Administrative law – Decisions of administrative tribunals – Hearing Aid Practitioners Board – Hearing Aid Practitioners – Disciplinary proceedings – Penalties and Suspensions – Competence – Public interest – Judicial review – Self-governing professions – Jurisdiction – Compliance with legislation – Procedural requirements and fairness – Bias
Gedge v. Hearing Aid Practitioners Board,  N.J. No. 185, Newfoundland and Labrador Supreme Court – Trial Division, July 8, 2009, J.P. Adams J.
The Appellant, Gedge, was investigated in 2006 for some of his conduct while practising as a hearing aid practitioner. As such a practitioner, he was subject to regulation by the Respondent Board. On February 5, 2007, the Complaints Authorization Committee determined that the complaints warranted further investigation and referred the complaints to the Disciplinary Panel. His conduct included allegations that he failed to administer an audiogram on more than one occasion and he failed to complete the required number of continuing education hours. The Disciplinary Panel appointed an Adjudication Tribunal to hear evidence about the complaints. Gedge did not attend the hearing before the Tribunal and it proceeded in his absence. The Tribunal found that his conduct constituted “professional incompetence” and “professional misconduct”. He was fined and suspended for the problematic conduct.
Gedge appealed the decision and made three arguments in respect of the Tribunal’s decision. Gedge first argued that the Tribunal made a jurisdictional error because the alleged misconduct occurred before the Practitioners Act came into force. Gedge argued that the standard of review was correctness because it was a jurisdictional error. The Court accepted this argument despite the fact that these arguments were not raised before the Tribunal or the Board.
The Hearing Aid Practitioners Act (the “Practitioners Act”) came into force on December 13, 2005. Before that date, hearing aid practitioners were governed by the Hearing Aid Dealers Act. The Dealers Act was repealed on the same date that the Practitioners Act came into force. The Practitioners Act continued the Respondent Board that was in place under the Dealers Act. The Court concluded that the intention of the legislature was that actions before December 13, 2005 would be prosecuted using the procedures in the Practitioners Act. The Court noted that both the Practitioners Act and the Dealers Act were designed to protect the public interest and required the Respondent Board to administer the Acts. The Court rejected this ground of appeal.
Gedge also argued the Tribunal made a jurisdictional error because the Practitioners Act does not provide authority for the Tribunal to find that his actions constituted a breach punishable by disciplinary proceedings.
The Bylaws enacted under the Practitioners Act were not enacted until May 2007 and, as such, the March 2007 complaints were without statutory authority because the previous Bylaws (enacted under the Dealers Act), did not include definitions of “professional misconduct” and “professional incompetence”. The Court found that the Bylaws did not contain definitions of those terms but the Tribunal did not rely on the Bylaws in arriving at its decision. The Tribunal based its decision on the evidence before it and it was entitled to do that. The Practitioners Act did not require the Board to have passed Bylaws in order to discipline a hearing aid practitioner. The Court rejected this ground of appeal.
Finally, Gedge argued the Tribunal and Board were biased towards him but he failed to attend the hearing and raise this issue at that stage. Gedge could not convince the Court that it should not follow the usual rule that such arguments ought to be raised before the person against whom the allegation is made. The Court rejected this ground of appeal.
In the result, Gedge’s appeal was dismissed.
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 firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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