Blog

REGULATION PRO

To subscribe to Regulation Pro, email us at info@sml-law.com.

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.

Publication of Remediation Direction does not make it a Penalty

by Bernie LeBlanc
April 12, 2021

The Ontario Divisional Court has again affirmed that the posting of remediation orders by the complaints screening committee does not make it a penalty: Longman v. Ontario College of Pharmacists, 2021 ONSC 1610 (CanLII), https://canlii.ca/t/jdqps. This reaffirms a similar conclusion in Geris v. Ontario College of Pharmacists, 2020 ONSC 7437 (CanLII), https://canlii.ca/t/jc4gk. In the Longman case a pharmacist had participated in a series of errors resulting in the dispensing of a drug to a child who was not authorized by prescription to receive it. The Court held that the reasons given recognized the defence of contributing factors to the errors including an unusual prescription, a computer system not designed to handle complex prescriptions, that others at the pharmacy had also made mistakes contributing to the incorrect dispensing and that the pharmacist was not the designated manager responsible for policies and procedures. A remedial order was still indicated. The Court said:

The Applicant submits that the above decisions pre-date the 2017 change in the Code which requires that both cautions and required remediation programs be placed on the public record (ss. 23(2) 7 and 23(5)). He submits that change is sufficient to turn the remedial measures into a penalty or sanction. I disagree. The requirement of publication was implemented to provide transparency to the self regulation process. It was not intended to change the remedial purpose of a caution or required education. Nor has it. Given the ICRC’s role, both cautions and educational requirements remain remedial and do not amount to a penalty or sanction.

Nor in the circumstances are the remedial measures imposed by the ICRC unduly harsh. While the Applicant acknowledged his error in respect of the September 16, 2018 refill and expressed remorse concerning it, he failed to recognise his other errors as identified by the ICRC. The remedial measures imposed by the ICRC will benefit both the Applicant’s practice and the public. They were neither an error in principle nor clearly unfit.

Public access to the decision does not mean that the remedial nature of the order is altered.

Reasonable and Probable Grounds

by Julie Maciura
April 8, 2021

Most regulators must have reasonable and probable grounds in order to appoint an investigator to conduct a formal investigation. However, articulating the reasonable and probable grounds test is difficult. The Supreme Court of Canada has stated that reasonable and probable grounds as “at the point where credibly-based probability replaces suspicion”: Hunter et al. v. Southam Inc., [1984] 2 SCR 145, https://canlii.ca/t/1mgc1. Recently the Ontario Court of Appeal has provided additional guidance in: Qin v. Ontario Securities Commission, 2021 ONCA 165 (CanLII), https://canlii.ca/t/jds7p.

Mr. Qin had been subject to an interim order freezing his assets as the regulator investigated concerns that he and his companies were selling securities without registering under the legislation. Mr. Qin challenged the freeze order in court. In maintaining the freeze order the court found that there was a serious issue to be heard about Mr. Qin’s compliance with the legislation. When the matter was finally heard, the tribunal concluded that Mr. Qin and his companies were not selling securities. Mr. Qin then sued the regulator for malicious prosecution. The regulator brought a motion to dismiss the action on the basis that the earlier court had found there were reasonable and probable grounds for the investigation. If there were reasonable and probable grounds the action could not succeed.

Thus the Court of Appeal had to assess whether the earlier court finding that there was a serious issue to be heard was equivalent to the reasonable and probable grounds test. The Court stated that the serious issue to be heard test was a low hurdle and essentially screens out frivolous and vexatious case. The Court concluded that the reasonable and probable grounds test was qualitatively higher:

The reasonable and probable cause standard invites scrutiny of the record to determine the likelihood or probability, at the time the proceedings were commenced, that the OSC could ultimately establish the allegations….

[Reasonable and probable cause] … requires a determination of whether, objectively viewed, the facts known to the prosecution when it was undertaken, provided reasonable and probable cause to initiate the proceeding. This exercise engages an examination of all of the facts known to the prosecution when it initiated proceedings. Those facts include facts known to the prosecution which could exculpate the would-be targets of the prosecution. Further, as set out above, the totality of the facts known to the prosecution must be measured, not against the “serious issue to be tried” standard, but against the more demanding reasonable and probable cause standard.

This discussion provides a bit more information for regulators on what constitutes reasonable and probable grounds.

Joint Submission Was not “Unhinged”

by Natasha Danson
April 6, 2021

The Divisional Court of Ontario has again emphasized the stringent nature of the public interest test that applies to discipline panels that consider rejecting a joint submission in the case of Bradley v. Ontario College of Teachers, 2021 ONSC 2303 (CanLII), https://canlii.ca/t/jdz7v. In the Bradley case a teacher had agreed to a two-month suspension over the summer months for harassing comments and behaviour towards a colleague. The discipline panel moved the suspension period to the school year because it felt a summer suspension did not adequately recognize the seriousness of the conduct and provided insufficient deterrence. The Court restored the summer suspension that had been set out in the joint submission, saying:

In this case, the Discipline Committee referred to the Anthony-Cook [2016 SCC 43 (CanLII), [2016] 2 SCR 204, https://canlii.ca/t/gv7bk] decision as the guiding authority on the issue of whether it could reject the joint submission on penalty, but it misunderstood the stringent nature of the public interest test and thereby misapplied it. In particular, the Discipline Committee did not find that or articulate any basis for finding that serving the two month penalty in the summer was so “unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down”. … Any disciplinary body that rejects a joint submission on penalty must apply the public interest test and must show why the proposed penalty is so “unhinged” from the circumstances of the case that it must be rejected. In this case, the Discipline Committee clearly misunderstood the stringent public interest test, and impermissibly replaced the proposed penalty with its own view of a more fit penalty.

The Court believed the discipline panel had “tinkered” with the joint submission, should not have sought more information in support of the joint submission, and should have shown more regard for the importance of joint submissions.

Procedural Rulings

by Erica Richler
March 29, 2021

Most procedural rulings do not have a significant impact for regulators. However, Torgerson v. Health Professions Appeal and Review Board, 2021 ONSC 1185 (CanLII), https://canlii.ca/t/jd9hv may be an exception.

In that case a physician was seeking judicial review of a decision cautioning her and requiring her to complete some remedial training. The initial decision was made by the regulator’s complaints screening committee and was upheld by an independent appeal and review board.

A summary of the decision was published on the public register of the regulator, as required by the legislation. The physician challenged the decision as amounting to a sanction because of its publication. The physician sought to add the published summary in the record before the Court even though it had not been part of the record of decision by either the screening committee or the board. The Court conceded that there was a strong presumption that judicial review should be based solely on the record of the body being reviewed. However, it stated that an exception applied where important contextual information could assist the reviewing Court. The Court allowed the published summary to be added to the record, subject to reconsideration by the Court panel actually hearing the application. This ruling emphasizes the significance of published summaries of decisions.

A second issue was whether the portion of the record setting out the past complaints history against the practitioner should be sealed. During the proceedings before the board that portion of the record had not been shared with the complainant because of its sensitivity. The Court agreed to seal that portion of the record, similarly subject to reconsideration by the panel hearing the judicial review application itself. Again, this procedural ruling recognizes the sensitivity of this type of information.

Of course, it will likely be the decision of the panel hearing the application for judicial review on the merits that will be of most interest to regulators.

One Year Incarceration

Durcan_Rebecca_5583

by Rebecca Durcan
March 22, 2021

Professional regulation rarely results in jail. However, in Law Society of Alberta v Beaver, 2021 ABQB 134 (CanLII), https://canlii.ca/t/jd93p a former practitioner ended up being sentenced to jail for one year for contempt of court. Mr. Beaver’s registration was suspended and then revoked for misusing trust funds. When he continued practising a court issued an injunction requiring him to stop.

Mr. Beaver continued to practise for many months. However, he concealed this by using a new lawyer to “front” his actions. When the regulator began investigating his continued practise, he concealed his actions by destroying documents and creating false documents. He also encouraged his “fronting” lawyer to provide false information.

The Court identified a number of aggravating factors including the following:

Mr. Beaver’s contempt and illegal practice of law was deliberate. Mr. Beaver was the ringleader and directing mind. He recruited Ms. Jura into his scheme. The Jura/Beaver collaboration where Mr. Beaver “was leading everything” exploited Ms. Jura to conceal Mr. Beaver’s illegal activities. Mr. Beaver’s concealed unlicenced practice was a business venture, he did it for money. Mr. Beaver planned and executed a clandestine illegal enterprise.

The Jura/Beaver arrangement was not “a one off”, but went on for six months and involved at least seven matters. However, the true and full scale of Mr. Beaver’s misconduct cannot be determined because Mr. Beaver directed that Ms. Jura destroy the incriminating evidence that could be used against him. That direction is a highly aggravating factor, since it means that the LSA and the Court cannot evaluate the full extent of Mr. Beaver’s illegal conduct….

