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Parties are not generally permitted to introduce new evidence during an appeal of a disciplinary hearing. A four part test from Palmer v The Queen is often applied by appeal tribunals when considering whether to allow new evidence. A recent decision of the Alberta Court of Appeal (Essa v APEGA (2021 ABCA 116)) considered circumstances where fresh evidence may be allowed on appeal. In that case, the regulated member had kept more extensive electronic records than what had been presented at the initial hearing before the Discipline Committee (or provided to the investigator during the investigation). On appeal, the regulated member admitted that one of the parts of the Palmer test was not met (that through due diligence, he could have adduced the evidence at the initial hearing). The Court recognized that they were dealing with a serious disciplinary proceeding. The Court held that the due diligence criterion was not determinative and that the test should be relaxed based on the facts of the case. The additional documents in the possession of the regulated member answered the charge in full and it would be a serious miscarriage of justice if the regulated member was not permitted to introduce the evidence.
Our Two Cents for Free
The investigation phase is an important fact finding stage and will shape what allegations are brought forward to a hearing. Investigators should ensure they are collecting complete and comprehensive records from a regulated member. At times, it may be prudent to probe a regulated member to ensure that all records have been collected (including both written documents and electronic records).
Do you have a thorough process that ensures all relevant (or potentially relevant) records are collected during the investigation of a complaint?
Eye on Regulation is RMRF’s monthly newsletter for the professional regulatory community. Each month we offer:
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