CONTENTS

INTRODUCTION

Professional associations legislation following the standard model

Professional discipline: An overview

The standard model

The Investigation Committee

    1. The role of the Committee
    2. Quorum

Time considerations

    1. Interviewing the accused
    2. Search and seizure of records
    3. Other investigative methods

Mediation

OTHER MATTERS PRELIMINARY TO THE HEARING

Notice of hearing

Suspension of the accused pending the final decision

    1. Suspension for protection of the public
    2. Suspension and other issues when criminal charges are laid against the accused

THE HEARING BEFORE THE DISCIPLINE COMMITTEE

    1. Conduct of the hearing by the Committee
    2. Quorum
    3. The role of legal counsel
    4. Attendance of the accused
    5. Role of the complainant

    1. The right to a hearing
    2. Public or private hearing
    3. The form of the hearing
    4. Adjournments

    1. Types of evidence
    2. Rules of evidence
    3. Disclosure of evidence to the accused
    4. Evidence received by the Discipline Committee but not presented at the hearing

    1. Calling and cross examining witnesses
    2. Witness statements an affidavits
    3. Compelling the accused to testify
    4. Subpoena of witnesses and documents

DECISION AND PENALTY

The decision and reasons

The scope of the handbook

The handbook follows the stages of discipline proceedings under the "standard model", from receipt of the complaint to assessment of the penalty. It directs attention to statutory requirements and explains them. Decisions of the courts and general procedural rules are discussed when they are relevant. It should be noted, however, that the law governing professional discipline is constantly evolving. Where there is doubt about the current state of the law, the handbook attempts to identify "good practice" that will likely be approved by the courts.

Professional associations legislation following the standard model

ASSESSMENT APPRAISERS ACT, 1995

ARCHITECTS ACT, 1996

CERTIFIED GENERAL ACCOUNTANTS ACT, 1994

CHARTERED ACCOUNTANTS ACT, 1986

CHIROPRACTIC ACT, 1994

DENTAL DISCIPLINES ACT, 1997

DIETITIANS ACT, 2001

ENGINEERING AND GEOSCIENCE PROFESSIONS ACT, 1997

INTERIOR DESIGNERS ACT, 1995

LICENCED PRACTICAL NURSES ACT, 2000

MEDICAL LABORATORY TECHNOLOGISTS ACT, 1995

OCCUPATIONAL THERAPISTS ACT, 1997

OPHTHALMIC DISPENSERS ACT, 1978, rev. 1988-89)

PHARMACY ACT, 1996

PHYSICAL THERAPISTS ACT, 1998

REAL ESTATE ACT, 1995

REGISTERED NURSES ACT, 1988

REGISTERED PSYCHIATRIC NURSES ACT, 1993

SASKATCHEWAN APPLIED SCIENCE TECHNOLOGISTS AND TECHNICIANS ACT, 1997

SOCIAL WORKERS ACT, 1993

VETERINARIANS ACT, 1987

Professional discipline: An overview

Self-governance protects the autonomy of professions. It clearly in the interests of a profession to maintain standards and protect its reputation. As one commentator has observed, "the downfall of one individual is said to diminish all members of the profession . . . there is an interest in ridding the profession of the incompetent and the unethical." [Casey, The Regulation of Professions in Canada]

But the responsibility of self-governance is a heavy one. Self-governance is an alternative to direct licensing and regulation by government, and exists only because the Legislature has delegated responsibility to the professions. Self-governance is acceptable only if it serves the public interest. The Supreme Court of Canada has stated that it is difficult to overstate the importance of proper regulation of the professions. As the court observed, the primary justification of self-governance is protection of the public [Rocket v. Royal College of Dental Surgeons (Ontario) (1990), 71 DL.R. (4^th) 68]. The public interest in professional regulation demands that disciplinary proceedings be fair, transparent, and efficient. The public must be satisfied that complaints are taken seriously and properly investigated.

Equally important, disciplinary proceedings must be fair to the member accused of misconduct or incompetence. Many of the procedural safeguards included in discipline legislation or imposed by the courts were adopted to ensure that a professional's career is not destroyed without giving the accused an opportunity to make a full defence before an unbiased and impartial tribunal. As the McRuer Report on Civil Rights observed:

"The most obvious feature of the power of a self-governing body to discipline its members is clearly that it is a judicial power. . . . It is a power whose exercise may have the most far-reaching effects upon the individual who is disciplined. . . . Where a conviction may result in what has aptly and justifiably been termed "economic death", it is vital that procedural safeguards to ensure fairness be clearly established and rigorously observed." [Ontario Royal Commission Inquiry into Civil Rights, 1968-71].

The standard model

This approach to discipline is a relatively new innovation. The separation of investigation of complaints and determination of guilt is intended to avoid bias. The Discipline Committee is required to act as an impartial judge, making its decision on the basis of evidence presented at the hearing by the prosecution and the defence.

INVESTIGATION OF COMPLAINTS

1. The role of the Committee

The hallmark of the two-stage process is independence of the investigation committee from the discipline committee. The Chiropractic Act, for example, provides:

appointed by the board, of whom at least three must be members.

The purpose of the two-stage process is to separate the functions of the Investigation Committee and the Discipline Committee to ensure that the accused has the right to have his case determined in a hearing before an impartial decision-maker. A decision of Investigation Committee to send a complaint to the hearing stage is sometimes referred to as a "recommendation", but it is more like the decision of the prosecutor in a criminal case to lay charges. The Discipline Committee plays the role of judge.

