DISCIPLINE COMMITTEE OF THE COLLEGE OF AUDIOLOGISTS AND SPEECH-LANGUAGE PATHOLOGISTS OF ONTARIO
BETWEEN:
College of Audiologists and Speech-Language Pathologists of Ontario
College
- and - Brenda Berge
Registrant
MOTION REASONS
Heard: in writing
Panel:
David A. Wright (Committee Co-Chair)
Written Submissions:
Bernard C. LeBlanc, for the College Brenda Berge, self-represented
RESTRICTION ON PUBLICATION
Pursuant to the panel’s order, the complainant shall not be identified and there is a ban on the publication of any information identifying or reasonably identifying the complainant in this matter. There may be significant fines for breaching this restriction.
Introduction
1The registrant asks the Committee to prohibit the College’s current counsel from continuing to represent it in these proceedings. First, she says, counsel acting as prosecutor before this Committee must not have given advice to the Registrar, investigators or to the Inquiries, Complaints and Reports Committee (ICRC) panel that referred the allegations to the Committee. Second, she refers to various ways in which she says counsel has acted inappropriately, in this case and in previous litigation between her and the College.
2Orders to remove counsel are exceptional and the registrant has not shown that such an order should be made here. Contrary to the registrant’s arguments, the law does not require that prosecuting counsel not be involved in College processes at earlier stages. The evidence does not support her allegations that counsel has acted inappropriately.
3What is more, the Divisional Court has ruled on this issue, in Berge v. College of Audiologists and Speech-Language Pathologists of Ontario, 2016 ONSC 7034 and in Berge v. College of Audiologists and Speech-Language Pathologists of Ontario, 2019 ONSC 3351. There is nothing material that distinguishes this situation from those.
There Is No Need to Separate Prosecutors from Other College Processes
4There is no legal principle that prevents counsel representing a professional regulator in discipline proceedings from being involved in the matter before referral or requires that the prosecutor be independent from others in the College. The ICRC has the power to make what is in essence a prosecutorial decision whether to refer specified allegations to the Discipline Committee. It promotes effective regulation for counsel who will be responsible for proving those allegations to provide advice about this decision and the drafting of the allegations. This is the equivalent of Crown counsel advising police before charges are laid or plaintiff’s counsel advising their client on whether to file a claim or what allegations to make. This is common practice in our legal system.
5The registrant argues that the Divisional Court, in its 2019 decision cited above, expressed “concerns” about counsel’s role in providing advice to the College. On the contrary, the Court found at para. 16 that “the evidence does not demonstrate any wrongdoing or impropriety on the part of counsel.” The Divisional Court rejected the argument that College counsel at the hearing cannot be involved at earlier stages, and that decision is binding on me.
6The registrant has a right to a hearing before an independent and impartial decision maker: this Discipline Committee. Under the common law principles of procedural fairness and the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, SO 1991, c. 18 (Code), s.38(4), no one can be a member of a Discipline Committee panel if they participated in the investigation. There is no such restriction on counsel appearing before the Committee.
Removing Counsel is Not Necessary for the Proper Administration of Justice
7The registrant relies upon Forsyth v. Blue Rock Wealth Management Inc., 2015 ONSC 6666. The Court explained, at paras. 31-32, that the test for removal of counsel is “whether a fair-minded and reasonably informed member of the public would conclude that the removal of counsel is necessary for the proper administration of justice.” A removal order should not be made unless there are “compelling reasons,” considering in particular a party’s right to choose their counsel. That right must be balanced against fairness and the proper administration of justice.
8The registrant objects to many events in her history of litigation against the College and to positions put forward by its counsel in this and other proceedings. She uses strong language such as “fraud” to characterize them. She takes issue with decisions the courts have made and asks me to come to different conclusions. While I appreciate that she disagrees strongly with the College’s positions, the evidence does not suggest counsel should be removed. Indeed, the positions she argues are improper were often accepted by the court. On the record before me, there is no legally or factually tenable allegation of fraud or abuse of process. There is also no basis for the suggestion that the registrant would be entitled to call College counsel as a witness.
9The ICRC has referred the allegations against the registrant to the Committee for determination. If, at the end of the process, misconduct is not found, the registrant can rely on s. 53.1 of the Code and argue that the commencement of proceedings was unwarranted and the College should therefore pay her costs. The focus of this proceeding is her conduct, not the investigation, the ICRC process or the College’s other internal procedures.
Order
10The motion is dismissed.