Supreme Court Judgments

Supreme Court of Canada

Ringrose v. College of Physicians and Surgeons (Alberta), [1977] 1 S.C.R. 814

Date: 1976-06-29

Charles Alexander Douglas Ringrose Appellant;

and

The College of Physicians and Surgeons of the Province of Alberta Respondent.

1976: February 17; 1976: June 29.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Physicians and surgeons—Suspension from practice—Investigation by discipline committee of College of Physicians and Surgeons of Alberta—Suspension recommended of appellant medical practitioner—Member of discipline committee also member of executive committee which earlier purported to suspend appellant—Member not privy to decision of executive committee—No reasonable apprehension of bias—The Medical Profession Act, R.S.A. 1970, c. 230, ss. 47, 66.

The appellant, a medical practitioner registered with the respondent College, was served with two notices: (1) that it had been reported to the discipline committee of the College that he might have been guilty of unbecoming conduct under four different headings and that a meeting of the discipline committee would be held on July 11, 1973; (2) that on the instruction of the executive committee of the council of the College, he was suspended from the privileges of a medical practitioner pending investigation by the discipline committee. On June 5, 1973, the Supreme Court of Alberta quashed the purported suspension. Following the hearings of the discipline committee, it recommended to the council that the appellant be suspended for one year.

A Dr. McCutcheon who sat as a member of the discipline committee was also a member of the executive committee. He was not, however, privy to the executive committee’s decision to suspend the appellant.

An application by the appellant for an order of certiorari to quash the proceedings, decision and recommendation of the discipline committee was refused at first instance and an appeal to the Appellate Division was dismissed. With leave, the appellant then appealed to

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this Court. Both the Appellate Division and the trial judge came to the conclusion that in the circumstances of the case no reasonable apprehension of bias could be entertained.

Held: The appeal should be dismissed.

Per Laskin C.J. and Ritchie, Spence and Dickson JJ.: Dr. McCutcheon was not privy to the decision of the executive committee to suspend the appellant and upon this footing the appeal should be dismissed. However, what may be termed institutional bias or participation by association should not be rejected out of hand as a possible ground for apprehension of bias. In some fact situations one might reasonably apprehend bias when a member considers an issue previously considered by another body with which he was associated, whether through participation in the earlier decision or through involvement with colleagues who actually made the first decision. All of the surrounding circumstances must be investigated. On occasion, the governing statute may permit overlapping of functions in a two-stage procedure but such an enabling provision must not be over-extended.

Per Martland, Judson, Spence, Pigeon, Beetz and de Grandpré JJ.: It was not possible in the present case to reach the conclusion that there could be a reasonable apprehension of bias by reason of predetermination. The facts established that Dr. McCutcheon did not participate in, nor did he have any knowledge of, the decision until the beginning of the hearings. As to the predetermination by association, the theory, if it has any validity, must be restricted to very special circumstances which did not exist here. The person allegedly biased was not sitting in appeal from the decision of his colleagues. Also, no reasonable apprehension of bias is to be entertained when, as here, the statute itself prescribes overlapping of functions. As found by the Court of Appeal, the conduct of Dr. McCutcheon, even if he had sat, was implicitly authorized under the provisions of ss. 47 and 66 of The Medical Profession Act, R.S.A. 1970, c. 230.

Law Society of Upper Canada v. French, [1975] 2 S.C.R. 767, applied; Hannam v. Bradford Corporation, [1970] 1 W.L.R. 937; Ward v. Bradford Corporation (1972), 70 L.G.R. 7; King v. The University of Saskatchewan, [1969] S.C.R. 678, referred to.

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], dismissing

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an appeal from a judgment of Cavanagh J. Appeal dismissed.

J.E. Redmond, Q.C., for the appellant.

D.J. Boyer, for the respondent.

The Chief Justice and Ritchie and Spence JJ. agreed with the reasons of Dickson J.

DICKSON J.—I have had the opportunity of reading the reasons prepared for delivery in this appeal by Mr, Justice de Grandpré. I agree with him that on the facts of this case, the appellant has not proved that there was a reasonable apprehension of bias arising from Dr. McCutcheon’s membership on both the discipline committee considering Dr. Ringrose’s conduct, and the executive committee which had purported to suspend Dr. Ringrose. The appeal must, I think, fail upon the facts but there is a frailty about them on the central issue of bias which gives me some apprehension as to the result which this Court reaches.

On the record before us, it is a tenable conclusion that Dr. McCutcheon did not participate in the meeting or proceedings of the executive committee in so far as they concerned Dr. Ringrose, and that he played no part in initiating the process against Dr. Ringrose.

