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REGULATION PRO

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Please note that the information contained in Regulation Pro is not intended to be legal advice and is not intended to be acted upon. The information contained herein is intended for general information and educational purposes only.

Costs Against a Regulator Not Confined to Bad Faith Prosecutions

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by Rebecca Durcan
July 18, 2019

It is rare for a disciplinary tribunal to award costs to the practitioner where the regulator has not established the allegations of misconduct. At the time that the regulator makes the referral to discipline it is not in a position to assess the credibility of the witnesses. In addition, its public interest mandate may require the regulator to refer matters to discipline even though it is uncertain as to the outcome after a full hearing. However, where legislation entitles a practitioner to seek costs against a regulator, the discipline tribunal must apply the proper criteria.

It should be noted that different legislation applies different tests to when such costs will be awarded. For example, a frequent test is whether the referral to discipline was unwarranted. The legislation applicable to the Alberta real estate regulator has a more general test related to the circumstances of the case. In Pethick v Real Estate Council (Alberta), 2019 ABQB 431, http://canlii.ca/t/j0xmj an appeal tribunal set aside a misconduct finding against the practitioner due to serious procedural defects in the original discipline hearing. However, it indicated that the practitioner would generally only receive an order for costs where the practitioner demonstrated that the regulator had acted in bad faith or for an improper motive. The Court concluded that this test was too stringent and referred the matter back to a hearing. The Court said:

Focusing on a party (or counsel’s) conduct and its effects, rather than on the party’s motives or intentions, makes sense in the context of costs. Costs awards are not primarily punitive; rather, they allocate the costs of legal proceedings fairly, and in light of who caused the costs to be incurred. They are “a tool in the furtherance of the efficient and orderly administration of justice”…. The efficient and orderly administration of justice requires that improper conduct be discouraged, not merely improper motives.

The Court returned the matter for reconsideration with the following guidance:

  • The tribunal may properly consider the public mandate function of the regulator in deciding whether or not costs ought to be awarded.
  • The tribunal cannot require the practitioner to demonstrate that the regulator or lower tribunal acted with an improper purpose or otherwise in bad faith in order to receive an award of costs.
  • The tribunal can take into account whether the conduct of the proceedings against the practitioner constituted a marked departure from the standards to be expected in a regulatory proceeding of that type.
  • The tribunal must consider the totality of the circumstances of a practitioner’s hearing and appeal, including other factors set out in the enabling statute.

While different statutes do set out different criteria, few require the demonstration of bad faith in order for the practitioner to receive a costs award.

Progressive Discipline is Not Arithmetic

by Bernie LeBlanc
July 15, 2019

When it comes to imposing a sanction at discipline, one of the oft-cited principles is that discipline should be progressive to enable a practitioner the opportunity to learn from their mistakes and to change their behaviour. In Peet v Law Society of Saskatchewan, 2019 SKCA 49, http://canlii.ca/t/j0tkc, Saskatchewan’s highest court indicated that this principle, while valuable, has limitations. In that case the practitioner failed to respond to his regulatory body’s request for information about his trust accounts over a period of more than five months despite frequent reminders. The practitioner had been the subject of six prior discipline hearings with about ten similar findings of misconduct. In the most recent previous matter involving an almost identical allegation, he received a three-month suspension and a fine. That penalty was imposed around the same time he finally complied with the request in issue in the current matter. In the current matter he was suspended for twice as long (i.e., six months) and was subject to a much larger fine.

The practitioner argued that the principles of progressive discipline suggested that since the previous penalty was imposed after his conduct in this case, it should not be seen as a prior discipline sanction. He had no chance to correct his behaviour after having the penalty imposed. He suggested that the penalty in the current matter should be the same three-month suspension and a lower fine. The Court disagreed. Progressive discipline was not a mathematical exercise. The fact that the practitioner “was blithely ignoring requests for a response from the Law Society at the same time his penalty was being considered for the earlier similar offence” indicated his disregard for his professional obligations. The Court said:

… a hearing committee is not bound to apply the principle of progressive discipline. All that is required is consideration of progressive discipline as one of many sentencing factors. The Committee in the within case did that. I am of the view this is as it should be. A hearing committee should not be unnecessarily restricted in performing its duties.

The Court made a number of other interesting points including the following:

  • The practitioner’s “attempt to trivialize his conduct as a mere compliance issue” fails to recognize the importance of cooperation in enabling a regulator to protect the public.
  • Progressive discipline may have less of a role in cases of very serious misconduct, where revocation may be appropriate in a first instance.
  • The principles of mitigation (e.g., admitting the allegations) have less weight in professional misconduct matters than in criminal matters because another party is affected by the conduct (i.e., credibility and reputation of the regulator and the “collective reputation of an accused’s peer group”).
  • When identifying the range of sanctions one must look to the facts of each case. In this case the “penalty is not directly comparable to other penalties because the circumstances here are worse than any available comparators.”
  • When considering the expertise of a tribunal, one looks to the specialized knowledge and experience of the tribunal as a whole and not of the individual members sitting on a particular case.

Ultimately this decision reinforces yet again the degree to which the sanction imposed in a discipline case depends so much upon its particular circumstances.

Following Your Own Policies and Procedures

by Erica Richler
July 11, 2019

Regulators, like many organizations, develop numerous written policies and procedures to guide their staff and committees. Some are borrowed and adapted from those of other organizations. Of course, human nature being what it is, sometimes the actual day-to-day practices vary from the written document. The impact of such a departure arose in the case of Berge v College of Audiologists and Speech-Language Pathologists of Ontario, 2019 ONSC 3351 (http://canlii.ca/t/j0vqs). The practitioner in that case was disciplined for using the title “Doctor” when doing so was prohibited by legislation. She acknowledged her use of the title. Her discipline finding was upheld upon appeal. Afterwards the practitioner again challenged the outcome and obtained a copy of the regulator’s policy and procedures manual which suggested a formal written motion for referrals to discipline. The regulator had not made such a formal motion.

The Court held that a policy and procedure was not the same as a statutory condition precedent. Failure to follow the suggested process in the manual did not affect the referral to discipline. It would have only affected the validity of the legal proceedings if the action actually taken amounted to procedural unfairness. There was no such unfairness or loss of jurisdiction here because it was obvious that a referral to discipline had been made (despite the absence of a formal written motion) and the practitioner knew at all times the content of the allegations. The Court also found that the later discovery of the full manual did not meet the test for fresh evidence and its non-disclosure did not amount to a fraud on the disciplinary tribunal or the Court.

Of course, it is always preferable to ensure that current practices and written policies and procedures remain consistent over time.

Scope of Terms, Conditions and Limitations

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by Rebecca Durcan
July 8, 2019

Disciplinary and other committees often have the authority to impose terms, conditions and limitations (TCLs) on the practice of a practitioner. Little guidance is given as to what sorts of TCLs are appropriate and which would over-reach the regulator’s authority. The case of Khalil v Ontario College of Pharmacists, 2019 ONSC 3738, <http://canlii.ca/t/j11kg> demonstrates that the scope of TCLs are broad.

In that case a pharmacist was found to have participated in significant false billing of the publicly funded drug program. Patient records had also been falsified to support the claims. The finding and most of the sanctions were agreed to including a lengthy suspension of the practitioner’s registration and ongoing monitoring upon reinstatement. However, the practitioner challenged the jurisdiction of the discipline panel to impose TCLs prohibiting him from owning or being a director of a corporation that owned a pharmacy. He argued that the regulation of pharmacies, including ownership and control rules, were addressed in a different statute that “covered the field”. The Court found that the discipline panel’s interpretation of the broad authority to impose TCLs was reasonable and that the other statute did not preclude the TCLs. The Court also accepted the strong public interest purpose of the TCLs on the facts of the case.

So long as any TCLs flow from and are relevant to the findings made by the discipline panel and the public interest is being served by the regulator, the power to impose them is quite broad.

Broad and Flexible Injunction Powers

by Bernie LeBlanc
July 4, 2019

Many regulators have the authority to seek a court order to compel people to comply with the law. Recent decisions by the Courts have upheld the breadth and flexibility of these provisions. For example, in the very recent case of Retirement Homes Regulatory Authority v In Touch Retirement Living for Vegetarians/Vegans Inc., 2019 ONSC 3401, http://canlii.ca/t/j0rm4 the regulator obtained an order against an individual who had been operating a retirement home for years without a licence and in contravention of a number of health and safety orders.

In making the order, the Court affirmed that where a public authority brings an application to enforce its legislation and there has been a clear breach of the legislation “only in exceptional circumstances will the court refuse an injunction to restrain the continued breach”. It is no defence to argue that one is as competent or capable as a person who is registered. The Court concluded that assertions of racial discrimination and of religious convictions amounted to “unconvincing, after-the-fact excuses to justify a history of non-compliance and disregard of the applicable law”. Similarly the Court held that the perspective of a family member of one of the residents, that the regulator should assist the person to comply with the rules rather than shutting down the retirement home, did not amount to an exceptional circumstance.

The Court demonstrated the flexibility of the provision by ordering the person to provide all information it had about the residents to the regulator so that it could make arrangements for their continued care and orderly transfer. Clearly such an ancillary order was required as simply closing the facility abruptly was not a realistic option.

Cooperation with One’s Regulator Must be Prompt

by Julie Maciura
July 3, 2019

All practitioners have an obligation to cooperate with their regulator. At what point does a delay in providing information to the regulator demonstrate a lack of good faith cooperation? In Law Society of Ontario v Diamond, 2019 ONSC 3228, http://canlii.ca/t/j0l82 the Court said that it depends on the circumstances of the case. However, a failure to provide clearly requested documents for a period of four to six months (despite cooperation in providing other documents quickly), where the documents are required to be readily available, could constitute a failure to cooperate in good faith. The Court said:

It is consistent with the purpose of the Rule respecting that duty and the positive obligation it imposes on lawyers, that it is not sufficient for a lawyer to have genuine or honest belief that they are fulfilling their duty to co-operate. The efforts to co-operate must be measured against the objective standard of reasonableness….

To find otherwise would allow a lawyer who has not taken the time or made reasonable efforts to understand and comply with their obligations to be immunized from regulation by the Law Society. This would be contrary to the public interest. As noted in Ghobrial, supra, at para. 9, when it comes to the licensee’s duty to respond to Law Society requests for information completely and promptly “it is essential that the licensee treat the response as a priority….

Similarly, in the duty to co-operate context, a lawyer cannot be found to have acted in good faith to provide a complete and prompt response when the basis for their delay is their ignorance of their professional obligations or their negligence in making the efforts they are required to make to provide the requested information promptly….

There is nothing unreasonable about the Appeal Division’s analysis of the concept of “good faith”. It does not hold lawyers to a standard of perfection. It imposes a duty on them to make every reasonable effort to comply with their obligations. This is consistent with the purpose of the Rule….

This decision reinforces that a practitioner’s duty to cooperate with their regulator means a prompt and complete response to each request.

Can a Practitioner’s Privacy be Protected by the Terms of an Adjournment?

by Erica Richler
June 24, 2019

Mr. Colpitts, a lawyer, was convicted of a serious criminal offence. He appealed the conviction. In the meantime a resulting interim discipline process was adjourned, pending the outcome of the appeal, on the basis that he undertook not to practise the profession. The agreement was confidential. After further investigation the regulator referred Mr. Colpitts to a hearing under another provision. Mr. Colpitts sought judicial review of that decision arguing that the terms of the earlier adjournment precluded any further discipline action until the criminal appeal was heard. Mr. Colpitts asked the court to protect his privacy in the judicial review proceedings on the basis of the assurance of confidentiality he had received in the earlier adjournment matter.

The Nova Scotia Court of Appeal upheld the lower court ruling that regardless of how one interpreted the terms of his adjournment before the Law Society, he had not established the need to have the court proceedings held anonymously: Colpitts v Nova Scotia Barristers’ Society, 2019 NSCA 45, <http://canlii.ca/t/j0pmz>. The Court said:

Courts operate in the public domain, not behind closed doors, unless it is necessary to prevent a serious risk to an important public interest and the salutary effects outweigh the deleterious effects of the requested confidentiality order.

The privacy interests of a practitioner of a profession would not normally meet these criteria.

This case also illustrates how the wording of agreements with practitioners should contemplate other proceedings and not just the one proceeding currently in mind.

Reviewing a Draft of an Adjudicator’s Decision and Reasons

by Julie Maciura
June 21, 2019

Hearing panels have the responsibility to independently make decisions and draft their own reasons. However, courts have permitted some degree of peer review of decisions and reasons by other members of the committee, who were not on the actual hearing panel, so long as safeguards are employed. The strictness of those safeguards was discussed in the decision of Shuttleworth v Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518: http://www.ontariocourts.ca/decisions. In that case the tribunal’s Executive Chair reviewed a draft decision. The issue of deliberative secrecy in the review process did not arise on the facts of the case. However, the review process was described in the evidence and the court had three concerns about it:

  1. The review by the Chair of the tribunal did not appear to be at the option of the adjudicator as legal staff sent it to the Chair without the prior knowledge and consent of the adjudicator.
  2. The Chair had significant power over the reappointment of the adjudicator to the position and thus was in a position of influence.
  3. There were not clear policies and procedures establishing safeguards for the review process including its voluntariness and affirming the adjudicator’s independence.

The decision of the tribunal was set aside.

In light of this ruling, tribunals that permit persons other than the hearing panel members themselves to review draft decisions and reasons should consider reviewing (and applying) policies and procedures that ensure the independence of the tribunal. The Court of Appeal distinguished the role of independent legal counsel (ILC) from that of the Chair of the tribunal as ILC was the servant of the hearing panel. However, even ILC cannot encroach on the independence of the hearing panel.

US Debate About De-Regulation Just Got More Nuanced

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by Rebecca Durcan
June 17, 2019

There has been a noticeable push in the US to de-regulate professions on the basis that regulation restricts access to workers, drives up prices, and is largely unnecessary. In a thoughtful paper, the oversimplification of these arguments is effectively dismantled. The authors acknowledge that some regulatory models may be overly restrictive yet warns against full repeal of many smaller professions where the risk they pose warrants oversight. Further, the authors argue that more effective and directed regulation is required of the professions where the risk of harm to the public is highest. See: Scheffler, Gabriel and Nunn, Ryan, “Occupational Licensing and the Limits of Public Choice Theory”(2019) Faculty Scholarship at Penn Law 2072: https://scholarship.law.upenn.edu/faculty_scholarship/2072.

The conclusion to the paper sums up the arguments nicely:

In sum, the standard public choice narrative about occupational licensing is simultaneously overinclusive and underinclusive. On one hand, it is overinclusive as it suggests that licensing laws are rarely justified, even in the face of plausible alternative explanatory accounts. If policymakers and judges were to take this narrative at face value, they might strike down many licensing laws that benefit the public. Of course, there is a strong case for subjecting licensing laws to greater scrutiny, and there are professions for which the costs of licensure clearly outweigh the benefits. Yet in other cases—perhaps in many cases—the cost-benefit calculus will be less clear.

At the same time, however, the standard public choice narrative is underinclusive as it tends to focus less on dominant professional organizations, such as physicians and lawyers, and more on smaller, lower-wage professions. This is unfortunate, since the former licensing regimes have particularly detrimental consequences for workers and consumers. In addition, the public choice narrative is underinclusive because it has little to say about professions for which there are credible public safety risks of unregulated activity. We argue that there is a strong basis for licensure reform in these professions that, while less radical than complete deregulation, would nonetheless enhance labor market access and benefit consumers.

Federal Trade Marks and Provincially Protected Terms

by Bernie LeBlanc
June 13, 2019

A common method of regulation is to restrict the use of a term or designation to those who have met certain requirements. There has been some uncertainty as to whether federal trade mark rules could be used to circumvent provincial restrictions on the use of terms and designation. The case of Royal Demaria Wines Co. Ltd. v Lieutenant Governor in Council, 2018 ONSC 7525, http://canlii.ca/t/hwn9n goes a long way to dispelling those concerns.

In that case the winery could not obtain approval for its wines, particularly its icewine, because it did not pass the taste test requirements of the provincial regulator. Under the provincial legislation, the term “icewine” was restricted to wines approved by the regulator. The winery obtained a federal trademark as “Canada’s Icewine Specialist” and sought a declaration that it could use that term to describe its products. The Court noted that the principle that federal law is paramount over inconsistent provincial law should be applied with restraint in the spirit of cooperative federalism. The fact that a federal law addressed a topic does not imply that a valid provincial law is excluded from the field. Obtaining a trade mark does not imply a right to use the term or designation when its use was prohibited by provincial law. The Court said:

Both the Act and the Trade-Marks Act have consumer protection purposes that are consistent and compatible with each other. The Act furthers the consumer protection purpose of the Trade-Marks Act by ensuring that when wine manufacturers use certain terms that are also subject to provincial regulation, they are meeting quality standards. This complements, rather than frustrates, the purpose of the federal legislation.

The laws were not inconsistent in the sense that the winery could comply with both of them at the same time.

The case also contains an interesting discussion of the validity of taste tests as a regulatory tool authorized by the enabling statute. The Court also upheld the termination of the winery’s membership with the regulator if it had no wine approved within an 18-month period.

Legal Status of a Regulator’s Policies

by Julie Maciura
June 10, 2019 

The Ontario Court of Appeal has re-affirmed the authority of regulators to make policies setting out the expectations of practitioners in the course of their practice. This is so even where the enabling statute authorized the enactment of standards through regulation. The difference is that a regulation is “law” that is directly enforceable at discipline whereas a policy is only a statement of expectations that may form some evidence of the existing standard of practice but is not automatically enforceable at discipline. Despite it not being formal law, it still needs to be consistent with the Canadian Charter of Rights and Freedoms because, at least in this case, it was implementing a specific government objective.

In the case of Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393, <http://canlii.ca/t/j08wq> the Ontario Court of Appeal accepted the reasoning of the Divisional Court and concluded that the policies appropriately balanced the competing interests of access to health care (especially abortion services and medical assistance in dying) and the religious beliefs of certain physicians. The Court also gave deference to the view of the regulator that simply providing generic information to vulnerable patients of their options was an insufficient balancing of the rights; the regulator was entitled to apply its expertise to require an effective referral to a person or facility that would provide the service.

This case is consistent with other recent cases where the courts give deference to regulators when enacting policies. However, the thorough nature of the Court’s analysis indicates that it is prudent for regulators to conduct a full workup of their policies, especially when rights under the Charter might be affected.

Reviewing the Prior History of a Practitioner in Complaints Matters

by Erica Richler
June 6, 2019

In complaints matters it is common, but not universal, that the prior complaints and discipline history of the practitioner will be reviewed. However, the weight to be placed on that prior history will vary. In College of Physicians and Surgeons of British Columbia v The Health Professions Review Board, 2019 BCSC 539, <http://canlii.ca/t/hzpm3>, the practitioner had been disciplined for sexual misconduct a dozen years previously. The current complaint related to a failure to recognize a clinical condition. The screening committee did not consider the practitioner’s prior history. The Review Board found this failure to be unreasonable and returned the matter for a new decision. The Court disagreed and noted that the screening committee had discretion to consider prior decisions (the governing legislation did not mandate that prior decisions be reviewed):

The College had the discretion to make a finding on the degree of similarity, if any, between Dr. Fletcher’s sexual misconduct in 2003 and clinical conduct matters in 2015. The 2003 Admonition was regarding Dr. Fletcher’s personal relationship with a patient, which is substantially different than the clinical performance issues involved with the Complaint, except in the broadest sense that both events are breaches of professional standards.  The two are not similar in time, type of conduct, context, or the standards breached.

The Court concluded that the Review Board had not assessed whether the screening committee acted reasonably in the circumstances. Rather, the Review Board inappropriately substituted its views for those of the regulator. The Court sent the matter back to the Review Board for a new decision.

New Approach to Vexatious Litigants

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by Rebecca Durcan
May 27, 2019

Litigants who abuse the legal system have been a challenge for many decades. Recently the approach of the courts to dealing with abusive litigants has evolved. A lengthy and fascinating decision on the topic, on a case that relates to professional regulation, is found in Unrau v National Dental Examining Board, 2019 ABQB 283, http://canlii.ca/t/hzztc. In that matter an unsuccessful examination candidate sued many individuals and entities but provided no specifics of what they had done wrong and requested “impossible remedies”. The action was struck out. However, the Court, on its own motion, initiated a “show cause” process as to whether restrictions should be imposed on Mr. Unrau’s ability to litigate generally. After considering the litigation history of Mr. Unrau the Court imposed an order that Mr. Unrau had to obtain permission before continuing or initiating legal actions in Alberta.

The Court noted that the modern approach to abusive litigants was proactive, rather than reactive, including being initiated by the Court itself rather than by frustrated parties. In addition, the Court had an inherent authority to act and was not constrained by the existing vexatious litigant’s legislation. Ongoing restrictions could be imposed where future abusive litigation is anticipated. The restriction, of requiring permission to continue or initiate legal proceedings, was seen as minimally impairing Mr. Unrau’s access to the courts.

This “modern” approach should provide some relief to regulators who experience such challenges. Obviously, this relief is limited as it does not necessarily apply to regulatory proceedings themselves. In addition, regulators often have to initiate legal proceedings on their own to protect the public and a vexatious litigant will have a right to respond.

Proving Inadequate Supervision of Unregistered Persons

BLeBlanc_Webby Bernie LeBlanc
May 21, 2019

Most professions have standards of practice (written or unwritten) about what tasks a practitioner can and cannot delegate to an unregistered assistant. However, it is always difficult to prove whether there was a pattern of inadequate supervision since the amount of supervision not provided is difficult to articulate. In Farkas v The Law Society of Ontario, 2019 ONSC 2028 (CanLII), <http://canlii.ca/t/hzgk2> the issue was whether the lawyer provided sufficient supervision to his unregistered staff in the filling out of refugee claim forms. The practitioner and some of the staff who worked for him testified as to his training of the staff, his personal involvement in meeting with the clients and his reviewing of the forms. However, the forms themselves were generally inadequate according to expert testimony inferring that there must have been minimal practitioner involvement. A former staff person and two clients testified as to almost complete lack of involvement of the practitioner in their cases and that the forms were signed while blank (or almost blank) and were filled in by staff who made up the contents. The Court upheld the credibility findings of the tribunal based on this combination of lay and expert opinion evidence, and because the tribunal provided good reasons for its decision.

On the issue of costs, the Court upheld a large award ($200,000) because the tribunal’s reasons took into account the following factors: “the length of the hearing, the costs requested, the time necessary for preparation, the extensive cross-examination of the appellant, the lack of evidence of financial hardship, and comparable cases that had come before the [regulator].”

Geographical Jurisdiction over a Practitioner’s Conduct

Maciura_Julie_5038by Julie Maciura
May 16, 2019 

Regulators often say that they have jurisdiction over a practitioner for their misconduct regardless of where it occurred. That proposition makes sense. The public is at risk if a practitioner is unethical or incompetent even if in the past that behaviour has only been demonstrated elsewhere. But how far does this proposition extend? Pretty far according to Saplys v Ontario Association of Architects, 2019 ONSC 1679, http://canlii.ca/t/hzs49.

In that case a practitioner was alleged to have, among other things, engaged in work with a client of a former architectural firm on the same building project for a similar purpose. Under the rules in Ontario, practitioners are required to give notice of this retainer to the former architectural firm. He had not done so in this case. One of the projects was in Saskatchewan, where that rule about giving notice to the previous firm did not exist. The Divisional Court of Ontario upheld the finding by the Ontario regulator for breaching the Ontario rule. The Court held that the rule could apply to out-of-province work. It rejected the argument that the jurisdiction over the person should be limited to conduct that involves moral turpitude or that engages a concern about the protection of the public in Ontario.

The Court also held that the discipline tribunal properly excluded expert opinion evidence on the interpretation of the language in the legislation related to the scope of practice of the profession. Expert evidence regarding the usual practice of the profession or an alleged common understanding was not relevant to this issue and would not assist the panel members including those who were not architects. The Court said the expert evidence did not relate to the standard of care of an architect nor did it involve any technical or scientific knowledge that could only be understood by the Committee with the assistance of an expert.

Failing to Comply with a Remedial Order

ERichler_Webby Erica Richler
May 13, 2019

Some regulators have the ability to impose mandatory remediation (e.g., attend for a caution, complete a course) when disposing of a complaint or investigation without first conducting a hearing or making a finding of wrongdoing. In Cartier v College of Nurses of Ontario, 2019 ONSC 2289 (CanLII), <http://canlii.ca/t/hzmhl> the practitioner refused to complete mandatory remediation because she believed that the allegations in the investigation were unfounded. When the regulator disciplined her for not complying with the remedial order, her defence was that there was no basis for the order to have been made in the first place. The tribunal concluded she was obliged to comply with the order.

The Divisional Court agreed. It said that neither the discipline tribunal nor the Court had the jurisdiction to assess whether the screening committee’s mandatory remediation order was well founded. That would be a collateral attack on the decision of the screening committee. If the practitioner disagreed with the mandatory remediation order, she should have sought a review or appeal through the proper channels.

Interestingly, the regulator cross-appealed the discipline decision on the basis that the tribunal did not find that the refusal to comply was dishonourable (it was only unprofessional). The tribunal found that to be dishonourable the conduct had to include “deceit, dishonesty or moral failing”. The regulator argued that conduct could be dishonourable if it “brings shame upon the profession and the Member”. The regulator argued conduct that was “deliberate, knowing or reckless disregard for professional obligations” was also dishonourable. The Divisional Court declined to formulate a definition of the words “dishonourable, disgraceful and unprofessional” and simply found that it was open to the tribunal (having heard the practitioner explain why she did not comply with the order) to conclude that her misguided views were only unprofessional and were not also dishonourable.

Protecting Quality Assurance Information

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by Rebecca Durcan
May 6, 2019

Professional regulators in British Columbia are subject to freedom of information legislation. As a result, individuals can apply to the Information and Privacy Commissioner to review a regulator’s refusal to provide such access. This regime led to a showdown in College of Physicians and Surgeons of British Columbia v British Columbia (Information and Privacy Commissioner), 2019 BCSC 354, <http://canlii.ca/t/hz4n1>.

A component of the quality assurance program for physicians in British Columbia involves multi-source feedback (MSF). Colleagues, coworkers and patients are asked to submit a confidential survey to a third party firm. The third party compiles the survey results in aggregate form and provides a report to both the practitioner and the regulator. This information is scored against results of the practitioners’ peers and, along with information gathered by other components of the quality assurance program (e.g., an analysis of patient charts, a review of office procedures), results in feedback to the practitioner and potentially remedial action.

In this case the practitioner sought access to copies of the actual survey forms. The regulator refused. Recourse was sought before the Information and Privacy Commissioner whose representative ordered that the surveys be provided to the practitioner. The regulator sought judicial review. The Court concluded that a purposeful interpretation of the legislation required that the public interest in the effective quality assurance program took priority. This necessitated that the confidentiality interests of the individuals answering the survey took precedence over the access interests of the practitioner. Otherwise the MSF component of the quality assurance program would be placed in jeopardy by a lack of candid (or any) participation.

The order of the Information and Privacy Commissioner was quashed.

Duty of Candour Exists in Canada

Maciura_Julie_5038by Julie Maciura
May 2, 2019 

One of the more significant developments in the regulation of health professions in the UK is the codification of the duty of candour when an error is discovered: https://www.sml-law.com/wp-content/uploads/2019/03/Greyar234.pdf. Some professions in Canada have similar obligations. In Law Society of Alberta v Schuster, 2019 ABCA 111, <http://canlii.ca/t/hzbjj> the Court upheld as reasonable the discipline finding against a lawyer who failed to inform his client of an error where $300,000 was deposited into the wrong trust account and was not immediately retrievable. The Court agreed that this error was material and that, even though the client expressed the desire not to be kept informed of all the operational details of the project, this error should have been disclosed.

The Court also found that there was no unfairness in the discipline tribunal taking a different view of the nature of the conduct than that expressed in the original complaint and investigation report.

Complaints Against Adjudicators

ERichler_Webby Erica Richler
April 29, 2019

Some practitioners act as adjudicators. What is the role of regulatory bodies when dealing with complaints about practitioners acting in their capacity as an adjudicator? This issue was touched upon, but not fully addressed, in Cuhaci v College of Social Workers (Ontario), 2019 ONSC 1801, <http://canlii.ca/t/hz74q>. Ms. Cuhaci, a social worker, arbitrated a custody dispute. Afterwards, a complaint was made about her conduct. While the screening committee initially indicated it had no role in respect of the actual adjudication, it went on to make some comments suggesting that it may have considered her actions in that capacity. Ultimately the screening committee issued advice about the clarity of the practitioner’s communications, which advice was not confined to the adjudication decision. The practitioner sought judicial review.

The Court held that the application was moot:

The applicant still has a license to practice as a social worker, and there are no conditions or restrictions on her license. She faces no professional jeopardy as a result of the outcome of this complaint.

The Court almost exercised its discretion to hear the matter anyway to clarify the jurisdictional issue, but declined to do so, in part because:

… counsel for the College conceded that the Complaints Committee may have overstepped in this case, and that the College does not have jurisdiction to investigate the decision making process of a social worker engaged in the functions of an arbitrator in the context of family law proceedings.  She argued that there may be circumstances that would warrant the College’s intervention, if for example the member had an intimate relationship with one of the parties, but she agreed that the decision making process and the decision itself do not fall within the College’s jurisdiction.

Interestingly, there was also a procedural issue in that the screening committee made its decision without disclosing all of the complainant’s submissions to the practitioner. However, the Court was satisfied that the regulator cured the concern, on the facts of this case at least, by providing the materials after reaching its decision, receiving further submissions from the practitioner, and then rendering an addendum to its decision. In any event, the Court also found this issue to be moot.

Time Might Eventually Be Enough

BLeBlanc_Webby Bernie LeBlanc
April 23, 2019

How long should a major breach of trust of a sexual nature with a minor exclude someone from practising in a different profession with little exposure to minors? That was the issue in CS v Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONSC 1652, <http://canlii.ca/t/hz16c>. The practitioner applied for registration as a real estate salesperson. However, she had been a teacher and had participated in a long-term sexual relationship with a former student (who became her foster child) for which she was found criminally responsible. In addition, her status as teacher was revoked. The Registrar (and the appeal tribunal) found that this breach of trust was so serious that it was reasonable to assume she might not practise the real estate profession with honesty and integrity.

The Divisional Court upheld the finding:

The appellant committed a serious set of criminal acts involving violations of trust in the fairly recent past. She was not dissuaded by the school principal, her CAS training, or her own moral compass, from abusing someone to whom she was duty-bound and who she undertook to protect.

However, the Court indicated that it was unreasonable to expect the applicant to have self-reported her criminal conduct at the time; concealment was a natural aspect of the criminal conduct itself. In addition, the Court indicated that the passage of time may eventually be sufficient to permit registration as a real estate salesperson:

Almost nine years have now passed since the victim terminated his relationship with the appellant. I agree with the LAT [Licence Appeal Tribunal] that the reasonableness of relying upon past breaches of trust to ground an inference concerning future risks to the public may well be affected by the passage of time.

Arguably, this contrasts with the perspective that the passage of time is not, in itself, sufficient in the case (albeit with different facts) of: Chen v Alcohol and Gaming Commission of Ontario, 2019 ONSC 1680 (CanLII), <http://canlii.ca/t/hz16b>.

Time and Stability Is Not Enough

BLeBlanc_Webby Bernie LeBlanc
April 23, 2019

Seven years ago Ms. Chen was excluded from all gaming sites by the Alcohol and Gaming Commission for engaging in loan sharking: Chen v Alcohol and Gaming Commission of Ontario, 2019 ONSC 1680, <http://canlii.ca/t/hz16b>. The Registrar declined to lift the exclusion order despite the passage of time and a stable employment and family history during the past seven years. The Divisional Court upheld the Registrar’s decision concluding that it was “was reasonable, given the gravity of the past conduct and the applicant’s failure to provide adequate information showing she appreciated the gravity of the past conduct and demonstrated there was not a risk of reoccurrence”. The Court also found that the paper reinstatement process was procedurally fair given that Ms. Chen had a full opportunity to present her case and that meaningful reasons had been given.

Time and stability were insufficient on their own to warrant reinstatement, on these facts at least. However, in other cases the courts hold out the promise that eventually the passage of time might be sufficient: CS v Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONSC 1652 (CanLII), <http://canlii.ca/t/hz16c>.

The Cayton Report

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by Rebecca Durcan
April 15, 2019

The Cayton report released on April 11th contains a detailed review of the performance of the College of Dental Surgeons of British Columbia. It identified serious deficiencies in the governance of the regulator. It also concluded that there were gaps in the regulatory performance of the regulator in eleven areas. It commented on a number of areas for improvement in its external relationships with various groups. It concluded that the regulator was not focussed exclusively on its public interest mandate, particularly in the area of public safety.

The report makes a number of sweeping short term and long term proposals for regulatory reform for all health professional regulators. These include: a completely appointed Board of twelve people, half of whom are public members; merging regulators; separating out the adjudication of discipline matters and the operation of a single public register; and the creation of an oversight agency that would review and report on the regulatory performance of the regulators.

This report is broadly consistent with recent developments in British Columbia, and other provinces including Ontario and Nova Scotia and the regulatory regime that has existed in Quebec for many years. More to come.

The Cayton report can be found at: https://www2.gov.bc.ca/assets/gov/health/practitioner-pro/professional-regulation/cayton-report-college-of-dental-surgeons-2018.pdf.

Incapacity Incongruity

Maciura_Julie_5038by Julie Maciura
April 8, 2019 

Regulators encourage practitioners with a disability to participate in assessment and treatment with the hope that the practitioner can remain in practice. Correspondingly, practitioners with health issues often cooperate with their regulator in their assessment and treatment in the anticipation that they will remain in practice. However, what happens when the assessment and treatment indicates to the regulator that the practitioner may not be able to practise safely and the practitioner disagrees? While regulators try to be as accommodating as possible (not only because it is a human rights obligation, but also to encourage participation in remedial programs), client safety has to come first.

In Collett v College of Physicians & Surgeons of Alberta, 2019 ABCA 86 (CanLII), <http://canlii.ca/t/hxvvm> a physician, on his own volition, attended a neuropsychological assessment that identified some cognitive concerns. The physician declined to pursue further investigation into the concerns and refused repeated requests to cease practising until the cognitive concerns could be addressed. The regulator suspended the physician’s ability to practise until he could demonstrate that the cognitive concerns would not interfere with it. The physician applied to the courts to lift his suspension. The Court refused both on the basis that no error appeared to have been made in the process leading up to the suspension and because the public interest in allowing the regulator to fulfill its mandate outweighed the harm to the physician.

Referencing Absolute and Conditional Discharges in the Public Register

ERichler_Webby Erica Richler
April 4, 2019

Some regulators publish information about criminal findings against their members in a public register so that the public has access to this information. In fact, this is now mandatory for the regulated health professions in Ontario.

A recent Ontario Court of Appeal case raises questions about whether the Criminal Records Act imposes any restrictions on a regulator in publishing absolute or conditional discharges in their public register (a discharge is an outcome in a criminal proceeding where the court finds the defendant guilty of a criminal offence, but there is no resulting conviction). The Criminal Records Act sets out special rules that apply to absolute and conditional discharges. One year after receiving an absolute discharge and three years after a conditional discharge, the matters are excluded from the person’s criminal record.

In the recent case of R v Montesano, 2019 ONCA 194, <http://canlii.ca/t/hxzc3>, the Court of Appeal concluded that the Criminal Records Act prevented the Crown in a spousal assault case from advising the sentencing judge that the defendant had previously received an absolute discharge for an earlier finding of spousal assault. The Court held that the Criminal Records Act prevented any disclosure of that absolute discharge (without prior approval by the Minister). The Court went on to say that the Crown could refer to the fact of the previous assault, but not the fact of the discharge.

This decision does not apply directly to the question of whether provincial regulators can publish absolute discharges on their registers. The brief Court of Appeal reasons suggest broad application of the Criminal Records Act. However, posting information on a regulator’s public register about a regulated professional in the public interest is arguably a very different context than a sentencing hearing in the criminal justice system. And it would seem puzzling if a regulator could post the more prejudicial information (i.e., the criminal finding) in a public register but could not include the more mitigating information (i.e., that a court felt the circumstances did not require a punishment and ordered a discharge). Following this case, regulators may face challenges from their members about the proper use of information about absolute and conditional discharges.

Regulators Have No Vicarious Liability for Actions of Practitioners

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by Rebecca Durcan
April 1, 2019

The Courts have affirmed yet again that regulators are not vicariously liable for the conduct of the people they regulate. Vicarious liability is legal responsibility for the damage caused by a third party. An example would be that an employer might be vicariously liable for the harm done by its employee arising from the employee’s performance of work duties. Vicarious liability is often accompanied by a claim that the third party breached a duty to properly supervise the person causing the harm.

In Yashcheshen v College of Physicians and Surgeons of Saskatchewan, 2019 SKQB 43, <http://canlii.ca/t/hxq6r> a self-represented litigant sued both a physician (Dr. Bowen) and the physician’s regulator for the denial of insurance benefits because of an unsupportive medical report. In respect of the regulator, Ms. Yashcheshen claimed that the regulator’s handling of her complaint against the physician amounted to “systematic negligence, which occurs within their complaints process to purposefully evade responsibility for their member”.

On the issue of vicarious liability, the Court said:

There must be some sort of nexus or relationship between Dr. Bowen and the College in order to meet the test for vicarious liability and such a relationship simply does not exist. Dr. Bowen is not an employee of the College. He is a member of the College, as a statutory body, by virtue of being a physician in Saskatchewan. The College is Dr. Bowen’s governing professional body but that relationship does not create vicarious liability on the part of the College in the circumstances of this case.

This decision is consistent with past decisions on the issue.

Removing Information from the Public Register

BLeBlanc_Webby Bernie LeBlanc
March 26, 2019

There is increasing pressure on regulators to provide more information about practitioners who have engaged in behaviour of concern. As a result there is increasing reluctance by regulators to remove information from the public register once it is posted. Practitioners, however, often feel it is unfair that public register information remains public permanently. Those issues came to a head in De Santis v Ontario College of Teachers, 2019 ONSC 1344, http://canlii.ca/t/hxqb8.

In 2014 Ms. De Santis was disciplined and, following a joint submission, was reprimanded and required to engage in remedial activities. She completed the remedial activities at which point the details of that term, condition and limitation was removed from the public register. She asked for the reference to the reprimand be removed as well. The Registrar declined the request because the by-laws indicated removal would only occur if a reprimand was the only sanction ordered. Ms. De Santis sought judicial review.

The Court upheld the Registrar’s decision. The wording of the by-law was clear. More than a reprimand had been ordered. The removal of the specifics of the remedial program from the public register did not alter the nature of the original order. The Court declined to evaluate the public policy rationale (or reasonableness) of the by-law.

Criteria for Measuring a Successful Regulator

Maciura_Julie_5038by Julie Maciura
March 18, 2019 

Last month the Professional Standards Authority of the UK published an update of the criteria it uses to assess the performance of the regulators it oversees. There are eighteen specific standards listed. Most of the standards are what one would expect including:

  • Complete transparency about the regulator’s activities and processes
  • Professional standards are published and regularly reviewed
  • Regular guidance provided to the profession including on emerging risks
  • Up to date educational requirement for registration
  • An accurate and current public register
  • Fair, efficient and proportional registration process
  • Ensuring that practitioners continue to be fit to practise (i.e., quality assurance)
  • Anyone must be able to raise a concern with the regulator about a practitioner
  • Fair and proportionate disciplinary investigations, screening and hearings that prioritize client service and safety, and
  • Prioritizing cases involving serious risk to safety including use of interim orders.

Some of the standards reflect values that may be of more recent origin or may be seen as innovative compared to views about successful professional regulation in previous decades:

  • Clear purposes and continuous learning applied to every regulatory activity
  • Recognizing the diversity of practitioners and clients and ensuring there are no inappropriate or discriminatory barriers
  • Reporting on the regulator’s performance and demonstrated learning from any public findings related to the regulator
  • Enforcement against unauthorized practice and use of titles is proportional and risk-based (i.e., not protective of the profession) and
  • Supporting all participants in a complaint to participate effectively.

The points listed above are only a summary. Each standard is loaded with meaning. The full document may be seen at: https://www.professionalstandards.org.uk/docs/default-source/publications/standards/standards-of-good-regulation-2018-revised.pdf?sfvrsn=ce597520_4

Staying Discipline Orders During an Appeal

ERichler_Webby Erica Richler
March 11, 2019

The question of whether a discipline order is stayed (or halted) when there is an appeal to court depends on the applicable statute. In Abrametz v The Law Society of Saskatchewan, 2019 SKCA 21, <http://canlii.ca/t/hxp2j> the legislation provided that the disbarment of the practitioner took effect immediately unless the court ordered a stay. Mr. Abrametz was disbarred for conduct related to his management of trust accounts. Mr. Abrametz requested a stay of the order until the appeal was heard, with conditions of ongoing supervision. The Law Society opposed the request and argued that the Court had no jurisdiction to impose conditions (it could only impose a stay or not).

The Court granted a stay and found that the authority to impose a stay included the authority to impose terms and conditions.

