Investigation and Discovery in Tribunal Proceedings

When representing professionals in a disciplinary matter, counsel should begin their assessment of the case by reviewing the Notice of Hearing and breaking down the elements of each offence alleged as a way of “formulating the theory of the case," says Lonny Rosen.

“Once the regulator’s file is disclosed it’s important for counsel to go back to the Notice of Hearing and identify the evidence available to support the regulator’s case.”

At a recent presentation at the Tribunal Advocacy Program for Osgoode Professional Development, Lonny spoke on advocacy before administrative tribunals from his experience representing members in regulatory proceedings, acting as independent legal counsel to discipline committees, and chairing hearings as a tribunal member.

Rosen, partner with Rosen Sunshine LLP, also spoke about investigation and discovery in tribunal proceedings with a focus on the advocate’s role at the pre-hearing stage. He looked at the scope of a professional’s right to disclosure at the pre-hearing stage.

“Don’t just start with your client’s version of events or complaint response. The risk there is that the client fails to appreciate the significance of the allegations — they may describe allegations like breach of the standard of practice or falsifying a document as a 'records case,'" he said. “After outlining the allegations and elements, review the disclosure and identify the good and bad facts, the evidence available to support the facts you need to prove, and any holes in the case.”

Once a flavour of the allegations and strength of the College’s case is assessed, look at how the tribunal dealt with this type of case before and determine the defences available, Rosen said.

He commented on the extent to which a member is obliged to participate in the investigation and when clients’ statements can be used against them.

Rosen also discussed reciprocal disclosure obligations, the new trend in professional regulation. For regulators that have these new rules — requiring members involved in disciplinary proceedings to disclose to the regulator any information to be relied on at a hearing — failure to comply could restrict the use of such material, he noted.

“These rules require that the member must disclose to the regulator the existence of every document and thing that the party will refer to or give in evidence at the hearing, at least 10 days before the hearing,” he told the program. “The consequences of failing to comply are that the member cannot refer to that document or thing without leave of the tribunal, and this may be on terms and conditions that the committee orders.”

Rosen said many tribunals require the member to participate in a pre-hearing conference, by providing a memo in which many aspects of their case must be disclosed.

“Certainly, this facilitates resolution and a realistic assessment of the case,” he said. “It also permits a smoother hearing procedure.”

Rosen said even when there is no room for agreement between the parties, “fairly identifying the College’s case, for example, can be effective advocacy, as it conveys that you are ready to take it head on.”

Rosen said that while members do not have to give evidence in the proceeding, panels generally like to hear from the member. “They have a thirst for information and dislike being denied information they feel is important and relevant” he said.