Clare Brame (Appellant) - v. -, 2023 NBKB 047

CITATION: 2023 NBKB 047 DATE: 2023-04-12 Docket: FM-60-2022 IN THE COURT OF KING'S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: Clare Brame (Appellant) - and - Paramedic Association of New Brunswick (Responde nt ) RESONS FOR DECISION BEFORE: Justice E. Thomas Christie AT: Fredericton, New Brunswick DATE OF HEARING: February 3, 2023 DATE OF DECISION: April 12, 2023 APPEARANCES: Robert Basque, K.C. for the Appellant Sheila Mecking and Kathleen Stark for the Respondent Christie, J.

INTRODUCTION [ 1 ] This is an appeal from a decision of the Discipline Committee of the Respondent, the Paramedic Association of New Brunswick (Association), established pursuant to the provisions of the Paramedic Act , SNB 2006, c. 33 ( Act ). The Appellant, Clare Brame, is a paramedic employed by Ambulance New Brunswick (ANB). She is a registered member of the Respondent. The Association is the licensing authority responsible for, amongst other duties, admittance to the paramedic profession and discipline of its members. On May 18, 2019, Ms.

Brame and her shift partner were dispatched to a call located in the Grove Hill area of southern New Brunswick. It was her conduct during her response to that call which gave rise to the allegations that placed her before the Discipline Committee. [ 2 ] Arguably, there may have been more than one way to reach the location. Exchanges between Ms. Brame, her partner on the call, and the dispatcher, occurred while Ms. Brame and her partner were on route as to the safest and most expeditious way to reach the call. It was, as the Appellant wrote in her brief, ‘ a dark and foggy Saturday evening ’.

Nevertheless, it appears that the uncertainty and disagreement over the best route to take resulted in another ambulance crew being dispatched from a different station and the termination of the call assigned to Ms. Brame and her partner.

[ 3 ] An investigation of the incident was conducted by ANB. As a result, a complaint was made to the Respondent about Ms. Brame’s actions during the call. The discipline hearing at issue was held. Ms. Brame was sanctioned by the Discipline Committee, having found her guilty of professional misconduct. The substance of the complaint was that Ms. Brame intentionally complicated and delayed the call, further endangering the health of the patient.

She was disciplined by way of a reprimand to be noted in her professional record, a payment of $3,500.00 to the Respondent and, was directed to complete a course relating to ethics and professional conduct. She now appeals. [ 4 ] The grounds of appeal include: i. the existence of a reasonable apprehension of bias in the Discipline Committee; ii. failure of the Respondent to follow the legislated discipline process; iii. failure of the Respondent to provide specific rules of procedure; iv. failure of the Respondent to properly inform Ms.

Brame of the charges against her; v. findings of misconduct based solely on hearsay and circumstantial evidence; vi. excessive penalty. [ 5 ] I will deal summarily with ground (vi) – that the penalty imposed was excessive. Neither party spent much time on this issue. I shared with counsel during the hearing that, in my view, if a paramedic was found to have intentionally and without sound justification acted in a manner resulting in extra risk to the patient’s health, the discipline here imposed would be considered by me to be on the lightest side of the discipline spectrum. I remain of that view.

There is no cause to find that a penalty of the degree imposed here would, in circumstances of the type alleged, be considered excessive. [ 6 ] The other grounds of appeal can be broadly categorized as raising procedural defects in the process leading up to, and including, the hearing before the Discipline Committee. Of particular note in this regard, is the allegation that there was a reasonable apprehension of bias in relation to two members of the three-person Discipline Committee, both of whom were paramedics and employees of ANB (the third person on the Committee being a public representative).

The following portion of the hearing transcript (pp. 4-5) involves Mr. Basque, K.C., counsel for Ms. Brame, raising this issue with the Discipline Committee members: Mr. Basque, K.C.: I’m going to be asking the panel to make some rulings against your employer, Ambulance New Brunswick. And I understand both of you work for Ambulance New Brunswick. Am I right in that? Chair: That is correct. Mr. Basque, K.C.: So both of you work for Ambulance New Brunswick, who is the complainant, and I’m going to ask you to make some rulings against Ambulance New Brunswick.

I’m going to ask you to order that Ambulance New Brunswick produce certain documents and at the end of the day I’m going to ask you to rule that Ambulance New Brunswick is wrong in its … in its complaint. As employees of Ambulance New Brunswick, you cannot be seen to be objective in judging against Ambulance New Brunswick. You just can’t. OVERVIEW OF FACTS AND ARGUMENT [ 7 ] As noted, the matter arose from an assignment of a call to Ms. Brame and her partner to attend an emergency call on the night of May 18, 2019, in Grove Hill. While responding to the call, Ms.

