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Compromised Registration Examinations
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.
Criminal Search Warrants for a Regulator’s Files
by Erica Richler
August 25, 2020
It is generally accepted that the confidentiality provisions for provincial regulators are subject to federal criminal search warrant powers. Federal law is paramount over inconsistent provincial law. However, the case of Boisvert c. Brisson, 2020 QCCA 906, http://canlii.ca/t/j8m1r indicates that this is not necessarily the end of the matter.
In that case a nurse was disciplined for sexual abuse of vulnerable patients in a psychiatric facility. The patients communicated with the regulator confidentially. Two of the patients went to the police. Four did not. The police obtained a search warrant for the regulator’s files in order to conduct a criminal investigation. The regulator challenged the search warrant arguing that the protection afforded to the public in being able to remove the nurse from practice would be jeopardized if patients could not choose whether or not to participate in the criminal process. The patients might then not be willing to participate in the regulatory process.
The Court agreed that on a case by case basis, such warrants could be quashed because the privilege attached to the regulatory process outweighed the benefits to society of allowing the criminal process to proceed. Applying what lawyers call the “Wigmore test”, the Court protected the regulator’s files in this case.
Acknowledging the Apparent
by Rebecca Durcan
August 18, 2020
Regulators always need to be, and appear to be, fair. Regulators need the confidence of registrants in order to discharge their mandate to serve and protect the public interest. When a regulator detects that a registrant has not been treated fairly, it needs to rectify that concern. This occurred in Shamess v College of Physicians and Surgeons of Ontario, 2020 ONSC 4108, http://canlii.ca/t/j8k2z. The practitioner was alleged to have “engaged in inappropriate sexual and physical contact with a patient and that he made inappropriate comments to the patient.” The discipline panel found the practitioner’s “evidence of what occurred during the examination at issue was credible, while the patient’s evidence was not credible.” So those allegations were not proved. However, the panel went on to make a finding that the practitioner “should have conducted the examination in a manner that had more regard for the patient’s privacy concerns. These allegations were neither set out in the Notice of Hearing nor raised at the hearing.”
The practitioner appealed on the basis that this outcome was procedurally unfair because he had not been given notice of this “theory of liability” and had no opportunity to present a defence to it. The regulator agreed. As did the Court. The finding and penalty was set aside. However, no costs were awarded against the regulator, on agreement, because of the regulator’s acknowledgment of the apparent.
A Rare Case of Excessive Delay
by Natasha Danson
August 11, 2020
While excessive delay applications in the criminal process succeed with some frequency, that is not the case in regulatory law. Likely this reflects the courts’ recognition that regulatory proceedings are intended to protect the public from harm. This hesitancy is supported by the decision of the Supreme Court of Canada in Blencoe v British Columbia (Human Rights Commission),  2 SCR 307, http://canlii.ca/t/525t which held that not only must the delay be inordinate, it must also offend the community’s sense of fairness.
In Financial and Consumer Services Commission v Emond et al., 2020 NBCA 42, http://canlii.ca/t/j8bl4, there had been a delay of ten years. At the six year mark the Court determined that the delay had not been excessive, in part because most of it had been generated by one of the individual respondents. However, the subsequent four year delay was another matter. A full year of the delay was caused by the tribunal’s inability to find a French-speaking tribunal member. Additional delay was caused by the tribunal’s erroneous self-initiated concern about its own loss of jurisdiction. The Court said:
While there was and likely remains public interest in having the allegations determined on the merits, that interest is now outweighed by the offence caused to the community’s sense of fairness in allowing the prejudice to be perpetuated because the Tribunal was unable to, for almost a year, constitute a panel of French-speaking members to hear the matter and because the Tribunal itself again raised an issue and determined it in a manner this Court finds to be in error.
Delays caused by a tribunal will weigh heavily in such cases of extensive delay.
No Pandemic Exceptions
by Julie Maciura
August 6, 2020
During the early months of the pandemic the New Brunswick regulator for pharmacists felt the urgent need to be able to waive some of its registration requirements to ensure that there were enough pharmacists to meet the province’s health care demands. However, their registration requirements were set out in mandatory language without the ability to exempt them. In New Brunswick College of Pharmacists v Province of New Brunswick, 2020 NBQB 92, <http://canlii.ca/t/j8hzz>, the regulator asked the Court to use its inherent jurisdiction to enable the regulator to register applicants who did not meet all of the compulsory requirements. The government consented to the application. However, the Court declined the request. The Court viewed its role as interpreting the law, including ensuring that laws comply with the Constitution of Canada. The Court did not see its role as creating law in a manner that was inconsistent with laws already enacted by the Legislature or created by the government (e.g., in a regulation). The Court suggested that the regulator approach the government to enact amending regulations on an urgent basis.
This case illustrates the importance of the Legislature and regulators considering exceptional circumstances when making legislation.
Warning Letters are Not Subject to Judicial Review
by Erica Richler
August 4, 2020
Regulators often warn unregistered persons that they appear to be practising illegally or using an illegal title. These are sometimes called “cease and desist” letters. Can the recipient of a cease and desist letter seek judicial review of such a warning letter? The case of Momentum Decisive Solutions Canada Inc. v. Travel Industry Council of Ontario, 2020 ONSC 3392, http://canlii.ca/t/j808h says no. Momentum disputed the regulator’s assertion in a warning letter that it was acting as a travel agent. However, the Divisional Court determined that such a warning letter was not a statutory power of decision and thus was not subject to judicial review. The regulator had to initiate court proceedings before any consequences would flow to Momentum.
The Court did not accept that judicial review was the appropriate route to obtain clarification as to whether Momentum was acting legally or not; the Divisional Court does not provide legal opinions in the abstract. In any event, even if the Divisional Court had that role, the information in the record was wholly inadequate for the Court to make a decision.
Thus cease and desist letters are not subject to judicial review, at least in these circumstances.
Intervention by a Party’s Former Lawyer
by Rebecca Durcan
July 30, 2020
When should the former lawyer of a party be able to intervene in a legal proceeding in order to protect their financial and reputational interests? That issue arose in an interesting way in the case of Errol Massiah v. Justices of the Peace Review Council, 2020 ONSC 3644, http://canlii.ca/t/j8837. Mr. Massiah was removed from the office of Justice of the Peace for judicial misconduct. The remaining issue was whether Mr. Massiah should have his legal costs paid by the government. The tribunal had decided against such compensation, in part, on the basis that his lawyer had raised many frivolous and vexatious motions and objections delaying and extending the proceedings. Mr. Massiah’s lawyer sought to intervene in those proceedings to protect his financial and reputational interests.
The Court did not give permission for the lawyer to intervene. Any right to compensation from the government related to Mr. Massiah, not the lawyer. Mr. Massiah had fully addressed the issue and the lawyer would be repeating the same points. While there are some situations in which a lawyer who is being blamed for errors might be given standing to defend their reputation, this was not a case where no one was presenting that perspective. Mr. Massiah was fully defending the lawyer’s actions in presenting his claim for compensation. The Court was also concerned that the lawyer had brought this request to intervene very late in the process and was proposing to tender voluminous additional materials before the court. In some sense the lawyer was seeking to re-litigate issues that had already been determined.
This case illustrates that an intervenor must demonstrate how they would bring an important and different perspective to the matter which would assist the adjudicator.
“Invigorated” Undue Delay Scrutiny
by Bernie LeBlanc
July 20, 2020
Given the strict judicial scrutiny of delays in criminal cases, regulators have been wondering whether those principles would creep into the professional discipline arena. Saskatchewan’s highest court has said yes in Abrametz v Law Society of Saskatchewan, 2020 SKCA 81, http://canlii.ca/t/j8jf3. In that case the lawyer had been the subject of extensive, and hotly contested, investigation into his trust accounts. While there had been no misappropriation of funds, the lawyer was found to have disregarded the rules in a dishonest way, possibly to conceal income from the tax authorities. He also was found to have made loans to clients without full disclosure and charging excessive fees for the loans.
The Court engaged in a technical analysis as to when deference will be accorded to the decisions of a disciplinary tribunal. In applying the Vavilov principles, the Court held that the standard of review on the interpretation of regulatory rules and codes of conduct (similar to the by-laws enacted by many regulators) should be reviewed according to the correctness standard where there is a statutory right of appeal. The previous deference given to regulators in the interpretation of their own regulatory rules no longer applies. Similarly, on the issue of whether a delay was excessive and amounts to an abuse of process, the Court said that this was a procedural fairness issue which should also be reviewed on a correctness standard. No deference should be afforded to the views of the discipline tribunal hearing the case.
On the issue of whether the delay was excessive, the Court discussed the criteria established by in the Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, http://canlii.ca/t/525t case:
For a court to intervene on this ground, it must be satisfied that there has been both inordinate delay caused by the administrative entity, and prejudice of a certain order attributable to that delay. The following principles identified in Blencoe reflect these requirements:
1. The period of delay must be so inordinate as to be clearly unacceptable (at paras 115 and 121). Whether a delay is inordinate turns on contextual factors, including “the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, and whether the respondent contributed to the delay or waived the delay, and other circumstances of the case” (at para 122).
2. The party claiming abuse of process must show that the inordinate delay “directly caused [them] a significant prejudice” that is related to the delay itself (at para 115, emphasis added). In order for there to be abuse of process, “the delay must have caused actual prejudice of such magnitude that the public’s sense of decency and fairness is affected” (at para 133).
3. The analysis requires a weighing of competing interests. “In order to find an abuse of process, the court must be satisfied that ‘the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted’” (at para 120).
4. A stay is not the only remedy available in administrative law proceedings. However, where a respondent asks for a stay, they will bear a heavy burden (at para 117). A finding of abuse of process is available only in the “clearest of cases” (at para 120).
