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ORB Found to Have Pre-judged Issue
Published in the May 2007 issue of Litigation Notes - View Article
Chairperson was again Mr. C. M. MacIntyre. He adjourned the hearing, expressing the panel’s concern about the completeness of the evidence it would hear and the fact that the only expert medical evidence that it would hear would be from Dr. Bradford.The board was also concerned by the fact that Dr. Bradford seemed to be “...dismissive of other experts’ conclusions and test results without concomitant reconciliation of their’s with his own to the satisfaction of the Board.”The Board went on to conclude thatit “...is suggested, and it would be preferred if Mr. Leyshon-Hughes’ medical history be subject to a qualitative review by another expert, less close to Mr. Leyshon-Hughes’ circumstances and who is not part of the diagnostic disagreement and who can simply provide a fresh perspective.”
The hearing was adjourned for six months or to an earlier date upon agreement of the parties.The Panel remained seized of the matter and the Alternate Chair refused to recuse himself despite submissions from counsel for the accused that he should do so because of a reasonable apprehension of bias.
Mr. Leyshon-Hughes applied for (1)An order quashing the decision of the ORB to adjourn his annual Review Board hearing on its own motion; and (2)An order prohibiting the panel of the ORB as constituted on December 18, 2006 from re-convening to conduct Mr. Leyshon-Hughes’ Review Board hearing; and (3)An order requiring the ORB to establish a new panel of the Review Board to proceed forthwith with Mr. Leyshon-Hughes’ annual Review Board hearing.
The matter came on for hearing before a judge of the Ontario Superior Court of Justice who had to decide as a preliminary matter whether the ORB should be allowed to intervene in the proceedings. Some Ontario administrative tribunals are accorded party status in judicial reviews of their decisions by statute. The ORB, however, requires leave of the Court. The parties had agreed that the ORB would be permitted to intervene in order to address issues concerning the ORB’s jurisdiction to make the order in question as well as the procedure followed by the ORB on December 18, 2006. However the ORB also wanted to address issues of natural justice and reasonable apprehension of bias raised by the applicant. On this latter point, the Court demurred. While the ORB has specialized knowledge and expertise on questions relating to the scope of its inquisitorial powers, jurisdiction, and procedures it has no such expertise on questions of breach of natural justice and reasonable apprehension of bias. “To permit the ORB to intervene on [these questions], the very issues before this Court, would put the ORB in the unseemly position of justifying its own actions and of making arguments defending the substantive merits of its decision because it is the ORB which is under examination in this hearing. The issue of substantive unfairness in the conduct, procedures and decision of the ORB is the very question before this Court.Submissions by the ORB on the merits of that issue would amount to an inappropriate additional opportunity to defend the merits of its decision and would not be helpful to this Court nor fair to Mr. Leyshon-Hughes.”
With respect to the substance of the application, the Court considered the legislative framework governing the ORB. The Review Board Process is not adversarial. As the Supreme Court has said in the Winko case, “The system is inquisitorial.places the burden of reviewing all relevant evidence on both sides of the case on the court or Review Board.court or Review Board has a duty not only to search out and consider evidence favouring restricting NCR accused, but also to search out and consider evidence favouring his or her absolute discharge or release subject to the minimal necessary restraints, regardless of whether the NCR accused is even present…” However, “the ORB has a duty to hear the information presented by the parties before it embarks on its own inquiry to seek out other evidence.”Furthermore, it has a duty to seek out evidence it requires to make its decision only “...if the parties do not present sufficient information….In other words, it exercises its right to seek out other evidence in the context of a hearing that is procedurally fair to the mentally ill accused.” By adjourning the hearing before hearing any evidence, the Board committed a reversible error.
On the subject of apprehension of bias the Court found that the Board “reached conclusions about the contribution Dr. Bradford’s evidence would make to the issue on the basis of only part of Dr. Bradford’s evidence, namely his written hospital report.They came to their conclusions prior to Dr. Bradford completing his evidence by way of his testimony and prior to having that testimony tested by the examination and cross-examination by the parties as well as the questions by the Board which the principles of natural justice would have demanded” Consequently, the Court concluded that “..the only reasonable conclusion possible is the ORB had come to a conclusion that any evidence provided by Dr. Bradford would be of limited value.In deciding to adjourn Mr. Leyshon-Hughes’ hearing in the way that it did and for the reasons stated, the ORB panel did not ‘act fairly.’ … In so doing the ORB created a reasonable apprehension of bias in this matter to the prejudice of Mr. Leyshon-Hughes.” The Court therefore issued: 1) an Order in the nature of Certiorari, quashing the December 18, 2006 decision of the Ontario Review Board by which it adjourned Mr. Leyshon-Hughes’ annual Review Board hearing.)Order in the nature of Prohibition, prohibiting the Alternate Chairperson and the members of the panel of the Ontario Review Board as constituted on December 18, 2006 from re-convening to conduct Mr. Leyshon-Hughes’ Review Board hearing; and )Order of Mandamus directed to the Ontario Review Board, requiring it to establish a new panel of the Review Board to proceed forthwith with Mr. Leyshon-Hughes’ annual Review Board hearing.
R. v. Leyshon-Hughes, 2007 CanLII 20114