The affidavit of the Registrar of the College of Physicians and Surgeons of Alberta is to the effect that the College did not communicate with Dr. McCutcheon in regard to the application for interim suspension of Dr. Ringrose, and did not provide Dr. McCutcheon with any advice in regard to the subject-matter of the discipline committee hearing until the day upon which the discipline hearing commenced and the charges were tabled. It may seem surprising that two of the members of the executive committee would take the serious step of suspending one of the members of the members of the Alberta medical profession without notifying or consulting the third member of the executive committee, who also occupied the position of vice-president of the council, but that is what appears to have occurred.

The proper method of establishing that Dr. McCutcheon did not take part in, or have knowledge of, the steps taken by the executive commit-

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tee in relation to Dr. Ringrose, would have been by an affidavit of Dr. McCutcheon. One would have preferred such an affidavit. Yet, in the absence of cross-examination on the Registrar’s affidavit by the appellant, or other evidence, one cannot conclude that Dr. McCutcheon participated in the committee’s decision to suspend. I am prepared to accept that he was not privy to that decision and upon this footing, I would dismiss the appeal. In doing so, I do not wish to be taken as subscribing to the view that there can never be an appearance of bias because of duplication in membership between two bodies dealing with a similar issue, even if the individual member challenged actively participated in the consideration of the problem in only one of those bodies and absented himself from the other. In some fact situations one might reasonably apprehend bias when a member considers an issue previously considered by another body with which he was associated, whether through participation in the earlier decision or through involvement with colleagues who actually made the first decision. What may be termed institutional bias or participation by association should not, in my opinion, be rejected out of hand as a possible ground for apprehension of bias.

All of the surrounding circumstances must be investigated. What is the function of each of the committees? Does the first body merely find facts, or does it make a preliminary adjudication? What is the effect of one body’s decision on the second’s decision-making? Is one of the committees sitting in appeal, expressly or in effect, from the decision of the other committee? Is the member in the second committee defending, perhaps unconsciously, a decision of the first committee which he helped to make? Did the first committee initiate the proceedings or lay charges with the result that a member of that committee, who later sits on the other committee to hear evidence, is both accusor and judge? What is the size of the respective committees? What was the degree of participation in each committee by the member whose presence on both committees is impugned? These and other questions must be asked and answered. On occasion, as was the view of the majority of this Court

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in The Law Society of Upper Canada v. French[2], the governing statute may permit overlapping of functions in a two-stage procedure but such an enabling provision must not be over-extended. The provision contained in The Medical Profession Act, R.S.A. 1970, c. 230, permitting a degree of overlapping between the council and the discipline committee, does not justify overlapping between the discipline committee and the executive committee. I think that, to avoid criticism, reliance should be placed upon such an overlapping provision as infrequently as the practicalities of the situation permit, since there rests upon the governing bodies of the professions in the exercise of their statutory disciplinary powers the duty to be scrupulously fair to those of their members whose conduct is under investigation and whose reputations and livelihood may be at stake. That is not to say that a profession should be slow to discipline. On the contrary, the public interest and the integrity of the profession may require immediate and stern action against a transgressor. But the investigation of the alleged breach, and the steps taken to determine culpability, must be such that justice is manifestly seen to be done, impartially and, indeed, quasi-judicially.

I would dismiss the appeal with costs.

Martland, Judson, Spence, Pigeon and Beetz JJ. agreed with the reasons of de Grandpré J.

DE GRANDPRÉ J.—The appellant is a medical practitioner registered with the respondent College pursuant to The Medical Profession Act, R.S.A. 1970, c. 230. In June 1973, the appellant was served with two notices:

(1) that it had been reported to the discipline committee of the College that he might have been guilty of unbecoming conduct under four different headings and that a meeting of the discipline committee would be held on the 11th of July;

(2) that on the instruction of the executive committee of the council of the College, he was suspended from the privileges of a medical prac-

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titioner pending investigation by the discipline committee.

On June 15, 1973, on the application of the appellant, the Honourable Mr. Justice S.S. Lieberman made an order quashing the purported suspension on the ground (on which I express no opinion) that it should have been pronounced by the council and not by the executive committee. His Lordship, however, enjoined the present appellant from carrying out in his office any procedure of the type mentioned in the four charges listed in the first of the notices above mentioned.

Because of certain proceedings taken by the present appellant, the College decided to proceed with a hearing on the first three charges only. On the appointed date, namely July 11, 1973, the discipline committee consisting of Dr. More as chairman, Dr. M. Davis and Dr. J.D. McCutcheon started on its task and the hearing covered one day in July, one day in August and a further day in October 1973. Subsequent to the hearing, the discipline committee came to the conclusion that some of the charges had been established and prepared a recommendation to the council that the appellant be suspended from the privileges of a medical practitioner for a period of one year and that he be assessed the costs of the hearing.

