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	Administrative Law and Practice Points


	CRIMINAL DISCLOSURE REQUIREMENTS APPLY TO TRIBUNALS
	by Lisa Braverman
	December 2006 - No. 15

	Disclosure of potential evidence is an important aspect of the duty of fairness of an administrative tribunal. But, the extent of disclosure that is required has been discussed repeatedly in the caselaw. In particular, it is not clear whether the disclosure requirements in criminal cases apply to administrative tribunal proceedings. For a long time, there was no duty to provide additional disclosure other than what was specifically required by statute including the administrative tribunal’s governing statute. More recent cases suggest that the general principles of disclosure from criminal cases also apply to administrative tribunal proceedings that are disciplinary in nature. One such recent case is the decision of the Divisional Court in Waxman v. Ontario (Racing Commission). In the case of Waxman v. Ontario (Racing Commission), [2006] O.J. No. 4226, on May 10, 2006, the Commission issued to Daniel Waxman and Vadalay Racing a Notice of Proposed Order to suspend their licences, to impose a fine of $100,000, to disqualify certain horses from racing and to redistribute the purses won by those horses of ~$450,000 to other participants. In this case, pre-hearing disclosure had been an issue between the parties. In July 2006, the licensees received 12 volumes of documents including a redacted version of the handwritten notes of the principal investigator but no indication of the identity of the witnesses or their evidence other than an interview report of one of the witnesses and none of the investigative reports. On September 19, 2006, a pre-hearing was held and the Commission agreed to disclose a list of witnesses, which was done. On September 29, 2006, at the resumed pre-hearing, the Commission refused to provide the licensees with witness statements and the investigative reports. Subsequently, a disclosure motion was heard by the Commission where the licensees sought a summary of the evidence of the witnesses, identification of the documents on which the prosecution intended to rely, an unredacted copy of the investigator’s notes and a copy of the investigative reports. The Commission dismissed the motion except for directing counsel to review the investigative reports and if necessary make further disclosure and that if any witness statements become available before the hearing to disclose them. Fourteen investigative reports were disclosed, 12 of which had not been previously disclosed. The investigative reports contained extensive data about the investigation, contacts with various persons to obtain information and analysis of documents by the investigator. Consequently, the licensees brought an urgent application for judicial review, as their discipline hearing was scheduled to take place in 2 days. The licensees asked for disclosure of the refused documents and an adjournment of the discipline hearing to give them time to review the documents in order to prepare their case. The major issue of disagreement between the parties on this judicial review related to the disclosure of the witness statements. Counsel for the licensees argued that because of the serious nature of the allegations, the licence suspensions sought and the large monetary penalties sought, a high standard of procedural fairness is called for in this case. In terms of the witness statements, the licensees submitted that such material is a necessary part of the minimum acceptable disclosure, particularly in a case where a person’s livelihood is at stake. On the other hand, Commission counsel argued that the duty of fairness was met by disclosure of the investigative reports and that there was no obligation to disclose witness statements. The Commission also indicated that it is not their practice to disclose such material. The Court in its analysis criticized the Commission for only directing disclosure of witness statements if any were prepared. The Court felt that this type of decision understated the degree of disclosure appropriate for the case and created a fundamental unfairness to the licensees in this proceeding. The Court described the degree of disclosure that it felt was appropriate by referring to the following excerpt from the case of Markandey v. Ontario (Board of Ophthalmic Dispensers): The importance of full disclosure to the fairness of the disciplinary proceedings before the Board cannot be overstated. Although the standards of pre-trial disclosure in criminal matters would generally be higher than in administrative matters, tribunals should disclose all information relevant to the conduct of the case, whether it be damaging to or supportive of a respondent’s position, in a timely manner unless it is privileged as a matter of law. Minimally, this should include copies of all witness statements and notes of the investigators. The obligation to make disclosure is a continuing one. The Board has a positive obligation to ensure the fairness of its own processes. The failure to make a proper disclosure impacts significantly on the appearance of justice and the fairness of the hearing itself. Seldom will relief not be granted for a failure to make proper disclosure. In concluding that the hearing would be irretrievably tainted with unfairness from the outset without disclosure of witness statements, the Court said the following: …A person defending her licence to practice or defending his livelihood must have the opportunity to know the case and to prepare to defend it. The preparation of a defence necessarily requires knowledge of the essence of the evidence on which the accuser relies: trial by ambush is incompatible with a fair hearing. The provision of a summary of the anticipated evidence of each witness is an essential part of disclosure in a case such as this one. That some of the witnesses’ information is referred to in the investigator’s reports is not an answer to this need, unless it is made clear that the witness will say nothing beyond what is expressly set out in the report. During the course of the decision, the Court looked at the standard of disclosure required in criminal cases. In particular, the Court indicated that in criminal cases, the accused is entitled to such disclosure as will enable him to make full answer and defence; sufficient to fairly apprise the accused of the