SDL v University of Alberta, 2012 ABQB 244

Court of Queen ’ s Bench of Alberta Citation: SDL v University of Alberta, 2012 ABQB 244 Date: 20120413 Docket: 1103 08496 Registry: Edmonton Between: SDL Applicant - and - Governors of the University of Alberta and University Appeal Board Respondents Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment on Judicial Review of the Honourable Mr. Justice R. Paul Belzil _______________________________________________________ The Application

[ 1 ] The Applicant seeks Judicial Review of a decision by the University Appeal Board (UAB) which found that he violated the Code of Student Behaviour (Code) for the University of Alberta. [ 2 ] The grounds for seeking Judicial Review are that the Applicant claims that the Respondents exceeded their jurisdiction, breached their duty of procedural fairness and that decisions made were unreasonable. [ 3 ] The Applicant seeks an order in the nature of certiorari quashing the decision of the UAB and that the Applicant be found not guilty of any violations of the Code or in the alternative, that the matter be remitted to a differently constituted panel of the UAB. [ 4 ] In the further alternative, the Applicant seeks a finding or declaration that the sanctions imposed by the UAB were too severe and an order that the matter be remitted to the UAB to reassess the issue of sanctions.

Factual Background [ 5 ] On January 12, 2010 the Complainant made a complaint to Campus Security Services (CSS) of the University of Alberta that she had been sexually assaulted by the Applicant. [ 6 ] An investigation was initiated which resulted in a decision filed on April 27, 2010 which found that the Applicant had violated the Code and should be expelled. [ 7 ] Specifically, the Applicant was found to have violated s. 30.3.4(6)(

a) which states: No student shall have sexual or physical contact with another person without that person ’ s consent. [ 8 ] The Complainant and Applicant were both residents in the same university residence. The Complainant alleges that she and the Applicant were in his room and that he had sexual contact with her without her consent.

There were no other witnesses present. [ 9 ] No complaint was made to the Edmonton Police Service and the Applicant was never charged with a criminal offence arising from this incident. [ 10 ] The Applicant appealed to the UAB which heard evidence and submissions for six days concluding on November 3, 2010. [ 11 ] The UAB rendered its decision on December 17, 2010 and concluded that the Applicant violated s. 30.3.4(6) of the Code but also concluded that he did not violate two other sections. [ 12 ] The UAB vacated the expulsion order and imposed a three year suspension along with some other sanctions. [ 13 ] At all material times, the Applicant was represented by counsel, the late Brian Peterson, Q.C.

Both parties agreed that the UAB had jurisdiction to hear the appeal and was empowered to determine whether or not an offence under the Code had been committed. It was also agreed that the burden of proof would be on a balance of probabilities. [ 14 ] The UAB made two preliminary rulings. The first related to some witness statements obtained by Mr. Peterson. The second

involved a ruling that the Applicant could not call Dr. Collins who proposed to offer the opinion that the complaint had the hallmarks of a false complaint. [ 15 ] In denying the Applicant the right to call evidence from Dr. Collins, the UAB ruled that while rules of evidence did not apply, evidence of the ultimate issue of credibility remained with the UAB. In making this ruling, the UAB advised Mr. Peterson that he was free to raise in argument the issues referred to by Dr. Collins. [ 16 ] No transcript of the hearing was produced.

The UAB heard evidence from the Complainant, the Applicant and 11 other witnesses. In its lengthy written decision, the UAB reviewed the testimony of the witnesses in great detail. It is not necessary for me to review the evidence for the purposes of these Reasons other than to provide a very brief

summary. [ 17 ] The Complainant testified that the Applicant had sexual contact with her without her consent in his room in the university residence. She described the Applicant as being extremely intoxicated and confirmed that there was no one else present. [ 18 ] The Applicant testified that he was extremely intoxicated that evening and has no memory of any interaction with the Complainant other than a brief kiss. [ 19 ] Nine students testified as to what they observed or heard prior to and after the incident. [ 20 ] Dr.

