INTRODUCTIONScope of the handbook
Professional associations legislation following the standard model
Professional discipline: An overview
The standard model
The Investigation Committee
1. The role of the Committee
Time considerationsConduct of the investigation
1. Interviewing the accused
2. Search and seizure of records
3. Other investigative methods
OTHER MATTERS PRELIMINARY TO THE HEARINGLaying the formal complaint
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 COMMITTEEThe role of the Disciplinary Committee and the parties
1. Conduct of the
hearing by the Committee
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
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 PENALTYImposing the penalty: Procedural fairness
The decision and reasons
The scope of the handbookThis handbook is a guide to procedure in disciplinary investigations and hearings conducted by most professional associations in Saskatchewan. Of the 36 self-governing professions in the province, 25 are governed by legislation that incorporates what can be called the "standard model" of disciplinary procedure.
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.Apart from professions (such as law, medicine, and teaching) with distinctive discipline systems that have developed independently through long experience, the standard model has been adopted by all Saskatchewan professional associations governed by legislation adopted, or substantially amended, since 1986. However, the version of the standard model in each of the statutes differs in detail from others. This handbook is designed to provide guidance under all versions of the standard model, but does not set out the differences in detail in all cases. Recourse must always be had to the governing statute to determine the specific rules it adopts.
Professional associations legislation following the standard modelAGROLOGISTS ACT, 1994
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 overviewThe professions regulated by the standard model are self-governing. Control of the right to practice, and discipline of members who breach ethical and competency requirements, is exercised by the professions themselves, through their professional associations. At one time, only a few long-established traditional professions were self-governing. It is only in the last fifty years that the self-governance model was extended to a wide range of occupations and professions. Most of the professions governed by the standard model are in the latter category, including professions such as occupational therapists, real estate agents, and interior designers. However, the standard model has also been adopted by some more traditional professions such as pharmacy, accounting, and architecture.
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. (4th) 68]. The
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
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
"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 importance of procedural rules as a means of protecting the interests of the profession, the public, and the accused can hardly be over-emphasized. Canadian courts have long required all judicial and quasi-judicial proceedings to conform to what have been called the principles of natural justice. In Knight v. Indian Head School Division [(1990), 106 N.R. 17], the Supreme Court of Canada held that the rules of natural justice apply rigorously to professional discipline. The accused must be given a full opportunity to be heard, to know and respond to the allegations made against him or her. Decision makers must "act judicially," that is, in a fair and unbiased manner. Legislation governing professional discipline embodies the rules of natural justice, and the courts will enforce the rules by staying or overturning decisions of disciplinary committees, often going beyond the specific statutory requirements if justice demands.
The standard modelThe standard model mandates a two-tier system. When a complaint against a member of an association is received, it is investigated by a committee of the association referred to in most of the governing statutes as the Investigation Committee (though some statutes adopt the name Professional Conduct Committee or Ethics Committee). If the Investigation Committee concludes that misconduct or incompetence has occurred, the complaint is forwarded to a separate committee appointed by the association, the Discipline Committee, which holds a hearing at which the Investigation Committee prosecutes the complaint, and the accused member has an opportunity to be heard in defence.
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
INVESTIGATION OF COMPLAINTS
1. The role of the CommitteeIn the two-stage disciplinary process established by the standard model, the Investigation Committee is responsible for investigating complaints and determining whether the complaint should be dismissed or forwarded to the Discipline Committee for a hearing. The Investigation Committee is distinct from the Discipline Committee. The size and composition of investigation committees varies, depending on the legislation governing the profession.
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.(2) No member of the investigation committee shall be a member of the discipline committee.
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
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. QuorumA committee can conduct its business only if a quorum of members is present. Discipline legislation usually does not define a quorum of Investigation Committee members. In these cases, the Saskatchewan Interpretation Act supplies the definition:
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 boardThis rule applies to most Investigation Committees. However, the Chartered Accountants Act does define quorum as at least five members of the committee. This provision overrides the Interpretation Act.
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 considerationsThe standard model provides no time frame for completion of an investigation. However, both the complainant and the accused can reasonably expect that the investigation will be initiated, conducted, and concluded as quickly as possible. The courts have held that timely investigation is a matter of fundamental justice. In Misra v. College of Physicians & Surgeons [(1988), 36 Admin. L.R. 298] the Saskatchewan Court of Appeal found that unreasonable delay violates the Charter of Rights.
