A member of your support staff tells you confidentially that an employee or another associate in your office is making unwanted advances toward her.  Apparently, some of these advances are more than just verbal, and on occasion the person has touched the staff member inappropriately.  What do you do?

Practitioners in virtually every profession often wonder whether there is anything that they can do to reduce the odds of their clients or patients complaining about them or suing them.  A recent piece in the Wall Street Journal demonstrates that one of the most effective ways of avoiding complaints and lawsuits is simply to say “I’m sorry”.

Recent legislative initiatives by both the federal and provincial governments have put privacy issues squarely in the spot light. More than ever before, practitioners need to be concerned about respecting the confidentiality of information conveyed to them by their patients or clients.  However, a recent case involving a physiotherapy clinic may have raised the privacy bar even higher.

Committees that perform the functions of regulators are required to make decisions, and they are often obliged to write reasons for those decisions.  When a member is found to have engaged in professional misconduct by a Discipline Committee, for example, the member found to have engaged in misconduct will always want to have a reasoned decision from the Discipline Committee.

Professionals are often held responsible, both by their regulator and by the courts, not only for their own conduct but for the conduct of their employees.  However, a more difficult issue arises when professionals enter into business relationships with each other and share facilities.  Often, a question arises as to whether one professional is responsible for the acts or omissions of colleagues with whom they practice.

As professionals well know, the phrase “nobody’s perfect” applies to them as much as it applies to anyone else in the work force.  Regardless of a person’s calling, everyone makes an occasional mistake during the course of their work.  However, professionals are typically held to a much higher standard than “non-professionals”, or non-regulated employees.  A question often arises as to whether what may variously be described as an error, mistake or breach of the standard of practice of a profession always constitutes professional misconduct, meriting some form of discipline.  This issue was considered in a very recent case involving a pharmacist.

As reported in the March 2002 issue of this newsletter, the Divisional Court in Ontario recently affirmed a regulator’s right to investigate its members for, among other things, professional misconduct.  In Butterworth v. College of Veterinarians of Ontario, [2002] O.J. No. 1136, the Divisional Court held that regulators are not obliged to provide the same procedural protections to their members during the investigative phase as they must provide during the adjudicative (i.e. Discipline Committee) phase.  The basis for this principle is that investigators typically do not decide whether a member has engaged in professional misconduct but simply report the results of the investigation to the Registrar.  Therefore, some regulators have taken the position that they are under no obligation to disclose information to members during the course of an investigation, particularly when the investigation is just commencing, although many regulators disclose information to the member at some point before the conclusion of the investigation

It is common to make remarks about others in the workplace. These sorts of comments can either be casual, “water cooler” conversations or they can also be more formal, such as in the form of a memorandum or notes in a person’s employment record.  A recent case in Newfoundland demonstrates that it is important to be careful what you write in a more formal context about someone else in the workplace.

Discipline Committees have long struggled with the problem of trying to understand the level of certainty they must have before finding that a professional has engaged in professional misconduct. This problem is particularly difficult when it comes to credibility.  For example, when a client or patient says one thing and a member says another, how does the Discipline Committee decide what happened and whether the professional is guilty of professional misconduct?

A recurring issue facing practitioners is the fate of client or patient records when a practitioner either changes employment or sells a practice.  In many cases, for example, practices are sold because the vendor practitioner either retires or moves, and the purchaser of the practice would usually want to keep the vendor’s clients or patients following the purchase and sale of the practice.

As virtually all employers know, Human Rights Codes, whether provincial or federal, generally prevent employers from discriminating against employees on the basis of, among other things, disability. Over the last number of years, the meaning of “disability” has expanded to include, among other things, a wide array of both physical and mental illnesses and disorders. Employers often wonder whether they can terminate an employee’s employment in light of, and in some cases because of, an employee’s mental or physical health. While the answer to this question always depends on the facts of any given case, the Newfoundland Court of Appeal recently affirmed the principle that employers can indeed terminate the services of an employee even though the employee is terminated at least in part because of their “disability”. 

