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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Professionals - Disclosure

. Watson v. Law Society of Ontario [the numbered case cites can be accessed at the main Canlii case]

In Watson v. Law Society of Ontario (Div Court, 2023) the Divisional Court considered the importance of disclosure in administrative proceedings, here in professional discipline proceedings:
[91] This approach was apparent not only during the hearing, but prior to its commencement, particularly with respect to disclosure. It is clear that the disclosure obligations of the Law Society in cases of this nature are governed by the principles established by the Supreme Court of Canada in Stinchcombe.[79] The Court held in Stinchcombe that the Crown must disclose all “relevant material whether it is inculpatory or exculpatory” and that the duty applies to everything in the Crown’s possession unless it is “clearly irrelevant.”[80] Where there is a “reasonable possibility” that the materials “might be of use to the defence” they must be disclosed.[81] This has been described as a very low threshold.

[92] The Ontario Divisional Court has emphasized the importance of disclosure to procedural fairness in professional discipline proceedings, as follows:
The importance of full disclosure to the fairness of the disciplinary proceedings before the Board cannot be overstated. Although the standards of pre-trial disclosure in criminal matters would generally be higher than in administrative matters (See Biscotti et al. v. Ontario Securities Commission, supra), tribunals should disclose all information relevant to the conduct of the case, whether it be damaging to or supportive of a respondent's position, in a timely manner unless it is privileged as a matter of law. Minimally, this should include copies of all witness statements and notes of the investigators. The disclosure should be made by counsel to the Board after a diligent review of the course of the investigation. Where information is withheld on the basis of its irrelevance or a claim of legal privilege, counsel should facilitate review of these decisions, if necessary. The absence of a request for disclosure, whether it be for additional disclosure or otherwise, is of no significance. The obligation to make disclosure is a continuing one. The Board has a positive obligation to ensure the fairness of its own processes. The failure to make proper disclosure impacts significantly on the appearances of justice and the fairness of the hearing itself. Seldom will relief not be granted for a failure to make proper disclosure. For comparable principles in the context of criminal prosecutions see M.H.C. v. The Queen (1991), 1991 CanLII 94 (SCC), 63 C.C.C. (3rd) 385 (S.C.C.); R. v. Stinchcombe (1991) 1991 CanLII 45 (SCC), 68 C.C.C. (3rd) 1 (S.C.C.); R. v. Egger (1993), 1993 CanLII 98 (SCC), 82 C.C.C. (3rd) 193 (S.C.C.); R. v. McAnespie (1993), 1993 CanLII 14716 (ON CA), 82 C.C.C. (3rd) 527 (Ont. C.A.); R. v. Hutter (1993), 1993 CanLII 8478 (ON CA), 16 O.R. (3rd) 145 (Ont. C.A.); R. v. L.A.T. (1993), 1993 CanLII 3382 (ON CA), 84 C.C.C. (3rd) 90 (Ont. C.A.); R. v. T (1993), 14 O.R. (3rd) 378 (Ont. C.A.) and "The Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions" at pp. 143-273 prepared by The Honourable G. Arthur Martin, O.C., O.Ont., Q.C. LL.D.[82]


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