CITATION: Bayfield v. College of Physiotherapists of Ontario, 2015 ONSC 6808

DIVISIONAL COURT FILE NO.: 415/13 DATE: 20151112

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Kruzick, Sachs & Wilton-Siegel JJ.

BETWEEN:

ZAK ALASTAIR BAYFIELD Appellant (Respondent)

• and -

COLLEGE OF PHYSIOTHERAPISTS OF ONTARIO Respondent (Moving party)

ZAK ALASTAIR BAYFIELD, acting in person

Susan Chapman and Karen Ensslen, for the Respondent

HEARD at Toronto: September 23, 2015

E. Kruzick J.

1The appellant (“Mr. Bayfield”) appeals a penalty decision of the Discipline Committee of the Ontario College of Physiotherapist (“the Hearing Panel”) where the Hearing Panel found he was ungovernable and revoked his certificate of registration. Mr. Bayfield takes the position that he was denied procedural fairness and that the Hearing Panel violated the principles of natural justice in its penalty decision when it refused to grant him an adjournment. Mr. Bayfield asks this court to set aside the penalty order and return the matter to the panel for a rehearing with respect to the penalty. The respondent, the Ontario College of Physiotherapists (“the College”), argues that the appeal should be dismissed.

2For the reasons which follow, we agree with the appellant and order the penalty be set aside and the matter be returned to the Hearing Panel for a hearing de novo with respect to penalty.

Motions of the Respondent

3At the outset of the hearing before this court, counsel for the College asked this court to consider two motions: Admission of Fresh Evidence and a Motion to Strike a portion of Mr. Bayfield’s Factum.

Admission of Fresh Evidence

4The first motion sought to admit three additional pieces of evidence that were not before the Hearing Panel and that go to the ground of procedural fairness.

5The College sought to add: (1) the affidavit of service of Tom Redmond, sworn August 7, 2014; (2) a letter from College counsel to Mr. Bayfield dated July 16, 2013 and (3) a letter from College counsel to Mr. Bayfield dated July 18, 2013.

6Mr. Bayfield did not oppose the request. Accordingly, the fresh evidence was admitted.

Striking Portion of the Appellant’s Factum

7The College also asks this court to strike paragraph 50 of Mr. Bayfield’s Factum. It reads:

50. It is also respectfully requested that this Honourable Court set aside the Decision and Reasons on the Matter of Cost of the Hearing Panel dated November 25, 2013, that the Appellant pay the costs of the discipline proceeding fixed in the sum of $25,000.

8Given this court’s decision to return this matter to the Hearing Panel on penalty, it will also have to reconsider its decision on costs.

Background

9Mr. Bayfield holds a certificate of registration issued by the College.

10The College began discipline proceedings against Mr. Bayfield. The notice of hearing was issued on January 1, 2012. A letter from the College, dated April 29, 2013, informed Mr. Bayfield that the discipline hearing was scheduled to be heard on June 10 and 11, 2013, and, if necessary, on July 19, 2013.

11By way of a letter dated May 30, 2013, Mr. Bayfield stated he could not represent himself, and, until such time as he was able to “retain proper legal representation”, he was unable to attend any hearings. Mr. Bayfield did not appear on the June 2013 return dates and so the Hearing Panel proceeded in his absence.

12On July 8, 2013, the Hearing Panel released its decision with respect to conduct. Based on the evidence heard, it found some, but not all, of the allegations, justified a finding of professional misconduct. The hearing was adjourned to July 19, 2013 to deal with penalty.

13Mr. Bayfield does not appeal the Hearing Panel’s finding of professional misconduct.

14On July 18, 2013, Mr. Bayfield was served with a Factum and Brief of Authorities by counsel for the College. The Factum set out that the College was seeking a reprimand and revocation of registration on the basis that Mr. Bayfield’s acts of misconduct demonstrated that he is ungovernable. The College began attempting to serve Mr. Bayfield with this material on July 16, 2013, but these attempts were unsuccessful until 9:00 p.m. on July 18, 2013.

