The court found a reasonable apprehension of bias to exist in circumstances where a physician testified at a College disciplinary hearing as both a fact and expert witness and was subsequently appointed to be a member of the College Discipline Committee shortly before the decision pertaining to the hearing at which she gave evidence was released

Administrative law – Physicians and Surgeons – Disciplinary proceedings – Professional misconduct – Penalties and suspensions – Decisions of administrative tribunals – College of Physicians and Surgeons – Committee members – Impartiality – Judicial review – Witnesses – Bias – Disclosure – Procedural requirements and fairness

Li v. College of Physicians and Surgeons of Ontario, [2004] O.J. No. 4032, Ontario Superior Court of Justice, October 1, 2004, Gravely, Carnwath and Pitt JJ.

On December 19, 2002, the College of Physicians and Surgeons of Ontario found the Appellant guilty of three counts of sexual abuse, one count of sexual impropriety as well as other related allegations. A panel of the Discipline Committee revoked his certificate of registration.

Dr. Chart testified for the College as both a fact and expert witness during the hearing. After giving evidence, Dr. Chart continued her participation at the hearing by sitting with the College prosecutor and assisting him. Dr. Chart’s evidence was critical with respect to the standard of care and had to be weighed against opposing evidence which had been submitted by the Appellant on that issue.

The evidence in the Appellant’s hearing concluded on November 22, 2002. Dr. Chart was appointed to the Discipline Committee on November 29, 2002. Closing arguments in the Appellant’s hearing took place on December 16 and 17, 2002 and reasons were issued on May 23, 2003.

Dr. Chart sat with members of the Appellant’s disciplinary panel on three occasions in 2003. No machinery was put in place by the College to ensure that its policy of non-contact between witnesses and panel members was adhered to. The Appellant’s counsel did not find out about Dr. Chart’s appointment to the Discipline Committee and her subsequent activity on that Committee with members of the Appellant’s panel until well after the reasons for decision were issued.

The court held that an informed person viewing the matter realistically and practically and having thought the matter through would conclude that it was more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly. The court noted that members of the disciplinary panel had to weigh Dr. Chart’s evidence for the purpose of making a decision and for the purpose of drafting reasons with the knowledge that she was a colleague of theirs on the Discipline Committee with whom they likely would be called upon to sit on other panels in the future. The court therefore found on a preponderance of evidence reasonable apprehension of bias to exist. The College’s institutional structure did not explain or excuse the College’s failure to disclose Dr. Chart’s appointment to the Discipline Committee to the Appellant’s counsel. The decision of the Panel was quashed as being void ab initio.

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