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 (2nd) 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, 
10 WWR 587 (B.C.S.C.)] because there was no evidence
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.Conduct of the investigation
1. Interviewing the accusedThe general authority of the Investigation Committee to conduct an investigation is set out in almost identical terms in all of the standard model discipline legislation. The Chiropractic Act, for example, provides:
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.An important part of any investigation is an interview with the member under investigation. The legislation explicitly provides that the Investigation Committee may summon the member to appear before it. While "summoning" may seem to imply a formal hearing before the Investigation Committee, that is not the purpose of the interview, and a formal "summons" may be necessary only if the member is uncooperative. Even then, the legislation does not provide a mechanism to compel attendance at an interview.
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. (2nd) 99 (N.W.T. S.C.)].
2. Search and seizure of recordsSection 8 of the Charter of Rights states that "everyone has the right to be secure against unreasonable search and seizure". This section of the Charter has been applied to seizure of an accused professional's records during investigation of misconduct. Older versions of the standard model do not include a provision authorizing search and seizure. If there is no such provision, the Investigation Committee may request that relevant records be made available to it, but since adoption of the Charter, will not be able to seize the records if the accused member does not cooperate [See Lambert v. College of Physicians & Surgeons (1992), 100 Sask. R. 203 (Sask. C.A.)].
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.)].The Chiropractic Act, for example, provides:
31(1) In this section, "judge" means a judge of the Provincial Court of
(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
(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(ii) failed to comply with a demand pursuant to subsection (2) within a
reasonable time following
the demand; and
(b) records or other property that are the subject of a demand pursuant to
(i) are required for the
purposes of an investigation pursuant to this
(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).(5) Where any member's records or other property are produced pursuant to
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:(a) make or cause to be made one or more copies of the records or other
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.(6) Every entry and search pursuant to this section is to be made during normal
business hours unless the judge who issues the order authorizes the entry and
search at another time.(7) A copy or extract of a member's records or other property certified by a person mentioned in subsection (5) who made the copy or extract is admissible in evidence in any action, proceeding or prosecution as proof, in the absence of evidence to the contrary, of the original record or property and its contents without proof of the signature or capacity of the person purporting to have signed the record.
Extensive safeguards are built into this section. Note in particular that it requires court approval (though on an ex parte application, that is, without formal notice to the member) of the seizure, and that court-ordered seizure is only available after a request to provide access to records has been denied. The section was clearly designed to avoid a Charter challenge, and is likely effective for that purpose. Legal advice should be obtained when search and seizure of records appears to be required.
3. Other investigative methodsThe legislation provides little other guidance in regard to conduct of an investigation. The general requirement of fairness applies, but the Investigation Committee has wide latitude in the conduct of the investigation. As Casey, The Regulation of the Professions in Canada, observes, "a variety of structures are utilized by professional bodies in order to perform the necessary investigations." The courts have been reluctant to criticize or review investigative methods unless they are obviously biassed or unfair [See Rotelick v. Institute of Chartered Accountants (1998), 169 Sask. L.R. 180 (Sask. Q.B.)]. Some legislation provides that the Committee may engage legal counsel or other experts to assist in the investigation (see, for example, the Architects Act, section 32), but such assistance is appropriate even if the governing legislation does not explicitly permit it. Even employment of an undercover agent to pose as a client has been approved by Canadian courts [Markandey v. Board of Ophthalmic Dispensers,  O.J. 484 (Ont. C.J.)].
Rights of the complainant during the investigationBoth good investigative practice and fairness to complainants will usually require the Investigation Committee to interview complainants, or otherwise receive information from them, during the course of an investigation. If a hearing is recommended after the investigation is completed, most versions of the standard model require that notice of hearing be given to complainants, who may then attend the hearing. Otherwise, the legislation does not require the Investigation Committee to communicate with complainants. The courts have not to date imposed any additional requirements in this regard, but some Law Reform agencies have suggested that more attention should be given to the rights of complainants, and the courts may adopt this point of view in the future.
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.
MediationAnother issue about which there is little guidance in legislation is mediation as an alternative to a formal hearing and assessment of penalty. Mediation has become increasingly popular as an alternative method of dispute resolution in a wide variety of contexts, including matters coming before disciplinary and other administrative tribunals.
