Discipline Committees have long struggled with the problem of trying to understand the level of certainty they must have before finding that a professional has engaged in professional misconduct. This problem is particularly difficult when it comes to credibility.  For example, when a client or patient says one thing and a member says another, how does the Discipline Committee decide what happened and whether the professional is guilty of professional misconduct?

In Ontario, the most commonly accepted test for establishing professional misconduct was set out in Bernstein and College of Physicians of Surgeons of Ontario (1977), 76 D.L.R. (3d) 38 (Div. Ct.).  In that case, the Ontario Divisional Court said that a Discipline Committee must be satisfied that a professional engaged in professional misconduct on “a balance of probabilities” before making such a finding. In trying to explain the balance of probabilities, the court went on to say that the Discipline Committee “must be reasonably satisfied that the fact occurred”.  The Committee must consider the totality of the evidence, including the nature and consequences of the fact or facts to be proven, the seriousness of the allegation and the gravity of the consequences.  In short, “the degree of proof required in disciplinary matters … is that the proof must be clear and convincing and based upon cogent evidence which is accepted by the tribunal.”

This test is generally taken to mean that the more serious the offence, the more cogent and compelling the proof must be.  For example, while all misconduct must be proven on “a balance of probabilities”, more compelling evidence must be established in serious cases, such as sexual abuse, as opposed to, for example, the failure to keep proper records.

This problem is particularly difficult when it comes to determining issues of credibility.  When faced with this problem, Discipline Committees often try to decide the matter on the basis of whom they think they believe.  However, a number of cases make it clear that in fact this is not the proper test, and Discipline Committees should not merely decide whether they believe the complainant or the practitioner.  Rather, they must decide whether the prosecutor has proven misconduct on the balance of probabilities, having regard to the test in Bernstein.

For example, the Supreme Court of Canada in a recent case held that it is incorrect to decide whether the defence evidence or the Crown’s evidence is believed. Instead, where credibility is significant, the decision maker must consider the matter in the following manner:

1. If the decision maker believes the evidence of the professional, there can be no finding of misconduct.
2. If the Committee does not believe the testimony of the member but is left without believing that misconduct has been proven on the balance of probabilities, the Committee cannot find that the member engaged in professional misconduct.
3. Even if the Discipline Committee is in doubt by the evidence of the practitioner, they must still ask themselves whether they are convinced on the balance of probabilities that the practitioner engaged in professional misconduct on basis of the balance of the evidence that the Committee does accept.

The real issue here is that the Discipline Committee need not actually believe the evidence of the practitioner in order to find that the practitioner did not engage in professional misconduct.  Instead, the onus always stays with the prosecutor to prove, on the balance of probabilities as defined by the test in Bernstein, that the professional did in fact engage in professional misconduct.  This exercise is quite different from asking the more simple question, “Whom do I believe”?

Since professionals usually testify in cases where their conduct is in issue, this issue arises quite frequently.  It is therefore very important that Discipline Committees do not find that a practitioner engaged in professional misconduct simply because they do not necessarily accept all of the evidence offered by the practitioner at a discipline hearing.

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