A further aggravating factor is that Mr. Beaver’s illegal actions effectively terminated another lawyer’s career.

The Court also disagreed with most of the mitigating factors suggested by Mr. Beaver. It disagreed that there was an honest mistake about his legal obligations. The Court could not agree that Mr. Beaver was generally of good character. It also found that the damage to Mr. Beaver’s employment prospects and reputation were the direct product of his own behaviour.

Incarceration for one-year was ordered. Mr. Beaver was given only three days to organize his affairs. Contemporaneously, a six month period of incarceration was ordered following a similar analysis in another case: College of Physicians and Surgeons v Ezzati, 2021 BCSC 205 (CanLII), https://canlii.ca/t/jd2sd.

Duty to “Cooperate Fully”

by Bernie LeBlanc
March 15, 2021

Many regulators require practitioners to participate in professional development and quality improvement activities. This requirement often comes with a duty to cooperate with the program. In Mirolo v. College of Physicians and Surgeons of Newfoundland and Labrador, 2021 NLSC 12 (CanLII), https://canlii.ca/t/jcwck the practitioner was disciplined for failing to “cooperate fully” with the regulator’s peer assessment program. The regulator attempted to set up two meetings with a panel of peers. In the first instance, the practitioner raised a number of objections to the proposed meeting including assertions that the panel did not constitute true peers. As a result the regulator, realizing the objections could not be addressed in time, cancelled the meeting rather than inconvenience the panel of peers. For the second meeting the practitioner objected to its timing given his schedule included a planned meeting with a client. After the practitioner refused certain accommodations, that meeting was also cancelled.

The Court upheld the finding of professional misconduct for failing to cooperate fully. The practitioner threw up barriers to the meeting rather than make good faith efforts to cooperate with the peer panel. The regulator’s cancellation of the meetings in the face of the practitioner’s response in order to spare the peer panel from wasted time did not justify the practitioner’s non-cooperation.

However, the Court returned the case to the tribunal to reconsider the sanction. The absence of reasons to explain why a fine and costs order ought to be made and their amounts ($5,000 and 10,000 respectively) prevented the Court from assessing their appropriateness.

Scrutiny of Discipline Decisions

by Julie Maciura
March 10, 2021

Another decision from western Canada carefully scrutinizes a disciplinary decision. In Phillips v Law Society of Saskatchewan, 2021 SKCA 16 (CanLII), https://canlii.ca/t/jcvzm the issue was whether a lawyer’s fees were unfair to the point of constituting professional misconduct (i.e., conduct unbecoming). The Court set aside the findings of misconduct.

In a detailed and technical discussion, the Court determined that the standard of review applied the test of correctness to the legal interpretation of the definition of misconduct (as opposed to application to the facts). It also held that in discretionary decisions, a court would review the criteria for exercising discretion on the basis of correctness but would give deference in the review of the exercise of discretion itself.

The first issue was whether an element of intent was required. The Court said that this depended on both the wording of the definition of misconduct and the actual wording of the allegations themselves. Where the allegation refers to whether the lawyer was candid about his fees, an element of intent was imported. On another allegation as to whether the fees were fair and reasonable, no element of intent was included; the strict liability criteria applied.

The second issue related to how the disciplinary tribunal used a civil court finding that the fees charged were excessive given the degree of success achieved by the lawyer. The disciplinary tribunal found that the civil court finding constituted proof of the allegations. The Court held that the civil court finding only constituted prima facie evidence of the facts found there. The discipline tribunal failed to consider all of the circumstances in deciding how much weight to give to that finding. For example, the issue in the civil case (whether the client should be charged for the work) was different than for the discipline hearing (was the work so unnecessary or poorly performed as to constitute professional misconduct). In addition, by accepting the civil court finding as proof of the allegations, the disciplinary tribunal had, in effect, shifted the overall burden of proof to the practitioner.

The third issue was centred on the discipline tribunal’s refusal to permit the practitioner to call an expert witness because the report of the expert’s proposed testimony was not provided on time. The Court held that the discipline tribunal failed to address whether the exception for cases of “manifest unfairness” should have been applied. The Court identified a number of considerations were not addressed including the seriousness of the proceedings, the importance of the evidence, and the procedural alternatives to ensure fairness to the other side. The Court concluded that this decision demonstrated a failure to identify the criteria for the decision rather than simply an exercise of discretion.

So far the Ontario courts do not seem to be applying the same degree of scrutiny as the western Canadian courts to findings of professional misconduct. Interestingly, the Supreme Court of Canada recently granted leave to appeal in another western Canada case applying a high level of scrutiny to disciplinary decisions: Law Society of Saskatchewan v. Abrametz, 2021 CanLII 13273 (SCC), https://canlii.ca/t/jddw3. The Supreme Court’s decision in that case could be significant to professional regulators.

Constricting Confidentiality Clause

by Natasha Danson
March 8, 2021

Can a witness summoned by a regulator decline to answer questions because they owe a duty of confidentiality to their employer? In the Matter of B, 2020 ONSC 7563 (CanLII), https://canlii.ca/t/jc38n the Court said no. Unless a specific question raises a compelling confidentiality obligation that outweighs a regulator’s right to obtain information to protect the public, the witness must answer the question.

In the Matter of B, an employee of a company under investigation by the securities regulator was summoned by the investigator. The employee refused to answer any questions about the matter on the basis that their employment contract prevented the disclosure of any matters related to the employer. The Court held that such a provision must be interpreted as being subject to a legal requirement to provide information to the regulator. The Court said:

Likewise, while an employer can expect that an employee will adhere to its contractual obligations to maintain confidentiality, it cannot possibly expect that the employee will maintain that confidentiality in the face of a summons issued by the OSC pursuant to its statutory powers under s. 13 of the Act.  To hold otherwise would encourage an employer to deliberately exclude the language “except for disclosure required by law” from the confidentiality provisions in an employment agreement, in order to insulate the employer from investigation by securities regulators.  I cannot accept that position.

The Court did allow for case-by-case exceptions where a privilege claim might attach to the information. However, the Court suggested that such exceptions would be rare.

Request to Reconsider

by Erica Richler
March 1, 2021

Can a practitioner who has been disciplined and who has exhausted their appeal rights request the discipline tribunal to reconsider its decision? Or do the principles of finality apply?

In Kennedy v. College of Veterinarians of Ontario, 2021 ONSC 578 (CanLII), https://canlii.ca/t/jct11 no definitive answer was provided. However, the Court indicated that it would be rare for a reconsideration request to succeed. While the Statutory Powers Procedure Act allows tribunals to make rules permitting reconsideration, few disciplinary tribunals have made broad rules. The rules that do exist are generally limited to correcting minor errors and require that such requests must be made quickly.

In this case, a veterinarian’s licence was revoked. After exhausting all appeals the practitioner brought numerous motions to reopen the hearing to receive fresh evidence and to set aside the original decision on the basis that it had been fraudulently rendered. No substantive fresh evidence or specific evidence of fraud was provided. The Chair of the discipline tribunal declined to schedule the motions on the basis that there was no jurisdiction to hear them.

The Court, without deciding whether there was a residual possibility of reopening hearings in the absence of a rule for doing so, held as follows:

… the Chair reasonably refused to schedule the motions given the lack of any evidence to establish fraud affecting the original Discipline Committee decision. There is simply no evidence to support the assertions that there is relevant fresh evidence, or that the evidence meets the test for admitting fresh evidence, or that the College engaged in “fraudulent” behaviour before or during the discipline proceedings. There is nothing in the evidence that would cast doubt on the panel’s findings that Dr. Kennedy practised while his licence was suspended or that he failed to pay costs. At its highest, Dr. Kennedy makes bald allegations of fraud in the 2017 professional misconduct proceeding, unsupported by any evidence. The issues raised were largely disclosure and third-party production issues already dealt with the by Divisional Court in the 2018 decision, or issues which Dr. Kennedy had a chance to raise in the Discipline Committee proceeding itself. In the circumstances, on the evidence before the Chair, the dismissal of the motions to adduce fresh evidence and reopen the hearing was inevitable.

The Court also found that there was no basis for finding that the Chair of the discipline tribunal was biased on the basis they had been the President of the regulator during the original discipline process.

Lawsuits for Failure to Act on a Complaint

Durcan_Rebecca_5583

by Rebecca Durcan
February 22, 2021

Two recent decisions in different provinces and different contexts reiterate the same principle: regulators and investigators cannot be sued for failing to act on complaints.

In Fariad v. Toronto Police Services Board, 2021 ONSC 374 (CanLII), https://canlii.ca/t/jcmzk the police investigated a complaint of assault. Following the investigation the officer chose not to lay charges. The complainant sued arguing that while the officer had broad discretion as to whether to lay charges, that discretion was not exercised for proper purposes in this case. The Court struck out the claim on the basis that the police officer’s duty was to protect the public interest generally and not to the individual complainant. The complainant’s remedy, if there was one, was to make a misconduct complaint against the officer.