15Mr. Bayfield attended the penalty hearing on July 19, 2013 and requested an adjournment given the new material filed. In the request for the adjournment, Mr. Bayfield did not request a specific date or provide a timeline for the adjournment. In the exchange with the Hearing Panel chair, Mr. Bayfield indicated that he wished to consult with counsel and to have an opportunity to respond to the material which was served upon him on the eve of the penalty hearing.

16The request for an adjournment was denied.

17On August 2, 2013, the Hearing Panel found Mr. Bayfield ungovernable and revoked his certificate of registration.

AnaLysis

The Issues

18The central issue before this court is whether Mr. Bayfield was denied procedural fairness and whether the Hearing Panel acted contrary to the principles of natural justice when it denied him the adjournment on penalty.

19This court was also asked to decide if the Hearing Panel’s decision to revoke his registration on its finding that Mr. Bayfield was ungovernable was reasonable.

20As stated, Mr. Bayfield does not challenge the Hearing Panel’s decision to proceed, in his absence, with the hearing on the merits, on June 10 and 11, 2013. He challenges only the failure to adjourn the hearing of the argument with respect to penalty which occurred on July 19, 2013.

The Penalty Hearing

21The request of Mr. Bayfield to adjourn the penalty hearing was denied. In refusing the request for the adjournment, the Hearing Panel stated on July 19, 2013 (at para. 16, Appeal Book Tab 10, p. 82):

The panel has decided not to adjourn and we will be proceeding today. We will provide the reasons for this in due course. In summary, the panel felt that [the appellant] had ample opportunity to prepare and proceed today but [he] did not take appropriate steps to be ready to proceed today. The panel did not believe that granting an adjournment today which would have been very brief at best would have resulted in significant differences after this brief adjournment and we did not think the situation would have been a whole lot different and so we decided to proceed.

22The Hearing Panel then proceeded with the penalty hearing. In my view, Mr. Bayfield had no time to prepare and respond to the fresh material served on the eve of the penalty hearing. The Hearing Panel stated at page 8 of its reasons dated November 16, 2013:

It was clear from [the appellant’s] oral submission to the Panel that he recently had access to legal advice and that he was endeavouring to borrow money from family and friends to pay the outstanding invoice for the lawyer who had assisted him earlier in this year with another legal matter involving the Discipline Committee of the College. He explained, however, that he had no money left to obtain representation for this proceeding.

In the Panel's view, [the appellant] had received adequate notice of the Penalty phase of this hearing [as well as the Finding phase]. [The appellant] had no clear plan to secure legal representation within any reasonable time frame. In essence, [the appellant] was asking for an indefinite adjournment, something which the Panel was not prepared to grant. For these reasons the Panel refused [the appellant’s] request for an adjournment.

The Panel asked counsel for the College to present its case with regard to penalty.

23From my review of the transcript (p. 22), Mr. Bayfield stated that he did not expect “an indefinite adjournment”, but rather enough time to “come up with a reasonable schedule to find counsel”. He clearly did not propose a time frame or propose a return date.

24Mr. Bayfield submits that the denial of the adjournment denied him the ability to make full reply to the charges of professional misconduct and respond to the new and additional material with which he was served. He also wished to consult with counsel.

25It is the position of the College that Mr. Bayfield had notice that the issue of penalty would be dealt with when the matter was set down. Counsel for the College argues that Mr. Bayfield had ample notice that the Discipline Committee could revoke his certificate of registration. Counsel argued the following:

(a) The Notice of Hearing, served in January 2012, identified that the Discipline Committee may make an order revoking his certificate of registration;

(b) In an earlier proceeding before the Discipline Committee, at which Mr. Bayfield was present and represented by counsel, the position of the College was that he was ungovernable and the College sought an order revoking the his certificate of registration;

(c) In an email from College counsel dated July 8, 2013, Mr. Bayfield was informed that the Discipline Committee could make an order revoking his certificate of registration at the July 19, 2013 hearing; and

(d) In a letter, served July 18, 2013, counsel for the College informed Mr. Bayfield that the College would be seeking revocation on the grounds that he was ungovernable.