Cave, who is a general practitioner working with the University Health Centre, testified about her examination of the Complainant and her conclusion that she had been violently sexually assaulted. [ 21 ] The UAB ’ s decision is lengthy and detailed, but for the purposes of this application a brief

summary will suffice. [ 22 ] At the outset of its unanimous decision, the UAB identified that CSS carried the burden of establishing, on a balance of probabilities, that sexual contact took place that was not consented to by the Complainant. [ 23 ] The UAB concluded that the Complainant was credible and accepted her description of a violent sexual interaction which was supported by the findings of Dr. Cave, the U of A physician who examined her three days later. [ 24 ] The UAB observed that Dr. Cave ’ s evidence was contested by the Applicant who retained a pathologist, Dr. Steele, to testify and noted that Dr.

Steele never examined the Complainant, whereas Dr. Cave did so and made note of her observations of injuries consistent with the Complainant ’ s description of what occurred. It also noted that blood found on the Applicant ’ s bed sheets was evidence supporting her version of events. [ 25 ] The UAB specifically noted that the Applicant ’ s position was that the Complainant ’ s allegations were false.

Firstly, it was argued that the Applicant was too intoxicated to have behaved as she alleged. [ 26 ] The UAB, while noting that all of the witnesses agreed that the Applicant was intoxicated, observed that there were differing accounts as to how intoxicated he actually was and that it could not conclude that he was incapable of acting as the Complainant alleged. [ 27 ] Secondly, the Applicant argued that the Complainant ’ s version of events kept changing. [ 28 ] The UAB agreed that there were inconsistencies in her evidence along with the evidence of all of the lay witnesses, most of whom were impaired by alcohol and observed that the investigation was not commenced until over two months had elapsed.

[ 29 ] Significantly, the UAB observed that the Complainant ’ s essential version of events did not change, that is, sexual contact occurred which she did not consent to. [ 30 ] The UAB noted that she was the only individual who offered an account of what occurred in the Applicant ’ s bedroom and that many of the alleged inconsistencies related to events before or after the events in the bedroom.

There was no evidence contradicting her description of what occurred in the bedroom. [ 31 ] The UAB expressed serious reservations about some of the Applicant ’ s evidence in that his oral testimony differed from the statement he provided to CSS.

It noted that he reacted very emotionally at a subsequent meeting with the Complainant and two others wherein he was told about her allegations whereupon he apologized. [ 32 ] It also noted that some of his evidence could not be reconciled with other evidence it heard and expressed particular concern about the fact that the Applicant did not tell CSS that he found blood on his bed sheets and that he washed them the next day. [ 33 ] The UAB observed that if he was as intoxicated as he alleges, it would be unlikely that he would wash his sheets the next day and if he was not as intoxicated as suggested he was not candid with it. [ 34 ] In its reasons, the UAB reviewed the positions argued on behalf of the parties and noted that there were a number of inconsistencies in the evidence and commented specifically that it could not reconcile evidence presented with some of the Applicant ’ s explanations.

Standard of Review Analysis [ 35 ] In Dunsmuir v.

New Brunswick , 2008 SCC 9 , the Supreme Court of Canada significantly revamped administrative law and concluded that there should be two standards of review from administrative decisions; the deferential standard of review of reasonableness and the standard of review of correctness which is not deferential. [ 36 ] Reasonableness was defined at para. 47: 47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.

Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of [page221] justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 37 ] Subsequent decisions of the court have emphasized the narrow scope of a correctness standard of review. [ 38 ] In Alberta (Information and Privacy Commissioner) v. Alberta Teachers ’ Association , 2011 SCC 61 , it was held that where an administrative body is applying its own legislation there is a presumption that the standard of review is reasonableness.

The following passage at para. 39 is instructive: 39 What I propose is, I believe, a natural extension of the approach to simplification set out in Dunsmuir and follows directly from Alliance (para. 26). True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. As

long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal's

interpretation of its home statute on the deferential standard of reasonableness. [ 39 ] In Catalyst Paper Corp. v. North Cowichan (District) , 2012 SCC 2 , the Supreme Court of Canada emphasized the importance of context in determining reasonableness and made the following observations at para. 18 18 The answer lies in Dunsmuir 's recognition that reasonableness must be assessed in the context of the particular type of decision making involved and all relevant factors. It is an essentially contextual inquiry: Dunsmuir , at para. 64 . As stated in Canada (Citizenship and Immigration) v.

Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339 , at para. 59 , per Binnie J., "[r]easonableness is a single standard that takes its colour from the context." The fundamental question is the scope of decision-making power conferred on the decision-maker by the governing legislation. The scope of a body's decision-making power is determined by the type of case at hand. For this reason, it is useful to look at how courts have approached this type of decision in the past: Dunsmuir , at paras. 54 and 57 . To put it in terms of this case, we should ask how courts reviewing municipal bylaws pre- Dunsmuir have proceeded.

This approach does not contradict the fact that the ultimate question is whether the decision falls within a range of reasonable outcomes. It simply recognizes that reasonableness depends on the context. [ 40 ] The Applicant argues that the UAB exceeded its jurisdiction by determining that he committed a crime and that this issue of jurisdiction must be reviewed on a standard of correctness. [ 41 ] I do not accept that the UAB found that the Applicant committed a crime.

The UAB correctly confined its jurisdiction to the determination of whether the Applicant committed an offence as defined by the Code not as defined by the criminal law. [ 42 ] As noted, at the outset of the hearing Mr.

Peterson agreed that the UAB was acting within its jurisdiction in determining whether an offence had been committed under the Code. [ 43 ] In the result, the standard of review of correctness has no application on these facts and therefore the reasonableness standard of review must be utilized. [ 44 ] The parties agree that the standard of review of reasonableness applies to the following allegations made by the Applicant that the UAB:

a) failed to consider the issue of consent,

b) improperly assessed credibility,

c) made unreasonable findings of fact,

d) failed to consider all relevant evidence, Applying the Standard of Review of Reasonableness [ 45 ] It is common ground between the parties that reasonableness must be defined in the proper context. The context of this hearing is student discipline, the Code and the UAB ’ s lengthy and very detailed decision determining that there was a breach of that Code. [ 46 ] Courts have recognized the need to show deference on the issue of student discipline. [ 47 ] In Pacheco v. Dalhousie University , 2005 NSSC 222 , the following passage at para. 20 is instructive:

20 Student discipline and student affairs generally are within the unique ambit of expertise exercised by University bodies. As pointed out by the respondent, procedural fairness is a significant consideration in these proceedings and the University has ensured that the membership of both the Discipline Committee and the Board contain members of the Faculty of Law. I accept that a considerable degree of deference should be shown to the Board and the Discipline Committee in matters of student conduct and discipline. [ 48 ] In Yen v.

Alberta , 2010 ABQB 380 , the importance of recognizing autonomy in university governance was accepted at paras. 35 and 37. [ 49 ] In addition, an important evidentiary context must be recognized, that is, that strict rules of evidence applicable in court proceedings do not apply. [ 50 ]

Section 30.6.5(7) of the Code provides as follows: The UAB may accept any evidence that it, in its sole discretion, considers proper, whether admissible in a court of law or not; and it is not bound by the Alberta Evidence Act or the law of evidence applicable to judicial proceedings. [ 51 ] This necessarily results in much more latitude being granted to the UAB in how the proceedings are conducted. [ 52 ] With these guiding principles in mind I will consider each alleged procedural transgression by the UAB separately:

a) The UAB failed to consider and find a breach of consent [ 53 ] This allegation has no merit. On a plain reading, the issue of a consent was at the core of the UAB decision. Having heard lengthy and detailed evidence dealing with the consent issue, the UAB ’ s decision specifically referred to it at page 43: It is the Board ’ s unanimous conclusion that Campus Security Service has demonstrated the offence of “ violations of safety and dignity ” ; specifically that Mr [SDL] violated

Section 30.3.4(6) of the Code : ‘ No Student shall have sexual or physical contact with another person without that person ’ s consent. ’ In order to find a violation of this section, the UAB must be satisfied, on a balance of probabilities, that sexual or physical contact took place and that the contact was not consented to by the Complainant. The detailed decision which followed focussed extensively on the consent issue.

b) Assessments of credibility [ 54 ] The Applicant asserts that the Complainant ’ s evidence contained inconsistencies which rendered her evidence unreliable. [ 55 ] The presence of inconsistencies in evidence is not unique to administrative tribunals as courts are forced to deal with this dilemma constantly.

[ 56 ] On October 2, 2008 the Supreme Court of Canada released two judgments which are relevant to the issue of how much deference should be shown on findings of credibility. [ 57 ] In R. v.