The usual three-part test applied to the motion: (1) whether the appeal raised serious issues; (2) whether the practitioner would suffer irreparable harm if the stay was not granted; and (3) whether the balance of convenience favoured granting a stay. Mr. Abrametz raised some arguable issues. The Court indicated that common sense indicated that he would suffer irreparable harm by way of significant economic hardship in having to close his practice and then rebuild it up again if he was successful on the appeal. In addition, his clients would experience delays and additional costs in having to locate another lawyer mid-way through their cases. The Court considered the public interest in commencing the sanction now that a finding was made and maintaining public confidence in the profession. However, those considerations were outweighed by the harm to the practitioner on the facts of this case. On this balance of convenience assessment, the Court was particularly influenced by the fact that the public would be protected by the supervision terms and conditions. They were similar to those imposed on the practitioner for the almost six years while the investigation and hearing took place. Also, the hearing of the appeal was scheduled on an extremely timely basis.

The Court indicated that stay decisions would depend very much on the facts of the case.

Limits to Accommodating Self-Represented Practitioners

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by Rebecca Durcan
March 4, 2019

Courts are, justifiably, quite concerned about the plight of litigants appearing at hearings without legal assistance. Courts have imposed a number of duties on tribunals including an ongoing duty to explain the process and ensure that the party is able to fully participate. Tribunals even have some obligation to raise legal concerns that a party may not appreciate. However, Courts do not view these accommodations as unlimited.

For example, in Hill v College of Physicians and Surgeons of Ontario, 2018 ONSC 5833, <http://canlii.ca/t/hvd70> the physician was without legal counsel for the hearing itself. The Court upheld the decision of the hearing panel to exclude expert evidence tendered by the physician where the expert witness was not available for cross-examination. The Court also supported the panel’s decision to exclude irrelevant good character evidence of the physician at the hearing of finding. Additionally, the Court found that there was no duty of the panel to then consider the previously excluded (but perhaps now relevant) evidence on the issue of penalty when the physician did not attend the penalty portion of the hearing. The panel was commended for providing many procedural accommodations (including multiple adjournments), but was not required to accommodate the physician on substantive law.

Public Interest Litigation Against Investigators

BLeBlanc_Webby Bernie LeBlanc
February 25, 2019

Can the courts be used to effect change in the way that investigators conduct their inquiries? That issue is squarely raised in Williams v London Police Services Board, 2019 ONSC 227, <http://canlii.ca/t/hwxbr>. Representative plaintiffs and a well-known legal aid clinic that focusses on addressing violence against women sued a municipal police service for systematically declaring complaints of sexual assault as unfounded “based on sexual stereotypes and myths about sexual assault and sexual assault complainants”. The plaintiffs sought a declaration that the rights of sexual assault complaints under s. 15 of the Canadian Charter of Rights and Freedom were infringed, implementing a “Court appointed external review panel to review all LPS sexual assault cases that have been closed as “unfounded”” and damages. The police service moved to strike out the claim on various grounds including that claims were frivolous, that the legal aid clinic did not have standing to be a party and that the relief sought was not available in law.

The Court rejected those arguments and allowed the claim to continue. The Court held that it was not clear and certain the claim would fail and that it should be allowed to proceed. The Court did require some changes to the pleadings, but nothing that altered the ability of the action to proceed.

Regulators should be aware that claims for systemic discrimination against investigators are possible in Canada.

Evidence in Judicial Review of Examination Appeals

Maciura_Julie_5038by Julie Maciura
February 19, 2019 

Wan v The National Dental Examining Board of Canada, 2019 BCSC 32 (CanLII), <http://canlii.ca/t/hwz7b> the Examining Board was permitted to file an affidavit from an expert explaining the process. The applicant objected arguing that the evidence offended the fresh evidence rule but the Court admitted the evidence finding that it really was appropriate to the context:

In contrast to the objectionable fresh evidence in Air Canada [2018 BCCA 387], I find that the evidence the petitioner identifies as objectionable in the Gerrow Affidavit is not fresh evidence. It does not seek to adduce evidence of facts that were not before the tribunal, nor does it somehow reconstruct or step outside of the bounds of the Decision. Rather, in general, it is evidence that relates to the policies and procedures employed by this specialized tribunal and which would have been known to the Appeals Committee members. It permissibly summarizes, explains and consolidates some of the more technical information contained in the documents that make up the record; provides general background information that assists me in understanding the history and nature of the case; contains a written description of the physical evidence that is not before me but that forms part of the record before the Appeals Committee; and provides information on matters that are of common understanding to those in the dentistry field and the foundation from which the Appeals Committee approaches an appeal. Overall, the evidence contained within the Gerrow Affidavit helps educate me on matters that are within the specialized expertise of the Appeals Committee and which form the common understanding of those who operate in this highly particular field.

Examining appeal bodies can rely on this decision to provide guidance as to what should and should not be included in their affidavits on judicial review. Prudent examination bodies might include much of this information as part of their record when processing the examination in the first place (e.g., by notifying applicants of the background documents) so no affidavit is necessary in a future proceeding.

Holding Out

ERichler_Webby Erica Richler
February 11, 2019

Unregistered persons can be creative in the use of language to describe themselves and their services. When there is a risk that members of the public might confuse those unregistered persons with regulated practitioners, the courts’ powers can be invoked. That occurred in the case of the College of Physicians and Surgeons Of New Brunswick v Anhorn, 2018 NBQB 246 (CanLII), <http://canlii.ca/t/hww05>. In New Brunswick, the naturopathy profession is not regulated. The issue in the case was whether naturopaths using phrases like “medically trained” and “practice of family medicine” to describe themselves or their naturopathy practice could reasonably be viewed as holding themselves out as physicians. The Court was of the view that they were illegally holding out and that the phrases they used “are misleading because that assumes that people understand what exactly is naturopathy”.

This case should be read with some caution, at least in the five jurisdictions in Canada (including Ontario) where naturopaths are regulated and are subject to various requirements when describing themselves and their practice. The Anhorn case is a lower court decision from another province where naturopathy is not regulated. However, the case suggests that whether there is “holding out” should be assessed from the perspective of a consumer who is not familiar with the professions in issue.

Staying out of Civil Proceedings

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by Rebecca Durcan
February 7, 2019

Most regulators have a statutory confidentiality provision. Some, but not all, of those provisions protect regulators from having to produce information or act as a witness in civil disputes: F. (M.) v Dr. Sutherland, 2000 CanLII 5761 (ON CA), <http://canlii.ca/t/1cwt9>. A recent decision addressed the right of a claimant to obtain a Norwich order providing access to information about security trades to ascertain whether other, unknown, persons had manipulated the market: Harrington Global Opportunities Fund S.A.R.L. v Investment Industry Regulatory Organization of Canada, 2018 ONSC 7739 (CanLII), <http://canlii.ca/t/hwqz7>. The regulator, IIROC, did not have a statutory provision protecting it from such involvement. However, even without such a provision, the court still refused to grant the disclosure order.  This decision articulates the rationale as to why such confidentiality provisions (or concepts) exist.

The Court refused to issue the disclosure order primarily on the basis that IIROC’s regulatory role required it to process complaints and, where appropriate, take regulatory action. Such a role did not create a “proximity” to the claimant such that it should be required to assist the claimant in their private claim. IIROC’s decision to maintain confidentiality about the evidence gathered in its investigations resulted from its regulatory role, respect of individuals’ privacy and desire to maintain access to sources of information for future investigations. In some respects, the claimant’s application was a collateral attack against the decision of IIROC to not proceed with the claimant’s complaint.

The Court also held that the regulator’s interest in preserving its investigative processes outweighed the claimant’s interest in pursuing its civil claims for damages.

Discretion to Refuse to Process Complaints

BLeBlanc_Webby Bernie LeBlanc
February 4, 2019

Policy makers are torn about how much discretion to give regulators to refuse to process complaints that are outside of the regulator’s jurisdiction or are otherwise without merit. The competing values, on the side of minimal discretion, include ensuring that the complaints process is available to all, that serious issues are not missed on a preliminary screening, and that the process be held accountable. On the other hand there is the value of ensuring that regulators are permitted to focus their resources on serious concerns and not waste them on matters that are unlikely to go anywhere.

Some statutes require all complaints to be formally investigated and determined. Others require any decision not to proceed with the matter to be handled by a statutory committee that has public representation. Some Acts permit staff to decline to process a complaint. Legislation also varies as to whether there is an external review of decisions not to process a complaint.

An example of a complaints process where maximum flexibility is given to the regulatory body is found at: Fabrikant v Law Society of Ontario, 2018 ONSC 7393, <http://canlii.ca/t/hwj6n>. Dr. Fabrikant made a complaint against a lawyer who advised a human rights commission. The basis of the complaint was that Dr. Fabrikant was not given access to the lawyer’s advice to the commission. The lawyer’s regulator took no action on the complaint because it related to a legal dispute and not the professionalism of the lawyer’s conduct and was, therefore, outside of the jurisdiction of the regulator to address.

The Divisional Court held that the enabling legislation gave the regulator discretion as to how the complaints were to be screened. Under the legislation it was open for a staff person at the regulatory body to decide not to proceed with a complaint that was outside of the mandate of the regulator. In addition, the complaints review process was only available for disposition of complaints on their merits and was not available for complaints screened out by staff on a preliminary basis for not being within the mandate of the regulator.

The facts of this case might illustrate why policy makers gave such a broad discretion to this regulator to decline to process complaints.

Not Vague and Unenforceable

Maciura_Julie_5038by Julie Maciura
January 28, 2019 

In Francis v Newfoundland and Labrador Pharmacy Board, 2018 NLSC 248, http://canlii.ca/t/hwgdr a group of pharmacists tried a second time to challenge the validity of provisions in the regulator’s standards of practice and by-laws. Their challenge was that the provisions dealing with the following were too vague and were unenforceable:

  • A requirement for pharmacies to be connected to a provincial database;
  • A requirement to have equipment to scan documents;
  • A requirement for pharmacists to have a patient consultation area;
  • The authority for the regulator to issue a conditional licence as one of its registration options;
  • Adding the charging of excessive fees to the definition of professional misconduct; and
  • Adding practising in a conflict of interest to the definition of professional misconduct.

In a previous application for an interim injunction to prevent the provisions from taking effect, a court had upheld each of these provisions either on their merits or because the issue was moot for the practitioners bringing the proceeding: Francis v Newfoundland and Labrador Pharmacy Board, 2016 CanLII 97222 (NL SC), <http://canlii.ca/t/gx7bn>. In the present case the Court held that the practitioners could not re-litigate the issues in a different proceeding.

Mistakes vs. Misconduct

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by Rebecca Durcan
January 22, 2019

It is generally accepted that not all mistakes by practitioners constitute professional misconduct. Sometimes drawing that line is difficult. In other cases it is relatively easy. In Strother v Law Society of British Columbia, 2018 BCCA 481, http://canlii.ca/t/hwqtx, a lawyer advised Client A that their business model was no longer possible under income tax law. Client A wound down the business as a result of the lawyer’s advice. Later Client B (a competitor of Client A) pointed out to the lawyer another approach that might make the business model feasible. The lawyer changed his opinion and went into business with Client B. Client A was not informed of either the change of opinion or of the lawyer’s participating in a competitor’s business.

The lawyer argued that he was honestly of the view that his fiduciary obligations to Client A had ended and that this mistake should not constitute professional misconduct. The lawyer suggested the line between mistakes and misconduct should be articulated as follows:

… professional misconduct is conduct that no reasonable and well-informed lawyer acting with care and deliberation would fail to recognize as wrong; that is, conduct on which there could be no serious dispute among reasonable and well-informed lawyers that it was a breach of professional obligations.

The Court indicated that this formulation was too restrictive. The Court described the actual test as follows:

However, in my view, it is important to state with clarity the accepted test for professional misconduct. The test is that articulated by the Law Society in Martin and Lawyer 12: a hearing panel will consider whether the lawyer’s conduct was a marked departure from the conduct expected of lawyers. Put another way, the lawyer’s conduct must display culpability of a gross or aggravated nature, rather than a mere failure to exercise ordinary care. While I agree with Mr. Strother that not every breach of professional obligations constitutes professional misconduct, the operationalized definition he proposes adds a different focus.

The Court also said that comments by judges in a civil case as to whether the conduct of the lawyer was unlawful were irrelevant to the issue of whether his conduct was unethical or unprofessional.

Given the finding of the hearing panel that the lawyer had failed to make disclosure to Client A because of his own financial interests, the finding that the lawyer had a conflict of interest was upheld. So was the five month suspension order.

Air of Reality

ERichler_Webby Erica Richler
January 17, 2019

A case that regulators have been following closely seems to have been resolved in favour of the regulator. In Fitzpatrick v College of Physical Therapists of Alberta, 2018 ABQB 989, <http://canlii.ca/t/hwghw> a practitioner who had been disciplined sued the regulator for, among other things, maliciously expanding the scope of the investigation beyond the original complaint and acting in a conflict of interest.

The Court held that the limitation period for such an action began to run when the initial finding of misconduct was made against the practitioner (and not when the sanctioning process or the appeals were completed). Thus the proceeding was initiated out of time.

More interesting for regulators was the Court’s conclusion that when an initial investigation identifies concerns beyond the original complaint, it is appropriate for the regulator to investigate those concerns as well (through proper channels). Doing so is not evidence of malice or bad faith. In addition, a poor choice of words (i.e., calling a suspicious referral system an investigation of “kickbacks”) does not found a claim of bad faith.

Finally the Court concluded that the fact that a tribunal member may have been interested in buying the practice of the practitioner years before the events in issue does not amount to a conflict of interest, at least where no objection on the basis of appearance of bias is made at the hearing.

The Court concluded that the claim had no air of reality and it was summarily dismissed.

Searching for Professionals on Google

Danson_Natasha_6123by Natasha Danson[1]
January 10, 2019

Health regulators have long faced criticism that they lack transparency and that they hide information about their members from the public. This criticism is often frustrating for regulators, particularly because a regulator’s governing statute often prevents them from disclosing the information.

However, every enabling statute allows regulators to share at least some information with the public, and one of the primary ways that regulators achieve transparency is through their public registers. As most readers of this newsletter know, a regulator’s public register is typically a searchable database found on the regulator’s website that contains the names of all members (and sometimes former members) along with specific information about each member, including whether the member has been subject to disciplinary or other regulatory action. The public register is a great tool that can be used to uncover information about regulated professionals, but, unfortunately, many members of the public do not know that such registers exist, let alone how to access them. Some regulators even require that users answer skill-testing questions to verify that they are not “bots”, which arguably makes the information contained on the registers less accessible.

In our experience, when the average computer-savvy person wants to screen a health care professional, they turn to a search engine such as Google. Because of that, we wanted to see if a professional’s register entry (or any information from the regulator) would appear in Google search results. We therefore conducted our own informal survey where we Googled the names of members of the 26 health care regulators in Ontario under the Regulated Health Professions Act, 1991 to see what information was coming up on the Google search engine.

Here is what we found:

  • No discipline: When we Googled the names of health care professionals who were not subject to discipline or another form of public regulatory action (such as a caution or a specified continuing education or remedial program), there were very few search results from regulators’ websites; 20 out of the 26 regulators (77%) did not appear in Google. This may help explain why many members of the public do not know about the existence of regulators’ public registers.
  • Current discipline: We next Googled the names of health care professionals who were currently subject to discipline proceedings. Note that two of the 26 regulators surveyed did not have any members who were currently subject to disciplinary proceedings at the time we conducted this search. Of the remaining 24 regulators, results from 19 regulators (79%) came up on Google when we searched for the names of members currently facing disciplinary action.
  • Past discipline: Results from 16 of the 26 health regulators (62%) appeared in Google for members who had been subject to discipline in the past. For five of the 26 regulators (19%), a member subject to past disciplinary proceedings did not consistently show up in Google, and there were no results that appeared from the remaining five health regulators when we searched their members who had previously been subject to disciplinary proceedings.
  • Other outcomes: We also Googled members who had been subject to other public regulatory outcomes (e.g. cautions, specified continuing education or remedial programs or undertakings). These outcomes were harder to search, and for eight of the 26 regulators we were unable to conduct the search because we did not know the names of members to Google. Of the 18 professions we did search, only four regulators showed those outcomes in Google (22%). No results showed up in Google for the other 14 regulators (78%).

These results suggest that potentially valuable information is not appearing on the platform that is often used by the public to choose health care professionals and to check if there are any red flags. Anecdotally, we understand that many regulators may not want public register results to be searchable on Google because of concerns related to member privacy and the resultant spam mail that members may receive. However, anything that is posted on a regulator’s public register is, by definition, public. Regulators may want to consider doing more to make sure that public information is accessible to the public in a meaningful and practical way, including by ensuring that the information is searchable on Google.

[1] Thank you to Laura Sumner for her tremendous assistance with the research supporting this article and with the article itself.

[This article was also featured in the December 2018 newsletter of the Canadian Network of Agencies for Regulation.]

Particulars of Bad Faith

BLeBlanc_Webby Bernie LeBlanc
January 8, 2019

As a general rule, regulators can only be sued for damages if they act in bad faith. When a person sues a regulator they must give particulars of the bad faith that they allege occurred. Many actions against regulators are dismissed where the bad faith is pleaded too baldly. In Robson v The Law Society of Upper Canada, 2018 ONCA 944, <http://canlii.ca/t/hw70d> the Ontario Court of Appeal allowed an action for malicious prosecution and misfeasance in public office to proceed against the regulator and some of its employees. In this case, the practitioner claimed the investigation and prosecution had been conducted in bad faith in that the regulator had deliberately cherry-picked comments made by a court that the regulator knew to be false, and had deliberately avoided interviewing witnesses during the investigation that would be favourable to the practitioner in order to retaliate against the practitioner who was a thorn in their side. The Court accepted that sufficient particulars had been alleged against the regulator. The proceeding was permitted to proceed to the discovery stage. The Court emphasized that it was making no evaluation of whether these allegations were true; that assessment would occur later in the process.

Refusal of an Adjournment Upheld

Maciura_Julie_5038by Julie Maciura
January 3, 2019 

Discipline tribunals often struggle when a practitioner requests an adjournment to obtain legal counsel. The right to have representation at a hearing affecting one’s livelihood is given significant weight. Also, courts review procedural fairness issues, such as refusing an adjournment request, on a correctness (not reasonableness) basis. However, in Spaetgens v Alberta (Securities Commission), 2018 ABCA 410, <http://canlii.ca/t/hwd8w> Alberta’s highest court upheld a refusal to grant an adjournment to obtain legal counsel (previous legal counsel withdrawing two months before the hearing) because:

  • There was insufficient evidence that the practitioner was diligently searching for new counsel;
  • There was no corroboration that a prospective lawyer would act for the practitioner if an adjournment was granted;
  • The practitioner raised financial problems in retaining a lawyer but provided no explanation as to how those issues would be resolved so that he would, in fact, be able to obtain legal counsel.

In the circumstances the Court concluded that the tribunal was correct in concluding that what was really being requested was an indefinite adjournment. The circumstances included the failure to propose alternative hearing dates, the failure to take steps to obtain the disclosure from a third party that the practitioner said he needed, and that the prosecution witnesses would be prejudiced by the late request for an adjournment, particularly since one of them was in poor health.

The Court did, however, reduce the administrative financial penalty by 75% because the amount was based on a comparison to one when the practitioner was working. A financial penalty for an unemployed person should be less than for an employed person. The length of the trading ban was also reduced to reflect the outcome in other similar cases.

When Acting as a Licensee

ERichler_Webby Erica Richler
December 31, 2018

A regulator for horse racing imposed an interim suspension on a jockey after he had made threatening and abusive comments to another jockey, to a horse owner, and to racing officials. Subsequently he engaged in a destructive rampage at the home of the horse owner (who had reported the concerns to the officials), which resulted in criminal charges. The appeal tribunal set aside the interim suspension and the resulting notice of proposal to revoke the jockey’s licence on the basis that the conduct did not involve his acting as a jockey (i.e., on the race track).

The Divisional Court disagreed and restored the interim suspension: Registrar of Alcohol, Gaming and Racing v. MacLaren, 2018 ONSC 6576, <http://canlii.ca/t/hw31g>. The test for the tribunal in this case was whether there were “reasonable grounds to believe that, when acting as a licensee, the applicant will not act in accordance with the law, or with integrity, honesty, or in the public interest, having regard to the past conduct of the applicant.” The Court said:

Acting as a licensee under the Act encompasses more than just one’s activities while engaged in a race; it also involves having a relationship with the regulatory agency charged with enforcing the Act that does not undermine that body’s ability to fulfill its important public mandate.

The Court also said:

… what the Tribunal does not acknowledge or deal with is the connection between the Respondent’s criminal conduct and the Respondent’s responsibility as a licensee to allow himself to be governed by his regulatory body. This is important because the conduct was directly related to the disciplinary action that the racing officials had taken against the Respondent. It occurred in reaction to the suspension and it was directed at another licensee whose complaint had led to that disciplinary action. This raises a real question about the Respondent’s governability as a licensee.

The matter was sent back for a rehearing before a differently constituted panel. This case illustrates how an individual’s governability is relevant to their practice of a profession.

Two Recent Reminders of the Importance of Effective Governance

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by Darrel Pink – Guest Contributor
December 28, 2018

Last week two significant reports addressing ineffective board governance were released. Both should concern professional regulators as they outline issues and challenges which many regulators may not be addressing. The Auditor General of Nova Scotia reviewed the IWK Health Centre and found Board oversight of spending was wanting, especially relating to reimbursement of travel and related expenses – https://oag-ns.ca/sites/default/files/publications/Ch2Dec2018.pdf.  The AG’s review arose because of findings that a former CEO and CFO had followed improper expense account procedures, which have resulted in criminal charges being laid.

The second report by Sen. Murray Sinclair  dealt with the Police Services Board in Thunder Bay – https://slasto-tsapno.gov.on.ca/ocpc-ccop. The origin of this report is well known as it relates to allegations of racism in the Thunder Bay Police Force.

Both are worth reading to understand current thinking about the role a board of directors must assume to do its job properly. Two themes emerge from the reports. First, although a relationship of ‘trust’ between senior staff leadership and the Board is essential, that relationship cannot be allowed to impede the Board from doing its job independently and thoroughly. Second, and much less understood, the tone of the organization must be set and communicated by the Board.

Here are some of the key lessons from the reports:

  1. The Board has responsibility to ensure the organization has and achieves diversity objectives and there is training in place to advance these goals.
  2. Acting independently the Board must ensure both strategic and operational goals are being met and must not rely exclusively on assurances provided by the CEO.
  3. The Board must demonstrate meaningful engagement in developing governance and oversight policies.
  4. The CEO must keep the Board apprised of serious risks that could affect the organization.
  5. Both the Board and management must effectively oversee internal controls to ensure reliable and accurate financial reporting, efficient and effective operations, and compliance with laws and regulations. The Board, through the Chief Executive Officer, is responsible for creating a culture of awareness of internal controls.
  6. Financial control policies should address fraud, travel and hospitality, internal meeting expenses, staff social events, gifts of appreciation, signing authority, and procurement. The Board should receive regular reporting on the effectiveness of internal controls.
  7. The Board should require, and management should implement, an internal or enterprise risk management system that documents internal controls and monitoring of both financial and operational risks and, I would add, regulatory risk for regulators. The Board and management should regularly monitor the effectiveness of the organization’s response to the risks.
  8. Governance policies should clearly state what ‘significant transactions’ require Board approval. Monetary amounts and organizational risk move a transaction from being ‘operational’ to the ‘Board’s business’.
  9. The Board should have processes in place to ensure the accuracy of financial reporting to the Board.
  10. The terms of reference of key Board committees, such as Finance, and Audit and Risk Management, should be regularly updated to ensure currency as the circumstances of the organization evolve.
  11. The Board should regularly evaluate the CEO and maintain documentation about that process and its results so future Boards have access to it. The CEO must in turn complete regular performance reviews of management and report on the results to the Board.

These reports show what happens when complacency sets in at the Board and it fails to stay alert and focused on all aspects of its fiduciary obligations. For organizations committed to good Board governance the recommendations are not earth shattering; however, they outline many important aspects of best practices that provide a timely reminder from which every Board can benefit.

A Nice Summary of the Standard of Review in Discipline Sanction Cases

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by Rebecca Durcan
December 27, 2018

Just as the Supreme Court of Canada is on the eve of considering the standard of review of administrative decisions generally, an Ontario Court has provided a nice summary of the current state of the law in respect of judicial review of discipline orders. In Gutman v College of Physicians and Surgeons of Ontario, 2018 ONSC 6936, http://canlii.ca/t/hw5wq a physician, found to have breached a prior discipline order, challenged the sanction imposed. In upholding the order, the Court summarized the standard of review as follows:

  1. A decision is reasonable if it falls within a range of possible acceptable outcomes (see: Dunsmuir v. New Brunswick2008 SCC 9 (CanLII), [2008] 1 S.C.R. 190, at para. 47).
  2. A decision is unreasonable only if, considering the reasons as a whole, there is “no line of analysis” in the reasons that could reasonably have led the tribunal to the result (see: Law Society of New Brunswick v. Ryan2003 SCC 20 (CanLII), [2003] 1 S.C.R. 247, at paras. 48-56).
  3. Reasons must be taken as a whole.  If the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met (see: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)2011 SCC 62 (CanLII), [2011] 3 S.C.R. 708, at para. 16).
  4. If the tribunal is a specialized body with expertise that the Court does not possess, and if their decisions require the exercise of discretion, it must be shown deference in both with respect to the facts and the law.  The Court should not substitute its own reasons, but assess reasonableness on the record (see:  Newfoundland, at para. 15).
  5. Deference is owed, especially with respect to sanctions for breaches of professional standards, in that they the tribunal had greater experience than the Court (see: College of Physicians and Surgeons of Ontario v. Peirovy2018 ONCA 420 (CanLII), 424 D.L.R. (4th) 613, at para. 31; Mast v. College of Nurses of Ontario2015 ONSC 5854 (CanLII), at p. 5; and Stetler v. Agriculture, Food and Rural Affairs Appeal Tribunal(2005), 2005 CanLII 24217 (ON CA), 76 O.R. (3d) 321 (C.A.), at para 108).

Pithy yet helpful.

Screening Committee Decisions

BLeBlanc_Webby Bernie LeBlanc
December 20, 2018

Two recent related decisions by the screening committee for the regulator of Ontario teachers reinforce the authority of screening committees to deal informally with concerns even if they arise outside of the practice of the profession.

In Bouragba v Ontario College of Teachers, 2018 ONSC 6935, <http://canlii.ca/t/hw6g8> a teacher brought an application for judicial review for being cautioned about the tone of his communications. The communications occurred when the teacher, acting in his capacity as a parent, communicated with a principal related to the treatment of the teacher’s child. The Court held the regulator did have jurisdiction over the teacher’s conduct when acting as a parent. The Court also held that a caution could be justified even where facts were in dispute and even in circumstances where another reasonable disposition would have been to take no action. The Court said:

A caution is not a disciplinary action, and is not made public.  It is not based on any finding of wrongdoing.  Rather, it is meant to express the Committee’s concern about conduct and to provide guidance for the future.

In a companion case, the Court also upheld the screening committee’s decision to take no action against the principal and two school board administrators who dealt with the teacher’s child: Bouragba v Ontario College of Teachers, 2018 ONSC 6940, <http://canlii.ca/t/hw6g7>. The Court found there was no appearance of bias on the basis that one of the screening committee members knew of one of the parties or that she had written a letter of reference for a former representative of the regulator, who was not involved in the case prior to the application for judicial review.

Burden of Proof in Registration Applications Involving Good Character

Maciura_Julie_5038by Julie Maciura
December 19, 2018

As a general proposition it is the applicant for registration who has the burden of proving that they meet the entry requirements. However, this conceptual approach is challenging when an issue arises as to whether the applicant is of good character. It is impractical to require every applicant to demonstrate that every aspect of their past and current lives are consistent with their good character. It is also challenging for an applicant to address concerns that have not been disclosed to them. While there are various approaches to addressing this conundrum, the recent case of Mundulai v Law Society of Ontario, 2018 ONSC 6965, <http://canlii.ca/t/hw6gh> provides one useful methodology.

Mr. Mundulai sought registration after having been disciplined a number of times and then having been revoked for being ungovernable. He insisted that it was up to the regulator to prove that he was not of good character. The Law Society provided him with disclosure of its concerns, related to his disciplinary history, and insisted that the onus was on him to establish his current good character. The Court said:

There is ample case law supporting the Society’s entitlement to rely on the prior disbarment to meet its initial burden at a licensing hearing to demonstrate that the applicant may not meet the good character requirement. Thereafter, an evidentiary burden falls on the applicant to establish that, despite his or her prior misconduct, he or she now meets the good character requirement.

Depending on the wording of one’s legislation, the approach of raising concerns about an applicant’s good character from prior events and then requiring the applicant to demonstrate that those past events are not reflective of their current and true character is a useful one for regulators to consider.

Deference to Clinical Examination Results

ERichler_Webby Erica Richler
December 17, 2018

Where an entry-to-practice examination involves clinical skills, it is particularly difficult to challenge (or defend) the outcome. The scoring typically involves the application of professional judgment, even where the criteria are explicitly set out. Courts dealing with judicial review applications of such outcomes generally apply a fair degree of deference to the examination body. This was demonstrated in Kabiri v The National Dental Examining Board of Canada, 2018 BCSC 1938, <http://canlii.ca/t/hvxxd> where the court upheld the failing grade given in a dentistry examination. The failure related to excess amalgam used in a filling and holes in a dental dam intended to prevent debris from reaching a patient’s throat. The candidate questioned how the excess amalgam was measured and also provided photographs that he asserted revealed no holes or tears in the dam.

The Court made the following points:

  • Judicial review was available, even though the examination body was a private corporation, because its examination was relied upon by statutory regulatory bodies for registration purposes.
  • Deference must be exercised since the examination involved the application of expertise.
  • Judicial review did not exist for the way in which the examination was structured; it just existed for the actual administration of the examination itself. For example, the court would not require the examiners to develop an alternative and more objective method of measuring excess amalgam.
  • In this case the examining body provided adequate reasons for dismissing the candidate’s internal appeal. For example, it explained why the close up photographs of the dam that did not reveal any holes or tears was not a sufficient basis to overturn the examiners’ on-site observations.
  • An examination body is permitted to defend the reasonableness of its decision on judicial review, particularly where there was no one else to argue the matter.

This decision gives guidance on how an examination body should manage internal appeals.

Disparaging Comments Misconduct Finding Upheld

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by Rebecca Durcan
December 14, 2018

The Saskatchewan Court of Appeal has upheld a finding of misconduct against an agrologist for making disparaging comments about other members of the profession and the regulator in Cameron v The Saskatchewan Institute of Agrologists, 2018 SKCA 91 (CanLII), <http://canlii.ca/t/hw5wd>.

In upholding the main finding the Court said:

[The Discipline Committee (DC)] found Mr. Cameron’s conduct “could negatively affect the public perception of the Agrology Profession to the detriment of the Profession and the ability of agrologists to effectively serve the public.” In coming to this conclusion, the DC highlighted the comments of Mr. Cameron that attacked and questioned the honesty and integrity of individual members of the association. In particular, the DC relied upon Mr. Cameron’s comments in the Grassroots newsletter that (i) accused the council of unethical behavior and the Institute of having a “two-tiered” code of ethics, and (ii) suggested lawyers may be controlling the council. Taken as a whole, it was reasonable to conclude that Mr. Cameron’s comments could negatively affect the public perception of the agrology profession.

The Court declined to hear a challenge to the validity of the misconduct provision under the Canadian Charter of Rights and Freedoms because the issue had not been raised before the appeal.

A National Regulatory Body is Possible in Canada

BLeBlanc_Webby Bernie LeBlanc
December 12, 2018

Under Canada’s Constitution, the regulation of professions falls under provincial jurisdiction (i.e., property and civil rights). With rare exceptions (e.g., banking, immigration), professions are not regulated through federal legislation. Previous attempts to facilitate uniform national regulation have been struck down by the courts: Reference re Securities Act, [2011] 3 SCR 837, 2011 SCC 66, http://canlii.ca/t/fpdwb.

However, the provincial regulation of professions has significant limitations. Governments have been trying to address them through informal government cooperation (e.g., related to health care) and through formal agreements (e.g., the Canadian Free Trade Agreement). In Australia, another country structured as a federation, agreements have been reached to facilitate a national approach to the regulation of health care workers: https://www.ahpra.gov.au/About-AHPRA/Who-We-Are.aspx.

Recently the Supreme Court of Canada has approved a plan for the national regulation of the securities industry: Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48, <http://canlii.ca/t/hw0hz>. The plan is complex and involves a model provincial / territorial statute, an accompanying federal statute and a national body with representation from the provincial / territorial ministers overseeing the regulation of securities in their home jurisdictions. Because the plan requires provincial / territorial approval to enact or amend the plan, the Court was of the view that it did not fetter provincial constitutional authority.

This plan can serve as a model for the national regulation of other professions and industries which might now be encouraged to give national regulation further consideration.

A Court-Approved Approach to Making Defensible Credibility Findings

Maciura_Julie_5038by Julie Maciura
December 10, 2018

In The Law Society of Manitoba v Young, 2018 MBCA 126, http://canlii.ca/t/hwbp5 Manitoba’s highest court rejected an appeal made on the basis that the hearing panel had made unsafe findings of credibility on the main disputed allegation. In upholding the credibility finding, the Court noted:

  • The panel gave detailed reasons on the credibility findings.
  • The reasons indicated that the panel had considered all of the evidence.
  • The inferences drawn from the evidence by the panel were reasonable.
  • The panel’s reasons indicated how the main prosecution’s witness was consistent with the documentary evidence.
  • The panel’s reasons addressed the inconsistencies in the main prosecution’s witness and explained why those inconsistencies did not undermine the witness’ overall credibility.
  • The panel’s reasons addressed the practitioner’s evidence and the corroborating witness called by the practitioner and explained how that evidence was inconsistent with the documentary evidence and was otherwise not credible (e.g., attempts to persuade the complainant to withdraw the complaint and, when that failed, making false statements to the regulator).

This judicial analysis gives guidance to hearing panels on the points they need to cover when dealing with credibility issues.

Courts also take a dim view of those who are unsuccessful at a hearing when raising one defence (e.g., “I am innocent”) and trying to introduce a new defence after they have been found guilty (e.g., “I had a medical condition that affected my behaviour”). The Court refused to receive fresh evidence, a psychological report, on the basis that such evidence should have been obtained and introduced at the original hearing. The Court emphasized the importance of the finality of hearings.

Please note Steinecke Maciura LeBlanc is putting on a workshop for tribunal members on how to assess credibility and write reasons on February 21, 2019. See: http://www.sml-law.com/resources/upcoming-events/ for more information.

Lisbon Recognition Convention

ERichler_Webby Erica Richler
December 7, 2018

The Lisbon Recognition Convention (LRC) is an international agreement involving Europe, the United States and Canada. It has been ratified by Canada earlier this year, so it reflects a commitment by the federal government. However, since it is the provincial (and territorial) governments that oversee the regulation of most professions in Canada and since the LRC does not, by itself, amend any statutes, it does not have any immediate direct impact on regulators. However, it will undoubtedly influence government expectations going forward, particularly for provinces that have a Fairness Commissioner.

The LRC deals with the recognition of academic credentials from other countries, e.g., when someone is applying to a university and wants to have past study considered or when someone is applying to a regulator for registration. The LRC urges timely assessment of credentials of internationally trained individuals, recognition of credentials unless there is a substantive difference, and accessible dissemination of information to those seeking recognition of credentials.

One interesting aspect of the LRC is that it would place the onus on the organization reviewing the credential to say if there is a substantial difference (rather than the individual having to say there is not). It is unlikely that the LRC will change established case law placing the onus on applicants to demonstrate that they meet registration requirements, at least in the short term. Beyond that, regulators may be expected by the Fairness Commissioner, the government and perhaps even the courts to respect the spirit of the LRC.

It is unlikely that the LRC will affect the Canadian Free Trade Agreement as the CFTA focusses on recognition of certified practitioners moving within Canada. The LRC applies primarily to the original Canadian jurisdiction that first assesses the qualifications of the practitioner. When and if the practitioner moves to another Canadian jurisdiction, the receiving jurisdiction will still accept that assessment without further evaluation in most cases.

For more information see the website of the Canadian Information Centre for International Credentials: https://www.cicic.ca/1639/canada_and_the_lisbon_recognition_convention.canada.

Wording of Restraining Orders

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by Rebecca Durcan
December 4, 2018

The wording of restraining orders is definitely an art, rather than a science. In the past courts have encouraged such orders to be worded as specifically as possible, and not to simply follow the wording of the statute, so as to make its scope clearer and its enforcement easier: Law Society of Saskatchewan v Mattison, 2015 SKQB 323, http://canlii.ca/t/glpws. However, the law of unintended consequences can supersede all. In College of Midwives of British Columbia v Lemay, 2018 BCSC 1827, http://canlii.ca/t/hvp09, the regulator obtained an injunction against an unregistered person preventing her from performing various midwifery procedures or holding herself out as a midwife. Subsequently the enabling legislation was amended changing some of the language used to describe the regulated activities. While the changes were not substantive, it became less clear what the individual was prohibited from doing. The regulator sought, and obtained, an order from the Court amending the wording of the restraining order to ensure that its manifest intent of preventing the individual from practising midwifery was maintained. Interestingly, the revised wording of the order required compliance with the legislation as it was worded from time to time. The specific prohibited activities were removed from the order.

Not Enforcing Administrative Penalties

BLeBlanc_Webby Bernie LeBlanc
November 27, 2018

When regulators impose a fine or administrative penalty, do they have an obligation to try to collect it? In British Columbia (Securities Commission) v Thow, 2018 BCSC 1823, http://canlii.ca/t/hvn8g the Court said no. Mr. Thow misappropriated a large amount of money from his clients. He was found criminally responsible and a large restitution order was issued. The Securities Commission also prosecuted him and obtained an administrative penalty in the amount of $250,000. The Commission did not take steps to collect the administrative penalty so that Mr. Thow could continue to make payments on the restitution order. Mr. Thow argued that, because of this inaction, any attempt to now collect the administrative penalty would be an abuse of process. The Court disagreed:

On [the] basis of the record, the most compelling conclusion is that the plaintiff’s decision to refrain from actively pursuing collection was based on a recognition that money paid in satisfaction of the restitution order was the preferable outcome because funds would find their way to the benefit of the victims, rather than to government coffers, as would result from payments on the penalty. If that is the case, as it seems to be, in my view it is eminently commendable, and quite the opposite of an abuse of the court’s process or action taken for some ulterior motive.

The Court deferred dealing with the second argument (that the Commission had promised not to collect the administrative penalty) until better evidence could be obtained.

This case confirms that regulators are not compelled to make immediate collection efforts on a fine or administrative penalty in order to preserve their claim.

Refusing to Consider Competencies Obtained Outside of School

Maciura_Julie_5038by Julie Maciura
November 20, 2018

The trend in registration matters has been to consider competencies rather than credentials. This is an essential part of the legal requirements imposed on regulators relating to national and international mobility. It is also consistent with the public interest in having all competent practitioners practise their professions. However, credential-based registration requirements are still legal and enforceable when required by legislation.

In Marshall v College of Psychologists of Ontario, 2018 ONSC 6282, http://canlii.ca/t/hvn9f the Divisional Court was faced with a challenge by a psychologist who had obtained a doctorate in Canada from a non-accredited program. At the time that the Canadian degree was obtained, the applicant likely met the requirements for registration. However, a subsequent regulation amendment (of which the applicant indicated he had not received prior notice) required equivalency to an accredited program, which the regulator concluded did not exist. After graduation the applicant had obtained significant relevant experience and had published a number of peer-reviewed articles in the field. It also appeared that if the applicant were internationally trained he might have faced a more flexible registration process.

The regulator concluded that the non-exemptible requirement had not been met since it spoke specifically about the applicant’s educational “program” which did not permit the consideration of post-graduation experience and writing. The appeal tribunal found this interpretation of the language of the regulation was reasonable. The Court, while acknowledging the policy arguments for considering competencies obtained outside of the program itself, agreed.

The Marshall case highlights the importance of the legislative language in registration matters.

Process Challenges

ERichler_Webby Erica Richler
November 15, 2018

In some discipline cases the defence relates to the process rather than the merits. To a large extent, Walia v College of Veterinarians of Ontario, 2018 ONSC 6189, http://canlii.ca/t/hvl9g was such a case. In brief, a number of process challenges were dismissed by the Ontario Divisional Court as follows:

  • If the allegations are within the scope of the complaint and the practitioner had an opportunity to respond to the complaint, then it does not matter that the formulation of the allegations in the notice of hearing differs from the summary of the complaint initially provided to the practitioner.
  • It is acceptable for prosecuting counsel to draft the specific allegations referred to discipline.
  • There is no conflict in having overlapping committee members on both the screening committee and the hearing committee if those overlapping members do not participate in the hearing.
  • It is permissible for a member of the hearing panel to have heard preliminary motions.
  • An expert’s involvement with a committee of the regulator in the past does not necessarily give rise to bias concerns.
  • When assessing costs for a discipline hearing, the dockets of prosecuting counsel need not have been disclosed or filed.

Courts look to whether the procedures followed actually affected the fairness of the hearing.

