In recent years, procurement of goods and services has become somewhat more confusing and technical. This is likely due to the fact that more organizations are now subject to formal procurement rules and unsuccessful bidders are suddenly, and vigorously, challenging the results.

In April’s edition of Grey Areas we discussed the handling of challenges under the Canadian Charter of Rights and Freedoms by administrative tribunals. A major theme of that article was that tribunals usually are required to rule on Charter issues that come before them. Earlier this month the Supreme Court of Canada expanded the role of tribunals in Charter cases even further.

The decision of the Ontario Court of Appeal in Law Society of Upper Canada v. Neinstein, 2010 ONCA 193 is relevant for regulators for a couple of reasons. It has already been the subject of comment.[1] Neinstein provides guidance on two recurring and difficult issues: adequacy of reasons for decision and the appearance of bias based on tribunal member misconduct outside of the hearing.

That was the title of the April 22, 2010 panel presentation hosted by the Federation of Health Regulatory Colleges of Ontario. Chaired by Brian Gover, the panel consisted of Janet Minor, from the Attorney General’s constitutional office, and two senior lawyers in private practice, Peter Griffin and Scott Hutchison.

On January 1, 2010, the Rules of Civil Procedure of Ontario were significantly amended. Two of those amendments may be of interest to regulators.

With the increased prevalence of professional corporations, regulators are often concerned that their members may be able to avoid accountability by hiding behind their corporate structures. Sometimes the corporation may face consequences but the member may not. And sometimes even the corporation was not held accountable because no one could prove that a directing mind of the corporation authorized the misconduct

Perhaps the most debated aspect of governance is balancing the policy making and oversight role of the Board against the management and operational function of staff. Some of the debate is philosophical (e.g., how can the Board exercise effective monitoring and direction over an organization without entering into operations?). But most of the debate is about the characterization of an action as oversight vs. operational.

The Board or Council of a regulator acts in the capacity of the board of directors of a non-profit corporation. As such, each Board or Council member has a fiduciary duty to the organization and its public interest mandate.

Governance is hot. Most scandals in the corporate or government world are characterized as examples of failed governance. Most reviews of regulatory bodies include numerous recommendations on improving governance. This article deals with just one aspect of governance: managing the key regulatory relationships.

Earlier articles of this newsletter have observed that Canada is one of the few remaining jurisdictions in the world still using the self-regulation model for professions and industries (see: www.sml-law.com, Grey Areas, issue No. 126). However, recent events in Ontario raise questions about the commitment to self-regulation in Ontario.

The Accessibility for Ontarians with Disabilities Act, 2005 (AODA) received Royal Assent and became law in this province on June 13, 2005.[1] It has been almost four years since the AODA was enacted and, perhaps because of this, there has been little discussion in the regulatory community of the law’s impact since that time; at least until recently. There are, however, some pending deadlines and obligations that regulators should be aware of and may want to consider as part of their long-term operational planning.

Set out below are brief summaries of a number of recent cases that will be of interest to professional regulators.

Many members of regulatory hearing panels are quite cautious about actively participating in hearings. However, this is often done more out of the natural hesitation that comes from participating in an unfamiliar process than true appreciation of their limited role. Particularly where the issues relate to professional values or standards of practice, panel members may be tempted to intervene and ensure that counsel, who do not understand those issues, get it right.

It is generally accepted that a regulator should disclose the “fruits of its investigation” in discipline matters. Disclosure can include information that is relevant only to the credibility of a witness. This raises the question of when regulators should disclose information about possible or actual misconduct by a potential witness at the discipline hearing. For example, if the investigator has been found to have acted inappropriately in another case, should that be disclosed? Or, what if a fact witness has a prior discipline history?

Professions can be competitive. We all know stories of disputes between professions that have had to be refereed by government. Sometimes they have even gone to court.

For the past three decades, at least, there has been significant debate as to how compelling the evidence must be to make a finding of serious professional misconduct. While there has generally been consensus in Ontario, at least, that the criminal standard of proof (beyond a reasonable doubt) did not apply; that is about where the agreement ended.

Can an investigator compel a practitioner to undergo an interview? Can the investigator require a practitioner to allow the investigator to watch the practitioner in action? On September 26, 2008, the Divisional Court of Ontario said yes in Gore v. College of Physicians and Surgeons of Ontario.

As of September 1, 2008, the Legal Services Board will be appointed for England and Wales. The Board will be the single independent oversight regulator of legal servicesin England . What is unique about the Board is that it is not wholly or even substantially selected by the legal profession. It is entirely appointed by the government.

