Practice Direction on Case Management
The Ontario Physicians and Surgeons Discipline Tribunal is committed to the just and expeditious determination of discipline proceedings. Practice Directions provide guidance to participants in Tribunal proceedings. They are not rules within the meaning of the Tribunal’s Rules of Procedure.
The Tribunal uses case management to ensure hearings progress in a fair and timely way in the public interest. Case management allows parties to work together in a more informal setting to agree on or resolve procedural disputes in a fair and expeditious manner. This Practice Direction explains how the Tribunal applies case management in its proceedings.
What is the format of a CMC?
Case management conferences (CMCs) are held by videoconference. They normally last an hour but can take more or less time. The length of the CMC depends on the number and nature of issues to be discussed. Most CMCs take one hour.
To respond to new developments or evolving issues, the Tribunal may case manage a matter in writing without holding a CMC.
Who conducts the CMC?
The CMC is conducted by the case management chair (CMC chair) who is a member of the Tribunal, assigned by the Tribunal Chair. The CMC chair is usually a lawyer and an experienced adjudicator.
In most cases the CMC chair will case manage the proceeding from the first CMC until the hearing begins. Unless the parties consent, a CMC chair who participated in discussions about the strengths and weaknesses of the evidence or possible resolutions will not sit as a member of the hearing panel.
What happens at a CMC?
Case management ensures that Tribunal hearing time is used as efficiently and effectively as possible. The CMC chair works with the parties to identify any legal and procedural issues which may arise in the hearing and ensure that sufficient hearing time is provided, and adjournments are avoided. The CMC is also an opportunity for parties to have open discussions about the case and to explore possible areas of agreement or settlement.
To keep hearing preparation on track, the CMC chair may make orders and directions as listed in rule 9.5.2 including:
- scheduling or adjourning hearing or motion dates;
- making orders under rule 2;
- directing disclosure;
- requiring further or better witness statements;
- directing the order of witnesses;
- making directions under rule 8;
- making directions under rule 14;
- permitting the examination of a witness before the hearing;
- setting the time for delivery of expert reports and any responding expert witness reports;
- resolving objections to a proposed expert;
- directing how expert evidence will be called;
- hearing and deciding pre-hearing motions;
- setting times for steps in the proceeding and/or delivery of documents;
- setting time limits for oral submissions and page limits for written submissions;
- directing cross-examinations on affidavits take place with only a court reporter or before the CMC chair; and
- exploring and applying alternatives to traditional adjudicative or adversarial procedures.
The Tribunal Chair, on the advice of the CMC chair, may also direct certain motions to be heard by the hearing panel as part of the merits hearing.
Confidentiality of the CMC – why is it important?
CMCs are not open to the public and CMC memos are not part of the public record of the proceeding nor accessible by the public. Discussions of the strengths or weaknesses of a party’s case and any discussions about settlement are considered “without prejudice”. That means they cannot be relied on in the hearing or shared with anyone in any way unless both the parties and the Tribunal agree. See rule 9.3.1.
Confidentiality of the CMC is critical to encouraging fair and frank discussions and exploring resolution of some, or all, the issues in dispute.
What is a CMC Memo?
Both parties are expected to prepare a CMC memo. The College must deliver its memo no later than 20 days before the first CMC. The member’s memo must be delivered no later than 10 days before the first CMC. See rule 9.4.3.
CMC memos are completed using Tribunal Form 9.
The CMC memo explains the theory of the party’s case and the legal issues the party understands are in dispute. The CMC memo provides helpful information for the hearing planning process such as an estimate of hearing days, numbers of witnesses, whether the party will call expert witnesses and whether any pre-hearing motions are contemplated. The CMC memo also sets out the party’s position on penalty and possible settlement.
When is the first CMC held?
The first CMC is scheduled within 150 days after the notice of hearing is filed with the Tribunal. The date and time of the first CMC is included in the introduction letter the Tribunal Office sends to parties.
A party or counsel who is not available on the date set for the first CMC must consult the other party and provide two alternate dates and times when both parties are available. The alternate dates must be within two weeks of the original CMC date. This information must be provided to the Tribunal Office within 7 days of the date of the introduction letter.
The CMC chair will schedule further CMCs as necessary. Parties may request a CMC at any time and must request a CMC as soon as they become aware of anything which may affect the timely and efficient conduct of a scheduled motion or hearing. See rule 9.5.3.
CMC Directions and Decisions
The CMC chair prepares a case management direction after every CMC. The case management direction records any deadlines or directions made at the CMC.
Parties are expected to comply with case management directions and orders. Failure to do so may be considered when the Tribunal considers whether to award costs.
The CMC chair will also decide motions and may issue case management reasons. Case management directions or reasons may be issued on the CMC chair’s own initiative or in response to written communications or submissions from parties or participants. See rule 9.5.4.
Examples of case management reasons:
- College of Physicians and Surgeons of Ontario v. McInnis, 2022 ONPSDT 28
- College of Physicians and Surgeons of Ontario v. Gerber, 2022 ONPSDT 21
- Tribunal File No. 21-019, 2021 ONPSDT 44
- College of Physicians and Surgeons of Ontario v. Garcia Pan, 2021 ONPSDT 43
- College of Physicians and Surgeons of Ontario v. Dr. X, 2021 ONCPSD 38
Effective: January 1, 2023