Hearing panel members are often tempted to find out more about the case before them. It may be because of general curiosity. It may be because of a sense that there are things they are not being told. It may be because it is difficult for panel members to be passive during the hearing. However, under our adversarial legal system it is important that hearing panels obtain all of the information in the hearing room and in the presence of all parties.
In Kadioglu v Real Estate Council of British Columbia, 2017 BCSC 2252 (http://canlii.ca/t/hp6c1), the chair of a disciplinary hearing panel sent an email to the hearing staff support person requesting details about the investigation that had taken place in the case before them. A copy of the email was also sent to the regulator’s legal counsel. Independent legal advice was obtained that the chair should recuse himself from the panel, which he did. The remaining panel members completed the hearing and a finding was made against the practitioner.
The practitioner appealed and argued that he was denied procedural fairness (among other things). The practitioner relied on the chair’s email and subsequent recusal to argue that the chair must have had “misgivings” about whether due process had been followed prior to the hearing. The practitioner argued that the chair “resigned from the panel since he obviously felt that [the practitioner] was not being treated with procedural fairness and the Committee was turned into a kangaroo panel.”
The appeal court held that the practitioner’s assertions were “clearly wrong” and his appeal was dismissed. Nevertheless, the case serves as a caution to hearing panel members about the need to confine their information gathering to the hearing room itself.