More Guidance on Awarding Costs at Discipline

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by Rebecca Durcan
November 12, 2018

The Ontario Divisional Court provided additional guidance on the awarding of costs by a discipline tribunal. In Robinson v College of Early Childhood Educators, 2018 ONSC 6150, http://canlii.ca/t/hvmwg, the practitioner was found guilty of having abused a child. The panel ordered the practitioner to pay $257,000 in costs which was more than five times his salary when he was fully employed. The practitioner challenged the authority of the tribunal to award costs on a technical argument related to the failure to provide a process in the tribunal’s rules of procedure and the intersection of the enabling statute with the provisions of the Statutory Powers Procedure Act. The Court found the tribunal’s interpretation of its provisions was reasonable even though another regulator had interpreted similar provisions differently.

The Court made non-binding observations however, that the awarding of costs could have a chilling effect on practitioners facing discipline where the tribunal adopted a policy of awarding costs in every case in which a finding was made. The Court would also be concerned if the regulator sent mixed signals as to whether costs would only be awarded where the practitioner acted unreasonably, but then proceeded to award costs where the practitioner’s defence was acknowledged to have been diligent and appropriate.

In this case, however, the costs order was upheld.

Excessive Delay

BLeBlanc_Webby Bernie LeBlanc
November 7, 2018

It is rare for a disciplinary case to be stayed on the grounds of excessive delay. However, Diaz-Rodriguez v British Columbia (Police Complaint Commissioner), 2018 BCSC 1642, http://canlii.ca/t/hv9pz is an example of where the test for a stay was met. The case involved allegations of the use of excessive force and of giving misleading statements by a transit police officer. The delay was for seven years despite the inclusion of tight timelines within the enabling legislation. The delay included the restarting of proceedings at least twice because the oversight body was not satisfied with earlier determinations.

The Court acknowledged that the timeliness requirements of criminal proceedings did not apply and that the case was governed by Blencoe v British Columbia (Human Rights Commission), [2000] 2 SCR 307, http://canlii.ca/t/525t: “the applicant must establish that: (1) the delay is unacceptable; and (2) there is a serious prejudice arising from the delay itself, not from the underlying allegations or charges”. The Court also accepted that section 7 of the Canadian Charter of Rights and Freedoms did not apply. The Court concluded that there was no material unfairness to the hearing process as the core evidence remained available through video recordings and promptly-taken witness statements.

However, the Court found that the extraordinary delay did meet the “inordinate” criterion given the time-sensitive nature of the legislative scheme and the circular nature of the proceedings. The Court also found that there was significant prejudice to the practitioner largely because of the career limiting restrictions he had worked under for five years and the impact the delays had on him and his family.

This case is a reminder to regulators that, despite the non-criminal law approach taken to regulatory delays, excessive delays can result in the staying of proceedings in appropriate, albeit rare cases. This is particularly true where interim restrictions are imposed.

Injecting Clients into a Professional Dispute is Misconduct

ERichler_Webby Erica Richler
November 1, 2018

Practitioners cannot use their clients as pawns in their professional disputes. Doing so can amount to professional misconduct. A physician learned this the hard way in Torbey v College of Physicians and Surgeons of Alberta, 2018 ABCA 285, http://canlii.ca/t/httn3. Dr. Torbey was upset that his operating room time was reduced. As a result he stopped seeing patients for procedures in the operating room on the days remaining to him. He also sent a communication to his patients “advising that his surgical schedule had been cut down to two days per month, and while he had requested outpatient time at the hospital nothing had been done … and asked his patients to get involved. He named the hospital doctors involved in the dispute and stated the administration was ‘greedy, self centered and discriminating’, ‘using the patient with urological problems as a tool to push me around and bullying me for no justifiable reason putting the urological patient at risk’.”

The discipline tribunal found that such behaviour was professional misconduct and “ordered that he be suspended for a period of one month, but that the suspension would not need to be served if he completed a Comprehensive Occupational Assessment for Professionals.” The Court held that both the finding and the sanction were reasonable.

Ten Implications of Cannabis Legalization for Regulators

Maciura_Julie_5038by Julie Maciura
October 29, 2018

The predominant reaction of regulators to the legalization of cannabis for recreational use has been that nothing has changed. And to a large extent that is correct. Prescribing cannabis for medical purposes is still restricted to physicians and nurse practitioners. In many respects the professional expectations about its use will be similar to the consumption of alcohol or the consuming of prescription drugs which are also both legal and can impair function. However, there are a number of aspects to the legalization of cannabis that may create issues regulators may have to address in the coming months and years. A preliminary list includes the following:

  1. Is there a difference between a practitioner prescribing cannabis and a practitioner recommending patients obtain recreational cannabis on their own for therapeutic use?
  2. If so, is such a recommendation within the scope of practice of the profession?
  3. Even if making recommendations about the use of cannabis is not within the scope of practice of the profession, is there a duty on practitioners to be generally aware of the risks of cannabis use and to provide this information to clients who indicate they are using cannabis?
  4. While administering a substance by inhalation and injection is a controlled act (in Ontario), administering it topically is not. In what circumstances could topical administration of cannabis oil or other products be acceptable?
  5. Informed consent to treatment may not be possible if a client is under the influence of cannabis. Issues may arise as to whether a practitioner should have recognized a client’s impairment or disregarded such an impairment.
  6. It is professional misconduct for practitioners to practise while under the influence of a substance that impairs judgment. Issues may arise with regard to allegations about inappropriate conduct by the practitioner during the treatment.
  7. For many professions there is a duty to report colleagues who are impaired. There may be a duty on practitioners to report where a colleague appears to be impaired or is observed using cannabis while or just before working.
  8. How should regulators consider previous convictions related to cannabis, for example on an application for registration? Are those convictions irrelevant now (i.e., was the person just a bit ahead of their time?) or is it still significant as it involved a breach of the law as it existed at the time (e.g., tax avoidance is still tax avoidance even if the tax laws later change)?
  9. How should regulators deal with information on the public register related to cannabis use? Is that information still relevant for the public to know?
  10. Should regulators have policies about the use of cannabis by their staff and Board and committee members? If so, is anything other than “don’t-arrive-impaired” appropriate?

As regulators are formulating their policies and practices relating to cannabis, they should be aware that the landscape will likely evolve over time as society adapts to these new rules and government potentially refines or expands upon the law. With more experience and guidance, regulators should be prepared to review their cannabis policies at regular intervals.

No Consent Required

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by Rebecca Durcan
October 22, 2018

Many screening committees are given the authority to take certain action and to also take other action not inconsistent with their enabling legislation. In Hancock v College of Registered Nurses of Manitoba, 2018 MBQB 149, http://canlii.ca/t/hv5xj the issue was whether the issuance of a letter of guidance was inconsistent with the Act. The screening committee could refer allegations to discipline or take certain other steps (e.g., censure, undertaking, surrender of registration) with the member’s consent. The practitioner argued that the intent of the Act was that remedial action required her consent and that delivering a letter of guidance without her consent was inconsistent with the Act. The Court disagreed. It found that a letter of guidance “does not affect the applicant’s rights or privileges as a member, that it is confidential and will only be reviewed in the case of a subsequent complaint of a similar nature” and thus did not require the consent of the member. The Court also found that the letter of guidance was not disciplinary in nature.

This case confirms the courts tend to be supportive of the authority of regulators to take creative remedial actions in response to complaints.

Good Reasons Save the Day

BLeBlanc_Webby Bernie LeBlanc
October 15, 2018

Good reasons are always essential, especially when a serious finding is based on circumstantial evidence. In Taylor v College of Physicians and Surgeons of Ontario, 2018 ONSC 4562, http://canlii.ca/t/htrqw, it was acknowledged that there had been systematic overbilling for surgical procedures and that there had been elaborate efforts made to cover it up. The issue was whether the physician was behind it or whether the overbilling and cover up was orchestrated by the physician’s office staff. The discipline tribunal’s conclusion that the physician was responsible for the scheme was challenged on appeal. The Divisional Court found that both the evidence and the reasons for decision supported the conclusion. The Court held that the reasons for decision:

  • contained no major gaps;
  • addressed the inconsistencies in the evidence of the prosecution witnesses;
  • addressed the concern of whether the communications amongst the prosecution witnesses amounted to collusion;
  • considered the prior inconsistent statements given by the prosecution witnesses;
  • applied a similar level of scrutiny to the evidence of the witnesses on both sides;
  • did not reject the evidence of defence witnesses in a cursory way; and
  • did not reverse the burden of proof or base the findings solely on its rejection of the practitioner’s evidence.

The Court also upheld the order of revocation noting that the reasons for decision addressed the mitigating factors and appropriately addressed the aggravating factors including the level of dishonesty involved, the harm to the reputation of the profession and the harm inflicted on the staff members who were asked to participate in the cover-up.

Authority of Oversight Bodies

Maciura_Julie_5038by Julie Maciura
October 11, 2018

Independent oversight bodies with the authority to interfere in individual decisions are rare in common law Canada. They are more prevalent elsewhere, perhaps with the Professional Standards Authority of the UK being best known. The Real Estate Council of British Columbia has recently had the Superintendent of Real Estate appointed to oversee it. The oversight role of the Superintendent was clarified in Superintendent of Real Estate v Real Estate Council of B.C., 2018 BCSC 1500, http://canlii.ca/t/htrm5.

The Real Estate Council investigated a complaint and determined that only a warning was warranted. The complainant took the matter up with the Superintendent who reviewed it and directed the Council to refer the matter to a discipline hearing. The Council refused and the Superintendent sought judicial review.

The Court identified the oversight role of the Superintendent and concluded that the provisions authorized the Superintendent to direct the Council to refer matters to discipline. While the Council still controlled the specific content of the allegations, the Court indicated that the Council would be acting in bad faith if it referred “blank” allegations to discipline. The Court also held that there was no genuine unfairness to the practitioner facing a referral to discipline after being told no action would be taken by the Council because the legislation clearly contemplated this supervisory role for the Superintendent. Having established the authority of the Superintendent to assume this oversight role, the Court declined to order the Council to take action in this particular matter because the Superintendent had not acted with procedural fairness by failing to notify the practitioner that the matter was being reviewed.

This case demonstrates that courts will recognize the authority of oversight bodies where it is set out in legislation and will try to ensure that this authority meets the intended goals.

Interim Orders and Evidence of Exposure to Harm

ERichler_Webby Erica Richler
October 5, 2018

Many regulators have the authority to impose interim orders before a hearing where the public is at risk of harm. Courts defer to the expertise of the regulator in these cases but still require evidence that the public is exposed to harm or injury. Guidance on this issue was provided by the Divisional Court of Ontario in Fingerote v The College of Physicians and Surgeons of Ontario, 2018 ONSC 5131, http://canlii.ca/t/htqf7. In that case a complaint was made by a patient that the practitioner had commented on, stared at and unnecessarily touched her breasts during the course of a chest auscultation. The practitioner denied any inappropriate conduct and suggested that the patient may have misperceived the nature of the interaction. The regulator imposed an interim order imposing a requirement for a chaperone while patients are seen.

The Court set aside the interim order on the basis that there was no evidence that the doctor’s conduct exposes or is likely to expose his patients to harm or injury (the test for health regulators in Ontario). There was no expert evidence that indicated that the reported observations of the patient were inconsistent with appropriate clinical procedures. The Court indicated that it was not open to the panel to make those conclusions based on its own expertise in the circumstances of this case. Nor was there evidence that the conduct might continue. The Court did say that there may be “cases where the facts alleged without more will be probative or logically related to the existence of a risk of future harm” but this was not one of them.

The Court also said:

If society once erred on the side of protecting doctors’ reputations, times have rightly changed. The law prefers and gives primacy to the goal of protecting vulnerable patients. If there is a demonstrated likelihood that a doctor will expose his or her patients to harm or injury, the Committee is free to act and its opinion and remedial discretion will be accorded deference.

This decision highlights the difficult task regulators face when deciding on interim orders. In some cases, the allegations of misconduct themselves may not be sufficient to meet the exposure to harm test required for interim orders.

Scope of Investigations

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by Rebecca Durcan
October 1, 2018

A recurring issue for regulators is the scope of investigations. In Yu v College of Dental Surgeons of British Columbia, 2018 BCSC 1315, http://canlii.ca/t/htc3c, a complaint was made about Dr. Yu’s approach to orthodontics. Concerns were identified and an undertaking was proposed. Dr. Yu declined to provide the undertaking. The committee learned that Dr. Yu had more orthodontic patients than he had previously indicated and initiated a review of a larger sampling of files. Dr. Yu sought an injunction to halt the review, in part, because the regulator was expanding the scope of the original complaint.

The Court was of the view that since there were broader concerns and since the committee had the authority to initiate an investigation on its own authority, the review was not of concern. However, the Court found there was an issue to consider about whether the strong expression of opinion by one of the committee members about Dr. Yu’s approach to orthodontics (which the committee member called “unscientific”) may have influenced the decision to conduct the review even though the committee member had been removed from the committee. However, the Court concluded that Dr. Yu had not established irreparable harm and the balance of convenience favoured allowing the file review to proceed. The Court concluded:

The public’s need to be assured that the profession is being regulated and that they are protected from incompetent practice, far outweighs the needs of the individual dentist. The individual dentist never had a high expectation of privacy or right to practice without inspection and regulation.

Practising Law is Practising Law

BLeBlanc_Webby Bernie LeBlanc
September 24, 2018

In Law Society of Ontario v Leahy, 2018 ONSC 4722, http://canlii.ca/t/ht9nq the regulator sought an injunction against Mr. Leahy for practising law. Mr. Leahy did not dispute the facts, but raised a number of legal defences. The Court rejected all of them including the following:

  • The fact that Mr. Leahy initially received authorization to practice from the courts prior to the new regulatory regime requiring a licence to provide legal services did not require the revocation of the original authorization in order to revoke Mr. Leahy’s licence to practice law.
  • Federal paramountcy principles did not authorize the practising of law before a federal tribunal, at least where the federal legislation did not expressly authorize such practice.
  • The exception for individuals providing services to their corporate employer did not allow the corporation to provide legal services to the public.
  • The location of the corporation outside of Ontario did not oust the regulator’s jurisdiction where the clients received services in Ontario.
  • The exception for practitioners of other professions providing services in the scope of that profession has no application where Mr. Leahy was not registered with another profession.

The injunction was granted.

Controlled Acts Injunction

Maciura_Julie_5038by Julie Maciura
September 20, 2018

Under the Regulated Health Professions Act a College can obtain an order under the statute to prohibit unauthorized persons from performing certain activities or using protected titles. A number of recent cases have set out the criteria used by the courts to determine when to make an order. Those cases are nicely summarized in College of Physicians and Surgeons of Ontario v Canon, 2018 ONSC 4815, http://canlii.ca/t/htkjf. In that case there was uncontroverted evidence that the respondent had used protected titles (e.g., Dr., osteopath), had communicated a diagnosis (e.g., slipped disc in her lower back with bursitis in both shoulders), administered injections, made spinal adjustments and had performed procedures below the dermis of patients. Interestingly, some persuasive evidence (against the individual) came from patient testimonials from his website. The Court summarized the approach on such applications by citing judicial comments in another case:

In Canada v. IPSCO Recycling Inc., at para. 51, Justice Dawson of the Federal Court summarized the legal principles that are to be applied in determining whether to grant a statutory injunction, as follows:

51. On the basis of the authorities cited by the parties I am satisfied that where a statue provides a remedy by way of injunction, different considerations govern the exercise of the court’s discretion than apply when an Attorney General sues at common law to enforce public rights. The following general principles apply when an injunction is authorized by statute:

(i) The court’s discretion is more fettered. The factors considered by a court when considering equitable relief will have a more limited application.

(ii) Specifically, an applicant will not have to prove that damages are inadequate or that irreparable harm will result if the injunction is refused.

(iii) There is no need for other enforcement remedies to have been pursued.

(iv) The Court retains a discretion as to whether to grant injunctive relief. Hardship from the imposition and enforcement of an injunction will generally not outweigh the public interest in having the law obeyed. However, an injunction will not issue where it would be of questionable utility or inequitable.

(v) It remains more difficult to obtain a mandatory injunction. [internal citations omitted]

The Court went on to say:

Proof of damages or proof of harm to the public is not an element of the legal test to obtain a statutory injunction.

Where a public authority applies to the court to enforce legislation, and a clear breach of the legislation is established, only in exceptional circumstances will the court refuse an injunction to restrain the continued breach. The onus to raise the exceptional circumstances lies with the respondent, and those circumstances are limited; for example, to where there was a right that pre-existed the enactment contravened or where the events do not give rise to the mischief the enactment was intended to preclude. [citations omitted]

The restraining order was granted.

Further Clarity on the Mental Intent for Professional Misconduct

ERichler_Webby Erica Richler
September 17, 2018

A recent decision of the Ontario Court of Appeal further clarifies that the required intent for a finding of professional misconduct depends on the nature of the definition of professional misconduct. As previously reported, in The Law Society of Upper Canada v. Nguyen, 2018 ONCA 709, http://canlii.ca/t/htqbc a lawyer was found to have engaged in professional misconduct by failing to advise his clients (mortgage lenders) of material facts (relating to credits the purchasers received on closing). There was no dispute about those findings. The information was material and it was not disclosed. The lawyer’s intent was irrelevant. However, there was a dispute as to whether the lawyer had also participated in mortgage fraud. A finding of mortgage fraud would result in a much more serious sanction.

The Court of Appeal accepted the finding of failing to maintain the standard of practice of the profession but indicated that a finding of mortgage fraud would require dishonesty, willful blindness or recklessness on the part of the practitioner. Since the hearing panel found that the practitioner had made an honest mistake, the intent requirement was not met and no finding of mortgage fraud could be made. The Court of Appeal declined to order the matter back for a new hearing on the issue as desired by the internal appeal tribunal and the Divisional Court.

Crossing the Line

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by Rebecca Durcan
September 13, 2018

Practitioners are entitled to criticize their regulators and colleagues, to a point. However, when the tone and content of the criticism undermines the integrity of the regulatory process or brings the profession into disrepute, it crosses the line. That is what the Alberta Court of Appeal concluded in Zuk v Alberta Dental Association and College, 2018 ABCA 270, http://canlii.ca/t/htl8m.

Dr. Zuk, a general dentist, made numerous statements online, to traditional media and in a book alleging that orthodontic specialists and the regulator were, in effect, conspiring to prevent him and other general dentists from providing certain beneficial services to the public. The tone and language of some of the statements were disrespectful (e.g., “veneer Nazis”). The Court of Appeal upheld the discipline finding was reasonable. The Court found that the statements could be viewed as advertisements in the broad sense of the term and that Dr. Zuk’s freedom of expression was not infringed by the decision (applying the Doré analysis). It was not necessary for the regulator to establish harm to the public in order to make this finding of misconduct.

The Court also upheld a finding that Dr. Zuk had threatened the regulator by demanding it withdraw the complaints within seven days or face counter-complaints and a messy process.

However, the Court set aside as unreasonable the findings that Dr. Zuk had breached a historic undertaking that did not clearly and unambiguously cover the conduct in issue. Despite the fact that the disciplinary tribunal had otherwise handled the issue of sanction well (including considering mitigating factors), the one year suspension and $175,000 costs award was set aside because the reversed breach of undertaking finding was significant to those conclusions.

On the matter of crossing the line, the regulator was assisted somewhat by its attempts to communicate with Dr. Zuk on the issue before commencing disciplinary action.

Jurisdiction Over Conduct Before Registration

BLeBlanc_Webby Bernie LeBlanc
September 10, 2018

For over a century and a half there has been debate and inconsistent court decisions about whether regulators have jurisdiction over members for their unprofessional conduct before they were registered. On the one hand, it seems odd for a person to be accountable for their behaviour when the rules they are said to have breached did not apply to them at the time. On the other hand, the conduct could well reflect on their suitability to be a member of the profession. The Divisional Court has attempted to reconcile the case law in Association of Professional Engineers of Ontario v. Leung, 2018 ONSC 4527, http://canlii.ca/t/htl3k. In that case the allegations included conduct by a certificate holder relating to what amounted to illegal practice of the profession prior to obtaining the certificate. The Discipline Committee concluded it had no jurisdiction over the conduct. The regulator appealed.

The Divisional Court said that the issue was one of interpreting the intent of the legislation. Thus the answer could well be different under different statutes. Under the Professional Engineers Act, which was silent on the issue, there seemed to be a distinction between the disciplinary enforcement mechanism, which applies only to members and certificate holders, and certain offence provisions that applies to others as well. In fact there was a specific offence for offering services to the public without a certificate. The Court concluded that it was both reasonable and correct to view the discipline process to be available for pre-registration conduct only where the conduct continued to when the person was registered or where there was “conduct that resulted in the fraudulent procurement of a licence which negatively affected the individual’s fitness to practice”.

This approach to the jurisdiction over conduct that occurs before registration might become the starting point of the analysis for other regulators whose statutes are silent on the issue.

Combined Investigations Upheld

Maciura_Julie_5038by Julie Maciura
September 6, 2018

The Ontario Court of Appeal has held that under the Regulated Health Professions Act the regulator is permitted to combine various processes into a single investigation. In Abdul v Ontario College of Pharmacists 2018 ONCA 699, http://canlii.ca/t/htpdg, the regulator received both a formal complaint and additional, overlapping, information about the conduct of the practitioner. The regulator discussed the options with the complainant who agreed to withdraw her complaint so that the entire matter could be investigated through a single Registrar’s investigation. This use of the Registrar’s investigation process was challenged, in part, on the basis that the complaints process, requiring the Registrar to notify the practitioner early on, was not followed. The Divisional Court accepted this argument concluding that there was no mechanism for allowing the withdrawal of the complaint and that the mandatory complaints procedures were not followed. The Divisional Court would have required parallel investigations of the two matters. The Court of Appeal reversed the decision of the Divisional Court, concluding that the legislation did not prohibit the withdrawal of a complaint (with the consent of the regulator) and that combining the matters into a single Registrar’s investigation was both practical and authorized. The Court of Appeal found that there was no denial of procedural fairness by using the alternative investigative process (the requirements of which had been followed).

The Court of Appeal held that the use of the alternative process was subject to abuse of process safeguards but found there was no prejudice to the practitioner (which is often required to establish an abuse of process) on the facts of this case. In reaching this decision the Court sidestepped the either/or dichotomy to the narrow/liberal interpretation of legislation dispute and indicated that the legislation should be interpreted in a manner that protects the public but is still fair to the practitioner. The regulator was allowed to proceed with its discipline hearing.

Reformation of the Practitioner vs. Respect for the Profession

ERichler_Webby Erica Richler
September 4, 2018

The Quebec Court of Appeal grappled with whether the sanctioning of a Judge should focus on whether the Judge’s behaviour could be reformed or whether the public’s respect for the judiciary should be safeguarded. In Bradley (Re), 2018 QCCA 1145, http://canlii.ca/t/ht0d2, the Court dealt with a recommendation by the Quebec Judicial Council that Judge Bradley be removed from office for disrespectful conduct towards two litigants in a $500 fence repair dispute. Judge Bradley tried to force the parties to settle the matter and, when they indicated resolution was not possible, declined to hold the hearing. It was the second complaint against Judge Bradley.

The only two sanctioning options available were a reprimand or recommending removal from office. The majority of the Court concluded that Judge Bradley had demonstrated insight into his conduct and had only one prior complaint in a career that involved hundreds of cases. They ordered a reprimand. A minority of the Court would have upheld the recommendation for removal because the conduct of Judge Bradley could undermine the confidence of the public in the judiciary. This tension between the views as to which consideration should be given primacy might have been avoided if a sanction between reprimand and removal were available.

The Court also expressed concerns about the fact that the Council did not separate the hearing into a finding stage and a sanctioning stage. However, even those Justices who expressed the most serious concern about the issue concluded that the problem was resolved by the new hearing before the Court of Appeal.

Procedure and Criteria for Accessing Mental Health Records

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by Rebecca Durcan
August 28, 2018

There are significant restrictions upon regulators gaining access to mental health records, especially from a psychiatric facility, without the consent of the patient. A Court order is required. In Laity v. The College of Physicians and Surgeons of Ontario, 2018 ONSC 4557, http://canlii.ca/t/ht5v7, there were “allegations that Dr. Laity sexually abused the patient and that he failed to maintain the standard of practice of the profession when he prescribed medication for her”. Dr. Laity was the family physician for the patient. His chart contained two consultation notes from a psychiatrist that were relevant to the allegation of improper prescribing. In fact, an expert opinion on the concern was largely based on the consultation notes. The regulator sought a court order permitting access to the consultation notes. Dr. Laity consented to the order as he wanted to use those records to found a motion for production of the broader psychiatric records of the patient as part of his defence. The patient did not consent to the release of the consultation notes.

The Court said its task was:

to determine whether the disclosure of the documents is essential in the interests of justice.  This requires the Court to consider the relevance and probative value of the documents and the parties’ ability to obtain a just determination of the proceeding between them.  Weighed against the parties’ interest is the patient’s interest in preserving privacy and confidentiality with respect to very sensitive medical information.  The onus is on the applicants to show that disclosure is essential in the interests of justice.

The Court concluded that the notes were essential to the prosecution of the professional misconduct allegations. The Court also concluded that the records were relevant to the proposed defence motion for production of the patient’s broader record.

This case will be of assistance to regulators considering using psychiatric facility records in their proceedings.

Adjournments and Compelled Testimony

BLeBlanc_Webby Bernie LeBlanc
August 21, 2018

A recurring issue at hearings is whether to grant adjournments, particularly to retain legal counsel. In Evgueni Todorov and Sophia Nikolov v. Ontario Securities Commission, 2018 ONSC 4503, http://canlii.ca/t/ht4qv, a request for an adjournment was made by counsel who indicated that he anticipated being retained in a few days. The tribunal refused the adjournment because it had been clear over many months that the defendants had to retain legal counsel for the specified hearing date, the parties had indicated an intention to retain counsel by then, no request for an adjournment was made in advance, no explanation was offered as to why legal counsel was not retained on time, and the defendants themselves failed to attend the scheduled hearing date. The Court upheld the decision. The Court indicated that while the standard of review for procedural fairness issues was correctness, since the granting of adjournments is discretionary, the Court will look to see if the refusal of the adjournment was reasonable. In these circumstances it was reasonable given the conduct of the defendants.

A second issue was whether it was appropriate for the Securities Commission to prove its case through the admissions of the defendants obtained from them under compulsion during the course of the investigation. The Court indicated that, since these were administrative and regulatory proceedings designed to protect the public, and not criminal or penal proceedings, it was consistent with the protections in legislation and the Canadian Charter of Rights and Freedoms to rely on this compelled evidence. The use of this evidence did not amount to prohibited self-incrimination.

Reasons for Registration Decisions

Maciura_Julie_5038by Julie Maciura
August 16, 2018

How closely do courts review reasons for decisions in registration cases? In Alfahem v College of Physicians & Surgeons of Alberta, 2018 ABQB 539, http://canlii.ca/t/ht02l, the answer is moderately closely.

Dr. Alfahem was an internationally trained physician who sought registration on the basis of a practice readiness assessment. During the course of the first assessment it was determined that his English language fluency skills were inadequate and he would fail the assessment. Rather than completing the assessment, Dr. Alfahem agreed to upgrade his language fluency first. A second assessor was selected to conduct the subsequent assessment. The second assessor found that Dr. Alfahem’s language fluency was adequate, but found that some of his clinical skills were unsatisfactory. The regulator refused registration on the basis of the second assessment report. Dr. Alfahem challenged the decision on the basis that the reasons did not explain why the second assessment’s results on clinical issues were accepted over the tentative conclusion of the first, incomplete assessment.

The Court emphasized the importance of reasons for decision in registration matters that should address the “why” for a decision. However, the Court also noted that it will scrutinize the entire record to see whether the “why” is evident. In this case it was apparent that the regulator was concerned about the objectivity of the first assessor, who seemed to be taking a more educational approach than a true assessment approach. In addition, the first assessment was interim in nature and was not finalized. The Court was not prepared to find the reasons inadequate in the circumstances.

The Court also rejected the ground of review based on the concerns that the applicant had not had full disclosure of the materials upon which the decision was made. The Court concluded that the applicant had not established that he did not have relevant and material information.

Defamation Challenge to Transparency Fails

ERichler_Webby Erica Richler
August 13, 2018

Should regulators go public with safety concerns before they are fully established? That was the issue facing a regulator, a hospital and the government in the spring of 2009. A review of the radiological interpretations by Dr. Tsatsi indicated serious concerns that placed the public at risk. The regulator decided to conduct a broader review. However, Dr. Tsatsi was suspended from his position in the meantime and a press release was issued so that the public could take appropriate measures to protect their health. A decision was made to name Dr. Tsatsi publicly (rather than just send private communications to affected patients) for a number of reasons including to better enable patients to take action, to protect the reputation of other radiologists who would otherwise be placed under suspicion and to demonstrate transparency in circumstances where the media would almost certainly identify Dr. Tsatsi in any event. Dr. Tsatsi sued for defamation.

In Tsatsi v College of Physicians and Surgeons of Saskatchewan, 2018 SKCA 53, http://canlii.ca/t/hswdj, Saskatchewan’s highest court upheld the summary dismissal of the lawsuit. It held that the defence of justification applied in that, at the time that the statements were made by the regulator, the statements (namely that the public was at risk) were accurate. A subsequent investigation largely confirmed the accuracy of those statements as well. The Court also held that the defence of qualified privilege applied in that the regulator had a duty to protect the public and it acted without malice in deciding whether or not to publish Dr. Tsatsi’s name.

Regulators can take comfort that courts will be sympathetic to transparency initiatives taken in good faith.

Do Additional Considerations Apply to Applications for Registration by Indigenous Persons?

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by Rebecca Durcan
August 8, 2018

In Moore v The Law Society of British Columbia, 2018 BCSC 1084, http://canlii.ca/t/hssff, an applicant (Ms. Moore) had conditions imposed on her registration because of conduct concerns while practising in another province. Ms. Moore consented to the conditions relating to engaging a mentor and practising under supervision. However, those conditions did not work for Ms. Moore and she withdrew her consent to the conditions and sought to have them removed. The regulator refused. Ms. Moore sought judicial review on the basis that the conditions were unreasonable and that the conditions failed to take into account her background as an indigenous person. On the latter point Ms. Moore argued both that she could much to offer to the justice system because of her cultural competence in aboriginal issues and that the regulator had failed to consider her background when evaluating the significance of her discipline history in Alberta.

The Court held that there was no formal requirement on the regulator to consider her indigenous background when dealing with registration matters. However, the Court was concerned that the regulator could have done more in the circumstances:

However, there are moments where the Law Society and the Credentials Committee could have better supported and assisted Ms. Moore in the application process. It is likely that supports such as meeting with Ms. Moore in person, explicitly referencing Ms. Moore’s background and life experiences in the decisions or discussing them with her, or providing active support in creating conditions or proposals for mentorship, would have assisted in both protecting the public interest, and better supporting and assisting Ms. Moore in applying for transfer and fulfilling her duties in the practice of law.  Improved communication from the Law Society would likely have had the effect of assisting Ms. Moore to find constructive solutions.

As Ms. Moore notes and I am sure the Law Society would agree, it is also in the public interest to have practising Indigenous lawyers who can provide culturally appropriate services to clients. Supporting Indigenous lawyers in the process of becoming admitted to the bar and remaining members of the bar, whether that is accomplished through future policies or other means, will foster the process of reconciliation that the Law Society has, on its own initiative, embarked upon.

The Court also found that the decision of the regulator was reasonable. It had considered the information provided and applied criteria relating to protecting the public interest that was specified in its enabling legislation. In particular the Court concluded that expressing misgivings about proposed conditions before consenting to them does not make that consent invalid. The Court also held that an applicant cannot withdraw consent once the final decision to register with conditions was made. The proper remedy was to apply to have the conditions removed.

After upholding the regulator’s decision as reasonable, the Court then took the unusual step of suggesting to the parties how they might consider a fresh application to vary the conditions in a different manner:

It may assist if Ms. Moore were to make another application to the Law Society to remove the conditions, that the parties engage in a form of mediation or conversation to resolve any issues that arise in that application, and in a manner that is sensitive to the issues discussed in this petition. There were opportunities in these circumstances for the Law Society to take further steps in recognizing the challenges that Ms. Moore as an Indigenous lawyer faced in entering and remaining in the profession.  In addition, a conversation with the Law Society may assist Ms. Moore in finding a constructive route to the partnership she sought for her work on Indigenous justice issues.

The Court’s comments reinforce the need for regulators to approach registration cases individually and not routinely apply criteria without considering any special circumstances.

It is interesting to note that shortly after this decision the regulator adopted a report to promote training on indigenous matters for students, indigenous representation on committees and reviewing standards for systemic barriers:
https://s3.amazonaws.com/tld-documents.llnassets.com/0007000/7036/truthandreconciationactionplan2018.pdf. That report was obviously in the works well before this decision was released.

Re-Enactment of the Events by Disciplinary Tribunal Upheld

BLeBlanc_Webby Bernie LeBlanc
July 31, 2018

In College of Physiotherapists of Ontario v. Boon, 2018 ONSC 3463, http://canlii.ca/t/hsgbg, the disciplinary tribunal had to assess the credibility of the practitioner for allegations related to the intimate touching of a patient. While the tribunal concluded the touching was not of a sexual nature, it still found the touching to be unprofessional. In making its findings, the tribunal found the practitioner’s evidence lacked plausibility because it was physically difficult to do the procedures the practitioner described in his evidence. In part this lack of plausibility was based on an attempt by the tribunal to re-enact the procedures in the deliberation room.

The primary ground of appeal by the practitioner was that this private re-enactment by the tribunal amounted to the creation of additional evidence in the absence of the parties and was thus a breach of the principles of procedural fairness. The Divisional Court disagreed. It found that the re-enactment was simply a method of assessing the detailed evidence given by the practitioner in his own evidence. There was a basis in the evidence to doubt the plausibility of the practitioner’s evidence without the re-enactment. In addition, the re-enactment was an extension of what counsel for the practitioner had already requested of the tribunal during a break in the hearing: the tribunal was asked to hold a book that the practitioner testified had been shown to the patient without it touching the patient (contrary to the patient’s evidence).

On the issue of sanction, while the Court was troubled by the tribunal listing the lack of remorse by the practitioner as an aggravating factor (rather than being the absence of a mitigating factor), the Court upheld the order as reasonable, particularly where the tribunal had specifically affirmed the practitioner’s right to make full answer and defence.

Incarceration an Order of Last Resort in Unauthorized Practice Cases

Maciura_Julie_5038by Julie Maciura
July 24, 2018

It is common to seek restraining orders against those practising the profession or holding themselves out. When an individual continues to perform a restricted activity or hold themselves out as a member of the profession after the restraining order has been granted, it is contempt of court. Contempt of court is a serious matter which can result in imprisonment.

In The Law Society of Upper Canada v. Hatzitrifonos, 2018 ONSC 3719, http://canlii.ca/t/hsl8r, Mr. Hatzitrifonos was found in contempt of court for the “repeated, wilful and deliberate” practise of law over a period of two years after a restraining order had been imposed. The regulator sought a 30 day jail term. The Court held that the primary purpose of sanction for contempt of court was to compel compliance with the law. A secondary purpose was deterrence. In this case however, Mr. Hatzitrifonos apologized for his conduct, changed his career path to avoid the temptation to practise law again, promised his conduct would never happen again, undertook community service and began payment of the costs he owed to the regulator. The Court said that incarceration was a last resort in contempt of court cases. It also found that a fine would be counter-productive as Mr. Hatzitrifonos had no money and very little income and it would prevent him from repaying the costs he already owed. Instead the Court expanded the amount of community service Mr. Hatzitrifonos had to fulfill and reinforced the need to continue paying the costs owed.

The Kitchen Sink

ERichler_Webby Erica Richler
July 17, 2018

Some appeals involve multiple issues. Kennedy v. College of Veterinarians, 2018 ONSC 3603, http://canlii.ca/t/hsfqb is one of those cases. In that case the Court held as follows:

  1. Theft of the court reporter’s computer resulting in losing the transcript for one and a half days of the hearing did not result in an inability to hold a meaningful appeal where the notes of two panel members and independent legal counsel provided sufficient information for the Court to assess the issues.
  2. Where primary disclosure has been made of the regulator’s evidence, a party seeking disclosure of the investigation file of another agency involved in the matter requires an O’Connor type of motion. The failure of the regulator to obtain the other agency’s file and disclose it is not a refusal to make primary disclosure. The fact that the practitioner had not brought a motion for the other agency’s documents was fatal to his appeal.
  3. Where a party consents to the qualifications of an expert witness, they cannot later challenge the neutrality of the witness in most circumstances.
  4. The regulator is not required to call an independent person as its witness at the request of the practitioner. The practitioner is in an equal position to summons the independent person.

The Court also found that the findings and reasons on credibility, penalty (i.e., revocation) and costs were reasonable.

Accommodation Has to be Requested

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by Rebecca Durcan
July 10, 2018

In Zaidi v. Immigration Consultants of Canada Regulatory Council, 2018 FCA 116, http://canlii.ca/t/hsjrq the applicant for registration by a regulated profession was unable to meet the language proficiency requirements. The applicant repeatedly failed the language proficiency test and challenged the requirement as discriminatory on the basis of his medical conditions. The Court dismissed the challenge primarily on the basis that it did not have jurisdiction to hear the appeal. However, it also said that the appeal had no merit because the applicant had not sought accommodation and thus had not been refused accommodation. Thus there is an onus on applicants to request accommodation before a complaint of discrimination on the basis of disability can be made out.

Test for Establishing Negligent Investigations

BLeBlanc_Webby Bernie LeBlanc
July 5, 2018

Regulators are sometimes criticized for their investigations. Most regulators are protected for actions taken in good faith, even if negligent. However, to the extent that regulators can be sued for negligent investigations, the test for establishing liability can be summarized as follows (see: Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, http://canlii.ca/t/hs9m7):

  1. The appropriate standard of care for the tort of negligent investigation is that of the reasonable police officer in similar circumstances.
  2. In the laying of charges, the reasonable standard is informed by the presence of reasonable and probable grounds to believe the suspect has committed the offence.
  3. This standard does not require police to establish a prima facie case for conviction.
  4. The police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges.
  5. A police officer is not required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds.

This test is probably also relevant for courts and tribunals reviewing the adequacy of a regulator’s investigation in the context of complaint reviews or disciplinary hearings.

The Court in Tremblay noted that there should be expert evidence as to the standard of investigations in the context of the case before any finding of inadequate investigation is made. The Court also indicated that it is appropriate for investigators to choose not to interview the subject of the investigation before initiating further proceedings.

Going Behind the Corporate Veil

Maciura_Julie_5038by Julie Maciura
June 25, 2018

Regulators have special challenges when regulating practitioners who practise through a corporate structure. One such challenge is being clear in any notice of hearing whether the regulator is pursuing allegations against the individual, the corporation or both. In Best Import Auto Ltd. v Motor Dealer Council of British Columbia, 2018 BCSC 834, http://canlii.ca/t/hs4n5, the notice of hearing clearly indicated that the corporation could face sanction, but was less clear whether the responsible officer / owner was also at risk of sanction. As a result the Court set aside the sanction imposed against the individual.

On another issue the Court gave short shrift to the concern about a single hearing being held on both the issues of finding and sanction. The defendants complained that they should have been given full detail of the findings before being required to address sanction. The Court noted that many courts and tribunals combine both stages of the hearing. The Court noted that the defendants could waive their right to separate hearings. Only where the defendants requested separate hearings and they were denied was this a true issue of fairness.

The Court also indicated that under the legislation in issue, an implied aspect of the power to impose a revocation was the added authority to specify a time period before the defendant could apply for reinstatement. In this case the specified period was ten years.

Oversight Responsibilities of the Responsible Minister

ERichler_Webby Erica Richler
June 18, 2018

Government Ministers are responsible for overseeing statutory regulators. However, that responsibility does not mean that the Minister is a necessary party to any legal disputes involving the regulator: A Solicitor v. The Law Society of British Columbia, 2018 BCCA 163, http://canlii.ca/t/hrq4w.

Ms. Walker was a lawyer. She has disabilities which she indicated had profound financial consequences for her. After being given notice, her membership with the Law Society of British Columbia was terminated for non-payment of fees. Ms. Walker sought judicial review of the failure of the Law Society to give her a further extension to pay her fees. As is required, she served a copy of the notice of application for judicial review on the Attorney General of the province. The Attorney General is the Minister with general oversight for the Law Society. In fact, the Attorney General is by virtue of their office a Bencher (Board member) of the Law Society. Ms. Walker wanted to require the Attorney General to be a party to the judicial review proceeding to assist her in pursuing her application.

The Court held, in the course of a procedural motion, that the oversight duties of the Attorney General do not include an obligation to participate as a party in legal challenges against the regulator.

Raising the Bar is Not Easy

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by Rebecca Durcan
June 11, 2018

In a series of cases over the last few years it seems clear that the College of Physicians and Surgeons of Ontario has been trying to impose more significant sanctions in sexual abuse and sexual impropriety cases. It has had limited success. The latest setback is found in Horri v. The College of Physicians and Surgeons, 2018 ONSC 3193, http://canlii.ca/t/hs8sz. Dr. Horri began a sexual relationship with a vulnerable and relatively young patient two weeks after the professional relationship ended. He acknowledged that he later learned that this conduct was unacceptable because of the ongoing power imbalance. He successfully completed a boundaries course, including follow up visits and introduced psychiatric evidence indicating that he was of a low risk to repeat such conduct.

