Act?

Based on the Return, it does not appear that s. 14(1)(b) of the Act was complied with.

In my opinion, however, it would be highly prejudicial, unfair and unjust to the applicant to allow the respondent to rely on such noncompliance, in support of its argument that the effective date of the referral of the Report was January 23, 1996, (the date of the January 23 Letter) and therefore the Hearing commenced within the 90 day period stipulated in s. 15.1(2) of the Act.

The basis for so holding is that it was common ground at and following the Hearing that the effective date of the referral of the Report for the purposes of s. 15.1(2) was the date of the Report, November 2, 1995.

In support of the above, I rely on the following:

(a)    The Transcript at pp. 21 and 22 where the following appears:

"MS. TRYLINSKI: I guess there is some flexibility in the Health Disciplines Act and I  don't know about the Manitoba legislation at all so I don't want to actually comment on it.

On November the 2nd this was referredto Darlene Gartner, who was the chair of the Conduct and Competency Committee and on January 23rd, that was the formal notice that the hearing was going to be held on February the 24th. So as I interpret section 13 -

- or was it 14 that we are looking at? Or 15. As I interpret section 15, we do fall within that time period that you are referring to of 90 days and certainly -- certainly the hearing was commenced at least, by notification on the double registered mail. So as we read it, we feel we fall within -- at least I feel we fall within the legislation for timely conduct of a hearing. (p. 21, lines 18-27; p. 22, lines 1-4)

MS. VAN WACHEM: Do you want to have a brief adjournment? (p. 22, lines 5-6) THE CHAIRPERSON: Yes, please. (p. 22, line 7)

MS. VAN WACHEM: Do you mind if somebody is out so that I can advise them on the issue? (p. 22, lines 8-9)

MR. WEST: You are advising the éoin- mittee only? (p. 22, lines 10-11)

MS. VAN WACHEM: That's right. That's what I told you I was here for. (p. 22, lines 12- 13)

MR. WEST: And Ms. Trylinski will not be part of these? (p. 22, lines 14-15)

MS. VAN WACHEM: I asked Ms. Trylinski to leave as well as yourself and Ms. Carlin. (p. 22, lines 16-17)

THE CHAIRPERSON: Having discussed the issue of 15.1 in the Health Disciplines Act, we feel that the wording of the Act in Manitoba is sufficiently different than Alberta's Act and our view commencement was within the 90-day time limit. From November 2nd until January 23rd when the letter went out is -- it was 82 days. (p. 22, lines 21-27)"

(b)     The Reasons of the Committee found at Tab 1 of the Return, where at p. 4 the following appears:

"The Committee notes the Memorandum to Darlene Gartner was dated November 2, 1995, a letter notifying the member of the time and place of the Hearing and some particulars relating to how the hearing would be conducted was sent on January 23, 1996. The letter was received by the member on January 31, 1996. The first part of the Hearing was conducted on February 24, 1996.

In the Committee's view the Hearing was commenced 'within the meaning of this section when the Hearing itself was scheduled and the letter of January 23, 1996 was sent to  the member."

(c)    The respondent for the first time, at the chambers hearing on June 6, 1996, raised this issue, contending that the January 23 Letter was both the referral to the Committee and the Notice of the Hearing rolled into one. I point out, however, that as a result I granted the parties leave to file supplemental briefs prior to the end of June, 1996.

Alternatively, the failure of the respondent to comply with s. 14(1)(b) of the Act resulted in the Committee losing jurisdiction.

Before leaving this issue, I wish to point out that I have difficulty practically understanding s. 14(1)(b) of the Act.

The subsection requires the Chair to refer the Complaint in writing to the Committee of which the Chair, is the Chair. Who does the Chair write to? Is it the Chair, as Chair of the Committee? Is it to each member of the Committee? Is it to the Committee as a whole, in care of the Registrar?

I also note that s. 14 is not directly tied to the 90-day time period contained in s. 15.1(2).

If I were to speculate, it would be to the effect that in practice s. 14(1)(b), and (2) are ignored, and that what actually happens is what happened in this case: upon the Chair receiving the Report from the Registrar, the Chair instructs the Registrar to schedule the hearing and advises the investigated person in the form and content of the January 23 Letter.

