Number 2– November, 2004

• Disclosure of Expert Evidence in Disciplinary Proceedings
• Teachers’ Professional Discipline Regulations Apply Retroactively
• Recent Criminal Code Amendments and Their Impact on Professional Associations

Disclosure of Expert Evidence in Disciplinary Proceedings

By Sharan Basran

1. Introduction

The right to full disclosure for a healthcare professional facing allegations of misconduct is fundamental in disciplinary proceedings. Timely disclosure affords the health care professional full notice of the particulars of misconduct as well as the nature of the evidence upon which the prosecution relies in support of the allegations.

The specific disclosure obligation placed on regulatory bodies in Ontario is recognized in the Health Professions Procedural Code (Code) of the Regulated Health Professions Act. In particular, section 42(1) of the Code requires that the evidence be disclosed to a member at least 10 days before the hearing. This 10-day notice period applies with equal force to the disclosure of expert evidence by either the College or the Member.

2. Importance of Expert Evidence

The importance of expert evidence to disciplinary proceedings has long been recognized in Ontario Courts. It has been found that expert evidence may be essential to a finding of professional misconduct, particularly where the allegations involve a breach of standards of practice. A Discipline Committee cannot exclusively rely on its own expertise without other expert evidence on the record which may be tested by the parties in cross-examination and weighed (Reddall and College of Nurses (1983), 42 O.R. (2d) 412, McGuire v. Royal College of Dental Surgeons of Ontario (1991), 44 O.A.C. 11). Given the importance and complexity of expert evidence, as well as practical considerations such as the time required to retain and consult with a defence expert, it is surprising that the notice period is not longer.

Despite this relatively short notice period, some Colleges have failed to provide adequate disclosure in a timely manner. The failure to fulfill statutory obligations under the Code may be fatal to the prosecution. This is demonstrated in a recent case before the College of Nurses of Ontario.

The allegations in this recent case primarily related to the adequacy of assessments made by three nurses (Members) of a resident in a correctional facility. Counsel for the Members, brought a motion alleging that the College of Nurses had failed to fulfill the requirements of section 42 with regards to disclosure of expert evidence. The disclosure provided was held to be inadequate in substance and in timeliness.

3. Disclosure inadequate in substance

The Members were provided with notes from interviews with expert witnesses with a disclaimer stating “Please note: The following is a summary of the investigator’s interview with the interviewee. It is not a statement of the interviewee and has not been reviewed, or approved as accurate by the interviewee”. Counsel for the Members argued that providing unapproved notes did not constitute notice or a summary of the anticipated testimony from the expert, and the Members therefore would not be able to provide a full defence. In addition, it was argued that the area of expertise was not clearly identified in the interview notes.

The Discipline Committee determined that the interview with the witnesses did not meet the definition of either a “written report” or “written summary of the evidence” under section 42(1)(b) of the Code due to the disclaimer and the failure of the experts to verify the accuracy of the notes.

4. Disclosure untimely

The complaint against the Member was referred to the Discipline Committee in April 2003 and ongoing requests for disclosure were initiated in July, 2004. The hearing commenced on January 12, 2004 with a preliminary motion for third party production and the evidentiary portion of the hearing began on February 23, 2004. The interviews of some of the experts did not take place and were not provided until February 2004.

The Committee found that the disclosure was untimely. The Committee noted that although the prosecution indicated expert evidence was necessary in a standards case, there was no satisfactory explanation for not providing adequate expert reports at least 10 days prior to the hearing.

Result : Exclusion of Expert Evidence

The Committee was faced with the choice of excluding the expert evidence, or alternatively pursuant to section 42(2) to allow the evidence subject to measures to avoid any prejudice to the Members. The Committee decided to exclude the expert evidence on the grounds that no justification had been provided for the delay in disclosure.

Conclusion

This decision affirms the fundamental importance of timely and adequate disclosure of relevant evidence in professional disciplinary proceedings. Disclosure must not only meet any notice requirements, but the disclosure must be adequate in substance to permit a health care professional a meaningful opportunity to appreciate and respond to the evidence.

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Teachers’ Professional Discipline Regulations Apply Retroactively

By Fay Faraday

In May 2004, the Ontario Superior Court (Divisional Court) heard two applications for judicial review challenging the retroactive application of professional discipline regulations under the Ontario College of Teachers Act, 1996 (Act): Bhadauria v. Ontario College of Teachers, (Court File #377/03) and Cressman v. Ontario College of Teachers (Court File #748/03). In each case, the College’s Investigation Committee referred to the Discipline Committee and the Discipline Committee took jurisdiction over allegations of professional misconduct regarding conduct that occurred before the College came into existence and before the professional misconduct regulations under the Act were made.