Similarly, in Lu v Real Estate Council of British Columbia, 2021 BCSC 109 (CanLII), https://canlii.ca/t/jcslp an individual sued the regulator for failing to investigate complaints. They claimed that failure to do so resulted in financial losses to them. The Court struck out the claim as there was no cause of action against a regulator for failing to investigate a complaint. Regulators choose to take action, or not, with a view to the public interest in general and not out of any legal duty to the individual complainant. The immunity provision also protected the regulator.

Prudent regulators view complainants as a valuable resource to their regulatory activities. However, they do not act on behalf of complainants.

Third Party Complaints

by Bernie LeBlanc
February 16, 2021

Where a third party complains about the conduct of a practitioner, complex issues arise. The complainant is not entitled to confidential client information. The regulator has to assess whether it should obtain the relevant client information and, if so, what if any of it should be disclosed to the complainant.

In King v. Gannage, 2020 ONSC 7967 (CanLII), http://canlii.ca/t/jc98k the complaint was whether a practitioner should be providing an alternative therapy to children with autism. The Court indicated that the regulator can take into account the confidentiality of the information when exercising its discretion to obtain it. In addition, it stated that while the practitioner did not have the implied authority to disclose client information that would exist if the complainant were a client, they had discretion to provide the information to the regulator under the Personal Health Information Protection Act. The practitioner chose not to provide client information. The Court upheld the decision of the regulator that the complaint did not provide a sufficient basis to warrant the regulator obtaining the appointment of an investigator to collect client information from the practitioner.

The Court also indicated that the screening committee did not need to review hyperlinks to additional, unscientific, resources provided by the complainant:

Moreover, if the applicant believed that some of the sources found in the hyperlinks were significant, it was up to her to bring those specific sources to the ICRC’s attention.  As a complainant, she had the responsibility to clarify her concerns for the ICRC.  As well, it was important that she do so in order that the responding physician could adequately respond.  The fact that the ICRC did not consider these hyperlinks does not render the investigation inadequate.

The Court also found there was no unfairness in the regulator not retaining an expert witness in the circumstances of the case. The screening committee was in a position to determine the issues on its own.

The Court also found that the decision of the screening committee was reasonable:

As I said above, the ICRC’s role is to assess the standard of practice of an individual physician, not to determine, in the abstract, whether controversial alternative medicine theories are acceptable.

There was no information before the screening committee that clearly demonstrated that the alternative therapy was harmful or, even, ineffective. This case provides a useful guide to regulators caught up in a dispute over “philosophical” approaches to practice.

Regulators’ Confidentiality Protections

by Julie Maciura
February 8, 2021

Most regulators must maintain confidentiality with respect to the information they hold. Many regulators also have statutory protections preventing their representatives from being compelled to testify in other proceedings and preventing regulatory information from being disclosed in other legal proceedings. In Dunbar v The Law Society of British Columbia, 2021 BCSC 8 (CanLII), http://canlii.ca/t/jcf3k, a court reinforced the strength of those provisions.

In Dunbar the petitioner (who was imprisoned for a crime) wanted to use information from the regulator to support efforts to set aside their conviction. The regulator had investigated the petitioner’s lawyers for incompetence concerns. The case is complicated by the fact that in addition to the statutory protections, the information sought was also protected by legal privilege. In addition, counsel to the parties and the imprisoned individual already had been given access to the documents under strict limitations. In terms of the statutory protection against representatives of the regulator being compelled to disclose information or participate in other proceedings, the regulator conceded there might be rare exceptions, such as where an innocent person’s freedom was at stake. In reviewing the documents the Court found it unlikely that the documents were relevant to this exception. However, the Court said that even if the documents were relevant,

… I would have found that the privacy interests the Law Society seeks to maintain must be preserved. The relevance of the documents for Mr. Dunbar’s intended purposes is, at best, marginal. It cannot compete with the interests of the Law Society, which are advanced in the public interest to foster candour in Law Society investigations, and to protect privacy interests.

Thus the Court maintained the confidentiality of the documents.

Interestingly, the Court had to refer to the content of the documents in order to provide meaningful reasons. However, those references to the content of the documents were redacted from the public version of the reasons for decision.

Revisiting Referrals to Discipline

by Natasha Danson
February 1, 2021

Courts are reluctant to review a referral of allegations to discipline by a screening committee. In Walia v. College of Veterinarians of Ontario, 2020 ONSC 8057 (CanLII), http://canlii.ca/t/jcb73 the road to review was even rockier because it was brought after the discipline hearing findings had been challenged unsuccessfully all the way to the Supreme Court of Canada. Despite this, the practitioner challenged the referral upon which the discipline findings had been made on the basis that the referral was fraudulent, biased and procedurally unfair.

The Court dismissed the motion on a number of grounds that were technical (there was no proceeding in which the motions pertained), procedural (delay, issues already determined) and substantive (there was no merit to the arguments). However, in the course of its reasons the Court made the following observations that may be of interest to regulators:

  1. It is common place and acceptable for the same legal counsel to advise the screening committee and then prosecute the case at discipline.
  2. “In any event, the referral of the complaint from the Complaints Committee to the Discipline Committee is one step in the discipline process. Once the matter was referred to the Discipline Committee, Dr. Walia had a full opportunity to defend against the allegations made against him. Any defects in the referral were cured by the hearing. If the allegations against Dr. Walia were unfounded, he had an opportunity to defend against them.”
  3. Even if the challenge had been brought at the time of referral, the challenge likely would have been premature.
  4. There is no obligation on the screening committee to provide reasons for referring a matter to discipline.

As a general principle, concerns about a referral to discipline should be addressed at the discipline hearing itself.

Publication of Remediation Directions Does not Alter their Remedial Nature

Durcan_Rebecca_5583

by Rebecca Durcan
January 25, 2021

For many regulators the issuing of various forms of advice or cautions or the imposition of educational measures has become an important part of the complaints process. Many enabling statutes now authorize regulators to impose remedial measures on a mandatory basis without first going through a discipline hearing. Courts have upheld this authority, indicating that these are protective measures which do not constitute a penalty. In 2017 legislative amendments have required that such directions be posted on the public register as part of the transparent nature of professional regulation. Does the posting of remedial directions alter their fundamental nature?

In Geris v. Ontario College of Pharmacists, 2020 ONSC 7437 (CanLII), http://canlii.ca/t/jc4gk the Court said no:

It is true, as the applicant argues, that cautions and remedial orders regarding attendance at education programs are now placed on the public register. This was not the case when a number of the leading cases dealing with such orders were decided. However, the fact that the Legislature felt it would be in the public interest to make health disciplines bodies publish remedial orders of the kind issued by the ICRC in this case does not fundamentally alter the preventive, educational and remedial nature of such orders. I cannot agree that an entirely different approach must be taken now that remedial orders appear on the public register.

The Court also found that procedural fairness had been provided in respect of the degree of the investigation conducted, the time it took for the matter to be investigated and in terms of the practitioner’s awareness of the issues. The Court also found that the decision adequately recognized the practitioner’s supervisory role at the pharmacy and his lack of personal involvement in the individual dispensing error that occurred.

Necessary and Proportional

by Erica Richler
January 18, 2021

What do you do when an elderly physician, in poor health and under enormous debt whose registration is suspended continues to practise medicine despite multiple court injunctions? This is what a Quebec court had to deal with in Collège des médecins du Québec c. Giannakis, 2020 QCCS 4216 (CanLII), http://canlii.ca/t/jc298. The evidence of contempt of court was overwhelming including a half-hour video recording of his assessing and treating an undercover investigator posing as a patient. The recording undermined his position that his poor understanding of the French language prevented him from understanding the orders made against him. In addition, his disrespect for the process was further demonstrated by his failure to show up in court for the second day of the hearing without notifying any of the other hearing participants. Despite finding a deliberate and intentional breach of the court orders, the Court in this case did not conclude that imprisonment was necessary and proportional. Rather it ordered the payment of $24,000 of fines over a 25-month period. Justice is usually not easy and is rarely neat.

Who Drives a Complaints Investigation?

by Bernie LeBlanc
January 14, 2020

When a complaint is made, the person making the complaint often suggests some investigative steps that the regulator should take. While prudent regulators will consider such requests, it is clear that it is the regulator, not the complainant that decides the appropriate level of investigation. This principle has recently been affirmed in: Makis v College of Physicians and Surgeons of Alberta (Complaint Review Committee), 2020 ABCA 451 (CanLII), http://canlii.ca/t/jc3c6. No details of the nature of the complaint are provided but the prior history of the matter suggests that the respondents were caught up in a broader dispute and the complaint relates to how they responded to the complainant’s concerns. The Court said:

The appellant argues that the Complaints Director did not conduct a full investigation, including interviewing possible witnesses, before dismissing his complaints. The Complaints Director has wide powers under s. 55(2) of the Act, including the power to attempt to resolve the complaint, to request an expert opinion, or to appoint an investigator. The Complaints Director, however, need not do any of those things, and is entitled to dismiss the complaint if it appears to be trivial, or there is insufficient evidence of unprofessional conduct. The Complaints Director is entitled to dismiss a complaint that essentially repeats a previously dismissed complaint. While the complainant is entitled to a fair procedure, that does not include a right to any type of investigation. The absence of a formal investigation did not compel the Complaint Review Committee to set aside the dismissal of the appellant’s complaint.

