Supreme Court

Judge:

The Honourable Justice John A. Keith

Heard:

February 1, 2024, in Halifax, Nova Scotia

Post-Hearing Written Submissions:

April 29, 2024

August 6, 2024

August 20, 2024

August 23, 2024

Counsel:

Self-Represented, for the Applicant

Ryan Baxter and Raylene Langor, for the Respondent

1.

As indicated, the Registration Committee denied Ms. Hogg’s application for licensure as a paramedic. Ms. Hogg appealed to the Registration Appeal Committee.

2.

By letter dated June 28, 2022, counsel for the College acknowledged receipt of Ms. Hogg’s appeal and attached “a copy of all non-privileged documents in the College’s possession relevant to [Ms. Hogg’s] appeal.”

3.

On August 26, 2022, the Registration Appeals Committee convened an initial, pre-hearing conference call with counsel for Ms. Hogg and counsel for the College. The minutes from that call indicated that counsel for Ms. Hogg was taking the position that the appeal should proceed as a hearing de novo and that she anticipated calling witnesses and new evidence. Counsel for the College took the position that the appeal was limited to “a review of the Registration Committee Decision and there would be no new evidence tendered.” As will be seen below, somewhat ironically, the positions of the parties are now reversed.

4.

By email dated October 14, 2022, Ms. Hogg (now self-represented) reversed procedural course.  She took the position that the appeal should proceed as a review and that she did not intend to call any witnesses. By letter sent later that same day, the College agreed and re-iterated their original position that the appeal was a review – not a hearing de novo. On the basis of that agreement, the Chair of the Registration Appeal Committee set the matter down for a one-day hearing on February 15, 2023.

5.

On December 16, 2022, counsel for the College sent both Ms. Hogg and the Chair of the Registration Appeal Committee the formal “Record for review in this matter”.

6.

When the hearing began on February 15, 2023, based on the evidence before me, it appeared that Ms. Hogg may have sought to introduce new evidence that was not contained in the record. The hearing was adjourned to May of 2023 with the Registration Appeals Committee now agreeing to accept new evidence at the hearing. It is unclear whether anyone turned their mind, at this time, to the impact of this decision on the earlier agreement to proceed as a review (not a hearing de novo). That issue would later erupt as the parties approached the new hearing date.

7.

On February 18, 2023, Ms. Hogg emailed counsel for the College to ask whether she should send the evidence which she intended to use at the appeal hearing to both the College and chair of the Registration Appeal Committee. On February 20, 2023, counsel for the College replied that the evidence should only be sent to him at this point; and that “[a]t the resumption of the hearing, [Ms. Hogg] can provide the evidence to the Registration Appeal Committee”.

8.

On March 13, 2023, the Chair of the Registration Appeal Committee convened another pre-hearing conference. At that time, she noted that, among other things:

(a)

At least ten days prior to the appeal hearing, the parties must advise one another as to the identity of any witnesses,  copies of any documents other than those contained in the “record” which they intended to tender into evidence; and copies of any expert reports. Moreover, the Chair confirmed that:

(i)

“Witnesses may be called by both parties”;

(ii)

“Any documents not already in the record can be

introduced by either party during witness

testimony”;

(iii)

Ms. Hogg’s intention to only call herself as a witness but reserving the right to call other witnesses, depending on the College’s position; and

(iv)

Counsel for the College indicated it intends on calling “one lay witness and an expert Muslim witness”.

9.

In an email also dated March 13, 2023, Ms. Hogg attached additional evidence which she intended to use on appeal. The attachments were not placed before me although one documents is entitled “Pledge to Stop Political Islamic Entryism”.

10.

In this March 13, 2023, exchange the true nature of the evidentiary issue which sharply divided the parties begins to emerge. Ms. Hogg was particularly concerned with the College’s confirmation of its intent to call “an expert Muslim witness”. The College contends that Ms. Hogg’s views towards Islam are relevant to the issue of whether Ms. Hogg has the “current capacity, competence and character to safely and ethically practise paramedicine” (s. 17(h) of the Regulations and included among the required criteria of licensure as a paramedic). Ms. Hogg takes great offence. In subsequent submissions to the Registration Appeal Committee dated April 14, 2023, she expresses respect for the Islamic religion and its core beliefs but draws a distinction between Islam as a religion and “Islamism”, which she describes as the “political implementation of Islamic principles and values and a basis for government”. Based on the evidence before me, this issue sparked heated discussions and, as will be seen below, ultimately re-ignited an increasing confrontational debate over whether the procedure constituted a review or a hearing de novo.