M. (R.E.) , 2008 SCC 51 at para. 49 , the court commented on the difficulty of articulating reasons for believing or disbelieving a witness: 49 While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. [ 58 ] In C.(R.) v.

McDougall , 2008 SCC 53 , the following passage from para. 76 is apposite: 76 In the end, believing the testimony of one witness and not the other is a matter of judgment. [ 59 ] In McDougall the Court observed that it is problematic to determine at what point inconsistencies in evidence result in a conclusion that a witness is not credible: 57 At para. 5 of her reasons, the trial judge had regard for the judgment of Rowles J.A. in R. v. R.W.B. (1993), 24 B.C.A.C. 1 , at paras. 28-29 , dealing with the reliability and credibility of witnesses in the case of inconsistencies and an absence of supporting evidence.

Although R. v. B. (R.W.) was a criminal case, I, like the trial judge, think the words of Rowles J.A. are apt for the purposes of this case: In this case there were a number of inconsistencies in the complainant's own evidence and a number of inconsistencies between the complainant's evidence and the testimony of other witnesses. While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness' evidence.

There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness' evidence is reliable.

This is particularly so when there is no supporting evidence on the central issue, which was the case here. [para. 29] [ 60 ] At para. 58 the court emphasized the importance of not assessing the evidence of a witness in isolation, rather the evidence should be evaluated in the context of the totality of the evidence. [ 61 ] The UAB ’ s decision clearly reflects that it was acutely aware of inconsistencies and conflicts in the evidence, including the evidence of the Complainant and the Applicant. [ 62 ] The UAB is entitled to considerable deference on issues of credibility.

Its conclusion that the Complainant was credible was reasonable on the evidence.

c) Made unreasonable findings of fact [ 63 ] This allegation has no merit. Faced as it was with inconsistencies and conflicts in evidence it behoved the UAB to attempt to confirm the veracity of evidence by referencing other evidence. [ 64 ] Viewed through this prism, I do not accept that any fact findings made were unreasonable. All of them were based on evidence before the UAB and there is no evidence that it relied on extraneous evidence in making fact findings.

d) Failed to consider all relevant evidence

[ 65 ] This allegation has no merit. On a plain reading of the decision, it contains a lengthy and detailed analysis of all of the evidence presented and contains the UAB ’ s final conclusions which articulate a rational and transparent line of reasoning based on all of the evidence presented.

The decision clearly references conflicts and inconsistencies in the evidence which illustrates that the UAB was clearly alive to all of the evidence before it. [ 66 ] The Applicant argued that the UAB acted unreasonably in not making specific findings of fact, including whether the Applicant had sexual intercourse with the Complainant and who locked the door to his apartment. [ 67 ] The UAB was under no legal obligation to make specific findings of fact.

Rather, the issue is whether, on the totality of the evidence it accepted, it was established on a balance of probabilities that the Applicant violated the Code. [ 68 ] Faced as it was with inconsistencies and gaps in the evidence, the UAB made fact findings from the evidence presented and there is no evidence that it considered extraneous matters. Conclusion of Standard of Review Analysis [ 69 ] In

summary, the foregoing decisions made by the UAB were transparent and intelligible and clearly fall within the range of possible acceptable outcomes defensible on this evidence and the law. As such, they withstand scrutiny on a reasonableness standard of review. Procedural Fairness [ 70 ] The parties agree that procedural fairness could lead to a loss of jurisdiction. [ 71 ] The Applicant submits that there were significant breaches of procedural fairness by the UAB:

a) The evidence of Dr. Peter Collins [ 72 ] The Applicant sought to have a psychiatrist, Dr.

Peter Collins, testify regarding post traumatic stress disorder, self-infliction of injuries, the prevalence of false reports of sexual assaults and the hallmarks of false complaints of sexual assault. [ 73 ] The UAB ruled that this proposed evidence was inadmissible for the following reasons: Based on Dr Collins ’ “ will say statement ” , the UAB concluded that the evidence of Dr Collins as tendered is relevant and probative only insofar as it relates to the credibility of the complainant, which is the ultimate issue in this Appeal.