The Court conducted a detailed analysis of the 53-month delay from the initiation of the investigation and the commencement of the hearing (having found that the length of time to conduct the hearing itself was reasonable). It found that 18 of those months as being attributable to the reasonable process of investigation, screening and hearing preparation for a case of this nature. It attributed 2½ months of the delay to the practitioner. The remaining 32½ months was attributable to undue delay. This analysis relied heavily on the evidence provided by the regulator as to the steps taken in the investigation and screening of the concerns.
The Court found that the practitioner had experienced significant prejudice caused by the delay including practising under a cloud of suspicion, stress that took the form of a medical condition, and practising under intrusive restrictions (e.g., supervision) far longer than necessary.
In balancing the competing harms to the public interest, the Court noted that the allegations were serious, relating to honesty and trustworthiness, worthy of substantial disciplinary action. However, the Court found that prejudice to the practitioner was serious and that the practitioner had practised for years under significant restrictions without other concerns arising. The Court concluded:
It is my view, taking account of all of these contextual factors, that the undue delay in this case was inordinate, and caused actual prejudice of such a magnitude that the public’s sense of decency and fairness would be offended. In these circumstances, the delay would bring the LSS disciplinary process into disrepute. This was the clearest of cases.
For these reasons, there was an abuse of process.
If the Court’s “invigoration” of the principles of Blencoe is adopted by the courts of other provinces, one can expect more frequent and, possibly, more successful challenges based on abuse of process for undue delay in disciplinary matters.
 In the case of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, http://canlii.ca/t/j46kb the Supreme Court of Canada established a new approach to reviewing decisions by administrative tribunals. Lower courts are now applying those principles to various types of decisions by administrative tribunals.
Restraining Rogue Registrants
by Bernie LeBlanc
July 14, 2020
Regulators, by their public nature, have to be prepared to accept criticism; even unfair criticism. Indeed, Courts have the power to prevent regulatory authorities from trying to limit some forms of public discourse: Ontario College of Teachers v Bouragba, 2019 ONCA 1028, http://canlii.ca/t/j49mq. However, at some point, regulators can take legal action against defamatory statements or abusive conduct.
In The College of Pharmacists v Jorgenson, 2020 MBQB 88, http://canlii.ca/t/j897w a pharmacist believed that the action, or inaction, of the College had led to the death of indigenous people in the northern part of Manitoba. He made a complaint to his regulator. He then made a number of public statements claiming that the regulator had covered up the misconduct in part because of racist attitudes and racial profiling. He also communicated persistently with representatives of the regulator, particularly staff, such that they “expressed concerns about their safety, Mr. Jorgenson’s erratic conduct, and the anxiety and stress that they experienced”.
The Court found that the statements were defamatory and made without justification. The Court also held that the conduct towards regulatory representatives constituted legal nuisance. The Court awarded judgment in the amount of $150,000 plus legal costs and granted a detailed injunction protecting the staff and other representatives of the regulator from future contact or communications from the practitioner.
Regulators have recourse for practitioners who cross the line from criticism, even unfair criticism, to defamation and nuisance.
Alberta’s Regulatory Reform
by Julie Maciura
July 7, 2020
Yesterday Alberta introduced Bill 30 that will require public appointees (who are not members of the profession) to constitute 50% of the Council and core committees of its 29 health profession regulators. This simple change will have significant implications. One half of the government appointees of the governing Council for each health regulator will be appointed directly by the government. The Council establishes the priorities and policies of the regulator and has oversight of the effectiveness of the regulator in protecting the public interest. In addition, one half of the committee members and panels of the complaint review committee and hearing tribunal of each health regulator will have to be publicly appointed. Previously only 25% were publicly appointed. This change will end the decade-long established practice where elected members of the profession formed the majority of the Council and committees. Regulators will have to revise their by-laws to adjust the size of their Councils, deciding whether to simply make them larger or whether to reduce their size at the same time as the 50% requirement is achieved.
The Bill signals that, conceptually, health professional regulation in Alberta will no longer be self-regulation by the profession. Rather, it is shared regulation between the profession and the public to serve and protect the public interest.
The change follows much more comprehensive reform proposals for the regulation of health professions in British Columbia. The BC reforms have not yet been introduced in their Legislative Assembly. As significant as the Alberta proposal is, it falls short of the comprehensive reforms proposed by recent studies across Canada. For example, Bill 30 does not implement a skills and competency based selection process by an independent body. Professional members will still be elected and public appointees can be selected on any basis deemed fit by the government, including political connections. This revision still remains a perspective-based model of governance as opposed to a competency-based model. The Bill also does not require Councils to be reduced to a workable size (e.g., 8-12 people). In fact, the result might well be larger Councils. Bill 30 also does not address other proposed reforms under active discussion such as combining health regulatory Colleges into fewer bodies or the establishment of an oversight body.
However, Bill 30 reinforces the sense that the regulation of professions across Canada is in for a period of rapid change.
The Bill can be found at: https://www.assembly.ab.ca/net/index.aspx?p=bills_status&selectbill=030&legl=30&session=2
Duty of Regulators to Assist Struggling Practitioners
by Julie Maciura
June 30, 2020
In Jhanji v The Law Society of Manitoba, 2020 MBCA 48, http://canlii.ca/t/j7sqc, an internationally trained lawyer was the subject of multiple concerns. Both judges and colleagues had raised concerns about the practitioner’s competence, primarily in making incomprehensible written and oral submissions. The regulator conducted a practice review which found broad ranging concerns. It recommended a series of remedial steps including practising under the supervision of another lawyer. The practitioner declined to accept the remedial steps. The regulator then referred the concerns to discipline and imposed an interim order suspending the practitioner’s ability to practise. The regulator concluded that the concerns were so broad ranging and the practitioner’s unwillingness to pursue other measures left suspension as the only option that would protect the public.
The Court affirmed the decision. It found that the procedure followed was fair. The practitioner had no right to attend the meeting at which the allegations were referred to discipline. In addition, the regulator had provided disclosure and heard from the practitioner in person before ordering the suspension. The Court rejected the practitioner’s argument that the regulator had a duty to assist a struggling practitioner rather than order an interim suspension:
The applicant says that the CIC had an obligation to assist him through remedial measures rather than impose an interim suspension, particularly given that he was a foreign-trained lawyer. Again, this argument is without foundation and is contrary to the mandate of the Law Society to “uphold and protect the public interest in the delivery of legal services with competence, integrity and independence” and the authority provided to the Law Society under the Act to do so (the Act at section 3; see also sections 66–71 of the Act).
The Court went on to discuss the standard of review for interim orders:
Having correctly identified the legal issue, the question became whether the interim suspension was necessary to protect the public in these circumstances. The applicant has not identified any palpable and overriding error of fact by the CIC in its analysis. The record demonstrates that the CIC reviewed the extensive information obtained during the investigations and the practice review. It considered whether some action, other than the interim suspension, was sufficient to protect the public and concluded that it was not. The CIC was entitled to make that finding on the record before it.
Whether or not to impose the interim suspension was a discretionary decision. The CIC did not err in law or make any palpable and overriding error of fact. Furthermore, based on the record, the interim suspension is not unjust. The CIC’s decision to interim suspend the applicant is entitled to deference.
While regulators often attempt to deal with concerns remedially, at the end of the day, they are regulators, not coaches.
Reconsideration of Returned Decisions
by Natasha Danson
June 23, 2020
Sometimes when an appeal from a discipline decision is successful, the court returns the case to be reconsidered by a differently constituted panel. However, when a court is silent on the matter, can the same panel that made the earlier, incorrect decision, reconsider it? Generally the answer is yes because that panel has heard the evidence and argument, has detailed familiarity with the case, and is in the best position to consider the matter again. In Zuk v Alberta Dental Association and College, 2020 ABCA 162 (http://canlii.ca/t/j6tjc) the Court also found that, absent special circumstances, having the same panel members reconsider the matter does not create an appearance of bias.
In Zuk, there were 21 findings of misconduct. The appellate Court set aside two of the findings and stated that one finding had been overemphasized. The upheld findings were deemed by the Court to be serious and included grave attacks against the integrity of the regulator. The tribunal reconsidered the sanction and costs and imposed a significantly reduced period of suspension and costs. The practitioner appealed again.
The Court held that the standard of review remained deferential:
Pre-Vavilov, it was clear that deference was owed to professional disciplinary bodies on the fitness of sanctions and the fact findings underpinning them: Law Society of New Brunswick v Ryan, 2003 SCC 20 at para 42 [Ryan]; Groia v Law Society of Upper Canada, 2018 SCC 27 at paras 43, 57. As Vavilov does not directly address the question of standard of review for sanctions imposed by professional disciplinary bodies, this Court was asked to provide guidance on this point. In our view, the appropriate standard of review remains reasonableness. Vavilov provides a “revised framework that will continue to be guided by the principles underlying judicial review… articulated in Dunsmuir v New Brunswick, 2008 SCC 9” [Dunsmuir]: para 2. The longstanding principles articulated in Dunsmuir and Housen have not been displaced: Vavilov at para 37. As noted in para 13 above, the standards of review on statutory appeals are the same as those applied in other appeals. The focus is on the type of question in dispute. The question of what sanction Dr Zuk should face as a result of his misconduct is a question of mixed fact and law: Ryan at para 41. This calls for a deferential standard where the decision results from consideration of the evidence as a whole, but a correctness standard ought to be applied when the error arises from the statement of the legal test, or where there is an extricable question of law: Housen at paras 33, 36; Constable A v Edmonton (Police Service), 2017 ABCA 38 at para 41.
Similar considerations applied to the costs order.
In terms of bias, the Court held that the legislative provision precluding individuals involved in the investigation and referral of matters to discipline had no application to the reconsideration of the matter returned by the Court. After reviewing the reasons of the panel reconsidering the matter the Court also found no appearance of bias:
We are not persuaded the Appeal Panel was permanently “invested” in its earlier reasons, to the degree that it was incapable of fairly reconsidering the matters directed by this Court. “Where a matter is remitted back, the law presumes that a tribunal will give full weight to the decision of the reviewing court”: Walton at para 9. As noted above, there is nothing on the record to rebut this presumption; quite the opposite. Further, whether the issue “on which a reconsideration has been directed would raise considerations of impartiality in the mind of a reasonable person is a matter of degree”: Walton at para 9. In light of the cogent, even-handed, transparent and considered approach of the Appeal Panel’s reconsiderations reasons, this case does not raise any considerations of impartiality.
