Tribunal members are given some leeway to question witnesses. Questions clarifying the evidence of a witness or even asking for additional explanation on a point that is puzzling are acceptable. However, where the questioning of a witness, particularly the practitioner, appears to indicate that the tribunal has made up its mind, the questions can create an appearance of bias. That is particularly true when the “questions” contain statements.
Yee v Chartered Professional Accountants of Alberta, 2020 ABCA 98, <http://canlii.ca/t/j5q8v is one of those rare cases where a disciplinary decision was reversed solely on the basis of the questioning of the practitioner by tribunal members. That case arose from some business dealings the practitioner’s company had with the complainant. Disagreements between them led to a civil action in court. The practitioner’s pleadings (formal position) in the civil action denied the complainant’s allegations and put the complainant to the strict proof of them. The tribunal members at the resulting discipline hearings took exception to those denials, interpreting them as false statements. The tribunal members also persisted in forcefully challenging the practitioner’s position that he was acting in a business capacity in the matter rather than as a member of the profession.
The Court said:
A tribunal is entitled to challenge and question a witness vigorously, provided that the tribunal is open minded, that is, open to consideration of the answer to what might be a leading question. The issue before us is whether the questioning in this case and the statements made in the context of questioning give rise to a reasonable apprehension of bias.
The Court concluded that the cumulative effect of the questions by multiple tribunal members created an appearance of bias. The discipline findings were set aside and the matter was returned for a new hearing.