COLLEGE OF CHIROPODISTS OF ONTARIO v. OMAR QURESHI

Transcription

1 COLLEGE OF CHIROPODISTS OF ONTARIO v. OMAR QURESHI RULING ON ADMISSIBILITY OF EXPERT OPINION EVIDENCE James F. Maczko, Panel Chair: This is the Panel s ruling on the admissibility of the expert opinion evidence of Anna Georgiou, B.Sc., B. Ch. Ms. Georgiou s curriculum vitae was entered as Exhibit #3. It details substantial education and experience in the field of chiropody. It also outlines Ms. Georgiou s very substantial involvement in both the Ontario Society of Chiropodists (member, 1993 present, Director, and President, ), and with the College of Chiropodists of Ontario ( College ). Ms. Georgiou was a member of the College s Council from October 2003 to October 2010, and served as the College s Vice-President from October 2008 to October 2009 and as its President from October 2009 to October In our capacity as members of the College s Council, each of us is acquainted with Ms. Georgiou, and she with us. In her testimony during what was described as a hearing within a hearing to determine the admissibility of her expert opinion, Ms. Georgiou testified that she sits on the College s Quality Assurance Committee ( QAC ). A Panel member, Ms. Gonzales is also on the QAC, which met last in approximately November, 2011, by teleconference. Ms. Georgiou testified that she has never discussed this case with Ms. Gonzales. Ms. Georgiou is also the chair of the College s Practice Working Group ( PWG ), which is tasked with reviewing various professional standards, such as the orthotics standard and the infection control standard. Ms. Georgiou indicated that she has never been associated with the complaints or discipline side of the College s work, except for an opinion for the Inquiries, Complaints and Reports Committee ( ICRC ) earlier this year. She testified that she does not socialize with any members of the Panel.

2 - 2 - In their disclosures to the parties concerning their acquaintance with Ms. Georgiou, each of the Panel members disclosed some degree of acquaintance with her. Ms. Eissabigloo disclosed that she saw Ms. Georgiou at the Council meeting in June, Ms. Georgiou provided a brief outline to the Council concerning the work of the PWG at that time. Ms. Gonzales disclosed that she has been on the Council since 2005 and has known Ms. Georgiou since that time. Ms. Gonzales is a member of the QAC. Ms. Gonzales further disclosed that most Council members have friended on Facebook, and that she (Ms. Gonzales) either received or sent a friend message to Ms. Georgiou; however, there has been no interaction between Ms. Gonzales and Ms. Georgiou on Facebook. I disclosed that I have known Ms. Georgiou for approximately 20 years. We may possibly have had dinner in groups of 10 or 20, years ago. It is possible that I saw Ms. Georgiou at the first Council meeting I attended, in October As well, I saw Ms. Georgiou at the February and June, 2012 Council meetings. In his cross-examination of Ms. Georgiou, Mr. Siddiqui referred to the following excerpt from page 6 of her report (Exhibit A ): Furthermore, using the fact that his previous multiple bookings were not flagged as concerns by the Insurance Company is not a valid argument to excuse these actions. In fact, this also raises the additional concern that the company managers and school principals should have known better than to allow for these types of services on their premises. One has to wonder what additional incentives were provided to them to allow this. Mr. Siddiqui challenged the witness about her speculation concerning additional incentives, pointing out that she was willing to speculate that bribes or kickbacks were involved. In his submissions to us, Mr. Siddiqui referred to the fact that Ms. Georgiou was the College s immediate past president when she was retained as its expert, and that the complaint about Mr. Qureshi was received during her tenure as President. He contended that Ms. Georgiou was acting as an advocate, not as an independent expert witness.