For many years, practitioners in different disciplines assumed that they were protected from liability if they merely lived up to the standard of practice in their own community or similar localities. This has historically been known as “the locality rule”.  It was derived from an early Supreme Court of Canada decision in which the court set out the following test to determine whether a practitioner falls below the standard of practice:

Pendant bien des années, les praticiens de diverses disciplines ont supposé qu’ils n’encouraient aucune responsabilité s’ils se contentaient de satisfaire aux normes de leur profession dans leur collectivité ou dans des localités similaires. À travers l’histoire, cette façon de penser a été appelée la « règle dite du milieu ». Elle provient d’une décision antérieure rendue par la Cour suprême du Canada, dans laquelle elle établit le test suivant afin de déterminer si un praticien est en dessous de la norme de sa profession :  

Most people are familiar with the old adage: a person who acts as their own lawyer has a fool for a client.  However, in light of the costs of many legal services, practitioners often decide not to retain counsel, sometimes when they should. The difficulty is that it may not be obvious when legal advice is required.

Practitioners often wonder whether there is any “statute of limitations” that might apply to complaints to their regulators or to civil actions that clients or patients may wish to initiate.  The law in this area is about to change, at least in respect of civil actions, and practitioners should be aware of these reforms.

Enough has been written about Severe Acute Respiratory Symptom (‘SARS") to make everyone aware of the real health risks faced by everyone. However, it is important for professionals, whether they are employers, employees or independent practitioners, to appreciate the potential legal implications of SARS on their practices.

One of the more common problems that both practitioners and regulators face occurs when practitioners change their practice location. Two main issues of concern are, first, whether the departing professional can take client contact information and client files or charts with them and, second, what if any contact can and should the departing professional have with clients.

When a complaint is made against a professional, either to a person’s regulator or in a civil proceeding (and occasionally even in a criminal proceeding), professionals are often very surprised at the complainant’s version of events. The person complained against ("the member") will often remember events very differently from the complainant. There are many reasons for this: many people recall the same event differently, people put a different emphasis on what takes place and, in fact, some people simply exaggerate, and even lie. Regulators and courts are often asked to resolve a dispute where there are different versions of the same event, and people often wonder how these disputes are resolved.

As most professionals know, regulators have considerable authority to regulate their members. Professionals often wonder what rights they have when their regulator makes inquiries, inspects their practices, or investigates allegations of misconduct, incompetence or incapacity.

Regulators perform many functions. They scrutinize the qualifications of members and register them within a profession, they maintain quality assurance once members become registered, they inspect practices and, if necessary, they discipline for misconduct or incompetence. Occasionally, when discipline procedures are taken against a member, members will try to justify their conduct on the basis of their prior contact with the regulator. For example, members may rely on practice advisory services, comments of inspectors and perhaps even more informal contact. The Ontario Divisional Court recently considered a case in which the defence was based in part on the regulator’s prior knowledge of the alleged misconduct.

The Supreme Court of Canada recently decided that, generally speaking, regulators cannot be held responsible for losses caused by professionals regulated by them. However, a recent case in Quebec suggests that regulators may not have as much protection as the Supreme Court cases suggest. In Finney v. Barreau du Quebec, the Quebec Court of Appeal ordered the Quebec Law Society to pay $25,000 in damages to a Montreal schoolteacher for failing to adequately regulate a lawyer.

Much has been written about the duty to disclose material risks of advice or procedures that professionals suggest to their patients or clients. These cases usually turn on what risks ought to be disclosed and whether the patient or client would have proceeded with the advice or procedure had these risks been disclosed. However, the Alberta Court of Appeal recently considered a rather unique situation where the suggestion was that a physician ought to have disclosed information about his own physical status.

Tout organisme a besoin de personnel compétent et qualifié pour fonctionner. Qu’il s’agisse d’un organisme de réglementation qui doit s’assurer de conserver des employés consciencieux, ou des professionnels qui embauchent leurs propres employés, il est important que l’employeur et l’employé comprennent leurs obligations mutuelles. Il est donc quelque peu surprenant de constater que, bien souvent, ces derniers ne consacrent pas assez de temps et d’attention à établir de façon formelle une relation mutuellement avantageuse.  

