CLEAR 2008 Annual Conference Anchorage, Alaska Institutional Bias in the Discipline Process:...

CLEAR 2008 Annual Conference

Anchorage, Alaska

“Institutional Bias in the Discipline Process:

Perception or Reality?”

Moderator:

Bruce G. Matthews, P.Eng.

Format & Introductions

• 3 resolutions to be debated– 10 minutes for each position– 3 minute rebuttal for first speaker

• Question & answer session at the end of the debate

CLEAR 2009 – Denver, CO

• September 10 through 12, 2009

• Denver 2009 Reception – this evening from 6 to 7 pm in the Mid Deck room

• Information about the Mile High City

• Door Prizes

• Refreshments

• More fun than the Presidential Debates!

Resolution #1

• The existence of a screening body, be it a Complaints Committee, Investigation Committee or Probable Cause Panel, intended to ensure that only the most serious matters are referred to a discipline hearing, creates a bias against the registrant / licence holder before the hearing ever begins.

Resolution #1

• Speaking in favour: Jon Pellett

CLEAR 2008 Annual ConferenceAnchorage, Alaska

Resolution #1Screening complaints & Introduction of Bias

• The disciplinary process –

• Does the disciplinary process provide a means by which complaints are screened before formal charges are brought against the licensee and/or regulated entity?


Resolution #1

• If there is a screening committee or body that evaluates cases before formal complaints are filed:

1. Do committee/panel members participate in the final decision?

2. Separate counsel for advice versus recommendation for prosecution?

Resolution #1

3. Do agency attorneys present the cases to the screening body or

committee?

4. Do the same agency attorneys present the case before the licensing

board or agency head?


Resolution #1

• Principle I: There must be balance between the prosecution and the accused so that they are on equal footing

• Principle II: The agency bears the burden of proving the violation

• Principle III: The judge/adjudicator is neutral and not biased in favor of the agency or the accused.


Resolution #1

• The circumstances should not offer a possible temptation to the average person acting as a judge to either forget the burden of proof required to convict the respondent/licensee or allow the person to forget to maintain the balance required between the interests of the state and the accused


Resolution #1

• Principle IV: There is a presumption that those serving as adjudicators are honest and of integrity

• Principle V: State administrators are assumed to be persons of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances


Resolution #1

• When has it gone too far?

• When agency head serves as a witness, reviews the findings of the ALJ, and makes the final decision in the same matter.


Resolution #1

Can the same attorney who prosecutes a case on behalf of the agency also serve to advise the agency in its deliberations as an impartial adjudicator?

Our adversarial system of justice places a premium on the fairness of the judicial or quasi-judicial procedure


Resolution #1

The decision maker must not allow one side in the dispute to have a special advantage in influencing the decision


Resolution #1

• While in a vacuum ideally you could have one person both prosecute the case before the agency and also advise the agency, more often than not, when a hearing has become heated due to the adversary nature of the proceeding, there is a natural tendency of the prosecutor to advise the agency in a manner most advantageous to the prosecutor’ s position


Resolution #1

• Speaking against: Jill Dougherty

A Note About Bias

• Duty of fairness applies to discipline/ licensing proceedings – requires impartiality and absence of bias

• Captures actual bias and apparent bias (ie: reasonable apprehension of bias)

A Note About Bias con’t

• Reasonable apprehension of bias exists where an informed person, viewing the matter reasonably and practically and having thought the matter through, would conclude that there was a real likelihood, or reasonable apprehension, of bias.

Screening Benefits Members

• No bias is created by the existence of a screening body.

• Screening benefits members by ensuring that they do not face the expense, anxiety and risk of a discipline hearing unless a hearing is warranted.

Screening Benefits Members

• Referral to a hearing is in itself a significant consequence for a member. A stringent screening process is important to avoid unnecessary referrals.

Screening Bodies Do Not Decide Allegations

• "The decision to hold a hearing does not amount to a prior determination of the validity of the allegations against the permit holder." (Québec Regie des Permis d'alcool)

Screening Bodies Do Not Decide Allegations

• Complaints Committees and other screening bodies exercise screening functions only.