3 - 3 - The parties submissions and the applicable law were summarized in the advice of our Independent Legal Counsel ( ILC ). Mr. LeBlanc agreed with ILC s advice. Mr. Siddiqui did not disagree with it, and in fact submitted that there is not only a collegial relationship between Ms. Georgiou and the Panel; there are also professional linkages. In response to ILC s advice, Mr. Siddiqui also submitted that the Deemar case, referred to later in this ruling, is the most important case to our consideration of the issue. A summary of what ILC advised us follows. In the Mohan case 1, the Supreme Court of Canada outlined the four criteria for admissibility of expert opinion evidence. Those criteria are as follows: 1. The evidence is relevant to some issue in the case; 2. The evidence is necessary to assist the trier of fact; 3. The evidence does not contravene an exclusionary rule; and 4. The witness is a properly qualified expert. A person may become an expert through education or experience, or a combination of both. In this case, there was no issue as to three of the four criteria for admissibility of Ms. Georgiou s evidence. More specifically, it was not in dispute that her evidence was relevant to some issue in the case (Criterion #1), that her evidence is necessary to assist the trier of fact (Criterion # 2), 2 or that Ms. Georgiou is a properly qualified expert (Criterion # 4). Instead, the argument against qualifying Ms. Georgiou as an expert witness related to the third criterion, whether the evidence contravened an exclusionary rule. The argument against qualification based on the third criterion has two prongs: 1. Ms. Georgiou s evidence should be excluded because if admitted, it would create an appearance of bias on the part of the Panel; 2. Ms. Georgiou s evidence should be excluded because she lacks the impartiality expected of an expert witness. These two prongs are elaborated on below. 1 R. v. Mohan, [1994] 2 S.C.R. 9 2 Expert evidence as to the profession s standards of practice is necessary because the findings of a panel shall be based exclusively on evidence admitted before it: Health Professions Procedural Code, s. 49

4 - 4 - Alleged Appearance of Bias on the Panel s Part if Ms. Georgiou s Evidence is Admitted ILC took us to two of the cases referred to by Mr. LeBlanc and Mr. Siddiqui, Li v. College of Physicians and Surgeons of Ontario 3 and Drummond v. Canada (Minister of Citizenship and Immigration) 4. In Li v. College of Physicians and Surgeons of Ontario, our attention was directed in particular to paragraph 30, which in turn referred to an Alberta case where the witness had an ongoing relationship with a public utilities board. The Alberta Court of Appeal commented, No matter how much the member protests that the merits were never discussed, a well-informed person can reasonably fear that these private dealings might lead the trier to hesitate to cause himself and (the witness) the awkwardness of rejection of his testimony. In his advice to us, ILC stressed that if, because of our acquaintance with Ms. Georgiou, described earlier, we cannot objectively assess her evidence, the Panel must either rule her expert opinion inadmissible or disqualify itself. The Panel must ask itself whether, if the evidence called for rejection of Ms. Georgiou s expert opinion, the Panel could reject it without regard to the awkwardness that might result. The Panel was also referred to the following excerpt from the Drummond case (paragraph 9): In view of the collegial relationship between Mr. Sherman and the presiding member, representations of this nature could give rise to a reasonable apprehension of bias. Because of the overtone of bias, this is not a situation in which the (Immigration Appeal Division) could have admitted the affidavit and given it little or no weight. The affidavit had to be rejected initially in its entirety. We understand that the test for reasonable apprehension of bias is as follows: What would an informed person, viewing the matter realistically and practically, and having thought the matter through conclude? We understand that the grounds for the apprehension must be substantial, and that bias is a condition or state of mind rendering an adjudicator incapable of acting impartially. We also understand that in the event that we qualify Ms. Georgiou as an expert witness, we will still have to assess the weight to be given to her evidence, and that we would be entitled to accept some, 3 [2004] O.J. No [1996] F.C.J. No. 477

5 - 5 - none or all of her expert opinion. Moreover, one factor in assessing the weight to be assigned to her evidence is whether she has an interest in the outcome of the case, or any reason to give evidence that is more favourable to one side than to the other. Alleged Lack of Impartiality on Ms. Georgiou s Part We understand that expert witnesses occupy a special position in a courtroom or hearing room. Their evidence is required in some situations, such as by s. 49 of the Health Professions Code, which effectively requires the College to call expert opinion evidence to establish the standards of practice of the profession. The Panel can use its professional member s expertise to assess expert evidence, but not in the place of expert evidence. Because of the special position occupied by expert witnesses, there is a concern about biased experts, described in Independent Legal Counsel s advice as dressed up advocates. We were advised that the Rules of Civil Procedure were recently amended to require experts to acknowledge that their duty is to the court, and not to whichever side retained and called them to testify. 5 The point is that an expert witness should not be an advocate. The principals are well summarized in Perricone v. Baldassarra 6, Fellowes, McNeil v. Kansa General International Insurance Company 7 and R. v. INCO Ltd. 8. In the submissions of both Mr. LeBlanc and Mr. Siddiqui and in the advice of ILC, special attention was paid to the decision of the Court of Appeal in Deemar v. College of Veterinarians of Ontario 9. In his advice to us, ILC referred in particular to paragraphs 21 through 25 of the Deemar case, which are excerpted below: 10 [21] It is up to the trier of fact to qualify a proposed expert witness. The party tendering the proposed expert witness must satisfy the trier that he or she possesses not only the necessary expertise, but the requisite independence as well. For example, the trier may refuse to qualify a person of unquestioned expertise who is closely related to the tendering party. [22] Here the Discipline Committee found that Dr. Leslie had strayed from the function of an expert and had taken on the role of advocate and possibly the role of the 5 Rules of Civil Procedure, Rule (2.1) 6 [1994] O.J. No (1998), 40 O.R. (3d) (2006), 80 O.R. (3d) [2008] O.J. No Trier of fact is a reference to the Panel.