Every organization requires competent and skilled staff in order to function. Whether it is a regulator ensuring that they retain conscientious employees, or professionals hiring their own staff, it is important that both the employer and the employee understand their mutual obligations. It is therefore somewhat surprising how often both employers and employees do not devote sufficient time and attention to formalizing their relationships in a mutually advantageous manner.

A recurring problem for many professionals is what to do when they are asked by employers or colleagues to engage in conduct or practices that the professional believes conflict with their obligations to their profession and, in particular, to their regulator. Professionals are sometimes concerned about engaging in professional misconduct, such as falling below the standards of their profession, if they follow directions from their employer. On the other hand, if they refuse to follow their employer’s instructions, they are concerned that they will be disciplined, or that their employment will be terminated.

Un problème que bien des professionnels rencontrent souvent est de savoir ce qu’ils doivent faire quand leurs employeurs ou leurs collègues leur demandent d’adopter une conduite ou une pratique qui, selon eux, entre en conflit avec leurs obligations envers la profession et, en particulier, envers leur organisme de réglementation. En respectant les directives de leur employeur, les professionnels craignent parfois de commettre une faute professionnelle, comme pratiquer en deçà des normes prévues pour la profession. Par contre, s’ils refusent d’écouter leurs employeurs, ils sont préoccupés par le fait de faire l’objet de mesures disciplinaires ou d’être congédiés.

Most practitioners are aware that the provincial government has introduced new draft privacy legislation, the Privacy of Personal Information Act ("PPIA"), under the authority of the Provincial Ministry of Consumer and Business Services. The legislation is still in the draft stage, although it appears that the government will want to have legislation in place within the next few months in light of deadlines imposed by federal legislation.

Professionals defending allegations of professional misconduct will sometimes believe, validly or not, that regulators are biased against them. These sorts of claims are often made at Discipline Committee hearings. For whatever reason, a member may allege that one or any number of panel members are biased against him or her. A recent case affirms the principle that it is in fact quite difficult to force a decision-maker to "recuse" himself or herself when allegations of bias are made. This should make members of Discipline Committees less reluctant to pose questions of counsel and, in an appropriate case, witnesses.

Previous issues of this Newsletter discussed the enforceability and use of non-solicitation and non-competition agreements: see the May, 2001 and December, 2001 Issues. A recent court decision recently held that these sorts of agreements can be enforced against former employees even when they are wrongfully dismissed.

A recent decision of the Ontario Court of Appeal concerning sexual harassment in the workplace will be of interest to both regulators and practitioners because, consistent with recent trends in this area, the Court of Appeal had broadened the definition of sexual harassment.

Au cours des dernières années, un contrôle accru s’exerce sur la façon dont les organismes de réglementation enquêtent sur leurs membres, en particulier lorsqu’il s’agit d’allégations de faute professionnelle. Les demandes des professionnels (et de leur avocat) pendant le processus d’enquête sont de plus en plus nombreuses, et les organismes répondent à ces demandes de diverses façons.

Il n’est pas rare que des professionnels soient poursuivis pour leurs activités à titre de professionnels. Toutefois, chez nos voisins du sud, des esprits inventifs considèrent la chose d’un autre angle. Même si le nombre demeure faible, un nombre croissant de témoins experts sont poursuivis pour ce qu’ils ont prétendument fait, ou omis de faire, en tant que témoins experts.

Comme la plupart des professionnels le savent, les mesures à prendre à l’égard des mauvais traitements d’ordre sexuel suscitent un débat considérable, en particulier depuis une dizaine d’années. La plupart des organismes de réglementation ont adopté une politique de tolérance nulle, soit volontairement ou par règlement, à savoir que les praticiens perdent leur droit d’exercice automatiquement s’il est prouvé qu’ils se sont engagés dans des circonstances graves de mauvais traitement d’ordre sexuel.