Dr. J.D. McCutcheon who sat as a member of the discipline committee was also a member of the executive committee of the council, which committee had earlier purported to suspend the appellant and whose decision in that regard has been quashed by Lieberman J. Principally on that basis, the appellant made application for an order of certiorari to quash the proceedings, decision and recommendation of the discipline committee. In support of this application, appellant offered his affidavit which recites the facts and alleges that appellant was unaware at the time of the disciplinary proceedings of the membership of Dr. McCutcheon in the executive committee.

Respondent on its part submitted the affidavit of its Registrar, the relevant paragraphs of which read:

9. The Council of the College of Physicians and Surgeons is composed of twelve (12) physicians who are

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elected by the members of the Medical Profession throughout the Province of Alberta. From this twelve (12) member Council, the Council itself elects a President and Vice‑President, these being for the year 1973, Dr. W. Mirlin of St. Albert, Alberta, and Dr. J.D. McCutcheon of Lethbridge, Alberta. These two physicians and one other member from the Council are named to the Executive Committee by the Council and in the year 1973 this appointee was Dr. P.W. Davey of Edmonton, Alberta.

10. At the time that the discipline charges were laid against Dr. C.A.D. Ringrose, an application was made to the Executive Committee consisting at that time of Dr. W. Mirlin and Dr. P.W. Davey requesting an interim suspension of Dr. C.A.D. Ringrose pending investigation. These two physicians considered this application and granted interim suspension and a Notice was duly served on Dr. Ringrose advising him of the said suspension.

11. The College of Physicians and Surgeons did not at this time provide any advice to or communicate with Dr. McCutcheon in regard to the application for interim suspension of Dr. C.A.D. Ringrose and in fact the College did not provide any advice to Dr. McCutcheon in regard to the subject matter of the discipline hearing until the day that the discipline hearing commenced and the charges were tabled before the Discipline Committee of which Dr. J.D. McCutcheon was a member.

No other evidence was adduced before the trial judge who was, however, furnished with a full transcript of the proceedings before the discipline committee. The application was refused by the trial judge and the appellant’s appeal to the Appellate Division was dismissed[3]. Hence the present appeal by leave of this Court.

Counsel for appellant alleges many errors in the judgments below. Only one ground was felt worthy of consideration in the Court of Appeal and we are of the same mind. It is expressed as follows in appellant’s factum:

The Appellate Division erred in failing to find that the presence on the Discipline Committee hearing the charges against the Appellant of Dr. McCutcheon, a member of the Executive Committee which had wrongly suspended the Appellant, created a reasonable apprehension of bias.

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Before turning to what I believe is the sole true question in this appeal, I would like to make two preliminary remarks.

The first one refers to the allegation made by appellant in his affidavit that he was not aware until after the hearing of the discipline committee that Dr. McCutcheon was also a member of the executive committee. I take it that this allegation is really an answer to a plea of waiver that was never put forth by respondent, so that I do not have to decide the point. If, however, this allegation of ignorance of the true functions of Dr. McCutcheon in the College was made for the purpose of sustaining the allegation of bias, I would make two comments:

(1) in fact, it is somewhat surprising, to say the least, that a member of a professional body does not know the names of the officers of that body;

(2) in law, the allegation is irrelevant because we are not to look at the situation through the eyes of a person who takes no step to inform himself of the true facts; on the contrary, it is to the reasonable person, well-informed, that we must look and that reasonable person has the duty to obtain knowledge of the facts—R. v. Camborne Justices et al., Exp. Pearce[4]; S.A. de Smith, Judicial Review of Administrative Action, 1973, p. 230.

The second preliminary matter is the admissibility of the Registrar’s affidavit. The trial judge had no hesitation to admit it and to make it the basis of his decision and the Court of Appeal quite properly came to the same conclusion. Before that Court, appellant’s counsel referred to a number of cases, in particular to Szilard v. Szasz[5] and Ghirardosi v. Minister of Highways[6], allegedly suppporting his proposition that the affidavit was inadmissible. The Court of Appeal through Prowse J.A. rejected the proposition in the following words (D.L.R. at p. 589):

In my view these cases merely support the conclusion that when circumstances exist from which a reasonable apprehension of bias arises evidence is not admissible for the purpose of establishing that a person the law pre-

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sumes to be biased was not in fact biased. They do not purport to deal with the question of the admissibility of evidence for the purpose of having the relevant circumstances before the court so that it may consider whether in those circumstances a reasonable apprehension of bias arises.

This is a correct summary of the law and it is not contradicted by the reasons of Laskin C.J., in P.P.G. Industries Canada Ltd. et al. v. The Attorney General of Canada[7], which refer to “the introduction of evidence to explain away a situation which raised a reasonable apprehension of bias affecting that party’s position in respect of a decision which he challenged” (p. 748). On the contrary, I read this sentence as supporting one part of the proposition stated by the Court of Appeal.

