Active and Aggressive Participation by Tribunals in JR/Appeals Discredits their Impartiality

*[65]  It is well established that a tribunal whose decision is challenged in judicial review proceedings should not appear to defend the merits of its decisions.  As stated by the Supreme Court of Canada in Northwestern Utilities Ltd.   v.  Edmonton (City) [1979] 1 SCR 684 (SCC) at page 709:

"Such active and even aggressive participation can have no other effect than to discredit the impartiality of an administrative tribunal either in the case where the matter is referred back to it, or in future proceedings involving similar interests and issues or the same parties. The Board is given a clear opportunity to make its point in its reasons for its decision, and it abuses one's notion of propriety to countenance its participation as a full-fledged litigant in this Court, in complete adversarial confrontation with one of the principals in the contest before the Board itself in the first instance." (*Douglas  v. AG CANADA 2013 FC 451)

Berge  v. College of Audiologists:

The principle of law articulated above is also applicable in circumstances where there is
a statutory right of appeal from a tribunal's decision.  This is the case under the
Regulated Health Professions Act where decisions can be appealed to the Divisional
Court on findings of fact or law.  In Berge  v.  College of Audiologists and Speech
-Language Pathologists of Ontario et al 2016 ONSC 7034 counsel for the College
sought to satisfy a Discipline Committee that a Complaints Committee of the College
had complied with the statutory requirements for referral not by producing the
decisions of that body but by affidavit evidence from the Director of Professional
Conduct that the proper process was followed. Both the Discipline Committee and
the Divisional Court accepted the proffered evidence.

Was Evidence that Referral Body
Adopted College Counsel's
New Particulars Omitted ?

Fresh evidence received by Berge following the Divisional Court's decision on her statutory appeal in the form of the referring bodies Procedure Manual tends to reveal that the findings of both the Discipline Committee and the Divisional Court were in error on their conclusions that the statutory process was complied with. Although requested to produce the Procedure Manual College counsel took the matter under advisement citing concerns over the possibility that the document could contain legal advice. College counsel answered the undertaking providing an excerpt from the Procedure Manual but not the full document. The portions which College counsel omitted showed that a critical part of the two step process which his witness testified to was absent from her evidence and therefore both the tribunal and the Divisional Court were denied the complete evidence upon which to decide whether the tribunal acted in accordance with the enabling legislation. The omitted evidence shows that the referring body was required to adopt whatever particulars were drafted by College counsel in order that those particulars drafted by College Counsel could be referred to the Discipline Committee.

The Berge supra matter is now the subject of a Rule 59 motion before a panel of the
Divisional Court on the basis of that the incomplete evidence proffered by the College
to support the finding that they complied with the statutory scheme is clearly in error.
College counsel who drafted the particulars which are in dispute, drafted the affidavit
for the Director of Professional Conduct, provided legal advice to the referring body
and acted for the College before the Discipline Committee, the statutory appeal before
the Divisional Court is now seeking to act for the College on the Rule 59 motion.

A motion is pending in the Divisional Court seeking directions on the propriety of College counsel's continued representation in the circumstances.


Note:  E.J. Guiste is a trial and appeal lawyer based in the Toronto area.
His work involves professional discipline and other aspects of administrative law.
He is counsel for Berge on the pending motions in the Divisional Court. Any
information which is incorrect in this post should immediately be brought to the
writer's attention. The purpose of the exercise is to educate and noting more.
These are issues of public importance which the public may
take interest in.