The Court allowed a preliminary application for consideration of a procedural matter regarding a decision of the Chair of the Discipline Committee of the Respondent Chiropractor Board. The application alleged reasonable apprehension of bias in the proceedings of the Discipline Committee. The application was allowed because the Chair had knowledge of credibility issues outside the context of the complaint that the Committee was adjudicating. A high standard of procedural fairness applied and there was a reasonable apprehension of bias in these circumstances.

Administrative law – Decisions of administrative tribunals – Chiropractors – Professional governance and discipline – Professional misconduct / conduct unbecoming – Judicial review – Natural justice – Bias – Procedural requirements and fairness – Standard of review – Correctness

Joyce v. Newfoundland and Labrador Chiropractic Board, [2008] N.J. No. 241, Newfoundland and Labrador Supreme Court – Trial Division, September 3, 2008, G. D. Butler J.

The applicant chiropractor (the “Applicant”) was the subject of a complaint by his former patient. The Respondent Board referred the matter to the Discipline Committee (the “Committee”) to investigate, hear and determine the complaint. Before the Court, the Applicant made six allegations in support of his Application for judicial review.

The most significant of the six allegations was the questioning of the Applicant by the Chair of the Committee (the “Chair”) during the hearing. This allegation supported the Applicant’s contention that the Committee erred in proceeding to hear the matter after the Applicant’s lawyer alleged bias on the part of the Chair. The Chair asked the Applicant about a patient that the Chair had referred to the Applicant for treatment. Essentially, the Chair asked the Applicant why he had told the patient that he spoke with the Chair about her when, in fact, he had not. The Applicant’s lawyer indicated immediately that there was a problem if he was using outside evidence to impugn the credibility of the Applicant. The lawyer advised the Chair that he would need to cross-examine the patient. The Chair stopped the line of questioning.

The Court first pointed out that, if successful on his argument of reasonable apprehension of bias, the application would have rendered the proceedings void. The Court addressed this, the fifth allegation, in isolation before considering the other allegations.

Before the Supreme Court of Canada’s decision in Dunsmuir, the standard of review regarding allegations of bias was correctness. The Court, therefore, had to consider if the Dunsmuir decision had changed the precedents in the province. The Court held that an allegation of bias was a matter of jurisdiction and, therefore, fell within the standard of correctness outlined in Dunsmuir.

The Court applied this standard to the Committee’s ruling on apprehension of bias. There is a high duty of procedural fairness in the disciplinary context and, therefore, the Court concluded that the Committee ought to have erred on the side of more caution when determining whether there was a reasonable apprehension of bias. The Committee did not address the merits of its decision not to remove the Chair and this was an error in and of itself. Overall, the Committee’s determination not to remove the Chair disclosed a reasonable apprehension of bias.

In terms of remedy, the Court ordered that the proceedings before the Committee were void and that any new Committee put together to hear the complaint should not have access to the record of the hearing at issue.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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