26I accept that these steps were taken by the College. However, I also accept that with the letter dated July 18, 2013, counsel for the College did serve Mr. Bayfield with fresh material where it was clearly set out that the College was seeking in these proceedings to have his certificate revoked on the basis of the fact that he was ungovernable.

27I acknowledge that the Hearing Panel and counsel for the College made efforts to accommodate Mr. Bayfield before the matter proceeded to the penalty hearing stage. On the morning of June 10, 2013, when Mr. Bayfield was not present, the Hearing Panel did not proceed at the scheduled start time, so as to allow him the opportunity to appear in the event if he was late. That same morning counsel for the College called Mr. Bayfield and left a voicemail message to which he did not respond. Mr. Bayfield only responded after he was served on July 18, 2013 with the penalty hearing Factum and the additional materials upon which College counsel proposed to rely. It was not argued, nor do I find, that, in serving Mr. Bayfield with the fresh materials on July 18, 2013, College counsel attempted to take advantage of Mr. Bayfield.

28It is my view, however, that having served Mr. Bayfield with this material on the eve of the hearing, he was entitled to sufficient time to actually read and absorb this material before being asked to address it.

29At the commencement of the penalty hearing, Mr. Bayfield sought an adjournment to consult with counsel on the issue of penalty. The College opposed the request. His request was denied. Once the adjournment was refused, Mr. Bayfield was invited by the Hearing Panel to tender evidence and make submissions on penalty. Mr. Bayfield was not in a position to do so. The Hearing Panel declined to reconsider its position with respect to the adjournment.

30At the penalty hearing, the College took the position that Mr. Bayfield should be found ungovernable and sought revocation of Mr. Bayfield’s registration. On August 2, 2013, an order was made revoking Mr. Bayfield’s certificate of registration.

The Law

The Standard of Review

31It was not denied that where an appeal relates to a denial of procedural fairness the standard of review analysis does not arise. Pursuant to Igbinosun v. Law Society of Upper Canada, 239 O.A.C. 178, [2008] O.J. No. 2848 (Div. Ct.), para. 10, “[A] tribunal is required to conduct its proceedings fairly. A party that is denied procedural fairness or natural justice has not had a fair hearing, and the decision flowing from that hearing must be set aside”.

32It was also not denied that with respect to the finding of ungovernabilitiy and the revocation of the appellant’s certificate of registration the standard is reasonableness: see Igbinosun v. Law Society of Upper Canada; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9.

Grounds of Appeal

(a) Procedural Fairness

33The primary ground of appeal argued is that Mr. Bayfield was denied procedural fairness. In this case, the Hearing Panel refused the adjournment and, as submitted by the College, determined that the appellant had ample notice of the potential consequence. While I agree that Mr. Bayfield had notice and even, as submitted, that he may be no stranger to discipline proceedings, an adjournment should have been granted given the serious nature of the relief sought On July 18, 2013, Mr. Bayfield was clearly informed that the matter would proceed to a penalty hearing and that his professional livelihood was at stake. Furthermore, he was served with new and additional material in support of the relief sought by the College.

34I acknowledge that the earlier material referred to a revocation of registration. However, given the fresh step taken and the new material served, a higher standard of justice is required when the right to continue one’s profession or employment is threatened. (This higher standard applies even where the penalty being sought against the individual is a suspension): see Igbinosun v. Law Society of Upper Canada (Div. Ct.); Kane v. University of British Columbia, [1980] 1 S.C.R. 1105, [1980] S.C.J. No. 32.

35At the penalty hearing, Mr. Bayfield appeared self-represented. The Court of Appeal has held that our courts (and tribunals) must ensure that self-represented litigants have a fair opportunity to advance their position including where the request is for an adjournment. In the circumstances of this case, the Hearing Panel was not required to grant Mr. Bayfield the indefinite adjournment that he requested to obtain legal counsel. However, I find the Hearing Panel erred when it failed to assist the appellant by granting a brief adjournment to give him the opportunity to read the material served on him the night before and prepare his submissions so as to ensure that he had a fair hearing and was able to respond to the College’s additional material and allegations that he was ungovernable.