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.The Dental Disciplines Act makes room for mediation during the investigation phase. It provides that the Investigation Committee, "on completion of its investigation" may recommend:
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)].But in most cases, the governing legislation does not specifically provide for mediation. This does not mean that mediation is not an option. An organization may decide to design a mediation program, or to begin using mediation in a less formal way, trying the process in cases which appear suitable.
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."The question of whether mediation is appropriate is one that has to be considered on a case-by-case basis. Some factors to consider are:
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
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).The public protection role of professional regulatory bodies presents a unique challenge. The Manitoba Law Reform Commission has warned that by "focussing on the two parties to the dispute, such a process might ignore the interests of the public generally . . . ." This point of view underscores the importance of designing mediation programs that ensure the broader interests are protected.
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
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
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:(a) the discipline committee hear and determine the formal complaint set
out in the written report; or(b) no further action be taken with respect to the matter under investigation.
(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).(4) A report signed by a majority of the investigation committee is a decision of that committee.
(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:(a) the board;
(b) the person, if any, who
made the complaint; and
(c) the member whose conduct is the subject of the complaint.As suggested above, this step is analogous to the laying of a formal charge by the prosecution in a criminal case. As in the case of a criminal charge, the formal complaint must clearly set out the allegations made against the accused, so that the accused can answer them.
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 (3rd) 25 (Ont. Div. Ct.), citing R v. Disciple Committee of the College of Physicians and Surgeons (1969), 6 DLR (3rd) 520 (Sask. C.A.)] that the formal complaint must:
(1) allege conduct amounting to professional misconduct or
(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 first requirement is critical. A professional can be disciplined by his or her association only for behaviour that is recognized as professional misconduct or professional incompetence. What constitutes misconduct or incompetence is outside the scope of this procedural handbook, but it should be noted that, for example, negligence in performance of professional duties may not be severe enough to amount to incompetence. To determine whether behaviour amounts to misconduct or incompetence, recourse must be had to codes of ethics adopted by the association, and the general law governing professional misconduct.
The legislation includes a notice requirement. It will be discussed in the next section.The third requirement has often caused difficulty. The general rule is that the formal complaint must include enough detail ("particulars") to allow the accused to identify the particular actions that form the basis of the complaint. Thus, for example, when a complaint alleged alteration of records, but failed to specify the particular records that had been altered, the complaint was held to be deficient. [Mondesir v. Manitoba Association of Optometrists (2001), 206 DLR (4th) 163 (Man. C.A.)].
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 (3rd) 320 (Sask. C.A.)].
Notice of hearingNotice of hearing must be served on the accused when a complaint is forwarded to the Discipline Committee for hearing. The Chiropractic Act, for example, provides:
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:(a) send a copy of the formal complaint to the member whose conduct is the
subject of the hearing; and(b) serve notice on the member whose conduct is the subject of the hearing of
the date, time and place of the hearing.Similar provisions are contained in other versions of the standard model, though the notice period varies. The Licenced Practical Nurses Act, 2000, requires 14 days notice, for example.
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:(a) shall be advised by the registrar of the day, time and place of the hearing; and
(b) subject to subsection (15), is entitled to attend the hearing.However, standard model regimes adopted in the 1980's, such as the Veterinarians Act and Ophthalmic Dispensers' Act, make no provision for notification of the complainant.
Adding or amending charges after the formal complaint has been layedPerhaps because of the similarity of criminal charges and disciplinary complaints, it has been held that the rule that a person can only be convicted of the offence charged has been applied to disciplinary proceedings. The leading Saskatchewan case is Kapoor v. Law Society [(1986), 52 Sask R. 110 (Sask. C.A.)]. In this case, the misconduct charged was held not to breach professional standards, but the evidence presented at the hearing showed commission of another act amounting to misconduct. The rule laid down in Kapoor requires that, when misconduct is discovered after the laying of the charge, a new disciplinary investigation and hearing must take place.
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.Thus the formal complaint can be amended if the legislation governing the hearing permits. If the legislation does not include a specific authorization to amend after the formal complaint has been laid, a new investigation and new formal complaint will be required to deal with additional allegations of misconduct or incompetence. Note that while most associations are authorized to add allegations to the original complaint during the investigation, fewer have been given authority to add them after the formal complaint has been layed.
