CITATION: Berge v. College of Audiologists and Speech Language Pathologists of Ontario, 2019 ONSC 3351
DIVISIONAL COURT FILE NO.: 219/15 DATE: 20190607
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. CORBETT, M.D. FAIETA, and C. MacLEOD JJ.
BETWEEN:
BRENDA BERGE
Ernest J. Guiste, for the Applicant and proposed intervenor
Applicant
– and –
COLLEGE OF AUDIOLOGISTS AND SPEECH LANGUAGE PATHOLOGISTS OF ONTARIO and THE ATTORNEY GENERAL FOR ONTARIO
Bernard C. LeBlanc and Natash S. Danson, for the Respondent College
Respondents
HEARD at Toronto: May 30, 2019
REASONS FOR DECISION
C. MacLEOD J.
[1] This matter came on for a hearing on May 30th, 2019. Following the hearing, we endorsed the record dismissing all of the motions brought by the Applicant with reasons to follow. Our reasons are set out below.
Background and Issues
[2] On March 15th, 2015 the Applicant was disciplined by the College of Audiologists and Speech Language Pathologists of Ontario (“the College”) for using the title of “Doctor” in connection with her practice in violation of the Regulated Health Professions Act, 1991. That decision was upheld by this court on appeal (2016 ONSC 7034). Leave to appeal from the Divisional Court was subsequently refused by both the Court of Appeal (File M47786, Sept. 22, 2017) and the Supreme Court of Canada (Docket 37851, June 14, 2018).
[3] The Applicant has now returned to this court seeking various forms of relief. Most importantly, she seeks an order setting aside or varying the original decision of this court under Rule 59.06 (2). This is the rule that permits a court to set aside or vary an order on the basis of fraud or newly discovered facts. It is an exception to the principle of finality and it may be invoked to prevent a miscarriage of justice in an appropriate case.
[4] Preliminary to the Rule 59 motion, the Applicant also sought orders for admission of fresh evidence and the removal of counsel for the College.
[5] There was also a motion to intervene brought on behalf of Dr. Raviraj Walia who was the Applicant in a matter also heard by this court concerning discipline imposed on him by the College of Veterinarians of Ontario. (See 2018 ONSC 6189). In the Walia decision, the Divisional Court cited its decision in this matter as a precedent.
Denial of Leave to Intervene
[6] Dealing firstly with the question of intervention, Dr. Walia clearly has an interest in the subject matter of the proceeding insofar as a central question on his appeal and on the original hearing in this matter had to do with the procedure when a formal complaint is referred to discipline. Both the Applicant in this proceeding and Dr. Walia in his proceeding were concerned about the process by which a decision by an investigation panel to refer a matter to discipline is formalized as a charge of professional misconduct before a Discipline Committee. In particular they both challenged the involvement of counsel for the College in drafting the formal complaint and were concerned about the failure to formalize the decision of the investigation committee as a precondition to a discipline hearing.
[7] In the Walia decision, the court found against Dr. Walia on this point and in its reasons cited the decision in this matter that is now under attack. Because of that and the fact that he is still seeking leave to appeal to the Supreme Court of Canada, he clearly believes it may help him if this matter is re-opened. He has a keen interest in the outcome of this motion to re-open the Berge appeal under Rule 59.
[8] Leave to intervene is not granted just because of a common interest in a particular point. Rather the proposed intervenor must establish that intervention will enhance the ability of the court to determine the matter before it. The intervenor must generally be making a useful and distinct contribution not otherwise offered by the parties. (See Berge v. CASLPO, 2016 ONSC 3261 – a previous decision of this court in this matter and Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., (1990) 1990 6886 (ON CA), 74 OR (2d) 164 (CA)).
[9] There is nothing to suggest that Dr. Walia’s intervention would be helpful on the issues now before this court which are in fact quite narrow. The sole question is whether there has been a fraud on the court or new evidence justifying the order being set aside. This is not a fresh opportunity to argue the point of law already decided.
[10] Given that Mr. Guiste is acting for both the Applicant and the proposed intervenor, it was impossible for counsel to demonstrate any argument or issue relevant to the determination of the question before the court which he was constrained from arguing without granting intervenor status. Dr. Walia’s main concern appears to be the fact that in his case different legislation was involved because veterinarians are not subject to the Regulated Health Professions Act, 1991 or the Health Professions Procedural Code. That may well be a basis for distinguishing the Berge precedent from the decision in the Walia decision and it was or could have been grounds for appeal in the latter decision. It is not a basis for leave to intervene.