case to be met in sufficient time and substance to enable the accused to adequately prepare and defend that case. The Court considered the applicability of the standard of disclosure in criminal cases and said the following: While the standard for disclosure in administrative law cases generally may be somewhat lesser, in cases involving the loss of one’s livelihood, disclosure cannot be much, if any, below the criminal standard… A number of other cases other than Waxman have considered the applicability of the standard of disclosure in criminal cases. For example, the British Columbia Supreme Court in Familamiri v. Assn. of Professional Engineers and Geoscientists of British Columbia, [2004] B.C.J. No. 995 said the following: However, a persuasive line of cases has since established that where the administrative proceedings are disciplinary, the criminal Stinchcombe standard should be applied…Because of the significance and impact on the individual of professional disciplinary proceedings, a high standard of disclosure is required. The respondent in this case does not contest the application of the Stinchcombe standard… Similarly, Laskin J.A. dissenting in the Ontario Court of Appeal’s decision in Howe v. Institute of Chartered Accountants of Ontario (1994), 19 O.R. (3d) 483 said the following: …In this sense, the chair of the Discipline Committee was literally correct in stating that Stinchcombe does not apply to professional regulatory proceedings. But several of the observations made by Sopinka J. in that case seem apt to determine the content of the fairness obligations of administrative tribunals. Thus, it is hardly surprising that many courts have already applied a number of the principles underlying the decision in Stinchcombe to administrative proceedings… Also, in Milner v. Registered Nurses Assn. of British Columbia, [1999] B.C.J. No. 2743, the British Columbia Supreme Court said the following: …the Courts have clearly moved toward requiring administrative disciplinary tribunals to approach, if not meet, the Stinchcombe standard. … On a review of all the case authorities, it appears clear that more recently the standard of disclosure in the case of professional disciplinary tribunals has been expanded far beyond the narrow administrative law model. Finally, most recently in Sheriff v. Canada (Attorney General), [2006] F.C.J. No. 580, the Federal Court of Appeal said the following: The scope of disclosure in professional hearings continues to be expanded by provincial courts, which have applied the Stinchcombe principles in cases where the administrative body might terminate or restrict the right to practice or seriously impact on a professional reputation… In this case, the Trustees face a suspension of their license and injury to their professional reputation. In order to fully understand the case against them and to ensure a fair disciplinary proceeding, the Trustees must have access to all relevant material which may assist them. This is consistent with the Superintendent’s earlier ruling in this case that the SDA had a duty to disclose all documents unless they were “clearly irrelevant”. … In sum, the procedural requirements for disciplinary proceedings pursuant to sections 14.01 and 14.02 which give rise to sanctions, as well as the Superintendent’s Directive, collectively give rise to a clear duty to afford the Trustees fulsome disclosure, similar to the Stinchcombe principles… … In my respectful view, the Applications Judge erred in deciding that Stinchcombe principles do not apply in this case. PRACTICAL TIPS: The following information provides practical tips for administrative tribunals in fulfilling their disclosure obligations: ·An administrative tribunal should review its governing statute to determine if the statute establishes any disclosure requirements. If the statute establishes disclosure requirements, the administrative tribunal must interpret the relevant statutory provisions to determine the scope and timing of its disclosure obligations. For example, under section 42 of the Health Professions Procedural Code in Ontario’s Regulated Health Professions Act, 1991, the College must disclose, at least 10 days before the discipline hearing, the identity of witnesses and the identity of an expert and a copy of the expert’s written report or, if there is no written report, a written summary of the evidence. ·An administrative tribunal should also review any applicable general procedure statute to determine if the statute establishes any disclosure requirements, For example, in Ontario, section 5.4 of the Statutory Powers Procedure Code allows a tribunal to make orders for the exchange of documents, the oral or written examination of a party, the exchange of witness statements and reports of expert witnesses, the provision of particulars; and any other forms of disclosure, if the tribunal’s rules of procedure deal with disclosure. Many tribunals in Ontario have developed Rules of Procedure for their Discipline Committees and these should be reviewed to determine a tribunal’s authority to make disclosure orders. ·Whether or not the governing statute or a general procedure statute establishes any disclosure requirements, in an administrative tribunal proceeding that is disciplinary in nature, all relevant information about the case should be disclosed including all witness statements on a timely basis. ·Investigators need to ensure that they keep a complete record of all information obtained during the course of their investigations so that adequate disclosure can be made.



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	This newsletter is published by Steinecke Maciura LeBlanc, a law firm practising in the field of professional regulation. For more information, contact: Lisa S. Braverman Steinecke Maciura LeBlanc Barristers & Solicitors, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON M5H 2Y4, Phone: (416) 599-2200 Ext. 278 Fax: (416) 593-7867 E-Mail: lbraverman@sml-law.com This newsletter will discuss new developments in administrative law, major trends or changes in administrative tribunals, recent administrative law cases decided by courts and tribunals and practical advice for staff/members of administrative tribunals and lawyers practising in this area. Please consult with a lawyer for specific legal advice. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to the above-noted address. Comments and suggestions are also welcome.