The Court went on to say:

In a professional disciplinary matter, the complainant is not entitled to dictate whether an investigation should be conducted, or how it should be conducted.

The Court indicated that the duty of procedural fairness was met when the regulator provided the complainant with a full opportunity to present their concerns and the information supporting them.

Access to Hearing Exhibits 

by Julie Maciura
January 11, 2021

Many regulators have a high duty of confidentiality. A recent securities regulator case examined how that obligation fares when otherwise confidential information is made an exhibit at a public hearing: British Columbia (Securities Commission) v. BridgeMark Financial Corp., 2020 BCCA 301 (CanLII), <http://canlii.ca/t/jbc31>. In that case an interim cease trading order was issued related to concerns about improper private placement of securities. When the regulator considered whether the order should be extended, it did so through a public hearing. Various parties (e.g., media, a law firm acting against the parties under investigation) sought access to the exhibits.

The Court, in upholding the order providing access to the exhibits, made the following points:

  1. As a general principle, the public has the right to have access to exhibits from a public hearing unless they contain sensitive information that outweighs the principle of open hearings.
  2. This principle applies even when the public hearing is on a preliminary matter and not on the merits of the allegations.
  3. The duty of confidentiality upon the regulator ends when the information is received in a public hearing.
  4. The tribunal should not consider how the information will be used when deciding whether the information should be made public. For example, the fact that a person wishes to have access to the information in order to sue the party under investigation is irrelevant to the issue of whether the public should have access to the exhibit. If the person receiving access to the documents uses them improperly, that is an issue between the party being investigated and the person misusing the information.

The Court described the role of the tribunal as follows:

In my view, the Commission was correct to say that, once it decided to hold a hearing, the statutory provisions imposed upon it a duty to hold the hearing in public, to maintain a record of the hearing, and, consistent with the open court principle, to permit the public to have access to the record unless doing so would be unduly prejudicial to a party or a witness and withholding access would not be prejudicial to the public interest. It engaged in the balancing of private and public interests by soliciting submissions from the parties and addressing those submissions in its reasons.

This case enables tribunals to better focus on the substantive issue before them when faced with requests from the public to have access to exhibits.

Interpreting Quorum Requirements

by Natasha Danson
January 4, 2021

Quorum requirements are strict; if a tribunal does not have quorum, it cannot decide a matter. However, how strictly should quorum requirements be interpreted where the quorum provisions are ambiguous?

In Rollingson Racing Stables Ltd v Horse Racing Alberta, 2020 ABCA 419, http://canlii.ca/t/jbr11 a tribunal member’s appointment was rescinded by the relevant Minister after a hearing had been completed but before the decision and reasons were released. A week later the Minister issued an order permitting the tribunal member to “‘participate in the delivery of decisions, including the preparation of written reasons for decision, in relation to appeals that were heard by the Appeal Tribunal while she was a member of the Appeal Tribunal’”. The provision in the legislation indicated that the rescission of an appointment prevented the individual from continuing with the matter “unless expressly permitted to do so by the person who … rescinded the appointment”.

The issue was whether the delay between the rescission of the appointment and the permission to continue affected the ability of the tribunal member to participate in the decision. It was accepted that if the tribunal was not permitted to continue, the tribunal did not have quorum. The Court concluded that since there was no action taken on the hearing during the hiatus, the tribunal did have quorum to render the decision.

While this case turned upon the unusual wording of the specific quorum provision, it suggests that Courts will take a purposive approach when interpreting quorum provisions so as to not needlessly nullify administrative decisions.

Posting Interim Orders in Unauthorized Practice Cases

by Erica Richler
December 29, 2020

In Ostiguy v. Collège des médecins du Québec, 2020 QCCA 1554 (CanLII), http://canlii.ca/t/jbq55, an orthotist had been convicted of practising medicine numerous times and fined, cumulatively, over $50,000. The medical regulator brought an application to restrain him from continuing to practise medicine. The regulator sought and obtained an interim injunction. It was that interim order that was under appeal. A somewhat unique aspect of this order was that the individual was required to post a copy of the order, at eye level and without other information, on the door to his practice.

The Court of Appeal upheld the order finding that there was an adequate basis to support the concern that the individual was not ceasing his illegal activities. The requirement to post the order on the clinic door ensured publication of the injunction, which was essential to the protection of the public. The Court also held that it was not necessary to provide notice to the individual’s employer before making the order. The Court also held that a quickly corrected mistake by counsel for the regulator implicating other individuals in the illegal conduct did not preclude the making of the order. The discretion to refuse an injunction when a party does not come with “clean hands” relates more to improper conduct in the events rather than to an advocacy mistake.

Posting orders in public seems to be another instrument in the regulatory toolbox.

Proration of Fees is a Policy Decision

by Bernie LeBlanc
December 21, 2020

Many regulators charge annual fees. Some regulators do not prorate them; practitioners must pay the entire annual fee even if they are only registered for part of the year. Of course this can be frustrating for practitioners registered late in the year. In a recent case, one practitioner challenged this approach in Court.

In Dylan v. Law Society of Nunavut, 2020 NUCJ 32 (CanLII), http://canlii.ca/t/j9xnz a practitioner was registered two-thirds into the year. He argued that a refusal to prorate his fees was “unreasonable and leads to an absurd result” and that no reasons were given for that decision. The Court held that the discretion of the regulator to set the fee payment rules was supported by the enabling legislation. In fact, the regulator had, in those rules, permitted proration in rare circumstances. The Court went on to say:

Even if the application for review had been successful, the remedy would have been to remit the matter to the LSNU for reconsideration. The remedies sought would not have been available. There are a multitude of fee structures that an organization may choose to implement, prorating being just one option. Even if an organization chooses to prorate fees, there are further choices to made, such as whether prorating will be done on a daily, weekly, or monthly basis. These are not decisions for a court to make on judicial review. They are decisions for the governing organization to make.

Despite this ruling favouring regulators, it is still useful for regulators to explain the rationale for its rules on the payment of fees.

Issuing Guidance to the Profession

by Julie Maciura
December 14, 2020

New Brunswick’s highest court has affirmed that it is an inherent part of a regulator’s role to issue guidance to practitioners about the regulator’s interpretation of the legislation.

The facts of the case can be summarized as follows. The Applicant was marketing a diet protocol through pharmacies. The program involved pharmacists performing an assessment of clients, recommending the protocol, and monitoring the client progress. The regulator issued an advisory statement saying that this approach (not naming the company) risked pharmacists straying beyond their scope of practice, in effect practising dietetics. The advisory statement also suggested that a pharmacist participating in such an activity risked using their professional status to market a commercial product. As a result, fewer pharmacists became involved in the protocol and the Applicant’s revenues were reduced. The Applicant sought judicial review to set aside the advisory statement.

In Laboratories C.O.P. Inc. v. New Brunswick College of Pharmacists, 2020 NBCA 74 (CanLII), http://canlii.ca/t/jbtpj the Court said:

The Statement was nothing more than a reminder or guideline confirming the existing scope of practice coupled with a warning not to stray into areas reserved for the expertise and training of other health care professionals. Professional bodies charged with administrative and regulatory duties over their members are entitled to issue such statements without express statutory authority and without attracting judicial review….

The Statement is neither a decision nor, by necessary implication, an invalidly enacted regulation.

The Court also found that the Applicant had no standing to seek judicial review of the regulator’s guidance. The commercial interest of the Applicant did not afford it access to a public law remedy.

This case confirms that policy statements by regulators are an appropriate regulatory action and that not everyone has standing to challenge them even if the statement affects their commercial interests.

Limitations on Injunction Provisions

Durcan_Rebecca_5583

by Rebecca Durcan
December 10, 2020

The criteria for obtaining an injunction provision against unregistered persons vary between jurisdictions and even in legislation within a single jurisdiction. This variation was made evident in Collège des Médecins du Québec c. CEO (Études en ostéopathie) inc., 2020 QCCS 3603 (CanLII), http://canlii.ca/t/jbhfz. The medical regulator had obtained offence findings against persons associated with an osteopathy school for performing activities reserved to physicians. The school continued to operate and its patient clinic remained open.