As of July 1, 2008, the human rights regime has been significantly altered. The changes will make it easier for practitioners and others to challenge regulators in human rights matters.

If there has been one dominant trend in the judicial review of tribunal decisions over the past five years, it has been about the need for tribunals to give adequate reasons. This trend has been obvious to even casual readers of this newsletter.

Perhaps one of the most talked about discipline cases in recent memory is not going to the Supreme Court of Canada. This January’s Saskatchewan Court of Appeal decision in Whatcott v. Saskatchewan Association of Licensed Practical Nurses, 2008 SKCA 6 has generated widespread discussion across the country. At a recent meeting of regulators in Newfoundland, many were already familiar with the case and discussed its possible appeal to the Supreme Court of Canada. However, on May 29, 2008, that Court declined to hear the appeal.

A necessary component of effective professional regulation is appreciating that courts will scrutinize one’s actions. Regulators need to know on what basis a court will review its decisions. This will enable the regulator to make appropriate choices and to explain them appropriately.

Practitioners often wonder why it seems that the rest of the world is receiving increased privacy of their personal information while their privacy is being reduced. The tendency is for regulators to retain information about their members for longer periods of time and to put increasing amounts of those details in the public register. Most public registers are now finding their way to the websites of regulators.

What is the role of the complainant in the complaints and discipline process? Regulators have been increasingly enhancing the complainant’s role ensuring that they understand the process so that they can participate effectively. More and more regulators have been providing disclosure of some of the materials arising from the investigation in order to obtain information from the complainant and to involve them.

The Ontario government is in the process of reforming the Corporations Act. The Corporations Act applies to non-profit corporations in Ontario. Some regulators are incorporated under that statute. Even those that are not often look to that Act for guidance in corporate law and governance matters. The Corporations Act (CA) has not seen major reform for decades.

One frequent difficulty for complaints committees is dealing appropriately with complaints that raise concerns that are troubling but do not appear to warrant a referral to discipline. Indeed, many regulators try to avoid using the discipline process for minor behavioural (e.g., rudeness) or practice concerns (e.g., questionable exercises of professional judgment). Discipline tends to be reserved for serious matters of dishonesty, breach of trust or intractable incompetence.

Informed consent might be one of those principles that is honoured more in its breach than in its practice. A fundamental concept for all professions, client consent is essential to the professional relationship. Without it the trust necessary for the professional relationship to work is missing.

Professional tribunals are often notorious for taking a long time to give reasons for their decisions. There are a number of explanations for this including:

“Expert Witness: Friend of the Court or Hired Gun” was the title of presentation put on last month for professional regulators by the Federation of Health Regulatory Colleges of Ontario. Previously Grey Areas reviewed the duty of neutrality for expert witnesses. In this issue we discuss how expert evidence is managed at a hearing.

“Expert Witness: Friend of the Court or Hired Gun” was the title of presentation put on for professional regulators on April 26, 2007. The title reflected the main theme of the evening. To be effective, expert witnesses must be neutral, objective and fair.

Consider the organization you work for. Does it do all of the following:

1.      have a written policy setting out specific mandatory safeguards for ensuring privacy in all contexts where personal information is used;

2.      leave no discretion to individuals as to the specific minimum safeguards needed to protect information on all mobile computing devices (like laptops, blackberries, flash drives);

3.      require that personal information in all such devices be encrypted; and

4.     have a monitoring program to ensure that there is compliance with the organization’s privacy policy?

There was a time when some regulators believed that if there were reasonable grounds to believe that a member had engaged in professional misconduct, the allegations had to be fully investigated and referred to a discipline hearing. Few regulators still hold that view today, but many are uncomfortable with the concept of how to exercise its discretion not to investigate or refer allegations of professional misconduct.

Every so often a case comes along that fundamentally alters one’s approach to regulation. Siadat v. Ontario College of Teachers, 2007 CanLII 253 (ON S.C.D.C.) is probably such a case. As a result, many regulators will probably think of their registration requirements (and their human rights obligations) differently.

Most regulators have experienced situations where a member facing inquiry or discipline has no lawyer. As ironic as it may sound, dealing with an unrepresented member often makes the regulator’s position more challenging. The member often does not fully understand the process. Great effort is needed to educate him or her about what will happen and the expectations of the member. The duty of fairness to the member is heightened.

