Many regulators hold discipline hearings for registrants who do not have legal counsel. In Hirtle v. College of Nurses of Ontario, 2022 ONSC 1479 (CanLII), https://canlii.ca/t/jpmwm the main issue was whether the regulator had provided sufficient assistance to the self-represented registrant who was suspended for five months for inappropriate sexual remarks and behaviour towards students the registrant was training.
The Court found that more than adequate assistance was provided despite the fact that the hearing that took a full week, was hotly contested, included findings of disputed credibility, and involved a number of procedural and evidentiary rulings. The assistance was, in fact, quite extensive including:
- Legal counsel prosecuting the allegations provided the registrant in advance of the hearing a twelve-page description of the hearing process specially designed for self-represented registrants, the rules and guidelines of the committee and other explanatory documents (e.g., on how to summon a witness);
- Other written communications by legal counsel about procedure at the hearing, all of which invited the registrant to approach them if they had any questions;
- Discussion about the process at the pre-hearing conference (evidence of the nature of those discussions was admitted during the appeal);
- A detailed overview of the process by the chair of the hearing panel at the outset of the hearing, again with an invitation to ask questions at any time;
- Guidance offered about the procedure during the hearing, which advice was on the record; and
- Evidence of communications outside of the hearing room by legal counsel prosecuting the allegations and independent legal counsel (again, evidence of the nature of those discussions was admitted during the appeal).
The registrant indicated that they did not recall receiving or reviewing much of the written material, but the court inferred it had been received since it was sent to the correct address and not returned. The notice of hearing itself was served personally on the registrant and its receipt was not disputed.
The Court viewed the 2006 Statement of Principles on Self-Represented Litigants and Accused Persons established by the Canadian Judicial Council as relevant to disciplinary bodies and accepted that, while there was an obligation on adjudicators to provide some assistance, the registrant also had some responsibility to familiarize themselves with the hearing procedures and to prepare their own case. The Court found that the materials provided:
… included information about the following topics now at issue: the burden of proof, the ability to call and question witnesses, how to summons witnesses, the ability to deny or admit allegations and the procedural consequences of doing so, the examination and cross-examination of witnesses, the right to object, and the distinction between submissions and evidence. The appellant was also provided with a memo on the specific topic of summoning witnesses.
The Court also found that some of the assistance suggested by the registrant on the appeal, such as that the hearing panel should have suggested the registrant cross-examine witnesses on purportedly inconsistent prior statements, was beyond the appropriate role of the adjudicator. Such an intervention would have involved the adjudicator usurping the responsibility of the registrant to present their own case and could compromise the adjudicator’s impartiality.
Because the assistance provided by this regulator was so extensive, it is difficult to ascertain what lesser amount of assistance would still be adequate. Regulators may wish to review the materials they now provide to self-represented litigants to put themselves in a strong position to respond to any future appeals of this nature. Also, regulators would be prudent to document the assistance they provide, especially outside of the hearing itself.
Some other “hidden gems” in this decision include:
- The Court found it unhelpful for the panel’s reasons to include a general finding of credibility for each witness in one part of the reasons and specific findings of credibility on each of the disputed allegations in other parts of their reasons. The latter was the most useful.
- The Court was not concerned about the notice of hearing referring to the time period that the students were conducting their training where some of the allegations referred to behaviour after the training period. The registrant was not confused or misled about the nature and content of the allegations.
- The Court gave significant deference to the sanction, including the five-month suspension, even though it was at the high end of the range and there were some mitigating factors.