The medical regulator wanted to obtain an injunction to prohibit those individuals from performing the reserved acts going forwards. However, the statutory provision required the consent of the Attorney General, which had not been obtained, and repeated offence findings. Here there was only one offence finding. The medical regulator initiated an injunction proceeding based on case law, rather than legislation. The Court held that the case law route required proof of an intention to continue to perform the reserved acts. Since practising osteopathy itself (without performing a reserved act) was legal, the Court found that continuing to operate the school and the patient clinic did not, in itself, establish an intent to perform reserved acts. The Court declined to issue the injunction.

Resiling from a Settlement Agreement

by Natasha Danson
December 7, 2020

In discipline matters, a settlement agreement should be taken seriously. While there may be rare circumstances where a party can resile from such an agreement (e.g., inadequate explanation by legal counsel), for the most part they are binding.

In Law Society of Ontario v. Ejidike, 2020 ONSC 6228 (CanLII), http://canlii.ca/t/jb6nx a practitioner agreed to certain facts being used to support a finding of professional misconduct against her. In return for this agreement the regulator agreed not to pursue the substantial costs ($150,000) that it would otherwise have sought. Shortly after the hearing, the practitioner repudiated the agreement, saying that she had made a terrible mistake, and she brought a motion to withdraw her admissions. The motion was unsuccessful. The regulator then sought and obtained an order for the practitioner to pay the substantial costs.

The practitioner argued that since the agreement was still being relied upon, the regulator should be bound by its commitment not to seek costs. The Court disagreed. What the regulator had bargained for in the settlement agreement was the certainty that the facts would not be disputed. By repudiating the agreement and bringing a motion to withdraw her admissions, the practitioner had taken away that certainty. As such, the regulator had lost the benefit of the agreement and was entitled to seek substantial costs.

Settlement agreements are generally to be taken as final, and attempts to withdraw from them contain significant risks to the repudiating party.

Protracted Negotiations

by Erica Richler
December 2, 2020

Screening committees often negotiate undertakings with practitioners to resolve concerns, particularly in cases involving standards of practice. Sometimes discussions negotiating the precise terms of the undertaking become protracted. In Dabao v Investigation Committee of the Saskatchewan Registered Nurses’ Association, 2020 SKQB 242 (CanLII), http://canlii.ca/t/j9xpc the screening committee indicated a willingness to resolve concerns with an undertaking signed by the practitioner. Over a period of two months negotiations continued. The regulator granted a number of extensions to the practitioner. Finally a deadline was imposed by the regulator that the undertaking had to be signed as it then read by January 2nd. On December 31st the practitioner suggested some additional amendments, but indicated that she would sign the undertaking if they were rejected. Unsurprisingly the regulator did not respond by January 2nd. The practitioner did not sign the undertaking. Later that month the screening committee referred the matter to discipline.

The practitioner sought judicial review of the decision to refer to discipline because she had a legitimate expectation that the matter would be resolved and because it was unfair for the regulator to change its mind without giving her a chance to sign the undertaking as worded.

The Court rejected those arguments:

Ms. Dabao argues the Investigation Committee chose to resolve the matter with a CCRA, as permitted under the Bylaws. The SRNA agrees the committee decided to resolve the matter, if Ms. Dabao signed the CCRA. However, Ms. Dabao had two months to sign the CCRA and did not do so. Consequently, the committee moved the matter on to a discipline hearing.

I do not agree with Ms. Dabao that the Investigation Committee established a legitimate expectation and failed to follow through. As such, I do not find that the Investigation Committee failed in its duty to provide Ms. Dabao with procedural fairness by thwarting her legitimate expectations. Her application to quash the January 9, 2020 decision of the Investigation Committee is dismissed.

Practitioners ignore such deadlines at their peril.

Bringing the Profession into Disrepute

Durcan_Rebecca_5583

by Rebecca Durcan
November 30, 2020

Some professions include in their definitions of professional misconduct some aspect of conduct that brings their profession into disrepute. In Hughes v. Law Society of New Brunswick, 2020 NBCA 68 (CanLII), http://canlii.ca/t/jb187 the Court considered that definition. It applied, without accepting as correct, the interpretation by the disciplinary tribunal that the definition meant the public perception of the practitioner’s conduct.

The practitioner had a dispute with a short-term domestic partner when he asked her to leave his home. The only admissible evidence about the incident was that he tried to retrieve his house keys from her purse and then tried to hold his partner’s telephone until she handed over the keys. The admissible evidence also was that his partner was younger and stronger than him and that she assaulted him. When the police were called he was charged. Eventually he agreed to sign a peace bond to resolve the charges.

The Court found that simply being charged with an offence or signing a peace bond was insufficient, in itself, to constitute professional misconduct. The Court also rejected the assertion that the facts created a public perception that would bring the profession into disrepute.

On the facts that were before the panel, such a reasonable and properly informed public would: (1) understand that Mr. Hughes was the victim of assault on the night in question; (2) know Mr. Hughes co-operated with the authorities throughout; (3) be uncertain of the reason why it was him who was charged and not the other party; (4) understand the inherent risks of a trial where the testimony of one is pitted against that of another; (5) know of the Crown’s offer and defence counsel’s recommendation to resolve the matter by a peace bond without any admission of guilt; and (6) know Mr. Hughes complied with the provisions of the peace bond. In these circumstances, it is simply inconceivable there would be negative public perception “upon the integrity of the profession and the administration of justice.”

On such a finding, the relevant surrounding circumstances are critical.

Rare Exceptional Circumstances?

by Bernie LeBlanc
November 25, 2020

The Courts will not hear an application for judicial review of an interim ruling in a discipline matter unless there are exceptional circumstances. So what are exceptional circumstances?

The decision in Bannis v. The Ontario College of Pharmacists, 2020 ONSC 6115 (CanLII), http://canlii.ca/t/j9zq2 reinforces the proposition that exceptional circumstances are indeed rare. In that case the practitioner argued that the regulator lost jurisdiction to deal with concerns that she distributed drugs “to American clients through her online pharmacy without valid prescriptions” because it had not followed the complaints process, but rather had conducted a Registrar’s investigation.

The Court held that this was not an exceptional case even though a jurisdictional and abuse of process issues were raised that, if accepted, would end the proceeding. In addition, the fact that counsel were ready to proceed before the gathered Court was not exceptional. Also, there was an alternate remedy, namely proceeding with the discipline hearing and raising the issue at discipline and, if necessary, on appeal. In addition, the case was not one where an “allegation of a denial of procedural fairness or bias within the disciplinary proceedings that would fundamentally affect the fairness of that proceeding” was at stake, which might be an example of an exceptional circumstance.

The Court exercised its discretion to decline to hear the application and awarded costs of $15,000 to the regulator.

Advising the Profession

by Julie Maciura
November 23, 2020

Can regulators advise the profession about new developments that appear to be unethical or unprofessional? One New Brunswick court suggests that this is a proper function of a regulator that will rarely be subject to judicial review: Laboratories C.O.P. Inc. v New Brunswick College of Pharmacists, 2020 NBQB 96, http://canlii.ca/t/j8hhg.

The applicant was marketing a diet protocol through pharmacies. The program involved pharmacists performing an assessment of clients and recommending the protocol. The regulator issued an advisory statement saying that this approach (not naming the company) risked pharmacists straying beyond their scope of practice, in effect practising dietetics. The advisory statement also suggested that a pharmacist participating in such an activity risked using their professional status to market a commercial product. As a result, fewer pharmacists became involved in the protocol and the Applicant’s revenues were reduced. The Applicant sought judicial review to set aside the advisory statement.

The Court concluded that the advisory statement did not amount to a “decision” that was subject to judicial review. It involved a general statement reminding practitioners of their professional obligations in a certain context. It was too vague to be directly enforceable at a discipline hearing.

Even if it were a reviewable “decision” the Court concluded that there was no procedural unfairness. Given the nature of the statement, any procedural requirements were at the low end of the spectrum. The consultation process followed in this particular case was adequate even though the advisory statement had a financial impact on the Applicant.

The Court concluded: “I am also satisfied that the College, by issuing the Statement, was acting in a manner consistent with its overarching obligation as a self-regulating profession to uphold the welfare of the public.”

No Hard Caps on Parity of Sanctions

by Natasha Danson
November 18, 2020

Courts tend to require discipline panels to ensure that any sanctions imposed are consistent with previous orders in similar cases. This is often referred to as the concept of “parity”. However, the Ontario Divisional Court has affirmed that in exceptional cases a more severe sanction can be imposed.

In Shah v. College of Physiotherapists of Ontario, 2020 ONSC 6240 (CanLII), http://canlii.ca/t/jb46c a physiotherapist was suspended for 18 months for failing to carry professional liability insurance and for making a false declaration to the College about having such coverage. Most discipline cases for similar misconduct involved significantly lesser sanctions; no prior precedent had imposed a suspension that long.