I wish to make it clear that the criticism I have expressed relates to the present wording of s. 14, not its rationale.

The rationale is a good one - the Chair or the Registrar, as the case may be, must review the Report judicially and make a decision as to whether the complaint should proceed to a hearing.

Once the decision is made, the Registrar must notify the investigated person and the complainant, if any, of the decision.

If the decision is to proceed with a hearing, the committee members are selected and the place, date and time of the hearing is fixed, and the investigated person and the complainant, if any, are so notified.

In my opinion, to avoid further court applications as to the meaning to be given to and the intent of s. 14 it would be prudent if s. 14 was amended to make it clear that the decision of the Registrar or the Chair as the case may be, as to whether to dismiss a complaint or refer it to a hearing must, for the reasons stated by Philip, J.A., in Vialoux infra, be made within the 90-day time period provided for in s. 15.1(2) or alternatively within a 30-day period, which

would mean that the hearing would have to begin at the latest within 120 days from the date of the delivery of the results of the investigation to the Registrar or the Chair, as the case may be.

4.  Was There Compliance With S. 14(2) Of The Act?

Based on the Return, it does not appear that s. 14(2) of the Act was complied with. Conclusion

The failure to comply with s. 14(2) of the Act resulted in the Committee losing jurisdiction.

5.  Was There A Compliance With S. 15.1(2) Of The Act?

In my opinion, the respondent failed to comply with the requirements of s. 15.1(2) of the Act, in that the Hearing did not commence until February 24, 1996, 114 days after the November 2, 1995 referral.

I see no difference in substance or intent between the wording of s. 15.1(2) of the Act and the wording of s. 37(1) of the Registered Psychiatric Nurses Act, S.M. 1980, c. 46; C.C.S.M., c. P- 170, which was considered by the Manitoba Court of Appeal in Vialoux v. Registered Psychiatric Nurses Association (Man.) (1983), 23 Man.R.(2d) 310; 2 D.L.R.(4th) 187.

Section 37(1) of the Manitoba Act read as follows:

"37(1) Where the investigation Chairman directs that an inquiry be held into the conduct of a member or where the discipline committee decides to hold an inquiry into the conduct of a member, the discipline committee shall, within 30 days, from the date of the direction or decision fix a date, time and place for holding of the inquiry which shall commence no later than 60 days from the date of the direction or decision."

In my opinion the words of Philip, J.A., at pp. 189 and 190 [D.L.R.] in Vialoux apply equally to the application before me:

"I have come to the conclusion that the time requirement in s. 37(1) is absolute. In failing to commence the inquiry no later than 60 days from the date of the direction, the discipline committee acted without jurisdiction. Its order is a nullity.

…..

"There is an element of public concern in proceeding under s. 37 of the Registered Psychiatric Nurses Act. The public has an interest in the standards for the practice, of psychiatric nursing in Manitoba and in the standards of professional ethics of registered psychiatric nurses. However, at stake in the inquiry before the discipline committee  was

the right of Vialoux to practice his profession. This is not a case of 'widespread chaos' which was the concern of Freedman, C.J.M., in Bilodeau. In my view, the apprehended or potential public concern must yield to the private rights of Vialoux.

"In my view, the time requirements of this statute ought to be strictly observed, involving as it does the private rights of an individual. The time requirements were not strictly observed in the proceedings taken against Vialoux. The procedural deficiency goes to the jurisdiction of the discipline committee. It acted without jurisdiction and its order is a nullity."

The law is clear, especially in respect of professional disciplinary statutes that:

"When a statute confers jurisdiction upon a tribunal of limited authority and statutory origin, the conditions and qualifications annexed to the grant must be strictly complied with."

as per Duff, C.J.C., in Harris v. Law Society of Alberta, [1936] 1 D.L.R. 401 (S.C.C.), at 402, where he approved of the rule of law so stated in Craies' Statute of Law at p. 355.

Accordingly, in my opinion it was not only insufficient but improper for the respondent to bypass the statutory requirements of s. 14 and then argue that the January 23 Letter was  both the referral to the Committee under s. 14(1)(b) and the Notice of the Hearing under s. 15.1(2), rolled into one.