The discipline panel revoked Dr. Horri’s registration. The Court said:

The Committee acknowledged that revocation was outside the range of typical penalties imposed in prior cases; however, revocation was justified because of the seriousness of Dr. Horri’s misconduct and the Committee’s concern that he did not have sufficient insight to control himself in the future. The Committee offered no review of similar cases. The Committee held that typical penalties might need to reflect changing societal values.

The Divisional Court quashed the revocation and returned the matter for further consideration. The Court held that where there was a significant increase in the sanction from the existing range of cases, some of which were even more serious in nature, the panel had to provide persuasive analysis beyond “changing societal values”. The previous cases needed to be evaluated in detail. The Court also indicated that, while it was open to the panel to reject opinion evidence about future risk of harm, it had to do so carefully and that it still needed affirmative evidence to conclude that there was an actual risk of harm.

Interestingly, the same month as this decision was released, amendments to the RHPA deemed such conduct to be “sexual abuse” engaging a mandatory order of revocation. Sometimes legislation is easier than litigation.

Few Lessons for Regulators from Groia

BLeBlanc_Webby Bernie LeBlanc
June 4, 2018

Few decisions were as anticipated by the legal profession as was the Supreme Court of Canada verdict in Groia v. Law Society of Upper Canada, 2018 SCC 27, http://canlii.ca/t/hsb9d. Mr. Groia had been disciplined for incivility for the way in which he had treated the opposing lawyer in a high profile securities prosecution. Mr. Groia had made allegations of prosecutorial misconduct (mostly about disclosure issues), using strong language, throughout much of the trial. The Supreme Court reversed the misconduct finding on the basis that while Mr. Groia was mistaken about the law, he acted in good faith and had some basis for making the assertions (despite his incorrect view of the law).

For regulators of professions other than law, the case will have little significance. The Court affirmed the reasonableness standard of review of findings of professional misconduct and supported an approach that involved considering all of the circumstances. The majority of the Court found that, in the context of this case, it was unreasonable to find that Mr. Groia had crossed the line given his good faith, but erroneous, view of the prosecutor’s disclosure obligations and the circumstances in the particular case (e.g., the conduct of the prosecutor and the relatively passive stance of the judge). A key consideration, which will not apply to most other regulators, was that the conduct occurred in court and was directed at another member of the profession where resolute and fearless advocacy for a client is required. It is doubtful that a court would give that amount of leeway for practitioners advocating in a rude manner for their own clients in other contexts (e.g., a health care setting).

Unfortunately for regulators, this decision may slightly embolden defence counsel to make allegations of prosecutorial misconduct by the regulator. While such allegations are rarely successful, they can significantly increase the costs of misconduct investigations and hearings.

What to Include in the Reasons for Imposing a Sanction

ERichler_Webby Erica Richler
May 31, 2018

In Davis v. British Columbia (Securities Commission), 2018 BCCA 149, http://canlii.ca/t/hrlk7 an investor relations service provider accepted $7,000 from an investor for the purchase of shares that were never obtained. Mr. Davis was found to have engaged in fraud because he “untruthfully told an investor he owned the shares he was selling to that investor. Mr. Davis contends his actions do not amount to fraud because he believed he would receive those shares in the future.” The allegations were established and the sanctions included a lifetime full-market ban.

On appeal, the Court returned the matter for a fresh hearing on sanctions, despite the fact that such dishonesty often resulted in permanent market bans. The Court held that the sanction had to be proportional to the conduct. In this case the reasons of the tribunal did not reflect a consideration of the personal circumstances of Mr. Davis (including his unblemished record, his age, and that the order would end his long-established career) and consideration of whether the alternate available sanctions would be sufficient to protect the public.

Reasons for decision for sanction should include an explicit consideration of the mitigating circumstances and an explanation as to why the lesser available orders are not appropriate in the case. This is true even where dishonesty has been found.

Considering a Prior Decision that is Under Review

Maciura_Julie_5038by Julie Maciura
May 28, 2018

In Law Society of British Columbia v. Perrick, 2018 BCCA 169, http://canlii.ca/t/hrs3p, a lawyer was facing two discipline hearings for conduct that occurred at roughly the same time. The first hearing resulted in a finding with a fine, but no suspension, primarily because of the lawyer’s “clean” record. While that decision was under review, the second hearing was held and also resulted in a finding. However, this time the prior finding was considered and the second case resulted in a suspension. The lawyer appealed on the basis that the tribunal should not have considered the prior finding while it was still under review. The Court disagreed. It held that the prior finding was “final” and could be considered unless and until it was reversed. If the prior finding was reversed on review, the lawyer could then appeal the second decision on that basis.

While this decision reassures discipline tribunals that it can consider the past record of the practitioner as it stands on the date of the hearing, it does place the regulator at some risk should a prior finding be set aside.

Court of Law vs. Court of Public Opinion

ERichler_Webby Erica Richler
May 23, 2018

Few discipline cases have achieved as much notoriety as the discipline of Ms. Strom, a nurse in Saskatchewan, for posting comments on Facebook that were critical of the care that her grandfather had received at a facility. Ms. Strom was found to have engaged in professional misconduct, fined $1,000, and ordered to pay $25,000 in costs. It is probably no exaggeration to say that the decision was skewered in the court of public opinion. In fact, journalist André Picard made the case a focal point of his keynote address to the Canadian Network of Agencies for Regulation (CNAR) conference in 2017. He argued that the decision to prosecute the case at discipline reflected a misguided choice of regulatory priorities and a fundamental lack of appreciation of the role (and future) of social media.

Ms. Strom appealed the decision. However, in Strom v. Saskatchewan Registered Nurses’ Association, 2018 SKQB 110, http://canlii.ca/t/hrm9c the Court upheld the disciplinary decision. Repeatedly citing the principle of deference to the expertise of the specialist tribunal, the Court found it was reasonable for the tribunal to assert jurisdiction over the off-duty conduct of a nurse, to find that the conduct was unprofessional, to conclude that the infringement on the nurse’s freedom of expression was reasonable, and to award $25,000 in costs.

This case illustrates the multi-faceted accountability of regulators, which does not always result in consistent messages.

Complaints Against Staff of a Regulator

BLeBlanc_Webby Bernie LeBlanc
May 17, 2018

Most regulators have some staff members who are also registered members of the profession. Occasionally misconduct complaints are made against these staff members even though the conduct occurred in the course of their regulatory duties. Frequently those complaints are made in retaliation for action taken by the regulator against the complainant / practitioner. These retaliatory complaints can amount to an abuse of process. Regulators have to then decide how seriously and thoroughly to take those complaints.

In Aylward v Law Society of Newfoundland and Labrador, 2018 NLCA 20, http://canlii.ca/t/hrh67, the regulator had to deal with this very issue. The Executive Director and the Legal Director of the regulator were the subject of a counter-complaint by Mr. Aylward. Mr. Aylward had himself been the subject of a complaint that resulted in a caution. Mr. Aylward complained that the regulatory staff had, among other things, concealed and fabricated evidence that related to the previous complaint against him. The regulator took Mr. Aylward’s complaint seriously. The investigation and screening committee conducted a thorough investigation and retained an external lawyer to investigate key aspects of the complaint. The investigation and screening committee determined there were insufficient grounds to take action against the regulatory staff.

Mr. Aylward appealed, arguing that there was an appearance of bias on the part of the external investigator (who had done some previous work for the regulator and may have wanted to receive additional assignments). Mr. Aylward was also concerned that some of the witnesses he identified were not interviewed. The Court of Appeal adopted the reasons of the lower court. The lower court (at: http://canlii.ca/t/hn8wn) found there was no reasonable apprehension of bias in the circumstances and that there was little likelihood that the witnesses who were not interviewed would provide additional useful information. On this point the lower Court said:

Once a complaint is laid the CAC [i.e., the investigating and screening committee] is the body that decided how to proceed and what procedures are to be followed. The CAC is given a very wide discretion as to how the investigation is to be carried out, if witnesses are to be called or whether only a written record will suffice. There is a reason for this and the reason is that these complaints authorization committees are set up to deal with issues that could involve minor misconduct or things as serious as the misappropriation of the public’s money or any range of professional misconduct toward the public or a fellow solicitor. As such, the process is meant to be flexible, allowing the Committee to investigate as thoroughly as it deems necessary depending on the nature of the complaint.

While there may be some cases in which treating such a complaint is viewed as an abuse of process, in many cases it may be prudent for the regulator to process the complaint even though it is far-fetched.

Parity in Penalties Remains Important

Maciura_Julie_5038by Julie Maciura
May 14, 2018

Even before the Court of Appeal rendered its decision in College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, http://canlii.ca/t/hrt0r, the courts have been reaffirming the importance of consistency in sanctions. In Billing v. College of Physicians and Surgeons of Ontario, 2018 ONSC 2624, http://canlii.ca/t/hrp9r, Dr. Billing was found guilty of professional misconduct relating to record keeping and a lack of sterile technique in procedures. The Discipline Committee imposed a two month suspension and extensive monitoring and supervision restrictions. The Court said:

The Discipline Committee conducted an appropriate parity analysis. It expressly stated that, in general, like cases should be treated alike, and it had considered the cases cited.  Despite the appellant’s argument that the penalty was outside the range, the suspension was within the range of penalties in prior decisions, which ranged from zero to six months suspension.  Each case obviously turns on its particular circumstances.

The Committee also correctly observed that parity is not the only relevant consideration. It explained that a suspension was warranted because the misconduct was pervasive and systemic in the appellant’s practice, it related to many patients over an extended period of time, and it exposed his patients to a risk of serious harm.  The Committee was concerned about both general and specific deterrence, as well as the need to address the impact of the conduct on public confidence in the College’s regulation of the profession.

The Committee did not misconstrue the Peirovy decision (at the Divisional Court) as no longer requiring it to take prior decisions into account.  It expressly stated that similar cases should generally be dealt with in a similar fashion.  It also stated that it had considered past cases and was “satisfied that the penalty imposed on Dr. Billing is reasonable and proportionate given the particular facts of this case.”

While consistency in orders is not the only consideration, it remains an important factor.

Court Review of Credibility Findings

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by Rebecca Durcan
May 10, 2018

If one of the most difficult tasks for a hearing panel is to assess the credibility of witnesses, one of the more challenging roles for a court is to review the credibility findings of lay tribunals. In two recent cases, courts have considered credibility findings. In the cases, the courts have provided some insight as to both what they look for on such an appeal and how difficult it is to reverse credibility findings.

In Ontario College of Nurses of Ontario v. Todd, 2018 ONSC 1689, http://canlii.ca/t/hrbzz the issue was whether a nurse had slapped a patient in a psychiatric facility. As the court said, it was a “he said vs. they said” case (as the regulator’s case involved not only the patient, but a number of witnesses). The discipline panel found that the allegations had not been proved on a balance of probabilities. The College appealed on the basis that the hearing panel misapprehended some of the evidence, failed to adequately address the inconsistencies in the nurse’s evidence and failed to sufficiently explain why it did not accept the patient’s evidence.

The Court dismissed the appeal. It found that the hearing panel’s assessment of the evidence was reasonable. It had identified serious concerns about the consistency of the evidence of the key witnesses to the incident. The hearing panel had addressed the inconsistencies in the nurse’s evidence as being consistent with his not recalling the details of an ordinary day. In addition, the Court held that the assessment of the credibility of the patient (i.e., essentially that “the nature of the evidence that she was able to provide to the Panel lacked specificity, and could therefore not be heavily relied upon by the Panel”), while brief, was adequate in the circumstances. The Court found that the lack of specificity in the patient’s evidence was apparent from the hearing panel’s description of her evidence.

The second case, College of Physicians and Surgeons of Ontario v. Yaghini, 2018 ONSC 2449, http://canlii.ca/t/hrjwf, involved a “he said, she said” allegation of a male physician kissing a fifteen-year old patient while making inappropriate comments. There were no witnesses in this case. The physician appealed the finding of professional misconduct. Many of the typical challenges to credibility findings were raised, including: failing to adequately address the discrepancies in the patient’s evidence, failing to distinguish between the honesty of a witness and their reliability, and treating the discrepancies in the practitioner’s evidence more harshly than those of the witness. For each of those issues the Court found that there was reasonable support for the reasons of the panel indicating that these errors had not, in fact, been made.

In both cases it was the effort by the tribunals to provide reasons explaining why it made its credibility findings that resulted in the decisions being upheld.

Public Has a Constitutional Right of Access to the Record of a Hearing

BLeBlanc_Webby Bernie LeBlanc
May 8, 2018

In Toronto Star v. AG Ontario, 2018 ONSC 2586, http://canlii.ca/t/hrq6s, the media outlet brought a wide ranging challenge to the practice of many, but not all, government tribunals restricting the public’s right of access to their hearing records. The tribunals that restricted access did so on the basis of the privacy rights of individuals referred to in the hearing record citing the Freedom of Information and Protection of Privacy Act (FIPPA). The Court found that FIPPA contained a presumption of privacy that was inconsistent with the open court principle inherent in the freedom of expression protections in the Canadian Charter of Rights and Freedoms. The Court gave the government one year to amend FIPPA to make it consistent with the Charter. The decision only applies to tribunals that hold hearings.

Most professional regulators in Ontario are not directly part of the government and thus are not governed by FIPPA. Most professional regulators already take the presumption of public access approach. So this decision has little direct application to them. However, in the course of its reasons, the Court emphasized that the Charter right of public access requires a speedy process for access requests to be honoured. The Court also indicated that there would be circumstances in which the hearing tribunal could restrict access (e.g., withhold or redact some information) where the privacy interests of the individual outweighs the usual principle of openness. Where the request for access to the hearing record is made during the hearing itself, it can usually be decided quickly. However, where the request is made after a hearing (or where it relates to the privacy interests of a person who is not present at a hearing), regulators must develop procedures to consult the relevant persons promptly. The Court suggested that a 30-day time period might be acceptable.

Changing Society and Historical Law

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by Rebecca Durcan
May 4, 2018

Perhaps the most notorious sexual abuse case in recent years was determined by Ontario’s Court of Appeal earlier this month. In College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, http://canlii.ca/t/hrt0r, a physician was found to have engaged in the sexual abuse of four patients by touching their breasts without consent or medical indication. Another finding of unprofessional conduct occurred because he “had asked a fifth patient on a date immediately following his medical examination of her during which her breasts were exposed”. The regulator sought revocation. However, the discipline panel imposed a six month suspension, numerous conditions and serious financial consequences.

The regulator appealed its own tribunal’s decision as it believed the sanction was not sufficient. The Divisional Court, in a particularly strongly worded decision, would have returned the matter for the imposition of a much more serious sanction. That Court found that the tribunal had based its penalty decision on an acceptance of a “lack of awareness” explanation by the physician that was inconsistent with the tribunal’s finding that the conduct was obviously sexual in nature and that the patients did not “misunderstand” Dr. Peirovy’s touching. The Divisional Court also held that reliance on a range of unfit penalties in previous cases did not justify a penalty that no longer reflected current societal values.

The majority of the Court of Appeal concluded that the Divisional Court had erred by reading the reasons of the discipline tribunal too rigorously and by failing to show adequate deference to the specialized knowledge of the expert disciplinary tribunal. The majority concluded that the discipline committee had considered and explained in its reasons why the sanction selected was reasonable and protected the public. One member of the Court of Appeal dissented, vigorously supporting the approach taken by the Divisional Court on both issues.

Interestingly, the Court of Appeal had very different interpretations of the subsequent amendments to the legislation that now require revocation for such conduct. The amendments were almost certainly a direct result of the controversy over the Discipline Committee’s decision in the Peirovy case. The majority indicated that the discipline panel was implementing the framework that existed at the time and the Legislature’s ensuing alteration of the framework was irrelevant.

The dissenting Justice viewed the amendments to the legislation as a reaction to the discipline panel’s failure to recognize that societal expectations had indeed shifted.

The Impact of Bankruptcy on Disciplinary Fines and Costs

Maciura_Julie_5038by Julie Maciura
April 30, 2018

Bankruptcy is intended to provide people with an opportunity to gain a fresh start without the burden of debt; it is governed by federal law. Disciplinary proceedings are intended to protect the public from harm, often through the imposition of a sanction to deter the regulated practitioner and others; they are governed by provincial law. Valid federal law is paramount over inconsistent provincial law. One can just imagine the complexities that flow where a bankrupt practitioner also faces fines and costs imposed by a disciplinary panel. This complexity is fully evident in the lengthy discussion of the issues in Chartered Professional Accountants of Alberta v Neilson, 2018 ABQB 170, http://canlii.ca/t/hr0wg.

In that case the practitioner initiated bankruptcy proceedings while he was under investigation by his regulator for allegations of serious misconduct (the events of two incidents arose before he declared bankruptcy; the events of the third incident occurred after he declared bankruptcy). Ultimately an agreement was reached between the practitioner and regulator resolving all three matters and resulting in the cancellation of the practitioner’s registration, a fine of $50,000 and a $15,000 costs order, among other things. When the regulator tried to collect those amounts, the practitioner refused to pay, saying that they were covered by the bankruptcy proceeding and that he would not have reached an agreement with the regulator if he knew he would actually have to pay the fines and costs. The primary issue for the court was determining whether these amounts were contingent liabilities that could be estimated (i.e., were provable) at the time of bankruptcy (in which case they would be covered by the bankruptcy proceeding) or whether they were too speculative to be included in the bankruptcy process.

After a detailed analysis, the court found that the costs ordered by the Discipline panel relating to the two complaints that arose prior to the practitioner declaring bankruptcy were provable because they were relatively predictable in the circumstances (and as such, they were covered by the bankruptcy process and the regulator could not collect on them). However, the fines imposed in relation to all three complaints, as well as any costs that related to the third complaint, were speculative at the time the practitioner declared bankruptcy and so they could be recovered by the regulator outside of the bankruptcy process. The court analyzed the various factors that go into determining what sanction a discipline panel will order in a particular case and found that it was impossible to predict that a fine would be imposed against the practitioner (in addition to revoking his registration, which seemed guaranteed). As such, the court ordered that the regulator was entitled to a money judgement against the practitioner for the fines (as well as the incremental costs related to the third allegation).

Where regulators are aware that a member has initiated bankruptcy proceedings prior to a discipline hearing, they should take the bankruptcy proceedings into account when developing the appropriate sanction. In addition, regulators should generally be aware that bankruptcy proceedings after a discipline hearing can have a significant impact on the collectability of the monetary aspects of the sanction.

Disability and Disciplinary Orders

ERichler_Webby Erica Richler
April 26, 2018

Where a practitioner raises the mitigating factor of the practitioner’s illness, who has to prove what? This issue was squarely raised in Braile v Calgary (Police Service), 2018 ABCA 109, http://canlii.ca/t/hr36m. The police officer was found guilty “for misconduct connected with a prolonged and dangerous high-speed police chase on December 15, 2008 in Calgary, contrary to CPS policy, which resulted in serious injury to an individual unconnected with the chase.” At the penalty phase of the hearing the police officer raised, as a mitigating factor, that he was in a manic phase of a bi-polar disorder.

The Court held that the burden of proof was on the practitioner to establish the presence of a mitigating factor on a balance of probabilities. The practitioner would have to establish both the presence of the illness and that the illness caused or contributed to the behaviour in issue. The Court upheld as reasonable the tribunal’s finding that it had not been established that the police officer was experiencing manic symptoms at the time of the high-speed car chase.

Considering Exemptions for Registration

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by Rebecca Durcan
April 23, 2018

Some regulators are permitted to consider exemptions (sometimes called waivers) for applicants for registration who do not meet the technical requirements. Typically these exemptions permit an applicant to demonstrate that they meet the necessary competencies through an alternative means (e.g., experience as well as formal education). It is necessary for regulators to consider whether an exemption should be granted. Failing to analyze the availability of the exemption can nullify the determination. That was the case in Yates v Nova Scotia Board of Examiners in Psychology, 2018 NSSC 43, http://canlii.ca/t/hqvww.

In the Yates case the applicant had a “non-practising” registration status in Saskatchewan. Nova Scotia did not have such a category. The Court held that the applicant did not qualify under the Agreement on Internal Trade as Nova Scotia was not required to create such a category for her. However, the regulator now had to consider whether she qualified under the existing requirements for applicants. The Nova Scotia legislation permitted persons without an approved degree to receive individual consideration if registered elsewhere (even in a non-practising capacity). As a result of the policies and procedures adopted by the regulator, it did not actually consider whether this applicant should receive the waiver. Failing to do so resulted in the matter being returned for fresh consideration. The Court said:

The protection of the public is not solely achieved by powers of exclusion. It is also served by the permissive power to consider the inclusion of individuals, where appropriate, whom the authority feels may be able to assist in protecting the public by the delivery of competent, professional services, notwithstanding their technical inability to meet all of the requirements ….

The Court was also concerned that some materials had not actually been provided to the decision makers on the basis that staff thought the materials were not relevant. Rather, only a verbal summary of the materials was provided. The Court noted that the materials were potentially relevant to the issue of whether an exemption should be granted and, as such, procedural unfairness resulted.

A New Test for Interim Mandatory Injunctions

BLeBlanc_Webby Bernie LeBlanc
April 19, 2018

Often a major dispute in a proceeding is who has to do what until the matter is finally decided. Courts frequently rely on the status quo so if one side wants to preserve it in the face of a proposed regulatory change, they traditionally only had to prove that there is a serious issue to be considered, they will suffer “irreparable harm” and the “balance of convenience” favours their position: RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311, http://canlii.ca/t/1frtw.

More recently, the Supreme Court of Canada recently stated that if a party wants to order the other party to do something, their position has “such merit that it is very likely to succeed at trial”: R. v Canadian Broadcasting Corp., 2018 SCC 5, http://canlii.ca/t/hq979. In the CBC case the court refused to order a media outlet to temporarily remove articles identifying a victim posted before an order banning publication was made because it was not clear that the application to permanently do so would succeed.

Even more recently, in Moore v The Law Society of British Columbia, 2018 BCSC 386, http://canlii.ca/t/hr06v, the Court confirmed this new test on an interim request to remove the restrictions imposed on a lawyer’s licence pending a full hearing on the validity of those restrictions. Ultimately the Court did not have to assess the strength of the applicant’s case because the balance of convenience favoured the regulator.

One can see this new test becoming an issue when a regulator seeks an interim injunction compelling an unregistered practitioner to stop practising or to cease using a protected title. This new test is less likely to become an issue for interim suspension orders during investigations or hearings because the legislation often imposes its own legal test for making the determination (i.e., likely to expose a client to harm or injury).

Internal Appeals

Maciura_Julie_5038by Julie Maciura
April 16, 2018

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.
  1. This presumption can be rebutted by clear, not ambiguous, statutory language.
  1. 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.
  1. 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.

Ungovernability: The Sequel

ERichler_Webby Erica Richler
April 12, 2018

Being found to be ungovernable twice in two years is quite a feat. This happened to a Manitoba nurse in Kuny v College of Registered Nurses of Manitoba, 2018 MBCA 21, http://canlii.ca/t/hqx9l. In that decision “the Discipline Committee found that Kuny had, by his actions and words, refused to accept the authority or take direction from his governing body and was therefore ungovernable.” Without going into detail, the Court held that this finding was well supported by the evidence. The Court also upheld an order cancelling the nurse’s registration and imposing $30,000 in costs as reasonable in the circumstances. The Court indicated that this was the second finding of ungovernability, which was an aggravating factor. The Court did state that a lack of remorse cannot be an aggravating factor resulting in a more severe sanction, but could be a reason for not otherwise extending leniency. In this case the tribunal had not commented on the lack of remorse when dealing with penalty. Rather, it had only indicated that he had failed “to accept responsibility or to be accountable for his actions” when discussing the issue of ungovernability, which was appropriate.

The “I Did Not Receive the Email” Defence Fails

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by Rebecca Durcan
April 9, 2018

In The Law Society of Manitoba v Alghoul, 2018 MBCA 23, http://canlii.ca/t/hqx9n, a lawyer was sent numerous emails from an adjudicator which he did not answer. Ultimately the adjudicator had to contact the lawyer’s firm to obtain the information. The proceedings were compromised because of the delay. The adjudicator made a complaint to the regulator. In response to the complaint the practitioner acknowledged receiving the emails and explained that his failure to respond was due to travel and personal issues. Just prior to the discipline hearing the practitioner asserted that the emails went into a junk file folder of an inactive email address and he therefore had not received the emails. The discipline tribunal rejected these explanations and concluded that his earlier admissions were more accurate. It held a hearing and found that the conduct involved a continuing failure to display “candour, courtesy and respect” and was unprofessional. It imposed a reprimand and awarded $28,000 of costs against him in part because of the manner in which he conducted his defence. The Court upheld the finding and order as reasonable.

While the facts of this case are somewhat unusual, the outcome indicates that regulatory bodies can infer that emails were received, particularly where there is a delay in the assertion that they were not received. The case also indicates that significant cost implications can be imposed where a practitioner departs from their initial response to the complaint at a subsequent discipline hearing.

Regulator Implements Anonymous Tip Line Recommendation

BLeBlanc_Webby Bernie LeBlanc
April 3, 2018

The groundbreaking June 2016 report of the Independent Advisory Group into the regulation of the real estate industry in British Columbia contained the following recommendation:

  1. The Real Estate Council implement confidential reporting channels (for example, reporting hotlines or whistle-blower programs) for industry and the public, to facilitate reporting of licensee misconduct.

Very few regulators encourage anonymous reports for a number of reasons. It is difficult (although not legally impossible) for an anonymous tip to constitute reasonable and probable grounds to support the initiation of an investigation. Even if an investigation can be initiated, it may be difficult to investigate effectively without a witness. In addition, approaching a practitioner about a serious abuse of trust without possessing some evidence can result in the identification of the anonymous reporter (through the details reported), increasing the risk of either interference with the reporter /witness or the concealing of evidence. It takes a great deal of skill and effort to screen anonymous tips for relevance and to combine them with other information (e.g., already on file or contained in other anonymous tips). This sort of time investment is necessary because an apparently innocuous, seemingly malicious or ostensibly incomprehensible report could, in fact, relate to significant misconduct or incompetence. Failing to investigate such reports, if they do turn out to have merit, makes it appear retrospectively that the regulator “missed it”. Many practitioners feel it is unfair to be subject to an investigation without being able to comment on the credibility or motivation of their accuser. And there is, of course, the potential for a complaints/reports program to be abused by those with a personal grudge or by a competitor.

Despite these concerns the Real Estate Council of British Columbia has implemented the recommendation. Reports can be made either online or by telephone. Reporters are requested to complete a detailed form. Areas of possible reporting are identified with an emphasis on concealed or consensual misconduct that might not otherwise become known (e.g., secret commissions). Practitioners are reminded that filing an anonymous tip does not satisfy their mandatory reporting requirements, which must be made with the reporter’s identity revealed. For more information about the confidential reporting initiative, see:
https://www.recbc.ca/licensing/about-tipline.html.

It will be interesting to watch unfold any discipline proceedings (and potential court challenges) that result from these anonymous reports.

What Constitutes a Final Decision?

ERichler_Webby Erica Richler
March 26, 2018

Appeals of most regulatory decisions are only available if the decision is final. In civil cases, there has been much litigation about what constitutes a final decision for the purpose of determining the appropriate appeal route. In that context, a decision will be considered final if the ruling deprives a party of a “substantive right which could be determinative of the entire action”.

In The Law Society of Upper Canada v. Piersanti, 2018 ONSC 640, http://canlii.ca/t/hqjnd the disciplinary tribunal made an evidentiary ruling accepting the findings of fact of a trial judge in a civil case as binding on the practitioner. The tribunal would not allow the practitioner to challenge (or re-litigate) those findings of fact. The practitioner attempted to appeal that ruling, both internally to an appeal committee and in the courts. The tribunal had not yet made a decision with respect to the alleged misconduct or penalty.

The Divisional Court declined to hear the appeal and held that the test for finality used in civil cases did not apply. The Court indicated that in regulatory proceedings there is a high value in allowing the proceedings to be completed before appeals are considered. Given the public protection mandate of regulators, their non-legal structure and the practical problems created by interrupting the process, the Court determined that in most cases the hearing process should run its complete course before there is recourse to the courts. A final decision in regulatory cases is one in which all matters have been determined. Then, if necessary, a party can challenge the entire process in one appeal.

Dropping the F Bomb

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by Rebecca Durcan
March 21, 2018

Is it always professional misconduct for a practitioner to use profanity? In Johnson v. Law Society of British Columbia, 2018 BCCA 40, http://canlii.ca/t/hq732, the Court supported a finding that a lawyer “dropping the F Bomb” in a courthouse corridor directed at a police officer who was a witness in his court case “constituted a marked departure from the conduct the Law Society expects from its members”. The Court accepted that there may have been provocation by the police officer (who later arrested the lawyer when their “chests or stomachs” touched), but deferred to the expertise of the professional regulator. However, it was clear from the Court’s reasons that it accepted the proposition that not every profanity by a practitioner was professional misconduct and that the regulator needed to examine the circumstances of each case.

The Next Step in Combatting Sexual Abuse

Maciura_Julie_5038by Julie Maciura
March 16, 2018

The government is consulting on three separate regulations as part of its ongoing efforts to eradicate sexual abuse by health care practitioners. In the first, it includes as part of the definition, for the purpose of the sexual abuse provisions, of a patient a person with whom a practitioner has direct contact and where the person is billed, is the subject of a record entry by the practitioner, provides consent to treatment recommended by the practitioner, or is prescribed a drug by the practitioner. (Keep in mind that the Code itself, when the amendments are in force, will also include a definition of patient that does not “restrict the ordinary meaning of the term” and that will impose a one year “cooling off” period on sexual relationships with former patients.) Excluded from the definition of patient for the purposes of the sexual abuse provisions are persons with whom the practitioner already has a sexual relationship and who is treated only during an emergency.

The second regulation requires the practitioner to be revoked if found guilty of a sexual offence under the Criminal Code.

The third regulation requires the public register to provide information about practitioners: criminal charges and findings, conditions of release after arrest, and registration status and misconduct findings in other jurisdictions.

The consultation period on these regulations is remarkably brief and ends on March 22, 2018. That and the fact that the consultation is upon final legislative language suggests an intention to enact the regulations before the election this June.

Showing Respect

BLeBlanc_Webby Bernie LeBlanc
March 12, 2018

Most professions require their practitioners to show respect to their clients and colleagues. One of the central issues in Sullivan v. Ontario College of Teachers, 2018 ONSC 942 was on how to interpret this duty. Mr. Sullivan was a teacher who had concerns about vaccinations. There was a vaccination clinic for the students at his school. Mr. Sullivan left his class unattended to express his concerns about whether the nurse staffing the clinic was obtaining truly informed consent. His comments were found to be aggressive and intimidating (e.g., questioning whether the students were being told that one of the side effects of vaccination was death). Some of Mr. Sullivan’s comments were heard by and, in one case, directed at students. The Discipline Committee found that Mr. Sullivan’s conduct demonstrated a lack of respect to the nurse and the students (as well as his class which was left unattended).

On appeal, Mr. Sullivan argued that he was demonstrating respect to his students by trying to ensure that they gave truly informed consent, which he honestly believed was not occurring. The Court held that the issue of informed consent was between the students, their parents and the nurse. Mr. Sullivan had no role in the matter. The Court also held that it was reasonable for the Discipline Committee to find that Mr. Sullivan’s method of intervening did not honour the principle of respect.

Short Term Gain for Long Term Pain

Maciura_Julie_5038by Julie Maciura
March 5, 2018

When there is a public outcry about extremely inappropriate behaviour alleged against a practitioner, the regulator often feels compelled to reassure the public that such conduct is not acceptable. However, those public statements can then be used as ostensible proof of prejudgment when the regulator addresses the concerns through its investigation and discipline process. That is what occurred in Calandrini v. Canada (Attorney General), 2018 FC 52. The conduct in issue related to reported acts of nudity, sexual harassment and even assault by an RMCP police officer towards his male colleagues. When the media picked up the story, the Deputy Commissioner of the RCMP said:

When this came to our attention, we were appalled at what the allegations were. I found it hard to believe that in this day and age that this kind of behaviour would take place in our organization or anywhere else. It is completely unacceptable behaviour. It is abhorrent. The kind of behaviour that was alleged is completely in opposition to our core values.

The Court applied the following test as to whether these comments created an appearance of bias:

To find that discretion has been fettered, the facts before the Court must give rise to a reasonable apprehension that the decision-maker treated another individual’s views as binding or conclusive, without the need to consider any other factors or to conduct an independent analysis.

The issue was complicated by the fact that the concerns had already been addressed informally. That informal resolution was then subject to review. During that review process the media raised concerns about the case. The officer conducting the review referred the matter to a discipline hearing. However, in reviewing the entire file (including the steps taken before the media outcry, the notes by the screening person indicating that they did not discuss the matter with the Commissioner and the documentation about the processing of the concerns), the Court was satisfied that there was no fettering of discretion despite the comments made by the Commissioner.

Inferences vs. Speculation

ERichler_Webby Erica Richler
February 27, 2018

In a number of recent cases the courts have said that regulators should base their conclusions on evidence rather than speculation. What is often left unaddressed is the difference between drawing inferences from the evidence (which is permitted) and speculating based on the facts (which is not permitted). In Finkelstein v. Ontario Securities Commission, 2018 ONCA 61, the Court of Appeal for Ontario stated that reviewing courts should not intervene when a tribunal makes an inference from the evidence even if it is not the inference that the court would have made. The case dealt with insider tipping in the stock market where cases are almost always established through circumstantial evidence.

The Court then went on to accept the following definition of what constitutes an “inference”:

“An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion the trier of fact may, but not must, draw in the circumstances.”: David Watt, Watt’s Manual of Criminal Evidence, 2017 (Toronto: Thomson Reuters, 2017), §12.01.

The Court of Appeal reviewed the Divisional Court’s handling of the evidence and the reasons of the tribunal and concluded:

The function of a reviewing court, such as the Divisional Court, is to determine whether the tribunal’s decision contains an analysis that moves from the evidence before it to the conclusion that it reached, not whether the decision is the one the reviewing court would have reached: Ottawa Police Services, at para. 66. With due respect to the Divisional Court, it failed to do so in the case of the Panel’s decision about Cheng. Instead, it impermissibly re-weighed the evidence and substituted inferences it would make for those reasonably available to the Panel. That was an error. The findings of fact made and inferences drawn by the Panel in respect of Cheng were reasonably supported by the record.

The difference between drawing valid inferences and engaging in speculation is a subtle one. Tribunals should take care to explain the reasons for the conclusions they draw from the evidence.

You Gotta Come to the Party to Dance

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by Rebecca Durcan
February 21, 2018

A self-represented practitioner was referred to the Discipline Committee for failing to attend a caution before the Inquiries, Complaints and Reports Committee (Lum v. College of Physiotherapists of Ontario, 2018 ONSC 567). The practitioner did not attend their discipline hearing and a finding of professional misconduct was made. The practitioner then tried to appeal the decision on a series of procedural concerns. The Divisional Court held that failing to attend the hearing to raise the procedural concerns was sufficient to deny the appeal. This was so even though the practitioner was self-represented (“Ignorance of the law is not an excuse”). The Court also held that the grounds of appeal were without merit:

  1. That the hearing panel composition overlapped with the panel hearing a motion to exclude prejudicial evidence was neither unfair nor contrary to the panel’s rules of procedure permitting a separate panel to conduct preliminary motions;
  2. There is nothing prejudicial or unfair in the hearing panel referring to the history of the proceedings, including the practitioner’s attempts to obtain an injunction to prevent the hearing from proceeding;
  3. There is no duty on the regulator to specify which portions of the disclosure it will rely upon at the discipline hearing; and
  4. The sanction for failing to attend at the caution was a reprimand, a suspension until a particular course was successfully completed and costs of $4,500 was “a very reasonable one, having regard to the seriousness of the misconduct”.

Proving Patterns

BLeBlanc_Webby Bernie LeBlanc
February 16, 2018

One of the most difficult allegations to prove during discipline is regarding conduct that is only misconduct if it is done cumulatively. For example, being rude on one occasion rarely deserves sanction. However, a pattern of rude conduct may demonstrate a lack of professionalism particularly where the practitioner knows that there have been concerns and they have been warned about it. The conduct then moves from the category of inadvertence or a slip into the classification of deliberate or, at least, indifference to professional duties.

In MacLeod v Alberta College of Social Workers, 2018 ABCA 13, a social worker was alleged to have engaged in a pattern of rudeness towards clients, their families and colleagues along with a specific example on a specific day. The Court was concerned that the allegations were not sufficiently particularized to enable the practitioner to know the case he had to meet. In addition, even though the pattern of behaviour had been confined to a two-year window, evidence relating to his entire 25-year career was introduced without consideration as how the non-specified events should be used during the hearing. In fact, the Court was concerned that the finding made by the panel appeared to relate to conduct that was not contained in the notice of hearing, as broad as it was. The Court said:

Those findings might be supported by inferences drawn from evidence of related events, but those related events could not independently support a finding of professional misconduct, or expand the scope of the charges.

While the Court does not appear to require that a pattern of behaviour list every incident with specificity, regulators should be careful not to make general allegations of a pattern of vague conduct (i.e., “rudeness”) without ensuring that the practitioner is in a position to have a fair sense of the case they have to meet. And disciplinary tribunals should clearly identify how they have used unalleged or unspecified conduct in assessing the alleged events.

Relying on Stolen Evidence

Maciura_Julie_5038by Julie Maciura
February 13, 2018

What does a regulator do when someone brings stolen information demonstrating serious misconduct on the part of a practitioner? Is it permissible or appropriate to use the information? The Ontario Judicial Council had to deal with this issue in the case of the Honourable Justice John Keast. An unnamed person surreptitiously copied text messages from Justice Keast’s phone and gave them to the local Children’s Aid Society (CAS). The texts revealed highly inappropriate comments by Justice Keast to an employee of the CAS making derogatory comments about other employees of the CAS and about the CAS itself. Justice Keast also attempted to obtain confidential information from his friend. At the time Justice Keast had a case before him involving the CAS and regularly dealt with other CAS cases. Justice Keast tried to exclude the texts from evidence because they were stolen.

The Council admitted the texts. Neither the Council nor the CAS had encouraged the individual to steal the information. And the individual who took them was acting in a private capacity thus making the Canadian Charter of Rights and Freedoms inapplicable. The Council said:

… in a hearing to determine whether judicial misconduct took place, it is virtually inconceivable that the administration of justice would be better served by excluding the evidence of the alleged misconduct, rather than admitting it.

Justice Keast thereupon admitted his misconduct. He was reprimanded, ordered to make certain apologies and was suspended without pay for thirty days.

The Council’s decision is available online: http://www.ontariocourts.ca/ocj/ojc/public-hearings-decisions/d2017/

Over-Broad Disclosure Requests

ERichler_Webby Erica Richler
February 8, 2018

Occasionally practitioners argue that they have been singled out for regulatory action in ways that other members who have engaged in similar conduct are not. In order to make such an argument, the practitioner would need to demonstrate details about how other members were treated. Often these other cases are not in the public domain. So the practitioner seeks disclosure of the other cases in order to make the selective prosecution argument. The Law Society of British Columbia v. McLean, 2017 BCCA 388 was one such case.

The allegation was that Mr. McLean had not paid his accounts to court reporters and had not communicated transparently with them about the payment of those accounts. Mr. McLean sought disclosure of “all complaints it [the regulator] had received since its inception regarding late payment of debts, and particulars related to those complaints”. The regulator (and the disciplinary tribunal) refused the request on the basis that it would involve the disclosure of confidential information, that the request was overly broad and unworkable and that the information would not assist Mr. McLean in his defence on the merits. The Court upheld the refusal, particularly because of its broad nature.

This is not to say that a request for access to other regulatory files of a similar nature will always be refused. However, an overly broad request made on a speculative basis is likely to experience a similar fate.

When is a Breach of the Law in One’s Private Life Misconduct?

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by Rebecca Durcan
February 5, 2018

For most professions, the reach of the regulator extends to one’s private life in some circumstances. Typically, dishonesty or breach of trust outside of one’s practice constitutes professional misconduct. How about honest mistakes? This issue arose in College of Physicians & Surgeons Alberta v Ali, 2017 ABCA 442, where the practitioner inaccurately completed forms and failed to fulfill other disclosure obligations in the course of his bankruptcy proceedings. The disciplinary tribunal found that he had not done so deliberately. However, it found that he had failed to exercise the thoroughness and take the care expected of a physician in the circumstances. The majority of the appellate Court said:

… the issue was not whether the off-duty conduct reflected on the individual’s competence as a professional but whether it could affect the public’s confidence in the profession or the reputation of the profession when the individual’s private behaviour fails to meet the standards of conduct expected of a member of that profession….

In the view of the Hearing Tribunal, the public would expect members of the medical profession to act with the highest professional and personal integrity. A member in financial difficulty would be expected to take appropriate steps to comply with bankruptcy obligations and be honest and thorough in dealing with the Trustee in Bankruptcy. The public would be unlikely to support a physician who had gone into bankruptcy and continued to earn a very substantial income from the profession, while disregarding his obligations to his creditors.