In sum, there is no reason to believe that the Appeal Panel did not reconsider sanction and costs having full regard to the decision of this Court. Moreover, the Appeal Panel had the advantage of a detailed knowledge of the evidence behind the affirmed charges, and considerations of efficiency supported its continuing involvement.
The appeal failed.
Using a Practitioner’s Status and Prestige
by Erica Richler
June 16, 2020
Practitioners have a status in society that can be misused. In addition, engaging in certain activities outside of the profession can affect one’s ability to practise the profession objectively or even bring disrepute to the profession. It is for those reasons that some professions have ethical rules related to these concerns. For example, some health professions in Canada do not condone practitioners appearing in advertisements promoting health products to consumers.
Misusing one’s status and prestige is a concern for judges who must be, and be seen to be, impartial. A recent decision, that had a high profile in the legal community, addresses the boundaries of this concern. In Smith v Canada (Attorney General), 2020 FC 629, http://canlii.ca/t/j7v4k a Judge accepted an unpaid appointment of Interim Dean (Academic) to a law school that was undergoing a crisis. Justice Smith obtained the approval of both the Chief Justice in his province and, impliedly, the Minister of Justice. Nevertheless, the regulator for federally appointed judges, the Canadian Judicial Council initiated an inquiry and rendered a letter of concern. Justice Smith sought judicial review.
Much of the case dealt with the scope of a statutory provision preventing judges from having an occupation outside of their judicial duties. The Federal Court found no violation of that section.
On the ethical issue of misusing the judge’s judicial status or risking the compromising of his judicial duties, the Court held that the concerns were not justified. The Court said:
The association of a judge with any extra-judicial organization will, to some degree, bolster its reputation, status and public confidence. It is for precisely that reason that law schools seek to have judges teach. …. If that were the test, then no judge could ever join or participate in any extra-judicial civic, religious, or charitable organization.
The Court was also concerned that the initiation of the investigation, in the absence of a complaint and given the approval of the Chief Justice and Minister of Justice, was procedurally unfair to the point of being an abuse of process. The Court concluded that the regulator failed to disclose to the Judge the true nature of the concern and the matter did not warrant consideration because it could not have resulted in the Judge’s removal.
Judicial Scrutiny of Disciplinary Penalties
by Rebecca Durcan
June 9, 2020
Ever since the Supreme Court of Canada in Vavilov changed the way that courts review regulatory decisions (at least where there is a statutory right of appeal), regulators and courts have been determining how the new test applies to different types of decisions. In Mitelman v College of Veterinarians of Ontario, 2020 ONSC 3039, http://canlii.ca/t/j883c, the Divisional Court of Ontario put some effort into applying Vavilov to appeals of disciplinary penalties. Dr. Mitelman was found guilty of professional misconduct for a number of standard of practice and ethical issues. It was his second finding. The appeal was limited to the penalty order of a twelve month suspension of his licence and various terms, conditions and limitations for periods of up to five years.
The Court stated that the standard of review involved considerable deference:
It is well established that in order to overturn a penalty imposed by a regulatory tribunal, it must be shown that the decision-maker made an error in principle or that the penalty was “clearly unfit.” The courts in the criminal context have used a variety of expressions to describe a sentence that reaches this threshold, including “demonstrably unfit”, “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate” or representing a “substantial and marked departure” from penalties in similar cases. This high threshold applies equally in the administrative law context. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances. A fit penalty is guided by an assessment of the facts of the particular case and the penalties imposed in other cases involving similar infractions and circumstances, College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420 at para. 56.
The Court went on to say that when looking at the “reasonableness” of a penalty decision, the Court is really referring to the proportionality of the decision compared to other similar cases. Thus the word “reasonableness” is not describing the standard of review generally.
The appeal raised concerns about the adequacy of the reasons on penalty. The Court noted that the reasons on finding were detailed and provided an important context to the penalty decision, including concerns about impairment of public safety. Though brief, the reasons on penalty identified the factors taken into account. The Court said:
The basis for the Committee’s conclusions on penalty is readily apparent to anyone with even a passing familiarity with the background to this case. I am not prepared to conclude that the reasons on penalty are so deficient as to amount to an error of law.
Because context is everything, the decision on penalty was upheld.
Close Review of Credibility Findings
by Bernie LeBlanc
June 2, 2020
Under the new standard of review of tribunal decisions, findings of fact are reviewed on the basis of whether there was a palpable and overriding error (unless there is a question of mixed fact and law where there is an extractible legal error). In Miller v College of Optometrists of Ontario, 2020 ONSC 2573, http://canlii.ca/t/j6sbk the Court was reluctant to compare the palpable and overriding error test with the reasonableness review test. However, it did closely review the credibility findings where a finding of historical sexual abuse was made.
While showing deference to the tribunal, the Court concluded that the practitioner’s evidence was scrutinized more closely than that of the patient for a number of reasons including:
- The tribunal used the assertion of a weak submission by the self-represented practitioner that the touching could not have taken place as undermining the practitioner’s credibility. Such an inference would not have been made if the argument was made by the practitioner’s legal counsel.
- The tribunal used the demeanour of the practitioner when the patient testified (e.g., the practitioner did not look at her) as supporting an adverse finding of credibility. Demeanour generally applies to how a witness acts when testifying, not to how a party behaves when others testify, and, in any event, such a conclusion based on a lack of eye contact was particularly fragile.
- The tribunal appeared to treat the lack of responsiveness to questions by the practitioner more negatively than a similar lack of responsiveness by the patient. In particular, the hesitancy of the practitioner to acknowledge that he had been in practice for almost fifty years was given undue weight. So was the request by the practitioner to cross-examine counsel on the meaning of the word “close”.
- The tribunal appeared to be overly suspicious about the inability of the practitioner to produce a portion of the chart that was unlikely to contain relevant information and was not required to be retained by the practice’s retention policy.
- Mischaracterizing the practitioner’s position as that the patient was fabricating the allegations when it was more accurate to say that the practitioner’s position was that the patient’s evidence was mistaken.
The Court concluded as follows:
The Merits Decision and the record disclose a sufficient unevenness of approach to the evidence adduced by the two sides for me to conclude that the appellant’s defence was subjected to a higher level of scrutiny than the case against him. That is an error of law. It, combined with the other errors I have identified, resulted in an unfair proceeding.
Regulators are closely watching to see if the new standard of review of credibility findings is markedly different than the deference shown in pre-Vavilov decisions.
The Whistleblower Defence
by Erica Richler
May 28, 2020
In some circumstances, a practitioner is permitted to disclose otherwise confidential information and publicly criticize their employer, where there is a compelling public right for the public to know. Generally for the whistleblower defence to succeed, four criteria must be met:
- The concerns must be significant, for example, jeopardizing life, health or safety;
- The issue must be more than a difference of opinion;
- The practitioner must have taken all reasonable steps to address the matter internally before “going public”; and
- The concerns must be accurate.
In Mulligan v Ontario Civilian Police Commission, 2020 ONSC 2031, <http://canlii.ca/t/j6fm9>, an OPP police Sergeant submitted a letter to the editor of the Sudbury Star criticizing the move of an OPP helicopter from Sudbury to Orillia saying it would jeopardize public safety. He was disciplined for breach of confidence and discreditable conduct. On judicial review the Divisional Court upheld the finding that the whistleblower defence was not available to Sergeant Mulligan because he had not first raised his concerns within his chain of command. The Court said:
There may be a situation where the issues raised are so pressing and urgent and the chain of command so obviously dysfunctional or corrupt that going public first is the only reasonable option. However, Sergeant Mulligan never argued that the urgency of the situation made it impractical for him to raise the matter internally first. Furthermore, the evidence he presented did not meet the threshold required to demonstrate the type of dysfunctionality or corruption that would be required for this type of exception to the usual rule.
The whistleblower defence is not easily established.
Using Every Regulatory Tool (During a Pandemic)
by Julie Maciura
May 27, 2020
When there needs to be a significant change in how a profession is practised, what are one’s options? Typically there are three options: enact a law, provide a guideline, or direct practitioners to exercise professional judgment towards an identified goal. All three options are being exercised by the Chief Medical Officer of Health of Ontario (CMOH) in restarting non-essential services.
On March 19, 2020, the CMOH updated a Directive to health care providers that largely limited the provision of health care services to essential services. However, on May 26, 2020, the CMOH updated that Directive for the purpose of enabling a gradual restart of deferred, non-essential and elective services. Practitioners are required to comply with an accompanying Operational Requirements document. That document includes such requirements as performing both an organization-wide and individualized patient point of care risk assessment. Hazard controls must be implemented including using remote service techniques where possible, installing engineering and system control measures where feasible (e.g., plexiglass barriers), administrative control measures (e.g., screening staff, patients and essential visitors for symptoms of COVID-19), and using appropriate personal protective equipment (PPE).
The Directive is made under s. 77.7 of the Health Protection and Promotion Act and thus has the force of law. It is an offence to breach the Directive.
However, the Directive and the Operational Requirements refer to guidelines provided by the regulatory body for each profession. Typically those guidelines will provide more detail about the hazard controls mentioned above, but tailored to the usual practice settings of each profession. For example, a regulator’s guidelines will often provide criteria for screening patients, obtaining informed consent, staff training, how to perform specific activities like receiving payment for services directly by the patient, and specific PPE expectations in various circumstances (e.g., in what circumstances PPE must be replaced during the day). While guidelines are typically the expression of expectations, in this case there appears to be some additional teeth to the guidelines since both the Directive and the Operational Requirements use mandatory language requiring practitioners to adhere to them.