If these roles are allowed to overlap, an appearance of bias almost inevitably results. Although the legislation does not explicitly provide that the Committees must operate at arm's length from each other during the investigation, failure to do so may invite a court challenge. An appearance that the roles of the Investigation and Discipline Committees have been allowed to overlap at the hearing stage has been criticized by Saskatchewan courts [see Bailey v. Registered Nurses Association (1998), 167 Sask. R. 232 (Q.B.)]. It is likely that courts would also find that confusion of roles in the investigation phase is objectionable. Thus good practice demands that members of the Investigation Committee should not consult with members of the Discipline Committee about individual cases, and that the investigation committee should not make information about individual cases available to the discipline committee prior to the disciplinary hearing.

2. Quorum

18(2) Where a board is established by or pursuant to an enactment:

(a) if the number of members of the board is a fixed number, at least

one-half of the number of members is a quorum at a meeting of the board

The full quorum of members must be involved in the investigation, and participate in making the Committee's decision. However, a full quorum is not required for all investigative activities. For example, a quorum is not required when the Committee interviews the accused or the complainant, so long as the information obtained at the interviews is reviewed by the Committee as a whole.

An investigation is triggered by a complaint alleging professional misconduct or professional incompetence. It is the Investigation Committee's primary function to gather evidence of the alleged misconduct or incompetence. However, during the course of the investigation, evidence of an instance of misconduct other than those alleged in the complaint may be discovered. Although the issue has not been definitively settled by the courts, it seems likely that unless the legislation governing the Investigation Committee explicitly gives the Committee authority to add new allegations to the original complaint, it will be necessary in such cases to initiate a new complaint and investigation. (See discussion of new allegations introduced at the hearing stage, below).

Most of the legislation following the standard model does permit new allegations to be added during the investigation phase. Thus, for example, the Chiropractic Act provides that the recommendation of the Investigation Committee may "relate to any matter disclosed in the complaint received pursuant to subsection (1)[the original complaint] or in the investigation conducted pursuant to subsection (1)" [Section 28(3)]. However, some of the older disciplinary legislation does not include authority to add new allegations.

Time considerations

Just what would amount to unreasonable delay will depend on the circumstances of the case. Relevant factors include the seriousness of the complaint, whether the accused is under suspension, whether the accused's ability to defend against the alleged complaint has been prejudiced by the delay, and the scope and complexity of the investigation.

No hard and fast rules can be stated. Most of the court decisions in which delay has been found to be objectionable involve inordinately long delays between receipt of the complaint and the hearing. In Misra, a five year delay, during which time the accused doctor was under temporary suspension, was held to be unfair. But shorter delays may also be unfair. A 20 month delay, during which time a witness died, thus prejudicing the accused's ability to make a full defence, has been held to be unfair [Freedman v. College of Physicians & Surgeons (1996), 173 NBR (2^nd) 315 (N.B.Q.B.)]. On the other hand, a delay of 30 months was not enough to amount to prejudice in a sexual harassment case before a human rights tribunal [Blencoe v. British Columbia Human Rights Commission, [2000] 10 WWR 587 (B.C.S.C.)] because there was no evidence of prejudice.

A recent study conducted by the Manitoba Law Reform Commission concluded, after consultation with professional organizations, that most investigations can be completed in 90 days or less. While this time frame is obviously not practical in all cases, it may be a useful bench mark.

1. Interviewing the accused

29(1) Where the investigation committee is requested by the board to consider a complaint or is in receipt of a written complaint alleging that a member is guilty of professional misconduct or professional incompetence, the investigation committee shall:

(a) review the complaint; and

(b) investigate the complaint by taking any steps it considers necessary,

including summoning before it the member whose conduct is the subject of the

complaint.

The member's right to heard and make a defence is given full protection at the hearing before the Discipline Committee. The purpose of the interview before the Investigation Committee is to gather information and hear the member's side of the issues as part of the investigation to determine whether to proceed to the hearing stage. The courts have held that the requirements of procedural fairness do not apply as strictly to an Investigation Committee as to a Discipline Committee conducting the formal hearing [Knight v. Indian Head School Division (1990), 106 N.R. 17 (S.C.C.)]. While fairness is required in the course of the investigation, a Saskatchewan court has held that it does not extend so far as to convert the interview with the accused into what amounts to"an additional hearing". Thus, while is usually good practice to request that the member appear before the entire Investigation Committee, the court was satisfied that a more informal approach, such as an interview conduced by one member of the Committee, may be acceptable [Hawrish v. Cundall [(1989), 39 Admin. L.R. 255 ].

Dispensing with the interview entirely would be another matter, however. One Canadian decision has suggested that even though only minimal procedural fairness is required at the investigation stage, the Investigation Committee must notify the member that a complaint is being investigated, and to solicit a response [Tanaka v. Certified General Accountants Association [(1996), 38 Admin. L.R. (2^nd) 99 (N.W.T. S.C.)].

2. Search and seizure of records

Recently adopted versions of the standard model include a provision explicitly authorizing search and seizure. When properly authorized by statute, seizure of records will likely survive a Charter challenge [College of Physicians & Surgeons v. Bishop (1989), 56 DLR (4h) 164 (B.C.S.C.)].

31(1) In this section, "judge" means a judge of the Provincial Court of

Saskatchewan.

(2) Every member and every person who keeps any of a member's records or other

property shall comply with a demand of a person designated by the board to

produce any of the member's records or other property that the person designated by the board reasonably believes are required for the purposes of an investigation pursuant to this Act.