It is well recognized that employers and regulators cannot discriminate on the basis of disability. Many employers and regulators even choose not to ask any questions about disabilities in the hiring or registration process for fear of appearing to discriminate on that basis.

On May 19, 2006, the Minister of Health and Long Term Care released the report entitled New Directions written by his advisory Council. The Health Professions Regulatory Advisory Council (HPRAC) report recommends comprehensive changes to the statute that governs the 21 health regulatory Colleges.

Due to a recent decision of the Supreme Court of Canada, regulators may have to educate practitioners about their legal protections when making a mandatory report.

Last week the Supreme Court of Canada issued a rare decision dealing with professional regulation matters that were not related to discipline: Zenner v. Prince Edward Island College of Optometrists, 2005 SCC 77. The case provides important guidance on registration and quality assurance processes.

In September of 2004 Mr. Justice George M. Thomson was commissioned to review and make recommendations on the registration appeals process for self-regulating professions in Ontario. His final report was delivered earlier this month. The report did not confine itself to registration appeals matters and looked at a number of pre-appeal registration matters as well. While the report is too long to summarize in this article, the following are some of the more interesting recommendations.

The Canadian Judicial Council (CJC) consists of the leaders of the superior courts across Canada. It is best known for dealing with complaints about the conduct of judges. However, it also engages in policy development “to promote efficiency and uniformity, and to improve the quality of judicial service” across Canada.

Can you imagine sitting through a hearing that lasts 66 days? The Discipline Committee in the case of Sigesmund v. Royal College of Dental Surgeons of Ontario, 2005 CanLII 27325 (ON S.C.D.C.) did just that. The 66 days were spread over a period of four years. Of the hearing days, 44 were devoted to hearing the evidence of the regulator’s expert witness and 16 days were spent hearing the defence expert.

The May 2005 Report of the Tribunals Task Force of the Law Society of Upper Canada is important reading for regulators. It provides a current consideration of the policy issues involved in self-regulating professions in an age of heightened accountability. Others have already discussed the major recommendations of that Report (See Administrative Law and Practice Points at: www.sml-law.com/publications/newsletters-detail.asp?DocID=5320.) This article will examine some of the less prominent recommendations that deserve debate.

Professional regulators often make orders or enter in agreements to resolve concerns about a member’s conduct. Sometimes these are called sanctions and sometimes even penalties (although this is discouraged because this language reinforces the misconception that professional regulation is quasi-criminal in nature). These orders or agreements can arise during the screening phase of an investigation (e.g., a complaints or investigation committee disposition), discipline or professional conduct hearings, notices of proposals to restrict registration or even in quality assurance processes.

Last month we noted that earlier this spring the Attorney General of Ontario put its Crown Policy Manual on its website. The Manual is the overriding guiding document used by Crown Attorneys in their prosecution of criminal cases. While professional regulation is not criminal in nature, some aspects of the Crown Policy Manual may provide useful ideas for regulators of professions.

Earlier this spring the Attorney General of Ontario put its Crown Policy Manual on its website. The Manual is the overriding guiding document used by Crown Attorneys in their prosecution of criminal cases. While regulators steadfastly resist the notion that its enforcement proceedings are criminal in nature, the courts have frequently made analogies to the criminal process in considering the principles that apply to some aspects of enforcement proceedings. Reviewing this document can identify some of the similarities and differences between professional regulators and our criminal justice system.

On April 25, 2005 the Honourable Mr. Justice LeSage, Q.C., former Chief Justice of the Superior Court of Ontario released his report on the regulation of police in Ontario. The media focused on the politically sensitive matter of whether Ontario should return to the civilian regulation of police (he said yes). However, there are a number of other proposals he made that may be of interest to other regulators.

The enabling legislation of regulators is constantly being amended. Often questions arise over whether members can be held accountable for their conduct prior to the legislation being amended. This question is particularly relevant where it is not practical to use the old legislation to take action.

It is tempting for a practitioner facing a proceeding to challenge the legitimacy or fairness of it in court beforehand. Such a challenge can avoid a long hearing and the publicity that might accompany it. It can help preserve the practitioner’s reputation that he or she believes might be damaged if the hearing proceeds to its conclusion. It is not uncommon for a practitioner facing a regulatory proceeding to feel that he or she was not treated with complete fairness. In some cases there may be some tactical reasons for trying to put the regulator on trial first: the best defence is a good offence.

