Finding the Balance Between Expediency and Justice

1. Finding the Balance Between Expediency and Justice Bernie LeBlanc Steinecke Maciura LeBlanc Presented at CLEAR’s 23rd Annual Conference Toronto, Ontario September, 2003

2. In any event, mere speed is not a test of justice. Deliberate speed is. Deliberate speed takes time. But it is time well spent. Felix Frankfurter First Iowa Coop. v. Power Comm’n., 328 U.S. 152, 188 (1046) Presented at CLEAR’s 23rd Annual Conference Toronto, Ontario September, 2003

3. The harsh truth is that unless we devise substitutes for the courtroom processes, we may be on our way to a society overrun by hordes of lawyers hungry for locusts and brigades of judges never before contemplated…. The notion that people want black-robed judges, well-dressed lawyers and fine-paneled courtrooms as the setting to resolve their disputes is not correct. People with problems, like people with pains, want relief, and they want it as quickly and inexpensively as possible. Warren E. Burger Reported in the Los Angeles Times, May 28, 1977 Presented at CLEAR’s 23rd Annual Conference Toronto, Ontario September, 2003

4. The worse the society, the more law there will be. In Hell there will be nothing but law, and due process will be meticulously observed. Grant Gilmore New York Times, February 23, 1977 Presented at CLEAR’s 23rd Annual Conference Toronto, Ontario September, 2003

5. Issues • Dealing with complaints. • Principles of a proper investigation. • Planning the investigation. • The problems of delay. • Moving too fast. • Achieving a balance. • Infinite variations require individual solutions Presented at CLEAR’s 23rd Annual Conference Toronto, Ontario September, 2003

6. Dealing with Complaints • Rule No. 1: Comply with formal requirements of the investigation: statutes, regulations, policy statements, investigation manuals, etc. • Giving notice of the complaint, obtaining a response, reply, rebuttal… • Additional investigative steps: planning • Time requirements to dispose of complaint (i.e. 120 days: s. 28, RHPA Procedural Code). Presented at CLEAR’s 23rd Annual Conference Toronto, Ontario September, 2003

7. Principles of a Proper Investigation • Neutrality and impartiality as to the results: no pre-conceived notions. • Objectivity (no personal opinions). • Fact-gatherer, not decision-maker. • Under supervision, little autonomy. Presented at CLEAR’s 23rd Annual Conference Toronto, Ontario September, 2003

8. Principles of a Proper Investigation • Professional representative of a (statutory?) regulator. • Comply with established rules of a proper investigation for that regulator. • Maintain confidentiality where appropriate and possible. • “Closed mind” v. “reasonable apprehension of bias”. Presented at CLEAR’s 23rd Annual Conference Toronto, Ontario September, 2003

9. Planning the Investigation • Review all relevant and available documentation. • Identify the issues to be investigated. • Plan the initial investigative steps. • Obtain instructions from the client before the planned investigation. Presented at CLEAR’s 23rd Annual Conference Toronto, Ontario September, 2003

10. The Problems of Delay • “Justice delayed is justice denied”, for both the complainant and the person complained against. Both are entitled to procedural fairness. • Complainant: public confidence in self-regulation (PR) and individual justice. • Member: psychological impact, confidence in regulator and individual justice. • Public protection and the public interest Presented at CLEAR’s 23rd Annual Conference Toronto, Ontario September, 2003

11. The Problems of Delay • Practical Considerations • Witnesses’ recollections diminish. • Documents may become unavailable. • Interim orders: moving quickly enough to get one followed by an expedited process. • Decision-makers requiring additional information. Presented at CLEAR’s 23rd Annual Conference Toronto, Ontario September, 2003

12. The Problems of Delay • McIntosh v. College of Physicians and Surgeons of Ontario. • Requirements of natural justice and procedural justice: notice and the opportunity to respond. • Timely notice to the member. • Investigative delay: does the complainant drive the process? Presented at CLEAR’s 23rd Annual Conference Toronto, Ontario September, 2003

13. The Problems of Delay • Stanley v. College of Physicians and Surgeons of Ontario • “Screening Committees” cannot determine credibility. • Disclosing expert opinion during the investigation. • Delay: 1,350 days v. 120 days. Presented at CLEAR’s 23rd Annual Conference Toronto, Ontario September, 2003

14. Moving Too Fast • “Justice must not only be done but manifestly be seen to be done”. • HPARB reviews: adequacy of the investigation and reasonableness of the decision. • Practical Issues: • Let the complainant reply to the member’s response? Presented at CLEAR’s 23rd Annual Conference Toronto, Ontario September, 2003

15. Moving Too Fast • Practical Issues: • Review relevant documents: obtaining consents, issuing summonses, etc. • Interview relevant witnesses. • Incomplete investigations may require further direction from screening committees that meet infrequently. Presented at CLEAR’s 23rd Annual Conference Toronto, Ontario September, 2003

16. Achieving An Appropriate Balance • Apply the Principles of a Proper Investigation, but… • Individual cases drive procedures. • Consider all relevant issues. • Take into account the parties’ expectations. • The ultimate goal: fairness to the complainant and the member. Presented at CLEAR’s 23rd Annual Conference Toronto, Ontario September, 2003

17. Presentation Follow-up • Please pick up a handout from this presentation -AND/OR- • Please give me your business card to receive an e-mail of the presentation materials -OR- • Presentation materials will be posted on CLEAR’s website Presented at CLEAR’s 23rd Annual Conference Toronto, Ontario September, 2003