Finality of disciplinary decisions is important for the regulator, hearing participants, and the public. The significance of that principle is illustrated in Tan v. Ontario Physicians and Surgeons Discipline Tribunal, 2024 ONSC 6609 (CanLII).
Dr. Tan was found to have sexually abused a patient. After the hearing but before a decision was rendered, the physician tried to reopen the hearing to tender new evidence given by the patient at a preliminary inquiry into criminal charges against the physician. The request to reopen the hearing was refused by the discipline panel. The physician unsuccessfully appealed both the sexual abuse finding and the refusal to reopen the hearing. Afterwards Dr. Tan was acquitted of the criminal charges and he again attempted to reopen the discipline hearing asserting that there were inconsistencies in the patient’s testimony at the discipline hearing compared to that in the criminal proceedings. The Chair of the discipline committee found there was no jurisdiction to reopen the hearing and the Court found that refusal to be reasonable.
Both the Discipline Chair and the Court noted that finality of adjudication was an important principle and without it litigants would not have a reliable basis for determining when to appeal a decision and when to move on with their lives.
The real issue for the Court was whether one of the limited exceptions to the finality principle applied. A common exception (which obviously did not apply here) is to correct minor errors in the tribunal decision. However, the Statutory Powers Procedure Act does enable tribunals to make rules permitting a review or reconsideration of adjudicative decisions for a brief period. In addition, an earlier court decision indicated that where there is an ongoing restriction on a registrant’s practice, the tribunal should have a mechanism to alter the restriction where it was no longer appropriate. As a result, the discipline committee had made a rule permitting it to “vary, suspend or cancel a Tribunal order that continues in effect”.
Both the Discipline Chair and the Court noted that this rule did not use language related to reviewing or reconsidering the original decision. In fact, the language appeared to limit itself to addressing restrictions that were no longer appropriate. It would not be fair to characterize the physician’s revocation as an ongoing restriction; that was a one-time event which, under the statute, could only be altered by way of a reinstatement application no earlier than five years after its imposition. The Discipline Chair’s decision that there was no jurisdiction to reopen the original finding was a reasonable interpretation of the rule.
This decision reinforces the importance of carefully wording any rule that permits revisiting a discipline decision so as to impact the finality principle only as much as intended.