Courts are much higher on the decision-making ladder than administrative tribunals. Courts can reverse tribunal decisions and issue directions for them to follow. Court decisions dealing with other tribunals can also be binding precedents for a tribunal. However, that is not to say that tribunals can never guide the courts. This feedback loop is illustrated in Oladipo v The College of Physicians and Surgeons of Saskatchewan, 2024 SKCA 94 (CanLII).
An emergency room physician was disciplined for discreditable conduct for his interactions with nurses at the facility. It was alleged that the physician had kissed and attempted to tickle nurses.
As an example of a court directing a tribunal, the Court set aside the finding of misconduct on the basis that the tribunal had not effectively dealt with the credibility issues in the evidence of one of the key witnesses for the regulator. The tribunal had not adequately analyzed the inconsistencies in the witness’ evidence and prior statements. The tribunal had also not addressed a concern about the reliability of the witness’ testimony when it found that another incident (conduct towards a ward clerk), in which the witness testified, had not been proved. A new hearing was required to address the credibility issues (as it was not for the court to do so based on a transcript).
The Court also engaged in a detailed discussion of whether the kissing incident and tickling incident were sexual in nature. The Court was of the view that the tribunal’s conclusion that the conduct was inherently sexual in nature was inadequately reasoned. In doing so, the Court relied upon a tribunal level decision in (College of Physicians and Surgeons) v Shamess, 2019 ONCPSD 22 at 41–42, where the discipline committee said:
The determination of whether an act is of a sexual nature is an objective test. The subjective beliefs of the complainants, although important and to be taken into consideration, are not determinative of the issue. Similarly, the subjective intent of the physician is not determinative but simply one of many factors in deciding if the conduct is sexual in nature. Many aspects of the alleged misconduct will be considered in deciding whether the actions of the doctor were of a sexual nature including, as stated in R. v. Chase:
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- The part of the body touched,
- The nature of the contact,
- The situation in which it occurred,
- Any words or gestures accompanying the act,
- All other circumstances surrounding the conduct, including threats which may or may not be accompanied by force,
- The intent or purpose of the person committing the act and,
- Whether the motive of the accused is sexual gratification.
Another point of discussion might be worthy of further input into the feedback loop. The Court felt that there should have been evidence for the tribunal’s view that there was a power imbalance between physicians and nurses. Curiously, the Court said it would not have reversed the decision for that error alone. Since this is an ethical, rather than a standards of practice, issue one might question whether the tribunal’s expertise might be sufficient to support such a statement.
This decision illustrates that tribunals and courts are often in a subtle form of dialogue.