However, the Court upheld the sanction because of the aggravating factors at play in the case. In particular, this was the third finding of professional misconduct for dishonesty against the practitioner. The conduct occurred contemporaneously with an ethics and professionalism course the practitioner was taking because a previous discipline finding. The practitioner did not disclose the lack of insurance coverage until the regulator began investigating him for it.

The Court said:

I am satisfied that the Committee turned its mind to the issue of parity when it acknowledged that the 18-month penalty was more that [sic] the other cases in the Books of Authorities.  The Committee demonstrated that while considering parity, those sentences were not appropriate as none of those cases had similar aggravating circumstances and the heightened need for specific and general deterrence.

In the end, the Committee recognized that these circumstances are exceptional and as such an exceptional penalty was required to properly address specific and general deterrence and to maintain the public’s and the profession’s confidence in the profession’s ability to self-regulate.  I am satisfied that the Committee’s reasons reflect that it was aware that the 18-month suspension was a departure from other suspensions imposed by the Committee….

The conclusion that an 18-month suspension is applicable in the circumstances is a reasonable conclusion that cannot be said to be “demonstrably unfit” or “clearly excessive”.

The Civil Standard of Proof at Discipline is Affirmed Again

by Erica Richler
November 16, 2020

In an unusual case, a four-person discipline panel issued two sets of concurring reasons each signed by two members of the panel. The panel found that the regulator had not proven that the practitioner had failed to maintain the standard of practice or been negligent in his handling of oil contamination concerns at a residential property: The Association of Professional Engineers of Ontario v. Rew, 2020 ONSC 6018 (CanLII), http://canlii.ca/t/jb60d. The Court found a number of legal errors and returned the matter for a new hearing.

The main basis for the Court’s decision was that it appeared to apply an intermediate standard of proof between the civil (balance of probabilities) and criminal (beyond a reasonable doubt). The Court based this conclusion on statements in the reasons for decision that suggested that the panel was requiring a high level of proof, its reference to giving the practitioner the benefit of the doubt, its frequent use of criminal language (e.g., “penal” proceedings, “charges”) and its apparent use of the term “clear, cogent and convincing” evidence in a manner suggesting it created a higher standard of proof. The Court indicated that there was only one standard of proof in civil proceedings (that include discipline hearings) even where the allegations are serious: proof on a balance of probabilities.

The Court made a number of other important points including:

  • The panel did not demonstrate bias towards the regulator by criticizing it for bringing the case to discipline or by the panel making legal errors, such as on the standard of proof.
  • Where an allegation is a “strict liability” one, such as for practising without a certificate of authorization, the intent of the practitioner is irrelevant. Absent due diligence or mistaken belief in the facts, the conduct itself establishes the allegation. The Court also rejected the suggestion that such conduct was trivial.
  • The Court also found that an adverse inference against the regulator for not calling a third party witness was unwarranted. The witness was not in the exclusive control of the regulator, the evidence was not significant and the regulator’s explanation for not calling the witness (i.e., that the practitioner admitted the necessary facts) precluded an adverse inference being made.
  • This regulator had a ground of discipline where the practitioner had acted with “negligence”. The term was defined as being conduct that “constitutes a failure to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances”. The Court held that it was improper for the panel to infer additional requirements to the definition, based on civil tort law, related to causation and harm.
  • The Court also found that the panel had erred by failing to deal with the evidence of the defence expert on cross-examination. The defence expert had agreed on cross-examination that the practitioner should have done a second test a month after the first test before expressing conclusions on the risks involved. Where a witness retracts evidence they express in their evidence in-chief, the panel must explain why it still accepted the opinion expressed in the examination-in-chief.
  • The Court also declined to award costs to the regulator in the circumstances even though the regulator had been successful on the appeal, as the errors were made by the regulator’s own committee.

The Court returned the matter to a differently constituted panel.

Is the Standard of Review of Discipline Decisions Becoming Clearer?

Durcan_Rebecca_5583

by Rebecca Durcan
November 12, 2020

Ever since the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), http://canlii.ca/t/j46kb there has been much debate as to whether courts will scrutinize discipline decisions more closely, particularly where there is a statutory right of appeal. Clearly the answer is “yes” where the discipline tribunal has to address a general question of law (e.g., a constitutional question or a general principle of evidence). However, in the Divisional Court of Ontario decision of Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 6171 (CanLII), http://canlii.ca/t/jb3pv, the answer seems to be “no” for most other issues.

The facts of the case are interesting. The practitioner attended at the home of a client after performing veterinary surgery. The meeting escalated into a verbal argument and a physical interaction resulting in injuries to both participants. In upholding the finding of professional misconduct, the Court noted the following:

  1. Factual findings are reviewed on the deferential standard of whether there was a palpable and overriding error.
  2. A similar standard applied to a finding that the conduct of a practitioner constituted professional misconduct. In the absence of a statutory interpretation issue, a finding that the “conduct constituted a significant departure from his professional obligation amounting to professional misconduct” would be afforded deference.
  3. A similar standard applied to the review of the sanction imposed by the discipline tribunal. So long as no improper considerations were taken into account, significant deference was owed to the core competence of the tribunal. The decision should only be set aside where the decision was “clearly unreasonable” or “demonstrably unfit”.
  4. On the matter of costs, the Court said: “As costs are a discretionary remedy, an appellate court should only set aside a costs award if the trial judge has made an error in principle or if the award is plainly wrong.”

The Court in this case treated the standard of review issue as becoming routine in this context.

No Contest Pleas at Discipline Hearings May Have Unintended Consequences

by Bernie LeBlanc
November 9, 2020

A number of regulators have developed rules of procedure that permit a practitioner to decline to admit allegations against them (i.e., making a plea of “no contest”) with the expectation that a finding would still be made by the discipline tribunal based on that plea. The purpose of the practitioner pleading “no contest” is to prevent them from being deemed to admit the allegations in any subsequent civil or criminal proceeding.

However, in R. v. Lo, 2020 ONCA 622 (CanLII), http://canlii.ca/t/j9zlg Ontario’s highest court upheld a criminal finding of sexual assault founded to a large degree by the admissions made by a psychologist at a discipline hearing. At the discipline hearing the practitioner had acknowledged engaging in unprofessional behaviour by his touching of three patients. However, on the specific allegation of sexual abuse the practitioner pleaded “no contest”. Both counsel at the hearing submitted that they anticipated that the discipline panel would make a finding of sexual abuse on the agreed upon facts.

The Court held that the agreement to the underlying facts at the discipline hearing constituted an admission that could be used against the practitioner in the sexual assault charges in the criminal trial. The plea of no contest, in this case at least, only applied to the conclusion of sexual abuse at discipline and did not apply to the underlying facts that had been formally agreed to. The Court found that the admissions were “relevant, material, and properly admissible” and that there was no unfairness in using the admissions in this manner at the criminal trial.

Practitioners will likely become less willing to resolve discipline matters on the basis of a plea of no contest. It remains to be seen whether a plea of no contest can be worded such that a practitioner does not actually admit to the accuracy of the facts but still allows the discipline tribunal to make a finding on the basis that the practitioner is not contesting those facts.

Interim Order Upheld

by Julie Maciura
November 4, 2020

It almost seems to be a rare event for an interim order limiting a practitioner’s practice to be upheld by the courts. However, in Kadri v. College of Physicians and Surgeons of Ontario, 2020 ONSC 5882, http://canlii.ca/t/j9w0z an interim order preventing a physician from continuing to treat patients with serious kidney conditions was left in place. In that case a physician had his hospital privileges removed. A lengthy investigation by the regulator resulted in an expert report concluding that “the applicant’s clinical practice, behaviour and conduct was likely to expose patients to harm or injury in 17 of the 28 cases she reviewed.” Another expert provided a similar opinion in a related proceeding.

In maintaining the interim order the Court noted the following:

  • With rare exceptions it would only receive evidence that was before the Committee. In particular, it would not accept new evidence that went to the merits of the Committee’s determination that the practitioner’s conduct exposed or was likely to expose the public to harm or injury.
  • While the Committee does not have a fact finding role when screening a complaint to determine whether it should be referred to discipline, it does have a fact finding role when determining whether to make an interim order. In particular, it would make findings as to whether the conduct of the practitioner exposes or is likely to expose patients to harm or injury.
  • Even though the Committee used the phrase “risk of harm” in its reasons in a few places, it is clear that the Committee understood and applied the correct test of exposure or probable exposure to harm or injury.
  • The interim order was reasonable given the expert opinions addressing the specific issue of likelihood of exposure of the public to harm or injury and that the Committee imposed a narrow order limited to patients with serious kidney conditions. In other words, the interim order was “the least restrictive order necessary to protect patients’ safety”.
  • The process for making an interim order, under this legislation at least, contemplates a paper hearing (i.e., no cross-examination of witnesses or oral submissions) in a short period of time. The refusal of a request by the practitioner for a 90-day delay to obtain legal counsel and a responding expert opinion was properly refused especially since the Committee had already provided some extensions, reconsidered the order on an urgent basis and where the practitioner did not provide an explanation of his efforts to locate legal counsel and obtain another expert opinion. The Court noted that should the practitioner obtain an expert opinion it was open to request a further reconsideration of the interim order.

