Sep 28, 2020

Some regulators provide the ability for internal appeals of registration, complaints or discipline decisions. Often the question is: should those appeals be like appeals to a court, where the parties make submissions on the basis of the record before the first tribunal, or should there be a complete redoing of the hearing with oral evidence and fresh submissions? In Dorn v Association of Professional Engineers and Geoscientists of the Province of Manitoba, 2018 MBCA 18, http://canlii.ca/t/hqx9j, Manitoba’s highest court gave guidance on the issue. It applied the following principles:

1. Where the legislation is not clear, the usual presumption is that an internal appeal will be an appeal based on the record (e.g., the transcript and exhibits) from the first hearing and is not a redoing of the entire hearing.

2. This presumption can be rebutted by clear, not ambiguous, statutory language.

3. Where the regulator has the authority to make regulations or by-laws on the subject, the regulator has significant discretion to design an appropriate appeal mechanism for itself.

4. Even where an appeal is on the record of the first hearing, the appellate body generally has discretion to permit oral evidence on some issues.

Regulators would be wise to clarify the appeals process where it is permitted to do so in a regulation or by-law.