The majority of the Court found this explanation to be reasonable. A dissenting Justice, however, felt that the making of honest mistakes in these circumstances should not amount to professional misconduct.

It probably did not help the practitioner’s case that he had failed to promptly pay the regulator fees and had failed to cooperate in setting up a meeting with a representative of the regulator when asked to do so.

The Court also gave short shrift to the practitioner’s argument that there was an appearance of bias because other lawyers in the large firm of the independent legal counsel had acted against the practitioner in a small, unrelated matter some years before. The Court also upheld the sanction of a reprimand and payment of $65,000 in costs.

Considering Past History When Imposing Disciplinary Sanctions

BLeBlanc_Webby Bernie LeBlanc
February 1, 2018

In Thistle v. Law Society of Newfoundland and Labrador, 2017 CanLII 86502 (NL SCTD), a practitioner was disciplined for inappropriate conduct in mortgage transactions. The main issue on appeal was the appropriateness of the sanction. The practitioner had a complaints history involving letters of caution and warnings. The Court said that some weight could be placed on this history even though no disciplinary finding had been made:

Recognizing that the test for a decision of the Committee falls short of a finding of guilt, I can see no fault in the Tribunal’s consideration of the letters of caution and letters of counsel, as part of the Appellant’s overall conduct history with the Law Society. In the context of the Tribunal’s decision on sanction, the fact that on several prior occasions the Committee formed the opinion that there were reasonable grounds to believe the Appellant’s conduct was deserving of sanction, should not be ignored. Rather, the question is one of how much weight to be attributed to this part of the Appellant’s conduct history. For example, a finding of guilt for professional misconduct might weigh more heavily against the Appellant, than a letter of caution arising from the reasonable opinion of the Committee. Each is relevant, however, and in this case the Appellant’s conduct record contains both.

The Court also said that some consideration could be given to other conduct of concern even though it had not been dealt with before the conduct in issue at the discipline hearing. While it could not be said that the practitioner had failed to learn from the other matter, it was still part of his prior history that could be considered.

Disclosure Duty Applies only to Relevant Information

Maciura_Julie_5038by Julie Maciura
January 29, 2018

In Peters v. The Law Society of Upper Canada, 2017 ONSC 7142, the practitioner was alleged to have failed to fulfill her professional obligations including failing to attend scheduled court dates in a number of cases. She sought disclosure of the investigation files of other practitioners involved in two of those cases. The regulator refused even though those files dealt with clients shared with Ms. Peters. The Court agreed:

Given that the conduct at issue in the R matter concerned Ms. Peters’ failure to attend court on three occasions and her failure to pay a costs order, it was reasonable for the Hearing Panel to conclude that a complaint against the opposing lawyer in the same proceeding had no relevance. It was Ms. Peters’ conduct that was at issue, not the opposing lawyer’s. In the C matter, the complaint was against a paralegal that Ms. Peters’ client had retained before she retained Ms. Peters. Again, it was not unreasonable to find that this complaint had no relevance to the allegations against Ms. Peters, which concerned her conduct, not that of the paralegal.

The implication of this decision is that the files of the regulator’s investigation of other practitioners can be disclosed where relevant. However, disclosure can be safely refused where the other files do not relate to the actual allegations against the practitioner even if there is some connection between the cases.

The Divisional Court also refused to hear an argument on appeal about delay by the regulator where the issue was not raised at the hearing and the court would not have a proper record to consider (e.g., the regulator’s explanation for the apparent delay).

Only Obtain Information at the Hearing

ERichler_Webby Erica Richler
January 25, 2018

Hearing panel members are often tempted to find out more about the case before them. It may be because of general curiosity. It may be because of a sense that there are things they are not being told. It may be because it is difficult for panel members to be passive during the hearing. However, under our adversarial legal system it is important that hearing panels obtain all of the information in the hearing room and in the presence of all parties.

In Kadioglu v Real Estate Council of British Columbia, 2017 BCSC 2252 (http://canlii.ca/t/hp6c1), the chair of a disciplinary hearing panel sent an email to the hearing staff support person requesting details about the investigation that had taken place in the case before them. A copy of the email was also sent to the regulator’s legal counsel. Independent legal advice was obtained that the chair should recuse himself from the panel, which he did. The remaining panel members completed the hearing and a finding was made against the practitioner.

The practitioner appealed and argued that he was denied procedural fairness (among other things). The practitioner relied on the chair’s email and subsequent recusal to argue that the chair must have had “misgivings” about whether due process had been followed prior to the hearing. The practitioner argued that the chair “resigned from the panel since he obviously felt that [the practitioner] was not being treated with procedural fairness and the Committee was turned into a kangaroo panel.”

The appeal court held that the practitioner’s assertions were “clearly wrong” and his appeal was dismissed. Nevertheless, the case serves as a caution to hearing panel members about the need to confine their information gathering to the hearing room itself.

Continuing Credibility Confusion

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by Rebecca Durcan
January 22, 2018

Perhaps one of the most difficult tasks for a lay disciplinary tribunal is articulating the reasons for a credibility finding. In Ahmed v College of Registered Nurses, 2017 MBCA 121, the panel relied upon the testimony of the patient in order to make a finding of sexual abuse.  However, two difficulties arose in the panel’s assessment of the patient’s credibility. The allegations centred on whether the nurse’s examination involved the sexual touching of the patient’s breasts and labia. The Court found the panel’s decision unreasonable for two reasons.

The first was that the panel did not address whether the patient might have been honest but mistaken about the touching. While at first this conclusion might sound surprising given that there was expert evidence that the examination of this patient’s condition should not have involved the touching of those areas, the court remained troubled that the distinction (between honesty and reliability) was not discussed in the reasons. The patient’s “physical and emotional state on the night in question” may have affected her capacity to perceive and recall the events accurately. In addition, the Court was troubled at the number of inconsistencies in the patient’s various statements and said:

It is, of course, one thing to find one or two inconsistencies on peripheral matters to be immaterial; it is quite another to find a dozen or more inconsistencies to be immaterial without considering whether all of them, taken together, demonstrate an absence of reliability.

The second concern was that the panel appeared to use the patient’s prior consistent statements as proof of the credibility of her evidence. While prior consistent statements are sometimes helpful (e.g., to rebut an assertion that the witness is changing their story), it cannot be used “as evidence of the truth of the complainant’s in-hearing testimony”.

The finding was overturned and the Court sent the matter back for consideration of whether another hearing was warranted.

Disability Not Necessarily a Basis for Nullifying an Unsuccessful Examination Attempt

BLeBlanc_Webby Bernie LeBlanc
January 18, 2018

Regulators offering a limited number of examination attempts face frequent requests to nullify an attempt by candidates who have been unsuccessful the maximum number of times. Increasingly, the basis for such requests is grounded in a disability, often temporary, of the candidate. In Martino v. College of Nurses, 2017 ONSC 6892, the Divisional Court found that it is sometimes reasonable to refuse such a request. Her request was summarized as:

her personal circumstances that her mother had died about a year before the attempt and she suffered depression and anxiety as a consequence, and she was taking medications with side effects such as blurred vision, headaches, anxiety, depression, drowsiness and fatigue. She submitted a report from a registered psychologist which stated that the medications “can, in fact, lead to a state of drowsiness, fatigue and confusion.”

The Court said:

The appellant had the onus to establish her mental and emotional state at the time of the examination and the direct impact of those circumstances on her inability to comprehend their effect on her examination performance. The evidence respecting her state of mind at the time of the first examination was essentially limited to that of the appellant. Ms. Hannell [the psychologist] did not assess the appellant around the time of the first examination; rather, she relied on the appellant’s own account of the history of her condition in making her report. More importantly, Ms. Hannell did not give an opinion that the appellant was confused at the time of the first examination, nor that the appellant was unable to comprehend her inability to pass the examination.

The [reviewing] Board concluded that the appellant could have and should have assessed the side effects of her medications and the impact of her mother’s death well before the examination. That is a reasonable conclusion, given that the appellant’s mother died a year earlier, and the appellant had been taking the medications for some time before the examination.

The Board expressed sympathy for the appellant’s situation. That does not mean the Board found her evidence persuasive, as her counsel argues.

The Board considered the evidence and found that it did not demonstrate exceptional circumstances that would warrant the extraordinary relief of the annulment of the first examination.

Guidance on Interpreting Frivolous and Vexatious Provisions

Maciura_Julie_5038by Julie Maciura
January 15, 2018

Many regulators have a provision permitting them to not proceed with complaints that are frivolous, vexatious, made in bad faith, an abuse of process or moot. Ontario’s Divisional Court provided guidance on the interpretation and application of such a provision in Catford v. The Health Professions Appeal and Review Board, 2017 ONSC 7411. In that case, Dr. Catford, a physician, was involved in acrimonious litigation with her uncle. In the course of that litigation, Dr. Catford expressed concerns in a letter about her uncle’s conduct towards his own daughter as well as towards Dr. Catford herself. A complaint about the letter resulted in no action against Dr. Catford other than a warning about its wording. The uncle pursued the matter against a number of other individuals and then made a fresh complaint against Dr. Catford generally related to the same conduct. The regulator declined to process it and the review Board declined to consider it on the basis that the complaint “was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process”.

The Divisional Court found the Board’s decision to be reasonable. It made the following points that will be of interest to regulators:

  • The provision permits the regulator (and review Board) to decline to deal with a complaint that “clearly has no merit, seeks to re-litigate a claim already decided or is brought for an improper purpose”.
  • This authority to decline to deal with a complaint is “consistent with the court’s determination of when a proceeding is frivolous, vexatious or an abuse of power”.
  • Factors that are relevant to the determination include situations where the dispute in which the conduct occurred is a personal one, the relevance of the conduct to the practice of the profession, any other unsuccessful proceedings (including against third parties) in which similar issues are raised, whether there is a better forum for the complainant to have raised the concerns, and whether the complaint appears to be made for an ulterior or improper purpose.
  • The previous complaint does not have to be identical to fit the criteria; it is sufficient if the previous complaint is about essentially the same issue.

While declining to deal with a complaint will continue to be a rare and exceptional outcome, there are cases in which it is an appropriate decision for a regulator.

Cross-Border Internet Practice

ERichler_Webby Erica Richler
January 12, 2018

Yesterday an important decision was rendered by the Ontario Superior Court on the cross-border internet practice of professions. In College of Optometrists of Ontario v. Essilor Group Canada Inc., 2018 ONSC 206, two regulators (the College of Opticians of Ontario was also a party) obtained an injunction against a major internet supplier of contact lenses and eyeglasses requiring it to comply with Ontario rules relating to dispensing eyewear. Essilor (the parent of Clearly and Coastal) operated out of British Columbia. Essilor tried to portray the application as turf protection to guard the commercial interests of optometrists and opticians. The Court viewed that argument as irrelevant; the issue was whether the online dispensing of lenses and eyeglasses was permitted by the legislation.

The Court first addressed whether the actions of Essilor breached the Ontario legislation by “dispensing” eyewear, which is a controlled act. The Court noted that while the controlled act scheme in the legislation was designed to prevent harm, one had to interpret the language of the provision and not conduct a risk-assessment of the specific conduct in the case. The Court concluded “that ‘dispensing’ is not a singular act but a series of acts that encompass the making, adjustment (fitting) and delivery of” eyewear. Under the Essilor business model, no Ontario-registered practitioner was responsible for performing these functions. That outcome was contrary to the purpose of the provisions (i.e., ensuring the provision of proper health care by qualified and authorized professionals). It was evident to the Court that Essilor was making and delivering contact lenses and eyeglasses.

The second issue was whether Ontario legislation applied in circumstances where almost everything Essilor did occurred in British Columbia. The Court indicated that it should not take an “old-world understanding of place and time”. The location of the action should not be assessed on a purely commercial transaction basis (i.e., where was the contract made?), as is done under the Civil Code in Quebec. Rather, location should be determined in a manner consistent with the purpose of the provisions. Under this approach the Court looked for whether there was a “sufficient connection” between the conduct and Ontario. The Court said that a “purposive analysis of the legislation demonstrates that this situation is best characterized not as a contract for the sale of eyeglasses, but as the delivery of health care.”

The Court engaged in a fascinating discussion of the location of events over the internet. It cited authorities viewing such interactions as occurring “both here and there”. The Court concluded that where the order was placed by an individual in Ontario and the eyewear was received in Ontario, presumably to be used in Ontario, there was a sufficient connection to Ontario. “To find otherwise would mean the eyeglasses are provided without obligation to adhere to Ontario regulation.” The Court was also not swayed by the fact that ordering lenses and eyeglasses online was permitted in British Columbia; such a change in the law in Ontario should be done by the legislature, not the courts.

In passing, the Court noted that the regulatory rules of Ontario also applied to internet practice within Ontario. Internet providers that are based in Ontario and dispense eyewear to Ontario clients need to comply with all Ontario rules.

This case provides some urgently needed clarity on the issue of cross-border internet practice.

A Nice Summary

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by Rebecca Durcan
January 8, 2018

Courts sometimes provide a summary of the law that is so concise and clear that they are of enormous assistance to regulators. In The Law Society of Upper Canada v. Hatzitrifonos, 2017 ONSC 6759, one can find such a summary. The regulator obtained an injunction against Mr. Hatzitrifonos from practising law. He ignored it. The regulator brought a civil contempt motion. The Court summarized the test as follows [citations omitted]:

It is well established that there is a three-part test for a finding of contempt of court, as set out by the Supreme Court of Canada in Carey v. Laiken:

  1. The order that was breached must clearly and unequivocally state what should or should not be done;
  2. The party who disobeyed the order must have had actual knowledge of it; and
  3. The party alleged in breach intentionally did the act the order prohibits or intentionally failed to do the act the order compels.

The elements of the contempt must be proven on the basis of the criminal law standard, namely, proof beyond a reasonable doubt. Moreover, the contempt power is discretionary and should be utilized as an enforcement power of last rather than first resort. At the same time, the party subject to the court order must comply with both “the letter and the spirit of the order”; a party cannot hide behind a restrictive or literal interpretation of an order in order to circumvent it, as this would make a mockery of the order and the administration of justice. Moreover, it is not necessary to prove that a person deliberately intended to breach a court order. It is sufficient if the person in question intentionally performed the act which is in fact prohibited by the order.

The Court also gave this description as to the importance of ensuring compliance with its orders [citation again omitted]:

It has long been observed that the judiciary controls no purse and commands no army; its power comes from words alone. It is precisely for this reason that it is critical that the decisions and orders of the courts be generally respected and observed. The deliberate flouting of court orders, if tolerated or permitted, will inevitably erode the public respect accorded to court decisions, thereby undermining an independent judiciary and the rule of law itself.

Is Providing One’s Views Different from Giving Advice?

BLeBlanc_Webby Bernie LeBlanc
January 4, 2018

In Law Society of British Columbia v Sprague, 2017 BCSC 2025 the regulator sought an injunction against Mr. Sprague for practising law. Mr. Sprague argued that he did not provide legal advice. He said that he merely expressed his views on a legal matter. He argued that doing so was protected by the freedom of expression guaranteed under the Canadian Charter of Rights and Freedoms. Mr. Sprague also asserted that he was not paid for providing legal advice but only for spending his time with the individuals consulting him. He also indicated that the demand letter he signed on behalf of one person was simply a dictation he transcribed on behalf of the individual.

The Court concluded that it should look at the substance of the interactions and concluded that Mr. Sprague was clearly practising law. The injunction was granted.

Suing a Regulator for an Interim Suspension

Maciura_Julie_5038by Julie Maciura
December 28, 2017

Can a regulator be liable for damages for imposing an interim suspension in good faith where the concerns/allegations are later withdrawn? In Gillis v Law Society of NB et al, 2017 NBQB 212 the Court said no. Mr. Gillis was found guilty of a criminal offence. Despite his intention to appeal the criminal conviction, the regulator referred him to discipline and ordered an interim suspension pending the hearing. Afterwards the criminal conviction was set aside and a new trial was ordered. The regulator then withdrew the interim suspension as well as the referral to discipline. Mr. Gillis sued the Law Society for damages.

The Court dismissed the action for two reasons. First, Mr. Gillis did not commence the action within the two-year limitation period. Second, Mr. Gillis did not establish that the actions of the regulator were taken in bad faith (there being statutory immunity for actions taken in good faith). The Court said:

I find there was no evidence to support the argument that either Ms. MacLean or Mr. Richard [representatives of the regulator] acted in anything but good faith. There was no evidence before this Court that would support a conclusion that they had ulterior motives, or that their conduct was unlawful, or that their conduct was willful. There was no evidence that either Ms. MacLean or Mr. Richard were either careless or reckless in their behaviour. In fact, they approached this with an abundance of caution. Counsel for the defendants argued that the Law Society acted as the regulator and moved to sanction as the Act required it to do so. I agree.

Can a Party Ferret Out Dissenters?

ERichler_Webby Erica Richler
December 20, 2017

Can a party insist that individual panel members tell the party that they agree with the panel’s decision? That issue arose in Aylward v. Law Society of Newfoundland, 2017 NLCA 67. The complainant was disappointed that no action was taken on his complaint. The decision was not signed by the panel members. The complainant sought an order that the public member on the panel confirm directly to him that the public member participated in and fully supported the decision of the panel. The Court rejected the request and stated:

There is nothing either in the legislation or [sic] provided to this Court to indicate that the decision of the committee must be unanimous or, alternatively, that the lay bencher must be part of the majority. In the absence of a provision stating otherwise, it may be inferred that a majority of members on the committee could determine the disposition. Further, there is no reason to require the lay bencher to be part of the majority if the decision is not unanimous.

The decision confirms that panels act through majority decisions (unless the governing legislation says otherwise). While it may be fairer for dissenting panel members to indicate their dissent, in this context, at least, they are not required to do so.

Disclosure During Investigations

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by Rebecca Durcan
December 14, 2017

It is common for practitioners under investigation to seek full particulars and disclosure before providing their response. It is also common for investigators to not provide detailed particulars (as the investigator does not yet know the facts) and to hold back what other witnesses have said (so that the practitioner responds with their actual recollection of the events). In Kuny v College of Registered Nurses of Manitoba, 2017 MBCA 111, this “game of chicken” went all the way to the Manitoba Court of Appeal. Nurse Kuny was disciplined at work. The College investigated the concerns. Mr. Kuny attended a first interview but refused to participate in a second interview until given full particulars of the incidents and signed witness statements from the other participants in the events. Mr. Kuny was disciplined for failure to cooperate and, among other sanctions, was suspended for four months. His appeal was made on the basis that he did not have a duty to cooperate before being given the disclosure.

The Court dismissed the appeal. It concluded that “the duty of fairness at the investigation stage requires the disclosure of the substance of the individual allegations such that the member will be able to respond reasonably” and that this had been provided. The Court expressly determined that there was no obligation to provide the witness statements (which may not even have existed). Whether that degree of disclosure had been provided depends on the facts and circumstances of each case. One Justice expressed concern at the investigator’s proposal to provide additional particulars of each allegation during the interview itself (giving Mr. Kuny and his lawyer no time to prepare to answer the resulting questions), but concluded that no unfairness resulted because Mr. Kuny was well aware of the concerns from his own employer’s disciplinary process.

Interim Order Stayed

BLeBlanc_Webby Bernie LeBlanc
December 11, 2017

Courts tend to be quite deferential to regulators when reviewing interim orders made to protect the public pending discipline. However, such an order was set aside in Rohringer v. Royal College of Dental Surgeons of Ontario, 2017 ONSC 6656. Dr. Rohringer acknowledged performing a sexual act in front of under-aged women while in Florida. He was charged with a crime. The regulator subsequently learned of the charges and conducted an investigation. While it appeared that Dr. Rohringer’s colleagues were quite supportive of him, some employees identified some lesser concerns: (e.g., inappropriate sexual jokes, kissing an employee). There was also an old complaint of an inappropriate sexual relationship with another employee that had been dealt with informally. Dr. Rohringer had practised for 32 years without discipline.

The panel for the regulator suspended Dr. Rohringer’s registration pending investigation and discipline expressing concern that he lacked control and judgment to practise safely.

After the initial decision was made, Dr. Rohringer submitted an expert report expressing the opinion that he did not pose a risk to patients. Dr. Rohringer also offered to be subject to a term, condition and limitation that he have a registered dental hygienist present for all patient interactions. The panel did not vary its order. No reasons were given for this decision.

The Court concluded that the panel had not been fair when it failed to give reasons on the request to vary its earlier decision. The Court was also concerned that some of the language used by the panel in the initial decision suggested that the wrong criteria may have been applied. The panel used some language suggesting that a mere risk or possibility of harm was sufficient, rather than consistently stating that an order should be made only if there was a likelihood of harm to patients. The Court also said that there needed to be evidence (not speculation) to support the making of an interim order. The Court also felt that the old complaint, referred to by the panel, was irrelevant. The Court was concerned that the panel had not indicated that it had considered a less restrictive order (i.e., monitoring by another regulated professional) rather than a suspension.

It is too early to tell whether this decision reflects the particular facts of this case or the start of a trend for courts to offer less deference to interim orders made by regulators.

Regulators Cannot Easily Resolve Personal Conflicts between Colleagues

Maciura_Julie_5038by Julie Maciura
December 8, 2017

Dr. Al-Ghamdi, a physician, had difficulties with some of the nurses with whom he worked. He made complaints against four of them to their regulatory body, the College and Association of Registered Nurses of Alberta (CARNA). The Court summarized the concerns as follows:

Dr. Al-Ghamdi’s affidavit affirms that he complained to CARNA about the actions of two nurses. In the affidavit, he alleges that one of these nurses acted outside her scope of practice, blackmailed him “by informing that [he] had reported her to CARNA, and that her staff created a hostile workplace for him.” He accuses a second nurse of blocking his patient from access to surgery, of being evasive and abusive, of being a difficult person and a friend of the first nurse he had reported to CARNA. He further alleges that this nurse hid equipment so that there was a delay in his patient’s surgery. He then alleges that these two nurses accused him of falsely threatening the second nurse, and then used their connections and authority to influence other staff to write a petition saying they would not work with him.

Dr. Al-Ghamdi’s affidavit then names a third nurse, a close friend of the first nurse and “a notorious person,” as the person who was behind the petition. He then accuses a fourth nurse of telling the mother of a child patient that the child’s surgery would not happen unless she changed surgeons.

The complaints were all investigated and dismissed. Dr. Al-Ghamdi sought judicial review on numerous grounds related to procedure. In Al-Ghamdi v College and Association of Registered Nurses of Alberta, 2017 ABQB 685, the Court dismissed all of his concerns. It found that the regulator did not have to interview all of the witnesses proposed by a complainant. It also was puzzled by Dr. Al-Ghamdi’s assertions that the regulator should not rely on information provided by third parties. The Court did not accept that complainants have a right to access the complete investigator’s report of the investigation. It also rejected bald allegations of bias against College staff. The Court went on to accept the regulator’s request that Dr. Al-Ghamdi be declared a vexatious litigant. The decision also dealt with a number of additional claims against other parties as well.

Avoiding Judicial Review Application Delays

ERichler_Webby Erica Richler
December 5, 2017

Regulators have seen this scenario many times. A practitioner is referred to discipline. The practitioner brings an application for judicial review to challenge the referral and requests that the hearing be delayed until the application is determined. The resulting delay is usually years rather than months. In Foulds v. Justice of the Peace Review Council, 2017 ONSC 5807, Justice of the Peace Foulds was referred to a misconduct hearing for allegedly trying to interfere with a criminal proceeding involving the former boyfriend of Mr. Foulds’ then girlfriend. Mr. Foulds filed an application for judicial review.

Rather than awaiting its outcome, the tribunal scheduled the misconduct hearing. Mr. Foulds brought a motion to stay the hearing until the judicial review application was heard. The regulator brought a cross-motion to dismiss the judicial review application as premature. Mr. Foulds disputed the ability of a single motions judge to dismiss the application for prematurity.

The Court held that there is now a line of cases permitting the dismissal by a single motions judge of an application for judicial review on the basis of prematurity in clear cases. The Court held that this was a clear case where all of Mr. Foulds’ concerns could be brought to the tribunal hearing the misconduct case. The Court also noted that Mr. Foulds would have an opportunity to challenge the final decision of the tribunal by way of judicial review. The Court dismissed the application for judicial review.

Many regulators are hesitant to proceed with their hearings in the face of a judicial review application for fear of demonstrating disrespect to the Court. In this case the Court took no offence.

Summarizing Disciplinary Decisions

BLeBlanc_Webby Bernie LeBlanc
November 28, 2017

As regulators summarize complaints and discipline decisions for publication, practitioners often dispute the synopsis. This issue arose in an earlier version of Bill 87 where the practitioner’s right to correct errors in such summaries was greatly reduced in the final version of the Bill. In Faminoff v. The Law Society of British Columbia, 2017 BCCA 373 the practitioner tried to do something about it. At his discipline hearing, he was found to have backdated documents in an attempt to mislead the regulator and received a two-month suspension. On an appeal of the sanction he tendered fresh evidence on the wording of the regulator’s published summary of the decision. The practitioner argued it was unbalanced. While technically accurate and while the entire decision was linked to the summary, the summary “did not state that his actions did not harm his clients or that he had not personally gained from his misconduct”. In fact, when requested, the regulator published an addendum to the summary stating this. The practitioner indicated that he was the subject of significant adverse internet comment. As a result, he argued, his suspension should be reduced because of what he had already suffered.

The Court upheld the appeal decision that the proffered fresh evidence would not have altered the order. In fact, the practitioner’s argument reflected a lack of appreciation of the seriousness of the finding made against him.

The Court also rejected the practitioner’s argument that the hearing panel had acted improperly by summarizing the practitioner’s prior history which included details of a matter that the regulator had chosen not to publish at the time.

This decision provides support for regulators wishing to be transparent in their processes by providing accessible and complete information to the public. However, practitioner complaints about the fairness of decision summaries are likely not going to go away.

Judicial Review of Procedural Fairness

Maciura_Julie_5038by Julie Maciura
November 21, 2017

For a number of years now the Courts have asserted that it will review most decisions of regulators on the basis of the reasonableness, rather than the correctness, of the decision. One exception is that no deference is given to the issue of whether the regulator acted with procedural fairness. Either the procedure was fair or it was not. In Brooks v. Ontario Racing Commission, 2017 ONCA 833, Ontario’s highest court held that the adequacy of the reasons for decision of a regulator was not a matter of procedural fairness and should be evaluated on a reasonableness basis. The Court re-affirmed that the adequacy of the reasons is not a “stand alone” ground of judicial review. In this case the Court found that the reasons provided adequately explained the conclusion that Mr. Brooks had permitted his brother to be involved in his practice despite the brother’s suspension by the regulator. The Court specifically held that “reasons need not reference every piece of contradictory evidence”.

The Court also held that the notice provided by the regulator was adequate. At least where the allegations relate to ongoing conduct, alleging that the conduct occurred over a period of time was sufficient. Similarly, an allegation that the practitioner “surreptitiously permitted [his brother] to participate in their racing enterprise when he was not authorized to do so” permitted a finding of “fraud”.

The Court also held that the tribunal member was permitted to rely on s. 4.3 of the Statutory Powers Procedure Act to continue to act when their term of office ended on the basis that the hearing “commenced” with preliminary motions.

Liability of Independent Legal Counsel

ERichler_Webby Erica Richler
November 17, 2017

The Alberta Court of Appeal indicates that it is almost impossible to find independent legal counsel (ILC) in discipline matters liable for malicious prosecution. In Clark v Hunka, 2017 ABCA 346, an accountant facing discipline objected to ILC because she was not truly independent. She prosecuted other cases at discipline before the same tribunal. The tribunal accepted that there was an appearance of bias created and directed a new hearing before a different panel with different ILC. Eventually, on appeal, the accountant had the proceedings stayed. The accountant sued ILC for malicious prosecution.

The Court dismissed the action as having no chance of success on two bases. First, an essential element of the tort of malicious prosecution is that the person initiated (or continued) the initial legal proceedings. ILC, as an advisor to the tribunal, does not have that role. This element could not be met.

Second, no particulars of malice against ILC were alleged. The Court held that “malice requires a willful and intentional effort on behalf of prosecutors to abuse or distort their proper role within the disciplinary system”. The Court said that “malice requires more than incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence or even gross negligence”. A failure to appreciate an appearance of bias until it was raised does not constitute malice. In addition, malice would require actual bias, not an appearance of bias.

This second basis for the Court’s findings should be of assistance to prosecutors and tribunal members as well.

Regulating Dishonesty

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by Rebecca Durcan
November 14, 2017

The fascinating case of Registrar, Real Estate and Business Brokers Act v. Stolberg, 2017 ONSC 5904 provides guidance on the challenges of regulating dishonesty by practitioners. Mr. Stolberg was a real estate salesperson who was caught on camera stealing small objects and money from a piggy bank when inspecting a home by himself. The regulator proposed to revoke his registration, however, the Licence Appeal Tribunal replaced the revocation with terms and conditions (e.g., only visiting a property in the presence of a client or colleague, keeping a written log of all of his visits to properties). The Divisional Court found the Tribunal’s decision to be unreasonable and returned the matter to the appeal Tribunal for a new hearing. The Court had three concerns about how the Tribunal dealt with the issue of dishonesty.

The Court was concerned that the Tribunal relied on the expert opinion of Mr. Stolberg’s social worker as to the reasons for the conduct (related to depression and cognitive distortions) and his prognosis for future similar behaviour. The Court indicated that the Tribunal should not have done so after holding that the social worker was not qualified to provide the opinion. The Court held that even though there was no objection to the consideration of the expert report, the Tribunal had an ongoing gatekeeper role to consider and rely only on expert opinions that the person was qualified to give. The Tribunal also had a duty to critically evaluate the opinion (e.g., accepting that there had been no further thefts even though this statement could only be based on Mr. Stolberg’s own assertions).

Interestingly, the Court assumed that the distinction between the notice requirements for independent experts and provider experts, discussed in the civil case of Westerhof v. Gee Estate, 2015 ONCA 206, applied.

The Court was also concerned that the Tribunal did not view the video of the theft. The Court found that watching the fifteen minute video provided valuable insights into the nature, extent and intrusiveness of the dishonesty.

The Court was also troubled by the proposed terms and conditions and found them to be unreasonable. They imposed a monitoring duty on persons who would be unaware of their role (i.e., clients and colleagues) and who would not be present with the practitioner throughout the entire property visit. In addition, the terms and conditions depended on the honesty of the practitioner for their effectiveness, which is the very thing that required monitoring.

Legislating Professional Conduct

BLeBlanc_Webby Bernie LeBlanc
November 10, 2017

In recent weeks there have been three separate initiatives by Ontario’s politicians to address conflicts of interest. Bill 160 would require drug manufacturers and makers of drug devices to disclose for publication all benefits conferred to health providers, such as physicians. Bill 165 would prohibit lawyers from referring a client to another lawyer for a fee (something that many other professions do not permit). Bill 166 would severely limit the ability for a real estate professional to act on both sides of a real estate transaction.

Two of those initiatives are government Bills (Bill 160 and Bill 166) which begs the question as to why the government is addressing these issues through legislation rather than working with the regulator of the respective professions? In all likelihood the regulators of the medical and real estate professions would have cooperated with the change of their professional misconduct / code of ethics provisions if requested by the government. Regardless of whether the reasons relates to a desire for publicity or a lack of confidence in the regulators, this recent trend is not good news for regulators.

The Rationale for Calling Expert Evidence in Standards Cases

ERichler_Webby Erica Richler
November 7, 2017

Courts have said for some time that in standards of practice cases the regulator generally needs to call expert evidence. In Hanif v College of Veterinarians of Ontario, 2017 ONSC 497 the Divisional Court explained why. The case involved the treatment of animals. Dr. Hanif objected to the College calling an expert witness on the very issue before the hearing panel of whether the standards of practice were met. The Court said that not only was such expert evidence admissible, it was expected for the following reasons:

Expert evidence is generally required in order to establish the relevant standard of practice of the profession and is important evidence helpful to the adjudicator in making findings in relation thereto. The Discipline Committee panel in most cases would be in error in finding a failure to maintain a standard of the profession in the absence of expert opinion as to that standard. In addition, just because an expert offers an opinion on whether the standard was breached does not require the Discipline Committee panel to accept it. It will make its own determination on that central issue.

Among the several reasons for this requirement is the fact that there may be lay persons on the panel who do not have the requisite intimate knowledge or understanding of the professional practice issues. In many cases even the professional members on a panel may lack deep understanding of the particular area of specialization involved and the standards that prevail within it.

Further, it is vital that the person who is the subject of a charge of having failed to maintain the standard of practice be afforded an opportunity to hear and challenge such expert opinion in an open form, rather than be made subject to discipline and sanction as a result of a closed-door discussion influenced only by members of the profession who sit on the discipline panel.

In the end, I agree that it is the function of the panel to decide whether the expert’s opinion will be assigned weight and whether the impugned conduct qualifies as professional misconduct. In my view, however, there is no support in this record for a conclusion that the Discipline Committee panel’s function in this regard was improperly usurped by the expert.

The Court also rejected a submission that the prosecutor had acted improperly by telling witnesses that they had a choice as to whether to speak with representatives of the member in advance of the hearing to discuss their possible evidence. It also dismissed concerns about an appearance of bias in having the President of the Council sit on the panel where a significant costs award was under consideration. The Court did reverse one aspect of the decision on the basis that it was unsafe to conclude that a cat had been abused where the complainant was the only witness, the complainant stated that she reported the incident to another veterinarian, that other veterinarian denied receiving such a report and the panel found the other veterinarian to be credible.

Caution and Criticisms Letter

Maciura_Julie_5038by Julie Maciura
October 31, 2017

In Maroofi v College of Physicians and Surgeons of B.C., 2017 BCSC 1558, a physician received a letter of caution from the Inquiry Committee of the College criticizing some of his conduct (including failing to carry professional liability protection and engaging in behaviour that some viewed as harassment). Dr. Maroofi sought judicial review of that decision. The Court concluded that judicial review was not available because no formal findings had been made, the decision had no impact on Dr. Maroofi’s legal rights and the decision was not publicly available. In addition the Court concluded, for similar reasons, that the decision was moot:

Even if the Inquiry Committee Disposition could be found to be amenable to judicial review, which I have determined it is not, the College submits that it is a decision that did not impact Dr. Maroofi’s right to practice medicine, did not make findings of fact binding on anyone, did not impose limits or conditions on Dr. Maroofi’s practice of medicine, did not impose formal disciplinary measures and did not affect his entry on the College’s register. As a result, this application for judicial review, no matter what its result, would not alter Dr. Maroofi’s right to practice medicine. In such circumstances, the College says his application is moot because any resolution to the controversy he raises will not affect his rights.

The Court also found that the decision was reasonable in the circumstances given the evidence that had been obtained even though Dr. Maroofi disputed most of it (other than the fact that he had not carried professional liability protection). Ontario Courts seem to be more open to reviewing complaints outcomes similar to the one in this case, perhaps because, among other things, some screening committee outcomes in Ontario now do get placed on the public register.

Intent Requirements for Professional Misconduct

ERichler_Webby Erica Richler
October 24, 2017

It is an oversimplification to say that intent is not required to prove professional misconduct. Sometimes it is. The recent case of Law Society of Upper Canada v. Nguyen, 2017 ONSC 5431 demonstrates that this can be a tricky issue. A lawyer was found to have engaged in professional misconduct by failing to advise his clients (mortgage lenders) of material facts (relating to credits the purchasers received on closing). There was no dispute about those findings. The information was material and it was not disclosed. The lawyer’s intent was irrelevant. However, there was a dispute as to whether the lawyer had also participated in mortgage fraud.

The hearing tribunal found that the lawyer had not participated in fraud because he had made inquiries and satisfied himself that there were legitimate reasons for the credits. However, the appeal panel found that the hearing tribunal made a number of errors. In particular, whether the lawyer believed he was being dishonest was irrelevant. The majority of the Divisional Court agreed and a new hearing was required. The hearing tribunal should have asked whether there was a fraudulent transaction and if so, whether the lawyer was aware, willfully blind or reckless.

In a strong dissent, one judge concluded that where the allegation is participating in mortgage fraud, the regulator had to prove that the lawyer subjectively believed he was putting his clients at risk. According to the dissenting judge, there was no evidence of this level of intent and therefore the hearing tribunal’s decision should be reinstated.

The wording of the applicable definition of professional misconduct and the specific allegations are important in assessing the intent requirements for making a finding.

[Since posting this article, the decision has been appealed and the result is found at The Law Society of Upper Canada v. Nguyen, 2018 ONCA 709, http://canlii.ca/t/htqbc.]

Need for Regulators to Obtain All of the Important Evidence

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by Rebecca Durcan
October 17, 2017

A regulator’s duty of disclosure applies only to the information it has. If a practitioner wishes to obtain evidence from a third party, it has to bring a motion for production. However, where the information is important to the case, the regulator takes a risk in not obtaining it themselves. In Kawula v Institute of Chartered Accountants of Saskatchewan, 2017 SKCA 70, an accountant was disciplined for not commenting, in her capacity as an auditor, on materially misleading financial statements. Throughout the proceedings Ms. Kawula attempted to obtain a copy of a report from another accounting firm which had looked into the issue. A number of participants, including the complainant and the tribunal, had prevented her from gaining access to it until well after she had been found guilty of professional misconduct. In fact a summary of the report, which later turned out not to have been fair and complete, had been admitted into evidence.

Ms. Kawula’s diligence paid off. She eventually obtained the report and persuaded the Court to receive it as fresh evidence. The Court found that it was relevant to the issues (primarily that Ms. Kawula had not been provided with all of the information when conducting her audit) and that it could have altered the outcome of the hearing. The Court directed a new hearing be held. The Court suggested that this result could have been avoided if the regulator had made more strenuous efforts to obtain the report earlier.

This is What Procedural Fairness for a Self-Represented Party Looks Like

BLeBlanc_Webby Bernie LeBlanc
October 10, 2017

In Challans v Timms-Fryer, 2017 ONSC 1300, the complainant was a party to the discipline hearing of a police officer. There already was a regulatory prosecutor and defence counsel for the officer. As such, the tribunal did not actively involve the complainant in the hearing. At the hearing the officer was found not guilty of the allegations. The Divisional Court found that the tribunal had failed to offer the complainant a fair hearing:

A minimum level of assistance, to ensure meaningful participation by the unrepresented public complainant, would have required the Hearing Officer to do the following, on the record:

  • Confirm whether the public complainant was aware that he was entitled to be represented by legal counsel at the proceedings and whether he was waiving the right to legal representation.
  • Explain the roles of the parties at the proceeding and the process that would be followed.  This would include the right of each party, including the public complainant, to call witnesses, introduce evidence, object to evidence adduced, cross-examine witnesses, and make submissions on all motions and at the end of the hearing.
  • Explain the role of the adjudicator in the proceedings, including his role in relation to the unrepresented public complainant.
  • Confirm that the public complainant understands the process and his role in it.
  • Ask the public complainant, at the appropriate time, if he would like to call any witnesses.
  • Ask the public complainant, at the appropriate time, if he would like to question each of the witnesses of the prosecution and the defence.
  • Ask the public complainant if he would like to make submissions on all motions and at the end of the hearing.

There was no obligation on the complainant to prove that this unfairness would have altered the outcome of the hearing. The Court also did not support the filing of affidavit evidence on what the complainant had been told off the record. The Court said:

There is a reason why hearings, such as the one here, are conducted “on the record”. It is to avoid disputes, later on, regarding what occurred before the tribunal or court, including when the proceeding is the subject of an appeal. It is to avoid the spectacle of warring affidavits being filed, as to what occurred outside of the formal proceedings, of the type that both Mr. Timms-Fryer, and the Amherstburg Police Service, attempted to file in this case. If any of the discussions occurred involving Mr. Timms-Fryer, as are alleged in these affidavits, then the contents of those discussions ought to have been repeated by counsel on the record, so that everyone had the opportunity to confirm, or refute, the contents of those discussions. None of that occurred in this case.

Alberta Affirms Ability of Regulators to Make Rules

ERichler_Webby Erica Richler
October 2, 2017

Sobeys challenged the validity of the rules restricting the ability of pharmacies to offer inducements (i.e., loyalty points) to patients purchasing drugs. After Sobeys had an initial success in British Columbia, the B.C. Court of Appeal upheld the validity of the regulator’s rules. Sobeys persisted in Alberta and again had initial success in the lower courts. However, the Court of Appeal reversed that decision and upheld the authority of the regulator to make these rules: Alberta College of Pharmacists v Sobeys West Inc., 2017 ABCA 306.

Citing Green v Law Society of Manitoba, 2017 SCC 20, the Court of Appeal held that the standard of review for the validity of such rules was reasonableness, not correctness. The Court also said that applications for judicial review of the validity of a rule should generally be confined to the materials that were before the regulator when it made its decision.

The Court held that a rule by a regulator will rarely be seen to be outside of its authority to make. Only where the rule is “irrelevant”, “extraneous” or “completely unrelated” to the statutory purpose of the regulator would it be unauthorized. The Court also held that a rule will only be viewed as unreasonable if it is one that no reasonable regulator would make. This rule did not fall into that category.

