E-Hearings during Covid-19: You can’t hide
Electronic hearings have become the new normal during the COVID-19 pandemic. Following the lockdown and emergency measures put in place by the Province of Ontario in March 2020, regulatory Colleges have shifted their operations to virtual platforms. Eight months on, e-hearings remain the reality for regulated health care professionals that are subject to discipline or other proceedings.
The prospect of an e-hearing can be unsettling to health care professionals who face potentially serious consequences and whose license to practice their profession may be at stake. A common question is therefore: Can the hearing be deferred until a time that in-person hearings resume? This issue was recently addressed by the Discipline Committee of the College of Nurses of Ontario (CNO) in College of Nurses of Ontario v Ramos, 2020 CanLII 82614 (ON CNO), where such a request by the nurse was denied.
Statutory Basis for Electronic Hearings
The Statutory Powers Procedure Act (the “SPPA”) provides the statutory basis for Colleges to conduct electronic hearings, with the exception where “a party satisfies the tribunal that holding an electronic hearing rather than an oral hearing is likely to cause the party significant prejudice.” See ss. 5.2 (2).
In addition, the Ontario legislature enacted the Hearings in Tribunal Proceedings (Temporary Measure) Act (the “HTPA”) on March 25, 2020, which permits and encourages administrative tribunals in this province to use electronic hearings to help in mitigating the effects of the COVID-19 pandemic.
The CNO’s Discipline Committee suspended all in-person hearings since the CNO closed its offices in mid-March 2020 and has since proceeded by teleconference or videoconference, using the Zoom videoconference application for virtual hearings. Prior to Mr. Ramos case, the CNO conducted two “contested” hearings virtually, one in July 2020 and one in September 2020. In those two cases the subject member did not appear, and no cross-examinations were conducted.
The CNO’s Discipline Committee Rules of Procedure addresses factors to be considered to determine whether all or part of a hearing may be held virtually (Rule 5). Factors include whether there is significant prejudice to the objecting party and whether the committee’s ability to hold a fair and adequate hearing will be prejudiced. The question of prejudice was therefore the deciding factor in the Ramos case.
College of Nurses of Ontario v Ramos
Mr. Ramos’ brought a motion requesting that a scheduled discipline hearing be deferred until in-person hearings resume. His case was referred to the Discipline Committee in November 2019. In accordance with the Discipline Committee’s Guidelines, the hearing was to commence within nine months of referral. Hearing dates were originally scheduled for early October 2020, but then cancelled because the software (CaseLines) to be used was not ready.
This case is the first contested matter before the CNO Discipline Committee since March 2020, where there would be cross-examinations and witness credibility would likely be deciding factor. Mr. Ramos’ lawyer argued that proceeding by way of videoconference would prejudice his client’s right to a fair hearing. The allegations against the member are very serious and a finding of professional misconduct would result in significant consequences for him. Concerns included the manner in which Mr. Ramos’ defence lawyer could present documents to a witness during a contested hearing, such as during cross-examination to impeach credibility, and that panel members would not be able to adequately assess the nurses’ credibility when observing him by only by video.
The Discipline Committee denied the nurse’s motion and directed the hearing to proceed by videoconference. The panel found that the concerns about presenting evidence are addressed by the software used by the CNO (CaseLines and Zoom) and that panel members are well trained in assessing witness credibility. The CNO would provide training on the use of the CaseLines technology to all hearing participants.
In its reasons for the decision, the Discipline Committee stated:
Deferring this case until the College can hold in-person hearings is not in the public interest, particularly when there is no indication in the foreseeable future of when the College will open up again and in-person hearings can resume.”
The Ramos case demonstrates that e-hearings are a part of our new reality, just like masks and social distancing. At least for the time being, virtual discipline hearings will be the default and motions for a deferral until in-person hearings resume look to be an uphill battle – even in very serious cases that turn on credibility.
As uncomfortable as the virtual hearing format may seem to be, it is a reality all participants will have to adjust to. For now, you simply may not be able to hide.
Carina Lentsch a health lawyer who routinely assists regulated health professionals in College matters. The pandemic inspired her to start her own virtual law practice: ACL LAW .