Conclusion

The respondent failed to comply with s. 15.1(2) of the Act.

6.  Was There A Right Of Appeal From The Reasons Of The Committee To The Board  Under

S. 23.1 Of The Act? If So, Should The Applicant Have Exercised Such Right Rather Than Bringing This Application For Certiorari And Prohibition; If Not, Should The Hearing Proceed, Reserving To The Applicant Her Right Of Appeal To The Board, Upon The Committee Rendering Its Decision On The Merits Of The Complaint?

As I understand the respondent's argument, it was to the effect that the Application before me should be denied, as there exists an effective appeal procedure under the Act, and as such, the applicant should be required to proceed with the Hearing, and upon the Committee rendering its decision on the merits, the applicant if not satisfied, could then appeal to the Board under s. 23.1 of the Act.

I was advised at the hearing of this application that the applicant had canvassed with the Board whether the Board would hear an appeal from the Committee's Reasons. The Board indicated that it would not, as it only heard appeals from a decision of the Committee on the merits of the Complaint.

In my opinion:

(1)     I agree with the Board's interpretation of s. 23.1 of the Act, that an appeal to the Board is only available from a decision of the Committee on the merits of the Complaint;

(2)    I see no merit in the applicant enduring a hearing, which, the Committee, is without jurisdiction to hear, only to have the Board, on appeal, so decide, or alternatively, the Court of Appeal.

(a)    There is no right of appeal to the Board from the Reasons of the Committee: and

(b)    The applicant is not required to endure a hearing before the Committee on the merits of the Complaint, on the basis of right of appeal to the Board thereafter being available to the applicant, in lieu u bringing this application.

7.    To What Extent Does S. 17(1) Of The Act, Relieve The Committee From Calling Witnesses?

This issue is dealt with as part of the compendium of the issues of natural justice.

VI.  Analysis Of Natural Justice Issues:

My understanding of the applicant's position is twofold:

1.  The Hearing was tainted in that the counsel to the Committee in effect took over the Hearing as to the issue of jurisdiction, drafted the Reasons of the Committee, and in so doing relied on materials and case law not provided to the applicant.

2.   If the Hearing had proceeded, the applicant would not have been able to make "full answer and defence" to the Complaint as required by the common or judge-made rules of natural justice, as the Registrar who acted as "prosecutor" at the Hearing had not and did not intend to subpoena witnesses, intending to rely solely on the contents of the Report, on the purported basis of s. 17(1) of the Act.

Facts & Authorities Re Role Of Counsel To Committee: Factual Basis

It is clear from the January 23 Letter that counsel for the respondent was "to act only in a consulting role for the Chairperson of the hearing".

Counsel to the Committee not only acted in a consulting role, but in effect dominated the Hearing as to the issue of jurisdiction, drafted the Reasons, and in so doing  relied  on materials and case law not provided to the applicant.

By way of illustration the following appears at pp. 40 and 42 of the Transcript:

"MS. VAN WACHEM: Perhaps we can just do it in this room. We'll adjourn for 15 minutes." (p. 40, lines 4-5)

"MS. VAN WACHEM: I do not think you will find any argument from the Committee on that issue, but perhaps you could tell me what consequence you would like to lead from this objection." (p. 42, lines 1-4)

I do not as such fault the Committee or its counsel for their actions. It must be remembered that the Committee's expertise lies in the professional conduct and competency of the respondent's members, rather than legal issues such as jurisdiction, for which the Committee quite properly relies on its counsel for advice.

However, both the Committee and its counsel must strictly observe the mandatory statutory requirements of the Act and the rules of natural justice in that each investigated person's professional reputation, career and livelihood are at great risk.

Authorities

This matter is discussed in J. Casey, Regulation of Professions in Canada at pp. 8-35-41, where the author indicates that there are different views, which vary with the role of counsel.

The following principles, which emerge from the cases, appear however to be clear:

*   Counsel is not a member of the tribunal and therefore is prohibited from participating in the hearing as would a member.

*   The tribunal cannot abdicate its role in conducting the hearing to counsel.

*   Counsel cannot take the side of the "investigated person" or the "prosecutor".

