Steinecke Maciura LeBlanc
February 2013No. 173
A COMMENTARY ON LEGAL ISSUES AFFECTING PROFESSIONAL REGULATION
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One of the most difficult tasks of a tribunalis making findings of credibility. Perhapseven more difficult is to then articulatereasons for those findings. Two recent decisions involving a Saskatchewan physician illustrate how to explain suchfindings and, also, how not to explain suchfindings.In the first case,
Dr. Ali v College of Physicians and Surgeons of Saskatchewan
,2013 SKQB 37, Dr. Ali was alleged tohave directed a staff person to alter billingdocuments for a colleague working withhim so that the health insurance payment would be made to Dr. Ali’s corporation rather than to the physician who providedthe service. The context of the allegation was that Dr. Ali believed the other physician owed him money. Dr. Aliasserted that he told his employee to get theother physician to sign the paperwork sothat Dr. Ali would be paid and that theemployee altered the documents on her own initiative. A second allegation was that Dr.Ali provided false information to theregulatory College when asked about thematter.Interestingly, the Court took the approachthat the reasons of the discipline tribunalshould withstand somewhat probingexamination. This was the approach adoptedby the Supreme Court of Canada in a coupleof professional misconduct cases a decadeago. Many observers had thought that themore recent decision of
Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board)
, 2011 SCC62 signalled a less probing scrutiny of tribunal reasons, particularly where therewas evidence on the record to support thefinding. However, the Saskatchewan court did acknowledge that a “reviewing court should be alive to the difficulty of articulating reasons for credibility findings.”The Court commended the disciplinarytribunal because it “embarked upon adetailed analysis of the testimony of thesethree individuals in the context of the wholecircumstances of the case, the relationshipthat these witnesses had to one another at work and the documentary evidence tenderedas exhibits.”The Court then praised the disciplinarytribunal because it had “outlined those factsand factors which prompted it to concludethat the evidence of Ms. Moody [the staff