• They do not hold hearings to determine disputed facts or impose penalties. (Botros v. College of Physicians & Surgeons (Ontario); Silverthorne v. College of Social Workers & Social Service Workers (Ontario)).

Screening Bodies Do Not Rule on Facts or Credibility

• There is no weighing of evidence or finding of fact at the referral stage. The screening body’s task is only to determine whether there is some evidence based upon which the hearing body might find misconduct or incompetence. (Russell v. Ontario (Civilian Commission on Police Services)).

Screening Bodies Do Not Rule on Facts or Credibility

• Screening bodies do not assess credibility in any detail. They only determine whether the prosecution witnesses if believed could meet the onus of proof. (Canadian Civil Liberties Assn. v. Ontario).

• Where a screening body refers a matter for hearing, no reasons for decision are issued. This eliminates the risk that the screening body’s reasons will influence the hearing body.

Screening Bodies Serve an Essential Function

• It is important to have a specialist screening body which includes members of the profession, since screening bodies exercise considerable discretion and make decisions which involve significant policy considerations (eg: decisions as to what types of cases are serious enough to warrant referral, or what disposition is required to protect the public interest). (Schuilthuis v. College of Veterinarians of Ontario).


• Having a screening body composed of members of the profession (and usually members of the public) is also critical for the credibility of the screening and hearing process and for public confidence in the process.

• Screening bodies serve a “gatekeeper” function which is important for members and for the college/ board/ regulatory body, since screening helps to control the nature and number of hearings.


• The modern trend is toward more screening and an expansion of the power of screening bodies to allow them to deal with matters by means other than referral to hearings. (Matheson v. College of Nurses of Ontario)

Hearing Bodies Are Not Influenced by Referrals

• The hearing body holds a full oral hearing, hears the submissions of counsel and the testimony of witnesses. It does not review or defer to the decision of the screening body. The hearing body makes its own independent judgment.

• Hearing bodies are sophisticated enough to understand that a referral is not a finding of “guilt”.

Bias Concerns Are Not Caused by Screening

• It is not the existence of a screening body that creates the potential for bias, but overlap between investigative / screening / prosecutorial and decision-making functions, or other circumstances specific to a particular case.

Bias Concerns Are Not Caused by Screening

• A reasonable apprehension of bias has also been found to exist where the hearing body has extensive prior knowledge about the case coming before it (eg: where the hearing body receives significant information regarding the investigation of the matter.

Bias Due to Overlap in Functions

• Bias arises not from the screening process itself, but from overlap of functions, when the same individuals investigate or prosecute and adjudicate.


• Reasonable apprehension of bias may exist where:

• Same individual investigates, prosecutes and then has input into the decision;

• A person who participated in the investigation or prosecution advises the hearing body;

• The prosecutor advises the hearing body or helps it write reasons;


• Reasonable apprehension of bias may exist where:

• The Registrar investigates, appoints the hearing panel and attend before the panel as an expert witness;

• The same in-house legal department (and potentially the same lawyer) advises re prosecutions, drafts Notices of Hearing/ charges, makes submissions at the hearing and helps the adjudicator draft reasons;

• A current (or possibly a former) member of the hearing body attends before a panel of that body as a witness.

Bias Concerns Do Dot Justify Eliminating Screening

• Concerns re possible overlap in functions can be addressed by:

• Keeping careful records of which individuals sat on the screening body or were involved in the investigation or prosecution of a case, to facilitate checking potential panel members for bias;

• Conducting a careful check of potential hearing panel members to identify any prior involvement in case, or other possible issues re bias;

Bias Concerns Do Dot Justify Eliminating Screening

• Concerns re possible overlap in functions can be addressed by:

• Separating the files and staff involved in investigations from those involved in hearings

• Ensuring that information supplied to the hearing body before the hearing, concerning a case coming before it, is appropriately limited

Resolution #1

• Rebuttal: Jon Pellett

Resolution #2

• In a situation where the discipline panel hearing a matter and the party prosecuting the matter fall under the same organizational umbrella (i.e., are operated by the same Board or College), it is impossible for the process to be free from bias because of the familiarity between the prosecutor and the judges.