Brame, her partner, and the dispatcher discussed the preferred routing that should be taken in response to the call. Ms. Brame noted that the weather was poor and that the safest route was not the one that had been identified by the dispatcher. Ms. Brame was of the view that her local knowledge of the area, coupled with the adverse weather conditions, made the dispatcher’s suggested route unworkable. [ 8 ] This debate between the dispatcher and Ms. Brame was occurring while on route to the scene.

As the debate continued and became prolonged, the dispatcher contacted another ambulance station in Rothesay and dispatched that crew to the Grove Hill call. It was taking Ms. Brame too long to get there. It appears that it was a long-standing issue between Ms. Brame’s station, and the Rothesay station, as to which one ought to be the first called to attend emergencies in the Grove Hill area. The underlying subtext to the complaint was that Ms.

Brame’s ‘attitude’ toward the call for her to attend at Grove Hill was motivated by the desire to illustrate that her station should not be the first contact for Grove Hill. Grove Hill is considered by some to be geographically closer to the Rothesay station and that Rothesay should have been dispatched first. Concern was also raised that Ms. Brame had not activated her emergency lights and may have been travelling at a slower speed than would ordinarily be expected in response to a call of this type.

[ 9 ] ANB completed an investigation into the incident. The investigation was conducted by Mr. Mathieu Hach é , Quality and Risk Manager for ANB. In his report dated August 29, 2019, Mr. Hach é finds as follows at p. 3: The facts support a finding that Paramedic Brame of unit 132 purposefully delayed a response to a 9-1-1 call by taking a route that takes twice as long to arrive to the scene and as a result, triggered the re-assignment of the call to a different unit.

The paramedic’s decision to take a longer route, combined with the reduced speed of the vehicle and absence of emergency lights and siren was a factor in, and potentially caused the catastrophic patient outcome. [ 10 ] Mr. Hach é ’s report was shared internally with ANB’s Vice-President, Jean-Pierre Savoie. Based on the conclusions in the report, ANB filed a complaint with the Association. The complaint was dated January 13, 2020.

The complaint letter (addressed to the Executive Director of the Association), under the signature of Vice-President Savoie, states as follows: This letter is to inform you that an Ambulance New Brunswick investigation has revealed that Paramedic Clare Brame intentionally delayed a response to a 9-1-1- call when she was requested to respond to a patient experiencing severe dyspnea. It was also determined that Ms. Brame’s conduct was a factor in the patient’s tragic outcome. Documents associated with the complaint are available upon request.

Please contact me at any time if you would like to further discuss this case. [ 11 ] I pause to observe that Vice-President’s Savoie’s complaint could be viewed as conclusory in nature. In other words, the Vice-President of ANB had concluded that Ms. Brame intentionally delayed her response, and that her conduct was a factor in the tragic outcome for the patient. That the complaint letter had such a tone is not necessarily a criticism as it appears to have been based on the results of the report.

Nevertheless, it may be of import when considering that two of the three members on the Discipline Committee were employees of ANB and worked under Vice-President Savoie. It makes it more difficult to accept that there could be complete independence of thought in the majority of the panel when their Vice-President has concluded Ms. Brame did something wrong. I touch upon this further below. [ 12 ] Pursuant to the requirements of the Act , the complaint is first dealt with by the Association’s Complaints Committee. By letter dated February 11, 2020, counsel for the Association notified Ms.

Brame of the receipt of the complaint. The letter does not specify the nature of the complaint, but it did include a list of all the documents related to the complaint received up to that point by the Association. That would have included the complaint of Vice-President Savoie. [ 13 ] The Complaints Committee only reviews documents presented by, or on behalf of, the complainant and Ms. Brame. No witnesses are present nor are the representatives of those concerned. The Committee, in its decision dated May 7, 2020, in referring the matter on to the Discipline Committee, noted that: 1.

The documents supporting the Complaint contain allegations that: a. On May 18, 2019, the Member intentionally delayed a response to a 9-1-1 Code 1 call when she was requested to respond to a patient experiencing severe dyspnea. b. The Member, who was driving, took a longer route against the advice of medic centre and her partner, travelled at a reduced speed and with no emergency lights and siren. 2. The Member in her submission indicated that she did not intentionally delay the response to the 9-1-1 call on May 18, 2019.