[11] The intervention motion was dismissed. We did not call upon counsel for the College.
Disqualification of Counsel
[12] We reserved on the question of disqualifying counsel until we heard argument on the main motion. This is because the allegations were tied up with the question of fresh evidence and whether or not the order should be set aside.
[13] The allegation of conflict was based on the following set of facts. Firstly, the Respondent’s counsel is a member of a law firm on permanent retainer to advise the College regarding, amongst other things, its discipline procedures. Secondly, the “manual” followed by the College is based on a book written by Richard Steinecke, who is one of the name partners. Thirdly, the lawyer now acting on this matter served as the legal advisor for the investigation panel (ICRC), drafted the formal charge as referred to the Discipline Committee and then acted as prosecutor. Of course Mr. LeBlanc and Ms. Danson also appeared as counsel at the hearing before the Divisional Court that produced the decision the Applicant now seeks to set aside.
[14] There is no doubt that the Respondent’s counsel is deeply imbedded in the operations of the College and to some degree the original hearing put into question the advice and guidance given to the College by this law firm. This is a not uncommon scenario in which litigation erupts over a situation in which a client was acting on the advice of its counsel. In such situations it might be prudent for counsel to suggest a second opinion from an independent lawyer. The lawyer who gave the legal advice which led to litigation might have some difficulty in viewing the matter objectively. Possibly decisions on litigation strategy might be coloured by counsel’s pre-existing belief in his or her previous legal advice or be affected by fear that losing the litigation might result in the loss of a client or in professional liability.
[15] While this may appear to be simply an issue between a lawyer and client, there are cases in which the court has removed counsel because of concern over whether or not counsel can properly discharge his or her responsibility as an advocate due to personal involvement or knowledge of the facts. This concern was clearly articulated in Young-Tangjerd v. Official Board of Calvary United Church, 2006 ONSC 2161 which was a decision granting leave to appeal. The weight of authority however is that such removal is not automatic and must be assessed on a case by case basis. Such motions may not be brought to gain a tactical advantage. (see Gutierrez v. The Watchtower Bible and Tract Society of Canada et al., 2019 ONSC 3069, para. 42)
[16] The removal of counsel is not an issue that was raised before the board or before the original panel hearing this matter. The same counsel has acted for the College throughout these proceedings. Although the Applicant now makes allegations about the conduct of counsel at least insofar as it is implied that counsel was complicit in the suppression of evidence, it would not be appropriate to prohibit Respondent’s counsel from acting on this motion. Even the rule against counsel acting as a witness in a proceeding is not an absolute rule. The essential question is whether it impedes the fairness of the proceeding or the ability of counsel to discharge his or her role as an officer of the court. We are not persuaded that this is appropriate in this case and as discussed below the evidence does not demonstrate any wrongdoing or impropriety on the part of counsel.
[17] The motion to remove counsel from the record was also dismissed.
Admission of Fresh Evidence
[18] Turning to the question of fresh evidence, this is not a case to admit fresh evidence on appeal. Appellate courts will sometimes admit evidence which has arisen between the date of the judgment appealed from and the date of the appeal. Such “fresh evidence” motions to the appeal court can be granted based on the criteria set out in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, 106 D.L.R. (3d) 21 but they are not the same thing as a motion to reopen the original hearing. (see Tsaoussis (Litigation Guardian of) v. Baetz, (1998) 1998 5454 (ON CA), 165 D.L.R. (4th) 268, 27 C.P.C. (4th) 223, 41 O.R. (3d) 257 (Ont. CA), para. 38).
[19] Here the Applicant moves under Rule 59.06 (2) (a). On such a motion, it is not necessary to seek leave to introduce fresh evidence. The rule provides that a party may bring a motion for variation because of fraud on the court or of evidence discovered after the matter was argued and it follows that such evidence may form part of the motion record and be considered by the court in deciding whether to exercise the discretion provided by the rule.
[20] We have that evidence before us. The question is whether that evidence is sufficient to re-open the matter and in determining that question, the analysis is similar to the analysis for admitting fresh evidence. Specifically, it is necessary to demonstrate that the “new evidence could not have been put forward by the exercise of reasonable diligence” and that the evidence is sufficiently cogent that it would have altered the original decision. (See Tsaoussis, supra, paras. 41 – 45). We proceeded to consider the Rule 59.06 motion on the basis of the evidence tendered before us. It was not necessary to grant leave to admit that evidence.
