However, Sergeant Mulligan never argued that the urgency of the situation made it impractical for him to raise the matter internally first. While excessive delay applications in the criminal process succeed with some frequency, that is not the case in regulatory law. However, where the questioning of a witness, particularly the practitioner, appears to indicate that the tribunal has made up its mind, the questions can create an appearance of bias. Under the new standard of review of tribunal decisions, findings of fact are reviewed on the basis of whether there was a palpable and overriding error (unless there is a question of mixed fact and law where there is an extractible legal error). A nurse conducting a post-natal visit learned that the mother had come to Quebec for the child’s delivery in order to obtain Canadian citizenship for the baby. In Mattar v The National Dental Examining Board of Canada, 2020 ONSC 403, http://canlii.ca/t/j5dbh an internationally trained dentist appealed the failure of their third and final attempt of the national dental skills examination. The conference took place in September 2015, while the decriminalization of marijuana was under discussion, but had not yet been passed into law. One half of the government appointees of the governing Council for each health regulator will be appointed directly by the government. As a practical matter, it is very difficult for members of the public to attend hearings. A finding of abuse of process is available only in the “clearest of cases” (at para 120). Regulators continue to monitor how judicial review of its actions will change in light of the landmark decision of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, http://canlii.ca/t/j46kb. The Court was also concerned that the proceeding had already been delayed significantly (assigning no blame for the delay). Find Us . In reviewing these criteria the Court afforded significant deference to the Commission. This change will end the decade-long established practice where elected members of the profession formed the majority of the Council and committees. In addition: “Hardship from the imposition and enforcement of an injunction will generally not outweigh the public interest in having the law obeyed.”. 15. That is particularly true when the “questions” contain statements. A recent decision, that had a high profile in the legal community, addresses the boundaries of this concern. The period of delay must be so inordinate as to be clearly unacceptable (at paras 115 and 121). The Court had already had successful experience in conducting important hearings remotely. The Court held that it was the Competition Bureau and not the courts acting in an individual case that determined whether a regulator of a profession, or its restrictive enabling legislation, was breaching the Competition Act. While hearings by regulators may be different than Court proceedings, particularly where witnesses testify, many of the principles identified in this case likely apply to some degree in the regulatory context as well. As such practitioners may view the restrictions proposed by a regulator as excessive and based on speculation, or even faulty assumptions, as opposed to being grounded in evidence. The decision turned somewhat on the particular conduct underlying the payment order which may not apply to every administrative penalty. What is less clear is whether regulators can proceed with an investigation, referral to discipline or a discipline hearing where the practitioner is given a specified amount of time to respond before the step is taken. The Court said: Given the breadth of the statutory authority, the Act must be construed such that the powers it confers “include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime created by the legislature …”. 2. The Court found these comments to be inappropriate since the defendant had the absolute right to be present in the courtroom during the trial. Here, a crisis of confidence in the leadership of the police force was an apparent emergency. The regulator does not have to demonstrate that there would be irreparable harm. However, where a respondent asks for a stay, they will bear a heavy burden (at para 117). However, the chairperson of the appeal panel making that decision had presided over the pre-hearing conference in the matter. That case arose from some business dealings the practitioner’s company had with the complainant. Woody 12. However, it did closely review the credibility findings where a finding of historical sexual abuse was made. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances. The case of Momentum Decisive Solutions Canada Inc. v. Travel Industry Council of Ontario, 2020 ONSC 3392, http://canlii.ca/t/j808h says no. While criminal proceedings are different from professional discipline hearings, including having a different burden of proof, these points may still have some relevance for regulators. The applicant has not demonstrated that he “possesses insight into the seriousness of his previous conduct and how such conduct can have significance in regard to a health professional’s responsibilities to the public and to the College”. Given the variety of legislative provisions affected and the general language of the emergency order, regulators need to obtain legal advice for any specific situations. This permits the practitioner to practise while still providing the necessary reassurance to the regulator. The BC reforms have not yet been introduced in their Legislative Assembly. The tribunal used the assertion of a weak submission by the self-represented practitioner that the touching could not have taken place as undermining the practitioner’s credibility. SML Malaysia No 3, First Floor, Jalan 2/32 6th Mile, Off Jalan Kepong KL 52000 Phone: +60 3-6251-8599 Fax: +60 3-6251-545. The extent to which the alleged conduct requires condemnation as well as cessation. It proclaims your address, … Read More. Logan Austin Thirtyacre (born: November 17, 1994 [age 26]), better known online as SML (formerly ... On February 3, 2020, Logan confirmed on his Instagram that he and Chilly had been broken up for a month. The first and primary error was that the trial Judge analyzed credibility on the basis of whether to believe the reporting witness or the defendant. This website uses cookies to improve your experience while you navigate through the website. The Barreau failed to intervene or exercise its statutory oversight even though McCullock-Finney and her lawyer filed numerous complaints against the lawyer, McCullock-Finney complained about the Barreau’s inaction, the courts alerted the Barreau to the lawyer’s troubling behavior and the lawyer’s supervisor withdrew. However, when a court is silent on the matter, can the same panel that made the earlier, incorrect decision, reconsider it? Limiting the ability to see some of the hearing participants. A tribunal is entitled to challenge and question a witness vigorously, provided that the tribunal is open minded, that is, open to consideration of the answer to what might be a leading question. In New Brunswick College of Pharmacists v Province