The most fundamental concept in privacy is “personal information”. Only personal information is protected. The definition of personal information is key to applying the legislation. That is why definitions of that term in privacy statutes tend to be fairly broad. In the Personal Information Protection and Electronic Documents Act (PIPEDA), personal information is defined as follows:

"personal information" means information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization.

Since regulators act in the public interest there is an expectation that there be a certain degree of openness and transparency in their processes. For example, for many years now most Discipline Committees have held their hearings in public even though this would reveal allegations of wrongdoing against a practitioner before any finding has been made. The rationale is that these very serious proceedings require public scrutiny to help ensure that they serve the public interest. In addition, before a case is referred to discipline there has been a screening of the allegations to ensure that they warrant a hearing and that there is evidence in support of them.

Occasionally one reads a court case and wonders about the full story. Manitoba Chiropractors Assn. v. Alevizos, 2003 MBCA 80 is such a case. Ostensibly the case was decided on the point that a regulator cannot seek judicial review against itself without statutory authority. However, the really interesting issue is the underlying conduct leading to the hearing.

Regulators want to achieve compliance. To do so regulators have a number of tools at their disposal. One of the more underutilized tools possessed by many regulators is to ask the courts for an injunction (also called a mandatory compliance order or a restraining order). Given the power of this tool and some of its procedural advantages, one would think that it would be used more often.

Tribunals generally give reasons for their decisions. Sometimes this is required by their enabling statute. On other occasions tribunals give reasons automatically out of a sense of fairness to the parties. Regulatory decisions that, in the past, did not usually involve the giving of reasons are now often accompanied by reasons (e.g., registration decisions, quality assurance rulings). In addition, new privacy obligations often require the giving of reasons for many decisions, such as refusing access to a record or refusing to make a “correction” requested by an individual.

Regulators often receive legal advice. Like most clients, they frequently want to receive their legal advice in private. If the legal advice were disclosed, regulators might be hesitant to ask the question for fear that simply asking it might be misinterpreted or make the regulator look bad. For example, how do you ask the question “Can we be sued for this mistake?” publicly?

A common criticism of regulators is that they take too long to act. The June 10, 2004 Supreme Court of Canada decision of Finney v. Barreau du Québec, 2004 SCC 36 indicates that regulators might be held liable for damages when they take too long to act in an urgent case. A delay of just one year might attract liability in some circumstances.

It has long been suspected that the courts would “interpret” the federal privacy statute to reduce the impact of its broad language. Indeed, if some of the provisions of the Personal Information Protection and Electronic Documents Act (PIPEDA) were interpreted literally a number of absurdities would result. With the application of PIPEDA to the provincial private sector this year, it was only a matter of time until the judicial interpretations began.

Most regulators publish various forms of standards and guidelines for their members. In the March 2004 issue of Grey Areas we reviewed the legal status of such documents. In this issue we identify the various categories of such publications. The categorization is significant because it affects the content of the publication and the types of language that should be used.

Most regulators publish informal documents for their members. These documents can be called standards of practice, guidelines, codes, practice parameters, or position statements. Typically, these informal documents provide assistance to members in areas of practice, ethics, regulator expectations or even legal developments.

For most regulators it is relatively easy to assess whether an applicant for registration meets the educational, examination and experience requirements. Even where those issues are complex, such as for some non-Canadian trained applicants, the regulator generally has the expertise to do the analysis. More difficult for regulators is where an applicant has previously engaged in unprofessional or dishonest behaviour but now wishes registration. How does the regulator assess such issues?

In the past week two major papers ran editorials about the regulation of professions. These editorials illustrate the awkward relationship between the media and professional regulators. Both purport to act in the public interest. Both have a “watch dog” function (even if the media’s is self-appointed). Both the media and regulators have valuable roles to play in safeguarding and protecting our complex modern society.

The duty of a practitioner to warn clients and third parties of risks has evolved over the past three decades. It may soon evolve, at least in some professions, to a duty to warn clients, affected third parties and the regulator of any significant errors made by the practitioner.

Ordinarily, professional regulation and industry self-management is a provincial responsibility. It is rare for the federal government to have direct involvement in these matters. However, in recent weeks, the feds have become involved in two initiatives that will have significance, directly or indirectly, for many regulators. The first relates to the impact of the Personal Information Protection and Electronic Documents Act on investigations by regulators. The second relates to the setting of entry-to-practice standards by regulatory bodies.

