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REGULATION PRO

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

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?

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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

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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 

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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.

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