11.

On April 17, 2023, Ms. Hogg provided the College with the new documentary evidence that she planned to present at the hearing in May, 2023.

12.

On May 17, 2023, counsel for the College delivered its new evidence for the upcoming appeal. Immediately after receiving the College’s evidence (i.e. during the evening of May 17, 2023), Ms. Hogg emailed the Chair of the Registration Appeals Committee and resurrected the question of whether the parties were engaged in a review or hearing de novo. 

13.

By letter dated May 18, 2023, the Chair of the Registration  Appeals Committee confirmed that “upon determining new evidence would be permitted at the Appeal Hearing, which is statutorily permitted under s. 50 of the Paramedics Regulations, in effect, the hearing changed to a hearing de novo.” She reiterated that same conclusion in a second letter sent later that same day. Then, in a third letter also dated May 18, 2023, the Chair wrote to say that she had given further consideration to the matter and required submissions. She said:

            While it is clear from the Paramedics Regulations that the Registration Appeal Committee may hold an oral hearing and can hear evidence, there is no provision which states that the Appeal Hearing is a review or a hearing de novo [sic] or something in between. Therefore, it would helpful for the Committee to be provided with further submissions and any caselaw that may be available on the issue of whether, by allowing new evidence the appeal hearing automatically becomes a hearing de novo [sic] or something in-between a review and a hearing de novo [sic].

14.

On May 25, 2023 and after receiving further submissions, the Registration Appeals Committee affirmed its original decision that the procedure was a hearing de novo. It wrote, inter alia:

            For the following reasons, the Registration Appeal Committee has determined that the Appeal Hearing is a hearing de novo [sic]. Evidence at the Appeal Hearing can include the record before the Registration Committee and fresh evidence and submissions by the parties.

            A review means a review of the record of the prior decision maker. A review is just that, a review of the record. By allowing new evidence not included in the record, as permitted pursuant to s. 50 of the Paramedics Regulations [sic], the proceeding is no longer solely a review of the record.

            …

            Prior to the commencement of the Appeal Hearing, the parties had agreed that the proceeding was a review and not de novo [sic]. The Registration Appeal Committee understood, after making a determination that evidence could be called by the parties, that upon resumption the Appeal Hearing would be de novo [sic] and was under the impression that both parties understood this.

(at paras. 18, 19, and 23)

  I refer to this decision below as the “Impugned Decision”.

15.

Ms. Hogg disagreed with the Impugned Decision. On June 30, 2023, she filed  Notice of Appeal with the Nova Scotia Court of Appeal. However, a preliminary issue arose as to whether the Court of Appeal had jurisdiction to hear the matter. The College moved to pre-emptively dismiss the appeal for want of jurisdiction.

16.

Prior to the motion for dismissal being heard, the College offered Ms. Hogg the opportunity to voluntarily withdraw her appeal. Ms. Hogg declined and insisted on proceeding.

17.

By decision rendered September 5, 2023 (2023 NSCA 62), Derrick, J.A. allowed the College’s motion and dismissed the appeal. Derrick, J.A. began by observing that Ms. Hogg’s right of appeal must be grounded in the Act or Regulations. Ms. Hogg referred to s. 91(1) of the Act which recognizes a right to appeal “any point of law from the finding of a hearing panel to the Nova Scotia Court of Appeal”.  However, s. 2(1)(m) of the Act defines the term “hearing panel” as the decision maker who deals with members of the College facing professional conduct matters under the Act. In this case, Ms. Hogg:

18.

18.       Is not currently a member of the College. On the contrary, Ms. Hogg seeking licensure to become a member of the College;

19.

Is not named in professional conduct proceedings under s. 64(1) of the Act; and

20.

Is not subject to a professional conduct finding by a “hearing panel” from which a right to appeal may arise under s. 91(1) of the Act.