However, despite the use of mandatory language throughout the Directive, Operational Requirements and guidelines, these documents place a heavy emphasis on the exercise of professional judgment by practitioners. For example, on the core issue of which patients should receive services, the Directive provides “principles” to guide practitioners including proportionality (i.e., the capacity of individual practitioners, offices and clinics to offer services); minimizing harm to patients (i.e., prioritizing procedures that can result in more significant harm if delayed too long); equity (i.e., clinical urgency, considering disadvantaged or vulnerable individuals); and reciprocity (i.e., monitoring the health care status of individuals who do not yet appear to require services immediately).
Similarly the Operational Requirements indicate numerous situations in which practitioners should exercise professional judgment. These include the suggestion that restarting services should be gradual, identifying which patients require in-person as opposed to remote services, which patients to prioritize, and ensuring that consideration be given to “inter-dependencies and collaboration” (e.g., that there are homecare and rehabilitation services available for any procedures performed).
The CMOH is attempting to use all available tools in the reopening of health care services to non-essential services. The Directive and Operational Requirements can be found at:
https://www.sml-law.com/wp-content/uploads/2020/05/Directive-2-May-26-2020.pdf ; and https://www.sml-law.com/wp-content/uploads/2020/05/Operational-Requirements-for-Health-Sector-Restart-May-26-2020.pdf
Off Duty Conduct
by Rebecca Durcan
May 26, 2020
It is likely that there is variability as to when off-duty conduct can be the subject of discipline. For example, the degree of circumspection expected of teachers and police officers may be higher than for some other professions where practitioners are not as widely seen as esteemed role models.
This issue came up in the case of Mulligan v Ontario Civilian Police Commission, 2020 ONSC 2030, http://canlii.ca/t/j6fm8. In that case:
While off duty, Sergeant Mulligan attended and spoke at a conference where the theme was cannabis legalisation. The conference took place in September 2015, while the decriminalization of marijuana was under discussion, but had not yet been passed into law. In his remarks at the conference, where Sergeant Mulligan was identified as a twenty-nine-year veteran of the Ontario Provincial Police, Sergeant Mulligan made it clear that he was in favour of the legalisation of marijuana, but that he was not representing the views of his employer.
The problem was that Sergeant Mulligan had been ordered not to attend or speak at the conference. He was disciplined on two charges. On one charge, for bringing the force into disrepute, he was found not guilty because at the time he spoke there was widespread public support for decriminalizing the possession of cannabis and his views would not be viewed as shocking. On judicial review of the finding of disregarding an order, the Court held that this finding should also be set aside because the tribunal had failed to consider a provision in the legislation that was on point and because the tribunal had found that the audience would not perceive his remarks as meaning he would refuse to enforce the law.
The significance of the case is that it reinforces the principle that all of the circumstances must be taken into account when determining whether off duty conduct is worthy of discipline.
Demonstrating Bias by Questioning a Witness
by Bernie LeBlanc
May 19, 2020
Tribunal members are given some leeway to question witnesses. Questions clarifying the evidence of a witness or even asking for additional explanation on a point that is puzzling are acceptable. However, where the questioning of a witness, particularly the practitioner, appears to indicate that the tribunal has made up its mind, the questions can create an appearance of bias. That is particularly true when the “questions” contain statements.
Yee v Chartered Professional Accountants of Alberta, 2020 ABCA 98, <http://canlii.ca/t/j5q8v is one of those rare cases where a disciplinary decision was reversed solely on the basis of the questioning of the practitioner by tribunal members. That case arose from some business dealings the practitioner’s company had with the complainant. Disagreements between them led to a civil action in court. The practitioner’s pleadings (formal position) in the civil action denied the complainant’s allegations and put the complainant to the strict proof of them. The tribunal members at the resulting discipline hearings took exception to those denials, interpreting them as false statements. The tribunal members also persisted in forcefully challenging the practitioner’s position that he was acting in a business capacity in the matter rather than as a member of the profession.
The Court said:
A tribunal is entitled to challenge and question a witness vigorously, provided that the tribunal is open minded, that is, open to consideration of the answer to what might be a leading question. The issue before us is whether the questioning in this case and the statements made in the context of questioning give rise to a reasonable apprehension of bias.
The Court concluded that the cumulative effect of the questions by multiple tribunal members created an appearance of bias. The discipline findings were set aside and the matter was returned for a new hearing.
Finality of Referrals to Discipline
by Julie Maciura
May 14, 2020
What are the options where significant new information is received after a screening committee renders its decision? Where the screening committee determined to take no action, it might not be viewed as a final determination. Either through a fresh complaint or a Registrar’s investigation, the matter can likely be reviewed again: Ferrari v College of Physicians and Surgeons of the Province of Alberta, 2008 ABQB 158, http://canlii.ca/t/1w3fh; Houghton v Association of Ontario Land Surveyors, 2020 ONSC 863, http://canlii.ca/t/j54tk.
However, can a screening committee reconsider its decision after referring a complaint to discipline? In Stanley v Office of the Independent Police Review Director, 2020 ONCA 252, http://canlii.ca/t/j6f8f, Ontario’s highest court said this was not permitted. The principle of finality required that the screening committee not, in effect, withdraw its referral in order to look at new information. That was true even if the new information could have altered the original decision. The matter was now within the hands of the discipline tribunal.
Exceptions are permitted where the legislation creates a route for reconsideration of screening committee referrals to discipline. In fact, amendments to the formal rules relating to police complaints in the Stanley case now permit such reconsideration. However, such a legislative right of reconsideration is rare in most regulatory statutes.
Another Aspect of Electronic Hearings
by Natasha Danson
May 12, 2020
Some courts have issued special directions restricting the ability to record online proceedings. Many tribunals have the authority to make rules of procedure on conduct at hearings or to at least make specific orders in individual cases. These sorts of prohibitions are particularly important where the subject matter of the hearings is sensitive, as in sexual abuse cases.
Regulators will have difficulty enforcing restrictions related to recording online proceedings because it is even more difficult to know if a recording is being made at an online versus in-person hearings.
While the concern about disrupting the proceeding by recording it is minimal, the concern about the later misuse of such recordings to embarrass or harass witnesses or other hearing participants increases. Perhaps the threat of after-the-fact enforcement can provide some reassurance.
Some other options for tribunals might include:
- Ordering restrictions limiting or prohibiting the recording of the proceedings with limited exceptions (e.g., non-visual note taking).
- Limiting the ability to see some of the hearing participants. However, that may be difficult if the parties need to see those participants for the purpose of cross-examining witnesses.
- Closing off parts of the hearing to the public where the risk is extreme (e.g., the examination of a vulnerable witness in a sexual abuse matter). Tribunals could also use technology that requires access to be granted by a moderator in order to prevent unauthorized participants joining the phone/video call.
- Requiring those attending the hearing remotely to identify themselves (normally observers should not be asked to do this, but this sort of request might be reasonable in some highly-sensitive cases, or for the testimony of some highly-sensitive witnesses). Where technology permits, the participant names could be checked against call-in details to ensure that all callers have been identified.
There may be other technological options as well (e.g., allowing parties full visual access to witnesses during cross-examination while observers see only an obscured face, or even distorting a witness’s voice slightly so that it is not identifiable).
Appointing an Administrator
by Erica Richler
May 7, 2020
Many regulators are subject to the appointment of an Administrator or Supervisor to take over some or all of their operations. This extraordinary step is reserved for circumstances in which there has been a significant loss of confidence in the regulator or other organization.
In Martin v Ontario Civilian Police Commission, 2020 ONSC 1116, http://canlii.ca/t/j6cdp the Ontario Civilian Police Commission, while conducting an investigation into allegations of misconduct by senior members of the Durham Regional Police Service, made an interim order appointing an Administrator. The appointment was limited to overseeing three discrete areas: disciplinary proceedings, promotions, and secondary employment. The Chief of Police and the Police Services Board sought judicial review.
Some of the points raised were specific to the enabling statute. However, some were of general application. For example, most provisions authorizing the appointment of an administrator have very broad criteria, such as where the relevant Minister believes such an appointment is “appropriate or necessary”. In this case the test for the interim appointment related to whether an emergency existed and whether an interim order is necessary in the public interest. In reviewing these criteria the Court afforded significant deference to the Commission. The Court indicated that there need not be a formal finding related to the presence of an emergency. An apparent existence of concerns, in this case based on seven complaints and polling data from the members of the force indicating a lack of confidence in its leadership, was sufficient to base such a conclusion. The existence of an emergency depended on the context of the legislation. Here, a crisis of confidence in the leadership of the police force was an apparent emergency.
In terms of public interest, the Court said:
I agree with the Board’s submission that there must be a proper factual foundation for any determination that a prescribed action is in the public interest. The grounds for acting in the public interest obviously requires more that reliance on the decision-maker’s whim. The public interest is, nonetheless, a broad term that allows the Commission to take a variety of considerations into account in its decision-making process. The determination of the public interest is a matter of public policy in the true sense of the word and demands a high degree of deference….
The Court was also of the view that fear of interference or reprisal by members of the force in the Commission’s investigation was relevant to whether there was a public interest in the interim appointment.
The Court also held that under this legislation there was no need for procedural fairness in advance of the interim order appointing the administrator. Procedural safeguards after the appointment (e.g., written decision and reasons, access to the materials upon which the decision was based and a right of judicial review) was sufficient.
In upholding the appointment, the Court relied on case law dealing with interim suspension of practitioners in discipline matters.
Some Implications of Online Hearings
by Rebecca Durcan
May 5, 2020
Few doubt that online proceedings will continue after the pandemic is over. In an insightful article, law professor Amy Salyzyn considers how this format will alter the hearing process. While supportive of the development, Professor Salyzyn discusses the privacy implications and the impact online hearings may have on hearing participants.
Public Access Implications
- As a practical matter, it is very difficult for members of the public to attend hearings. Online access to hearings, especially if they are recorded, eliminates many of those practical barriers.