(3) On an ex parte application by the association, a judge may make an order described in subsection (4) where he or she is satisfied by the sworn evidence of a person designated by the board that the person believes, on reasonable grounds, that:

(a) a member whose records or other property have been demanded pursuant to subsection (2), or a person who keeps records or other property of that member, has:

(i) refused to comply with a demand pursuant to subsection (2); or

reasonable time following the demand; and

(b) records or other property that are the subject of a demand pursuant to

subsection 3(2):

(i) are required for the purposes of an investigation pursuant to this
Act; and

(4) An order pursuant to subsection (3) authorizes the person named in the order,  together with any peace officer that the person may call on for assistance, to enter at any reasonable time the place named in the order and every part of the place named in the order and of the premises connected with that place to:

(a) examine the place and connected premises; and

(b) search for, seize and take possession of the member's records and other

property demanded pursuant to subsection (2).

subsection (2) or seized pursuant to an order made pursuant to subsection (3), the person designated by the board to whom the records or other property were produced or who seized the records or other property or a member of the

investigation committee may:

property produced or seized and return the originals to the person who

produced them or from whom they were seized; or

(b) retain any of the member's records or other property and dispose of them

in accordance with the directions of the chairperson of the discipline

committee.

business hours unless the judge who issues the order authorizes the entry and

search at another time.

3. Other investigative methods

Rights of the complainant during the investigation

Certainly, some recognition of the complainant's interests is appropriate, but how far the recognition should go is a difficult question. Discipline proceedings are analogous in many respects to criminal prosecutions. Although both involve wrongs done to individuals, the primary goal is protection of the public. Compensation is left to the civil courts. In criminal cases, the complainant cannot insist that the Crown proceed with a prosecution, and is not a party to the proceedings at trial. Nevertheless, suspicion that an Investigation Committee may have buried a legitimate complaint should be avoided. As a matter of good practice, timely communication to complainants concerning the status of an on-going investigation is desirable.

Mediation

In mediation, an independent third party will guide the parties through a discussion and, ideally, to an agreement that is acceptable to all. A mediator can help parties gain a better understanding of the issues and their impact, as well as identify solutions to address underlying needs and concerns. A mediated settlement can be more creative, and sometimes, more acceptable to the parties, than a decision dictated by the letter of the law. It can be less expensive, less time-consuming, and less traumatic for everyone involved. 

That no further action be taken with respect to the matter under investigation because: (i) the matter has been resolved, with the consent of the complainant and the member who is the subject of the investigation [Section 29(2)(b)].

An organization may also adopt other dispute resolution procedures, either as an alternative to formal mediation, or as a preliminary step. This might, for example, include negotiation between the complainant and the accused, facilitated by the Investigation Committee. Some associations have designed processes that include several "stages" leading up to a disciplinary hearing. For example, the Saskatchewan Registered Nurses Association has developed a process called "low level resolution."

1. Does an open conversation have the potential to repair a relationship, or restore the confidence of the public (or a certain individual) in the profession?

2. Is it possible that an explanation, an apology, or commitments to future change will satisfy both the complainant and the public interest?

3. Has there been a breakdown in communication which has contributed to the problem?

4. Do the allegations include serious incapacity, incompetence, dishonesty, sexual abuse, or situations that might lead to the discovery of additional misconduct? (On most occasions, these will not be appropriate for mediation).

Generally, the opportunity for mediation arises once the Investigation Committee has concluded, in at least a preliminary way, that there is evidence of professional misconduct that should be pursued. However, mediation may be an option at any time during the course of a discipline proceeding.

Mediation usually begins with an agreement covering its terms. In this context, it is important for a mediation agreement to clarify issues of confidentiality and privilege. Typically, it is agreed that information shared or statements made during mediation cannot be used in subsequent proceedings and that a mediator cannot be called to testify. These elements are important for achieving openness in the process.

Mediation should not appear to be a way for the accused to escape the consequences of his or her actions. Thus the complainant's agreement to refer the complaint to mediation should be required in all cases. While it is not appropriate for complainants to participate as parties at a formal discipline hearing, participation of the complainant is usually desirable in mediation.

Formal mediation is proceeding presided over by an independent mediator. The professional association will need to determine how or whether it will participate in the process. Some associations appoint a representative to participate in the mediation with the accused and complainant. Others may decide not to participate, but to contribute to the terms of any agreement at the resolution stage. If, after the mediation, a formal finding of misconduct and penalty is appropriate, the Investigation Committee must still lay the complaint before the Discipline Committee, together with a report from the mediator, and formal sanctions must be imposed by the Discipline Committee or Association in accordance with the usual rules.

If an organization is interested in mediation, either in general or in particular cases, there are a number of resources available for assistance. Mediation Saskatchewan maintains a directory of mediators across the province. The Dispute Resolution Office, Saskatchewan Justice, is also available as a resource. Guides to mediation are also available, such as Lisa Feld and Peter Simm's book, Complaint-Mediation in Ontario's Self-Governing Professions (1995, The Fund for Dispute Resolution, Ontario).

OTHER MATTERS PRELIMINARY TO THE HEARING

After it has completed its investigation, the Investigation Committee must prepare a written report recommending either that the Discipline Committee "hear and determine" the complaint, or that no further action be taken. The report must set out the specific allegations that will be taken to the hearing stage. This is referred to in the legislation as the "formal complaint. The Chiropractic Act, for example, provides:

29(2) On completion of its investigation, the investigation committee shall make a written report to the discipline committee recommending that:

out in the written report; or

(3) The formal complaint set out in a written report made pursuant to clause (2)a) may relate to any matter disclosed in the complaint received pursuant to subsection (1) or in the investigation conducted pursuant to subsection (1).

(5) The investigation committee shall provide, or cause the registrar to provide, a copy of a written report made pursuant to clause (2)(b) to:

(b) the person, if any, who made the complaint; and

(c) the member whose conduct is the subject of the complaint.

