Administrative law – Physicians and surgeons – Disciplinary proceedings – Inquiry committee decisions – Evidence – Judicial review – Natural justice – Adjournment of hearing – Standard of review – Reasonableness
Howatt v. College of Physicians and Surgeons of Ontario,  O.J. No. 138, Ontario Superior Court of Justice, January 21, 2003, Carnwath, Whalen and MacDougall JJ.
Dr. Howatt was found guilty by the Discipline Committee of the College of Physicians and Surgeons of Ontario of several counts of professional misconduct and an additional count of incompetency. Just prior to the hearing, counsel for Dr. Howatt requested an adjournment because Dr. Howatt was extremely depressed and clinically ill. Counsel for the College requested a report from Dr. Howatt’s treating psychiatrist. Two reports were provided to the College in which Dr. Howatt’s psychiatrist confirmed her diagnosis of Dr. Howatt’s depression, and concluded that his illness interfered significantly with his ability to instruct counsel. On the morning of the first day of the hearing, Dr. Howatt asked for an adjournment based on his psychiatrist’s reports. The College objected to the filing of the reports unless the psychiatrist was present to be cross-examined. The earliest the psychiatrist was available for cross-examination, however, was the following day. Counsel for Dr. Howatt requested that the hearing be adjourned to the following afternoon so that the psychiatrist could attend. The Discipline Committee refused to adjourn the hearing and the College proceeded to call evidence. On the following day the psychiatrist appeared and testified that Dr. Howatt was unable to digest the material provided by the College. It was the psychiatrist’s opinion that Dr. Howatt was incapable of processing the information necessary to proceed with the hearing. The Committee decided to proceed with the hearing and Dr. Howatt was found guilty on all counts. Dr. Howatt appealed his case to the Ontario Superior Court of Justice on the grounds that the Committee’s refusal to adjourn the hearing was a denial of natural justice. In determining that the committee’s refusal to adjourn was a denial of natural justice, Carnwath J. stated that:
There is no doubt that the right to an adjournment before an administrative tribunal, including a disciplinary body, is not an absolute right. In each case, whether or not the adjournment should be granted must be considered in the light of the circumstances, having regard to the right of the applicant to a fair hearing weighed against the obvious desirability of a speedy and expeditious hearing into charges of professional misconduct. When balancing these two factors, the right of the applicant to a fair hearing must be the paramount consideration.
The law is clear that an adjournment should be granted when a party is prevented by illness from attending a hearing. In the context of a professional disciplinary hearing in particular, it is fundamental that the member who seeks an adjournment because of illness be afforded the opportunity to be present at a hearing and to make his defence. A tribunal should only deny the member that opportunity in the clearest of cases. Kampman v. Canada,  F.C.J. No. 66 (C.A.); Olech v. Royal College of Dental Surgeons of Ontario,  O.J. No. 520 (Div. Ct.), at para. 6; and P.I.S. v. M.S.,  B.C.J. No. 2220 (B.C.S.C.)
The court concluded that the refusal of the adjournment was a denial of natural justice to Dr. Howatt and that the Discipline Committee did not act in accordance with proper principles and therefore, the application was allowed and the decision was quashed.
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