of New Brunswick, 2020 NBQB 92, , the regulator asked the Court to use its inherent jurisdiction to enable the regulator to register applicants who did not meet all of the compulsory requirements. Terrance 13. The injunction was granted: Law Society of Ontario v Harry Kopyto, 2020 ONSC 35, http://canlii.ca/t/j4f8s. Regulators will probably notice little change in those activities. The cases before and after Finney are fairly consistent in saying that a regulator will only be held liable for harm caused by a failure to regulate where the regulator acted in bad faith, which is generally thought to require more than carelessness and negligence. For example, Bill 30 does not implement a skills and competency based selection process by an independent body. However, their registration requirements were set out in mandatory language without the ability to exempt them. Questions clarifying the evidence of a witness or even asking for additional explanation on a point that is puzzling are acceptable. On this point the Court noted: However, the materials and arguments presented by Mr Schwisberg do no more than suggest that something may be lost in a video conferenced hearing. This close scrutiny is called the “correctness standard of review”. The remaining 32½ months was attributable to undue delay. There have been a number of cases recently where regulators have been criticized for allowing practitioners to retire or resign rather than face a discipline hearing into serious allegations, such as sexual abuse or incompetence. The regulator sought a permanent injunction against his continuing practise of law or holding himself out as a legal representative. 401 Bay Street, Suite 2308 P.O. The CIC was entitled to make that finding on the record before it. 7 | Serpong, Tangerang 15310 (62) 21 … It is the part of the order that suspends the period of time within which any step must be taken in any proceeding, including any intended proceeding, that will have a greater impact on Ontario regulators. Shrek 8. Contact Us Today! In doing so the Court affirmed that where a regulator’s statute authorizes the granting of a restraining order, the usual requirements for obtaining such an order are relaxed. The whistleblower defence is not easily established. To contact a specific office, please select from the list of regions and countries below. These sorts of prohibitions are particularly important where the subject matter of the hearings is sensitive, as in sexual abuse cases. A full year of the delay was caused by the tribunal’s inability to find a French-speaking tribunal member. However, there is protection from defamation suits by individuals who comment on a matter of public interest. Justice Smith sought judicial review. A recent Alberta case suggests that policy decisions made by regulators will continue to be reviewed with deference. The issue before us is whether the questioning in this case and the statements made in the context of questioning give rise to a reasonable apprehension of bias. Generally the fact that a practitioner is under investigation is not made public. The victims were out a total of $65,000. That was true even if the new information could have altered the original decision. E-mail: sml@sml.at VAT: ATU39121703 The determination of the public interest is a matter of public policy in the true sense of the word and demands a high degree of deference…. Accessibility Help. The article can be found at: http://www.slaw.ca/2020/04/17/trial-by-zoom-what-virtual-hearings-might-mean-for-open-courts-participant-privacy-and-the-integrity-of-court-proceedings/. While such statements might, in some circumstances, constitute professional misconduct, disciplining such practitioners can sometimes create an unsatisfactory appearance. In fact, amendments to the formal rules relating to police complaints in the Stanley case now permit such reconsideration. For example, most provisions authorizing the appointment of an administrator have very broad criteria, such as where the relevant Minister believes such an appointment is “appropriate or necessary”. Home. This issue came up in the case of Mulligan v Ontario Civilian Police Commission, 2020 ONSC 2030, http://canlii.ca/t/j6fm8. However, there remains discretion to refuse to grant an injunction where granting it “would be of questionable utility or inequitable”. “Here it is perfectly obvious that where one surveyor is found to have acted expressly to injure another surveyor’s reputation by having a client file a groundless complaint and the client did as he was urged to do, injury is self-evident.”. Generally when an order is made by a court on judicial review quashing a tribunal decision, the court sends the matter back for a new decision. Many tribunals have the authority to make rules of procedure on conduct at hearings or to at least make specific orders in individual cases. He was disciplined on two charges. The Court of Appeal indicated that there was a third possibility (which in fact the trial Judge had acknowledged). For example, some of the communications were to relevant Ministers in the government calling for a public inquiry. April 23 - April 25. [1] In the case of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, http://canlii.ca/t/j46kb the Supreme Court of Canada established a new approach to reviewing decisions by administrative tribunals. These variances arising from the process platforms should be considered and, in some cases, compensated for, as online hearings become more common. The Court awarded judgment in the amount of $150,000 plus legal costs and granted a detailed injunction protecting the staff and other representatives of the regulator from future contact or communications from the practitioner. Ever since the Supreme Court of Canada in Vavilov changed the way that courts review regulatory decisions (at least where there is a statutory right of appeal), regulators and courts have been determining how the new test applies to different types of decisions. However, this decision provides a precedent and gives guidance as to the kinds of evidence that might be necessary to support these sorts of restrictions. The witness’ spouse persisted in questioning the witness about the incident afterwards. The tribunal appeared to be overly suspicious about the inability of the practitioner to produce a portion of the chart that was unlikely to contain relevant information and was not required to be retained by the practice’s retention policy. Additional delay was caused by the tribunal’s erroneous self-initiated concern about its own loss of jurisdiction. As a result of these concerns, including possible boundary crossings with the client, the regulator sought to obtain the psychiatrist’s files for the employee / client. That provision is usually used by regulators to compel unregistered persons to cease holding themselves out as being registered or from performing dangerous acts. First, there was an insufficient basis for finding that the practitioner’s condition impaired “his ability to provide professional services in a safe and competent manner”.
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