The legislation does not set out the content of the formal complaint in detail. However, the courts have provided guidance. It has been held [Golomb v. College of Physicians & Surgeons (1976), 68 DLR (3^rd) 25 (Ont. Div. Ct.), citing R v. Disciple Committee of the College of Physicians and Surgeons (1969), 6 DLR (3^rd) 520 (Sask. C.A.)] that the formal complaint must:

(1) allege conduct amounting to professional misconduct or professional incompetence;

(2) Give reasonable notice to the complainant, and

(3) inform the person charged, in general terms, of the charge against him or her, with sufficient particulars to enable the accused to properly prepare a defence.

The legislation includes a notice requirement. It will be discussed in the next section.

If a complaint does not contain sufficient particulars, the remedy is for the complainant to demand particulars. The discipline proceeding will be stopped by the court, or a decision overturned, only if a reasonable demand for particulars is denied [Sen v. College of Physicians & Surgeons (1969), 6 DLR (3^rd) 320 (Sask. C.A.)].

Notice of hearing

33(1) Where a report of the investigation committee recommends that the discipline committee hear and determine a complaint, the registrar shall, at least 30 days prior to the date the discipline committee is to sit:

subject of the hearing; and

the date, time and place of the hearing.

Reasonable notice is obviously required to ensure that the accused can exercise the right to be heard, and reply to the case made against him or her. Breach of the notice requirement can be a gound for overturning a decision.

It has also been recognized that it is desirable to ensure transparency in the disciplinary process by notifying the complainant when the hearing is scheduled. The Chiropractic Act requires notification of the complainant:

(13) The person, if any, who made the complaint pursuant to section 29:

(b) subject to subsection (15), is entitled to attend the hearing.

Adding or amending charges after the formal complaint has been layed

In response to the decision in Kapoor, the Saskatchewan Legal Profession Act was amended in 1990 to allow the Discipline Committee to add, amend, or substitute charges. A similar formula was inserted in other disciplinary legislation adopted after 1990. The Chiropractic Act provides:

33(12) If, during the course of a hearing, the evidence shows that the member whose conduct is the subject of the hearing may be guilty of a charge different from or in addition to any charge specified in the formal complaint, the discipline committee shall:

(a) notify the member of that fact; and

(b) if the discipline committee proposes to amend, add to or substitute the

charge in the formal complaint and, unless the member otherwise consents,

adjourn the hearing for any period that the discipline committee considers

sufficient to give the member an opportunity to prepare a defence to the

amended formal complaint.

Suspension of the accused pending the final decision

In some cases, suspension from practice of a professional accused of misconduct or incompetence pending the outcome of disciplinary proceedings is in the public interest . However, suspension will deprive the accused of his or her livelihood prior to the final decision of the Discipline Committee. Balancing these competing interests is often difficult. For that reason, the Saskatchewan Court of Appeal held in Brand v. College of Physicians & Surgeons [(1989), 58 DLR (4^th) 178] that an interim suspension could be imposed only when authorized by legislation.

In older disciplinary legislation, authority to suspend when proceedings are stayed pending disposition of a criminal charge against the accused is typically included (see below), but there is no authority to suspend a member in other cases. In legislation adopted since the decision in Brand v. College of Physicians & Surgeons, a broader mechanism for suspending accuseds has been enacted. The Chiropractic Act, for example, provides:

30(1) Where the investigation committee is of the opinion that, on the basis of the allegations or the nature of the case, the member should be suspended or prohibited from performing any chiropractic procedure pending the outcome of the investigation or hearing, it may, with the prior approval of the board, apply to a judge for an order:

(a) temporarily suspending a member whose conduct is the subject of an

investigation pursuant to subsection 29(1) or against whom a formal complaint

has been made pursuant to subsection 29(2); or

(b) temporarily prohibiting a member described in clause (a) from performing

any chiropractic procedure.

(a) 90 days from the date of the order;

(b) the date of a report of the investigation committee made pursuant to

clause 29(2)(b);

professional misconduct or professional incompetence, the day of its

decision; or

professional misconduct or professional incompetence, the day that an order is

made pursuant to section 34.

2. Suspension and other issues when criminal charges are laid against the accused

Requests to hold disciplinary hearings in camera (that, is excluding the public and the complainant) or to stay disciplinary proceedings until the criminal charges have been dealt with, are not uncommon. Although the legislation does not explicitly deal with such requests, the courts have held that it is within the scope of a Discipline Committee's authority to grant them. It is appropriate to do so if proceeding with an open hearing might jeopardize the accused's right to a fair trial on the criminal charges. For example, publicizing the evidence presented at the discipline hearing might prejudice potential jurors.

If the accused's right to a fair trial is compromised, the courts may step in to order an in camera hearing or stay the proceedings [See Southam v. LaFrance (1990), 71 DLR (4^th) 282 (Que. C.A.), but see also Pilzmaker v. Law Society of Upper Canada (1989), 38 Admin. L.R. 185 (Ont. Div. Ct.) where a stay was denied because the case had already been widely publicized].

Because conviction for a criminal offence is a ground for disciplinary action in itself under some disciplinary codes and statutes, an Investigation or Discipline Committee may elect to suspend proceedings until the criminal charges have been disposed of even if proceeding would not prejudice the accused. This avoids the problems discussed above, and will likely simplify the disciplinary hearing when it is resumed since once a conviction has been obtained, discipline can be imposed on that ground without additional proof of misconduct.

Special problems may be encountered when the ethical code of the association identifies commission of an offence as misconduct. If the misconduct alleged is commission of an offence, but the accused has not yet been convicted of the offence, it may be necessary to await conviction before proceeding with the disciplinary proceedings. In Stromberg v. Law Society [[1996] 3 WWR 389 (Sask. Q.B.)], the court held that when

"The professional misconduct is characterized as "unbecoming" because it constitutes a specific crime not yet determined by the courts, the dominant feature and focus of the proceeding is likely to be found to be a substitute police investigation. Such a proceeding is a matter for the police and criminal courts."