See: Adair et al. v. Health Disciplines Board (Ont.) et al. (1993), 68 O.A.C. 202; 15 O.R.(3d) 705 (Div. Ct.), at 706-707; Hutterian Brethren Church of Starland v. Starland No. 47  (Municipal District) (1993), 135 A.R. 304; 33 W.A.C. 304; 9 Alta. L.R.(3d) 1 (C.A.), at 12-13;

Venczel v. Ontario Association of Architects (1989), 41 O.A.C. 50; 74 O.R.(2d) 755 (Div. Ct.), at 756; Brett et al. v. Board of Directors of Physiotherapy (Ont.) (1991), 48 O.A.C. 24; 77 D.L.R.(4th) 144 (Div. Ct.); Brett et al. v. Board of Directors of Physiotherapy (Ont.) (1993), 64 O.A.C. 152; 104 D.L.R.(4th) 421 (C.A.), at 425.

Whether counsel can meet with a tribunal in private during a hearing and whether counsel  can draft reasons, as counsel did in this application, or draft the reasons of a decision on the merits, for a tribunal by way of assistance is not free from doubt.

What is free from doubt however, is that the tribunal cannot abrogate its responsibility to counsel, in the sense of instructing counsel to determine the issue before the tribunal and prepare its written decision.

It is trite to say it is trite law that each case depends on its own facts. What is important, however, and what ultimately is the determining factor in each case is whether the "conduct of counsel" and the "actions of the tribunal" amount to an apprehension of bias, such that there is no longer an appearance of fairness, which so taints the hearing, that a reasonable person would not perceive that the "investigated person" was and will not be dealt with fairly.

Conclusion

In my opinion, in general, it is proper for counsel to:

1.  Attend at the hearing of a tribunal, to provide advice to the tribunal, when requested by the tribunal to do so, provided, except in very special circumstances, that such advice is given openly and in the presence of all interested parties.

2.  Assist the hearing tribunal in preparing and even drafting the reasons for the decision of the tribunal.

In the application before me, I find that counsel to the Committee exceeded the limit set out in

1.  above, resulting in a breach of natural justice, and although she may not have exceeded the limit set in 2. above, the Reasons as they appear on the Record, create an apprehension of bias such that there is not an appearance of fairness, thereby resulting in a breach of natural justice.

Facts And Authorities Re Right Of Applicant To Be Informed Of Cases, Materials And Arguments Relied On By Committee In Arriving At Its Reasons:

Factual Basis

An examination of the Transcript and the Reasons indicate that the applicant was not given the opportunity to make representation as to: the meaning of the word "forthwith" in s. 13.1(1) and (8); the rationale and the extent thereof in Rankel; or the relevance of the provisions contained in the Psychology Professions Act.

Authorities

This matter is also discussed generally in J. Casey, Regulation of Professions in Canada at pp. 8-38-39, where it again appears that there are different views.

The author suggests, at p. 8-39 that perhaps:

"the solution lies in the adoption of a procedure which permits counsel to a discipline tribunal to be present during deliberations but which also ensures that the dictates of procedural fairness are met. A commitment that the 'prosecutor' and counsel to the member facing charges will be given the opportunity to address any new legal issues or arguments which arise during deliberations and which were not previously canvassed by the parties in open hearing, should alleviate most of the concerns. It is interesting to  note that this matter has been partially addressed in some legislation. Section 12(3) of the Health Disciplines Act [of Ontario] provides that a Discipline Committee may seek legal advice, but in such a case the nature of the advice should be known to the parties in order that they may make submissions as to the law. An opportunity to present full argument includes the opportunity to know what legal arguments are presented against a party and to meet them."

Conclusion

In the case of hearings generally, and specifically in the case of a discipline hearing, similar to the Hearing in this application, which may result in depriving a professional of his or her profession and livelihood, it is imperative in my opinion, that the rules of natural justice be observed.

In my view, one of the rules of natural justice is that an "investigated person" such as the applicant must be given the opportunity to first know and then address, comment, make and give full answer and representation as to all arguments, authorities, information and materials which may be considered or relied upon by the hearing tribunal.