- However, in order to ensure public access to hearings, upcoming hearings with links to join them have to be listed online at an accessible location. In addition, protocols need to be established for obtaining access to exhibits.
- At the present time, members of the public need to travel to the hearing and arrive at a set time in order to view the hearing and observe witness testimony. Practically, these burdens result in obscurity for witnesses and other participants. With online hearings, intimate and personal details will become more readily accessible and may result in voyeuristic, rather than educational, access. There may even be examples where the information can be mined for financial gain.
Impact on Hearing Participants
- Where some participants attend in person, there is an imbalance in the extent of participation. Those who attend online can be dehumanized (especially in criminal matters) and are often perceived as less credible or less worthy of clemency.
- There is often less formality when the hearing is held online, including background noises, disruption by pets and children, and seeing the backdrop from a person’s home. This informality can affect the clarity of the information provided as well as the perception of the participant.
- Portions of the hearing process, such as a reduced ability to hold sidebar conversations or being able to hear whispered comments by adjudicators, will be different from in-person hearings in a way that could affect the process.
These variances arising from the process platforms should be considered and, in some cases, compensated for, as online hearings become more common. The article can be found at: http://www.slaw.ca/2020/04/17/trial-by-zoom-what-virtual-hearings-might-mean-for-open-courts-participant-privacy-and-the-integrity-of-court-proceedings/.
Another Monster Case
by Bernie LeBlanc
April 30, 2020
There are some cases in which many issues are raised and dealt with. Multiple points of learning on a diversity of topics can arise. Houghton v Association of Ontario Land Surveyors, 2020 ONSC 863, http://canlii.ca/t/j54tk is one such case. Mr. Houghton’s licence was revoked after a 21 day hearing. The allegations are summarized by the Court as follows:
One allegation was that Mr. Houghton had counselled a client to make a complaint against a fellow surveyor for malicious reasons. The other complaints essentially related to Mr. Houghton’s alleged practice of:
- failing to quote a fee before signing the clients to an unlimited time and disbursements retainer agreement;
- taking a modest monetary retainer at the outset of an assignment that the clients believed to be the full fee;
- then claiming to have performed research resulting in additional fee charges incurred without the client’s prior approval; and finally
- charging the clients’ credit cards with the unapproved fees pursuant to credit card authorizations that Mr. Houghton had obtained previously from each of the clients.
A summary of the more interesting points for other regulators are as follows:
- The Complaints Committee dismissal of individual complaints related to billing disputes does not prevent the regulator from later investigating those same concerns through the alternative Registrar’s investigation route, particularly where that investigation is focussed on a pattern of financially abusing clients. This outcome is not dissimilar to the decision in Abdul v Ontario College of Pharmacists, 2018 ONCA 699, http://canlii.ca/t/htpdg.
- The Court acknowledged the concerns that the scope of the investigation was not clearly set out and that the investigator may have looked at some issues that were not part of the original reasonable and probable grounds. However, the investigation focussed primarily on the reasonable and probable grounds concerns and the Discipline Committee was careful not to adjudicate on any additional issues.
- In respect of the allegation of counselling a client to complain against a competitor, the Court agreed that this is professional misconduct where done maliciously. “Here it is perfectly obvious that where one surveyor is found to have acted expressly to injure another surveyor’s reputation by having a client file a groundless complaint and the client did as he was urged to do, injury is self-evident.”
- In upholding the order of revocation the Court held that the following were relevant considerations:
- A history and attitude indicating a likelihood of reoffending;
- The emotional harm inflicted on clients and the damage caused to the reputation to the profession by such dishonest conduct;
- The attempt to try to silence witnesses by imposing non-disclosure agreements in respect of the regulator through civil settlement agreements.
- On the likelihood of re-offending the Court discussed the principle that a practitioner’s vigorous defence of allegations should not be considered an aggravating factor. However, a discipline tribunal is able to take into account that the practitioner “demonstrated a profound lack of understanding of ethical expectations and conduct, which continued during the penalty phase of the hearing”. The Court said that the tribunal: “was entitled to include in its consideration Mr. Houghton’s lack of recognition and lack of accountability for his actions as factors that weighed on the risk of repetition, the need to protect the public, and deterrence.”
- The Court also upheld the order that the practitioner pay costs of $250,000, which were only a fraction of the actual legal costs, where “the length of the hearing was largely driven by Mr. Houghton’s approach to challenge the proceedings with multiple days of motions and allegations against Association personnel.”
Regulators will benefit from this guidance by the Court on so many issues.
Imposing Electronic Hearings without Consent
by Natasha Danson
April 29, 2020
The Divisional Court of Ontario recently ordered that an appeal of a discipline hearing proceed remotely over the objections of counsel for the practitioner. The practitioner expressed concern that there might be disadvantages to a hearing held on Zoom, such as not being able to watch the pens of the Judges during argument. The appeal had the potential to affect the practitioner’s livelihood. On this point the Court noted:
However, the materials and arguments presented by Mr Schwisberg do no more than suggest that something may be lost in a video conferenced hearing. Something will be lost if court business does not continue, as best as can be managed, during the COVID-19 crisis, and I am not persuaded that any of the concerns raised by Mr Schwisberg justify departing from the processes established under the Directions to the Profession for the continuation of court operations.
The Court rejected the practitioner’s arguments. The Court held that the consent of the parties to proceed remotely was not required. It concluded that the hearing, especially one without witnesses, was conducive to being heard in an electronic format. The Court had already had successful experience in conducting important hearings remotely. The Court was also concerned that the proceeding had already been delayed significantly (assigning no blame for the delay).
The Court went on to provide specific directions on how the hearing would be conducted, outlining several guidelines, including those related to decorum and the formatting of documents, with the required use of hyperlinks. See Association of Professional Engineers v Rew, 2020 ONSC 2589, http://canlii.ca/t/j6mpg for more details.
While hearings by regulators may be different than Court proceedings, particularly where witnesses testify, many of the principles identified in this case likely apply to some degree in the regulatory context as well.
Sentencing Considerations for Contempt of Court for Holding Out and Use of Title
by Julie Maciura
April 28, 2020
In College of Physicians and Surgeons of British Columbia v Ezzati, 2020 BCSC 339, http://canlii.ca/t/j5s7k the Court had to decide what sentence to impose on an unregistered person who held themselves out as able to practise medicine and used protected titles such as “physician” and “Doctor”. The Court identified the following factors as relevant to that decision:
- the gravity of the offence (in this case disregarding a court order);
- the need to deter the offender;
- the past record and character of the offender (e.g., is this a first finding);
- the need to protect the public from the offender’s conduct;
- the ability of the offender to pay a fine; and
- the “extent to which the breach was flagrant and wilful and intended to defy the court’s authority”.
In applying those considerations to the conduct of this individual, the Court imposed a fine of $5,000.
by Natasha Danson
April 21, 2020
Generally the fact that a practitioner is under investigation is not made public. Only if a referral to discipline is made or significant remedial action is taken does the matter become public. This places the practitioner in a bit of bind if the practitioner seeks to challenge an investigation in court, because court proceedings are almost always public.
In Party A v British Columbia (Securities Commission), 2020 BCCA 88 (http://canlii.ca/t/j5srk) a party was appealing an aspect of the investigation conducted by the regulator. At the request of the party, the Court restricted public access to the court file and anonymized the publicly-available documents. In doing, so the Court said:
There is always concern on the part of this court when orders are sought that would seal a file. The principle of the open court is important and we do not lightly seal a file, the act of which has the effect of foreclosing public knowledge of the contents of the file.
However, the Court was satisfied by the evidence that there would be significant harm to the party and, indeed, to the public, if the fact that the investigation was occurring became known. It noted:
I am satisfied that there is potential harm to the appellants, who are the applicants today, should the fact of the investigation become broadly known. I am also satisfied that there is potential harm to the public at large from knowledge of the fact of the investigation without information as to the content of the investigation or where it is likely to lead. For example, the public at large may respond in the capital markets to information that turns out to have little impact.
Despite this finding, the Court insisted that an anonymous version of the key documents, including the decision, be made public so that the matter was not completely out of public view.
This case suggests that while it will be rare for courts to restrict public access to court files relating to regulatory investigations, courts may do so to avoid significant harm.
Limits to the Doctrine of Necessity
by Erica Richler
April 14, 2020
Some appearances of bias can be caused by the structure of the legislation. For example, where a complaint is made about a member of the complaints committee, it is awkward for the other members of the complaints committee to consider the matter. In such situations, a regulator will attempt to reduce the concerns as much as possible, perhaps by appointing additional, short-term, members to the committee to consider the matter. In addition, the doctrine of necessity can apply. The doctrine of necessity refers to when an adjudicator who would otherwise be disqualified is permitted to hear a case (usually because no one else is available to hear the case).
The limits to the doctrine of necessity were illustrated in the case of Canada (Director of Military Prosecutions) v Canada (Office of the Chief Military Judge), 2020 FC 330, http://canlii.ca/t/j5p93. In that matter, the Chief Military Judge was the subject of allegations of making a false travel expense claim and having an inappropriate personal relationship with a person under his command (a court reporter). The Deputy Chief refused to hear the case because of an appearance of bias and refused to appoint any of the other military judges because everyone in that small pool would also be biased or unable to conduct the hearing in French.
Prosecutors sought judicial review for an order compelling the Deputy Chief to appoint an eligible military judge relying, in part, on the doctrine of necessity. The Court refused to make such an order, finding that the appearance of bias concerns were, on the facts of this case, quite strong. For example, in addition to adjudicating a well-publicized case involving a close colleague, many of the witnesses would be colleagues as well. The Court indicated that the doctrine of necessity:
will not apply in circumstances where its application would involve positive and substantial injustice since it cannot be presumed that the policy of either the legislature or the law is that the rule of necessity should represent an instrument of such injustice. Secondly, when the rule does apply, it applies only to the extent that necessity justifies. These two limitations make clear that the doctrine should not be applied mechanically. To do so would gravely undermine the guarantee of an impartial and independent tribunal provided by section 11(d) of the Charter [of Rights and Freedoms]. In this case, the doctrine of necessity would not apply in a context of criminal or military justice where the fundamental rights of the accused may be irreparably compromised by the absence of an impartial and independent tribunal or by the language deficiency of the trial judge.