Note carefully that this rule does not apply to an accused who has already been convicted, or in a case in which the complaint alleges behaviour that would be misconduct even if it were not also a criminal offence.

38 On the application of the board, a judge may direct that a member be suspended pending the disposition of a criminal charge where:

(a) a criminal charge is laid against the member; and

(b) the member has applied to the court for a stay of any disciplinary

proceedings against the member.

Some Discipline Committees have (as under the Chiropractic Act) both a general authority to apply for suspension, and a special authority to suspend pending disposition of a criminal charge. Some Discipline Committees, operating under less recently enacted legislation, have only the authority to suspend pending disposition of a criminal charge. In some recently adopted statutes [e.g. the Licenced Practical Nurses Act, 2000], only the general authority to make interim suspensions is included. The rules applicable in each case are different.

The simplest case is one in which the Committee has authority to suspend pending disposition of a criminal charge, and application to court has been made by the accused to stay the disciplinary proceedings. In this case, the Committee may make the suspension on its own authority without seeking court approval of the suspension. However, if the Committee stays proceedings on its own, it can suspend the accused only under the general authority to suspend. This will require an application to court for approval of the suspension. Because the courts are reluctant to approve suspensions made under the general power (see above), it might be good practice to wait and see if the accused elects to apply to court for a stay, rather than granting the stay on the Committee's authority. 

THE HEARING BEFORE THE DISCIPLINE COMMITTEE

Under the standard model, the Discipline Committee has responsibility to preside over the hearing of the complaint. The Chiropractic Act, for example, provides:

33(3) The discipline committee shall hear the complaint and shall decide whether or not the member is guilty of professional misconduct or professional incompetence.

The Discipline Committee is the impartial trier of fact and law. In the two-stage procedure mandated by the standard model, prosecution is assigned to the Investigation Committee:

33(2) The investigation committee shall prosecute or direct the prosecution of the complaint, but its members shall not participate in any other manner in the hearing of the complaint, except as witnesses when required.

This contrasts with the procedure often adopted under disciplinary regimes in which a single body, the association board or a discipline committee, lays and determines complaints. It is important to recognize and preserve the distinction between the roles of the Discipline Committee and Investigation Committee. The Discipline Committee must not take on the role of prosecutor, or appear to be collaborating with the Investigation Committee. The courts will overturn a decision if the Discipline Committee does not remain an impartial adjudicator, or even appears to be biased against the accused. For example, in Brett v. Board of Directors of Physiotherapy [(1991), 77 DLR (4^th) 421 (Ont.C..A.)], a decision was overturned because a disciplinary board left the impression that "the member was being tried by counsel to the Board".

The role of the Discipline Committee is thus much like that of a panel of judges in a court of law. It has responsibility to control the proceedings and maintain order, but it must allow the prosecution (the Investigation Committee or its legal counsel) and defence (the accused and his or her legal counsel) to make their cases. The Discipline Committee may make rulings on such matters as the admissibility and relevance of evidence (see below), and may question witnesses for clarification so long as it does not usurp the function of the prosecution and defence. Although there are no hard-and-fast rules applying to the way in which evidence is presented, it is usual practice to allow the prosecution to present evidence and call witnesses to make its case against the accused, after which the defence presents its evidence and witnesses. Both parties should be given opportunity to summarize their contentions, and make and respond to any arguments about points of law and procedure that arise.

2. Quorum

32(3) The lesser of three or two-thirds of the members of the discipline committee constitutes a quorum.

The Act also addresses some important related questions. Thus a decision must be made by a majority of committee members:

33(17) A decision signed by a majority of the discipline committee is the decision of that committee.

This presumably means that a majority of the quorum must concur in the decision.

35 Where an investigation is commenced by the investigation committee or a

hearing is commenced by the discipline committee and the term of office of a

member on the committee expires or is terminated before the investigation or

hearing is disposed of, the person shall remain a member of the investigation

committee or the discipline committee, as the case may be, for the purpose of

completing the investigation or hearing in the same manner as if the member's

term of office had not expired or been terminated.

The rules under other disciplinary legislation differ in detail. For example, under the Veterinarians' Act, the Discipline Committee consists of "least three persons" (section 21 (1)), and a quorum consists of "three members of the discipline committee". The Act makes no provision in regard to either decision-making by majority rule, or to continuance of members in office to complete a hearing. If a problem arises that is not dealt with by the governing legislation, legal advice should be sought.

3. The role of legal counsel

33(6) The investigation committee and the discipline committee may employ, at the expense of the association, any legal or other assistance that it considers necessary.

33(7) The member whose conduct is the subject of the hearing, at his or her own expense, may be represented by counsel.

Counsel to the parties play much the same role as lawyers in a court room. They are responsible for making and defending the case against the accused. Counsel to the Discipline Committee has a much different role. Because most Committee members are not legally trained, they may have questions about procedure or matters of law. Counsel to the Committee acts as an advisor in these matters.

The practice of providing the Discipline Committee with a legal advisor is no doubt good policy. There is a danger, however, that counsel will exert excessive influence on the Committee, usurping its function. The Committee must itself control the proceedings before it. Thus a new hearing was ordered in a case in which counsel "generally speaking acted as spokesman for the Committee." [Venzel v. Association of Architects (1990), 41 ).A.C. 50 (Ont. Div. Ct.)]. An appearance of unfairness or bias can occur when counsel, as Casey, The Regulation of Professions in Canada, has put it, "descends into the arena". Thus a decision was overturned where counsel to the tribunal questioned counsel for the parties and made his views of the facts before the tribunal known [Adair v. Ontario Health Disciplines Board, 15 O.R. (3^rd) 705 (Ont. Div. Ct.)]. It is appropriate for counsel to the Committee, with the Committee's permission, to ask questions of witnesses for clarification, but counsel should not conduct examinations of either witnesses or counsel to the parties.