Habituellement, la réglementation des professions et l’autogestion de l’industrie sont de responsabilité provinciale. Il est rare que le gouvernement fédéral participe directement à ces questions. Toutefois, au cours des dernières semaines, des représentants fédéraux ont pris part à deux initiatives qui auront d’importantes répercussions, directes ou indirectes, sur bon nombre d’organismes de réglementation. La première a trait à la Loi sur la protection des renseignements personnels et les documents électroniques et à son incidence sur les enquêtes menées par les organismes de réglementation. La deuxième porte sur l’établissement de critères d’accès à la profession par les organismes de réglementation.

Sometimes when a court feels it is not hearing representations from an important perspective on an issue, it will invite others to participate in the hearing. When this request is formally made, the person is often said to act as a “friend” of the court. This friend will make submissions from the perspective that is missing from the case. In light of two recent cases, regulators can be expected to be invited to become friends of the court more often in the future. In the first case, this participation makes sense. However, in the second case, the request raises questions as to whether the involvement is part of the proper role of the regulator.

One of the greatest resources for information for regulators is the internet. A number of websites are so useful that they should be bookmarked by everyone involved in the regulation of a profession or an industry. While the websites discussed in this article are directed towards Ontario regulators, many will be useful for regulators outside of Ontario or will point to corresponding websites within their own jurisdiction.

One of the more significant requirements of the new privacy legislation is the need to safeguard personal information. The Personal Information Protection and Electronic Documents Act (PIPEDA), which takes effect on January 1, 2004, requires organizations to secure personal information from unauthorized access, disclosure, use or tampering.

C’est un truisme de dire que les organismes de réglementation protègent l’intérêt public. Habituellement, un organisme de réglementation professionnel a pour mandat de réglementer la qualité et l’aspect éthique de la pratique de la profession afin de servir et de protéger l’intérêt public. La difficulté réside dans l’application de ce concept général aux décisions quotidiennes de l’organisme.  

It is a motherhood statement that regulators protect the public interest. A typical mandate for a professional regulator is that it regulates the quality and ethical aspects of the practice of the profession so that the public interest is served and protected. The difficulty is in applying that general concept to the everyday decisions of the organization.

C’est bien connu, les autorités de réglementation protègent l’intérêt public. Un mandat typique pour un organisme professionnel de réglementation consiste à régir les aspects qualitatifs et déontologiques de l’exercice de la profession afin d’assurer et de protéger l’intérêt public. La difficulté réside dans l’application de ce concept aux décisions courantes de l’organisation.

One of the most controversial aspects of the sexual abuse provisions for health professionals in Ontario is the mandatory revocation of registration for those who engage in frank sexual acts with patients. In fact, at least one Discipline Committee declined to order revocation on the basis that it was “constitutionally inoperative” on the facts of that case. Also, in A.B. v. College of Physicians and Surgeons of Prince Edward Island (2001), 204 D.L.R. (4th) 750, the P.E.I. Supreme Court found that the mandatory revocation provision was constitutionally over-inclusive.

Over the past few years, there has been a lot of confusion about privacy legislation. Who does it apply to? When is it really coming? How much impact will it have? Busy practitioners need to know what privacy legislation means for them. While there remains a fair degree of uncertainty, the outlines of what is going to happen are now becoming clearer.

It is not very often that professional regulators have decisions from the Supreme Court of Canada to guide them. Earlier this month, the Supreme Court issued two companion decisions dealing with the amount of deference that appellate courts ought to give to decisions of discipline committees. While regulators will take comfort from the Supreme Court’s general approach of deference to disciplinary decisions, the most significant point is the importance of the reasons for decision of tribunals.

Having to adjourn hearings at the last minute is disruptive and costly for regulators. The tribunal members have booked time from their busy practices or other involvements, often at significant personal expense. Witnesses have often prepared themselves mentally and emotionally for testifying; it may be difficult for them to abruptly discontinue the process and then gear up again. Travel expenses, per diems, space rental fees, court reporter cancellation fees, and wasted legal preparation time expenses can add up to significant amounts. All of this creates an organizational bias against consenting to last minute adjournments.

Il n’arrive pas souvent que des organismes de réglementation de professions disposent de décisions de la Cour suprême du Canada pour les guider. Plus tôt ce mois-ci, la Cour suprême a rendu deux décisions connexes portant sur la déférence que les cours d’appel devraient accorder aux décisions de comités de discipline. Bien que les organismes de réglementation apprécieront l’opinion de la Cour suprême concernant la déférence générale qui devrait être accordée aux décisions de comités de discipline, le point crucial ici est l’importance des motifs de la décision des tribunaux.