The Court noted that this situation was caused by the structure of the legislative scheme which had not contemplated this rather unique set of events. The Court identified some less than ideal options for proceeding with the hearing including amending the legislation or asking a superior court to appoint one of its Judges to hear the matter.
While military discipline matters are quasi-criminal in nature and have some differences from most other professional discipline matters, this case illustrates that the doctrine of necessity may have some limits.
Access by a Regulator to Highly Confidential Client Files
by Julie Maciura
April 9, 2020
Should there ever be limits to a regulator’s access to a practitioner’s client files when the files are relevant to an investigation? Almost never is the answer provided in College of Physicians and Surgeons v SJO, 2020 ONSC 1047, http://canlii.ca/t/j59mv. During the course of an employment matter, the regulator became aware of inappropriate communications between the former employee and her psychiatrist. As a result of these concerns, including possible boundary crossings with the client, the regulator sought to obtain the psychiatrist’s files for the employee / client. The psychiatrist asserted that disclosing the file, especially to the client’s former employer, would put the client’s health at risk.
The Court upheld the right of the regulator to have access to the file. Its investigative powers are broad and override any other statutory confidentiality and privacy laws. In addition, the case law “privilege” that applies to special relationships of confidence (such that communications within that relationship will remain secret) would not apply to a regulator protecting the public. The practitioner’s position would, in effect, create “an almost perfect avoidance of regulatory scrutiny”. There was no reason to believe that the investigation was being conducted in bad faith or for a collateral purpose related to the employment issues. The scope of the investigation, even though it might include the review of other files for comparison purposes, was appropriate.
Because the client was a former employee of the regulator, certain safeguards were put in place. The investigator was external to the regulator and the file would be kept and reviewed offsite from the regulator’s office. To the extent feasible, information would not be shared with the staff at the regulator. The Court directed that the practitioner cooperate fully with the investigation.
This case is also interesting in that the regulator used the provision allowing for an order directing compliance with the statute (a form of injunction) to compel cooperation by the practitioner. That provision is usually used by regulators to compel unregistered persons to cease holding themselves out as being registered or from performing dangerous acts.
It is difficult to contemplate circumstances in with the client file could be more sensitive than in this case but regulators will almost always have access to the client files of the practitioners it regulates.
Credibility is Not an Either / Or Proposition
by Bernie LeBlanc
April 7, 2020
A recent decision of the Ontario Court of Appeal has provided additional guidance about making findings on credibility.
In R. v Esquivel-Benitez, 2020 ONCA 160, http://canlii.ca/t/j5nrt the Court set aside a conviction for sexual assault on the basis of three errors made by the trial Judge on her findings of credibility. The sole issue in the case was whether the sexual intercourse was consensual.
The first and primary error was that the trial Judge analyzed credibility on the basis of whether to believe the reporting witness or the defendant. The Court of Appeal indicated that there was a third possibility (which in fact the trial Judge had acknowledged). The trial Judge could disbelieve the defendant, as compared to the witness, but still conclude that the burden of proof had not been met. The trial Judge should have specifically addressed that third possibility in her reasons.
A second error related to not addressing a possible motivation on the part of the witness. At the conclusion of the incident, the witness’ spouse entered the room and “flew into a violent rage”. The witness’ spouse persisted in questioning the witness about the incident afterwards. The Court said that the trial Judge should have addressed in her reasons this possible motivation for the report.
The third error was that the trial Judge commented more than once that the defendant was present when the witness testified as a part of her finding that the defendant had tailored his evidence to hers in his own testimony. The Court found these comments to be inappropriate since the defendant had the absolute right to be present in the courtroom during the trial.
It is interesting to note that two of these errors could have been avoided if the trial Judge addressed the issues appropriately in her reasons for decision. While criminal proceedings are different from professional discipline hearings, including having a different burden of proof, these points may still have some relevance for regulators.
Reasons for Examination Failure Need to Cover All Grounds of Appeal
by Julie Maciura
March 31, 2020
Few regulatory decisions have as significant an impact on individuals as clinical examinations, especially for an examinee’s final attempt. In Mattar v The National Dental Examining Board of Canada, 2020 ONSC 403, http://canlii.ca/t/j5dbh an internationally trained dentist appealed the failure of their third and final attempt of the national dental skills examination. The candidate appealed on three grounds: the standardized patient’s condition created a problem for the requested procedure; the examiners had not followed procedure; and as a result of the unfair treatment the applicant suffered a “nervous breakdown” or panic attack that raised compassionate grounds worthy of setting aside the failure. The Court held that the reasons for decision for the first two grounds were quite brief but were adequate.
However, the Court ruled that the complete absence of reasons for the third ground of appeal made the decision procedurally unfair. The Court was unwilling to infer that the committee concluded that, having failed to establish the first two grounds of appeal, it “must have found that whatever stress and panic [the examinee] experienced following the Provisional Crown Restoration test did not arise from circumstances beyond [their] control”. Other conclusions were possible including that the examinee “was simply being disruptive after not getting the extra time [they] wanted to complete the task”. Reasons were required to make the decision fair and reviewable. The matter was returned to the committee for reconsideration on the entire record (including new information issued since its original conclusion) and to issue a new decision with reasons on the appeal grounds related to the applicant’s medical condition.
While courts have often said that a tribunal’s reasons for decision do not have to cover every point raised, they do have to cover the main issues.
Gross Carelessness by Regulators Must Be Extreme for There to Be Liability
by Natasha Danson
March 25, 2020
For almost two decades the case of Finney v Barreau du Québec, 2004 SCC 36, http://canlii.ca/t/1h87m has caused regulators to wonder in what circumstances a regulator could be held liable for faulty regulation. The cases before and after Finney are fairly consistent in saying that a regulator will only be held liable for harm caused by a failure to regulate where the regulator acted in bad faith, which is generally thought to require more than carelessness and negligence. However, in Finney, Canada’s highest court found the regulator liable for acts of “gross carelessness and serious negligence”, which, in the circumstances, amounted to a form of bad faith.
A recent case from the Alberta Court of Appeal spoke at some length about the exceptional circumstances of Finney that would not frequently apply to mistakes or omissions by regulators:
The lawyer in Finney had been subject to four disciplinary complaints between 1980 and 1985 and found guilty on at least three occasions. After a lengthy investigation, in 1990 the professional inspection committee determined he was incompetent and recommended his suspension. But instead of suspending the lawyer, in 1992 the Barreau ordered continuing education and supervision.
McCullock-Finney’s difficulties with the lawyer began in 1990, first as a client, and then as an adverse party. What followed was an escalating dispute between the lawyer and McCullock-Finney where the lawyer engaged in egregious conduct referred to as “guerilla war” and harassment of McCullock-Finney. The Barreau failed to intervene or exercise its statutory oversight even though McCullock-Finney and her lawyer filed numerous complaints against the lawyer, McCullock-Finney complained about the Barreau’s inaction, the courts alerted the Barreau to the lawyer’s troubling behavior and the lawyer’s supervisor withdrew. It was not until 1994 that the Barreau provisionally struck the lawyer off the rolls.
Both the lawyer’s behavior and the Barreau’s inaction in Finney were extreme; nothing akin to what has happened here.
See: Swaleh v Lloyd, 2020 ABCA 18, http://canlii.ca/t/j4rnl.
When described in this fashion, the limited circumstances in which gross careless and serious negligence would apply to a regulator becomes clearer.
Emergency Suspension of Limitation Periods and Procedural Timelines
by Rebecca Durcan
March 23, 2020
The Ontario government has just issued an emergency order, retroactive to March 16, 2020, suspending all limitation periods and timelines in proceedings. Regulators generally deal with few true limitation periods. Very few regulators have true limitation periods relating to the filing of complaints or the initiation of disciplinary proceedings. There are limitation periods related to the initiation of provincial offences prosecutions, which many regulators can do, and those will likely be suspended for the duration of the order.
It is the part of the order that suspends the period of time within which any step must be taken in any proceeding, including any intended proceeding, that will have a greater impact on Ontario regulators. For example, timelines for regulators to notify a practitioner of a complaint within so many days is likely suspended. What is less clear is whether regulators can proceed with an investigation, referral to discipline or a discipline hearing where the practitioner is given a specified amount of time to respond before the step is taken. Is the regulator prevented from proceeding in those circumstances? Even if the regulator is presumptively so prevented, the suspension of the timeline is “subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding”. This exception contained in the emergency order would appear to provide a method for a regulator to require compliance with the timeline in appropriate circumstances, such as where the public is at risk.
The emergency order only applies to proceedings. Other obligations that are not in the nature of intended or actual proceedings, such as the requirement to hold Council meetings within certain timeframes, are likely not suspended by the order. The order also only applies to proceedings under the jurisdiction of the Ontario government; it would not apply to federal proceedings such as under the Criminal Code of Canada.
Given the variety of legislative provisions affected and the general language of the emergency order, regulators need to obtain legal advice for any specific situations.
Breach of Confidentiality
by Erica Richler
March 18, 2020
Breaches of client confidentiality rarely are the sole subject of a discipline hearing. There are many possible explanations for this including that practitioners are respectful of this professional obligation or that breaches tend to be unintentional and, therefore, are addressed by educational means rather than discipline. However, in a recent Quebec case a nurse’s registration was suspended for two months for breaching client confidentiality: Dagenais c. Nurses (Professional Order of), 2020 QCTP 11, http://canlii.ca/t/j54cs.