6 - 6 - trier of fact. The Discipline Committee noted that an expert must have a minimum requirement of independence and cited authority that if the person rendering the evidence assumes the role of advocate, he or she can no longer be viewed as an expert in the legally correct sense. Perricone v. Baldassara, [1994] O.J. No at para. 17. Dr. Leslie s demonstrated lack of the independence provided an ample basis for the Discipline Committee s to refuse to accept Dr. Leslie as an expert witness. [23] The Discipline Committee also determined that Dr. Leslie could not give any evidence at the discipline hearing because of her recent relationship with the College. Dr. Leslie had been the College s Registrar for most of the period during which the complaint against Dr.Deemar was under investigation. While Dr. Leslie had not personally dealt with the complaint, she was administratively responsible for it. The fact that all of the Discipline Committee s members were on the College Council when the College terminated Dr. Leslie s employment presented the Discipline Committee with a difficult dilemma. This combination of circumstances made it unseemly, at the very least, for Dr. Leslie to testify regarding the merits of the complaint. The Discipline Committee addressed the dilemma by ruling that Dr. Leslie could not appear as a witness. The Divisional Court, which also took the view that Dr. Leslie s appearance before the Committee s current members was untenable, sought to address the dilemma by halting the complaint proceedings until the composition of the Committee changed. [24] A resolution of the dilemma required the balancing of the interests of the member and the interests of the administration of justice generally. Dr. Deemar s interest was in controlling her defence to the complaint. At the same time there was a public interest in the prompt disposition of allegations of professional misconduct against a member of a regulated profession. [25] In my view, assuming the standard of review is correctness, the ruling of the Discipline Committee correctly balanced the interests of the member and the interests of the administration of justice generally. In ruling that Dr. Leslie could not appear as a witness, the Discipline Committee noted that Dr. Deemar had ample opportunity to obtain a separate expert opinion that was equally valid. Thus, the Discipline Committee s decision struck a reasonable balance between the individual and public interests at stake. In the Deemar case, a College was seeking to disqualify a defence expert who had previously been the College s Registrar and who had an acrimonious relationship with the College s Council. Her report was described as largely advocacy. 11 We were told that in connection with a second prong of the Mr. Siddiqui s argument against qualifying Ms. Georgiou as an expert witness, our task was to determine whether, in that balancing formulation that was described in paragraphs 24 and 25 of the Deemar case, the scales tipped in favour of excluding Ms. Georgiou s expert opinion evidence. 11 Ibid., paragraph 19

7 - 7 - Our Analysis The principles of natural justice dictate that justice must not only be done, but must be seen to be done. It must be swift, it must be clear, it must be executed on concrete and carefully resourced information with a global perspective, and most of all, it must be fair. We are sincerely grateful to all counsel involved in this case: Mr. LeBlanc, Mr. Siddiqui and Mr. Gover, as well as staff who perform numerous unseen, often unacknowledged background work in the administration of justice. Everyone can rest assured that we as Panel members have taken this task in the spirit of great privilege and opportunity to serve. Administrative law is a very complicated, very specialized field of endeavour. We found that it is filled with technical jargon and information and that the only way to understand concepts is to simplify the process as best we could to arrive at a determination. It has not been easy. Throughout, we have always been mindful of the concepts of natural justice, the need to apply common sense, and we were sensitive to the need not only to be fair but being seen to be fair. We referred to case law for assistance and checked with ILC when we needed legal clarification. This proceeding is conducted under sections 38 to 56 of the Health Professions Procedural Code ( Code ). Certain allegations as set out in the Notice of Hearing have been brought against Mr. Qureshi, a member of the profession. In order for the Panel to arrive at a conclusion that the member failed to meet a standard of practice of the profession, the College must lead expert evidence. That is the practical upshot of s. 49 of the Code. This expert witness opinion is there to guide the Panel in arriving at a conclusion. It is important, therefore, that the witness is properly qualified to assist the Panel. The Panel must rule in this regard. The question here is whether legal principles require that the expert opinion evidence of Ms. Georgiou should be excluded. This flows from the Mohan case, which I referred to earlier. Expert opinion evidence from the expert witness must meet certain criteria which includes: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) the information is from a properly qualified expert. In addition to setting out her status as a licensed chiropodist in the province of Ontario, Ms. Georgiou s curriculum vitae speaks volumes in terms of her educational qualifications, extensive