In a true story reported in the media in late February, a patient had a mammogram and pelvic examination. The laboratory in Ottawa forwarded the reports to the treating practitioner. A few weeks later, a copy of the reports showed up on the back of flyers distributed in Toronto for a real estate company. How did it happen? The investigation to date suggests that the hospital forwarded the results to a law firm in Toronto at the request of the patient. Paper picked up from an office building in Toronto was sold to a printer who used the scrap paper for a test run of the flyers. The test run was shipped with the rest of the flyers and distributed to the public. The Ontario Information and Privacy Commissioner said an investigation could not be initiated because the federal Privacy Act does not yet apply. However, the situation would be very different in 2004.

Voici une histoire vraie qui a paru dans les médias à la fin de février. Une patiente a subi une mammographie et un examen pelvien. Le laboratoire à Ottawa a envoyé le rapport des tests au praticien traitant. Quelques semaines plus tard, on a retrouvé un exemplaire du rapport imprimé à l’endos de circulaires distribuées à Toronto pour une société immobilière. Comment cela s’est-il produit? L’enquête réalisée jusqu’à date suggère que l’hôpital a envoyé les résultats à un cabinet d’avocats de Toronto à la demande de la patiente. Ensuite, du papier a été ramassé dans un édifice à bureaux de Toronto pour être vendu à un imprimeur qui l’a utilisé comme brouillon pour réaliser un essai d’impression des circulaires. Les brouillons ont été envoyés avec le reste des circulaires et distribués à la population. Le commissaire à l’information et à la protection de la vie privée de l’Ontario[1]a déclaré qu’une enquête ne pouvait pas être réalisée parce que la loi fédérale sur la vie privée n’était pas encore en vigueur. Cette situation serait toutefois très différente en 2004.

Perhaps one of the most significant legal changes affecting the regulation of professions and industries is the imminent arrival of privacy of personal information legislation. It has been known for some time that a new law regulating the collection, use and disclosure of personal information would take effect on January 1, 2004. What is not known is which law it would be and what exactly it would require.

The Toronto Police Services Board requested an independent audit of the public complaints process of the Toronto Police Services by the City Auditor for Toronto. The auditor’s report was released in August of 2002. In this article, we examine the findings and recommendations on the actual investigations of public complaints.

There are few areas of professional regulation as difficult and controversial as that of police services. The pressure to set aside self-regulation for the handling of complaints is probably greatest for the police profession. Perhaps in recognition of that reality, the Toronto Police Services Board requested an independent audit of the public complaints process of the Toronto Police Services by the City Auditor for Toronto. The auditor’s report was released in August of 2002, although it received the greatest media notice when discussed at the Police Services Board meeting in November.

Most regulators have great difficulty in balancing the need to ensure that all applicants for registration or licensure demonstrate entry-level competence and facilitating equitable access to foreign trained applicants. There is the practical problem that regulators usually understand the local educational programs but are unfamiliar with most foreign training programs. Most accreditation bodies are only national or North American in scope. More difficult is the fact that the educational approach taken in some foreign training programs is completely different than that taken in Canada, making comparisons difficult.

Discipline cases have often been compared to criminal prosecutions where technical defences often seem to be successful, at least if the media reports are to be believed. While courts do scrutinize discipline proceedings carefully and will reverse a decision where it appears an injustice has occurred, there still remains a high degree of deference for the self-regulatory process. The decision in Krop v. College of Physicians and Surgeons of Ontario (unreported, Jan. 30, 2002, Ont.Div.Ct.) illustrates this point.

The last issue of Grey Areas reviewed reforms by the Institute of Chartered Accountants of Ontario (ICAO) to its definition of professional responsibility and the structure of its discipline process. This issue reviews the reforms of the ICAO as to how complaints are investigated and prosecuted.

Almost a year and a half before the Enron scandal erupted, the Institute of Chartered Accountants of Ontario (ICAO) initiated a major review of its disciplinary process. It released the results of that review in May of this year.

Two quite recent decisions deal with the initiation of proceedings. It is not surprising that members often challenge the initiation of proceedings because, if the commencement of the proceedings was faulty, everything that occurs afterwards is invalid. In both cases, the member was unsuccessful.

“Transparency” is one of the leading buzzwords in regulation today. However, regulators who treat it as simply a meaningless term may be in for a surprise.