Steinecke Maciura LeBlanc Barristers & Solicitors


Newsletters
	Administrative Law and Practice Points

		November 2009 No. 20	DISCLOSURE OBLIGATIONS AT THE COMPLAINTS/INVESTIGATIVE STAGE
			Generally, all administrative tribunals must ensure that they follow proper procedures when making decisions. In each situation, what is considered “proper” depends on a number of things, including the particular facts and surrounding circumstances of each case. Usually, a statute(s), regulation(s), by-law(s) and/or rules will establish the basic procedures that control the process for making decisions by an administrative tribunal. These basic procedures include: adequate notice, disclosure, the right to counsel and the right to present evidence and to cross-examine witnesses. These basic procedures are commonly found in the administrative tribunal’s governing legislation or general procedural statutes (i.e., the Statutory Powers Procedure Act, the Administrative Procedures and Jurisdiction Act, and the Administrative Tribunals Act). When the relevant legislation does not establish basic procedures, the common law procedural principles of fairness are applied to ensure that all individuals who are affected by the decisions of administrative tribunals are treated fairly.


		November, 2008 No. 19	DUTY OF FAIRNESS AT COMPLAINTS/INVESTIGATIVE STAGE
			Generally, all administrative tribunals must ensure that they follow proper procedures when making decisions. Usually, a statute(s), regulation(s), by-law(s) and/or rule(s) will establish the basic procedures that control the process for making decisions by an administrative tribunal. When the governing legislation does not establish basic procedures, the common law procedural principles of natural justice and, more recently, fairness are applied to ensure that all individuals who are affected by the decisions of administrative tribunals are treated fairly.


		July, 2008 No. 18	TRIBUNALS HAVE A DUTY TO PROVIDE REASONS
			Traditionally, the principles of fairness did not impose a general duty on an administrative tribunal to provide reasons for its decision. However, in the last decade or two, the Courts have shown an increasing willingness to require tribunals to provide reasons for their decisions on the basis of the principles of fairness. In 1999, the Supreme Court of Canada gave a landmark decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.J. No. 39 when it recognized that tribunals have a duty to provide written reasons in certain circumstances. The Court stated:


		November 2007 No. 17	ROLE OF PREVIOUS DECISIONS IN PENALTY ORDERS
			Administrative tribunals are often considered to be the same as courts even though they are very different from one another and have been created to fulfill distinct functions. The Supreme Court of Canada in Ocean Port Hotel Ltd. v. British Columbia (Liquor Control, General Manager) acknowledged that there is a fundamental distinction between administrative tribunals and courts. One of the differences between courts and tribunals is that courts are bound by precedent while tribunals are not. Even though tribunals are not bound to follow previous decisions or precedents they have an interest in considering and following previous decisions to promote fairness, certainty and consistency.


		September 2007 No. 16	ROLE OF INDEPENDENT LEGAL COUNSEL
			Contested discipline hearings are less common today than they were in the past as more discipline hearings are being resolved by way of settlement through an agreed statement of facts and joint submission on penalty. Nevertheless, when contested discipline hearings take place, Discipline Committees of administrative tribunals often face complicated legal issues dealing with matters of procedure or evidence and these Committees often do not contain legally trained members with litigation experience. As a result, Discipline Committees, with increasing frequency, are retaining independent legal counsel to provide them with assistance to deal with legal issues as they arise.


		December 2006 No. 15	CRIMINAL DISCLOSURE REQUIREMENTS APPLY TO TRIBUNALS
			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).


		October 2006 No. 14	TRIBUNALS ARE MASTERS OF THEIR OWN PROCEDURE
			Courts have repeatedly indicated that an administrative tribunal is a “master of its own procedure”, allowing the tribunal to decide what procedures (i.e. granting or denying adjournments, oral hearing vs. written submissions, joint vs. separate hearing) are appropriate given the circumstances of the case before it, subject to any restrictions or requirements imposed by the governing legislation or any other relevant legislation and by the principles of fairness. In the recent case of McLeod v. Alberta Securities Commission, [2006] A.J. No. 939, the Alberta Court of Appeal once again confirmed that an administrative tribunal is a master of its own procedure when it concluded that the absence of an oral hearing before the TSX Venture Exchange Inc., a subordinate regulatory body under the Securities Act, did not render the process unfair.