Not Ungovernable

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by Rebecca Durcan
September 26, 2017

An occupational therapist was ordered by the Discipline Committee to successfully complete an ethics course; the requirement was made a term, condition and limitation on her certificate. As an incentive, her suspension would be reduced by one month if she successfully completed the course by a certain date. However, she failed the course “because her final essay contained a verbatim passage from a website without attribution….” She refused to re-take the course and was referred to discipline again (this was now her third time at discipline). At the subsequent hearing her conduct was found to be both relevant to the practice of the profession and disgraceful, dishonourable and unprofessional despite her assertion that the failure to attribute was inadvertent and her inability to take the course again was due to challenging personal circumstances. On appeal, the Divisional Court held that the Discipline Committee had made a reasonable finding: Arora v College of Occupational Therapists of Ontario, 2017 ONSC 1535. The Court also upheld a four month suspension finding that the possible reduction of the original suspension was indeed an incentive rather than a prior determination of the penalty she should serve for failing to successfully complete the course, (i.e., a future Discipline panel would still have discretion to determine what penalty she would serve for the failure). The Court gave deference to the costs order of $26,000 even though the College had not been successful at discipline in arguing that she should be revoked for ungovernability.

Significant Penalty for Borrowing Money from Clients

Maciura_Julie_5038by Julie Maciura
September 21, 2017

In College of Physicians and Surgeons of Ontario v. Virani, 2017 ONSC 3445 a physician borrowed over $600,000 from two patients to make an investment. The investment turned out to be fraudulent and Dr. Virani lost the money borrowed from his patients and much of his own money. Dr. Virani became insolvent and the patients are still out most of their funds. Misconduct was admitted. The issue on appeal was whether an eight month suspension was excessive in the circumstances particularly given that other cases involving physicians borrowing money from patients resulted in a lesser sanction.

The Divisional Court upheld the order finding that there were numerous factors supporting a lengthy suspension including:

  • The amount of funds borrowed from the patients was significant both in absolute terms and in terms of the impact upon their financial resources.
  • The patients were vulnerable and Dr. Virani “manipulated for his personal gain” his ethnic and linguistic connection with the patients and the status that he enjoyed as a physician in the Iranian community.
  • Virani was not candid with the patients or the College about the matter. For example, he issued NSF cheques to the patients and did not disclose the matter, initially, on his annual renewal forms with the College.
  • Virani showed little remorse and made very little effort to offer restitution, instead relying on the insolvency laws to extinguish the debt.

The Divisional Court did not accept Dr. Virani’s arguments that there was little need for specific deterrence (as he had not been honest and his financial circumstances were even more limited now than before), that undue emphasis was placed on Dr. Virani’s ethnic background (as that had been considered only in terms of the degree of trust placed in him by the patients when asking for the loan) and of the proportionality of the order compared to other cases (as those other cases had fewer aggravating and more mitigating factors). The eight-month suspension was upheld.

Investigative Access to a Practitioner’s Electronic Devices

BLeBlanc_Webby Bernie LeBlanc
September 14, 2017

The Alberta Court of Appeal has reinforced a lower court ruling that, where relevant, a regulator can have access to a practitioner’s electronic devices even when they are partially used for personal purposes. In Law Society of Alberta v Sidhu, 2017 ABCA 224, the regulator began investigating Mr. Sidhu when media reported his arrest for allegedly bringing drugs to a client in jail. He was eventually convicted. Mr. Sidhu resisted attempts by the regulator to obtain full access to his telephone, laptop and other electronic devices on the basis that this amounted to an unreasonable, and quite intrusive, search and seizure. While the Court did not formally declare the enabling provision as being consistent with section 8 of the Canadian Charter of Rights and Freedoms (protecting against unreasonable search and seizure), it did state that the privacy expectations of members of regulated professions is significantly reduced. Ready access to information relevant to an investigation is necessary to protect the public. In addition, regulators often do have the authority to investigate a practitioner’s conduct in their private life where it reflects on their professional practice. Mr. Sidhu was found to have contributed to the problem by his own choices:

Moreover, it is important to emphasize that the appellant’s concern is of his own making. He has admittedly blended his business and personal life by using his cellphone and computers for both business and personal reasons, and by his further suggestion that he has allowed his friends to use those devices without regard for privilege and confidentiality concerns in doing so. That he now asserts an all-encompassing expectation of privacy when faced with a Law Society investigation is unreasonable and defeats the very objectives of the Act.

The Court found on the facts of the case that the regulator reasonably required access to the devices. The information appeared to be relevant even if the investigator had not formally stated that they had reasonable and probable grounds or a reasonable suspicion.

Mobility Provisions and Unauthorized Practice

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by Rebecca Durcan
September 12, 2017

When obtaining a restraining order against the unauthorized practice of a profession, do mobility rights have to be taken into account? The answer is yes according to Law Society of British Columbia v Pyper, 2017 BCSC 1197. In that case, a former lawyer continued to practise law by becoming a paid director of two of his former corporate clients and appearing in court on behalf of those companies. The Court rejected the argument that the regulator’s alleged delay in processing Mr. Pyper’s application for reinstatement means it did not come to court with “clean hands”. Only in exceptional circumstances would a restraining order not be granted where the breach of the law was established.

However, the Court declined to grant a blanket order prohibiting Mr. Pyper from practising in British Columbia until his licence was reinstated. The Court said that if Mr. Pyper were to become a lawyer in another province and have the right to practise in British Columbia under the mobility provisions, he should be permitted to do so.

Practical Examination Appeals

Maciura_Julie_5038by Julie Maciura
September 8, 2017

Appeals of practical (i.e., OSCE) examination results are always challenging. Invariably there are disputes as to the candidate’s right of access to examination materials and criteria for grading. The examination body must be fair, but also needs to preserve the integrity of the examination (which is expensive to develop) for future candidates. In addition, the procedural fairness requirements may be challenging to articulate as, at the end of the day, the decision is based on expert professional judgment.

While the brief reasons in Alizadeh v National Dental Examining Board of Canada, 2017 ONSC 3947 leave one wishing for more, they are still helpful. The Divisional Court indicated the following:

  • Courts will show deference to the standards, established by the expert examination organization, for passing the examination.
  • Courts will also show deference to the appeals process developed by the organization and held that:
    • At least where credibility is not an issue, a paper hearing is fine; and
    • Providing access to the examination materials with restrictions is sufficient. (Unfortunately, the restrictions in this case were not identified.)
  • Reasons for the decision on appeal must be given, but they can be brief.

In this case, the Court found that “there is no basis for this Court to interfere with the clinical evaluation”.

Outside Reading by Tribunal Members

ERichler_Webby Erica Richler
September 5, 2017

Tribunal members are frequently admonished not to conduct independent research related to cases they hear. They are to obtain all of their information from the hearing itself. In Harris v. Royal Newfoundland Constabulary Public Complaints Commission, 2017 CanLII 46340 (NL SCTD), the issue related to the police interactions with a young man with Asperger’s Syndrome. During the hearing, the adjudicator made statements indicating that he had done some reading on the condition. At one point, on cross-examination, the young man responded to a question by saying “Can I throw that microphone at your head?” The adjudicator declined to view the comment as a threat of violence towards counsel and appeared to ascribe it to the young man’s disability. On appeal, the officers asserted that the adjudicator had demonstrated an appearance of bias. The Court did not accept that argument. The Court indicated that bias arguments must be raised before the adjudicator and should not be raised for the first time on the appeal. Doing so respects the process, is more efficient and permits the adjudicator to put any relevant facts on the record. In addition, the Court did not find that any outside reading materially affected the conduct of the hearing or the findings of credibility. The detailed reasons of the adjudicator assisted the Court in making this determination.

Ongoing Duty to Ensure Expert Evidence is Impartial and Fair

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by Rebecca Durcan
August 18, 2017

An adjudicator’s duty to ensure that expert witnesses give neutral and impartial testimony just got a bit more challenging. In Bruff-Murphy v. Gunawardena, 2017 ONCA 502, a civil case involving damages from an automobile accident, Ontario’s highest Court has given detailed guidance on the role of adjudicators. In that case, the defence expert interviewed the accident victim for approximately one hour and then spent ten to twelve hours reviewing her medical records and identifying a number of inconsistencies between those records and what the expert had been told. The accident victim was not given an opportunity to explain those apparent inconsistencies. The expert witness then provided a report that seemed to focus on the credibility of the accident victim much more than on her condition. There were also concerns that the expert witness was unfair in many of his comments about both the accident victim and the other practitioners who had seen her.

The Court indicated that, before allowing an expert to testify, the adjudicator should consider not only the technical admissibility (e.g., relevance of the opinion and expertise of the expert), but also whether the expert is neutral and impartial and whether the benefits of the expert opinion outweigh the possible damage to the hearing process. The Court found that the trial judge was incorrect in balancing these other threshold factors given the expert’s approach to the matter and that this was a jury trial where undue weight could be given to the expert’s opinion.

The most significant aspect of the case was the finding by the Court that the adjudicator had an ongoing duty to ensure that the above threshold criteria continued to be met. When the trial judge’s concerns about the impartiality and fairness of the expert witness were realized, the trial judge should have intervened by hearing submissions, giving direction to the witness during his testimony and / or by giving a clear warning to the jury on how to assess the expert’s evidence. Even though legal counsel did not raise the concern, the adjudicator had a duty to the integrity of the hearing process to intervene.

Presumably, courts will give more deference to regulatory committees who are not made up of lawyers or judges. However, the need to ensure that expert witnesses provide impartial and fair testimony is a consideration such tribunals must take into account.

Limits to the Good Faith Immunity for Regulators

BLeBlanc_Webby Bernie LeBlanc
August 14, 2017

Many lawsuits against regulators never make it to trial because the practitioner cannot demonstrate any basis to challenge the good faith of the regulator. In Fitzpatrick v Physiotherapy Alberta College, 2017 ABQB 453, a practitioner was able to pass this hurdle by asserting details of three types of alleged bad faith.

  1. The investigator allegedly told the practitioner that she was being investigated for paying kickbacks when this was not the basis of the complaint. The implication of the pleading is that the investigator was unduly suspicious and was trying to broaden the scope of the investigation.
  2. The Registrar allegedly gave consideration to the insurance industry’s concerns about improper billing by practitioners to take an aggressive approach to disciplining her, and then expanded the allegations to lesser, but more provable allegations, to justify the allegedly hasty initial referral to discipline.
  3. A member of the discipline panel allegedly had previously expressed an interest in purchasing the practitioner’s practice and then prior to the discipline decision being released, allegedly told a banker that the practitioner may now be ready to sell her practice.

The Court was clear that these assertions of bad faith were not established. The Court merely held that sufficient details were provided to permit the issues to go to trial for determination. The claims against many of the other participants in the discipline process were dismissed as there were no particulars suggesting they did anything but perform their duties.

‘Jordan’ Approach to Delay Not Applied to Delay in Discipline Cases

Maciura_Julie_5038by Julie Maciura
August 9, 2017

In Law Society of Upper Canada v. Abbott, 2017 ONCA 525, the Ontario Court of Appeal has provided guidance on a number of important issues for regulators of professions.

The first issue addressed by the Court was how much deference administrative appeal tribunals should show to the first level tribunals making the original discipline decision. The Court said that administrative appeal tribunals, when reviewing lower level decisions, should show the same level of deference as the Courts do. For penalty decisions at least, the administrative appeal tribunal must find the lower tribunal’s decision to be unreasonable before it is entitled to interfere with it. In this particular scenario, past precedents had established that revocation was the presumptive penalty for knowingly participating in mortgage fraud, absent exceptional mitigating circumstances.

The appeal tribunal in this case had found exceptional mitigating circumstances existed in the delay of seven years between the initiation of the investigation and the beginning of the discipline hearing such as to allow them to overturn the first level decision. The Court disagreed, holding that the first level tribunal had fully considered: the delay; that mortgage fraud cases are difficult to investigate; that the misconduct was quite serious going to the very character of the practitioner; the risk to the public; and that there was no substantial prejudice shown to the practitioner by the delay. The Court found that the appeal tribunal did not establish the unreasonableness of the decision of the hearing tribunal and as a result the appeal tribunal had wrongly interfered with the hearing level decision.

The Court made an interesting comment about the fact that the practitioner had good character references and had not engaged in any misconduct since the original events:

With respect, these mitigating circumstances are quite generic, and in the context of an active prosecution, one would expect the member to be on his best behaviour or risk making things worse. As for the supportive reference letters, it is well to keep in mind the observations of Sir Thomas Bingham M.R. in Bolton, at para. 16:

It often happens that a solicitor appearing before the Tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. [Emphasis added.]

The Court of Appeal also said that in administrative law matters, the Court of Appeal does not show deference to the decisions of the Divisional Court.

Failing to ‘Speak with One Voice’ is Grounds for Removal

ERichler_Webby Erica Richler
August 2, 2017

A fundamental governance principle is that governing Boards or Councils should speak with one voice. When a decision has been made, individual Board or Council members should not speak against it publicly. Rather, they should simply explain the decision and reasons why it was reached and not get into their personal disagreement with the decision. Otherwise the credibility of the organization and its effectiveness in implementing initiatives is compromised. Board or Council members with significant concerns about the decision should either resign or, in some circumstances, bring the matter back for reconsideration based on new information through proper channels.

This principle received judicial support in Béliveau v. Town of Sackville, 2017 NBCA 26. In that case, a member of a heritage Board disagreed with the permission to demolish an older church in the downtown core. He then advocated against the Board’s decision before a separate appeal tribunal, going so far as to file an affidavit. He was removed from the Board. His challenge to the removal on the basis that he was a whistle-blower acting in his personal capacity was not accepted by the courts.

No Need to Inquire into Language Proficiency of Legal Representatives

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by Rebecca Durcan
July 25, 2017

After a discipline hearing imposing sanctions on a veterinarian, he appealed on the basis that he did not have a fair hearing because his paralegal representative was not proficient in English. In Aziz v College of Veterinarians of Ontario, 2017 ONSC 2746, the Divisional Court rejected the argument saying:

The Appellant has provided no jurisprudence to suggest that where counsel appears before a Tribunal or Court lacking in proficiency in one of the two official languages, that the Court or Tribunal has an obligation to enquire as to whether counsel requires the assistance of an interpreter. This, frankly, is a matter of common sense, as the Court and/or Tribunal is entitled to take judicial notice of the fact that a lawyer and/or paralegal licensee is obliged, pursuant to their governing statutes, to be proficient in one or other of the official languages.

The Court also dismissed the argument that the member was prejudiced by not having a formal witness list provided. There was no statutory requirement to provide a witness list and it was obvious from the notice of hearing that the person was a key College witness. Disclosure of what the witness would say had been provided. In any event, the panel accommodated the member by giving him time after the examination in chief to prepare for the cross-examination of the witness.

The Court also rejected the argument that findings under multiple heads of professional misconduct constituted double jeopardy. Each heading of misconduct had a separate basis for a finding.

The Court also upheld a four month suspension and terms and conditions for obstructing the investigation and for being convicted criminally for assaulting two of his female staff. The Court upheld this as reasonable as follows:

The findings of fact made by the Committee go directly to his suitability to practise veterinary medicine. They also call into question the public interest in ensuring that women, whether they be employees or members of the public, are adequately protected. The various issues that came before the Committee called into question the Appellant’s honesty, integrity, as well as his governability.

The Court also upheld a costs order at discipline of $94,000 in part because prosecuting counsel kept the member aware of the costs as they escalated, much of the length of the legal proceeding was attributed to the conduct of member’s counsel and because no persuasive evidence was tendered as to the inability of the member to pay the costs.

Penalty Precedents and Assignment of Panels

BLeBlanc_Webby Bernie LeBlanc
July 21, 2017

To use diplomatic language, the case of R. v. Gashikanyi, 2017 ABCA 194 is an example of frank and vigorous debate within an appeal panel. The issue was whether the sentence for sexual assault in a criminal case was appropriate. Each of the three Justices issued separate reasons.

One Justice made an impassioned case that precedents and established “starting points” constituted an unfair constraint on individual trial judges to establish the sentence that they think is fair. The Justice said: “A “precedent” may be nothing more than the product of the assignment of a like-minded three or five person panel to hear an appeal. Judges of a particular “doctrinal disposition” will set the precedent simply because the panel was “first at bat”.” The second Justice was supportive of this approach, but couched that support in terms of permitting Judges at sentencing hearings to distinguish precedents on the facts of their case. The third Justice, however, took exception to this approach to precedents, indicating that they provide useful guidance to subsequent courts. That Justice said: “that consistency, certainty, predictability and sound judicial administration are achieved with the adherence to precedent”.

While not an issue in this case, there was also spirited debate by the three Justices on whether assignments to appeal panels should be random. The first Justice raised the issue, stating:

The presence of individual discretion in a system of assignment poses a risk that some may think that panelists will be selected based on their perceived predispositions. [Citing: Robert Brown Jr. and Allison Herren Lee, “Neutral Assignment of Judges at the Court of Appeals” (2000) 78: 5 Tex. L. Rev. 1037 at 1103.] An appellate court that utilizes discretionary non-random methods to assign (or to replace an assigned judge) leaves open the potential for manipulation.

Neither of the other Justices agreed with this comment. The second Justice cited such considerations as expertise, workload, illness and appearance of bias would warrant the exercise of discretion by the Chief Justice, although random selection should still be the general rule. The third Justice interpreted the first Justice’s comments as being an attack on the impartiality of Judges generally and a baseless suggestion against the open-mindedness of the current assignment system in particular. This discussion has obvious implications for the assignment of panels by the chairs of committees of regulators.

Trying to Taint a Hearing Panel by Your Own Motion

Maciura_Julie_5038by Julie Maciura
July 17, 2017

Can you bring a motion to a disciplinary tribunal and then later argue that they are biased because they presided over the motion? That strategy failed in Campkin v College of Social Workers of Alberta, 2017 ABQB 358. The College there alleged that Mr. Campkin ‎should be disciplined for misleading his previous regulators in other jurisdictions. Mr. Campkin’s argument that the College had no jurisdiction to hear the allegations was unsuccessful before the hearing panel. He then brought an application asking a Court to set aside the hearing panel’s preliminary ruling. The Court declined to hear his application and sent the matter back to the panel for a hearing on the merits. The Court also declined to direct that a differently constituted panel hear the case on the merits, finding that there was no reasonable apprehension of bias caused simply because the panel had ruled against Mr. Campkin on his preliminary motion.

Role of the Complainant

ERichler_Webby Erica Richler
July 13, 2017

What role should the complainant play in a regulator’s complaints and discipline process? One view is that the complainant merely provides information to the regulator and has no ongoing role. This view is expressed in the case of Tran v College of Physicians and Surgeons of Alberta, 2017 ABQB 337 where the Court said:

A person who complains to a professional regulatory body has the same interest as any member of the public: an interest in ensuring that members of the profession meet the standards set by the governing body. It is the role and the obligation of the professional regulator, not the complainant, to ensure that standard is met.

However, Ontario’s Regulated Health Professions Act, 1991 provides a more enhanced role. Under that Act as of May 30, 2017, complainants ‎have the right to request the withdrawal of their complaint, participate in resolutions and appeal unsatisfactory decisions by the regulator. The Ontario Sexual Abuse Task Force recommended an even larger role for complainants including full party status at discipline hearings.

It is rare for there to be such divergent views on such a fundamental issue.

The Tran case also provides some guidance on the role of the screening committee in serious complaints with significant credibility issues. The Court said:

In my view, the record in this case demonstrates that the Applicant’s complaint was taken seriously and was subject to a proper investigation. The Committee was not required to refer the matter to a full hearing, notwithstanding a conflict between the Applicant’s statement and other evidence (the physician’s response and hospital records). The Committee was entitled to consider the information before it and determine that there was “insufficient or no evidence of unprofessional conduct.”

Practitioners Who Wear Two Hats

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by Rebecca Durcan
July 10, 2017

Are practitioners subject to a regulator when they are acting in another capacity? This issue arose in A.C. Waring and Associates Inc v Institute of Chartered Accountants of Alberta, 2017 ABCA 152, where an accountant was facing an investigation for his actions when acting as a trustee in bankruptcy. Mr. Waring sought a declaration that the Institute could not investigate his conduct because he was not acting as an accountant and because of the protections in the federal Bankruptcy Act protecting trustees in bankruptcy. The Court dismissed this argument. It applied the case of Law Society of Alberta v Krieger, 2002 SCC 65 (dealing with the discipline of a lawyer acting as Crown Attorney) to hold that regulators could investigate and discipline members acting in another capacity, at least for bad faith conduct. The immunity in bankruptcy legislation was not intended to interfere with this regulatory role.

Reasons by a Complaints Screening Committee

BLeBlanc_Webby Bernie LeBlanc
July 6, 2017

It is not enough for a complaints screening committee to say that the complaint does not raise a significant concern of professional misconduct. The committee also needs to explain why this is so when choosing to give advice rather than refer the matter to discipline. In Harrison v Association of Professional Engineers of Ontario, 2017 ONSC 2569 the complaint was by a supplier whose shop drawings were rejected by the practitioner resulting in the assignment of the contract for a public project to another supplier. The complainant was concerned that the practitioner and the other supplier had a personal relationship that may have influenced the rejection of the shop drawings. While the Court found the committee’s reasons inadequate, it found a sufficient basis in the file to support its conclusion, particularly in the well-articulated letter from the respondent to the complainant. The Court warned the committee to ensure that, in future, its reasons provide justification of its decisions in an intelligible and transparent manner. The Court suggested that it obtain advice on its reasons in a legally appropriate manner from its legal counsel.

Is a Person Who Receives Episodic Services a Client?

Maciura_Julie_5038by Julie Maciura
June 29, 2017

In a number of recent cases, regulators have found that practitioners have a professional relationship with people to whom they provide intermittent services ‎unless the relationship is clearly terminated. This approach is necessary to protect the public from exploitative behaviour where there remains in the client a trust in the practitioner. Examples of exploitative conduct include lawyers borrowing money and health practitioners engaging in sexual behaviour. An example of the former is found in Weir v. Law Society of New Brunswick, 2017 NBCA 18. In assessing whether there was a professional relationship, the Court provides the following criteria:

I agree the central question to be answered is based on a reasonable person test: whether a reasonable person in the position of a party with knowledge of all the facts would reasonably form the belief that the lawyer was acting for a particular party. In addition, in Trillium [Trillium Motor World Ltd. v General Motors of Canada Limited, 2015 ONSC 3824], the judge held that it is not only the client’s knowledge of a relationship that matters; it is also relevant what the lawyer knew or ought to have known about the client’s expectations or thoughts about the existence of a relationship. There is also a burden on lawyers to show that their characterization of the relationship is correct, particularly where the retainer has not been reduced to writing.

A similar result occurred in Clokie v The Royal College of Dental Surgeons of Ontario, 2017 ONSC 2773. The Court upheld as reasonable the finding that a person receiving episodic care from the dentist was a patient even though no further appointments had been made and even though she had moved to Sweden for part of the time. The finding was supported by certain chart entries including references to future planned procedures and correspondence from the dentist to another practitioner referring to the person as a patient. The finding was critical in that case as it made the difference between no finding of sexual abuse and a finding of sexual abuse resulting in mandatory revocation.

Regulators would be wise to communicate these principles to their members.

Testimonial Trespasses

ERichler_Webby Erica Richler
June 26, 2017

Many regulators prohibit the use of testimonials because they may be inherently unverifiable and, thus, misleading. In addition, the process of gathering testimonials tests the propriety of the practitioner-client relationship. In Edmison v Health Professions Appeal and Review Board, 2017 ONSC 3664, a physician challenged a caution imposed for his clinic’s advertising that contained testimonials. He argued that the postings were not really testimonials because they did not say positive things about him personally, just about the procedure that the clinic performed. He argued that the provision had to be the interpreted as it was understood by the profession. He also argued that the complainant’s motivation in making the complaint should be taken into account. The Divisional Court rejected both arguments and upheld the reasonableness of the Committee’s conclusion. The Court said:

The testimonials in Focus’ advertising were not rendered in a vacuum. They were inextricably linked to Focus [the clinic co-owned by the physician] and its services.  Viewed through the eyes of the public, a common sense inference would link the testimonials to Focus, and not merely laser eye surgery procedure in general.

The Court reinforced the point made recently in Green v. Law Society of Manitoba, 2017 SCC 20 that deference will be given to regulators when interpreting their own legislation.

Can the Sanctions Panel be Differently Constituted from the Findings Panel?

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by Rebecca Durcan
June 19, 2017

Can the sanction (or order) in a discipline hearing be determined by a panel that is different from the panel that made the finding of misconduct? The Ontario Court of Appeal has concluded that this is a reasonable interpretation of the securities legislation and the Statutory Powers Procedure Act (“SPPA”). While acknowledging that there was certainly another reasonable interpretation, the Court concluded that this interpretation was open to the tribunal. The sanctions hearing could be viewed as a separate proceeding under the SPPA such that the composition of the panel could be different. In addition, there was no procedural unfairness in adopting this procedure as both parties could introduce all relevant evidence on the sanctioning hearing, including relevant transcripts, from the proceeding on the merits. The Court also acknowledged that this approach was helpful to tribunals with a small pool of panel members to draw from: Ontario Securities Commission v. MRS Sciences Inc., 2017 ONCA 279. It will be interesting to see if other regulators take a similar interpretation and whether the courts see this concept as applying to other regulatory statutes.

Charging Fees to Non-Members

BLeBlanc_Webby Bernie LeBlanc
June 15, 2017

In BSA Diagnostics Imaging Inc. v The College of Physicians and Surgeons of Ontario, 2017 ONSC 1950, the Divisional Court upheld the legal authority of a regulator to charge fees to non-members. In most situations (e.g., a fee for accessing information) the regulator can simply insist on payment of the fee before providing the service. However, in BSA, the College was, at the request of the provincial government, conducting an assessment of an independent health facility governed under a different statute. The Court determined that the two pieces of legislation worked together and that the by-law imposing the fee to the non-member for the assessment was valid. As a result the regulator was entitled to sue for the recovery of the fee in court. This decision may have turned on the wording of the particular legislative provisions.

A National Examination Board is Legal

Maciura_Julie_5038by Julie Maciura
June 11, 2017

The brief reasons in Aljawhiri v Pharmacy Examining Board of Canada, 2017 ONSC 2609 belie its significance. A candidate failed four times for the national pharmacy examination. The rules did not permit a fifth sitting. The Divisional Court rejected the argument that a federal Act permitting a body to administer an entry-to-practice examination infringed on provincial legislative authority:

We do not agree that the Act creating the Pharmacy Examining Board of Canada was ultra vires Parliament because it does not purport to regulate the profession. The Act merely authorizes the Board to create and administer an examination for qualification of pharmacists across Canada which provincial licensing bodies may use if they wish to but are not obliged to.

The Court also dismissed the submission that the rule limiting additional attempts was a reviewable statutory decision:

We find that limiting the number of times a person can write the examination is nothing more than establishing the terms and conditions of the examination as s. 11(c) of the Act permits. It does not result in any regulation of the profession by restricting entry into the profession. It is the provincial licensing bodies that make those decisions. Accordingly the creation of the attempt limit is not ultra vires the statute.

Of course, it is not that such limits can never be challenged. Rather, they would have to be challenged within the registration process for the particular profession.

Collateral Attacks at the Human Rights Tribunal Disallowed

ERichler_Webby Erica Richler
June 9, 2017

In Toronto Police Services Board v Briggs, 2017 ONSC 1591, the Divisional Court dealt with whether the Ontario Human Rights Tribunal could hear an allegation of racial profiling by the Toronto police. The police officer had stopped a young black man driving a vehicle and charged him for driving while suspended, for providing a forged document and for driving while not having insurance. The driver brought a motion under the Canadian Charter of Rights and Freedoms to exclude evidence on the basis that the traffic stop was based on racial profiling. The driver did not testify at that motion. The criminal court dismissed the application and the driver was convicted of two of the charges. The driver did not appeal, but he made a complaint to the Human Rights Tribunal about the police officer. The police officer challenged the human rights proceeding on the basis that it was a collateral attack on the court findings. The Tribunal concluded that there were different aspects to the racial profiling allegation that had not been addressed by the court and that it was appropriate for the human rights application to proceed.

In a detailed review of the criteria for determining whether the Tribunal can determine issues addressed in previous proceedings, the Divisional Court concluded that the human rights complaint was indeed a collateral attack on the court findings. The Court concluded that the Tribunal had not properly considered all of the relevant factors in determining whether it was appropriate to proceed with the human rights application. For example, the Court held that the Tribunal relied on policy considerations without an adequate evidentiary basis (e.g., that accused may feel pressure to testify), instead of focusing on the particular situation of the driver and the fairness of applying finality in this case.

There was also a preliminary issue as to whether the application to the Divisional Court was premature because it related to a preliminary ruling by the Tribunal before the actual hearing had been held. The Court indicated that an abuse of process argument of this sort fell within the rare exception where the Court would intervene in the midst of a pending hearing. Failing to do so would defeat the whole purpose of the abuse of process protection in that the police officer would be put through the very hearing that was, arguably, abusive. In addition, the court process would not cause delay to the Tribunal process because the Tribunal hearing was not scheduled for many months.

Bias by Association

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by Rebecca Durcan
June 7, 2017

When is a panel member disqualified from hearing a matter because a colleague is affiliated with the practitioner facing discipline? This issue arose in Institute of Chartered Accountants of Newfoundland and Labrador v. Cole, 2017 CanLII 20403 (NL SCTD). The panel was hearing two complaints against a practitioner. The complainant in one matter was a colleague from the same large accounting firm as a panel member. The panel (as opposed to the panel member only) decided to disqualify itself from the one complaint – but not both. The Court upheld the tribunal’s decision. It concluded that the panel properly disqualified itself from hearing the first complaint because of the connection. The Court also concluded that the panel member was not disqualified on the second complaint simply because she was now aware that her colleague had made a complaint against the practitioner. This would not create a reasonable apprehension of bias.

The case also provides guidance on transitioning pending cases when the enabling legislation is replaced by a new statute.

Enough is Enough

BLeBlanc_Webby Bernie LeBlanc
May 30, 2017

Tribunals are cautious about refusing adjournment requests, particularly where there is no public risk in waiting to proceed later. In Broda v. Law Society of Alberta, 2017 ABCA 118, the practitioner had been removed from practice. He was appealing. However, he repeatedly failed to provide the required documents to the appeal tribunal. He was given a further adjournment that was peremptory (absolute) on him. After missing that deadline his appeal was dismissed. The Court upheld that decision, saying:

It seems to us that every courtesy was extended to the appellant. He had ample opportunity to make full answer and defence to the allegations that brought him before the Law Society of Alberta. The record is replete with cogent evidence of foot dragging on his part which was met with patient regard by the Appeal Panel to afford to the appellant multiple opportunities to put forward his evidence and submissions. Procedural unfairness is not made out. The principle of audi alteram partem was adhered to throughout the proceedings. The principles of fundamental justice were not infringed.

It is Professional Misconduct to Say: “I should shoot you”

Maciura_Julie_5038by Julie Maciura
May 30, 2017

It is professional misconduct for a lawyer to say to a social worker that he should shoot her because she “takes away too many kids”. In Foo v. Law Society of British Columbia, 2017 BCCA 151, the lawyer, Mr. Foo, said that the comment was meant in jest and amounted to a flubbed joke. The tribunal disagreed and the Court upheld the finding and the resulting two-week suspension. The Court also rejected the argument that the finding encroached excessively into the lawyer’s freedom of speech, which does not protect threats of violence. The Court also rejected the view that the legislative provision authorizing discipline for a “marked departure” from that conduct the Law Society expects of lawyers was too vague. The Court found that a specialist tribunal was able to give meaning to this language.

An interesting collateral issue was whether the lawyer’s evidence that the comments were made in jest was in evidence before the tribunal. The Agreed Statement of Facts attached statements from Mr. Foo on the point, but offered them only as his statements and not for the truth of their contents. Mr. Foo did not testify or offer formal evidence. The Court held that Mr. Foo had not placed that evidence before the tribunal. It is helpful when an Agreed Statements of Facts is prepared to ensure that the evidentiary status of the information contained in them is clear.

Going Solo During Investigative Interviews

ERichler_Webby Erica Richler
May 9, 2017

Can a person who is under investigation insist upon having someone with them during an interview? That was the issue raised in British Columbia (Securities Commission) v. Clozza, 2017 BCSC 419. Mr. Clozza wanted a director from his company present with him during his investigative interview. It just so happened that the director was a former employee of the regulator. The regulator declined to proceed with the colleague present and insisted that Mr. Clozza answer the questions on his own. Mr. Clozza refused, arguing that his colleague would act as his “counsel”.

The Court held that Mr. Clozza could not insist on having his colleague present. His colleague was not a lawyer and thus did not fit within the exception for having “counsel” present. Having the colleague present could compromise the confidentiality of the investigation. In addition, in the circumstances of this case, the colleague might be a potential witness or perhaps even a party in any subsequent proceedings. The Court ordered Mr. Clozza to attend the interview and answer questions without his colleague present.

This case does not address the issue of whether the regulator could permit a witness or subject of the investigation to have a “support person” present in the interview in appropriate circumstances.

Head in the Sand Strategy Fails Again

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by Rebecca Durcan
May 3, 2017

In Morgan v Institute of Chartered Accountants of Ontario, 2017 ONSC 1466, the practitioner failed to attend a discipline hearing because he felt the process was “stacked against him”. When a finding and order were imposed, he did not appeal. He waited more than two years. Then, when the regulator eventually began to enforce the order he finally commenced an application for judicial review. The Divisional Court declined to hear the application because he waited so long and because he should have appealed the decision when it was made. It was unfair to the process for him to raise his defences for the first time on the application for judicial review.

Assistance in Writing Discipline Reasons

BLeBlanc_Webby Bernie LeBlanc
April 27, 2017

Some regulators are experimenting with using administrative staff to sit in on the deliberations of a discipline panel, to make notes and help prepare the reasons of the panel. This approach has not been fully considered by the courts yet. However, the acceptability of that practice has received some support in Redekop v. Okanagan Mainline Real Estate Board, 2017 BCSC 417. There, a real estate professional was disciplined for directly communicating with a party to a transaction who was represented by another agent. During both the initial hearing and the appeal, the tribunal was supported by a staff member who assisted with the preparing of the reasons and, in at least one case, sat with the tribunal during deliberations. The Court found that this did not breach the rules of natural justice so long as the staff person was neutral and did not participate in the deliberations.

This case should be read with some caution by Ontario regulators, however, not only because it was decided in another province, but because the disciplinary tribunal was part of a voluntary rather than a statutory regulator. The Court indicated that the degree of scrutiny was less for voluntary associations; for example, the Court condoned the practice of not disclosing the entire investigation results to the practitioner for the purpose of making submissions about what action the regulator should or should not take.

Holding Out and Title Protection

Maciura_Julie_5038by Julie Maciura
April 24, 2017

It seems that many people try to skirt the rules about protected titles and holding out in the accounting field. This may be because it is often acceptable to practise accounting, so long as one does not misrepresent one’s status or qualifications. In Organization of Chartered Professional Accountants of British Columbia v. Nordine, 2017 BCCA 103, the regulator tried to obtain an injunction against accountants who called themselves “Professional Business Accountants” and use the designation “PBA”. The title “Professional Accountant” and designation “PA” were protected. Before the lower court the regulator was unsuccessful because the provision did not explicitly protect against the use of variations of the protected title and designation. However, the Court of Appeal reversed that decision and imposed the injunction on the basis that this variation of the protected title amounted to “holding out” as a regulated practitioner. The Court also held that it would be rare for there to be unfairness in a court requiring compliance with a public interest statute.

Expanding the Scope of Interim Orders

ERichler_Webby Erica Richler
April 18, 2017

In Morzaria v. College of Physicians and Surgeons of Ontario, 2017 ONSC 1940, a pediatrician faced serious allegations of isolating and sexually abusing a 13 year-old patient. While criminal charges were pending, the College negotiated an undertaking with Dr. Morzaria to ensure that a monitor was present when patients under the age of 16 were seen. The criminal charges were later stayed on the basis of delay and the Inquiries, Complaints and Reports Committee (ICRC) completed its investigation, referred the matter to discipline and imposed an interim order. The interim order went further than the original undertaking in two material respects: the monitor could not have other duties while Dr. Morzaria was seeing a patient, and patients had to be expressly informed in advance of the monitoring requirement. Dr. Morzaria challenged the increased measures, indicating that nothing had changed since the undertaking was in place. The evidence was that he fully complied with the undertaking for years. The majority of the Divisional Court gave deference to the ICRC, holding that the undertaking did not prevent the ICRC from re-evaluating the degree of risk particularly since there had been an earlier allegation of a similar nature.

However, one judge issued a strong dissent expressing concern that there was no evidence (let alone no new evidence) to justify the increased, intrusive requirements. The dissenting judge also expressed concerns that Dr. Morzaria was not really told why the ICRC was more concerned now than in the past, that there was a material delay by the College in investigating and referring the case, and that the previous allegation was quite old and never established.

Even though the interim order was upheld by the majority, regulators should be mindful of the concerns raised by the dissenting judge when crafting interim orders and managing investigations and referrals in which interim orders are made.

It should be noted that a recent Newfoundland and Labrador case dealt with a similar issue. In Wentzell v. Law Society of Newfoundland and Labrador, 2017 CanLII 15042 (NL SCTD), a lawyer had given a number of undertakings to address concerns about alcohol impairment. However, a screening committee then imposed a more onerous interim suspension of his ability to practise on the basis of new concerns about his conduct. The Court set that suspension aside on the basis that the practitioner had not been alerted to the new concerns and had not been given an opportunity to respond to them before the decision was made.

Getting the Last Word

BLeBlanc_Webby Bernie LeBlanc
April 11, 2017

Even when ordering remediation, a committee has to provide procedural fairness. In Zaki v Ontario College of Physicians and Surgeons, 2017 ONSC 1613, the Inquiries, Complaints and Reports Committee (ICRC) ordered a Specified Continuing Education and Remediation Program (SCERP) to enhance record keeping (particularly legibility) followed by an assessment. The assessment identified continuing gaps in record keeping, but also noted a number of concerns about the actual treatment provided. The ICRC provided the assessment report to Dr. Zaki, who made a full response. Dr. Zaki’s response was forwarded to the assessor, who replied. The reply accepted the validity of some of Dr. Zaki’s submissions, but disagreed with his other points. Dr. Zaki was not given a copy of the assessor’s reply and another SCERP relating to both record keeping and substantive practice was ordered. The Divisional Court found the failure to provide the reply to Dr. Zaki for comments to be procedurally unfair:

First, procedural fairness must not only be accorded to a party, in fact, it must also be seen to have been accorded to the party. Providing information to the ICRC, upon which it relied in reaching its decision, that was not provided to the applicant, is neither procedurally fair in fact nor in appearance. The adage “no harm, no foul” is not a principle upon which the respondent can rely to overcome a fundamental failure to ensure that the applicant knew the case that he had to meet. The suggestion, that the second report was of no consequence, is a conclusion based on [sheer] speculation as to what the applicant might have done, including what submissions the applicant might have advanced, if the second report had been disclosed.

The Court went on to comment on the SCERP process. The Court said that requiring an assessment as part of the SCERP was not only permissible, but also necessary to ensure that the remediation was effective. However, the assessment should be carefully tailored so that it is rationally connected to the original concern. Where that assessment identified new concerns, it was appropriate for the College to consider them and, in appropriate cases, order a second SCERP with another assessment. However, judicial review remained available should the process descend into an apparently endless cycle of remediation and assessments.

Creative Defences to Sexual Abuse Allegations Fail

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by Rebecca Durcan
April 5, 2017

After numerous decisions by the Ontario Court of Appeal holding that the mandatory revocation provisions for sexual abuse are valid, one has to credit defence counsel with ingenuity in raising interesting new arguments in Sliwin v College of Physicians and Surgeons, 2017 ONSC 1947. Dr. Sliwin was a plastic surgeon. From time to time over the course of many years, he employed and had a sexual relationship with a woman. During this period the surgeon performed numerous cosmetic procedures on her without charge. He also provided other medical services. Dr. Sliwin appealed the finding of sexual abuse and the mandatory revocation on a number of grounds.

Dr. Sliwin argued that he should be excused from sexual abuse (although not a boundary violation) on the ground of officially induced error. He argued that his misinterpretation of various College publications on the topic of sexual abuse (e.g., statements permitting episodic minor procedures) lead him to believe that his conduct did not constitute sexual abuse. The Divisional Court held it was reasonable for the Discipline Committee to reject that argument on the basis that Dr. Sliwin “knew that what he was doing was wrong, that the advice from the College was not erroneous, and that he did not reasonably rely on erroneous advice”.

Dr. Sliwin also submitted that there was an abuse of process because the College had, in various communications with his defence counsel, tried to dissuade them from raising Charter of Rights issues or to represent him. While the Court was concerned about some of those interventions, it found that they did not compromise Dr. Sliwin’s ability to have a fair hearing before an impartial tribunal as the Committee was not involved. Dr. Sliwin also argued that the failure of the College to record and disclose, at least initially, that the complainant was concerned that a “sexual abuse” allegation had been made and that she wanted to withdraw her complaint was also an abuse of process. The Court did not find that this information was relevant to the case as it was the College that framed the prosecution once the complaint was made.