Turning now to the sole issue in this appeal which is expressed by Prowse J.A., in these words (52 D.L.R. (3d) at p. 590):

In considering the main issue on this appeal it must be kept in mind that the allegation is that the circumstances are such as give rise to a reasonable apprehension of bias. The issue is not whether Dr. McCutcheon was biased consciously, unconsciously, or at all. The appellant does not allege that Dr. McCutcheon was biased as that is not in issue. The question is merely whether a person, viewing all of the circumstances objectively, would have a reasonable apprehension that Dr. McCutcheon would not act in an impartial manner, on the ground that as Dr. McCutcheon was a member of the Executive Committee during his term of office, he might unconsciously tend to support its decision that the allegations warranted suspension pending the outcome of the hearing.

The Court of Appeal and the trial judge came to the conclusion that in the circumstances of the case, no reasonable apprehension of bias could be entertained. This is a conclusion that I entirely share.

The appellant, and quite properly so, does not seriously contest that Dr. McCutcheon did not have any knowledge of the circumstances until the disciplinary sittings began in July. So states the affidavit of the Registrar, who was not cross-examined, and the record does not contain any evidence to the contrary. Dr. McCutcheon, there-

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fore, could not bring to the proceedings any personal pre-judgment of guilt on the part of appellant.

But, says appellant, in the absence of actual participation in the decision reached by the executive committee to suspend him, there is on the part of Dr. McCutcheon participation by association. In support of that proposition, appellant refers to the well-known dictum of Widgery L.J. in Hannam v. Bradford Corporation[8], at p. 946:

…but when one is used to working with other people in a group or on a committee, there must be a built-in tendency to support the decision of that committee, even though one tries to fight against it, and this is so even though the chairman was not sitting on the occasion when the decision complained about was reached.

My first answer is that, even if Dr. McCutcheon had taken part in the decision of the executive committee to suspend appellant for the duration of the disciplinary hearings, I would not be ready to accede to the proposition that this factor by itself constitutes a pre-judgment of the issue justifying the conclusion that a reasonable apprehension of bias may legally be entertained. In my view, the decision to suspend under s. 66 of the Act pending investigation is nothing more than a statement that the common weal on the one hand and the private interest of the medical practitioner on the other have been weighed and that the temporary conclusion has been reached that, until the facts are properly investigated, it is preferable to suspend.

My second answer is that Prowse J.A. has adequately dealt with that submission:

(1) the true reason for the dictum is the fact that the person allegedly biased was sitting in appeal, from the decision of his colleagues, which is not the situation here, the discipline committee having nothing to do with the suspension pending investigation;

(2) in any event the. effect of the Hannam decision was clearly diminished when the subject‑matter was examined again by the same Court in Ward v. Bradford Corporation[9].

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Thus it is not possible in the present case to reach the conclusion that there could be a reasonable apprehension of bias by reason of predetermination. The facts establish that Dr. McCutcheon did not participate in, nor did he have any knowledge of, the decision until the beginning of the hearings. As to the predetermination by association, the theory, if it has any validity, must be restricted to very special circumstances which certainly do not exist here.

But there is an additional reason to dismiss this appeal. As decided by this Court in The Law Society of Upper Canada v. French[10], no reasonable apprehension of bias is to be entertained when the statute itself prescribes overlapping of functions. Such is exactly the situation under The Medical Profession Act. By s. 66, the council may “suspend any member of the College pending investigation” as to disciplinary matters. On the other hand, by s. 47, the council may “appoint a discipline committee (consisting of not less than three members of the council) to investigate the facts”. Thus, the same council, the members of which are by law entitled to take part in all its decisions, is by statute authorized at the same time to suspend during investigation and to appoint a discipline committee staffed by at least three of its midst. Thus, it is clear that the legislator has created the conditions forcing upon the members of the council overlapping capacities.

It is true that in the present instance it was not the council but the executive committee that purported to utilize the power of s. 66 and to suspend appellant pending investigation but the fact remains that, if that power had been exercised by council and if Dr. McCutcheon had participated in that decision of council, he would still by law have been empowered to sit as a member of the discipline committee. This is the view we expressed in French. We had also expressed it in King v. The University of Saskatchewan[11]. The Court of Appeal, quite rightly so, found that the conduct of Dr. McCutcheon, even if he had sat, had been

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implicitly authorized by legislation.

For these reasons as well as for those expressed by the Court of Appeal, I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the appellant: Bishop & McKenzie, Edmonton.

Solicitors for the respondent: Bryan, Andrekson, Wilson, Ostry, Bryan, Boyer & Olesen, Edmonton.