Move better signals independence from CPSO

Effective September 1, 2021, the CPSO Discipline Committee became the Ontario Physicians and Surgeons Discipline Tribunal (OPSDT) — a move that better signals its neutrality and independence from the College.

With the new name comes the Tribunal’s own branding, including a logo and separate, bilingual website that links to CPSO’s website. The Tribunal’s French name — Tribunal de discipline des médecins et chirurgiens de l’Ontario (TDMCO) — is also used in its branding.

At its June meeting, Council appointed five experienced adjudicators to the Tribunal, who will sit with physicians and public members in hearing discipline cases.

The changes modernize the discipline process by creating efficiencies and improving dispute resolution techniques. It also more clearly defines the discipline function as independent of the College, inspiring more confidence from the public and members.

CPSO’s role in a discipline proceeding is that of prosecutor and the Tribunal is the decision maker. Previously, the Discipline Committee’s integration with the College sometimes led to the perception the Committee and the prosecution were too close. For example, information about the Committee and its rules were on CPSO’s website. As a result, the distinction between the roles of the Committee and the College, and the independence and neutrality of the Committee’s decisions were not always clear to stakeholders.

The newly-appointed adjudicators, selected through an open and competitive recruitment process, all have a strong understanding of and experience with the legal process, administrative law, case management, conflict resolution and mediation. Their involvement will lead to a more efficient process, fewer delays for both physicians and members of the public, and continued improvement in the Tribunal and its decisions.

Canadian regulators are increasingly including experienced and/or legally trained adjudicators on panels. For example, the Nova Scotia College of Physicians and Surgeons has a lawyer chair its panels. This was also a key recommendation made by former justice Stephen Goudge, when he reviewed CPSO’s complaint and hearing process at the Ministry of Health’s request.

Mr. David Wright, OPSDT’s Chair, said he expects the appointment of experienced adjudicators will promote CPSO’s strategic priority of continuous improvement by:

• Leading to more consistent and more efficient hearings through the greater use of active adjudication and case management;
• Leading to more and earlier settlements through the application of mediation skills;
• Improving reasons and reducing the amount of time taken to draft and edit them; and
• Reducing legal costs, as Independent Legal Counsel will no longer be retained in hearings, pre-hearings or case management conferences chaired by experienced adjudicators.

The Canadian Medical Protective Association (CMPA) says it is encouraged by the move, noting its support of other Goudge recommendations to enhance self-regulation that have since been adopted by CPSO.

These include the appointment of a Complaints Director, increased use of alternative dispute resolution (ADR) to resolve matters, and the streamlined release of decisions by the Inquiries, Complaints and Reports Committee.

“The creation of the Ontario Physicians and Surgeons Discipline Tribunal and, most importantly, the appointment of experienced adjudicators and the use of effective case management has the potential to enhance the fairness, efficiency and cost-effectiveness of the disciplinary process,” said Dr. Todd Watkins, Associate Chief Executive Officer of the CMPA.

Since March 2020, discipline hearings have been held virtually. In post-pandemic life, the Tribunal will determine the best way forward in holding hearings. “Finding the middle ground between only online and only in-person is an issue for the new Tribunal as it is for the rest of the justice system,” said Mr. Wright.

The OPSDT Chair and five newly-appointed adjudicators

David A. Wright has been Chair of the OPSDT and its predecessor, the CPSO Discipline Committee, since 2020. Previously, he was the founding Chair of the Law Society Tribunal, spearheading the reform of adjudicative processes at the Law Society of Ontario. He has also been an adjudicator at the Human Rights Tribunal of Ontario, serving as Vice-chair, Interim Chair and Associate Chair. Mr. Wright is vice-chair of the Council of Canadian Administrative Tribunals.

Raj Anand is a lawyer at WeirFoulds LLP. He is a member of the Law Society Tribunal and was previously its Vice-Chair. His experience also includes serving as an adjudicator under the Human Rights Code and Police Services Act, and as co-chair of the University of Toronto Tribunal. He was chair of the Tribunal Reform Working Group of the Law Society of Ontario that proposed the new model for professional discipline adopted there, upon which CPSO has drawn for our enhancements. He has been Chief Commissioner of the Ontario Human Rights Commission, chair of the Ontario Human Rights Legal Support Centre and is currently chair of the Board of Governors of the Law Commission of Ontario.

Shayne Kert practices criminal law in Toronto. She is currently an Alternate Chair of both the Ontario and Nunavut Review Boards, a member of the Law Society of Nunavut Discipline Committee and a member of the Law Society Tribunal. She was a Senior Legal Member of the Ontario Consent and Capacity Board for 13 years.

Sherry Liang was Assistant Commissioner, Tribunal Services at the Information and Privacy Commissioner’s Office. She has served as a Vice-Chair of the Human Rights Tribunal of Ontario, Grievance Settlement Board and Ontario Labour Relations Board. She also worked as a private mediator and arbitrator, and was co-chair of the University of Toronto Tribunal.

Sophie Martel is a workplace investigator and trainer at Rubin Thomlinson LLP. Between 1999 and 2017, she served as a Vice-Chair of the Workplace Safety and Insurance Tribunal. She has also been a Vice-Chair of the Human Rights Tribunal of Ontario and a member of the Law Society Tribunal. She is Franco-Ontarian and fluently bilingual in English and French.

Jennifer Scott was most recently Vice-Chair at the Human Rights Tribunal of Ontario. She was previously Associate Chair of the Child and Family Services Review Board, Custody Review Board and Ontario Special Education Tribunals, and Lead of the Child and Youth Division of Social Justice Tribunals Ontario. She has had a private mediation practice and was counsel at the Ontario Human Rights Commission. She was recently appointed as a presiding coroner.