Can a practitioner who has been disciplined and who has exhausted their appeal rights request the discipline tribunal to reconsider its decision? Or do the principles of finality apply?
In Kennedy v. College of Veterinarians of Ontario, 2021 ONSC 578 (CanLII), https://canlii.ca/t/jct11 no definitive answer was provided. However, the Court indicated that it would be rare for a reconsideration request to succeed. While the Statutory Powers Procedure Act allows tribunals to make rules permitting reconsideration, few disciplinary tribunals have made broad rules. The rules that do exist are generally limited to correcting minor errors and require that such requests must be made quickly.
In this case, a veterinarian’s licence was revoked. After exhausting all appeals the practitioner brought numerous motions to reopen the hearing to receive fresh evidence and to set aside the original decision on the basis that it had been fraudulently rendered. No substantive fresh evidence or specific evidence of fraud was provided. The Chair of the discipline tribunal declined to schedule the motions on the basis that there was no jurisdiction to hear them.
The Court, without deciding whether there was a residual possibility of reopening hearings in the absence of a rule for doing so, held as follows:
… the Chair reasonably refused to schedule the motions given the lack of any evidence to establish fraud affecting the original Discipline Committee decision. There is simply no evidence to support the assertions that there is relevant fresh evidence, or that the evidence meets the test for admitting fresh evidence, or that the College engaged in “fraudulent” behaviour before or during the discipline proceedings. There is nothing in the evidence that would cast doubt on the panel’s findings that Dr. Kennedy practised while his licence was suspended or that he failed to pay costs. At its highest, Dr. Kennedy makes bald allegations of fraud in the 2017 professional misconduct proceeding, unsupported by any evidence. The issues raised were largely disclosure and third-party production issues already dealt with the by Divisional Court in the 2018 decision, or issues which Dr. Kennedy had a chance to raise in the Discipline Committee proceeding itself. In the circumstances, on the evidence before the Chair, the dismissal of the motions to adduce fresh evidence and reopen the hearing was inevitable.
The Court also found that there was no basis for finding that the Chair of the discipline tribunal was biased on the basis they had been the President of the regulator during the original discipline process.