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 (4th)
that an interim suspension could be imposed only when authorized by
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
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.(2) An order of suspension or prohibition shall not extend past the earliest of:
(a) 90 days from the date of
(b) the date of a report of the investigation committee made pursuant to
clause 29(2)(b);(c) where the discipline committee finds that a member is not guilty of
professional misconduct or professional incompetence, the day of its
decision; or(d) where the discipline committee finds that a member is guilty of
professional misconduct or professional incompetence, the day that an order is
made pursuant to section 34.This and similar provisions are intended to provide safeguards for the accused while allowing suspension when required in the public interest. In particular, it requires judicial approval of the suspension. However, the formula has not proved entirely satisfactory. In practice, obtaining court approval for suspensions is difficult, even impractical in some cases. In Chiropractors' Association v. Potapinski [(2001), 33 Admin. L.R. (3rd) 334 (Sask. Q.B.)], the court required evidence of probable "irreparable harm" if the suspension is not granted. Legal advice should always be obtained before applying for a suspension.
2. Suspension and other issues when criminal charges are laid against the accusedA criminal offence is a ground for disciplinary action in itself under some disciplinary codes and statutes (see for example the Chiropractic Act, section 36). In addition, activities giving rise to an allegation of misconduct may also amount to criminal offences. Because the purposes of criminal prosecution and professional discipline are different, there is no reason in principle why both should not proceed concurrently. However, concurrent proceedings can create problems.
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 (4th)
282 (Que. C.A.), but see also Pilzmaker v. Law Society
Upper Canada (1989), 38 Admin. L.R. 185 (Ont. Div. Ct.) where a
stay was denied because the case had already been
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 [ 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.When a disciplinary proceeding is stayed pending disposition of criminal charges, it will usually be appropriate to suspend the accused from practice. Although a general authority to make interim suspensions is contained only in recently adopted Saskatchewan disciplinary legislation, authority to suspend pending disposition of criminal charges is contained in most statutes incorporating the standard model. The Chiropractic Act provides:
38 On the application of the board, a judge may direct
that a member be suspended pending the disposition of a criminal charge
(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.Note that this and similar provisions do not require an application to court to suspend pending disposition of a criminal charge. However, the provision applies only if the accused has applied to court to stay the disciplinary proceedings.
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.If the Committee has only the special authority to suspend pending the disposition of a criminal charge, it must wait for the accused to apply for a stay in order to preserve the authority to make the suspension. If the Committee has only the general authority to suspend with court approval, that approval must be sought whether the Committee stays proceedings or the accused applies to court for a stay.
THE HEARING BEFORE THE DISCIPLINE COMMITTEE
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.
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 (4th) 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. QuorumIt is important that a proper quorum of Discipline Committee members are present at the hearing. Quorum requirements differ somewhat under regimes following the standard model. The Chiropractic Act provides:
32(3) The lesser of three or two-thirds of the members of
the discipline committee constitutes a
The Act also
addresses some important related questions. Thus a decision must be
made by a majority of committee
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.The Act also provides that:
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 counselBoth the prosecution (Investigation Committee) and the accused may be represented and assisted by legal counsel. Legal representation is a right for the parties in any judicial or quasi-judicial proceeding. All versions of the standard model expressly recognize the right. In addition, the legislation permits the Discipline Committee to obtain the assistance of legal counsel of its own. In the Chiropractic Act, authorization of the Discipline and Investigative Committees to retain counsel is set out in these terms:
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.The accused's right to counsel is authorized by a separate provision:
33(7) The member whose conduct is the subject of the hearing, at his or her own expense, may be represented by counsel.Similar provisions are contained in all other versions of the standard model.
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.
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. (3rd) 705 (Ont. Div.
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.
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. (2nd) 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 accusedFormal hearings to dispose of complaints are required primarily to ensure that the accused's right to be heard will be protected. However, the right to be heard is just that. If the accused elects to make no defence, the proceedings may nonetheless continue. The standard model expressly provides that the hearing may proceed in the absence of the accused. The Chiropractic Act, for example, provides:
(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 complainantUntil recently, the complainant was not regarded as a proper participant in disciplinary proceedings. Standard model disciplinary regimes adopted prior to the 1990's do not give complainants the right even to receive notice of the hearing, much less any right to participate. More recent Saskatchewan legislation requires notification of complainants, and gives them the right to attend unless an in camera hearing has been ordered:
(13) The person, if any, who made the complaint pursuant to
(a) shall be advised by the registrar of the day, time and place of the hearing; and(b) subject to subsection (15)[relating to in camera hearings], is entitled to attend the hearing.
