The 25,000 Page Brief

When an unrepresented party files voluminous materials and makes lengthy arguments, regulators have a challenge in distilling the central issues. For example, in Fisher v. Health Professions Appeal and Review Board, 2023 ONSC 6209 (CanLII), a patient of a dentist with ongoing pain and other issues sought judicial review of a dismissed complaint and its subsequent review by the Health Professions Appeal and Review Board (HPARB).

One document in the complaint was over 800 pages long. The complaint against another dentist, that never treated the patient, was over 180 pages of single-spaced text. On the judicial review application, the Court faced a “record that exceeded 25,000 pages, 183 pages of written argument, and 11 single-spaced pages titled ‘Oral Arguments.’” The Court had difficulty understanding the applicant’s arguments. For example, a major ground for the review was that there had been a lack of procedural fairness, but the applicant had not identified, specifically, what was unfair in the procedures followed. Relying on the issues identified in the applicant’s oral submissions, the Court held as follows:

  • “There is no requirement that the Board clarify or summarize Mr. Fisher’s submissions, particularly given their length. Moreover, it is not clear how such a summary would have assisted Mr. Fisher to present his case. There is no doubt that administrative tribunals must treat self-represented litigants fairly, but the Board did not violate the rules of procedural fairness in this case.”
  • There was no obligation on HPARB to record its proceedings as there was no hearing or witnesses. Recording submissions was not necessary.
  • In respect of the concern that the chair of the HPARB panel may have cut the applicant off in his submissions, the Court said: “A review process is meant to be conducted in a fair but expedited way. Given the volume of written information filed by Mr. Fisher, there is nothing inappropriate about the Vice-Chair asking him to move to another area when she understood his submissions on an issue. Mr. Fisher has not demonstrated that the Vice-Chair exercised her discretion in a way that was inconsistent with the principles of procedural fairness.”

The process before the complaints screening committee, involving receiving and disclosing documents and receiving written submissions, was also fair.

The Court also found that the reasons of HPARB indicated that it had reached a reasonable decision. It did so by summarizing the main themes of the applicant’s complaint and review request, indicating which aspects were outside of its jurisdiction (e.g., initiating a criminal investigation), and addressing the statutory issues, namely the adequacy of the investigation and the overall reasonableness of the screening committee’s decision. The Court said HPARB:

…was not required to address every issue or argument advanced by Mr. Fisher as long as its reasons meaningfully account for the central issues and concerns raised by the parties. This is particularly true in a case like this one, where Mr. Fisher filed hundreds of pages of material that raised almost innumerable issues, sub-issues, and concerns. [Citation omitted]

 

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