Derrick, J.A. concluded at paras. 36 and 41:

             There is nothing in the Paramedics Act or Regulations that provides Ms. Hogg with a right of appeal to this Court. Section 91(1) does not apply to the registration and licensure process in which she is a participant. She cannot use s. 91 (1) to launch an appeal into this Court from the Registration Appeal Committee's May 25, 2023 decision.

              …

              This Court has no jurisdiction to hear the appeal Ms. Hogg is seeking to pursue from the Committee's decision. There is no bad faith in the  College bringing a motion to dismiss the appeal and no prejudice to Ms. Hogg occasioned by the amendment of the College's notice of participation.

Ms. Hogg’s appeal was dismissed for want of jurisdiction. However, Derrick, J.A. recognized that, in the heading of the Impugned Decision, the Registration Appeal Committee mistakenly identified itself as a “Hearing Panel”. This error created a degree of confusion over whether the Committee was (or considered itself to be) a “hearing panel” whose decisions triggered a right of appeal to the Nova Scotia Court of Appeal under s. 91(1) of the Act. Derrick, J.A. agreed that “[i]t would have been more precise and accurate for the description to have been: “A Hearing Before the Registration Appeal Committee” (at para. 35).

21.

Faced with this jurisdictional barrier, Ms. Hogg immediately filed a motion to extend the time for initiating judicial review with this Court.

1.

Formed and maintained a bona fide intention to appeal when the right to appeal existed;

2.

Had a reasonable excuse for the delay in failing to appeal within the prescribed time; and

3.

In these unique circumstances (including an intervening appeal to the Nova Scotia Court of Appeal), the length of the delay in seeking leave to extend time was significant but not fatal.

1.

In Tupper, opposing counsel advised the appellant Mr. Tupper that he has no right of appeal and also advised that his only option would be an application to this court for judicial review (at para. 11). Here, the College’s offer similarly suggested that Ms. Hogg consider an application for judicial review. In Tupper, MacDougall, J. emphasized the Barristers’ Society’s comprehensive efforts to guide Mr. Tupper towards a more appropriate process only to have Mr. Tupper improperly rebuff the attempt. The College is under no obligation to either offer Ms. Hogg legal advice or make suggestions regarding more viable procedural avenues of appeal. The College is also not required to make settlement offers which involve concessions deemed unacceptably inconsistent with its own interests. Furthermore, self-represented parties cannot simply presume that their own inexperience or lack of legal training will automatically excuse unreasonable delay (MacDonald v. Canada (Attorney General), 2017 FC 2 at paras. 13 and 29). That said, in Tupper, the appellant (Mr. Tupper) sought to appeal a decision dated February 21, 2012. The Nova Scotia Court of Appeal dismissed the appeal for want of jurisdiction on January 31, 2013 (2013 NSCA 14). Mr. Tupper then appealed to the Supreme Court of Canada which dismissed this final appeal on June 27, 2013 (2013 CarswellNS 458).  The entire process took more than 16 months. By contrast, in this case, the Impugned Decision was released on May 25, 2023. The Court of Appeal dismissed Ms. Hogg’s appeal less than four months later, on September 5, 2023. Ms. Hogg did not extend the delay with a further appeal to the Supreme Court of Canada. In short, the delay caused by appeal proceedings in this case was much less severe than in Tupper; and

2.

More importantly, in my view and as Derrick, J.A. noted, the Registration Appeal Committee’s Impugned Decision mistakenly identified it as a “hearing panel”. This inadvertent but material error is a unique feature of this case which resulted in at least a degree of confusion regarding the applicability of s. 91(1) of the Act.

1.

Allowing administrative tribunals to productively operate within their defined spheres of authority generates significant tangible benefits in the form of specific expertise, increased efficiencies, cost savings, and speed. Thus, a reviewing court should have “all of the administrative decision-maker’s findings; these findings will be suffused with expertise, legitimate policy judgments and valuable regulatory experience” (C.B. Powell at para. 32). In light of these important concerns, the Courts exercise a reasonable degree of restraint before undertaking a review of their work;

2.

Where the courts prematurely insinuate themselves into the work of administrative tribunals, a number of related, unnecessary risks arise such as:

3.

Weakening the process by creating a multiplicity of disjointed and fragmented proceedings; and

4.