8 - 8 - experience in this specialized field, demonstrated high interest in promoting adherence to standards, acquiring skills, or continuing education, and a keen interest in getting members to engage and participate in mentoring others in the profession. Preliminary examination of this witness by both counsel elicited further information about her practice which, together with her professional demeanour, have compelled the Panel to conclude that she is indeed a properly qualified expert Criterion #4 from the Mohan case. However, Mr. Siddiqui raises what is, as far as the Panel is concerned, a very valid objection, and that is, that there is a lack of impartiality and the existence of bias, whether perceived or real, in the evidence that she will provide to the Panel. He also raised a concern about a reasonable apprehension of bias being created in that the Panel would be in an awkward position in assessing how much, if any, of her opinion should be accepted. In order to deal with this concern, the Panel embarked into a voir dire, a hearing within a hearing or a trial within a trial so to speak, to discover if indeed, there might be a lack of impartiality or the existence of bias, whether perceived or otherwise. At the risk of some repetition, the Panel notes that in his submissions, Mr. Siddiqui raised the following issues: (a) Ms. Georgiou and a Panel member, Ms. Gonzales, currently sit on the QAC and were both members of the College s Council between 2005 and (Ms. Gonzales remains on the Council.) They have therefore known each other for years, and Ms. Gonzales even declared that she has friended Ms. Georgiou on Facebook although lately no exchange of communication has taken place, either in person nor on the Internet. (N.B. During cross-examination of Ms. Georgiou, the Panel learned that the last QAC meeting was in December of last year. Ms. Gonzales also declared that she has linked with other Council members both in Facebook and Linkedin, two social networks. Ms. Georgiou and Ms. Gonzales have never discussed nor been aware of this case until lately Ms. Georgiou in December, 2010 when she received a letter from Ms. Cohen, and Ms. Gonzales, only when she sat in these proceedings.) (b) The comment made by Ms. Georgiou in her report (filed as Exhibit A to distinguish from the exhibits filed on the hearing proper), was egregious in that it connotes something close to bribery or some other unethical inducements in order to get the business. More generally, counsel submitted that the tone of the report was more of an advocate rather than that of an expert witness.

9 - 9 - (c) What was characterized as late notice provided concerning Ms. Georgiou s and Ms. Gonzales membership on the QAC and of Ms. Georgiou not referring to her membership in either the QAC or the PWG in her report (Exhibit A ). Mr. Siddiqui indicated that had proper notice been provided, he could have worked with College counsel to get a new expert, a joint expert, or no expert at all. (d) A concern about how much clout Ms. Georgiou could have as President or Vice President of the College, her collegial relationship and interaction with the Registrar, and her involvement in the conduct, investigation, or disposition of cases such as this. (e) The fact that as a member of the PWG, Ms. Georgiou did paper reviews of practice assessments. Mr. LeBlanc sought to rebut Mr. Siddiqui s submissions on the above issues. Mr. LeBlanc s submissions on behalf of the College included the following: (a) Because of her experience as the College s President and Vice President, Ms. Georgiou was in fact more suited to provide expert opinion evidence on the standard of practice of the profession, because she understands the College s by-laws and standards of practice policy. Mr. LeBlanc asked Ms. Georgiou if she would step down from the QAC if asked to do so, and she responded yes. Ms. Georgiou is not a College employee, she is a past President and Vice President with a depth of knowledge of the process and limited interaction with the College. (b) The courts do not make it a crime to know somebody. What is important is what would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude from the relationship? The law does not stop people from adjudicating due to socializing together. Ms. Georgiou has not been a part of ICRC nor the Discipline Committee at all, and has not socialized with the panel member nor will they be until the hearing is finished. (c) With regards to the egregious comment in Ms. Georgiou s report (Exhibit A ) referred to by Mr. Siddiqui, Mr. LeBlanc suggests that Ms. Georgiou was not even referring to Mr. Qureshi but rather to the company managers and school principals who should have known better than to allow for these types of services on their premises. (d) With regards to the late notice, Mr. LeBlanc assured us that he only found out about Ms. Georgiou s involvement in the QAC and the PWG a day or two before the hearing was scheduled to commence and he immediately contacted counsel for the member.

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