She also indicated that while travelling to the call, “best conditions” were not present and therefore she had to drive at a reduced speed. She indicated that it was dark and foggy and the roads were wet. [ 14 ] The Discipline Committee met on October 25 and 26, 2021. The Committee’s decision was made the same day. The Discipline Committee was, as noted, comprised of two paramedics, who were employed by ANB, and a member of the public. The Board’s decision was unanimous. In advance of the hearing, the Discipline Committee had been provided with Mr. Hach é ’s report. During the hearing, Mr.

Hach é presented the case for the Complainant. In fact, on several occasions during the hearing, he was referred to as the ‘complainant’ (hearing transcript pp. 3, 42). He took questions from the Committee members and answered questions on cross examination. No other witnesses were presented for the Complainant. Ms. Brame testified. [ 15 ] The substance of the evidence in support of the complaint was contained within Mr. Hach é ’s report. That report contained information gathered from interviews conducted by Mr. Hach é. The information gathered in the report was not taken or provided under oath.

In argument before this court, Ms. Brame asserts that it was inappropriate for the Discipline Committee to rely so heavily on the hearsay evidence contained within the report. The Discipline Committee made findings that Ms. Brame’s testimony was, in certain respects, not credible. Ms. Brame argues that the veracity of her testimony was undermined by the hearsay information found in Mr. Hach é ’s report. Essentially, she argues, her testimony was not challenged on its truthfulness by any firsthand witness who testified at the

hearing, thus, there was no basis for doubting the truthfulness of her testimony. [ 16 ] In

summary, Mr. Hach é ’s report was the foundation of the evidence in support of the complaint. Mr. Hach é is an employee of ANB and works under the complainant. The complaint from Vice-President Savoie could be viewed, as I noted above, as being conclusory in nature. The two paramedic Discipline Committee members also worked, through the chain of command so to speak, under Mr. Savoie. As described by Ms. Brame in her pre-trial brief at para. 12: ANB personnel acted as investigator, prosecutor, only prosecution witness, judge and jury, and executioner. [ 17 ] In addition, Ms.

Brame argues that she was not provided with a Notice of Hearing that was compliant with s. 28(1) of the Act . That subsection provides as follows: 28(1) In all proceedings before the Discipline Committee or the Fitness to Practise Committee or on appeal, subject to

part VI, the member against whom a complaint has been made: (

b) shall receive a notice to the member against whom the complaint has been made describing the subject matter of the hearing and advising the member that the Committee may proceed with the hearing in his or her absence. [ 18 ] Ms. Brame argues she received no such notice. Therefore, her argument goes, the Discipline Committee proceeded without jurisdiction. The Association notes that it provided full information to Ms. Brame beginning with the February 11, 2020, letter to her from the Association’s counsel (with attachments). The Association relies on Violette v.

Dental Society (New Brunswick) , 2004 NBCA 1 , to argue that substantial compliance with any notice requirement is sufficient. The Association identifies p. 16 as being specifically applicable: In disciplinary cases where the regulatory authority does not draft a formal document outlining the essential underlying facts and the type of misconduct in issue, attention must necessarily focus on the sufficiency of the complaint letter. Sufficiency is to be measured in three ways.

First, it must be determined whether the letter provides sufficient particulars to enable the member to identify, by implication, that which is not explicit. In the present case, the complaint letter must enable the appellant to isolate those provisions of s. 35 of the Dental Act that are in issue. Assuming that the complaint letter sufficiently identifies the alleged wrongdoing, it is necessary to determine whether that document contains sufficient facts to enable the member to tie the allegation of wrongdoing to his or her conduct.

For example, the complainant cannot simply allege incompetence in the provision of professional services. That is simply a bald allegation of wrongdoing. Finally, there must be an ex post facto match between the alleged wrongdoing and the findings of the tribunal. For example, a complaint letter will be declared materially defective if it alleges incompetence only and the tribunal goes on to make an unrelated finding that the member is dishonest.

Should the complaint letter be formally amended during the tribunal hearing, the result may be otherwise. [ 19 ] With that said, Justice Robertson in Violette , further notes at p. 16 that, while certain formalities of notice may be absent, the seriousness of the resultant consequences to the person charged may also be a factor going to the sufficiency of any notice: The potential consequences of a finding of wrongdoing are among the most severe in the civil arena. There is the potential loss of the right to practice one’s chosen profession and the adverse financial consequences that necessarily follow.