Issues

Two key issues were raised on judicial review in each case:

1. Can the Act and the regulation under it which creates the offence of professional misconduct apply retroactively?

2. Does the College’s delay in investigating allegations of professional misconduct violate the duty of fairness?

In its judgment in Bhadauria, released 9 June 2004, the Divisional Court ruled that the Ontario College of Teachers Act does give the College jurisdiction to impose discipline for matters that took place before the College came into existence. Moreover, the Court ruled that although the statute mandates that the College use its “best efforts” to dispose of a claim within 120 days, the three-year delay in this case (which itself had been preceded by an unexplained two-year delay by the School Board in filing its complaint with the College) did not constitute abuse of process.

The Court has reserved judgment in Cressman and, at the date of writing, the decision has not yet been released. The remainder of this article, then, examines the decision in Bhadauria.

In 1989, Jagdish Bhadauria was terminated from his teaching position with the Toronto Board of Education as a result of two letters he had written to the director of the Board which were found to be offensive and unprofessional. Mr. Bhadauria’s termination was the subject of a grievance arbitration that proceeded to the Supreme Court of Canada which, in 1997, upheld his termination: Toronto Board of Education v. OSSTF, District 15 [1997] 1 S.C.R. 487.

In July 1999, two years after the Supreme Court of Canada decision, the Toronto Board filed a complaint of professional misconduct with the Registrar of the Ontario College of Teachers in relation to the two 1989 letters. The College notified Mr. Bhadauria of the complaint in February 2000. More than two years later, on 30 May 2002, the Investigation Committee referred the matter to the Discipline Committee. The Discipline Committee conducted a four-day hearing and in March 2003 ruled that the letters constituted professional misconduct.

Mr. Bhadauria, who was not represented by a lawyer, applied for judicial review to the Divisional Court.

Retroactive Application of Professional Discipline Statute

As a general rule, there is a strong legal presumption that statutes cannot apply to events that occurred before they were enacted. A statute can only apply backwards in time – can only apply retroactively – if this power is expressly or by necessary implication required by the language of the statute. The underlying rationale to this presumption is that it is unfair to change the legal status of past acts. If conduct was not subject to legal consequences when it occurred, it would be unfair for a statute to reach back in time and change the legal consequences of such conduct by imposing new liabilities or obligations. The Ontario Court of Appeal has also recently confirmed that professional discipline statutes must be interpreted narrowly by the courts and must be strictly complied with: see for example Henderson v. College of Physicians and Surgeons of Ontario (2003), 65 O.R. (3d) 146 (C.A.).

Nevertheless, in this case, the Court ruled that the Legislature did intend the College to have jurisdiction over acts amounting to professional misconduct which took place before the College and the professional discipline regulation came into existence. The Court relied on s. 14(5) of the Act to reach this conclusion. Section 14(5) provides that:

“A person whose certificate of qualification and registration is revoked or cancelled continues to be subject to the jurisdiction of the College for professional misconduct, incompetence or incapacity referable to any time during which the person held,

(a) a certificate of qualification and registration under this Act; or

(b) an Ontario Teacher’s Certificate or a letter of standing as a teacher under the Education Act.”

The Court found that, in the case of persons whose certificates have been cancelled or revoked, s. 14(5) grants the College jurisdiction to address professional misconduct “which occurred at any time the person held a certificate” (emphasis added). Reasoning by analogy, the Court found that if the legislation applies retroactively to persons whose certificates have been revoked or cancelled, it must, even more certainly, apply to persons who continue to be certified. To find otherwise would result in the absurd situation where current members have immunity regarding conduct that pre-dates the Act while former members would not. The Court also ruled that because one of the primary purposes of the College is to protect the public, the presumption against retroactive application of statutes could be rebutted.

Although this case arises in the context of the College of Teachers, it will be of interest to other regulated professions. Ultimately, the degree to which any particular College can take retroactive jurisdiction over matters of professional discipline will fall to be determine on the specific language of the governing statute.

Delay

On the issue of delay, the Court acknowledged that under s. 26(9) of the Act, the statutory language requires that the Investigation Committee “shall use its best efforts” to dispose of a claim within 120 days. As the School Board’s complaint was filed with the College in July 1999, the Court found that “absent exceptional circumstances” the Investigation Committee should have dealt with it by the end of November 1999. In fact, the Committee did not refer the complaint to the Discipline Committee until the end of May 2002 - almost three years after the complaint was filed. There was no explanation for the delay. At the Discipline Committee hearing, Mr. Bhadauria did not ask for a stay of the proceedings due to delay and did not present evidence that he suffered any psychological or emotional harm that could be linked to the delay. On the facts of the case, the Court found that the delay is not such that it impaired the fairness of the hearing or impugned the disciplinary proceedings: “His case is not one of those few cases that if proceeded with would be contrary to the interests of justice.” After noting that in another case a delay of three years “could very well be such as to amount to an abuse of process”, it found that on the present facts it was not. The Court went on to state: “We find it inexcusable on this record for the College to have take as long as it did to process the complaint against Mr. Bhadauria where the legislation requires the Investigation Committee to use its best efforts to dispose of complaints in 120 days. It is not, however, such as to amount to abuse of process.”