Resolution #2


Multi-Functional Agencies Are Permitted

• The SCC has squarely rejected the argument that a reasonable apprehension of bias exists simply because the investigative, prosecutorial and adjudicative functions are under the same organizational umbrella. Provided that those functions are appropriately separated within the organization, no issue of bias exists (Québec Regie des Permis d’alcool)

Multi-Functional Agencies Are Permitted

• Establishing an umbrella organization with investigative, prosecutorial and adjudicative functions is a policy choice made by the legislature and may be authorized by statute. (Brosseau; LSUC v. French)

The Issue is Overlap of Functions

• The test for bias is: "What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would [that person] think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly." (Committee for Justice and Liberty v. National Energy Board).

The Issue is Overlap of Functions

• While an overlap of functions may give rise to a reasonable apprehension of bias, merely having them under the same “roof” doesn’t.

Test for Bias Differs in Administrative Tribunal Context

• Mere familiarity between prosecutor and adjudicator does not give rise to a reasonable apprehension of bias, even in criminal proceedings, much less in disciplinary ones.

• Discipline proceedings are not criminal proceedings and are subject to a less stringent test for reasonable apprehension of bias.

Test for Bias Differs in Administrative Tribunal Context

• "In a criminal trial, the smallest detail capable of casting doubt on the judge's impartiality will be cause for alarm, whereas greater flexibility must be shown towards administrative tribunals.“ (Quebec Regie des permis alcool; See also Brosseau v. Alta Securities Commission)

• Often both the prosecuting counsel and defence counsel are equally familiar to the hearing body.

Familiarity is not Equivalent to Bias

• Mere familiarity, even between the adjudicator and the parties or witnesses, has not generally been regarded as sufficient to create a reasonable apprehension of bias in professional discipline proceedings. The familiarity must be considered in light of the context of the proceedings and the particular tribunal. If the industry, profession or group being regulated is relatively small, it may be impossible to establish a hearing process where those involved have no familiarity with one another. (see. Daneshevor v. National Dental Examining Board of Canada)

Familiarity is not Equivalent to Bias

• Hearing bodies typically have their own independent legal counsel. They do not view prosecuting counsel as “their lawyer”.

Familiarity May be Inherent in Self-Regulation

• The whole point of having self-governing professions is a recognition that members of those professions are best regulated by their peers, who are uniquely equipped to establish and apply professional standards and evaluate professional conduct.

Familiarity May be Inherent in Self-Regulation

• The professional community in a particular jurisdiction is often relatively small and some familiarity among members and regulators is inevitable. This has not been regarded as giving rise to a reasonable apprehension of bias.

Resolution #2



Resolution #2 Bias in the relationship of presiding officer and prosecutor

• Who will the presiding officer believe is more credible?

1. The prosecutor who regularly appears before agency ?

2. The defense attorney who regularly appears before the agency?

3. An attorney who has never appeared before the agency?

Resolution #2

• Rebuttal: Jill Dougherty

Resolution #3

• In view of the screening body and familiarity issues discussed earlier, it is completely unreasonable to have a standard of proof in discipline hearings that is below that of “beyond reasonable doubt”.

Resolution #3



Resolution #3Effects of Bias on Standard of Proof

• Preponderance of the Evidence

• Clear and Convincing Evidence

• Beyond a Reasonable Doubt

Resolution #3


Criminal Standard of Proof Does Not Apply

• It is appropriate to have a standard of proof in discipline hearings that is below the criminal standard of "beyond a reasonable doubt."

• Disciplinary proceedings are not criminal and the criminal standard of proof beyond a reasonable doubt does not apply to the professional disciplinary context.

Criminal Standard of Proof Does Not Apply

• The standard of proof in criminal matters is higher because a criminal accused faces more serious consequences (including possible incarceration and other “penal sanctions”) which do not apply to discipline proceedings (R. v. Wigglesworth)

The “Bernstein” Standard

• The standard of proof in discipline proceedings is proof on a balance of probabilities, but that standard must be met by ‘clear and convincing proof based on cogent evidence’ (often referred to as the 'Bernstein' standard).