Even though the interim order was upheld in this case, the decision implies that regulators need to carefully gather evidence and offer a fair procedure in order to issue a defensible interim order.

Relying on Out-of-Province Disciplinary Findings

by Natasha Danson
November 2, 2020

Where a practitioner is disciplined in another jurisdiction, a Canadian regulator typically also wants to act. If the conduct relates to incompetence or unprofessionalism, the Canadian regulator will want to protect the public here. Many regulatory statutes enable the regulator to rely on out-of-province findings without having to re-prove the case. Even if there is not an enabling provision in the governing statute, regulators can often rely on the out-of-province findings as evidence of the underlying misconduct.

However, the practitioner will often want to introduce additional evidence or arguments as to why the out-of-province finding should not be relied upon. In Kivisto v. Law Society of Ontario, 2020 ONSC 5790, http://canlii.ca/t/j9t5h the Divisional Court gave guidance as to when a discipline panel can refuse to permit a practitioner to challenge the out-of-province decision. Relying on the Supreme Court of Canada decision in Beals v. Saldanha, 2003 SCC 72, http://canlii.ca/t/1g7bw, the Court said that the discipline tribunal can recognize the foreign finding where the other jurisdiction had a real and substantial connection to the matters. In this case the events occurred in Florida, where the practitioner had been disciplined, so that part of the test was met. In addition, no fundamental unfairness in the procedure followed in the out-of-province hearing.

The issue then turned to whether the Florida discipline findings were determinative. The Court indicated that collateral attacks on findings in other jurisdictions should not be permitted unless:

  • the original hearing was tainted by fraud or dishonesty,
  • there is material fresh evidence that was not available at the time of the original proceeding, or
  • “Fairness dictates that the original results should not be binding in the new context”, such as where the conduct in issue in the original proceeding would not be professional misconduct here.

In this case, those rare exceptions were not established. The practitioner had been disciplined in Florida for taking financial advantage of vulnerable clients. He then attempted to contest the validity of the findings made at the original hearing, which the Court found to be an improper collateral attack on the original proceedings.

This decision should reassure regulators that they can usually rely on out-of-province disciplinary findings without having the re-hear the allegations on the merits.

Easy to Say, Hard to Do

by Erica Richler
October 26, 2020

Canadian regulators are increasingly moving from dual mandates to single mandate organizations: https://nurses.ab.ca/docs/default-source/latestnews/governance-review-findings-report.pdf?sfvrsn=867323df_2. However, distinguishing which activities fall within the public interest regulatory mandate and which fall within the advocacy / practitioner support mandate is not easy.

Take the example of whether regulators should actively address preventative health measures for practitioners, particularly those related to substance use and mental illness. One prominent observer, Harry Cayton, argues that wellness initiatives are not part of the mandate of regulators; they should be done by professional associations: https://www2.gov.bc.ca/assets/gov/health/practitioner-pro/professional-regulation/cayton-report-college-of-dental-surgeons-2018.pdf at page 58.

However, many regulators are continuing (or expanding) their involvement in wellness initiatives: http://www.cno.org/en/trending-topics/nurses-health-program/. Recently Australian regulators affirmed and expanded their commitment to such initiatives: https://ajp.com.au/news/funding-boost-for-support-service/.

Those in favour of the regulator’s role in wellness programs argue that such initiatives, if properly framed, protect the public by preventing harm to clients and others that can result from an unrecognized, concealed or untreated health condition. Such initiatives can enhance high quality practice. They also avoid expensive and slow reactive measures such as incapacity proceedings.

This debate over regulators’ mandate on wellness matters is just one example of the separating mandates debate.

Suing for Discrimination

Durcan_Rebecca_5583

by Rebecca Durcan
October 19, 2020

A breach of the Human Rights Code should be addressed through the human rights process. A Saskatchewan court said it should not be pursued through a civil action for monetary damages: Yashcheshen v Law School Admission Council Inc., 2020 SKQB 209, http://canlii.ca/t/j9jc8. In that case a candidate for the law school admission test sued the examiners for failing to accommodate her disability. The Court said:

At its core, Ms. Yashcheshen’s claim alleges that LSAC failed to properly accommodate her. There is no independent civil action for such allegations, outside a complaint filed under the CodeMs. Yashcheshen is required to follow the procedures set out in the Code for addressing such complaints before this Court has the jurisdiction to hear them. Permitting the claim to continue constitutes an impermissible collateral attack on the process required by the Code.

The Court also indicated that rolling such a case into traditional torts was inappropriate:

The claim contains allegations of negligence, negligent misrepresentation, breach of fiduciary duty, breach of contract, and infliction of mental suffering. However, these claims are simply reiterations of the discrimination that is alleged. They cannot stand independently.

However, this decision is applicable to civil actions for monetary damages. It does not, for instance, prevent a regulator from considering discrimination as a ground for reviewing the validity of an examination result.

Complications Where a Practitioner Practises in Multiple Jurisdictions

by Natasha Danson
October 13, 2020

Complex issues can arise where a practitioner is registered in multiple jurisdictions and misconduct concerns exist. In Mema v Chartered Professional Accountants of Alberta, 2020 ABQB 486, http://canlii.ca/t/j99mc, the practitioner was registered in both Alberta and British Columbia. Allegations of misconduct arose primarily in respect of conduct in British Columbia. Regulators in both provinces received complaints of similar misconduct. It appears that the Alberta regulator proceeded first and that the regulator in British Columbia was awaiting the outcome in Alberta.

The Alberta regulator imposed an interim suspension, which the practitioner challenged in Court (in Alberta). Having found that practitioner would suffer irreparable harm to his reputation (even in the absence of evidence of financial harm), the Court focused on balancing whether the public or the practitioner would suffer greater damage from the absence or presence of the interim suspension. The Court determined that since the practitioner was not practising in Alberta, there was little risk of harm in that province. The interim suspension in Alberta was set aside.

The practitioner also tried to prevent or delay the Alberta investigation, arguing that the British Columbia regulatory proceedings should take priority. The Court agreed that the practitioner should not experience two concurrent investigations for essentially the same concerns. However, the Court explained that the Alberta regulator had jurisdiction over the conduct of the practitioner even if the misconduct occurred outside of the province. In addition, the Court found that the practitioner had provided insufficient evidence to support the position that the British Columbia regulator should be required to proceed first.

Joint Books of Documents

by Julie Maciura
October 5, 2020

For the second time this year, Ontario’s highest court has provided detailed guidance as to filing documents at a hearing. It is common for parties to agree upon a primary set of documents that can go before the hearing tribunal in an organized fashion. In fact courts and tribunals have long been encouraging that this be done cooperatively in order to avoid wasted time first proving individual documents and then locating them every time a document is referred to. Many of us have experienced the frustration of trying to assist a five-person discipline hearing panel sort through 50 loose exhibits during the examination of a witness. However, the result has been that counsel is sometimes unclear as to how the tribunal can then use the documents. For example, if a document records a statement or event by a person, can the panel use that document for the “truth of its content” (i.e., to establish that the statement was made or that the event occurred)? Or is the document there for another purpose (e.g., to be used to cross-examine the author of the document on how they could have reached such an outlandish conclusion)? If the author of the document does not testify at the hearing, then the statements within the document can be hearsay, raising issues as to its very admissibility. The Court rejected the notion that the documents can simply be filed and the adjudicator can determine how much weight to be placed on it.

In Bruno v. Dacosta, 2020 ONCA 602, http://canlii.ca/t/j9sn4 the Court repeated the following process for filing agreed documents:

In my view, counsel and the court should have addressed the following questions, which arise in every case, in considering how the documents in the joint book of documents are to be treated for trial purposes:

1. Are the documents, if they are not originals, admitted to be true copies of the originals? Are they admissible without proof of the original documents?

2. Is it to be taken that all correspondence and other documents in the document book are admitted to have been prepared, sent and received on or about the dates set out in the documents, unless otherwise shown in evidence at the trial?

3. Is the content of a document admitted for the truth of its contents, or must the truth of the contents be separately established in the evidence at trial?

4. Are the parties able to introduce into evidence additional documents not mentioned in the document book?

5. Are there any documents in the joint book that a party wishes to treat as exceptions to the general agreement on the treatment of the documents in the document book?

6. Does any party object to a document in the document book, if it has not been prepared jointly?

It would be preferable if a written agreement between counsel addressing these matters were attached to the book of documents in all civil cases. In addition, it would be preferable if the trial judge and counsel went through the agreement line by line on the record to ensure that there are no misunderstandings.