There is also the issue of a tarnished reputation and the ability to pursue an alternative career for want of the necessary qualifications: [ 20 ] The seriousness of the matter to Ms. Brame was identified to the Discipline Committee by her counsel during the hearing when he said: You’ve got a high obligation here to be independent, this panel does, because of the rights of Miss… of Mrs.

Brame that are … that are at stake here; that is the right to continue to practice as a paramedic. [transcript of Discipline Committee hearing p. 9] [ 21 ] I observe at this point that there does not appear to have been any doubt as to Ms. Brame’s actual knowledge of the substance of the complaint against her from the beginning. Ms. Brame does not argue that, by the time the matter progressed to the Discipline Committee, she was ‘in the dark’ as to the nature of the allegations against her. [ 22 ] Ms.

Brame also appeals on the basis that certain aspects of the Discipline Committee hearing process undermined her procedural rights. She was concerned that the Discipline Committee acted more as an inquisitorial panel than a neutral arbitrator whose prime function is to assess the evidence presented to it. Furthermore, she expressed concern that the rules of procedure for the conduct of the Discipline Committee hearing were not known in advance and/or were unclear. Ms. Brame expressed the overall concern that the procedural frailties of the process were, taken together, unfair to her.

[ 23 ] That Ms. Brame had a ‘right to be heard’ before the Discipline Committee is not a principle that is in dispute. Ms. Brame argues that her right to be heard was so whittled away by the lack of attention to procedural detail and proper notice, that the hearing, and the disposition that followed, was unfair. The Association notes that the Discipline Committee made certain findings of fact which are subject to the palpable and overriding standard of appellate review. In the present case, there were no statutory restrictions on the type of evidence upon which the Discipline Committee could rely.

Nor were there any legislated restrictions on the authority of the Discipline Committee to shape its own rules and procedures dealing with the conduct of the hearing. This, the Association notes, is based on ss. 26(6) of the Act : 26(6) Each Committee shall conduct its proceedings in accordance with its own rules of procedure and may do all things and engage such persons including legal counsel it deems necessary to provide for the hearing and consideration of any complaint and in no case is the Committee bound to follow the technical rules of evidence or procedure applicable in judicial proceedings. [ 24 ] In

summary, responding to the allegations that the process utilized throughout was so tainted by irregularities that it became unfair to Ms. Brame, the Association says that the Discipline Committee is the author of its own process and is not bound to follow specific rules of evidence or procedure ordinarily applicable in the judicial context. Nor was the process, when viewed in its entirety, unfair.

ANALYSIS [ 25 ] Given that the matter before this court is a statutory appeal the parties were correct to identify that the standard of review to be applied is the standard ordinarily applicable to appellate proceedings. As noted in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 : [37] It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision.

This means that the applicable standard is to be determined with reference to the nature of the question and to this Court’s jurisprudence on appellate standards of review. Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory

interpretation and those concerning the scope of a decision maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 , at para. 8 . Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen , at paras. 10, 19 and 26-37 .

Of course, should a legislature intend that a different standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing the applicable standard through statute. [ 26 ] In the present case, the substantive issues center around questions of procedural fairness for which there is no deferential standard of review. If a proceeding is found to be tainted by procedural defects touching upon the very fairness of the proceeding, then no deference is owed. Chief Justice Richard in Investment Industry Regulatory Organization Canada v.

Crandall , 2020 NBCA 76 , noted at para. 31 : The standard of review of administrative action depends on the nature of the matter being reviewed. “[W]hen it comes to procedural fairness, the reviewing court does not apply any deferential standard. It simply determines whether the rules of procedural fairness were respected”: [ 27 ] With that said, what amounts to a reviewable breach of procedural fairness in one situation, may not amount to such a breach in a different context.

This sentiment is reenforced in Vavilov , at para. 77 : The duty of procedural fairness in administrative law is “eminently variable”, inherently flexible and content specific: [ 28 ] Of particular concern presently is the Discipline’s Committee’s determination that there was no basis for concluding that there was a reasonable apprehension of bias in the composition of the Discipline Committee. Recall that the initial investigation was conducted by ANB manager, Mr. Hach é . That investigative report went to the Vice-President of ANB, Mr. Savoie, who initiated the complaint to the Association.