Conclusions

This ruling raises real questions about whether and the extent to which regulatory bodies can be effectively held to their statutory obligations to address complaints in a timely way. Although the Court ruled that “absent exceptional circumstances” the complaint should be dealt with within 120 days, the College was not put to the test to show that exceptional circumstances existed to cause the delay in this case. The Court allowed the three-year delay even though the College offered no explanation for the delay. Although“best efforts” clauses like s. 26(9) have not received much scrutiny in the Courts, the Bhadauria ruling appears to be consistent with other cases which suggest that unless a “best efforts” clause is accompanied by an express provision prescribing specific consequences for failing to comply with the stipulated time line, courts will be reluctant to hold the regulatory body to the time line or to find an abuse of process.

To view a copy of the Bhadauria decision, click on the following link: http://www.canlii.org/on/cas/onscdc/2004/2004onscdc10387.html

A further UPDATE on these issues will be provided when the Cressman decision is released.

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Recent Criminal Code Amendments and Their Impact on Professional Associations

By Maureen Forestell

“Organizations”: “Professional associations” and “trade unions”

The Criminal Code was amended on March 31, 2004 to create criminal liability on the part of an ‘organization’ for the acts and omissions of its representatives. While the stated goal of the legislation was to create corporate responsibility, particularly in the case of an unsafe work environment, the provisions in fact capture a broad range of associations and unions and create broad liability on the part of the organization for the acts and omissions of its members.

‘Organization’ is defined as:

“...a public body, body corporate, society, company, firm, partnership, trade union, or municipality, or an association of persons that is created for a common purpose, has an operational structure and holds itself out to the public as an asssociation of persons.”

A ‘representative of an organization’ is defined as:

“...a director, partner, employee, member, agent or contractor of the organization.”

The definition of organization explicitly applies to trade unions. It also applies to any professional association.

The new provisions create two separate tests for the liability of an organization. One test applies to offences which require proof of negligence and the other applies to offences which require proof of ‘fault’ other than negligence.

Offences Involving Negligence

In offences of negligence, section 22.1 provides:

22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if

(a) acting within the scope of their authority

(i) one of its representatives is a party to the offence, or


(ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and

(b) the senior officer who is responsible for the aspect of the organization's activities that is relevant to the offence departs - or the senior officers, collectively, depart - markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence.

The offences of criminal negligence causing death or criminal negligence causing bodily harm may be invoked in conjunction with the new provisions to charge an association if medical treatment of any kind is impeded by the withdrawal of services by its members. However, this would require proof of a marked departure from the standard of care that could reasonably have been expected of the senior officer/s of the organization to prevent the members from being parties to the offence. This would likely mean proof of knowledge on the part of the organization and an absence of any reasonable effort to prevent the act or omission on the part of the members.

Offences Involving other Levels of “Fault”

In offences of ‘fault’ section 22.2 provides:

22.2 In respect of an offence that requires the prosecution to prove fault - other than negligence - an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers

(a) acting within the scope of their authority, is a party to the offence;


(b) having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or

(c) knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence.

Fault is not defined except negatively, i.e. it is anything other than negligence. It therefore includes recklessness. The first portion of the section which makes the organization responsible for the acts and omissions of its senior officers acting within the scope of their authority will clearly capture picket-line disturbances if the prosecution can prove that the senior officers participated in the offence or directed members to participate. The organization would then be open to criminal liability.

The third subsection is even more broad. The organization is made liable if any one of its senior officers is aware of the actions or planned actionsof a member to engage in any criminal act or omission and does not take all reasonable measures to stop them.

The effect of this is to impose a positive duty on a union or professional association to attempt to stop any possible offence by its members. The only time that this obligation is triggered is when the intent of the perons committing the offence is to benefit, even in part, the organization.

An obvious example is where a member of a union expresses an intention to commit an assault or to damage property in the course of a labour dispute.

While the amending provisions of the Criminal Code are said to have been aimed at issues of corporate responsibility and specifically workplace safety, the inclusion of trade unions and associations in the definitions creates a broader application. Professional associations, trade unions and even recreational clubs should be aware of these provisions and their potential implications.

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