Following this process can be detail orientated and painstaking. It can also be difficult for non-legally trained panel members to follow. While the goal of the Court’s direction is to make the resulting hearings less ambiguous and to reduce the grounds of appeal that can arise, it will require significantly more effort on everyone’s part, particularly in cases where credibility is in issue.

Are Prior Court Determinations Binding at Discipline? 

by Bernie LeBlanc
September 28, 2020

We appreciate that there are few phrases in the regulatory world that are as frustrating as “it depends”. For example, take the question of whether a court determination of a factual issue is binding on a later discipline tribunal. In Immigration Consultants of Canada Regulatory Council v. Rahman, 2020 FC 832, http://canlii.ca/t/j97w4, the Court said that there is not a clear answer to the question.

In that case, the practitioner’s wife received payment of $15,000. The complainant said this was an advance for professional services that were promised, but not provided. The practitioner said it was a personal loan and there was no promise to provide services. The issue first went to Small Claims, Court which concluded the payment was a personal loan. The complainant then raised the same matter with the regulator. The regulator’s Discipline Committee concluded that the decision of the Small Claims Court was determinative, as it was a final decision on the same issue in respect of essentially the same parties, even though the regulator was prosecuting the case at discipline. As a result, the Discipline Committee determined that it was estopped, or prevented, from retrying the core question regarding the payment/loan on the basis of “issue estoppel”.

The Court noted that the tribunal’s analysis of issue estoppel fell short. According to the Court, the tribunal still had to “determine whether, as a matter of discretion, it ought to apply issue estoppel because it would be unjust to do so”. In failing to consider that issue, the tribunal had not fully considered the issue. The matter was returned to the regulator’s Discipline Committee for a new determination.

To further limit the amount of guidance offered by this decision on whether a discipline tribunal was bound by the finding of the Court, the case did not deal at all with the abuse of process argument that the discipline proceeding might constitute a collateral attack on the Small Claims Court proceedings.

Regulators should note that often there are not simple, clear answers in matters they deal with.

False or Misleading Ads

by Erica Richler
September 21, 2020

There are few areas in which one can debate the concept of false and misleading advertisements more than in cosmetic procedures. In Fanous v. Tribunal des professions, 2020 QCCS 2411, http://canlii.ca/t/j91z1 a number of the ads were found to be false and misleading from the perspective of a general member of the public. The Court was of the view that it was appropriate to view the ads from the viewpoint of the members of the public that the advertising requirements were trying to protect rather than how other practitioners would understand them. Doing so did not insert a new theory of the case that required prior particularization. The Court also rejected the argument that expert evidence was required to determine how the ads would be perceived by members of the public.

[Unofficial Translation] What is more, it is true that the comparison of the photographs is revealing; if subterfuge does not sway the sharp eye of the expert, it is reasonable to conclude that in the eyes of an average consumer, a layman, the use of an “after” photograph whose angle, smile, makeup and hairstyle benefit the patient’s appearance constitutes misleading advertising.

Regulators are wise to interpret requirements from the perspective of those being protected.

Compromised Registration Examinations 

Durcan_Rebecca_5583

by Rebecca Durcan
September 17, 2020

Regulators have had to deal with a number of examination breaches in recent years. Regulators obviously take such matters seriously. However, in one recent case, a regulator was found to have taken the issue too far.

In Thibeault v Saskatchewan (Apprenticeship and Trade Certification Commission), 2020 SKQB 192, http://canlii.ca/t/j8wnr the regulator suspended a practitioner’s certificate on the basis that it was obtained by “misrepresentation or fraud”. The practitioner acknowledged accessing past examinations and training materials and distributing them to other candidates. However, the practitioner had written a different examination that was not compromised. The Court held that conduct did not breach the wording of the legislation in that there was no misrepresentation or fraud in the successful completion of the examination actually written:

To find fraud, the Appeal Committee would have had to have before it evidence of, and a finding of, actual knowledge on the part of Mr. Thibeault that what he was doing was wrong or prohibited. A finding that he ought to have known does not constitute fraud.

A subsequent amendment to the legislation did not apply at the time of the conduct.

The Court also held that the reasons for decision were inadequate in that they did not address what constituted misrepresentation or fraud in the context of the provision.

While not a basis for its decision, the Court also expressed concerns that the appeal tribunal deciding the matter contained Board members who had received extensive briefings on the ongoing examination breach concern. Since the legislation did not require that they serve on the tribunal, it was inappropriate for them to hear this case when they had already received such extensive information on the events in issue.

Indicators of Abusive Proceedings

by Bernie LeBlanc
September 14, 2020

In recent years courts have become more proactive in screening out vexatious or abusive proceedings. For example, in Skrypichayko v Law Society of Alberta, 2020 ABQB 461, http://canlii.ca/t/j9570, an Alberta Court found strong evidence that two proceedings brought by a disbarred lawyer against multiple parties were abusive. The Court required him to justify the proceedings before they would be permitted to proceed. The Court identified the following indicators, all of which applied in this case, as suggesting that a proceeding was abusive:

  • The proceeding appears to be a collateral attack on a decision made in another proceeding, including a discipline finding.
  • Bald allegations are made without particulars (e.g., alleging assaults with no description of who, when, where and what happened).
  • Seeking remedies that are impossible to be imposed such as damages that are clearly excessive.
  • The proceeding is brought in the face of an immunity that appears to apply to the defendant without addressing the immunity in the pleadings.
  • Bringing repetitive proceedings that expand upon and escalate allegations made in previous proceedings.
  • The proceedings “appear to potentially be the product of an unwarranted and unjustified belief. This may take the form of scandalous and inflammatory pleadings, unsubstantiated allegations of conspiracy, fraud, and other misconduct, and claims of intimidation, harassment, and racial bias”.

This is a useful checklist for regulators to use in deciding whether to challenge proceedings as abusive or vexatious.

Title Protection Restored 

by Julie Maciura
September 8, 2020

The British Columbia Court of Appeal has restored title protection provisions in that province. In College of Midwives of British Columbia v. MaryMoon, 2020 BCCA 224, http://canlii.ca/t/j90z5 a person providing support to dying individuals and their families had been calling herself a “death midwife”. An attempt by the College of Midwives to prohibit Ms. MaryMoon from using the word “midwife” had been unsuccessful in a lower Court on the basis that it infringed the protections for expression in the Canadian Charter of Rights and Freedoms.

The Court of Appeal reversed the lower Court decision. In doing so the Court of Appeal held as follows:

  • The prohibition, while not limited to the provision of health services, only applied to the use of the word as a title to describe one’s work. For example, making an analogy to one’s work as being similar to that of a midwife was not prohibited under the language of the provision. To be used as a title, the word must imply an assertion of status or qualification.
  • While the prohibition did infringe on Ms. MaryMoon’s freedom of expression, that restriction was permitted by the saving provision found in section 1 of the In finding the restriction justified, the Court quoted the following rationale for title protection provisions: “Reserved titles afford a means for consumers to identify the different types of health care providers, to distinguish the qualified from the unqualified, and to differentiate those practitioners who are regulated from those who are not.” The Court also noted that the infringement was not more than required because it only applied to the use of the word as a title, it related to commercial expression and the provision was part of a complex regulatory scheme to protect the public.

The Court imposed the injunction sought by the regulator.

Publishing Discipline Decisions Pending Appeal

by Natasha Danson
September 1, 2020

A recurring issue is whether regulators should publish a disciplinary decision where the decision is under appeal. On the one hand, publication would protect the public in respect of concerns that have been established (subject to appeal) and would enhance the transparency of the process. On the other hand, publication would harm the reputation of the practitioner, especially if the appeal were to succeed.

In Shea v The Law Society of Newfoundland and Labrador, 2020 NLSC 91, http://canlii.ca/t/j8gsl, the relevant provision around publication gave discretion to the Court, but no criteria for the Court to apply in deciding whether the disciplinary decision should be published in a local newspaper. The Court made some surprising statements, including that discipline proceedings are not as inherently open to the public as courts, and that public protection was not an issue because the conduct was in respect of the practitioner’s employer and the suspension ordered had already been served.

The Court began with the proposition that publication in a local newspaper was presumptive under the legislation. However, it ultimately decided to stay publication of the decision pending appeal because:

  • it believed the practitioner would suffer irreparable harm if there was publication and the appeal succeeded,
  • publication in a newspaper was more likely to affect the practitioner’s reputation as compared to other forms of public access such as an open hearing or providing information in response to an inquiry,
  • the lack of publication did not mean that the outcome was secret; it was still available to those who searched for it, and
  • there did not seem to be an ongoing risk to the public and deterrence of the profession did not seem to be an issue in the circumstances.

Despite this, the proceedings before the Court, including the practitioner’s name, were not protected.

This decision appears to be based on the particular facts of the case.

To view previous issues of Regulation Pro, click here.

Comments are closed.