Jurisdiction to Hear the Motion
[21] In their factum, counsel for the Respondent argued that if the Applicant seeks to show that there was a fraud on the original tribunal, that is the Discipline Committee for the College, the motion to re-open the proceeding should be made to the Discipline Committee. (See Aristocrat v. Aristocrat, (2004) 2004 32256 (ON CA), 73 OR (3d) 275 (CA)). Although the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, do not apply to tribunals, we agree that by analogy it would in many cases be necessary to seek a reconsideration from the tribunal rather than an appeal court. In this case, however, the Applicant’s counsel was quite clear she was seeking to set aside the decision of this Court in relation to her appeal.
[22] In that case a motion under Rule 59.06 is an available procedure. If the court can be persuaded that there was a fraud on the Divisional Court panel deciding the question or additional evidence that is only now available which would have changed the result of the appeal, then the motion is properly made to the Divisional Court. If the allegation is one of fraud on the tribunal whose judgment was appealed, then the motion should be brought to that tribunal. See Janjua v. Khan, 2014 ONCA 5 and Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670. Rule 59.06 does apply to the decision of an appeal panel and in a very narrow set of circumstances a party may seek to set aside or vary the decision of an appeal court under this rule. (See Hoang v. Mann Engineering Ltd., 2015 ONCA 858.) The question need not concern us further because on our view of the evidence there was no fraud on the court (or the tribunal) and the “fresh evidence” would not have changed the outcome.
The Rule 59.06 Motion
[23] Although there was a great deal of material placed before the court, the allegation of fresh evidence essentially boils down to this. Prior to the hearing, the Applicant had requested a copy of the manual to be followed by the ICRC and the Discipline Committee. This request had at first been denied by counsel for the College and then later a portion of the manual had been reproduced.
[24] It now appears that the portion of the manual which was not produced contained a provision that the ICRC pass a formal motion sending the matter to discipline and approve the words of the charge of professional misconduct in “Form 8”.
[25] At the original hearing before the Discipline Committee and at the hearing before the Divisional Court, the College relied upon an affidavit of the Director of Professional Conduct to determine that the ICRC had properly referred the matter to the Discipline Committee. This was relevant because the Applicant argued that the Discipline Committee did not have jurisdiction to entertain the matter if it was not properly before it.
[26] The argument relies upon two provisions of the Health Professions Procedural Code, (S.O. 1991, c. 18, Schedule 2). Specifically, s. 26 (1) 1 and 36 (1) of the Code permit an ICRC to refer a “specified allegation of a member’s misconduct or incompetence” to the Discipline Committee. Section 27 of the Code requires the ICRC to provide the member with “a copy of its decision” to refer the matter to discipline.
[27] The Applicant argues that the failure to disclose the additional portions of the manual means that the College concealed the fact that the ICRC had not in fact enacted the formal motion required by its own procedural manual and had that been known, the Discipline Committee and the Divisional Court would have reached a different decision on whether or not the discipline hearing was properly constituted.
[28] In its responding material, the College argues firstly that there was no intent to mislead. The fact is that the ICRC had a meeting and decided to refer the matter to discipline and a further meeting to approve the referral of the specific charges. There was nothing done by the Applicant to compel the College to produce the manual but in any event the formality of enacting a Form 8 motion did not result in any failure of natural justice.
[29] The evidence does not support a finding that the manual was improperly withheld or that any trickery was involved to dissuade the Applicant from making formal demands for production that she could have made before the original hearing. But even if, for argument’s sake, we accepted that the affidavit of the Director of Professional Conduct contained a material omission, it would not have altered the decision of either the Tribunal or this court. Non-compliance with the manual would be assessed – initially by the Tribunal – on a standard of procedural fairness, not strict compliance and there is no basis for supposing that the alleged non-compliance was procedurally unfair to the Applicant in the circumstances of this case. The Health Professions Procedural Code does not contain language requiring a particular method of referring a matter to the Discipline Committee nor a particular form of “decision” to do so.
[30] The Applicant is exaggerating the importance of a defect in form and conflating it with the omission of a statutory precondition to jurisdiction. In Chandler v. Assn. of Architects (Alberta), 1989 41 (SCC), [1989] 2 S.C.R. 848, the Supreme Court of Canada found that improper procedure by the Association of Architects rendered a disciplinary decision a nullity. In that case, a Practice Review Board had purported to impose discipline instead of referring the matter to the Council of the Association or to a Complaints Review Committee as was required by the legislation. In that case the purported imposition of discipline by a body which was not charged with that responsibility was invalid. Even then the Supreme Court held that the defect could be cured and remitted the matter back to the Practice Review Board so that the complaint could be properly referred to discipline.