A particular problem is participation of counsel to the Committee in the Committee's deliberations, and counsel's role in preparing reasons for decision. There is a danger that the Committee's role may be usurped at this stage as well as during the hearing itself. However, it is an established and acceptable practice for counsel to assist in writing the decision. The more difficult part of the problem is the legal opinions expressed by counsel to the Committee. The problem is avoided if counsel's opinions are expressed in the hearing itself, so counsel to the parties will have an opportunity to reply to them. That opportunity is lost if the opinions are delivered in closed session of the Committee while the decision is being prepared. The Manitoba Court of Appeal has recently suggested that the "desirable practice" would be to require counsel to the Committee to submit all opinions in writing to the parties if they are not delivered in the open hearing, thus giving them an opportunity to reply. However, the court stopped short of making this a binding rule [Snider v. Manitoba Association of Registered Nurses (2000), 142 Man. L.R. (2^nd) 308]. 1990, c.H-4, s.12(3)].

Independence of counsel to the Discipline Committee from the prosecution is also obviously important. The Saskatchewan Court of Queen's Bench criticized engaging the same lawyer as prosecutor and counsel to the Discipline Committee. [Bailey v. Registered Nurses Association (1998), 167 Sask. R. 232]. A more difficult question is whether staff counsel to the Association or counsel currently engaged to advise the Association in some other capacity should advise the Committee. Since the complaint is, in a strict sense, brought by the Association, an appearance of conflict of interest may result, and there is a danger that the tribunal will be unduly impressed by advice from an in-house "expert". The problem is compounded if a staff lawyer also acts for the prosecution, as is often the practice. To date, Canadian courts have not ruled on this issue, but it may be good practice to avoid using staff lawyers, or lawyers from a firm on retainer to the association, as both counsel to the Investigation Committee and Discipline Committee.

4. Attendance of the accused

(11) Where the member whose conduct is the subject of the hearing fails to attend the hearing, the discipline committee, on proof of service of the notice mentioned in subsection 29(1), may proceed with the hearing in his or her absence.

There are cases in which the Discipline Committee would nonetheless not be justified in proceeding in the absence of the accused, due to illness, for example. But these are perhaps obvious.

5. Role of the complainant

(13) The person, if any, who made the complaint pursuant to section 29:

(a) shall be advised by the registrar of the day, time and place of the hearing; and

The hearing requirement: Format and related matters

1. The right to a hearing

33(1) Where a report of the investigation committee recommends that the discipline committee hear and determine a complaint, the registrar shall [notify the complainant and the accused] . . .

There have been cases in which a professional accused of misconduct has demanded a hearing despite a recommendation from the Investigation Committee that the complaint should not be proceeded with. Presumably, the hearing would "clear the name" of the accused more effectively than a mere decision not to pursue the complaint. However, the courts have not been persuaded that justice requires a hearing in such a case [Von Richter v. Law Society (1991), 293 A.P.R. 325 (N.B.S.C.)].

2. Public or private hearing

Except in exceptional circumstances, the standard model requires open, public discipline hearings. The Chiropractic Act, for example, provides:

33 (14) Subject to subsection (15), the discipline committee shall conduct all hearings in public.

(15) The discipline committee may exclude members of the public and the person mentioned in subsection (13) from any part of the hearing when the committee is of the opinion that evidence brought in the presence of the persons to be excluded will unduly violate the privacy of a person other than the member whose conduct is the subject of the hearing.

There is one circumstance in which the interests of the accused may require a closed hearing. As noted above, the Committee or a court may direct an in camera hearing if the accused has also been charged with a criminal offence, and an open hearing might jeopardize the accused's right to a fair trial.

3. The form of the hearing

When a hearing is required, the usual practice is to hold an oral hearing at which the accused has the right to submit evidence, call witnesses, make submissions, and cross-examine prosecution witnesses. The standard model is silent on the form of hearing, though the right to cross-examination accorded the accused suggests that at least an oral component may be required in practice. 

Nevertheless, some administrative tribunals have experimented with innovative alternatives to the oral hearing. There is growing interest in the potential to use electronic communications, including tele-conferencing, fax, and email, to conduct hearings at which all of the participants are not physically present. In Ontario, the Statutory Powers Procedure Act now permits "written" or "electronic" hearings if a Discipline panel or other tribunal has adopted rules governing hearings in these forms, unless "a party satisfies the tribunal that holding . . . [such a hearing] rather than an oral hearing is likely to cause the party significant prejudice".

4. Adjournments

Refusal to grant an adjournment may compromise a party's ability to make a full defence, and thus amount to a breach of the right to be heard. For example, a disciplinary decision was overturned when an adjournment to give an accused time to produce a witness was refused [Saskatchewan Teachers' Federation v. Demoissac (1973), 38 DLR (3^rd) 296 (Sask. C.A.)].

Evidence

As an essential part of its role as prosecutor, the Investigation Committee will present the evidence it has gathered during the course of its investigation at the hearing before the Disciplinary Committee. The defence will present evidence to attack the case made by the prosecution. The decision of the Discipline Committee must be based on the facts disclosed in the evidence presented to it. Therefore, it is important that evidence is properly introduced at the hearing.

There is no limit on the types of evidence that can be presented at the hearing, though it typically consists of documents and the oral evidence of witnesses. However, the evidence must be relevant and must be accessible to both parties. Evidence is relevant when it bears on the issues the hearing must resolve. The Committee may refuse to hear evidence that is not relevant, though its decision to reject evidence on this ground may be reviewed by the courts. Accessibility means that documents must be presented at the hearing, and available to both parties for examination and use in questioning witnesses.