Potential distortion of the factual and legal issues by the courts before administrative tribunals are provided sufficient opportunity to explore and understand the disputed matters in their proper factual and legal context;

5.

Elected members of the legislature review, vote upon, and ultimately pass into law the statutes under which administrative tribunals claim jurisdiction. The democratic legitimacy associated with the legislative process is deserving of the court’s respect.

1.

As to the issue of hardship/prejudice, allowing judicial review to proceed at this stage would create delay which undercuts the goals of efficiency and economy in administrative proceedings.  Based on the evidence before me, this is not a case where judicial resources would be wasted if the Registration Appeal Committee’s proceedings were not further suspended to conduct a judicial review. On the contrary, I am satisfied that judicial resources would be wasted if a judicial review were to proceed.

2.

Further on the issue of prejudice, respectfully, there is a lack of clarity around:

a.

The advantages which will be gained by judicial review, which reinforces the need for restraint; and

b.

The prejudice which will result if judicial review is denied. 

In cases where administrative proceedings were suspended mid-stream, the risk of prejudice was clear and imminent. For example, in MacLean v. Fraser, 2024 NSSC 97, the evidence revealed the absence of reasonable alternative remedies if judicial review was denied; irretrievable harm to public confidence in a public complaints process; and concerns around the jurisdictional boundaries of authorities operating in the same sphere. By contrast, in this case, the specific evidence that fuels Ms. Hogg’s fears over irreparable prejudice has only been presented in general and somewhat oblique terms. As mentioned, it appears to centre around Ms. Hogg's views on Islam or, in Ms. Hogg’s words, the different political ideology of “Islamism”. However, the parties made the deliberate decision to not present copies of the disputed evidence.  Ultimately, I was not given sufficient details to comment meaningfully on its alleged prejudicial or inflammatory content. 

In short, I am unable to conclude that the disputed evidence is irrelevant, excessive, or irreparably and unnecessarily disparaging of Ms. Hogg.  Perhaps more importantly, the mere fact that the College may try to present new evidence does not mean that the Registration Appeal Committee will allow it.

3.

Ms. Hogg has an alternative remedy under the Regulations with respect to her evidentiary concerns. While the evidence which may be allowed by the Registration Appeal Committee is flexible, the Committee is equally entitled to “make any directions it considers necessary to ensure that a party is not prejudiced by the admission of the evidence” (s. 50(2) of the Regulations, emphasis added). In other words, Ms. Hogg has an alternative remedy because the Registration Appeals Committee is statutorily empowered to avoid undue prejudice to her. Based on the evidence before me, the Committee should be allowed to review the evidence; make decisions as to what evidence will be allowed; and complete its work – before the Court presumes a problem and proactively steps in to adjudicate on these matters. Here again, I repeat that I make no determinations as to the merits of Ms. Hogg’s evidentiary concerns or whether (and to what extent) this evidence may be relevant or exceedingly prejudicial. I am not required to make this determination and the evidence before me is insufficient to do so, in any event. 

4.

As to Ms. Hogg’s argument that the damage to her reputation becomes irreparable once the College’s attacks begin and that the Registration Appeals Committee as currently constituted lacks the competence to avoid this harm, I acknowledge that certain decisions made by the Registration Appeal Committee may have created a degree of confusion in the past. However, I have not seen any evidence which would suggest that the Registration Appeal Committee is irredeemably incompetent, incapable of procedural fairness, or unable to deliver justice to the parties. In my view and based on the evidence before me, any such conclusions would be extremely unfair and undeserved.

5.