[31] That is nothing like the case before us. Here the ICRC intended to refer the misconduct to the Discipline Committee. The Applicant was informed that the matter was proceeding to the Discipline Committee. There was no ambiguity in the nature of the allegation. There was a full hearing before the Discipline Committee. The ICRC referred the matter to the proper body and the proper body considered the matter. The failure to use “Form 8” was a failure to use the procedure the College had established for itself but, at least in this case, there was substantive compliance with the statutory requirements and there was no failure of natural justice.
[32] The only allegation of misconduct against the Applicant was that she had used the title “Doctor” in connection with her practice when she was prohibited from doing so. This was not in dispute as she admitted those facts in writing. The Applicant was always aware that this was the allegation and the basis for proposed discipline. The evidence amply discloses that the ICRC determined that the conduct should be referred to the Discipline Committee and requested counsel to draw up the formal charges. The substance of the charges was discussed in a meeting and then reviewed at a second meeting. The substance of the charges was disclosed to the Applicant and confirmed before the Tribunal. This is not a case in which the charges are complex or in which there were material disputed factual allegations.
[33] The Applicant was always aware that she was being subjected to potential discipline for calling herself “Doctor” in breach of the legislation. She knew precisely the case she had to meet and there is nothing to suggest any miscarriage of justice as the consequence of being taken by surprise. Her main defence was her contention that it was unjust to deny her the right to call herself “Doctor” when she holds a doctoral degree and the restriction imposed by the legislation was a breach of her Charter right to freedom of speech. This argument was fully advanced before the Discipline Committee and in this court and was unsuccessful at both levels. There is no evidence that anything in the wording of the charges before the Discipline Committee was in any way unclear, misleading or different from what the ICRC intended to refer.
[34] Rule 59.06 is not an invitation to reargue cases endlessly or an invitation to raise new issues after a decision has been rendered. The rule provides a mechanism for re-opening a hearing under very strict conditions. As this court has previously remarked it is “not a do-over”. (See Massiah v. Justices of the Peace Review Counsel, 2018 ONSC 2179 (Div. Ct.)).
[35] As noted above, procedural non-compliance with the College’s manual would ordinarily be a matter to be addressed at first instance by the Tribunal, not this court. If this court had concluded that there was any concern that the Applicant had not been afforded procedural fairness below, the appropriate result would have been to direct the matter back to the Tribunal for a decision on the issue at first instance.
[36] We are satisfied, however, that this evidence of non-compliance with the manual is not sufficiently significant to interfere with the previous decision of the court or for that matter to undermine the decision of the Tribunal. It is clear that there was no procedural unfairness because the Applicant always knew precisely what the issue was that was referred to discipline. As a consequence, the motion under Rule 59.06 was dismissed along with all other relief claimed by the Applicant.
Costs
[37] The Applicant was entirely unsuccessful on this motion. We are not aware as to whether or not there were offers to settle or other factors that should affect the costs award but costs would normally follow the event.
[38] During argument we had requested the positions of the parties on the quantum of costs but did not hear argument. The Applicant indicated that if she was successful, she would be seeking $6,000.00 in costs whereas the College indicated it would be seeking $28,000.00 if the motion was successfully opposed. In the result we did not have to call upon counsel for the Respondent to make oral submissions and the matter was disposed of in half a day.
[39] We invite the parties to agree on the costs award but otherwise we will entertain submissions in writing. These submissions are to be no more than three pages in addition to the costs outlines and bills of costs filed with us at the hearing.
[40] The costs submissions are to be exchanged between the parties and filed with the court within 30 days.
___________________________ C. MacLeod J.
I agree
D.L. Corbett J.
I agree
M.D. Faieta J.
Date of Release: June 7, 2019
CITATION: Berge v. College of Audiologists and Speech Language Pathologists of Ontario, 2019 ONSC 3351
DIVISIONAL COURT FILE NO.: 219/15 DATE: 20190607
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. CORBETT, M.D. FAIETA, and C. MacLEOD JJ.
BETWEEN:
BRENDA BERGE
Applicant
– and –
COLLEGE OF AUDIOLOGISTS AND SPEECH LANGUAGE PATHOLOGISTS OF ONTARIO and THE ATTORNEY GENERAL FOR ONTARIO
Respondents
REASONS FOR DECISION
C. MacLeod J.
Date of Release: June 7, 2019