Indeed, his “ will say statement ” concludes with the following: ‘ In my professional opinion the case has the hallmarks of a false complaint ’ . This is the very issue the UAB is required to decide. Likewise the assertion made in the “ will say statement ” - whether about false allegations of sexual assault, or post traumatic stress disorder or self-inflicted injuries - are explicitly aimed at demonstrating that the allegation of sexual assault being made in this Appeal is false (see, for example, the comments on the evidence in these proceedings as set out in paragraph 16 of the “ will say statement ” ).

While the strict rules of evidence that apply in a court of law do not govern the admissibility of evidence in these proceedings, evidence on the ultimate questions of credibility remains a determination to be made by the panel. [ 74 ] The Applicant argues that the refusal to admit this evidence amounted to a breach of procedural fairness. Firstly, he argues that the UAB erred by allegedly adopting the common law prohibition against opinion evidence on the ultimate issue. Secondly, he argues that the UAB failed to delineate whether some of his evidence should have been admissible.

Thirdly, this evidence was crucial to the presentation of the Applicant ’ s case.

[75] As noted, s. 30.6.5.(7) of the Code gives a broad discretion to the UAB to accept or reject evidence. It acknowledges that thisprovision does not absolve it from the overarching duty to conduct proceedings fairly. [76] In Université du Québec à Trois-Rivières v. Larocque, (SCC), [1993] 1 S.C.R. 471, at para. 47 of themajority judgment, the following passage is found: . . .

A grievance arbitrator is in a privileged position to assess the relevance of evidence presented to him and I do not think it is desirablefor the courts, in the guise of protecting the right of parties to be heard, to substitute their own assessment of the evidence for that of thegrievance arbitrator. It may happen, however, that the rejection of relevant evidence has such an impact on the fairness of the proceeding,leading unavoidably to the conclusion that there has been a breach of natural justice. [77] In Lavallee v.

Alberta (Securities Commission), 2010 ABCA 48, leave to appeal denied 2010 CarswellAlta 1383 (SCC), theAlberta Court of Appeal recognized at paras. 16-18 that there is no absolute right in administrative law to call evidence and a balancemust be struck between the tribunal controlling its own process and the need to maintain procedural fairness: 16 The discretion inherent in this approach to the provisions is, in my view, essential to the efficient and effective conduct ofCommission hearings. Sub-section 29(

f) says that the Commission is not bound by the rules of evidence; it does not say that it is obligedto ignore them entirely and I would not read s. 29(

e) so as to compel that result. 17 It does not follow that Commission panels are required to hold a voir dire as a matter of course to determine the admissibility ofevidence. That is not required by the legislation or by the principles of procedural fairness. As the chambers judge noted at para. 205 ofhis reasons, "in a regulatory context the admission of hearsay or compelled testimony or the lack of opportunity to cross-examine willnot necessarily breach procedural fairness": see also Alberta Securities Commission v. Brost, 2008 ABCA 326, 2 Alta. L.R. (5th) 102("Brost").

It is clear from the Securities Act that panels are to employ less formal procedures than would be required in a court. It istherefore open to a panel to admit, for example, hearsay evidence without holding a voir dire. By the same token, a panel has thediscretion to refuse evidence; for example, evidence that it considers to be inherently flawed.

The provisions of the statute must be readso as to give effect to the legislative intent that relevant evidence will be generally admissible, while at the same time honouring therequirements of procedural fairness and giving the Commission control over its own process. 18 In my view, the Commission retains a discretion under s. 29(

e) as to the relevant evidence it will admit in a hearing. . . [78] No procedural unfairness resulted from the UAB’s dealing with the proposed evidence of Dr. Collins. It was made clear toMr. Peterson that he was free to argue that the complaint was false and indeed this formed the basis of Mr. Peterson’s position advancedon behalf of the Applicant.

b) Alleged aggressive questioning by the investigator [79] The Applicant argues that the UAB erred by not considering that the investigation of this complaint was allegedly flawed, inpart, because questioning of witnesses was “aggressive”. [80] This argument has no merit. CSS received a complaint of a very serious nature and it responded appropriately by conducting athorough and detailed investigation. Evidence from that investigation was quite properly used to examine and cross-examine witnesses.Both sides relied on the investigation in examining and cross-examining witnesses. [81] No procedural unfairness resulted.

c) Defence statements [ 82 ] The Applicant alleges that procedural unfairness arose as a result of the UAB ’ s handling of defence statements. [ 83 ] The alleged unfairness relates to: a. Mr. Peterson being advised that if he wished to place defence statements before the UAB they would have to be disclosed to counsel for the Respondents, Ms. Palichuk. b. Mr. Peterson being advised that he would have to apply to have the defence statements entered into evidence. c. Deferential treatment between CSS statements and defence statements. d. An email Ms. Palichuk sent to the Appeal ’ s Coordinator, Ms.