36Igbinosun v. Law Society of Upper Canada was appealed from the Divisional Court to the Court of Appeal: see Igbinosun v. Law Society of Upper Canada, 2009 ONCA 484, [2009] O.J. No. 2465. In this later decision, the Court of Appeal provides a thorough list of factors to consider when an adjournment is requested to retain counsel.

(1) Factors which may support the denial of an adjournment:

(a) lack of compliance with prior court orders;

(b) previous adjournments that have been granted to the applicant;

(c) previous peremptory hearing dates;

(d) the desirability of having the matter decided; and

(e) a finding that the applicant is seeking to manipulate the system by orchestrating delay;

(2) Factors which may support the granting of an adjournment:

(a) the seriousness of the consequences of the proceeding on an individual;

(b) prejudice to the individual if the adjournment is not granted;

(c) a finding that the applicant was honestly seeking to exercise a right to counsel; and

(d) where an individual had been previously represented in the proceeding.

37In my view, the Hearing Panel did not consider most of these factors. Further, if they had done so, the preponderance of factors would have favoured granting an adjournment even in a situation where it was not clear that Mr. Bayfield would be able to retain counsel within the period of the adjournment. Specifically, in this case Mr. Bayfield had no history of lack of compliance with prior Tribunal orders; this was his first request of the Hearing Panel for an adjournment; there were no previous peremptory hearing dates; and there was no finding by the Hearing Panel that Mr. Bayfield was seeking to manipulate the system by orchestrating delay. While it was desirable that the matter be decided, there was no need that it be decided that day and any preferability in doing so was far outweighed by the prejudice of forcing Mr. Bayfield to proceed when he had not had any reasonable amount of time to absorb and prepare a response to the new material that the College had served on him on the eve of the hearing.

38The consequence of the proceeding on Mr. Bayfield was the most serious consequence a member of his profession can face. It was clear that, as a self-represented litigant, he could not have been expected to have been able to absorb or respond to the material that had just been served on him by the College between the time of receipt and the commencement of the hearing. He should have at least been given some reasonable opportunity to do so. After Mr. Bayfield advised the College's counsel in his letter of May 30, 2013 that until he was able to retain legal representation, he would be unable to attend any hearings and then chose not to attend the hearings on June 8 and 9, 2013, he could not reasonably expect to be granted in mid-trial an adjournment of an indefinite length for the purpose of instructing counsel. He remained entitled, however, to a reasonable period of time to review the position of the College and prepare his submissions at the point in the proceedings when he chose to participate. In the circumstances of this case, we are of the view that such right entitled him to a short adjournment and that, accordingly, the Hearing Panel did not act fairly in refusing an adjournment. In doing so, the Hearing Panel failed to properly balance the public’s interest in having the matter heard against the very serious prejudice to Mr. Bayfield. In the end, Mr. Bayfield was prejudiced when the Hearing Panel proceeded and then considered and based their decision on the new material that he had just received the night before.

39The refusal to grant an adjournment resulted in a penalty hearing that was procedurally unfair to Mr. Bayfield. As a result, we are of the view, and as sought by Mr. Bayfield, that the hearing on penalty should be returned to the panel for a new hearing.

(b) Finding of Ungovernability

40Given this court’s finding of procedural unfairness, it is not necessary to for us to consider the reasonableness of this Tribunal’s conclusion that Mr. Bayfield’s licence should be revoked on the basis that he was ungovernable.

Dispostion and Costs

41For these reasons, the penalty order is set aside and the matter is returned to the Hearing Panel to deal with penalty.

42Mr. Bayfield and counsel for the College were not able to agree on costs. We invite each of them make submissions in writing of no more than five pages (double spaced) addressed to the court on or before December 4, 2015.

___________________________ E. Kruzick J.

Sachs J.

Wilton-Siegel J.