Hearing Types and Exploring Settlement Options at CMCs
| Some terms used on this page are expanded on in Key Terms. |
No Contest Pleas
Some tribunals in the HPDT do not permit no contest pleas as part of an agreement. The College’s position on this can be discussed and clarified at your CMC.
Anthony-Cook Test
Anthony-Cook Test is adapted from the Supreme Court’s analysis in R. v. Anthony-Cook, 2016 SCC 43, requires that a joint submission “be implemented unless it is so unhinged from the circumstances that implementing it would bring the administration of the College’s professional discipline system into disrepute.”(para. 16) In other words, “there must be something completely unacceptable, unusual or unconscionable to reject it.” (para. 17) reject joint submissions encourages settlement which saves time, costs and avoids the stress of a hearing for witnesses. Further, it protects the public interest by ensuring a finding is made and penalty implemented despite weaknesses in either side’s case. Jointly submitted penalties also provide the opportunity to propose creative mutually agreeable penalty terms that would be difficult to reach without agreement from both sides.
Exploring Settlement
CMCs are an opportunity to explore whether you and the College can resolve all or part of the issues. What is resolved (or left unresolved) will influence what type of hearing will take place - contested or uncontested.
Contested Hearings
In a fully contested hearing, you deny the College’s allegations. If you deny the College’s allegations, the College must prove them on a balance of probabilities by presenting evidence and calling witnesses. You have the right to challenge the College’s case through cross-examination and may also call your own witnesses and present your own evidence. If the Tribunal finds that the allegations have not been proven, the matter ends. If the Tribunal finds that some or all of the allegations have been proven, a second phase of the hearing will determine the appropriate penalty and costs.
Uncontested Hearings
An uncontested hearing occurs when both parties agree with the facts supporting the allegations and you admit that the conduct amounts to professional misconduct and/or incompetence. A hearing can also be uncontested if you do not want to admit to the allegations but do not plan to dispute them. This is called a “no contest” plea (see Key Terms).
Whether you admit professional misconduct or do not plan to dispute the allegations, you and the College must agree on the facts to be submitted to the Tribunal, the findings of misconduct the Tribunal will be asked to make, and the penalty and costs orders the Tribunal will be asked to impose. Any admissions must be voluntary and informed in order to be accepted by the hearing panel.
College counsel will typically prepare the first draft of an Agreed Statement of Facts (ASF) or Statement of Uncontested Facts (SUF). You may suggest changes. The final version must be agreed to by both parties. If agreement cannot be reached, the hearing ceases to be uncontested, and becomes a contested hearing.
In an uncontested hearing, the parties also make a joint submission to the Tribunal on penalty. This means they agree on what the penalty should be. While the panel is not required to accept the proposed penalty, they normally accept it (see Anthony-Cook in Key Terms).
Even though the issue of costs is separate from penalty, the joint submission may also contain an agreement on the costs order the parties are asking the panel to make.
If you agree to resolve the matter, typically by entering into an ASF and joint submission on penalty and/or costs, this is sometimes referred to as “settling” or “resolving” the case.
Uncontested hearings are typically shorter and more focused because there is no need to present oral evidence; all the evidence is contained in the ASF or SUF. Most uncontested hearings are completed in one half-day.
Partially Contested Hearings
A partially contested hearing falls in between contested and uncontested. You and the College may agree on some of the facts or allegations but disagree on others, or may agree on the findings but disagree on the appropriate penalty and/or costs. These cases may also involve an ASF or SUF and/or partial agreement on penalty and/or costs, depending on the scope of the agreement.
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