A nurse conducting a post-natal visit learned that the mother had come to Quebec for the child’s delivery in order to obtain Canadian citizenship for the baby. The nurse also learned that the mother appeared to be engaging in fraud in order to receive government benefits. The nurse contacted a journalist, who posed as a volunteer delivering baby supplies, in order to conduct a hidden camera interview of the mother. The interview was broadcast. The nurse faced allegations of having disclosed confidential information about the location of her client to the journalist.
The nurse was found to have disclosed confidential information and the two-month suspension was imposed. The nurse’s appeal, on the basis that it had not been proved that she had breached confidentiality, was unsuccessful as the Tribunal concluded there was an adequate basis for the Disciplinary Council to make that finding.
Despite the paucity of precedents, this case illustrates that a deliberate breach of confidentiality can result in serious sanctions.
Deference Continues for Policy Decisions by Regulators
by Rebecca Durcan
March 11, 2020
Regulators continue to monitor how judicial review of its actions will change in light of the landmark decision of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, http://canlii.ca/t/j46kb. A recent Alberta case suggests that policy decisions made by regulators will continue to be reviewed with deference. In Morris v Law Society of Alberta (Trust Safety Committee), 2020 ABQB 137, http://canlii.ca/t/j5d8l, a lawyer challenged a requirement to provide privileged client information to the regulator in his annual reports on his trust accounts.
He argued that the requirement involved a general principle of law (i.e., solicitor-client confidentiality) or, at least the interpretation of the regulator’s home statute, and thus should be reviewed by the court on a strict, correctness standard. He also argued that since the enabling statute explicitly overrode solicitor and client confidentiality in other contexts, such as conduct proceedings, but was silent about overriding the privilege for trust account reports, this implied the exclusion of the regulator’s authority require disclosure of client information in trust account reports.
The Court disagreed. The Court was of the view that Vavilov supported the more deferential standard of review of reasonableness when interpreting a broad authorizing provision for a regulator of professions. The Court said:
Given the breadth of the statutory authority, the Act must be construed such that the powers it confers “include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime created by the legislature …”.
Taking a purposive view of the legislation and the legitimate concerns about trust accounts being used to further fraudulent activity or money laundering, the regulator’s requirement to provide otherwise privileged client information as part of the annual reports was reasonable.
Should this approach to judicial review stand, regulators should take comfort in making policy decisions based on relevant considerations and on an articulated rationale.
Does Bankruptcy Extinguish an Administrative Penalty?
by Julie Maciura
February 25, 2020
Regulators are, with increasing frequency, authorized to impose administrative penalties. Administrative penalties are similar to fines but often imposed through a less formal process than that usually associated with fines. In Alberta Securities Commission v Hennig, 2020 ABQB 48, http://canlii.ca/t/j4rnk, Mr. Hennig had a $400,000 administrative penalty imposed for, among other things, “improper financial disclosure and misrepresentations”. The order was filed with the court. Mr. Hennig declared bankruptcy and the regulator received less than $1000 from the estate.
The regulator asserted that the administrative penalty was not extinguished by Mr. Hennig’s bankruptcy as it fell into the exceptions related to debts incurred through fraud, dishonesty or other reprehensible conduct. The Court agreed:
A purposive interpretation of the subsection in view of the intention of section 178 – to preclude dishonest debtors from benefitting from their dishonesty – would surely extend to a decision of a securities commission, charged with enforcing securities laws in order to protect the interesting public and promoting the integrity of the capital markets, in circumstances that would otherwise fit within the subsection.
The decision turned somewhat on the particular conduct underlying the payment order which may not apply to every administrative penalty. But the case does clarify that bankruptcy does not extinguish all administrative penalties.
Expanded Remedies in Judicial Review
by Natasha Danson
February 18, 2020
Judicial review has traditionally been narrower than an appeal. This is so particularly when it comes to the remedies that can be granted by the court. Generally when an order is made by a court on judicial review quashing a tribunal decision, the court sends the matter back for a new decision. However, recently courts have indicated that where “a particular outcome is inevitable and… remitting the case would therefore serve no useful purpose” a court can exercise broader remedies.
An example of this newer approach is found in Gogek v Real Estate Council of Ontario, 2020 ONSC 486, http://canlii.ca/t/j4wt6. In that case an internal appeal tribunal for the regulator refused to extend the time for initiating an appeal. However, the chairperson of the appeal panel making that decision had presided over the pre-hearing conference in the matter. It is generally accepted that, in order to promote candid resolution discussions, a person presiding over a pre-hearing conference will not later hear the case. The regulator acknowledged the error and not only agreed that the decision refusing the extension of time should be set aside, but that an extension of time was reasonable in the circumstances. The Court directly ordered that permission to initiate the appeal late be granted rather than sending the matter back to the appeal tribunal to make that order.
Using the Competition Act to Engage in Unauthorized Practice
by Erica Richler
February 11, 2020
Can someone engaging in the unauthorized practice of a profession rely on the Competition Act to continue their conduct? The answer is “no” according to the case of Maddock v Law Society of British Columbia, 2020 BCSC 71, http://canlii.ca/t/j4sjv. The Court held that it was the Competition Bureau and not the courts acting in an individual case that determined whether a regulator of a profession, or its restrictive enabling legislation, was breaching the Competition Act. It was no defence to an injunction application by the regulator for the unauthorized practice of the profession.
The Court also interpreted the exception for individuals practising in the employment of and under the supervision of another registered practitioner as referring to an intense level of control over the unregistered person. For example, just because the client of the unregistered person happened to be a lawyer did not provide the intended level of oversight to engage the exception for the unregistered person to practise law.
The Court also looked at all of the circumstances of the case to ascertain whether it was likely that the unregistered person would continue their conduct if no injunction was granted. Prominent in that analysis was the fact that the regulator had issued many warnings, and the manner in which the unregistered person resisted the application for the injunction by raising unconvincing arguments. The Court concluded that in the absence of the injunction, the unregistered person would find additional justifications to continue his conduct
Restraining Illegal Practice
by Rebecca Durcan
February 4, 2020
One of the most notorious disbarred lawyers is Harry Kopyto. Despite being disbarred more than 30 years ago, he continues to practise. The regulator sought a permanent injunction against his continuing practise of law or holding himself out as a legal representative. The Court had little difficulty concluding that Mr. Kopyto was acting illegally and would continue to do so. The injunction was granted: Law Society of Ontario v Harry Kopyto, 2020 ONSC 35, http://canlii.ca/t/j4f8s.
In doing so the Court affirmed that where a regulator’s statute authorizes the granting of a restraining order, the usual requirements for obtaining such an order are relaxed. The regulator does not have to demonstrate that there would be irreparable harm. The regulator also does not have to prove that any harm could not be compensated for in damages. In addition: “Hardship from the imposition and enforcement of an injunction will generally not outweigh the public interest in having the law obeyed.”
However, there remains discretion to refuse to grant an injunction where granting it “would be of questionable utility or inequitable”.
Uncertainty Continues for Regulators Defending their Reputations
by Bernie LeBlanc
January 28, 2020
How should a regulator respond to a practitioner making repeated public accusations that it is acting with dishonesty and bad faith and was abusing its authority? While such statements might, in some circumstances, constitute professional misconduct, disciplining such practitioners can sometimes create an unsatisfactory appearance. Doing nothing or responding publicly to such communications can give the allegations more credence than they deserve. In Ontario College of Teachers v Bouragba, 2019 ONCA 1028, http://canlii.ca/t/j49mq the regulator opted to sue the practitioner for defamation.
However, there is protection from defamation suits by individuals who comment on a matter of public interest. This protection, called anti-Strategic Lawsuits Against Public Participation (SLAPP) legislation is intended to prevent well-resourced entities from using the courts to stifle criticism. Anti-SLAPP protections have three criteria:
- The comments were on a matter of public interest.
- The defamation suit can still proceed where it has substantial merit and there is no defence.
- The public interest in permitting the proceeding to continue outweighs the public interest in protecting the comment.
The regulator argued that the practitioner’s comments were private grievances about proceedings that had not gone the practitioner’s way. The Court held that while there was some truth to this, the comments also contained a public interest element about whether the regulator was acting appropriately. For example, some of the communications were to relevant Ministers in the government calling for a public inquiry. On this portion of the SLAPP criteria, the motives of the practitioners were irrelevant (although those motives were relevant to the third part of the test).
As such the Court held that the first portion of the test should be resolved in favour of the practitioner. The Court returned the matter to the lower court to evaluate the second and third parts of the test. Thus uncertainty continues for regulators as to how best to respond to unfair criticism that undermines its reputation for integrity.
Incarceration for Regulatory Offences
by Julie Maciura
January 22, 2020
Provincial offences for unauthorized practice or holding out usually result in fines, not jail. Especially for first offenders. However, that is not always the case. In Ontario (Travel Industry Council) v Robinson, 2019 ONCJ 888, http://canlii.ca/t/j45cz the defendant was sentenced to 75 days and 45 days, respectively, for two convictions for acting as a travel agent without registration.
In imposing these sentences the Court expressed concern about the dishonesty of the defendant in promoting two trips. She took money from over 100 people and did not keep the funds in trust. When difficulties arose she concealed them and continued to promote the trips. For one trip she provided only one-way tickets to Florida and the travellers only learned they had no flight back after arriving. The other trip never occurred. The victims were out a total of $65,000. The victims had no recourse to the regulator’s compensation fund because the defendant was not registered.
The Court held that, in these circumstances, a fine was insufficient to protect the public.
Discernment and Insight
by Erica Richler
January 16, 2020
Regulators can refuse registration to applicants who demonstrate a pattern of lacking “discernment and insight” even if individually the events might not be disqualifying.