Dr. Sliwin also argued that the complainant was not his patient when they had sex. While all agreed that the sexual activity had to be concurrent with the Doctor-patient relationship, the Court deferred to the tribunal’s findings that the ongoing nature of the services resulted in the professional relationship encompassing at least some of the sexual activity.

The Divisional Court also rejected Dr. Sliwin’s argument that the prior Court of Appeal decisions could be disregarded because of subsequent spousal exemption amendments to the enabling statute, the Regulated Health Professions Act. The Court found that these narrow amendments did not significantly change the law and that, in any event, this sexual relationship was clearly not a spousal relationship. The Court also held that it was bound by the prior Court of Appeal decisions that the right to liberty protections found in section 7 of the Charter of Rights did not apply to Dr. Sliwin’s sexual freedom or his “right” to practise his profession.

The Court did, however, set aside the part of the tribunal’s order requiring Dr. Sliwin to post security for costs for therapy and counselling for the complainant. The Court concluded that on the facts of this case there was no reasonable prospect that the complainant would request such counselling and therapy.

Parity is not Dead

Maciura_Julie_5038by Julie Maciura
March 27, 2017

In College of Physicians and Surgeons of Ontario v Peirovy, 2017 ONSC 136, the Divisional Court refused to apply the “parity principle” where the range of sanctions from previous cases that counsel relied on was found by the Court to be clearly “unfit” such that those cases ought not to be followed. However, even in that decision the Court said that consistency in decision-making was important. A recent Alberta Court of Appeal case (which, by the way, did not cite Peirovy) reinforces that consistency in sanctioning is generally desirable.

In Constable A v Edmonton (Police Service), 2017 ABCA 38, a fifteen-year constable working for the Edmonton police had an unblemished record. During an investigation, she recruited a confidential informant for the first time in her career, but did not follow her employer’s protocol. To protect her informant’s identity she swore a false Information to obtain a search warrant and then maintained the falsehoods throughout the process. Eventually she told the Crown Attorney the truth, which resulted in her discipline. The discipline tribunals focused on the falsehoods and dismissed her. On judicial review the main issue was whether the dismissal was justified.

The Court held that, while dismissal was an option, it was not the only reasonable outcome for persistent deceit. It summarized the considerations that should be taken into account as follows:

…fitness of sanction depends on numerous factors, including: the seriousness of the misconduct; the moral culpability of the constable; the existence of remorse and recognition of responsibility; the resulting consequences for the public and the administration of law; the need for deterrence, denunciation or rehabilitation; and the overall fitness of the constable for police service. A fit sanction is also proportional; it reflects the moral blameworthiness of the person being sanctioned and the gravity of the misconduct.

The Court found that the tribunal had erred by not considering the parity principle especially where there were a number of decisions involving persistent deceit that did not result in dismissal. The Court said:

At issue here is the application of parity – one of the fundamental normative values that must inform every just sanctioning exercise. Those who are similarly situated should be treated similarly. No system of discipline can be fair in the absence of consideration of parity. A system that accepts that sentencing is completely individualized overlooks the importance of confidence and respect in the system that is fostered by a consistent rather than an arbitrary approach to sanction. In other words, precedents matter. Previous decisions, particularly well-reasoned decisions from the same tribunal, provide important guide posts when determining the gravity of conduct and the degree of responsibility of the officer, and in ensuring that the disciplinary system is applied fairly and not arbitrarily.

Given some of the mitigating factors in the case (e.g., exemplary record, motivation was to protect the confidential informant, not protect herself), the Court returned the matter for further consideration of an appropriate order. So the parity principle is still alive, however, it is important to remember that the Court in Peirovy recognized that the type of misconduct at issue there (sexual assault) has come to be viewed differently now by society and so what might have been a fitting precedent in the past was now in fact “unfit”. It is not clear that society’s view of false testimony by a police officer has really changed over time.

Deference to Discretion in Interim Suspensions

ERichler_Webby Erica Richler
March 20, 2017

Interim orders have become increasingly important for protecting the public when dealing with disciplinary matters. Bill 87 is poised to permit Ontario health regulators to impose them during the investigative stage (rather than only after allegations have been referred to discipline). That is already the case for lawyers in Ontario, which presented three distinct issues in the interesting case of Marusic v Law Society of Upper Canada, 2017 ONSC 663. Ms. Marusic was a professional and romantic partner with another lawyer who was suspended for serious misconduct including misappropriating trust funds. When her involvement in the transactions was brought under scrutiny, the Law Society issued an interim order restricting her access to trust funds. A stricter order was possibly avoided because she had broken off her personal relationship with the suspended partner. Subsequently new concerns were raised about Ms. Marusic allowing her former partner to participate in the practice of law and charge an unreasonable fee to a client. Apparently the romantic relationship had also been re-established. The Law Society varied the interim order to suspend her entirely from the practice of law. In rejecting her challenge to that suspension, the Divisional Court made the following points:

  1. The Law Society properly considered her personal relationship with the suspended lawyer because the first interim order, restricting her access to trust funds, was made in part on the basis of her submission that “she was a victim of [her partner’s] deceitful ways, but had ended her personal relationship with him”.
  2. The Law Society properly imposed a total suspension, rather than just imposing restrictions, given that the misconduct concerns under investigation now stretched beyond one discrete area of practice (i.e., more than mishandling trust funds was now in issue).
  3. The Law Society gave adequate consideration to the concern that an interim order might be unfair because the investigation would be long and protracted. The tribunal gave reasons addressing that concern and provided a mechanism to revisit the order if the investigation was not completed in a timely manner.

The Use of Precedents when Imposing Disciplinary Orders (Part 2)

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by Rebecca Durcan
March 13, 2017

In another rare example of a College successfully appealing a decision of its own Discipline Committee, the College of Physicians and Surgeons of Ontario has had a sexual abuse matter returned for re-consideration. In College of Physicians and Surgeons of Ontario v Peirovy, 2017 ONSC 136, the physician was found to have inappropriately touched the breasts of four patients under the “pretense” of a medical examination. The Court agreed with the College that a six month suspension was not fit and proper. The discussion ought to be whether the sanction should be revocation or a suspension for years, not months.

The Court said this about the use of past disciplinary precedents (portions of which have been quoted frequently by the media):

The main justification given by the Committee and the Respondent for the penalty imposed is that it is in line with similar penalties that have been imposed in similar cases…. The facts of these cases are base. It is depressing to review them. They do little to encourage confidence in the Committee’s approach to eradicating sexual abuse in the profession. Consistency in the imposition of sentence is a proper consideration, but a litany of clearly unfit penalties does not justify the penalty imposed in the present case. The penalty imposed in the present case was clearly unfit. It was inadequate to protect the public and vindicate the integrity of the profession.

Public confidence in the profession is not a “shifting standard.” Rather I think that community tolerance for sexual abuse by doctors has lessened. The public’s confidence in the medical profession demands more from the disciplinary process than recent sexual abuse discipline cases suggest.

The Use of Precedents when Imposing Disciplinary Orders (Part 1)

BLeBlanc_Webby Bernie LeBlanc
March 7, 2017

The Divisional Court upheld a finding of sexual abuse and a resulting revocation of registration in College of Physicians and Surgeons of Ontario v. McIntyre, 2017 ONSC 116. While there were acknowledged serious concerns about the disrespect of patients and serious boundary crossings in respect of two patients, the only actual sexual abuse finding related to a single extended and passionate kiss.

The kiss occurred two months after the last billed patient visit. The Court upheld the finding that the person was still the patient of Dr. McIntrye because of the pattern of periodic visits and the absence of actual evidence that the professional relationship had been terminated. The Divisional Court stated that an adverse inference could have been made on whether the physician-patient relationship had been terminated before the kiss on the basis that Dr. McIntyre did not testify. There is no right to silence in discipline proceedings and in these circumstances applying the adverse inference principle would not have amounted to reversing the onus of proof.

The Court also rejected the propositions that there existed a principle that the sanction should be the least intrusive one in the circumstances or that revocation is reserved for the most serious misconduct by the most serious offender. This is consistent with another recent decision, Chen v. College of Denturists of Ontario, 2017 ONSC 530, where the Divisional Court rejected the proposition that revocation was ordinarily reserved for repeat offenders. The Chen case involved a denturist who systematically practised dentistry over a 2 ½ period and then falsely billed for the services in the names of actual dentists.

The Court also accepted that the Discipline Committee could depart from older precedents that may no longer reflect its (and society’s) understanding of the seriousness of the conduct:

The applicability of precedent and the general principle of maintaining consistency in the penalties imposed for similar situations are difficult issues for discipline committees, particularly on issues where public mores may be evolving…. The Committee also was guided by the importance of deterrence, protection of the public and ensuring that the public continued to have confidence in the College to protect the interests of patients…. In reaching its decision, the Committee was cognizant of the particular circumstances of this particular doctor and these particular patients. However, the Committee also took a broad policy-based view of its own mandate: to protect the public; to recognize the devastating impact on patients when the trust they place in doctors has been violated, particularly through sexual abuse; and to maintain public confidence in the ability of the medical profession to regulate itself in the public interest…. In our view, the Committee’s penalty decision is reasonable, defensible, and supported by cogent reasons.

Reviewing the Registration Process

Maciura_Julie_5038by Julie Maciura
March 2, 2017

The registration process is different from most other activities of a regulator. For example, the onus is on the applicant to establish meeting the requirements, yet the regulator should give some notice of the concerns. The balancing of these issues occurred in Risseeuw v Saskatchewan College of Psychologists, 2017 SKQB 8. The applicant was registered in Alberta and had tried for years to become registered in Saskatchewan; it was a mobility case. The Court concluded that, in the circumstances of the case, the application for judicial review should be dismissed for undue delay. The applicant was aware from previous litigation that judicial review applications needed to be brought promptly, but had waited for two years from the decision to initiate the application. The regulator had a right to some finality of its decision.

The Court went on to consider the merits of the judicial review and found the application lacking. The Court held that the regulator was not required to give the applicant the same notice and particulars as is required in the disciplinary process. The applicant is taken to know the registration requirements and should not be surprised if the regulator applies those requirements to the application. Similarly, the applicant should know that incomplete or inconsistent information provided on the application will be considered by the regulator. Similarly, the applicant should not be surprised that the regulator will want information as to her current competency if her previous application was rejected because of concerns about her competence.

Perhaps most interesting is the Court’s approach to the mobility issue. The Court suggested that, where an applicant applied previously and there were competency concerns at that time, the regulator can now (again) consider the applicant’s competency:

“The applicant’s position takes the narrowest possible view. It presupposes that the mobility provisions will be applied almost as a rubber stamp. It presumes that the respondent must purge itself of past knowledge of incompetency. The applicant’s position takes this narrow, literal view without adopting a purposive approach to legislative interpretation. The suggestion that the respondent is obligated by s. 20(2) of the Act in a robotic fashion does not comport with the overall legislative scheme and intention.”

The Court’s approach may be based on the specific legislative context rather than a pure analysis of most mobility provisions for professions and may not have broad application to other cases.

The Court also indicated that the regulator can engage in a certain amount of inquiry into the accuracy of the applicant’s information. However, the Court did not clarify how extensive those inquiries could be.

Reasonable Rejection of Reinstatement Request

ERichler_Webby Erica Richler
February 24, 2017

In Manoukian v Ontario College of Pharmacists, 2017 ONSC 589, the former pharmacist had a significant discipline and criminal history. After being revoked for trafficking narcotics he was reinstated only to be revoked again for fraudulent billing. However, those findings were decades old and he was now a licensed paralegal. In support of his application for reinstatement to the College he had letters of reference from respected sources, including judges; expert reports from both a psychologist and a psychiatrist stating that his risk of re-offending was low; and he successfully completed various educational courses including one on professional ethics. In upholding the refusal of the Discipline Committee to reinstate the applicant the Court made the following points:

  1. The standard of review by the Court was reasonableness.
  2. The Discipline Committee applied the balance of probabilities standard to the evidence at the reinstatement hearing.
  3. The Discipline Committee was entitled to consider the reputation of the profession and the impact of the decision on the public.
  4. The Discipline Committee was entitled to reject the option of reinstatement upon terms, conditions and limitations in the circumstances of the case.
  5. The Discipline Committee could discount the significance of successfully completing the educational courses given what was required to complete those courses.
  6. The Discipline Committee did not have to accept the expert reports put before them (even though they were not contradicted).
  7. The Court would not re-weigh the evidence where the Discipline Committee found the applicant’s evidence to be “self-serving and not forthright” and where the Committee explained why it reached that conclusion.

The Court said: “The panel concluded that to reinstate the applicant, a second time, would not only pose a risk to the public, but it would also not reflect well on the profession. That was a reasonable conclusion for the panel to reach. It was certainly a decision that ‘falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’ ….”

Asking Good Character and Capacity Questions on Annual Renewal Form

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by Rebecca Durcan
February 21, 2017

In Health Sciences Association of Alberta v Alberta College of Paramedics, 2016 ABQB 723, the content of the annual renewal form was prescribed by subordinate legislation. The regulatory body added to the form three broadly worded questions relating to police or criminal interactions, to treatment for mental or physical conditions that could affect a practitioner’s capacity to practice, and to substance abuse. On a challenge to the questions, the Court held that there was no authority for the regulatory body to add the questions to the form. The Court rejected the regulator’s argument that the questions were not substantive because the questions did affect the human rights and the privacy rights of practitioners. However, the Court declined to make a general statement as to whether the College had the authority to ask practitioners about these matters in contexts other than annual renewal of registration. Because of the narrow focus of the decision of the Court in this case, it is difficult to extrapolate the ruling to other contexts, including annual renewal forms used under other legislation. However, the Court did view the asking of these questions as a serious matter.

Context is Important in Assessing whether there is an Appearance of Bias

BLeBlanc_Webby Bernie LeBlanc
February 15, 2017

At day 39 of what would turn into a 60 day registration hearing, the applicant raised an appearance of bias concern. The concern was that the applicant for a paralegal licence was giving advice to an individual in a human rights case where the chair of the hearing panel represented the respondent. The individual was also going to become a character witness for the applicant. The chair of the panel immediately transferred the case (her involvement had only been brief at this point) to another lawyer in the firm and separated herself entirely from the human rights case.

In Kopyto v. The Law Society of Upper Canada, 2016 ONSC 7545 the Divisional Court held that there was no appearance of bias. The Court found that the appeal tribunal’s conclusion on the bias issue was reasonable, when the appeal tribunal said: “A reasonably informed person would not form the view that Ms. Blight’s brief representation of the respondent to G’s human rights application would impair her ability to fairly adjudicate the appellant’s licensing proceeding.” Undoubtedly, the raising of this concern so late in the protracted hearing process was a significant consideration.

The Court also said that the appointment process for the hearing panel in registration matters did not require a degree of independence of an appointment of a Judge to the courts. Allowing the chair of the tribunal to freely appoint panel members demonstrated an adequate degree of independence.

No Stay Pending Appeal in Ungovernability Case

Maciura_Julie_5038by Julie Maciura
February 10, 2017

In Kuny v College of Registered Nurses of Manitoba, 2016 MBCA 122, two findings of professional misconduct were made against nurse Kuny. The first was for failing to cooperate in an investigation and the second was for failing to abide by a remediation agreement (and misleading the College about failing to do so). The second finding resulted in an order of cancellation / revocation. The Court in considering the stay application said: “The law relating to the granting of a stay pending appeal is clear. It is a matter of judicial discretion and there is a heavy onus on the applicant since the presumption is in favour of the correctness of the decision of the tribunal.” The Court also applied the test for injunctions (i.e., there must be an arguable case, irreparable harm and the balance of convenience must favour the injunction).

The Court declined to stay the disciplinary order of revocation and appeared to be most influenced by the nurse’s apparent ungovernability. The Court did, however, stay the order to pay the College money as the Court felt that might prevent the nurse from exercising his legal rights since he was not working and had the expenses of the appeal.

Challenging an Undertaking Never to Re-Apply

ERichler_Webby Erica Richler
February 6, 2017

Colleges often agree not to proceed with a discipline hearing if the practitioner undertakes to resign and never to re-apply for registration. This type of resolution is often appropriate where the allegations do not require denunciation and where there are mitigating factors such as illness or the practitioner is ending a long and distinguished career. Dr. Stelmaschuk, a dentist in British Columbia, entered into such an undertaking. He suffered from bi-polar disorder. Later he sued his regulatory body to set aside the undertaking on the basis that he did not have capacity to understand the agreement he was signing because he was in an acute stage of his illness at the time. The agreement confirmed that he had legal advice at the time of signing.

In Stelmaschuk v. The College of Dental Surgeons of British Columbia, 2016 BCSC 2196, the regulator sought access to information from the dentist’s lawyers to challenge whether the dentist had capacity to enter the undertaking. The dentist resisted on the basis of solicitor and client privilege. The Court concluded that the dentist had waived this privilege when he asserted his lack of capacity and ordered access of the information to the regulatory College.

The fact that this litigation is ongoing may serve as a warning to regulators to be cautious when entering into such undertakings where there is evidence of an illness that might affect the capacity of the practitioner.

Use of Evidence of Disability in Discipline Hearings

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by Rebecca Durcan
February 1, 2017

Regulators continue to face the difficult task as to how to balance evidence of some degree of disability (e.g., mental or cognitive impairment, substance abuse disorders) when dealing with allegations of professional misconduct. Further guidance was provided by the Manitoba Court of Appeal in The Law Society of Manitoba v Cherrett, 2016 MBCA 119. In that case a lawyer had misappropriated $20,000. He argued that he was in a “cognitive fog” and was confusing different files when he transferred the funds into various accounts controlled by him. On the issue of finding, the Court upheld the findings of the tribunal that “found that the appellant’s methodical actions were inconsistent with that argument, and that his actions were done “purposefully” and were “deliberate and considered conduct.”” The Court later said, on the issue of penalty: “While the panel acknowledged that the appellant’s ill health affected his ability to practice law, it found that the appellant’s diminished capacity argument was inconsistent with what he did, and explained why.” Thus, even where incapacity is present, that does not necessarily mean that the tribunal must conclude that the conduct resulted from the disability where the facts suggest otherwise.

Raising the Ineffective Assistance of Defence Counsel as a Ground of Review

BLeBlanc_Webby Bernie LeBlanc
January 27, 2017

Occasionally, practitioners raise the issue of the ineffective assistance of defence counsel as a ground for reviewing an adverse disciplinary decision. This sort of issue is not uncommon before the criminal courts. The British Columbia Court of Appeal gave some guidance on when such arguments might be accepted in the disciplinary context in Jalloh v. Insurance Council of British Columbia, 2016 BCCA 501. In that case, an insurance sales licensee faced a four year suspension for violating the privacy of a former romantic partner. He claimed that his lawyer unexpectedly sent a junior lawyer to represent him at his discipline hearing and that he was prevented from testifying at the hearing. The practitioner kept his senior lawyer for the appeal hearing before an independent tribunal. The practitioner then sought judicial review, but only at the last minute added the concern about ineffective representation.

Both the reviewing court and the Court of Appeal declined to accept this argument. They based their decisions on a number of considerations including the apparent strength of the case against the licensee, the fact that the hearing was otherwise procedurally fair, that such concerns are rarely accepted and that he raised the issue very late in the process. While the multitude of considerations makes it difficult to apply this case to others, the outcome does indicate that it will be a rare and strong case that will persuade a court that ineffective representation would make a discipline hearing so unfair as to nullify the results.

R v. Jordan Makes its First Appearance at Discipline

Maciura_Julie_5038by Julie Maciura
January 23, 2017

Earlier this year the Supreme Court of Canada imposed strict time limits for criminal proceedings in R. v. Jordan, 2016 SCC 27. Absent special circumstances, a matter in provincial court must be completed within 18 months and a matter in superior court must be completed within 30 months. The media reports that, as a result of this decision, many cases have already been stayed in the criminal court system. The Jordan decision is based on s. 11 of the Canadian Charter of Rights and Freedoms which does not apply to discipline hearings. However, it was only a matter of time before the principles of that case were raised in a discipline hearing context.

In Coady v Law Society of Upper Canada, 2016 ONSC 7543, a lawyer had her licence revoked some years ago for various forms of misconduct suggesting ungovernability. She brought a motion asking the court to reconsider its earlier decision based on delays at her discipline hearing citing the Jordan case. The Court dismissed her motion as frivolous and vexatious and because it did not have jurisdiction to reconsider its decision. This case indicates a reluctance by the courts to apply the Jordan case to past discipline proceedings, at least.

Far Reaching Interim Order in Unauthorized Practice Case

ERichler_Webby Erica Richler
January 17, 2017

In Ontario College of Pharmacists v Thi Kim Tien Nguyen, 2016 ONSC 7639, a pharmacist undertook to resign, cease practising and transfer ownership or close down her pharmacy in exchange for a stay of discipline proceedings. She did not do so. College witnesses provided evidence that she continued to operate the pharmacy and to dispense medications, including a narcotic.

The College brought an application under s. 87 of the Regulated Health Professions Act to require the former pharmacist to comply with the Act and cease practising. The College asked for an interim order to be made in the meantime (before the application was heard on the merits), which the Court granted. The Court applied the usual test for an interlocutory injunction (i.e., there must be an arguable case, irreparable harm and the balance of convenience must favour the injunction) but accepted that there was a presumption of irreparable harm where an individual was willfully breaching the law. The Court also declined to order the College to undertake to pay damages should the interim order later prove to have been unwarranted.

Perhaps most interestingly, the Court granted the College’s request that it be permitted to enter the pharmacy and remove all of the drugs to store in a secure location until such time as the issues could be resolved. Since this was just an interim order that, officially, was made without prior notice (although actual notice had been given and the former pharmacist’s spouse was present and made submissions), a date was set to hear further arguments on the matter.

When is being Transparent Defamatory?

Durcan_Rebecca_5583

by Rebecca Durcan
January 13, 2017

At times there is tremendous pressure on the government and a regulator to be transparent about possible incompetence or misconduct that undermines confidence in the health care system. Awaiting the end of the disciplinary process to comment may not be feasible. However, issuing public statements, particularly where an individual practitioner is identified, can have a devastating impact on the practitioner. In Tsatsi v College of Physicians and Surgeons, 2016 SKQB 389 the decision by the regulator, the Minister and the hospital to inform the public of apparent radiological misinterpretations and to reassure the public of the steps being taken to protect them resulted in a defamation lawsuit.

In that case the Court summarily dismissed the action on the grounds that there was a basis for the public statements (i.e., a peer review report) and that, even if the statements were not justified, the entities were protected by “qualified privilege” which protected them in the absence of malice. On the qualified privilege point the Court said:

In so deciding I am cognizant that Sunrise [the hospital] and McMorris in his capacity as Minister of Health owe their primary duties to the public. Even the College does not exist merely for the purpose of protecting members of the medical profession. Each of the defendants owed a duty to the public, and in particular, an obligation to safeguard the health and welfare of the people of this province and inform them when a potentially serious risk of misdiagnosis has been discovered. The court must therefore exercise caution in second guessing the manner in which this public duty was discharged. This is especially so where, as in this case, there was a factual basis for the impugned communications and each of the defendants was careful to relay only the facts as they understood them and the measures that they were implementing in response.

This case should not only provide assurance to regulators who feel that they must make a public statement (confidentiality provision permitting) on a troubling case, but can also provide guidance on how to do so in a way that minimizes the regulator’s risk of liability.

Serving Documents, Technically

BLeBlanc_Webby Bernie LeBlanc
January 10, 2017

Technical arguments do not usually succeed in professional regulation unless there is some actual unfairness. Two recent cases confirm this principle.

In Institute of Chartered Accountants of Alberta (Complaints Inquiry Committee) v Barry, 2016 ABCA 354, the main issue was whether the notice of hearing in a discipline matter was served in accordance with the legislation. The provision permitted service by courier. The practitioner argued that XpressPost did not meet the requirements of the provision. The Court disagreed, saying that this was a type of courier service. Even if it were not, the Court said the fact that the practitioner actually received the notice of hearing meant that any non-compliance with the provision was inconsequential.

In Nobody v Ontario Civilian Police Commission, 2016 ONSC 7261, a complainant filed an appeal electronically upon the Ontario Civilian Police Commission. There was a 30-day time period to file the appeal. The appeal was filed on the last day of the time limit and was received by the Commission on the same day. However, the legislation deemed electronic documents to be filed the day after it was sent, which was after the 30-day time limit. The Commission dismissed the appeal as being late. The Divisional Court said:

The decision of the Commission is undoubtedly unfortunate. To deprive a citizen of his or her statutory right of appeal where he has actually served his notice of appeal within the statutory time limit on the basis of a deeming provision is, if not unfair, certainly undesirable. That is particularly so in a legislated police complaints system intended to be transparent and accessible, in order to promote public confidence in police and policing. However, in my view, in addition to being unfortunate the decision is wrong in law….

Deeming provisions like this are intended to be of benefit to a party serving a document. They provide certainty to the serving party. They are not intended to be traps for the unwary.

Regulators should generally take a purposeful and beneficial view of technical requirements.

It’s All Circumstantial

Maciura_Julie_5038by Julie Maciura
January 5, 2017

Insider trading cases are often circumstantial in nature. Fiorillo v Ontario Securities Commission, 2016 ONSC 6559 is no different. In a very lengthy decision, the findings of the Commission were upheld. The circumstantial evidence included a pattern of telephone calls between a person with access to material non-public information and those that bought the securities shortly after the calls. There were other factors that supported the inference, such as attempts to conceal the true person behind the trades. The Court upheld that findings can be based on circumstantial evidence where it is sufficiently compelling.

The Court commented on a number of other issues. For example, it said that there is a low threshold of fairness for beginning an investigation or in compelling a practitioner to undergo an interview both in terms of grounds to initiate the process and in terms of disclosure given in advance of the examination.

The Court also said that hearsay evidence is admissible in regulatory proceedings (unless the statute says otherwise) and the reading in of the transcript of the mandatory interview of a witness was upheld even though that meant the other practitioners could not cross-examine the witness. In that case, both parties appeared to have equal access to the witness to summons them to the hearing for questioning, if wanted. Each side wanted the other to call the witness so that they could cross-examine her. However, it appeared that the witness was, in fact, adverse to the prosecution and not adverse to the practitioners in that she denied participating in the alleged wrongdoing. So the Court did not see any duty on the prosecution to call the witness in person.

The Court also upheld an order to pay about 11% of the total costs even though the costs included concerns that had not been established and even though the $300,000 ordered was more than the prosecution had requested. The Court indicated that significant deference should be given to costs orders.

Another recent securities commission case that discusses and applies the concepts of circumstantial evidence and making inferences is: Finkelstein v Ontario (Securities Commission), 2016 ONSC 7508.

Establishing Holding Out Through Facebook and LinkedIn

ERichler_Webby Erica Richler
January 3, 2017

It can be challenging for regulators to prove holding out based primarily on social media postings. The case of Law Society of Saskatchewan v Siekawitch, 2016 SKQB 345 may make it easier for them to do so. In that case, the regulator sought an injunction against Mr. Siekawitch for holding himself out as a lawyer based on a telephone call in which he called himself an attorney, as well as his Facebook and LinkedIn posts. There was no direct evidence that Mr. Siekawitch was the person on the telephone beyond his identifying himself at the beginning of the call. The Court held that such self-identification was a recognized exception to the hearsay rule.

In terms of the social media postings, the Court was willing to infer that they had been posted by Mr. Siekawitch based on their content. The Court took judicial notice of the nature of the social media sites and analyzed the detailed content of those sites as making it unlikely that they belonged to anyone else. The Court also noted similarities between the claims made on the sites and the language used in the telephone conversation. Mr. Siekawitch’s uncommon name and the fact that he did not appear to dispute the evidence against him gave the Court confidence that the sites represented holding out and the Court issued an injunction against him.

Searching a Member’s Home for Private Dishonesty

Durcan_Rebecca_5583

by Rebecca Durcan
December 19, 2016

It is rare for regulators to search a member’s home. However, in Law Society of Saskatchewan v Abrametz, 2016 SKQB 320 the Court held that a practitioner’s home is not sacrosanct. The Court said that “if [the member’s] argument were to prevail, it could lead to a perverse result. A member could simply insulate himself or herself from regulatory scrutiny by moving documents from the office to the home.”

In that case, the lawyer was being investigated for arranging partial payment of services outside of his firm’s accounting system as an apparent tax-avoidance scheme. The lawyer argued that the regulator had no business looking at his private financial affairs. The Court said: “the principle that regulatory jurisdiction does not stop at the office doors of the professional person in question and that a narrow view of jurisdiction is inconsistent with the broad purposive scope and mandate of the applicable self-governance legislation.”

The Court did identify two areas of possible caution for regulators. First, the Court commended the regulator in this case for giving prior notice of its intent to execute the search so that the member could challenge it first in court. Regulators may not always conclude that affording prior notice is prudent as this might provide opportunity for the tampering with evidence. Second, the Court deferred dealing with the constitutional issue of a provincial regulator enforcing a breach of a federal statute. The Court said that the disciplinary allegations, which had not yet been drafted, might involve issues of dishonesty and a lack of integrity that were different from a bare allegation of breaching a federal statute. For example, the allegations might relate to misleading the regulator or involving clients in a scheme to not declare income, which are different from an allegation of breaching the Income Tax Act.

Bill 87 Gives Government Much More Power over Health Regulators

ERichler_Webby Erica Richler
December 12, 2016

The changes contained in Bill 87 to the Regulated Health Professions Act, 1991 have been presented as relating primarily to addressing sexual abuse by health practitioners. And the Bill does contain some important provisions doing just that. For example, if passed:

  • The sexual abuse provisions will apply to former patients for at least one year.
  • Interim orders could be imposed immediately upon receipt of a complaint or report (previously they could not be imposed until after the investigation had been completed).
  • Gender-based restrictions (e.g., not allowing a practitioner to treat female clients) will not be permitted.
  • The criteria for mandatory revocations will be expanded to include most forms of sexual touching.
  • Eligibility for funding for counselling and therapy and related expenses will be expanded.
  • The penalties for failing to report sexual abuse will be increased.

Significantly, Bill 87 also contains a number of provisions that would increase the powers of the Minister over the regulatory Colleges. The Minister would be able to require Colleges to provide information to the Minster about individual cases (including personal information and personal health information). The Minister would also be able to set the composition, quorum, eligibility and disqualification requirements for all College committees. There would not necessarily have to be a majority, or even any, professional members on the committees. In addition, the Minister would be able to require additional information about practitioners to be placed on the public register. The Minister could also expand the mandate of the patient relations program. Overall, the Minister will have a much larger say in the day-to-day operations of the regulatory bodies.

Bill 87 has only passed first reading and still has to go through the entire legislative process. This Bill may be viewed online: http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=4477

Mandatory Reporting Duty and Making False Allegations

BLeBlanc_Webby Bernie LeBlanc
December 6, 2016

Everyone is required to make a report to the Children’s Aid Society about any reasonable suspicion that a child is in need of protection. A person making a report has immunity for any such report unless it is made in bad faith. In order to facilitate the making of such reports, courts provide a strong immunity to those who make them. Otherwise, a chill might arise discouraging the making of such reports. However, in Grogan v Ontario College of Teachers, 2016 ONSC 6545 the Ontario Divisional Court has upheld that where the report is false, the regulator can and should take action.

In Grogan, the teacher made multiple reports about a colleague to the Children’s Aid Society, the police and the colleague’s employer about the colleague’s “involvement with a non-verbal, developmentally delayed female student”. The complaint was referred to discipline on the basis that the report was false. The Discipline Committee was troubled by not only the apparent falsity of the reports, but their persistent and repetitive nature. The panel held that the false reports amounted to professional misconduct and the practitioner’s registration was revoked. The Divisional Court upheld both the finding and the sanction on the basis that the Discipline Committee had provided detailed reasons explaining both determinations. The Court was impressed that the panel had explicitly addressed the potentially chilling effect of its findings.

Given this outcome, regulators can expect more complaints about allegedly false mandatory reports. However, only in those complaints where there is a preponderance of evidence that the report was falsely made will result in disciplinary action.

 Cooperation, Bias and Costs

Maciura_Julie_5038by Julie Maciura
November 29, 2016

The Ontario Court of Appeal has supported one of the more significant disciplinary decisions of 2016. In Reid v. College of Chiropractors of Ontario, 2016 ONCA 779 the Court found that there was no arguable case on the grounds of appeal challenging the Divisional Court’s decision upholding the discipline findings and suspension and costs orders of the Discipline Committee. Dr. Reid had been found to have engaged in professional misconduct for threatening and harassing a colleague and failing to cooperate with the College’s investigation of that complaint. Among other things, Dr. Reid was suspended for twelve months and ordered to pay costs in the amount of $166,194.50.

The Court found that there was evidence to support the findings; indeed the finding of failing to cooperate was unassailable. The Court also indicated that an appellate court’s role in reviewing a cost order was to determine whether it was reasonable in the circumstances and an appellate court should not conduct its own evaluation of what the costs should have been.

The Court also rejected the notion that a panel member sitting on a previous case against the practitioner has an appearance of bias, at least where there were no adverse credibility findings made.

Plump up that Résumé with Caution

Durcan_Rebecca_5583by Rebecca Durcan
November 22, 2016

Practitioners have a status that many organizations like to use. However, lending that status to an organization creates a duty on the practitioner to ensure that the organization is acting appropriately. In Wong v Health Professionals Appeal and Review Board, 2016 ONSC 6413 (Div.Ct.), a physician permitted a clinic to list him as its Associate Medical Director. The clinic then advertised services he did not provide and made Groupon offers. The practitioner was unaware of these advertisements. The ICRC screening committee gave educational advice to the practitioner. He objected to the advice because he was not aware of the advertisements. The Appeal and Review Board and the Court upheld the advice, finding that he had a responsibility to exercise due diligence into how his status would be used by the clinic.

Another physician who had not loaned their status to the clinic and who had not known about the advertisements ultimately received no educational advice.

Enforcing Unauthorized Practice Provisions through Contempt of Court

ERichler_Webby Erica Richler
November 16, 2016

Regulators are increasingly obtaining restraining orders against illegal practitioners (particularly former members). As a result of these cases, the law of civil contempt has actually become clearer. Recently, in The Law Society of Upper Canada v Fingold, 2016 ONSC 5684, the Ontario Superior Court of Justice clarified the process for finding a person in contempt. Quoting the recent Court of Appeal case, Chirico, the Court said: “The test for civil contempt is well established. The order must be clear and unequivocal, the failure or refusal to comply with the order must be deliberate, and the failure or refusal to comply with the order must be proved beyond a reasonable doubt….” The Court emphasized: “Most importantly, the Court of Appeal in Chirico reaffirmed the principle that the party subject to the court order must comply with ‘both the letter and spirit of the order’….” and “the days are long gone when someone subject to a court order can get away with circumventing it by relying on a benign technicality. To allow that to happen would be disrespectful of the order and of the administration of justice.” In this case, the Court rejected a circumvention scheme in which Mr. Fingold, a disbarred lawyer, hired paralegals to file the paperwork on his behalf.

The Court rejected any concern that the enforcement proceedings were initiated by the regulator and not the client in the transaction. The Court also approved the practice of separating the finding phase of the hearing from the penalty phase, to prevent the evidence that is relevant to one phase improperly tainting the other phase.

Regulating by Referendum

Maciura_Julie_5038by Julie Maciura
November 8, 2016

The latest in the series of Trinity Western University (TWU) cases indicates that statutory bodies cannot regulate by referendum. TWU is a Christian university that has a code of conduct students must sign agreeing to only engage in sexual relations with one’s spouse of the opposite (it assumes there are only two) gender. Law Societies have been struggling to determine whether to recognize graduates of the school. Last week’s decision by the British Columbia Court of Appeal struck down the Law Society of British Columbia’s refusal to recognize the school: Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423.

The major concern of the Court was that the Law Society decided to be bound by the results of a referendum by its members on the issue. The profession voted 74% to deny recognition of the school and the Law Society accepted those referendum results. The Court concluded that the regulator had to balance the competing interests and not fetter its authority by way of the referendum results. The Court said: “the adoption of a resolution not to approve TWU’s faculty of law would limit the engaged rights to freedom of religion in a significantly disproportionate way — significantly more than is reasonably necessary to meet the Law Society’s public interest objectives.”

The Court concluded:

A society that does not admit of and accommodate differences cannot be a free and democratic society — one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal. This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.

Forcing Finney Farther from Fault Finding

Durcan_Rebecca_5583by Rebecca Durcan
October 31, 2016

The case of Finney v. Barreau du Quebec, 2004 SCC 36 has puzzled regulators for more than a decade as it appeared to suggest that regulators could be ordered to pay damages in a civil suit for negligence. Finney appeared to be at odds with cases both before and after Finney that appeared to say that regulators are immune from a civil suit for damages unless they acted in bad faith. The case of Robson v Law Society of Upper Canada, 2016 ONSC 5579 provides yet a further distancing of the courts from Finney. Robson was found by the hearing panel of the Law Society to have engaged in professional misconduct and his licence was revoked. Robson succeeded before the appeal panel, which reversed the finding. The appeal panel declined to award him costs, however, finding that the prosecution had not been unwarranted. Robson sued both the Law Society and its individual representatives for negligence, malicious prosecution, and malfeasance (abuse of) public office.

In a motion to strike the pleadings, the Law Society succeeded on the basis that it and its representatives were immune from negligence claims and that there had been no particulars of how the defendants had acted in bad faith or for an ulterior purpose. The Court held that the Finney case turned on the concepts found in the Quebec Civil Code that did not apply to the common law concepts of malicious prosecution and malfeasance (abuse) of public office. However, the Court gave leave to amend the pleadings to enable Robson to try to plead the missing particulars. The Court rejected the notion that Robson was not in a position to plead those particulars until later in the proceedings; the regulator was entitled to know the case it had to meet. On the other hand, the Court also rejected the proposition that the appeal panel’s determination that the prosecution had not been unwarranted made the current proceeding an abuse of process or an inappropriate re-litigation of issues.

Joint Submissions

BLeBlanc_Webby Bernie LeBlanc
October 24, 2016

The Supreme Court of Canada has provided detailed guidance on how adjudicators should approach joint submissions. While the case deals with a criminal case (a manslaughter finding where the victim hit his head on the ground following a punch), it will likely have significant application to discipline cases as well. Past discipline cases have taken a similar approach to criminal cases when dealing with joint submissions: Rault v. Law Society of Saskatchewan, 2009 SKCA 81.

In R. v. Anthony Cook, 2016 SCC 43, the Court examined the reasons why joint submissions should usually be accepted, including that the defendant is giving up their right to a hearing and that both sides and the public often gain a significant benefit by having such agreements generally accepted. For example, witnesses are spared being put through a trial and both the “victim” and the defendant can benefit from the acknowledgement of responsibility and more quickly putting the blame part of the process behind them. The Court concluded that the most stringent of tests for rejecting a joint submission should be applied, namely, only where it would bring the administration of justice into disrepute or is otherwise not in the public interest. In particular, adjudicators should not analyze whether the joint submission is “unfit” in the circumstances.

The Court, in a bit of an unusual step, offered practical guidance to adjudicators who have concerns with a joint submission. One suggestion was to ask the parties about the circumstances of the agreement including any benefits obtained by the prosecution and any concessions offered by the defendant. These circumstances could include things like reluctant witnesses, evidence of uncertain admissibility and any undertakings offered by the defendant. The Court also suggested that if an adjudicator is seriously considering not accepting the joint submission, it should notify the parties not only to permit additional submissions, but also to enable the defendant the opportunity to withdraw from the agreement. It is not obvious whether this aspect of the Court’s advice would apply to professional misconduct proceedings.

Investigative Powers Not to be Restrained in Advance

BLeBlanc_Webby Bernie LeBlanc
October 17, 2016

Can a regulator have access to the member’s personal cell phone and residence? In McLean v. Law Society of British Columbia, 2016 BCCA 368 the Court said “it depends”. In that case the lower court issued an injunction against the regulator from doing either. The British Columbia Court of Appeal quashed that injunction, but did not say that the regulator could do those things. The Court of Appeal observed that there had been no evidence that the Law Society intended to do either of those things. It found that injunctions should not be granted to prohibit any prospective action that was not in actual contemplation. For example, the Court of Appeal was concerned that there was no evidence as to what documents were located in the residence of the member or for what use the personal cell phone had been used. The implication was that if there was a reasonable basis for the regulator to believe that important and relevant information was to be found in either place, the investigation might “go there”. However, the implication was also that a regulator could not enter a member’s private resident or take possession of the member’s private cell phone on speculative grounds.

You Can Reap Only What You Sow

Maciura_Julie_5038by Julie Maciura
October 12, 2016

In a professional misconduct case, the prosecution decides what seed to plant in the wording of the allegations. The prosecution is then restricted to reaping findings only from those allegations. It cannot try to reap a different harvest after the seed has sprouted. That is the lesson gleaned from Meier v Saskatchewan Institute of Agrologists, 2016 SKCA 116. The allegation there was that Mr. Meier had made false and misleading statements about a seed planting experiment he had conducted. The “particular” (i.e., the specific facts supporting the allegation) that was alleged against him was that Mr. Meier had failed to disclose that the difference in growth was the result of different seed planting depths and not the manner in which the fertilizer had been administered. However, at the hearing the prosecution had difficulty establishing that “particular” because its key witness could not establish with certainty which field of crops he had examined. The Discipline Committee made a finding against Mr. Meier on the basis that he had not followed a proper scientific method in making his claims. The Court of Appeal found that this shift of focus was unfair to Mr. Meier because he had prepared his entire defence based on the seed-depth issue. He had not been properly notified of the particular upon which the Committee had based its finding. The hearing was thus unfair and the result reversed. Wording of the statement of allegations, particularly (no pun intended) in standards of practice cases, is extremely important.