The two paramedic members on the Discipline Committee were employed by ANB and, with respect to their own employment situation were, in practical terms, answerable to the complainant, Vice-President Savoie. [ 29 ] The Discipline Committee addresses the issue in its Decision on Merit at paras. 13(c)-(f). It writes as follows (Record Vol. 1, Tab B, p. 3): (

c) The requisite level of institutional independence depends on the nature of the tribunal, the interests at stake and other indices of

independence in order to determine whether a reasonable and right-minded person, viewing the procedure as set out in the assessmentby-laws, would have a reasonable apprehension of bias on the basis that the members of the tribunal were not independent; (

d) Where an adjudicator has a personal interest in the outcome, or opinions which reflect preconceived ideas about an issue, theadjudicator may be disqualified for being biased; (

e) The Member is entitled to procedural fairness; (

f) The Committee Members Taylor and Carter do not have a personal interest in the outcome of the Complaint nor do they hold opinionswhich reflect preconceived ideas about the Complainant; [30] As the Discipline Committee appears to accept, the test for determining whether a reasonable apprehension of bias existsfocuses on the ‘right-minded’ person viewing the facts from an informed perspective. The modern articulation of the test comes from thewords of Justice Grandpré in, Committee for Justice and Liberty v.

National Energy Board, (SCC), [1978] 1 S.C.R. 369 atp. 394: The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotationabove, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to thequestion and obtaining thereon the required information.

In the words of the Court of Appeal, the test is “what would an informedperson, viewing the matter realistically and practically and having thought the matter through conclude.” [31] The Discipline Committee went further in its reasons noting that, even if a ‘reasonable, right-minded person’ mightconclude that a reasonable apprehension of bias exists in the present circumstances, the doctrine of necessity would apply. The doctrineof necessity is invoked to legally justify or overcome the existence of grounds leading to a reasonable apprehension of bias.

TheDiscipline Committee wrote the following at p. 4 of its Decision on Merit (Record Vol. 1, Tab B): 15. The Committee further finds that, even if a reasonable apprehension of bias did exist, the doctrine of necessity applies and committeemembers Taylor and Carter are therefore not disqualified from hearing this matter. 16. The doctrine of necessity applies when the disqualifying reasonable apprehension of bias affects all members of the tribunal and mayapply when the decision-maker is the only one that can make the decision.

The committee considered the following factors indetermining if the doctrine of necessity applies: (

a) Pursuant to By-Law 12.01, the members of the Committee must be paramedics appointed to the Committee by the Board of theAssociation. The By-laws define “paramedic” as a “person whose name is entered in the register”. A person must be a member of theAssociation to be entered into the register of the Association; (

b) A large majority of paramedics in the Province of New Brunswick are employed by ANB; and (

c) The legislation governing the Committee did not intend for paramedics from other provinces to be deciding hearings for theAssociation in New Brunswick. [32] In argument before me, counsel for the Association acknowledged (without conceding) that it would not be too ‘far-fetched’ to understand that, under the present circumstances, a reasonably informed, right-minded person could view the circumstancesas creating a perception of bias.

The focus of the Association’s argument was on the applicability of the doctrine of necessity. [33] The doctrine of necessity was discussed in, Reference re Remuneration of Judges of the Provincial Court of PrinceEdward Island, (SCC), [1998] 1 S.C.R. 3, at para. 6: 6.

This doctrine is explained by Halsbury’s Laws of England (4th ed. 1989), vol. 1(1), at para. 93, as follows: If all members of the only tribunal competent to determine a matter are subject to disqualification, they may be authorised and obliged tohear and determine that matter by virtue of the operation of the common law doctrine of necessity. [34] The Association says that, from a practical perspective, there was no option open to it than to place on the DisciplineCommittee two paramedics who were employed by ANB and served under the complainant, Vice-President Savoie.

The Associationsays that “it would be administratively unfeasible to have paramedics not employed by ANB as members of the Discipline Committee”(para. 51 of the Association’s pre-hearing brief). [35] Furthermore, as noted above, the Discipline Committee asserts that, “a large majority of paramedics in the Province ofNew Brunswick are employed by ANB”.

[ 36 ] The difficulty facing this court in accepting the above assertions is that the court is being asked to accept them on face value. There is nothing in the Record that indicates what efforts were made by the Association to identify, from amongst the minority of Association members who were not ANB employees, two who could sit on the Discipline Committee.