		July 2006 No. 13	IMPACT OF PRIVACY LEGISLATION ON REGULATORY INVESTIGATIONS
			When the federal privacy legislation, the Personal Information Protection and Electronic Documents Act (“PIPEDA”), came into effect there was considerable concern by professional regulators that their regulatory functions, especially their investigatory function, would be hampered without clear authority for employers, colleagues, clients, patients, members and other witnesses to disclose information to professional regulators without consent. This is why many professional regulators in Ontario and across Canada sought and obtained designation by Industry Canada as investigative bodies under PIPEDA to make it clear that personal information can be disclosed to them during the course of an investigation. In Ontario, these concerns were further alleviated when the Personal Health Information Protection Act, 2004 (“PHIPA”), came into effect as it expressly permitted health information custodians (which includes regulated health professionals and their employers) to disclose personal health information to Colleges under the Regulated Health Professions Act, 1991 (“RHPA”), the Board of Directors of Drugless Therapy-Naturopathy and the Ontario College of Social Workers and Social Service Workers without consent. The Divisional Court recently confirmed that records of an employee who is a member of a RHPA College may be disclosed to the College and used by it in the course of an investigation even when the employee has not given consent to the disclosure.


		December 2005 No. 12	DUTY OF FAIRNESS AT PENALTY HEARING
			Generally, all administrative tribunals must ensure that they follow proper procedures when making decisions. Usually, a statute(s), regulation(s), by-law(s) and/or rules will establish the basic procedures that control the process for making decisions by an administrative tribunal. When the governing legislation does not establish basic procedures, the common law procedural principles of natural justice and, more recently, fairness are applied to ensure that all individuals who are affected by the actions or decisions of administrative tribunals are treated fairly.


		November 2005 No. 11	REPORT ON PEO’S PROCEDURES FOR HANDLING COMPLAINTS
			In 2003, David J.D. Sims, Q.C., the Complaints Review Councillor of the Association of Professional Engineers of Ontario (“PEO”), initiated a comprehensive examination of the procedures for the treatment of complaints by PEO. In his February 20, 2005 Report, Mr. Sims addressed a number of unresolved issues surrounding the processing of complaints that have come to his attention during his tenure as Complaints Review Councillor from 1999 to 2005. Interestingly, at its June 2005 meeting, Council considered the Report and the feedback from both the staff of the Regulatory Compliance Department and the Complaints Committee and approved some but not all of the recommendations in the Report, including not approving the most controversial recommendation in the Report. Other professional regulators in Ontario and even across Canada will find that the Report and its subsequent consideration by PEO will provide useful information on both sides of the debate when evaluating their own complaints procedures.


		July 2005 No. 10	LAW SOCIETY’S TRIBUNALS TASK FORCE REPORT
			Less than a year ago, the governing body of the Law Society of Upper Canada established a task force to examine its tribunal process and procedures, including an examination of the hearings, appeals, decision-making and decision release process. The task force was mandated to develop recommendations to ensure a timely, fair, transparent, consistent and accessible process. In May, the Law Society’s governing body approved most of the task force’s recommendations. A number of the recommendations in their Report provide useful suggestions for other regulators to consider when evaluating their own process and procedures. The Report emphasizes the importance of this evaluation process to effective self-regulation: To ensure that self-regulation remains relevant and viable in Ontario, the Law Society must be committed to regularly re-evaluating its approaches and monitoring changing norms for professions around the world.


		December 2004 No. 9	COLLEGE SUCCESSFULLY APPEALS DISCIPLINE DECISION ON THE BASIS OF CREDIBILITY ERRORS
			It is very rare for a Court to interfere with an administrative tribunal’s findings of credibility because they hear and observe the witnesses. Courts do not interfere with findings of credibility made by an administrative tribunal unless there was no evidence to support the finding or the evidence was contrary to the finding. The recent decision by the Ontario Divisional Court in College of Chiropractors of Ontario v. Kovacs, [2004] O.J. No. 4353 is an example of such a rare situation. The decision of the Discipline Committee of the College of Chiropractors of Ontario, after a five day hearing, was set aside and a rehearing was ordered on the basis of a series of errors in considering the evidence and assessing credibility that were cumulatively so serious to lead the Court to the conclusion that the decision was unreasonable.


		July 2004 No. 8	Three Year Delay is not an Abuse of Process
			When administrative tribunals receive complaints, they need to ensure that investigations and ultimately discipline hearings are conducted on a timely basis. Otherwise, they run the risk that someone will raise an argument of delay, which may result in a Court prohibiting a discipline hearing from continuing or setting aside a finding of professional misconduct if a discipline hearing has already concluded.