Restricting the Activities of Suspended Members

ERichler_Webby Erica Richler
October 4, 2016

There has been a lot of litigation over the years regarding the authority of regulators to restrict the activities of suspended members. One of the reasons is that different statutes take different approaches to whether a suspended member is still a member of the profession. The Alberta Court of Appeal recently addressed this issue in Law Society of Alberta v Beaver, 2016 ABCA 290. Mr. Beaver was suspended by the Law Society. He continued to perform activities within the practice of law, including acting as an agent. The Law Society sought an injunction to prevent him from doing so. Mr. Beaver argued that suspended lawyers could act as agents because there was no explicit prohibition in the Act.

The Court rejected this argument. It held that such an interpretation would defeat the public protection purpose of the Act. An important factor was that suspended members remain members under this Act and the Act prevents members from acting as agents due to the risk of public confusion.

The Court also concluded that the regulator had the implied authority to restrict the activities of suspended members in this case, even if it was not expressly stated in the Act. The Court also stated that a regulator had standing to bring applications for injunctions to protect the public from unregistered practitioners and that Courts had the inherent power to grant such injunctions even if the enabling legislation did not have a restraining order provision. This case should assist regulators who have outdated enabling statutes.

Production Orders in Investigations Upheld

BLeBlanc_Webby Bernie LeBlanc
September 26, 2016

Are journalists’ notes exempt from regulatory investigators? The Court in Mulgrew v. The Law Society of British Columbia, 2016 BCSC 1279 says no. In an interview with the Vancouver Sun, a lawyer made comments critical of an expert witness in one of the lawyer’s cases. The expert witness sued for defamation and made a complaint to the Law Society. The Law Society appointed an investigator who issued an order to the Vancouver Sun to produce its notes of the interview with the lawyer. The Vancouver Sun challenged the order on various grounds.

The Court held that the authority of regulatory investigators to compel third parties, including journalists, to produce information to assist in an investigation of a complaint resulted in little protection under the Canadian Charter of Rights and Freedoms. The expectation of privacy in these circumstances was minimal, the public interest in regulating lawyers was significant and the procedure permitted the third party to challenge the order before it was enforced. In addition, there was no real restriction on the ability of the journalist to write what they wanted. Thus the legislative provisions appeared to be consistent with the freedom against unreasonable search and seizure, the right to life, liberty and security of the person and the freedom of expression protections of the Charter.

The Court also held that the discretion of the investigator to seek relevant documents for an investigation ought to be given considerable deference, even if there was parallel civil litigation for defamation. However, in this case at least, the investigator had to file evidence justifying the investigatory decisions.

This case does not address fully concerns that might arise if the investigator sought production of confidential sources of the journalist.

Preventing Sexual Abuse

Durcan_Rebecca_5583by Rebecca Durcan
September 19, 2016

Most of the attention on the Sexual Abuse Task Force (SATF) report in Ontario has been focused on the proposed changes to the complaints, investigation and discipline system. However, chapter 4 of the report provides excellent resources on preventing sexual abuse in the first place.

The SATF suggests that there are three key ways of preventing sexual abuse of patients:

  1. Severe consequences to practitioners who abuse patients.
  2. Specifying clear boundaries to both practitioners and the public.
  3. Adequate education, especially for students, but also ongoing once registered.

The education of practitioners (and others) should cover nine components:

  1. The concept of zero tolerance (e.g., no excuses).
  2. Boundaries such as the time, location and duration of treatment, language used, reasons and method of touching, self-disclosure and socializing and dual relationships.
  3. Why sexual abuse occurs, including the vulnerability of patients and motivations of practitioners who abuse them (e.g., falling in love).
  4. The various forms, extent and timing of the harm from sexual abuse.
  5. That consent is not valid for sexual abuse and an understanding as to why apparent consent may occur.
  6. Post-termination involvements with patients and why they are always troublesome and when they are never appropriate.
  7. Mandatory reporting rules and how to manage ambivalence about doing it and why it is so important.
  8. Knowledge of the legislation, rules and standards that exist for every profession.
  9. How to critically evaluate potential boundary violations so that the practitioner has the tools to manage unexpected or challenging situations.

This chapter provides useful information for all regulators, not just those associated with health professions.

Fundamentally Reshaping Sexual Abuse Investigations and Prosecutions

Maciura_Julie_5038by Julie Maciura
September 9, 2016

Transfer the handling of all sexual abuse complaints from self-regulatory bodies to a central, independent, public agency and separate hearing tribunal. That is a key recommendation of the long-awaited Sexual Abuse Task Force (SATF) report in Ontario. Interestingly, the central agency would have multiple roles including educating the profession and the public, supporting complainants and investigating and screening sexual abuse complaints. The central agency would provide free legal support and also pay for a support person for the complainant. Compensation for therapy and counselling would be available from the time that a complaint was made and would cover related expenses (e.g., medication, child care, travel).

The discipline hearings themselves would also be significantly altered. Hearings would be held before a single, specially trained tribunal. The complainant would automatically become a full party at the discipline hearing with the right to call their own witnesses and make arguments, much like hearings now before the Human Rights Tribunal. Complainants would be able to testify behind a screen. The complainant could choose to adopt a video statement of their investigative interview rather than have to repeat their testimony. In no circumstances would the practitioner being disciplined personally cross-examine the complainant; it would be done by the practitioner’s representative. Strict court rules of evidence would not apply, so hearsay and most relevant documents could be admitted. Expert witnesses on the dynamics and impact of sexual abuse selected by the central, public agency would replace experts called by the parties.

If a finding is made, the complainant could make a victim impact statement without being cross-examined. The mandatory revocation provisions would be expanded to include more types of frank sexual acts (e.g., touching a patient’s breasts for no clinical reason). For sexual abuse findings that do not require revocation, gender-based restrictions (not being able to see female patients) are not permitted. Gender-based restrictions assume a level of trust that a practitioner would comply with them even though the practitioner has already demonstrated a fundamental lack of trustworthiness.

The SATF is also concerned about unregistered practitioners, including formerly regulated practitioners who have been revoked, sometimes even for sexual abuse. To address this risk of sexual abuse, the report recommends that unregulated practitioners be brought under the auspices of existing Colleges. In addition, practitioners would be responsible for the sexual abuse of the people they oversee. Further, other regulators in Canada should be notified of all sexual abuse findings and a national and international database be maintained of all sexual abuse findings.

The SATF also recommends that the new central, public agency and tribunal would be subject to oversight by an independent Council, similar to the Professional Standards Authority in the UK. The oversight Council would have representatives of government, the health sector, survivors of sexual abuse and advocates in the field. The Council would require detailed data from both the central public agency and the tribunal about how they handled individual cases, conduct surveys of participants in the process and evaluate the effectiveness of the new system.

If the SATF report is fully implemented, all participants in the complaints and discipline system would have to rethink how they do things.

Independent Task Force Report on Sexual Abuse and the RHPA Released

RKM2by Robin McKechney
September 9, 2016

Today the Ontario Ministry of Health and Long Term Care released the much anticipated Independent Task Force report “To Zero: Independent Report of the Minister’s Task Force on the Prevention of Sexual Abuse of Patients and the Regulated Health Professions Act.”  The report recommends broad-based and sweeping reform to the treatment of sexual abuse complaints against regulated health professionals. The key recommendations include the following:

The creation of the Ontario Safety and Patient Protection Authority (OSAPPA) which would have responsibility for the investigation of sexual abuse complaints against all regulated health professionals.

  • The creation of an independent tribunal for the adjudication of OSAPPA cases either through the Ontario Human Rights Tribunal or through a restructuring of the Health Professions Appeal and Review Board (HPARB).
  • The expansion of the sexual acts that would result in mandatory revocation.
  • Removal of the ability to place gender based patient restrictions on a health professional’s practice in response to an allegation or finding of sexual abuse.
  • Funding for patient therapy throughout the complaint process commencing at the investigation stage.
  • A pilot project through Legal Aid Ontario to give complainants access to legal information and options.
  • Full standing for complainants as parties at disciplinary hearings.
  • Enhanced transparency on college registers regarding disciplinary decisions involving sexual abuse, misconduct or impropriety.
  • The funding and development of a public education and legal information program regarding patients’ legal rights and options for recourse when they have been sexually abused by a regulated health professional.
  • Enhanced protection from sexual abuse by unregulated health practitioners by assigning unregulated health practitioners to an existing college.
  • Where an unregulated health practitioner is contracted to or employed by a regulated health professional, the regulated health professional should be held responsible for acts of sexual abuse or harassment by those employees/subcontractors.
  • A research study to track and analyze the rates, responses and dispositions of sexual abuse cases of patients by regulated health professionals retrospectively and going forward.

The Ministry has stated that it intends to move forward on some of the above initiatives over the coming months. Notably, this does not include the creation of OSAPPA or an independent tribunal to adjudicate its cases, both of which require further review. The initiatives identified by the Ministry for which legislative amendments will be brought forward this year include the following:

  • Expanding access to counselling and therapy by allowing the funding for these services to begin when a complaint of sexual abuse is made.
  • Expanding the list of acts of sexual abuse that will result in a mandatory revocation of a regulated health professional’s certificate of registration.
  • Removing the ability of a college to impose ‘gender-based restrictions’ on a regulated health professional’s practice in response to disciplinary findings involving sexual abuse of a patient.
  • Increasing fines for regulated health professionals and facilities that fail to report to a college suspected cases of patient sexual abuse.
  • Enhancing transparency by adding to what colleges must report on their public register and websites.
  • Clarifying the boundaries of the patient-provider relationship.

SML will be providing ongoing analysis on the Recommendations and the Report.

Permission to Appeal Late Refused in Two Cases

ERichler_Webby Erica Richler
September 6, 2016

In two recent cases the courts have refused to extend the time a practitioner could appeal a disciplinary decision. In the first case, the practitioner had agreed to the facts, a finding of professional misconduct and a six month suspension: Khahra v College of Veterinarians of Ontario, 2016 ONSC 4692. There was no notice of an intention to appeal until the start date of the suspension became an issue. The Court described the test to extend the time to appeal as follows:

  1. Whether the moving party formed an intention to appeal in the relevant appeal period
  2. The length of the delay and the explanation for the delay
  3. Any prejudice to the responding party
  4. The merits of the appeal
  5. Whether the “justice of the case” requires an extension

The Court refused to extend the time to appeal on all of the grounds, but appeared to be significantly persuaded by the fact that the communications suggested that an appeal was considered only after the practitioner could not obtain a deferral of the suspension.

The case is also interesting in its discussion of the issue of when a practitioner can challenge their agreement to a joint submission. The Court was not persuaded that the agreement was involuntary even though the practitioner indicated that his lawyer had stated he would not represent the practitioner if the practitioner did not proceed with a joint submission. The Court also relied on the fact that the practitioner provided no medical evidence to establish that the stress he was undergoing at the time made his decision to proceed with the joint submission involuntary.

In the second case the Court found that the pattern of delay by the practitioner, including one year to file materials, undermined any basis to grant an extension of time: Abi-Mansour v. Ontario College of Teachers, 2016 ONCA 602.

Articulating Credibility Findings

RDurcan_Webby Rebecca Durcan
August 29, 2016

Courts have said that in credibility cases adjudicators should say more than just that they believed one witness over another. There should be some explanation of those findings. However, articulating why one witness is more credible than another witness is difficult. In one recent discipline case, the highest court of British Columbia gave an example of what might be acceptable reasons. In The Law Society of British Columbia v. Sas, 2016 BCCA 341 the tribunal in that case used language such as evidence that was “argumentative, imperious, self-serving and evasive” or that was “argumentative, evasive in answering some questions, and non-responsive in answering others”. The tribunal gave examples in its reasons to illustrate these conclusions. The tribunal also did a close analysis of the substantive series of events describing what it viewed as actually having occurred. The Court said that the tribunal had not used “empty descriptions to characterize the evidence of” the witnesses it did not believe. The “reasons were “meaningful, and describe proper bases for assessing evidence”.

The Court also gave the tribunal a pass on not addressing a discrepancy between a witness’ original statement and her testimony at the hearing as to whether she issued one or three cheques on a particular account. The Court said: “While [the practitioner’s] counsel undertook an extended cross-examination on the discrepancies between Ms. Clarke’s original statement and her testimony at trial, the discrepancies were not of any particular moment. They went only to minor details surrounding the August 31, 2011 transactions. At most, the discrepancies might have cast some doubt on Ms. Clarke’s ability to recall minute details of the August 31 transactions. The discrepancies did not go to the nature of the transactions, themselves. In my view, given the limited importance of the discrepancies, it was not incumbent on the hearing panel to mention them in its reasons.”

Thus discipline panels need to articulate in some reasonable fashion why it believed one witness over another and should discuss any significant discrepancies in the evidence of a witness whose evidence it accepts. However, perfection is not required.

Wilful Blindness and Recklessness

BLeBlanc_Webby Bernie LeBlanc
August 22, 2016

In professional misconduct hearings the regulator generally does not have to prove that the practitioner deliberately engaged in the conduct. Proving the act or omission is generally sufficient. There are some exceptions where the wording of the definition of misconduct inserts a mental element. In addition, for some matters, a defence of due diligence may be available (e.g., that the practitioner took all reasonable steps to avoid the result occurring). One situation that recurs often is where an employee of the practitioner engaged in the conduct without the practitioner’s knowledge. In The Law Society of British Columbia v. Sas, 2016 BCCA 341 the practitioner argued that the billing irregularities were made by staff without her knowledge. However, the Court upheld the finding saying that the practitioner was wilfully blind. There were suspicious circumstances such that the practitioner “ought to have recognized that something was amiss”. In the case, there was a blitz to close old files and none of the scores of clients who had prepaid a deposit had any funds returned to them. All the prepaid funds were being transferred to the practitioner’s bank account. The Court said: “In the circumstances, the … [practitioner] had a duty to look at the backup documents, and to make inquiries.”

In describing the difference between wilful blindness and recklessness, the Court cited a Supreme Court of Canada discussion in a criminal case:

Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.

In most cases, even if some intent is desired in order to make a finding of professional misconduct, it does not have to be deliberateness. It can be wilful blindness or recklessness.

Sunshine Handbook

Maciura_Julie_5038by Julie Maciura
August 15, 2016

Most municipalities in Ontario are required to hold open Council and Committee meetings. The public can be excluded only in limited circumstances where there is a compelling countervailing interest that outweighs the benefits of openness (e.g., safety concerns, formulating litigation or contractual negotiation strategies, obtaining legal advice). Transparency helps ensure that good decisions are made, that self-dealing and other conflicts of interest are avoided, and enhances accountability and public trust in the organization. A decade ago, the Supreme Court of Canada upheld a broad interpretation of this duty because of its importance: London (City) v. RSJ Holdings Inc., [2007] 2 SCR 588. Many regulators have similar provisions that apply to their Board or Council meetings. Even if there are no such provisions, many regulators have voluntarily adopted a similar approach in order to foster public confidence.

Recently the Ontario Ombudsman’s office has released its third edition of the Sunshine Law Handbook guiding organizations in applying transparency principles. Their top ten tips are as follows:

  1. Know and follow the Municipal Act, 2001 and your procedure by-law’s open meeting requirements.
  2. Make sure you have a procedure by-law that complies with the Municipal Act.
  3. Give adequate advance public notice of all meetings, closed sessions and agenda items.
  4. Do not add last-minute agenda items to closed sessions, except in truly urgent situations.
  5. Open the meeting unless closure is specifically authorized under the Municipal Act and there is a real need to exclude the public.
  6. Pick the right s. 239 exception before closing a meeting.
  7. Pass a resolution in public that includes meaningful information about the issue to be considered – before closing the doors.
  8. Record the meeting, including all resolutions and decisions, preferably using digital audio or video.
  9. Do not hold a vote in closed session unless it is for a procedural matter or for giving directions to staff.
  10. Report back publicly in open session about what occurred in closed session.

These tips, with appropriate modifications, may assist regulators in achieving maximum openness in their processes.

What’s Going on with those Trinity Western University Cases?

RDurcan_WebAugust 10, 2016
Rebecca Durcan

It may be difficult to follow the numerous cases dealing with Trinity Western University. Just last week we reported that Ontario’s highest court upheld the refusal of the Law Society of Upper Canada to accredit the school: Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518.

However, late last month, in The Nova Scotia Barristers’ Society v Trinity Western University, 2016 NSCA 59, the highest court in Nova Scotia appeared to reach the opposite conclusion. To be fair, the two decisions are different. In Nova Scotia the regulator enacted provisions that allowed it to adjudicate whether the school breached the Nova Scotia Human Rights Act. The Court was concerned with this approach as only courts should make formal declarations of this sort. Also, the wording of the provision appeared to give the regulator powers to give directions to the out-of-province educational program rather than to simply assess the suitability of the applicants for registration. Interestingly, the court in Nova Scotia did not even address the Canadian Charter of Rights and Freedoms that played such a significant role in the Ontario Court of Appeal decision.

Thus, the two decisions may not even be inconsistent. However, it is likely that the broader issue will go to the Supreme Court of Canada which will be interesting, not only for the legal and societal values in issue, but also because in 1998 that Court sided with Trinity Western University when a similar issue arose in respect of its teaching program.

Will the Member Do it Again?

ERichler_Webby Erica Richler
August 8, 2016

One of the most common arguments against revocation in serious cases of misconduct is that the member has learned his or her lesson and will not repeat the conduct. In Doolan v Law Society of Manitoba, 2016 MBCA 57, Manitoba’s highest court gave guidance as to when such an argument can be rejected even for first findings against members with a long and clean record and extensive good character references. Doolan had been found guilty of misappropriating about $10,000 of client money. The Court upheld that a misappropriation finding could be made even in cases where a deliberate attempt to steal the money was not proved. Unauthorized use of clients’ funds was sufficient.

On the issue of revocation, the Court noted that the fact the member tried to conceal the misappropriation was a significant aggravating factor that indicated the member might do it again. In addition, letters of reference could be discounted where the authors were not aware of the finding (or even the initial allegations) at the time they wrote the letters.

Trinity Western University Again

RDurcan_Webby Rebecca Durcan
August 2, 2016

In Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518 the Ontario Court of Appeal upheld the refusal of the Law Society of Upper Canada to accredit the law school program.

Six Canadian law regulators have accredited the program. Three, including Ontario’s, have not. Their refusal is due to the mandatory code of conduct “covenant” which prohibits sexual activity except between a married man and woman and is arguably inconsistent with fundamental Canadian values and human rights.

The Court held that the decision of the Law Society discriminated against the freedom of religion of some students at Trinity Western. However, that discrimination was outbalanced by the discriminatory impact of the covenant on other groups including the LGBTQ community. The Court said: “My conclusion is a simple one: the part of TWU’s Community Covenant in issue in this appeal is deeply discriminatory to the LGBTQ community, and it hurts.” The Court held that the Law Society was acting reasonably in denying a public benefit (i.e., accreditation) to a program from a school that was acting in a profoundly discriminatory fashion. In making that decision the regulator was entitled to consider public interest factors beyond the quality of the education provided by the school.

Incivility Finding Upheld by Court of Appeal

BLeBlanc_Webby Bernie LeBlanc
July 25, 2016

In Groia v. The Law Society of Upper Canada, 2016 ONCA 471 the issue was balancing the duty of lawyers to be civil against the duty of lawyers to be fearless advocates: During a hotly contested hearing related to the Bre-X mining scandal, a lawyer made repeated comments that were characterized as “rude, unnecessarily abrasive, sarcastic, demeaning, abusive or … that attacks the personal integrity of opponents, parties, witnesses or of the court, where there is an absence of a good faith basis for the attack”. The Court of Appeal upheld the finding of professional misconduct in this case. It stated that such a hearing “is a contextual and fact-specific inquiry [such] that a precise definition of incivility is elusive and undesirable”. The Court also held that there is no conflict between the duty to be a zealous advocate and to be civil. The Court also saw no breach of the freedom of expression protections contained in the Canadian Charter of Rights and Freedoms given this fact-specific approach to the allegations.

The Court of Appeal sidestepped the issue of how a discipline panel can use the reasons for decision of a court in making a finding of professional misconduct. The Court of Appeal indicated that it was clear not much weight was put on those reasons so nothing much turned on the hearing panel considering the Bre-X judge’s reasons.

The Court of Appeal also found the penalty (a one month suspension) and the costs award ($200,000) as being reasonable in the circumstances and warranting deference by the courts.

There was a dissenting judgment based primarily on an assessment of whether, in the context of this case, including the trial judge’s rulings, the conduct of Mr. Groia was really unprofessional.

Disclosure of Regulator’s Files

Maciura_Julie_5038by Julie Maciura
July 18, 2016

One of the duties of a regulator in disciplinary matters is to disclose all relevant information it possesses unless the information is privileged. This duty was discussed in detail in Law Society of Upper Canada v Savone, 2016 CanLII 33941 (ON SCDC). It was alleged that Savone had participated in mortgage fraud by flipping properties at inflated prices in “no money down” transactions. Savone sought access to the client files of the lawyers for the other parties in those transactions but the Law Society refused to make that disclosure. In upholding the duty to disclose those files, the Divisional Court held that the confidentiality provisions of the Law Society Act did not create a special privilege; instead the usual test of relevance and privilege remained in place. The fact that the files were obtained by the regulator in other investigations (not the investigation of Savone) was irrelevant; the Law Society possessed them. Once the issue of disclosure of the files was raised by Savone, the prosecution had a duty to review the files and disclose all relevant information unless it was asserting a privilege. Both decisions (i.e., relevance and privilege) were reviewable by the hearing panel. The Court held that a broad view should be taken on the issue of relevance to any issue in the proceeding. Disclosure was not limited to information that would exculpate the member. That the files were held by another department of the regulator did not make them “third-party” files requiring a special procedure to determine whether they should be produced (i.e., an O’Connor motion).

Case Deals with Hot Topics in Discipline – Part 2

ERichler_Webby Erica Richler
July 14, 2016

The case of Reid v College of Chiropractors of Ontario, 2016 ONSC 1041 (CanLII), http://canlii.ca/t/gs27k involved a chiropractor who made inappropriate and harassing comments to the complainant (another chiropractor) and failed to adequately cooperate with the College’s investigation of the complaints. The case is notable because it touches on a number of “hot topics” in discipline. While some questions are clarified by this decision, others remain unsettled:

Confusion regarding standard of proof: The Divisional Court stated that the College was required to prove the allegations of professional misconduct “on the basis of evidence that is clear, convincing and cogent and that supports a finding that there has been a significant departure from acceptable professional standards” (relying on Re Bernstein and College of Physicians and Surgeons of Ontario and Barrington v. The Institute of Chartered Accountants of Ontario). The Court made no mention of the balance of probabilities standard as set out in F.H. v. McDougall. Nor did the Court refer to the recent Jacobs v. Ottawa (Police Service) decision, where the Court of Appeal held that “clear and convincing evidence” (as required under the Police Services Act) is a higher standard of proof than the balance of probabilities. Despite the relative certainty over the last several years that discipline committees were required to make findings on the balance of probabilities in all cases, this case raises the question of whether the old notion of a sliding scale (the more serious the conduct, the higher the standard of proof) is creeping back into judicial thinking.

Controversy over costs: The discipline panel had ordered costs against the member in the amount of $166,194.50, representing 51% of the total costs (the hearing was five and a half days and involved some agreed facts). The majority of the Divisional Court upheld this decision as reasonable. However, in a strong dissent, one judge found that the costs award was “unfair and abusive” and would have ordered costs of $60,000 instead. Although it was a dissent, regulators should expect members to raise many of the points made by the dissenting judge in future cases, including the need for a discipline panel to consider the reasonable expectations of the member (he paid his lawyer $32,000 compared to the College’s legal fees of over $260,000) and that costs awards must not be punitive.

Case Deals with Hot Topics in Discipline – Part 1

ERichler_Webby Erica Richler
July 12, 2016

The case of Reid v College of Chiropractors of Ontario, 2016 ONSC 1041 (CanLII), http://canlii.ca/t/gs27k involved a chiropractor who made inappropriate and harassing comments to the complainant (another chiropractor) and failed to adequately cooperate with the College’s investigation of the complaints. The case is notable because it touches on a number of “hot topics” in discipline. While some questions are clarified by this decision, others remain unsettled:

No bias on the part of discipline panel member who sat on previous panel involving the same member: Many regulators (particularly in smaller professions) face challenges when appointing discipline panels: quorum and composition have to be met and a reasonable apprehension of bias must be avoided. In this case, the member argued that a panel member’s participation in an earlier hearing involving the same member gave rise to a reasonable apprehension of bias. The Court disagreed and confirmed that “past participation by a Panel member in a matter does not amount to a valid concern about bias when the earlier hearing involved an Agreed Statement of Facts and no findings of credibility.”

College has authority to compel member’s cooperation in investigations: The Court noted that the Health Professions Procedural Code does not require a member to respond to a complaint; the language is permissive. However, the College in this case also had a written standard of practice setting out an expectation that members must cooperate with the College and its committees when reasonable requests for information are made. The letters written to the member in this case had also specifically requested a response to the complaints. In these circumstances, the Court held that the College had the authority to require a response from the member and the member’s failure to cooperate amounted to professional misconduct.

Number of Exam Re-Writes

RDurcan_Webby Rebecca Durcan
July 4, 2016

Regulators who require applicants to pass an examination before registration grapple with how often the applicant should be able to attempt the exam. There is a concern about fairness to the applicant (the rationale being that few people who fail an exam three or four times ever pass it). Repeated retakes are expensive for both applicants and regulators alike and arguably “block” the number of seats available for new applicants. Other concerns include applicants “learning the exam” rather than the underlying competencies that are being tested and the deterioration of applicants’ competencies over the months and years as they focus on the exam.

For the College of Nurses of Ontario (CNO) the most frequent ground of appeal in registration matters to the Appeal Board are from applicants who have been unsuccessful in the examination more than three times. The CNO is currently consulting on a proposed registration regulation change that would give its Council the ability to expand the number of examination attempts and could even make them unlimited. The CNO has advised the National Council Licensure Examination – Registered Nurse that its review of all of the information, including psychometric evidence, suggests that it is appropriate to permit unlimited attempts. This step by a major regulatory body may spark a reconsideration of the issue by other regulators. See: http://www.cno.org/en/trending-topics/registration-regulation-tell-us-what-you-think/ for more details.

Voluntary Associations Governed by Procedural Fairness Too

BLeBlanc_Webby Bernie LeBlanc
June 27, 2016

It is a popular misconception that an organization has to be exercising a statutory power to be subject to judicial review. The courts have held that voluntary associations serving a significant public purpose are also subject to the administrative law rules of procedural fairness. This principle was demonstrated recently in Gymnopoulos v. Ontario Assn. of Basketball Officials, 2016 ONSC 1525 where coaches of a school basketball team became irate at the officials after losing a lead in the last 90 seconds of a playoff game as a result of six fouls called against them. The resulting disciplinary suspension of the coaches from basketball was set aside by the court because of a cumulative series of procedural errors including lack of formal notice of the allegations, incomplete disclosure of evidence, limited participation in the hearing process and an absence of reasons to explain the disparate sanctions imposed. The Court heard the case even though the suspensions were largely over. Voluntary associations need to follow a fair procedure when dealing with disciplinary issues.

Participant Expert Witnesses

Maciura_Julie_5038by Julie Maciura
June 24, 2016

Generally expert witnesses must be neutral and they must provide a written report of their opinion well in advance of any hearing. Last year the Ontario Court of Appeal stated that these rules did not necessarily apply to “participant experts”: Westerhof v. Gee Estate, 2015 ONCA 206. For example, a health care practitioner involved in the treatment of a patient could express opinions within the practitioner’s expertise about the matter (e.g., the nature, cause and likely prognosis about the patient’s condition). Further guidance on this principle was provided in the civil case of XPG, A Partnership v Royal Bank of Canada, 2016 ONSC 3508. The issues in the case involved grain futures contracts. A participant in the events, who was employed by one of the parties, was an expert on the issues. The Court permitted the witness to express opinions about the events in issue but not to provide broader expert opinions on the larger issues in the case. The Court held that permitting wide ranging opinions on broader issues was unfair because no expert report had been provided in advance of the hearing. The Court also indicated that the lack of independence of the expert evidence could be considered when determining how much weight to put on the opinion. It is unclear to what extent the “participant expert” exceptions to disclosure apply in regulatory hearings. In order to avoid “surprise” participant expert opinions at hearings, regulators may wish to make rules of procedure to require disclosure of participant expert opinions.

Absolute Liability Findings

ERichler_Webby Erica Richler
June 20, 2016

While most professional misconduct does not require the proof of intent to do something wrong, generally evidence of taking all proper precautions will result in no finding being made. However, there are some types of professional misconduct that prohibit certain conduct, regardless of any precautions taken. In horse racing, for example, there is an absolute rule that the horse not test positive for certain substances on race day. In Director, Ontario Racing Commission v Ontario Racing Commission, 2016 ONSC 3312, a horse tested positive for a pain killer administered well before the recommended cut-off time for that drug. The Divisional Court held that the wording of the provision made it clear that ensuring no amount of the substance was in the horse’s blood stream was an absolute liability “offence” and as such the trainer could not rely on a defence that he had taken all reasonable precautions.

Therefore, the wording of the definition of misconduct is important.

However, on the issue of penalty, the sanction imposed was quite modest (i.e., only removal of first place standing on the race and the resulting purse) because of the circumstances. This result of imposing a lower than expected sanction in an absolute liability matter where there was evidence of some due diligence was expressly upheld in a Divisional Court decision released a few days earlier: Ontario (Racing Commission) v Durham, 2016 ONSC 2490.

Basis for Exemptions of Registration Requirements

RDurcan_Webby Rebecca Durcan
June 16, 2016

A recurring theme in registration cases is the consideration of special circumstances for exempting registration requirements. An Alberta court upheld the reasonableness of the refusal to grant an exemption in Muti v Law Society of Alberta, 2016 ABQB 276. The applicant was an immigration consultant practising in Calgary who had taken on-line courses to obtain a law degree from a school based in England. To establish equivalence of education, the tribunal directed him to complete eight upper year in-person courses in an accredited law school. The applicant objected on the basis that his distance learning should be given more weight because of his related Canadian experience as an immigration consultant. He also stated that due to his age and family and financial responsibilities he needed to keep working. The Court found that it was reasonable for the tribunal to not consider the applicant’s immigration consulting work as the practice of law (in terms of experience) and that one’s personal situation is not a special circumstance that can be substituted for educational qualifications.

Another View of the Role of Screening Committees

BLeBlanc_Webby Bernie LeBlanc
June 13, 2016

In Ontario the law is pretty well settled that complaints screening committees do not make findings of wrongdoing and do not impose sanctions when directing educational and remedial measures. As such, screening committees have a low threshold for directing remedial measures, such as caution. There simply needs to be a reasonable basis for taking the remedial step. However, that does not seem to be the case everywhere. In Peddle v. The Newfoundland and Labrador Pharmacy Board, 2016 CanLII 29648 (NL SCTD), the court said:

In my view, it is impossible for the Committee to issue a “caution” without a finding of conduct deserving of sanction, even if the conduct is not sufficiently egregious to warrant sending the complaint to a discipline hearing. The fact that the consequences are less than a finding of guilt by a discipline panel does not change the fact that the Committee’s decision would be a negative incident on Peddle’s file. This finding did have consequences adverse to the Applicant, which would make the decision subject to scrutiny by this Court.

The caution relating to a verbal disagreement was removed because there was “no evidence” that it was the pharmacist’s fault.

In Peddle, the Court also held that there was no appearance of bias caused by staff attending at complaints screening committee meetings or by attempting to resolve the complaint.

Giving More than is Asked

Maciura_Julie_5038by Julie Maciura
June 9, 2016

Just as Discipline Committees should accept a joint submission unless it would bring the administration of justice into disrepute, so they should not impose a sanction well beyond what the prosecutor has sought unless first seeking further input. In Becker v. College of Pharmacists of Manitoba, 2016 MBQB 105, a pharmacist was found to have engaged in unskilled practice. While there was agreement on many aspects of the sanction, there was disagreement as to how long the pharmacist should practice under supervision and for how long he should not be permitted to be a pharmacy manager. The Discipline Committee imposed a period for both restrictions that fell between what the prosecutor sought and what the defence requested. On an internal appeal to the Council of the College, the Council, without warning, imposed significantly longer periods for both restrictions, well beyond what the prosecutor had originally requested. The Court held that before there could be a significant departure from what was requested, the tribunal should have given notice of its concerns and allowed the parties to make submissions. There have been a number of previous cases saying similar things over the years and tribunals should be reminded regularly of this expectation.

Guidance on Definition of Bad Faith

RDurcan_Webby Rebecca Durcan
June 6, 2016

Ever since the Supreme Court of Canada in Finney v. Barreau du Québec, [2004] 2 S.C.R. 17 suggested that some forms of negligence could constitute bad faith, regulators have struggled with the concept. The scope of “bad faith” is important as that is the hurdle that must be established before one can successfully sue a regulator for damages. In Salehi v. Association of Professional Engineers of Ontario, 2016 ONCA 438, Ontario’s highest court clarified how the Finney case fits in with the rest of jurisprudence. The context was an action for damages by a professional engineer who went through a fifteen-year registration process to demonstrate his competency to practise. In dismissing the claim, the Court described the criteria for suing a regulator as follows:

We agree with the motion judge that none of the acts the appellant complains of can be said to constitute bad faith. There was no evidence of malice or intent to harm on the part of the APEO, nor was there a fundamental breakdown in the orderly exercise of its authority or any abuse of power.

Cross-Border Internet Practice Permitted

ERichler_Webby Erica Richler
June 2, 2016

The Quebec Court of Appeal has limited the authority of a regulator to prevent the treatment of patients within the province by out-of-province practitioners. A Quebec patient obtained a prescription for corrective lenses from a Quebec practitioner and then ordered glasses and contact lenses from Coastal Contacts, a British Columbia internet-based company. The Quebec regulator then brought legal action against Coastal Contacts for illegally practising in Quebec. The Court held that there was no breach of the law as the “sale” occurred in British Columbia, not Quebec. Unlike some recent cases in other provinces, this Court took a narrow interpretation of the Quebec legislation, taking the approach that it preserved a monopoly and should therefore be given a restrictive and technical meaning. For example, because the legislation prohibited the sale of lenses, not their delivery, it did not capture the conduct of Coastal Contacts in Quebec. In addition, the Court held that the regulator has no jurisdiction over the public that purchases glasses/lenses. In other words, the act of placing the order, paying and receiving confirmation were all acts done, not by Coastal, but by a member of the public over whom the regulator had no jurisdiction. There will likely be a request for leave to appeal this decision to the Supreme Court of Canada. The case may be found at: Ordre des optometrists du Québec c. Coastal Contacts Inc., 2016 QCCA 837 (CanLII), http://canlii.ca/t/grqsf.

Mobility and Good Character

BLeBlanc_Webby Bernie LeBlanc
May 25, 2016

Dr. Lum is a dentist in British Columbia with a long history of complaints, some of which resulted in remediation. However, he was in good standing as none of the complaints had been referred to discipline and he had no discipline findings. He applied for registration in Alberta. The Alberta regulatory College refused to register him because Dr. Lum had not demonstrated that he was of good character given his complaints and remediation history. In Lum v Alberta Dental Association and College (Review Panel), 2016 ABCA 154, Alberta’s highest court upheld the decision. The Court held that regulators deserve significant deference in exercising its public interest discretion in this area. The Court said:

The requirement of good character and reputation is fundamental to that profession’s ability to self-regulate. It must be able to accept or reject members and discipline its own members. Of necessity, that determination is to some extent subjective. The considerations include but are not limited to whether the person has fulfilled all educational requirements, whether the person is of integrity and respects the professional guidelines, rules and ethics that are an essential part of the profession. This includes competence, responsibility to patients and to the public at large, respect for other members of the profession, comporting oneself as befitting a professional and conducting oneself at all times within those parameters.

The Court also found that mobility trade agreements were not directly enforceable against regulatory bodies and it was up to the government to change any laws necessary to implement such agreements.

Collateral Consequences of Guilty Pleas

Maciura_Julie_5038by Julie Maciura
May 20, 2016

Guilty Pleas must be voluntary, unequivocal and informed. The Ontario Court of Appeal allowed a person to withdraw his guilty plea for dangerous driving because he did not realize (because his lawyer did not tell him) that the conviction would result in an indefinite suspension of his driver’s licence. In R. v. Quick, 2016 ONCA 95 the Court found that the “collateral consequence” of the guilty plea was legally relevant and made the plea of guilty uninformed. The Court did not precisely identify what sorts of collateral consequences would usually nullify a guilty plea, but rather said it depended on the facts. The Court applied the following test: “is there a realistic likelihood that an accused, informed of the collateral consequence of a plea, would not have pleaded guilty and gone to trial? In short, would information have mattered to the accused?

There are two significant consequences for regulators. The first is when a regulator prosecutes an individual in criminal or provincial offences court. The regulator should ensure that the accused is aware of the regulatory consequences (e.g., possible loss of registration) of pleading guilty. The second possible consequence for regulators is to consider whether this principle might apply to pleas in regulatory proceedings like discipline hearings. Generally criminal concepts are not imported directly to discipline hearings, but sometimes the underlying principles are loosely applied.

Drawing the Line Between Privacy and Transparency

ERichler_Webby Erica Richler
May 16, 2016

Public bodies struggle to draw the line between respecting the privacy of individuals and being transparent, and the line keeps moving. Take the example of where a concern of harassment has been raised against a public office holder (e.g., a Registrar or a member of a Council/Board of Directors of a Regulator). Such investigations and resolutions are almost always done with a promise of confidentiality to the person raising the concern, at least to the greatest extent possible. However, should the matter become public in some way, the organization can easily be accused of “censoring” the information or protecting itself unless it discloses the information. Political columnist Martin Regg Cohn argues that in the recent controversy involving Premier Kathleen Wynne, silence was the right response. Any regulators faced with a similar situation should think seriously about how to strike the right balance between public accountability and protecting the privacy of the individuals involved. https://www.thestar.com/news/queenspark/2016/05/12/how-to-deal-with-mpps-accused-of-sexual-assault-cohn.html

Ontario Launches Red Tape Challenge

RDurcan_Webby Rebecca Durcan
May 12, 2016

The Ontario government is attempting a new form of consultation. It is online. It permits anonymous submissions. And it looks at one sector of activity at a time (rather than at a specific program or regulator). The stated goal of the initiative is to develop: “modern, outcome-focused and evidence-based regulations…By reducing the burden to business while protecting consumers, workers and the environment, Ontario is helping to create the right climate to create jobs and grow the economy.” Six sectors have been selected for sequential review over the next two years. Two of those sectors, financial services and forestry, involve professional regulators. While one tends to be cynical of any government activity that uses the words “red tape” and while one wonders what will happen to any proposals for reform as they make their way through the affected Ministries and stakeholders, this may still be worth watching. For more information, see: https://www.ontario.ca/page/red-tape-challenge?_ga=1.34876449.1445893852.1456780114

How Strong Must the Evidence be Before Making an Interim Order?

BLeBlanc_Webby Bernie LeBlanc
May 10, 2016

“Not very”, says the British Columbia Court of Appeal. When a screening committee decides whether there should be restrictions on the practitioner until the discipline hearing can be held, the primary issue is whether in all of the circumstances the public needs immediate protection. In Scott v. College of Massage Therapists of British Columbia, 2016 BCCA 180, the screening committee imposed an interim order requiring the massage therapist to post signs about and use a chaperone for treatments. The complaint was about sexual abuse. There were no witnesses or other evidence. The massage therapist argued that the allegations were unsubstantiated.

The court said that the role of the screening committee, in reviewing the strength of the case, is to make “a provisional assessment of the facts” to consider “the reliability of the evidence, its internal and external consistency, the plausibility of the complaint, and motivation. This is in aid of determining whether the complaint is manifestly unfounded or manifestly exaggerated (Perry). The inquiry committee’s mandate is not…to test the sufficiency of the evidence to establish his sexual misconduct”.

Regulatory Rule-Making Still Under Increased Scrutiny

Maciura_Julie_5038by Julie Maciura
May 3, 2016

A lower Alberta court disagrees with the British Columbia Court of Appeal and says regulators need empirical evidence that their rules protect the public interest. “Anecdotal” evidence (i.e., the views of Council members) is not enough. This Court held that rules making it a conflict of interest for pharmacists to offer inducements (e.g., reward points) to patients to buy drugs are invalid. In Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 232, the Court characterized the rules as relating to the cost of drugs and competition between pharmacists, finding the rules unrelated to the professionalism or ethics of the individual pharmacists. Interestingly, the Court also ascertained the mandate of the College’s powers to make rules by referring to Hansard debates of the legislature when the statute was being enacted, rather than focusing primarily on the legislative scheme itself.

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