by Written on behalf of Wise Health Law June 26, 2018 5 min read

Members who have been referred to discipline on the basis of allegations that they deny are typically anxious to have an opportunity to cross-examine the complainant levelling the accusations. What if the College then proposes that the complainant attend by Skype? Wise Health Law recently successfully defeated a motion by a regulatory college seeking an order to have the complainant testify by way of Skype at a discipline hearing. Here’s how:

The Applicable Test

Step One: Preliminary Thresholds

The applicable test for allowing a complainant to testify via video-conference during a disciplinary hearing comes from Ontario (College of Pharmacists) v Ying. The test in Ying requires that two preliminary thresholds be met before the panel considers whether to grant the proposed order: (1) whether it is within the panel’s jurisdiction to consider such a request; and (2) whether it is appropriate to hold an electronic hearing in this particular case. A panel’s jurisdiction to consider a request for an electronic hearing will often come from its own rules of procedure. An analysis of whether it is appropriate to hold an electronic hearing in a particular case requires the panel to determine whether the witness is truly unavailable. The complainant in Yingwas truly unavailable to attend the hearing, as her “immigration and residency status in preventing the College from summoning her to appear at upcoming hearing”. The only two choices in Yingwere not having the complainant attend at all or having her attend via video-conference. The choice was so obvious that the member in Ying consented to the latter. The Superior Court of Ontario also made this same obvious choice in Chandra v CBC. In Chandra, the defendants requested that five witnesses resident outside of Canada (and therefore not compellable) testify by way of videoconferencing. Once again, the only two choices were not having the individuals testify at all or having them attend via video-conference.

Step Two: Requirements

If a discipline panel accepts that the above two preliminary thresholds are met, Ying provides that the panel shall only hold an electronic hearing if: (1) it is satisfied that holding an electronic rather than an oral hearing is not likely to cause the party significant prejudice; and (2) all the parties and the members of the tribunal participating in the hearing will be able to hear one another throughout the hearing.

Other Factors

Adequate evidence of why the witness cannot attend in person

Medical evidence, for example, to support a request for a witness to attend a hearing via video-conference should set out in detail the nature of their medical restrictions and the accommodations that would be required to meet those restrictions: Kusinski v Marvin Basar Pharmacy Ltd.

Videoconferencing should be a last resort

In Ying, the panel opined that “the use of technology such as video conferencing in a hearing should be used as a last resort when an integral witness for the hearing has exhausted all other options and is unable to attend”.

The complainant is not just any witness

The courts have found that parties to a civil proceeding must be present to testify in person as a matter of “due process to which a litigant is entitled as a fundamental right (See: Sacks v. Ross). In Sacks v. Ross, a defendant sought to testify by video-conference; the plaintiff objected. Even though the court agreed that the defendant played a “small” role in the events at issue, the court dismissed the motion and ordered the defendant to attend in person because she was a party, not simply a witness, and that was an “important distinction”. This concept has also been confirmed in the administrative context (See: Pinkney v. Datex Billing Services). The credibility of the complainant is often crucial to the determination of the central issues that will be before a discipline panel. A discipline panel will consider a number of factors when evaluating the credibility of a complainant, pursuant to well-established case law. A panel’s ability to assess credibility through these factors may be hindered if the complainant is not personally present.

Our Case

The member argued that the college had not shown that the complainant was unable to testify in person, just that it would be difficult—thus distinguishing this case from Yingand Chandra. No affidavit evidence had been submitted and the brief and ambiguous medical note provided was simply not adequate. The member submitted that to allow the complainant to give evidence by way of Skype would negatively affect the integrity of the hearing, be inefficient, preclude an effective cross-examination, and impair the panel’s ability to assess the complainant’s credibility, amounting to significant prejudice to the member. The member argued that the complainant’s evidence was key to the determination of the issues and that any interference with their testimony would prejudice the member’s ability to respond to the allegations. The college had provided no details as to what technological safeguards would be in place to preserve the integrity of the hearing, such as those required by the panel in Ying.

The Panel’s Decision and Reasons

The panel was of the view that the college had not provided sufficient evidence to establish that the complainant was unable to attend the hearing in person. The panel agreed with the member that affidavit evidence or testimony from the complainant herself should have been provided. The panel agreed that the medical note provided was vague and ambiguous and did not demonstrate that the complainant was unable to attend the hearing in person, only that it would be difficult. The panel went on to say that (1) given the seriousness of the allegations against the member, (2) that credibility was at the heart of the case at hand, and (3) the desirability of having key witnesses such as the complainant testify in person, it would be uncomfortable proceeding by video-conference. This discomfort stemmed from both the member’s inability to cross-examine the complainant in person and the panel’s inability to view her give evidence live, which would impede their ability to assess credibility. Having found that the college had not overcome the “appropriateness” threshold in Ying, the panel did not consider the issues of prejudice and the ability of all parties to hear one another in detail.

Takeaway

This case reminds us that a complainant must be truly unable to attend the hearing in person and that sufficient evidence to support that inability must be provided before a request for an electronic hearing should be granted. This decision also demonstrates a strong preference for having key witnesses such as complainants testify in person at a discipline hearing in order to preserve a member’s right of cross-examination and enable the panel to assess credibility to avoid prejudice to a member whose reputation—and perhaps license to practice—is on the line. At Wise Health Law, we have more than 30 years of combined experience in representing regulated health professionals and health organizations, including regulated health professional associations. We provide our clients with expert legal guidance and have been recognized for our knowledge and excellent work by regulatory colleges, professional associations, and other lawyers. With offices in both Toronto and Oakville, Ontario we are easily accessible to professionals throughout South-Western Ontario. Contact us online, or at 416-915-4234 for a consultation.


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