However, the legislation falls short of giving complainants the right to participate in the hearing. Their role at the hearing is usually confined to giving evidence if called upon to do so by the prosecution. While there may be some room for participation in other ways, such as giving them the right to make a statement when penalty is being assessed, there is a danger that allowing complainants to play a direct role in prosecution of complaints would turn disciplinary hearings into a venue in which private disputes could be pursued. Here again there is a parallel to criminal prosecutions. Neither are designed to replace private law suits as a means of compensating the complainant, and both are justified because they protect the public interest. Discipline proceedings should be open and transparent to the complainant, but the complainant should not be allowed to become a party to the proceedings.
The hearing requirement: Format and related matters
1. The right to a hearingThe rules of natural justice clearly require that the accused has the right to be heard. Under the standard model, if the Investigation Committee recommends prosecution of a complaint, the Discipline Committee is required to hold a hearing. The Chiropractic Act, for example, provides:
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] . . .(3) The discipline committee shall hear the complaint and shall decide whether or not the member is guilty of professional misconduct or professional incompetence.
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.)].
Public or private hearing
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.Although most administrative tribunals are usually required to hold public hearings, professional discipline hearings were traditionally held in private. In camera proceedings protect the privacy of the parties, but there can be little doubt that professional organizations traditionally preferred closed hearings in order to avoid adverse publicity. The change in policy reflects growing concern that the professional discipline should be transparent, and open to public scrutiny. For that reason, the exception to the general rule is now narrow. Note that a hearing cannot be closed merely to protect the privacy or reputation of the accused. The most obvious situation in which a closed hearing would be justified would be protection of professional-client confidentiality at the request of, and to protect the interests of, the client.
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.Casey, The Regulation of Professions in Canada, argues that "even in the absence of an express legislative right to an oral hearing, it is submitted that common law principles would require such a hearing to be held". However, the issue is not so much the form of the hearing as the opportunity afforded to the accused to be heard and answer the allegations that have been made. In the past, disciplinary authorities routinely limited their inquiry to consideration of written submissions. This amounts to denial of the right to a full hearing, and is likely unacceptable under the standard model.
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".There is room under the standard model to experiment with innovations such as these, but only if the parties consent, and clearly thought-out rules governing the alternative forms of hearing have been put in place.
4. AdjournmentsThe standard model makes no express provision concerning adjournment of the hearing. However, disciplinary and other tribunals have an inherent power to adjourn proceedings, either on their own initiative, or at the request of a party [Amourgis v. Law Society of Upper Canada (1984), 12 DLR (4th) 759 (Ont. Div. Ct.)].
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 (3rd) 296 (Sask. C.A.)].
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 evidenceIn a court of law, evidence must also be deemed "admissible" under the rules of evidence. These rules are often complex and technical. They may not be practical or appropriate in discipline hearings, which are usually presided over by a Committee that lacks legal training. It is a well-established principle that administrative tribunals may receive all relevant evidence, even if it would not be admissible in a court of law. In particular, exclusionary rules of evidence such as the hearsay rule, and the technical rules governing admission of documents into evidence, do not ordinarily apply. This principle has been applied by the courts to disciplinary tribunals. [See for example Re Kaliq-Kareemi (1989), 35 Admin. L.R. 131 (N.S.C.A.), affirming that hearsay evidence may be admitted by a disciplinary tribunal].
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.However, it must be remembered that the rules of evidence were developed by the courts to prevent unfairness. The notorious rule against hearsay, for example, is intended to prevent weight from being given to statements that cannot be tested by cross-examination. Thus, a witness cannot usually give testimony about wrongs committed by the accused that the witness has merely been told about by others. The hearsay rule requires that the evidence come from a witness with first-hand knowledge. In general, this is probably a good rule, but the exceptions and applications recognized by the courts have produced a complex body of law. The general policy of the rule is something a Discipline Committee should keep in mind as a matter of common sense. At the very least, the reliability of second-hand information should be regarded as more suspect than first-hand information. It would also be open to the Committee to adopt the hearsay rule and refuse to admit second-hand evidence, particularly if better evidence could be presented.