In the application before me, it is clear that the applicant through her representative was not given such opportunity, thereby resulting in a breach of natural justice.

Full Answer And Defence - Right Of Cross-Examination: Factual Basis

It is clear from the Transcript that the respondent did not intend to call any witnesses, but simply rely on the contents of the Report.

The following appears at p. 42 of the Transcript:

"MS. TRYLINSKI: ... You know what the case is, Richard. [i.e. Richard West, the applicant's representative at the Hearing]. I have told you several times by telephone that the Investigative Report that I am proposing to put before the Conduct and Competency Committee. I advised you that I wasn't prepared to call any witnesses. That I wasn't planning to call any witnesses and it would be this report that was put before the committee." (lines 1523).

Authorities

The legislature has addressed the right of cross-examination of an "investigated person" in the Administrative Procedures Act of Alberta, which provides that:

"s. 5 When an authority has informed the party of facts or allegations and that party

(a)    is entitled under s. 4 to contradict or explain them,

(b)     will not have a fair opportunity of doing so without cross-examination of the person making the statements that constitute the facts or allegations, the authority shall afford the party an opportunity of cross-examination in the presence of authority or of a person authorized to hear or take evidence for the authority."

The following decisions also deal with the right of cross-examination of an "investigated person":

(a)    The Innisfil (Township) v. Vespra (Township), South Simco Estates et al. (1981),  37

N.R. 43; 123 D.L.R.(3d) 350, at 540 (S.C.C.), where it was held that although hearsay evidence is admissible, when the rights of a person in the position of the applicant are involved and a statute such as the Act affords her the right to a full hearing, the applicant has the right to meet the Complaint against her by cross-examination.

(b)      Hirt y. College of Physicians and Surgeons (B.C.) (1986), 34 D.L.R.(4th) 331 (B.C.C.A.), wherein it was held that where a person whose reputation, livelihood and professional status is at stake, he or she has a right to challenge or test the case against him or her by cross-examining the complainant as well:

"The College must prove the allegations brought against the doctor and it must do so to a high standard of proof ... that concept of the burden of proof, in my opinion, refutes the submission of counsel for the College as to the obligation of the doctor to refute the suggestion of undue inference," Taggart, J.A.,

(c)    In Crandell v. Manitoba Associationof Registered Nurses (1976), 72 D.L.R.(3d) 602 (Man. Q.B.), where the disciplinary committee in that case only considered the Report of the Registrar, Solomon, J., at p. 603 had this to say:

"It was perfectly understandable for the Registrar to make preliminary investiga- tions based on the reports of the complainants. Once the preliminary investigation was completed and the Committee felt that there was sufficient evidence to justify  a hearing, the complainant should then have been called to testify viva voce during a hearing in the presence of Appellant so she could have had a chance to cross- examine them on their testimony. People who make complaints might mean well or might have done so because of personal disagreements with the Appellant and the only way their evidence could be tested is by cross-examination."

In Roenisch v. Alberta Veterinary Medical Association (1968), 66 D.L.R.(2d) 358 (Alta. S.C.), Milvain, J., as he then was, commented at p. 364 as follows:

"It was also argued that the council had failed to conduct its hearing on the basis  dictated by natural justice. It was pointed out that affidavits and statements were admitted in evidence under circumstances precluding any cross-examination. I am satisfied the decision could quite properly be set aside on that ground. When it is  realized how serious a matter it is to deprive a professional of his profession, it is all the more imperative that natural justice he recognized. There is nothing much more important than the right and opportunity to cross-examine."

Conclusion

The respondent had and has a duty generally to ensure that all persons material to any complaint are present, give evidence at and from the commencement of the hearing, and that the "investigated person" is allowed the opportunity to cross-examine them. Failure to do so may well taint the hearing to the extent that it must be quashed.

VII.  Disposition:

For all of the foregoing reasons, the application of the applicant is granted, the Hearing is quashed, and prohibition is granted in respect of any further proceedings relating to the Complaint.

The applicant shall have costs on column 5 of Schedule "C"; including the costs of  preparation of briefs, entry of judgment and reimbursement of photocopying and disbursements including G.S.T.

Application allowed.

[ScanLII Collection]