Canada: Ontario Divisional Court Issues New Decision On Role Of Independent Legal Counsel In A Professional Discipline Matter

Last Updated: October 31 2011
Article by David Rosenbaum

The Ontario Divisional Court recently released a decision, Rudinskas v. The College of Physicians and Surgeons of Ontario, that clarifies the role of independent legal counsel who advise the Discipline Committee in a professional discipline matter.

The College of Physicians and Surgeons of Ontario ("CPSO") referred allegations against Dr. Rudinskas to its Discipline Committee. Dr. Rudinskas brought a motion before the Discipline Committee in which she argued that the Committee did not have jurisdiction to deal with allegations against her relating to patients who were not specifically identified in the Schedule to the Notice of Hearing. The Discipline Committee heard the motion and dismissed it. It ruled that Dr. Rudinskas had notice of the allegations in respect of the patients in issue through an expert's report to which her expert had responded. The fact that the notice of hearing might not contain full particulars did not deprive it of jurisdiction. Dr. Rudinskas then sought judicial review of this decision from the Divisional Court. The Divisional Court ruled that her application for judicial review was premature and should be quashed. In so doing, the Court stated that when the body of the notice of hearing was read with the Schedule, and in light of the record, it was evident that Dr. Rudinskas' conduct with respect to all fourteen patients discussed in the expert's report was before the referring committee when it made the referral to discipline, that she had extensive disclosure, and that if she required further particulars she could seek them. The Court held that Dr. Rudinskas had failed to establish that the Discipline Committee lacked jurisdiction.

The Court also rejected submissions by the applicant that the conduct of the independent legal counsel (ILC) to the Discipline Committee gave rise to a reasonable apprehension of bias and unfairness. In so doing, it made the following important points:

  • There is nothing improper in ILC giving advice on the "ultimate issue" upon which a Discipline Committee requests advice and guidance. A Discipline Committee is at liberty to accept or reject the advice. What is important is that the ultimate decision remains that of the Committee. The Court reviewed the record of the hearing and noted that ILC had made it clear to the Committee that it was at liberty to accept or reject her advice, and that the ultimate decision was with the Committee.
  • It is inevitable that on some issues ILC will agree with the position taken by one or the other of the parties. That does not mean that the ILC is improperly favouring or advancing the position of one or the other party.
  • It is both proper and desirable for a Discipline Committee to seek the advice of its counsel as to how it might improve the quality of the reasons it has drafted so as to more effectively explain its decision. As the Court of Appeal held in Khan v. College of Physicians and Surgeons of Ontario (1992), 9 O.R. (3d) 641, ILC's participation in producing a final decision is not limited to proofreading or correcting typographical errors, provided that there is no interference with the Committee's ultimate responsibility for the authorship of its reasons. The Court noted that the draft of the decision in this case was written by a member of the Committee and sent to ILC for comment after the Committee had already announced its decision.
  • ILC was not required to provide the applicant with the details of her assistance to the Discipline Committee in revising its draft. To require ILC to do so would "do violence to the principle of deliberative secrecy". The Court accepted the submissions of counsel for the Discipline Committee that "the applicant's submissions on this issue fail to recognize the principles of deliberative secrecy and adjudicative privilege". The Court rejected the applicant's submission that the Court could draw an adverse inference of impropriety because of ILC's refusal to give details of her assistance to the Committee.

This decision will be an important guide as to the role of independent legal counsel to administrative tribunals, and will be of interest to those who serve in that position, those who appear before tribunals as counsel, and tribunals themselves.

*Counsel for the Discipline Committee in the Divisional Court was Robert W. Cosman of Fasken Martineau.

www.fasken.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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