As to the strength of Ms. Hogg’s substantive arguments around whether the appeal should be heard as a review or a hearing de novo, this factor is neutral and does not compel any particular conclusion on the motion to extend time. On the one hand, Ms. Hogg is correct that the Act and the Regulations consistently use the word “review” to describe the work of the Registration Appeal Committee.  I refer to s. 31 of the Act and ss. 39, 41 and 52 of the Regulations. On the other hand, s. 50 of the Regulations does not explicitly limit the evidence at the hearing of the appeal to the record before the original decision maker.  Rather, s. 50(1) simply lists three broad categories of evidence (written or documentary evidence, expert evidence, and evidence from witnesses) that may not be admissible unless the opposing parties give one another ten days notice of any evidence they intend to rely upon this evidence at the hearing.  In other words, the restriction around evidence is primarily procedural.[4]   Moreover, s. 50(2) states that the Committee may allow evidence that is otherwise inadmissible but retaining the discretion to “make any directions it considers necessary to ensure that a party is not prejudiced by the admission of the evidence.” Overall, the positions advanced by the parties are arguable. I do not find that the Impugned Decision is so deeply flawed that the strength of Ms. Hogg’s arguments become a decisive or predominate factor in my assessment.  To be clear, I am not making any final determination with respect to this issue. I simply find it to be a neutral factor that does not weigh in favour of Ms. Hogg so as to be a significant factor in granting an extension of time.

6.

Ms. Hogg also cites the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”), as authority for a principle of statutory interpretation that: “an appeal is a review of the record unless a de novo hearing is explicitly prescribed” (at p.  3 of her written submissions). She does not provide a specific paragraph reference in support of this statement.  Respectfully, the Supreme Court of Canada’s decision in Vavilov was focussed almost entirely on determining the standard of review for administrative decisions. Neither the majority decision of Wagner, CJ, Moldaver, Gascon, Côté, Brown, Rowe, and Martin JJ. nor the minority but concurring decision of Abella and Karakatsanis, JJ. supports Ms. Hogg’s argument. Vavilov decision does make passing references to de novo hearings (at paras. 83, 116, 124, 252, 271-272, 283, 305, and 207). However, these comments are made in the context of applying the appropriate standard of review. They do not confirm the categorical conclusions proposed by Ms. Hogg.

7.

Finally, Ms. Hogg states that where “the tribunal’s decision is backed by law in a way that makes it difficult to challenge, such as through a finality clause, the Courts should err on the side of caution in favour of the party making the application for judicial review” (Supplementary written submission filed on April 29, 2024, at p. 1.). In support of this conclusion, Ms. Hogg cites Lord Nelson Hotel Ltd. v. City of Halifax, 1973 CanLII 2320 (NSSC), and Atlantic Shopping Centres Limited, Bedford Place Limited and Sackville Town Centre Limited v. The Provincial Planning Appeal Board et al., 1983 CanLII 5236 (NSSC). In subsequent supplementary written submissions dated August 24, 2024, Ms. Hogg repeats that the Impugned Decision is “a final determination of a preliminary matter upon which its jurisdiction depends” (Supplementary written submission filed on August 24, 2024, at p. 1).

Section 53 of the Regulations states that: “A decision of the Registration Appeal Committee is final.” However, as the College acknowledges in its supplementary written submissions dated August 20, 2024: “… the Paramedics Act does not protect a decision of the Registration Appeal Committee from challenge.” This includes a potential future challenge of the decision to conduct a hearing de novo. I also note the following comment from Donald Brown, K.C., The Honourable John M. Evans and Adam Beatty’s text Judicial Review of Administrative Action in Canada, vol. 2, at §13:60:

              To entrust the repository of a statutory grant of authority the power to determine conclusively the legal limits on its power is incompatible with the notion of limited government and the rule of law. Thus, it is ultimately the responsibility of the courts, constitutionally located at arm’s-length from the Executive, to ensure that governmental action complies with the law. Hence, courts have been resistant to legislative provisions that limit or remove the jurisdiction of the superior courts to review the legality of governmental action, and have construed some preclusive clauses so narrowly as to give them minimal effect, if any. Even the most explicit provisions - the so-called “no-certiorari” clauses - are interpreted as preserving the courts’ power to set aside an administrative decision on the ground that it was made in excess of a tribunal’s jurisdiction including a breach of duty of fairness. Indeed, preclusive clauses which are interpreted as protecting tribunals from all judicial review, even for jurisdictional error, are unconstitutional.

1.

The merits of the Registration Appeal Committee’s decision to proceed with a hearing de novo;

2.

What principles and/or restrictions define the limits of evidence which goes to an applicant’s “current capacity, competence and character to safely and ethically practise paramedicine” (s. 17(2)(h) of the Regulations); and

3.

What weight should be attached to any such evidence which, under s. 17(2)(h) of the Regulations, is deemed allowable and relevant?