• The Bernstein standard refers to the quality of the evidence required of the prosecution in order to sustain the serious type of allegations sufficient to remove a person's ability to earn his livelihood in his chosen profession. (LSUC v. Evans; See also Bernstein v. College of Physicians and Surgeons)


• Given the serious nature of the allegations of professional misconduct, the quality of the evidence required to prove the allegations on a balance of probabilities increases. (LSUC v. Neinstein)

The Civil Standard of Proof in Discipline Proceedings

• Within the administrative law context, it is accepted that strong and unequivocal evidence within the civil standard of proof is required where either the issues, or the consequences for the individual, are very serious. (Stetler v. Ontario Flue-Cured Tobacco Growers' Marketing Board; See also Hanson v. College of Teachers (Disciplinary Hearing Sub-Committee)).

Rationale for Different Standards of Proof

• Criminal proceedings impact the fundamental rights of the accused (such as liberty and security of the person), whereas discipline proceedings affect a privilege to practice a profession or participate in a regulated industry.

Rationale for Different Standards of Proof

• Licensure is a privilege and membership in a licensed business or regulated professional therefore carries heightened obligations. In this context, a civil rather than criminal standard of proof is appropriate.

Resolution #3

• Rebuttal: Jon Pellett

Speaker Contact Information

• M. Jill DoughertyWeirFoulds LLP, Toronto, Ontario416-947-5058 [email protected]

• Jon PellettBarr Murman & Tonelli, P.A., Tampa, FL813-223-3951 [email protected]

References

• 2747-3174 Québec Inc. c. Québec Regie des Permis d'alcool [1996] 3 S.C.R. 919.

• Botros v. College of Physicians & Surgeons (Ontario) (2007), 228 O.A.C. 75.

• Silverthorne v. College of Social Workers & Social Service Workers (Ontario) (206), 264 D.L.R. (4th) 175 (Div. Ct.).

• Russell v. Ontario (Civilian Commission on Police Services) (2006), 149 ACWS 3d 1141 (C.A.).

References (cont'd.)

• Canadian Civil Liberties Assn. v. Ontario (Civilian Commission on Police Services) (2002), 220 D.L.R. (4th) 86 (C.A.).

• Schuilthuis v. College of Veterinarians of Ontario 2005 CanLII 1083 at para. 5 (Div. Ct.).

• Brett v. Ontario (Board of Directors of Physiotherapy) (1992), 92 D.L.R. (4th) 693 (Div. Ct.).

• King v. Yukon Medical Council (2003), 14 Admin. L.R. (4th) 273 (Y.T.S.C.).


• Pierce v. Law Society of British Columbia (1993), 103 D.L.R. (4th) 233 (BCSC).

• Matherson v. College of Nurses of Ontario

• Committee for Justice and Liberty v. National Energy Board [1978] 1 S.C.R. 369.

• Brosseau v. Alta Securities Commission [1989] 1 S.C.R. 301.


• R. v. Wigglesworth

• LSUC v. Evans 2008 CarswellOnt 4043 (Div. Ct.).

• Bernstein v. College of Physicians and Surgeons (1977) 15 O.R. (2d) 447 (Div. Ct.).

• Stetler v. Ontario Flue-Cured Tobacco Growers' Marketing Board, 2005 CanLII 24217 (ON C.A.).


• Hanson v. College of Teachers (Disciplinary Hearing Sub-Committee) (1993), 110 D.L.R. (4th) 567 (BCCA).

• College of Pharmacists (Ontario) v. Katzman (2002), 223 D.L.R. (4th) 371 (C.A.).

• LSUC v. Neinstein 2007 CarswellOnt 1560 (Div. Ct.).

Appendix

• Principles I – III taken from Ward v. Villiage of Monroeville, Ohio, 409 US 57 (1972)

• Principles IV – V taken from Withrow v. Larkin, 421 US 35 (1975)

• Ridgewood Properties Inc. v. Department of Community Affairs,562 So.2d 322 (Fla. 1990)(when it has gone too far)

• Cherry Communications v. Deason, 652 So2d 803 (Fla. 1995)(prosecutor also as advisor)


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