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Steinecke Maciura LeBlanc
 
February 2013No. 173
A COMMENTARY ON LEGAL ISSUES AFFECTING PROFESSIONAL REGULATION
 
FOR MORE INFORMATION
 
This newsletter (which does not contain legal advice) ispublished by Steinecke Maciura LeBlanc, a law firmpractising in the field of professional regulation. If you arenot receiving a copy and would like one, please contact:Richard SteineckeSteinecke Maciura LeBlanc401 Bay Street, Suite 2308Toronto, Ontario M5H 2Y4Telephone: 416-626-6897 Facsimile: 416-593-7867E-Mail: rsteinecke@sml-law.com
 
Grey Areas 
is also available on ourwebsite:www.sml-law.com.Some back issues are also available.
WANT TO REPRINT AN ARTICLE
 
A number of readers have asked to reprintarticles in their own newsletters. Our policyis that readers may reprint an article aslong as credit is given to both thenewsletter and the firm. Please send us acopy of the issue of the newsletter thatcontains a reprint from Grey Areas.
 
Credibility Findings
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 
 
Steinecke Maciura LeBlanc
 February 2013No. 173
Grey Areas
Page 2
 person] and Dr. Emokpare [the other physician] were credible and reliable andthe evidence of Dr. Ali was not. In doingso, the Hearing Committee exercised careto identify each and every factor whichinformed and ultimately determined theircredibility analysis. The decision did not simply reflect a conclusionary statement that it found so-and-so believable andothers not believable, but rather reflected acredibility analysis based upon thecircumstances including, where it existed,the corroboration provided by each of Ms.Moody and Dr. Emokpare respecting theevidence of the other. The HearingCommittee was particularly influenced bythe very considerable contradictions it found in the evidence of Dr. Ali on material points or aspects of the case.”Finally, the Court found the examplesgiven of the inconsistencies in Dr. Ali’sevidence compelling. For instance, the fact that Dr. Ali did not speak to his employeeabout the alteration of the documents when he was informed of it supported thecontention that he was not surprised that she had made the alterations.However, in the second case,
 Dr. Ali College of Physicians and Surgeons
, 2013SKQB 38, the Court reversed one of thecredibility findings. That issue related to acompletely separate matter in which Dr. Aliwas accused of altering his patient chart torecord a temperature of a patient when, it was asserted, he had not even touched the patient (a child with a urinary tract infection). In addition to the evidence of thechild (who as eight at the time) and hermother (who was present during theexamination), there was also forensicevidence that three different inks were usedon one fairly brief chart entry.Dr. Ali acknowledged that he had not actually taken the temperature, but indicatedhe had touched the child’s cheek and been told by the mother that the child did not havea temperature. The entry, made as much astwo days later, was simply an ill-advisedattempt to indicate that the child’stemperature was normal.The Court was concerned that thedisciplinary tribunal had characterized thechild’s evidence as possessing “vivid clarity”when her evidence actually was uncertain on many points. The Court was also concernedby the tribunal’s statement that the childwould have recalled if Dr. Ali had touchedher. The Court felt that the tribunal, “in thename of a “probability analysis”, engaged in much guesswork, conjecture and speculation as opposed to an analysis of the evidencethat it had received. There is an important distinction between guessing, conjecture andspeculation on the one hand, and drawinglegal inferences from evidence whereinferences can appropriately be drawn.”The Court was also concerned about thetribunal’s conjecture and speculation about the significance of three different inks used:“Contrary to this analysis as made by theHearing Committee, there was absolutely noevidence and therefore were no facts – onlyconjecture or speculation supporting theconclusion that the temperature notation wasadded “much later”. The only evidence on the point was that the notation was madewith a different pen, which Dr. Aliaddressed in his evidence.”

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