		February 2004 No. 7	Privacy Guidelines For Regulators
			On January 1, 2004, the Personal Information Protection and Electronic Documents Act (“PIPEDA”), the federal privacy legislation for the collection, use, and disclosure of personal information, became law in all of the provinces across Canada including Ontario (with the exception of Quebec which is largely exempted from PIPEDA as Quebec’s private sector privacy law was deemed substantially similar to PIPEDA). Given the complexity of the legislation, PIPEDA has become a significant legal challenge for regulators, associations, and practitioners. For example, regulators have been faced with a number of challenging questions such as: Does PIPEDA apply to some or all of the activities of regulators? If PIPEDA does apply to regulators, what are the responsibilities of regulators to ensure compliance with PIPEDA? If PIPEDA does apply to regulators, what should be contained in a regulator’s Privacy Policy to balance the protection of personal information with a regulator’s mandate to protect the public interest? If PIPEDA does not apply to regulators, should regulators develop a Voluntary Privacy and Access Code and, if so, what should it contain?


		December 2003 No. 6	Charter Issues Can Be Decided By Administrative Tribunals
			A person appearing before an administrative tribunal sometimes argues that a section in an administrative tribunal’s governing statute violate the Canadian Charter of Rights and Freedoms (“Charter”). For example, in the recent case of Mussani v. College of Physicians and Surgeons of Ontario, Dr. Mussani and the Ontario Medical Association (as an intervenor) argued at the penalty stage of the hearing before the College’s Discipline Committee that the mandatory revocation provisions in the Health Professions Procedural Code (“HPPC”) of the Regulated Health Professions Act (“RHPA”) for sexual abuse violated sections 2(d), 7, and 12 of the Charter. The Court in this case agreed with the Discipline Committee that the mandatory revocation provisions did not violate the Charter without actually deciding, as a preliminary matter, whether the Discipline Committee had the authority to decide this Charter issue.


		July 2003 No. 5	Lack of Authority Trumps Fairness: Amended Notice of Hearing Set Aside
			Administrative tribunals including staff who are employed by administrative tribunals must act within the scope of the jurisdiction or authority given to them by their governing statute. Before taking any action, a staff member of an administrative tribunal must ensure he or she has the authority to act; otherwise, the consequences can be significant. This is exactly what happened in the recent case of Henderson v. College of Physicians and Surgeons of Ontario, [2003] O.J. No. 2213 (C.A.).


		May 2003 No. 4	Discipline Allegations ‡ Criminal Charges
			Administrative tribunals always want to ensure that they follow proper procedures when making decisions including providing adequate notice of the allegations being made against an individual and what decision(s) may be made. Adequate notice is important to allow that individual to decide if he or she will attend the hearing and make any submissions. Adequate notice is also important once an individual decides to attend the hearing to help that person prepare to defend himself or herself at the hearing. Notice becomes extremely important for professional regulators because the potential penalties that can be imposed after a discipline hearing can be significant.


		February 2003 No. 3	Lack of Authority: Committee's Decision Set Aside
			Administrative tribunals must act within the scope of the jurisdiction or authority given to them by their governing statute. Before taking any action, an administrative tribunal must ensure it has the authority to act; otherwise, there can be significant consequences for acting outside of its authority such as having a court set aside its decision. This is exactly what happened in the recent case of Katzman v. Ontario College of Pharmacists, [2002] O.J. No. 4913 (C.A.).


		October 2002 No. 2	Secret Meeting: Important Decision Set Aside
			As a general principle, Council or Board meetings of administrative tribunals should be open to the public. The basic duty for most administrative tribunals is to serve and protect the public interest. Therefore, the public has a strong interest in seeing that persons and groups affected by Council or Board decisions are treated fairly. This is such an important interest that many of the governing statutes of administrative tribunals make it a general requirement that Council or Board meetings should be open to the public.


		May 2002 No. 1	To Settle or Not To Settle
			In recent years, administrative tribunals are increasingly resolving complaints without the need of a hearing by entering into settlement agreements. In fact, some administrative tribunals such as the Ontario Human Rights Commission are required to attempt to settle a complaint and a hearing cannot be conducted when no attempt at settlement has been made. In addition, section 4.1 of the Statutory Powers ProcedureAct, the general statute which provides the minimum procedural requirements for administrative tribunal proceedings, specifically recognizes that a proceeding can be disposed of without a hearing if the parties consent. Given these developments, it is important for administrative tribunals to ensure that settlements represent a fair, efficient and effective alternative to full hearings.


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