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  SCR 344 (S.C.C.)].Decisions such as this have led some commentators to suggest that Discipline Committees cannot entirely ignore the formal rules of evidence. The Alberta Law Reform Institute, for example, has suggested that a correct and appropriate statement of the law is the proposition that Discipline Committees "are not bound by the formal rules of evidence except to the extent that deviation from these rules would not cause unfairness to the participants." [ Powers and Procedures for Administrative Tribunals, 1999]. This perhaps overstates the extent to which Discipline Committees must be aware of the technical exclusionary rules, but it is useful as a caution that Committees should take care in determining the weight to be given to evidence, and be prepared to reject evidence of low probative value. In this, as in so much else, the fundamental requirement imposed by the courts is fairness to the parties.
of evidence to the accused
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 [ O.J.
No. 484 (Ont.C.J.)], disclosure was identified as a matter of
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,  3 WWR 675; Bailey v. Registered Nurses Association (1998), 167 Sask. R. 232].A disclosure requirement has not yet found its way into Saskatchewan discipline legislation, but must now be regarded as both good practice and a legal requirement.
4. Evidence received by the Discipline Committee but not presented at the hearingAdministrative tribunals not governed by the two-stage process that separates investigative and adjudicative functions may obtain evidence in the course of their own investigations which is not presented at the hearing. Bu in the context of two-stage disciplinary proceedings, there is little justification for receipt of evidence by the Discipline Committee that is not presented at the hearing by the prosecution or defence. Reception of evidence that is not subject to review and rebuttal by the parties at the hearing undermines the Discipline Committee's responsibility to act as an impartial adjudicator.
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 (2nd) 140 (Alta. C.A.)].
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
standard model recognizes both the right to call witnesses and
cross-examine. The Chiropratic Act, for example,
33 (8) The testimony of witnesses is to be under
oath administered by any member of the discipline
(9) At a hearing by the discipline committee, there
is to be full right:
(a) to examine, cross-examine and re-examine all
(b) to adduce evidence in defence and reply.
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.
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
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 testifyA party to a civil action in the courts can be compelled to testify at the insistence of another party. This rule has been applied to disciplinary proceedings [See Jones v. Law Society (1982), 143 DLR (3rd) 379 (B.C.S.C., which also held that the Charter of Rights does not apply to this issue]. The standard model explicitly provides that the accused may be required to testify. The Chiropractic Act, for example, provides:
33(16) A member whose conduct is the subject of a hearing is competent and compellable to give evidence at the hearing.Note that a "competent" witness is a witness who may be permitted to testify. A "compellable" witness is a witness who can be required to testify if called by a party. Thus, under the standard model, the prosecution may call the accused as a witness.
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.
Subpoena of witnesses and documents
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
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.Note that the Discipline Committee is not given the power to subpoena, but merely to apply for subpoenas. Thus the court issuing the subpoena retains control over the decision to issue it. The court may refuse to issue a subpoena if, for example, the testimony or records are held to be unnecessary for the purpose of prosecuting or defending an allegation of misconduct [See Hanna v. College of Physicians and Surgeons (1999), 179 Sask L.R. 181 (Q.B.)].
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).
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,
 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
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
(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
(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.(3) Where the member with respect to whom a meeting is called pursuant to
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.(4) At a meeting called pursuant to subsection (2), the board may make any one or more of the following orders . . . .
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."Perhaps as a result of the decision in Munro, recent Saskatchewan discipline legislation assigns assessment of penalty to the Discipline Committee as part of the disciplinary hearing. For example, the Licensed Practical Nurses Act, 2000, provides:
(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.
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.(2) The board shall inform a member's employer of the order made against that
member where that member has been found guilty of professional misconduct or
professional incompetence.It has been held that failure to give reasons is not a breach of natural justice [e.g. Kirsten v. College of Physicians & Surgeons (1996), 138 DLR (4th) 335 (Sask Q.B.)], nor does it violate section 7 of the Charter of Rights [Re Khaliq-Kareem (1989), 35 Admin. L.R. 131 (N.S.C.A.)]. However, the Supreme Court of Canada has recently noted "the strong arguments demonstrating the advantages of written reasons", and concluded that "it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision." It was suggested that decisions "critical to . . .[the] future" of a person affected would generally fall into this category [Baker v. Canada (Minister of Citizenship and Immigration),  2 SCR 817]. Many disciplinary decisions will have this effect.
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."
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;(b) the transcript of the evidence presented to the discipline committee or
the board;(c) the exhibits received in evidence by the discipline committee or 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);(e) the order of the board, if any, pursuant to subsection 34(4), (5) or
section 36.(4) The appellant or the appellant's solicitor or agent may obtain from the
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.