Spence, regarding defence statements which email was not sent to Mr. Peterson. e. Use of defence statements in cross-examination of some of the Applicant ’ s witnesses. f. The denial by the UAB of an application by Mr. Peterson to admit one of the defence statements and the absence of reasons for doing so. [ 84 ]

Section 30.6.4(9) of the Code requires that both parties provide a witness list five working days prior to the hearing.

Section 30.6.4(10) authorizes the UAB Chair to decide procedural questions. [ 85 ] It is uncontroverted that Mr. Peterson was provided a copy of the CSS investigation report. [ 86 ] The original hearing dates were scheduled for July 20-23, 2010. On June 30, 2010 Ms. Spence wrote to the parties confirming the hearing dates and enclosing materials submitted to the UAB. [ 87 ] The letter contained the following passages: Also I would like to confirm the following... 4. That there will be no further written submissions from either party; 5. I would like to draw both parties ’ attention to

section 30.6.5(6) of the Code which states that: Material not submitted and/or witnesses not identified prior to an appeal hearing will not be accepted unless the UAB is of the opinion that, with the exercise of reasonable diligence, the material or witnesses could not have been made available or identified prior to the hearing and that the material or testimony of the witnesses is relevant to the appeal. [ 88 ] On July 9, 2010 Mr. Peterson advised Ms. Spence that he had arranged for certain witnesses to be interviewed by his own

private investigator and that he had CDs of these interviews which he intended to have transcribed. Ms. Spence advised Mr. Peterson that he would have to disclose the statements if he wanted the UAB to look at them. [ 89 ] Ms. Spence, Ms. Palichuk and Mr. Peterson had a telephone conference call that day after which Ms. Spence emailed both counsel inquiring as to whether either had any concerns and Mr. Peterson raised no objection. [ 90 ] On July 13, 2010 he provided a list of witnesses he intended to call. [ 91 ] On July 14, 2010 Ms. Spence emailed counsel and advised of the following:

i) the CDs (and the Defence statements) would not be provided to the UAB at that time; ii) the UAB would deal with the admissibility of the Defence statements at the hearing should the need arise. [ 92 ] On July 15, 2010 Mr. Peterson emailed Ms. Palichuk with a copy to Ms. Spence: Raylene, I have attached the recently transcribed statement of Sydney Majoko. As the rest of the statements become available I will forward them. As I understand, the statements will not form part of the hearing documentation unless the board rules such on the application of the parties or at its own discretion.

As I indicated to Iva earlier today, I have less comprehensive statements taken from the same witnesses earlier in the process, and I advised her that I would forward those to you as well. [ 93 ] On July 14 th Ms. Palichuk replied: I will likely object to the entering of this documentation at the hearing given that it is beyond the deadline and very late in the process to be producing further documents when I do not have fair opportunity to review them and possibly respond.

I understand that the interviews which form the basis for these transcripts took place some time ago and therefore the documentation could clearly have been produced earlier and in a timely fashion as the UAB procedures anticipate. [ 94 ] On July 15 th Ms. Spence responded: The CD ’ s will not be provided to the UAB panel members at this time. Dr.

Nelson has indicated that the UAB will deal with the question of the admissibility of these witness statements at the hearing should the need arise. [ 95 ] As noted, no transcript of the hearing was produced thus it is necessary to reconstruct what occurred before and during the hearing. [ 96 ] The Applicant was represented by experienced counsel who would not have been surprised on learning that if he wished to submit defence statements, disclosure in advance would be required as the Code clearly sets out procedural requirements respecting the need to submit materials in advance. [ 97 ] The email and telephone exchanges referred to above make it clear that Mr.