As the Discipline Committee noted, ANB employees make up a large majority of Association members – but not all members are ANB employees. [ 37 ] Had it been sufficiently noted in the Record that the Association was unsuccessful in its attempt to find paramedics to sit on the Discipline Committee who were not ANB employees, then reliance on the doctrine of necessity may have had a basis in the evidentiary record. I accept that with a relatively small pool of non-ANB members, the Association may face a challenge finding two non-ANB employees suitable to sit on the Discipline Committee.

However, it is insufficient to simply make that assertion, particularly when the stakes to the respondent to the complaint could be loss of membership and employment at ANB. The higher the stakes, the higher the need to make all reasonable efforts to provide procedural fairness. [ 38 ] In my view and I so find, the composition of the Discipline Committee, containing two paramedic employees of ANB (and one public member), created a reasonable apprehension of bias. This is particularly so when the complaint to the Association from Vice-President Savoie, was clear in his conclusion that Ms.

Brame intentionally delayed her response to the call and, that having done so, contributed to a tragic outcome for the patient. [ 39 ] Furthermore, I find that the doctrine of necessity cannot be invoked given the lack of evidence in the Record to support it. That is not to say that the evidentiary record could not exist to justify the invocation of the doctrine of necessity in future circumstances. [ 40 ] As a result, based on the existence of the reasonable apprehension of bias, the appeal is allowed. [ 41 ] Finally, I turn to the other procedural challenges raised by Ms. Brame.

As noted, she took issue with the failure of the Association to provide a proper Notice of Hearing. In my view, while the issue has a degree of attraction given that it has been characterized as a jurisdictional issue, I am persuaded by the Association’s argument that Ms. Brame was fully aware of the allegations she faced and was not caught off guard by any new allegations once she appeared before the Discipline Committee. [ 42 ] I do accept Ms.

Brame’s further arguments that the Discipline Committee’s procedures for the conduct of the hearing, when viewed in their totality, were below what would be expected of a proceeding which had such consequential possible outcomes. In particular, it is a concern to the court that much of Mr. Hach é ’s opening statement consisted of reviewing his report. He was not under oath when he provided his

summary of his investigation to the Discipline Committee, nor were any of the participants in the investigation under oath (nor do I imply they should have been). As I understand the hearing, having read the transcript, Mr. Hach é gave his opening statement, consisting of a review of his report, and was only then placed under oath to answer questions put to him by the Discipline Committee members and counsel for Ms. Brame. Mr. Hach é played several roles during the process – all of which were important – but which, in my view, should have been divided amongst others.

As far as not being placed under oath at the start of his remarks, this is more problematic given that panel members referred to him at times as the ‘complainant’. He did not make the complaint – Mr. Savoie did. The variety of hats Mr. Hach é wore complicated the process and created procedural pitfalls that tarnished the overall procedure. [ 43 ] The information contained in Mr. Hach é ’s report was the focal point of the evidence against Ms. Brame. None of those who were interviewed for the report were brought to the hearing as witnesses for the complainant (or Ms. Brame).

It was also evident that there was a degree of informality in the process, an example being that, on occasion, the Chair of the panel spoke to each of Mr. Hach é and Ms. Brame by using their first names. [ 44 ] With all that said, I also accept that the necessity of adherence to procedural formalities can be different given the context. It will often depend on the training and expertise of those involved. In this case, I accept that the procedures utilized in the conduct of the discipline hearing need not look like a court hearing.

Yet, there are certain basic principles to consider given the severity of the potential outcome. The degree to which the Discipline Committee actually relied upon the hearsay information contained in Mr. Hach é ’s report in making their decision cannot be known. Nevertheless, given that the report was a foundational piece of evidence, the manner of its use does raise concerns given the potential impact on Ms. Brame’s career.

The aim of having a tribunal reach the best decision it can is directly tied to providing it with the best evidence one can. [ 45 ] All this to say, that when the Association determines it necessary to conduct another hearing of its Discipline Committee, it would be useful to first consider adjustments to its hearing process. I fully accept that the Association, being a professional regulatory body, has the freedom to structure is processes in a way that best meets the legislated purposes without needing to meet the formalities of a court hearing.

Somewhere between the irregularities of the discipline hearing at issue, and the formalities of a court trial, is a balance which must be met.

[ 46 ] As a result, the appeal is granted. The matter is to be remitted to a differently constituted Discipline Committee for a re- hearing. Ms. Brame is entitled to costs in the amount of $2,500. plus HST and disbursements. __________________________ Mr. Justice E. Thomas Christie Court of King’s Bench of New Brunswick, Trial Division