2. Rules of evidence

The standard model adopts this approach to the rules of evidence. The Chiropractic Act, for example, provides:

33(4)The discipline committee may accept any evidence that it considers appropriate and is not bound by rules of law concerning evidence.

The courts will review decisions about reception of evidence made by Discipline Committees. Although they are generally reluctant to do so, they will overturn a decision if it is based on evidence that was clearly unreliable. On occasion, the courts have appealed to the rules of evidence to justify overturning a decision. For example, the Supreme Court of Canada overturned a disciplinary decision because it relied on second-hand evidence that was clearly open to question. In doing so, the court noted that the evidence would have been inadmissible in court under the hearsay rule. However, the decision was not overturned simply because it breached the rule, but because it was a clear example of the "hearsay dangers" the rule was designed to avoid. [See Mehr v. Law Society of Upper Canada [1955] SCR 344 (S.C.C.)].

3. Disclosure of evidence to the accused

Although the evidence required to make the prosecution's case must be presented at the hearing, until recently there was no requirement that the evidence gathered in the investigation be disclosed to the defence before presentation at the hearing. However, since the Supreme Court decision in R v. Stinchcombe [(1991), 130 NR 277 (S.C.C.)] imposed a disclosure requirement in criminal cases, there has been a clear trend toward requiring disclosure in disciplinary proceedings as well. In Markandey v. Board of Ophthalmic Dispensers [[1994] O.J. No. 484 (Ont.C.J.)], disclosure was identified as a matter of natural justice:

"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 is damaging to or supportive of the respondent's position , in a timely manner, unless it is privileged as a matter of law. Minimally, it should include copies of all witness statements and notes of the investigators."

This decision has been approved by the Saskatchewan Court of Queens Bench [Thompson v. Chiropractors' Association, [1996] 3 WWR 675; Bailey v. Registered Nurses Association (1998), 167 Sask. R. 232].

4. Evidence received by the Discipline Committee but not presented at the hearing

To date, the courts have stopped short of laying down a general rule that disciplinary tribunals cannot receive evidence that is not presented at the hearing, but have been critical of the practice. For example, the Alberta Court of Appeal was "at a loss to understand " why a Discipline Committee refused to make certain statements presented to the Committee available to the accused. However, the Court declined to overturn the Committee's decision on the ground that disclosure in this case would not have benefited the accused [Re Solicitor (1967), 64 DLR (2^nd) 140 (Alta. C.A.)].

Witnesses

Until recently, some disciplinary tribunals received the evidence of witnesses primarily through written "witness statements"submitted by the parties. Most Discipline Committees now prefer to hear the oral evidence of witnesses. This practice allows questions to be put to witnesses to clarify or expand upon their testimony, and most importantly, allows cross-examination of witnesses. Because disciplinary proceedings are concerned with the livelihood of the accused, the right to call and cross-examine witnesses is appropriate. This is particularly true in the two-stage procedure established by the standard model, in which the Discipline Committee is intended to be an adjudicator in an essentially adversarial hearing. While evidence of witnesses may still be presented in other ways, the courts have been increasingly critical of disciplinary proceedings in which the right to call and cross-examine witnesses is not fully accorded to the parties. [See for example, Willette v. Royal Canadian Mounted Police Commissioner (1984), 10 Admin. L.R. 149 (Fed. C.A.); Kutz v. College of Physicians & Surgeons (1987), 24 Admin. L.R. 187 (B.C.S.C.)].

The standard model recognizes both the right to call witnesses and cross-examine. The Chiropratic Act, for example, provides:

33 (8) The testimony of witnesses is to be under oath administered by any member of the discipline committee.

(9) At a hearing by the discipline committee, there is to be full right:

(a) to examine, cross-examine and re-examine all witnesses; and

(b) to adduce evidence in defence and reply.

Reception of oral testimony at a discipline hearing usually follows, at least in general outline, the practice in courts of law. During the course of presenting its evidence, both parties call witnesses. The party (or legal counsel) calling the witness conducts the "examination in chief": The witness is questioned to elicit the facts the party wishes to establish. The opposing party then conducts the "cross-examination": Questions are put to the witness to test the reliability of the evidence given during examination in chief, or to elicit additional facts that may assist the cross-examining party. The trier of fact may permit a reexamination by the party who called the witness if clarification of new matters raised on cross-examination appears to be necessary.

In courts of law, there are some technical rules governing the scope of examination and cross examination. For example, greater latitude to ask "leading questions" is allowed on cross-examination than on examination in chief. Strict adherence to these rules has not been demanded of Disciplinary Committees. The Committee has a wide latitude to control the proceedings. What is important is that the Committee respect to right of the parties to make a full presentation of their cases.

2. Witness statements and affidavits

Standard model discipline legislation does not expressly preclude reception of evidence from witnesses by affidavit or some other form of written statement. Although Canadian courts have been critical of substituting affidavit evidence for oral testimony even when the practice is specifically authorized by statute [see e.g. Roenisch v. Veterinary Medical Association (1968), 66 DLR (2d) 358 (Alta. T.D.)], there may still be some place for affidavits and sworn witness statements. This may be the case if the evidence is not controversial, or of such a nature that there would be little point in conducting cross-examination of the witness. In addition, if both parties agree to allow certain evidence to be placed before the Committee in this way, there is usually no reason why the Committee should not agree to dispense with oral testimony.

3. Compelling the accused to testify

33(16) A member whose conduct is the subject of a hearing is competent and compellable to give evidence at the hearing.