Peterson was fully aware of the procedural

requirements and there is no evidence that he objected to either the use of CSS statements or UAB rulings respecting the use of defence statements. There is no evidence that he requested an adjournment in response to any rulings. [ 98 ] The Applicant called Dustin Crowe to testify. In cross-examination Ms. Palichuk sought to impeach his credibility by pointing out inconsistencies between his testimony at the hearing and his defence statement. [ 99 ] Evidently Mr.

Peterson did seek at that point to enter this defence statement into evidence, which application was denied for the following reasons: It was decided by the UAB (after further consultation with Mr Harding) that the transcripts would be made available for the witness and the UAB to refer to during questioning, but that they would not be admitted as evidence in the proceedings. [ 100 ] He concluded his examination-in-chief without seeking to have this defence statement entered and there is no evidence that he re-examined Crowe respecting issues raised in cross-examination. [ 101 ] Mr.

Peterson did not request that any other defence statements be entered into evidence because he seemed to have assumed, without asking, that they were subject to a blanket ruling of inadmissibility. [ 102 ] In support of this application for judicial review he swore an affidavit and in questioning on his affidavit said the following: ​ he acknowledged that documents used to impeach a witness do not automatically become exhibits; ​ he confirmed his understanding that when, in a trial, documents are used in an examination to impeach a witness, (as Ms. Palichuk did with Mr.

Crowe), that would not normally turn the prior inconsistent statement into an exhibit; ​ he provided his understanding of the rule against self-serving statements - i.e. that a witness should not be allowed to bolster their evidence with repetitions of one story through the use of extrinsic documents or statements -- and that such an argument had been put forward in the Applicant ’ s own written submissions to the UAB. [ 103 ] The UAB is entitled to considerable latitude in the conduct of its hearings.

I do not accept that any of its dealings with defence statements resulted in procedural unfairness to the Applicant.

d) Allegedly inadmissible evidence (

i) Ms. Poggemoeller [ 104 ] The Applicant claims unfairness arose because the UAB in its decision referred to portions of a statement made by Ms. Poggemoeller who did not testify. [ 105 ] The parties agree that this issue is reviewable in terms of procedural fairness. [ 106 ] CSS obtained a statement from Ms. Poggemoeller but prior to the hearing commencing counsel for the Respondents advised Mr. Peterson that she would not be calling Ms. Poggemoeller to testify. He raised no objection.

[ 107 ] Mr. Peterson identified Ms. Poggemoeller as a witness for the Applicant but in fact did not call her as she was unavailable. [ 108 ] On questioning on his affidavit, Mr. Peterson acknowledged that he could have applied to have her statement entered as evidence but did not do so. He also acknowledged that a comment attributed to Ms. Poggemoeller came from the Applicant ’ s written submissions. [ 109 ] I do not accept that any procedural unfairness existed pertaining to Ms. Poggemoeller. Her CSS statement was properly before the UAB and Mr.

Peterson referred to her comment in his written submissions. (ii) Mr. Marino [ 110 ] The Applicant argues that procedural unfairness arose because the UAB referred to Mr. Marino ’ s statements which were not entered into evidence. [ 111 ] Marino testified and in cross-examination was referred to a statement he gave to the Applicant ’ s private investigator which he adopted. No procedural unfairness arose in these circumstances. Conclusion of Review of Procedural Fairness [ 112 ] The Applicant was owed a high level of procedural fairness which he received.

The hearing was fairly conducted and the Applicant ’ s position was fully presented to the UAB by Mr. Peterson. [ 113 ] I do not accept that the Applicant has met the burden of establishing that the handling of any procedural issues resulted in the hearing being unfairly conducted. Conclusion and Order [ 114 ] The application to quash the decision of the UAB is dismissed. [ 115 ] The alternative application to vary the sanctions imposed by it is also dismissed. The UAB ’ s decision on sanctions is owed considerable deference and the Applicant has not established any basis for interfering with the penalty imposed.

Heard on the 2 nd day of April, 2012. Dated at the City of Edmonton, Alberta this 13 th day of April, 2012.

R. Paul Belzil J.C.Q.B.A. Appearances: Simon Renouf, Q.C. Simon Renouf Professional Corporation for the Applicant Gregory A. Harding, Q.C. Gregory D. Sim Field LLP for the Respondents