In civil proceedings before the courts, almost all potential witnesses are competent and compellable. This contrasts with criminal prosecutions, in which the accused (and his or her spouse) is not compellable. The few limitations on competency of witnesses that remain in civil law likely apply to discipline proceedings. These have primarily to do with evidence of minors and mentally incompetent persons. If an issue about reception of evidence from such persons arises, the Discipline Committee should consult the relevant provisions of the Saskatchewan Evidence Act, and seek legal advice.

4. Subpoena of witnesses and documents

Because a disciplinary tribunal is not a court of law, it has no inherent jurisdiction to compel attendance of a witness, or to compel the production of documents and records. There are obviously circumstances in which either the prosecution or defence may require testimony or documents to adequately present their cases. For that reason, most, but not all, disciplinary legislation has given the parties the right to subpoena witnesses and documents. The Chiropractic Act, for example, provides:

33(10) On the application of the member whose conduct is the subject of a hearing or a member of the investigation committee, the local registrar of the court at any judicial centre, on payment of the appropriate fees, shall issue writs of subpoena ad testificandum or subpoena duces tecum and, where a writ is disobeyed, the proceedings and penalties are those applicable in civil cases in the court.

The subpoena ad testificandum is a command for an individual to attend to give testimony. The subpoena duces tecum requires a witness to produce books, personal papers, or other relevant material. Use of these technical terms ensures that the law applicable to each species of subpoena will apply.

It should also be noted that the authority to apply for subpoena of documents is in addition to the authority given to Investigation Committees under some discipline legislation to seize documents in possession of the accused (see above).

Imposing the penalty: Procedural fairness

The principles of natural justice apply to imposition of a penalty as well as to determination of misconduct. Thus the accused must have an opportunity to make submissions at the penalty stage of the proceedings, and the tribunal must properly consider the relevant evidence before imposing a penalty [see Saskatchewan Teachers' Federation v. Munro, [1993] 7 WWR 484 (Sask. C.A.)].

Under the Chiropractic Act and some other examples of the standard model, imposition of penalty is separated from determination of whether misconduct has occurred. After the Discipline Committee has registered a "conviction", it submits its finding to the board of the Association, which imposes the penalty:

34(1) Within 60 days of the conclusion of the discipline committee hearing, the

discipline committee shall submit a written decision to the board and to the

member whose conduct is the subject of the hearing, signed by the members of the

discipline committee concurring in the decision.

(2) Where the board receives a report from the discipline committee that a

member is guilty of professional misconduct or professional incompetence, the

registrar shall:

(a) set a day for a meeting of the board to determine the penalty to be

assessed against or requirement to be imposed on the member;

(b) serve notice on the member concerned of the day, time and place of the

meeting in accordance with the bylaws; and

(c) advise the person, if any, who made the complaint mentioned in

section 29, of the day, time and place of the meeting.

subsection (2) fails to attend the meeting, the board, on proof of service of the notice mentioned in clause(2)(b), may proceed with the meeting in his or her absence.

In Saskatchewan Teachers' Federation v. Munro, the Court of Appeal considered a similar regime under the Teachers' Federation Act. While the court did not hold that assigning "conviction" and "sentencing" to separate bodies necessarily breaches the requirements of natural justice, it was concerned that the separation might make it difficult in practice to protect the accused's procedural rights:

"Sentencing  (if the term may be used in relation to disciplinary proceedings) is an integral part of the adjudicative process . . . It is a natural conclusion derived from determinations of fact found during the "conviction" process. This proposition applies with no less force in a statutory scheme such as the one under consideration here, where the finder of fact is distinct from the party imposing (or here, imposing or recommending) sentence. To be fair and just, the consequences meted out by the Executive must bear, in our view, a close relation to the determinations of fact made by the Discipline Committee."

30 (1) Where the discipline committee finds a member guilty of professional misconduct or professional incompetence, it may make one or more of the following orders . . .

Separation of the "conviction" and "sentencing" phases of discipline proceedings is acceptable if adequate safeguards are in place, but there is a danger that protections built into the procedure of disciplinary hearings will not be extended to the sentencing process, and that evidence presented at the hearing that is relevant to sentencing will not be properly considered. For that reason, associations operating under legislation that separates "conviction" and "sentencing" must adopt practices that will ensure that (1) The accused is given an opportunity to be heard and make submissions during the penalty phase, and (2) The record of proceedings (see below) is made available to the board that imposes the penalty.

The decision and reasons

The standard model requires that the "order" imposing a penalty for misconduct be in writing, but it does not explicitly require that written reasons for decision be included in the order. The Chiropractic Act, for example, provides:

39(1) The board shall serve a copy of an order made pursuant to subsection 34(4)

or (5) or section 36 on the member whose conduct is the subject of the order and

provide a copy of that order to the person, if any, who made the complaint,

within 15 days of the board's decision.

member where that member has been found guilty of professional misconduct or

professional incompetence.

As Casey, The Regulation of Professions in Canada observes:

"It is recognized that it is preferable that reasons be given for administrative decisions. Failure to give reasons tends to undermine the confidence in the tribunal . . . . Further, reasons given by administrative tribunals allow the Court sitting in appeal or on judicial review to access the decision making process."

Record of the proceedings

The Chiropractic Act provides:

40(3) On receipt of a notice of appeal, the registrar shall file with the local registrar of the court a true copy of:

(a) the formal complaint and notice sent pursuant to subsection 33(1) or the

report of the investigation committee pursuant to section 36;

the board;

(d) where the appeal is from a decision of the discipline committee or an

order pursuant to subsection 34(4) or (5), the decision of the discipline

committee pursuant to subsection 33(3);

section 36.

registrar a copy of any of the documents filed pursuant to subsection (3) on payment of the costs of producing them.

Similar provisions are contained in other discipline legislation. An adequate record of proceedings is necessary if the decision is appealed to the courts. The court will rely primarily on the record in determining whether to uphold or overturn the decision.