In I.B. v College of Massage Therapists of Ontario, 2018 CanLII 142416 (ON HPARB), http://canlii.ca/t/j0vzz a former practitioner applied for re-registration. The regulator declined to register him because of a history that included:
- Seven previous suspensions of registration for both administrative lapses (e.g., not carrying insurance, non-payment of fees) and discipline;
- Revocation of registration for non-payment of fees;
- A discipline finding for practising while suspended;
- Failing to pay all of the costs ordered at that discipline hearing despite it being a joint submission; and
- Inaccurately describing and minimizing the nature of four criminal convictions (most related to impaired driving) including minimizing his personal responsibility for the conduct.
The appeal Board upheld the refusal to register him. In doing so it noted the following:
- The applicant required the regulator to “expend considerable resources to administer his membership”.
- The applicant “has not meaningfully demonstrated that he appreciates the nature of professional expectations and governability standards”.
- The applicant has not demonstrated that he “possesses insight into the seriousness of his previous conduct and how such conduct can have significance in regard to a health professional’s responsibilities to the public and to the College”. On this point the Board noted that patients, insurance companies and others rely on practitioners to accurately provide information including about their registration status.
by Rebecca Durcan
January 14, 2020
Incapacity cases ideally result in terms, conditions and limitations (TCLs) imposed on a certificate as opposed to suspension. This permits the practitioner to practise while still providing the necessary reassurance to the regulator. However, regulators and practitioners regularly disagree as to the breadth of such TCLs. Obviously applicants for registration and members wish to have as few restrictions as possible as TCLs have a significant impact on a practitioner’s life. As such practitioners may view the restrictions proposed by a regulator as excessive and based on speculation, or even faulty assumptions, as opposed to being grounded in evidence.
In an older case, D.W.C. v College of Physicians and Surgeons of Ontario, 2017 CanLII 55551 (ON HPARB), http://canlii.ca/t/h5mvg, an independent Board provided a detailed review of numerous restrictions proposed for a former physician who was re-applying for registration after a period of substance abuse and related psychiatric symptoms. At the time of the hearing, the applicant had not used cocaine for seven years and reported moderate amounts of alcohol use. The primary, but not entire, dispute related to the monitoring restrictions proposed by the regulator. In upholding the proposed restrictions, the Board made the following determinations:
- While the onus is on the applicant to demonstrate that they meet the requirements for registration, regulators must still “scrupulously exercise their mandate when determining whether an individual qualifies for registration”.
- There is no appearance of bias on the part of experts who assessed the applicant because they came to a diagnosis that the applicant disputes through a fair process.
- The constitutionally protected freedom of expression does not prevent medical experts from using the applicant’s statements, including some that appeared to be bizarre, in diagnosing the applicant’s condition.
- The applicant’s human rights do not prevent the regulator or appeal Board from considering issues related to the applicant’s disability. Rather those human rights are required to be considered within the process.
- On the evidence before them, the Board did not find evidence that the medical experts or the regulator had relied on assumptions based on the applicant’s Indigenous status, or had otherwise discriminated against the applicant on that ground.
- The Board did not find it to be inappropriate for a regulator to require the applicant to participate in a support group whose philosophy was, in some aspects, contrary to the applicant’s personal beliefs.
- While the Board accepted the proposition that the regulator had a duty to accommodate the applicant’s disability by only imposing restrictions necessary to protect public health and safety, the Board found on the evidence that the following restrictions were necessary to protect the public:
- monitoring by a psychiatrist and an addictions medicine physician and compliance with their treatment recommendations;
- unannounced biological testing for alcohol and any substance of abuse at an independent laboratory rather than at the applicant’s office;
- total abstinence from drugs and alcohol despite the contested evidence as to whether complete abstinence from alcohol was necessary in the applicant’s case;
- communication by the regulator with family members, workplace monitors and support group leaders about the applicant’s behaviour;
- the restrictions would be in place for at least five years; and
- “it would generally be in accordance with the established principles of professional regulation for a registrant to bear the ongoing cost of conditions on his or her certificate of registration.”
These determinations were based on the evidence in the individual case and do not necessarily apply to all cases. However, this decision provides a precedent and gives guidance as to the kinds of evidence that might be necessary to support these sorts of restrictions.
A Non-Lawyer’s Guide to Change in Court Scrutiny of Administrative Decisions
by Bernie LeBlanc
January 9, 2020
The Supreme Court of Canada made an important decision changing the way courts will review the actions or decisions of administrative bodies, including regulators of professions. The phrase “standard of review” describes in words how closely courts will scrutinize regulatory action. Before the decision of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, http://canlii.ca/t/j46kb, courts would give a lot of deference to how regulators interpreted their own statutes and to the decisions regulators made. This is called the “reasonableness standard of review”. Only where the legal issues raised were of a general nature (e.g., interpreting the Canadian Constitution, applying to legal system as a whole), or where procedural unfairness occurred would the courts closely scrutinize regulatory action. This close scrutiny is called the “correctness standard of review”.
The above approach by the courts will remain much the same for actions by regulators where there is no formal right of appeal to the courts. For example, many regulators can make decisions on complaints and, often, on registration matters, without a formal right of appeal to the courts. Regulators will probably notice little change in those activities. However, where a regulator’s statute provides for a formal right of appeal to the courts, as is often the case in discipline matters, courts will now show little deference when it comes to all legal issues (e.g., how to interpret one’s enabling statute; the scope of the committee’s authority). For issues of fact (e.g., what the evidence proved) or mixed fact and law (e.g., whether the conduct amounts to professional misconduct), deference will likely still be provided by courts.
Of course there is much more to the Vavilov decision than this brief overview can cover. However, this summary should help regulators prepare for more frequent legal challenges, particularly where there is a formal right of appeal to the courts.
Mild Cognitive Impairment
by Julie Maciura
January 7, 2020
Regulators are likely to see increasing numbers of concerns about practitioners with mild cognitive impairment. When do these concerns call for an aggressive incapacity intervention?
In College of Physicians & Surgeons of Alberta v Collett, 2019 ABCA 461, http://canlii.ca/t/j3n6m an Alberta court stated that an interim suspension of a physician’s right to practice was invalid. The Court first held that the matter was not moot even though the practitioner’s registration had since been reinstated. The Court said that it “accepts that a professional’s reputation is a fragile thing and can easily be diminished.” The Court’s ruling might go some small way to repairing that damage.
The Court’s finding that the interim suspension was invalid was made on two grounds. First, there was an insufficient basis for finding that the practitioner’s condition impaired “his ability to provide professional services in a safe and competent manner”. None of the medical reports expressed that opinion but rather suggested further inquiries ought be made at a later time. The College representative expressed “concerns” about the practitioner’s cognitive status, but did not actually state a belief of impairment to the degree required by the legislation.
The second basis of the finding was that there had been procedural unfairness. A period of four months elapsed between the medical report raising the concerns and notification of an intention to suspend the practitioner’s registration. No medical updates were sought during that period. The notification then only provided two clear business days to retire or be suspended. Given the enormity of the impact of the decision on his life and the mild medical evidence, that period of notice was unreasonable. The Court suggested a notice period of some weeks, a month perhaps, was appropriate in the circumstances. The medical concerns were not such as to necessitate “a firehall-like response”.
This case suggests that regulators need to carefully examine the full circumstances of an individual with suspected cognitive impairment, obtain clear evidence of its likelihood to affect a practitioner’s practice, explicitly state the findings they are making, apply the legal test contained in the legislation, and provide a proportionate time for a response in light of the significance of the concerns.
Retirement Rather than Revocation
by Erica Richler
January 2, 2020
There have been a number of cases recently where regulators have been criticized for allowing practitioners to retire or resign rather than face a discipline hearing into serious allegations, such as sexual abuse or incompetence. In British Columbia, the government is consulting on a number of reforms to the health professions legislation, including a proposed reform to prohibit the College from negotiating agreements with practitioners late in the discipline process.
Legally speaking, it is appropriate for regulators to consider alternatives to a formal discipline hearing where the public will be protected. In fact, the public could be better protected by the retirement of a practitioner, especially if it is permanent, than by the uncertain outcome of a contested discipline hearing where even the most severe outcome is not permanent. Regulators often cannot articulate their concerns about the weaknesses of the evidence as a basis for accepting the retirement option.
However, in the court of public opinion, such dispositions may not be acceptable. In making these decisions regulators might wish to consider the following factors:
- The degree to which the alleged conduct is disturbing.
- The views of the complaint(s) even though they are not parties to the proceedings.
- The transparency of the outcome (will it be both public and shown on the public register?).
- The extent to which the alleged conduct requires condemnation as well as cessation.
- The extent to which the regulator can publicly articulate the reasons for the resolution, for example, at a public hearing where the allegations are withdrawn or adjourned indefinitely.
The public interest in these matters is multi-layered.
The Legality of Government Directives
by Rebecca Durcan
December 23, 2019
With increasing frequency, governments have been using informal directives to implement policy rather than the more traditional and formal instruments like regulations and by-laws. A recent decision constraining the authority of government to rule through directives has important implications for autonomous agencies.
In Canadian Federation of Students v Ontario, 2019 ONSC 6658, http://canlii.ca/t/j3hcc the Cabinet of Ontario issued a mandatary guideline that universities ensure the fees it charges students for student organizations be optional. The Divisional Court found that universities were independent of government and there was no authority under the enabling legislation for the Cabinet to issue a directive on this matter. The fact that a significant portion of the funding of universities came from government did not authorize government to impose this restriction on its funding without statutory authority. The Court was unwilling to imply the authority of government to impose this sort of restriction where the enabling statutes were silent on the point.
The enabling statute of many regulators provides some authority for the relevant Minister to intervene in the affairs of the regulator. However, according to this case, that authority (and whether it is to be exercised informally or formally) likely goes no further than what is expressly described in the statute.
Judicial Scrutiny of Delegated Regulation
by Bernie LeBlanc
December 19, 2019
The Ontario Court of Appeal has rejected the proposition that courts should closely scrutinize the general transparency, accountability and adequacy of funding of delegated regulators: Ontario (Attorney General) v Bogaerts, 2019 ONCA 876, http://canlii.ca/t/j3d8n. In particular, the Court overruled the creation of a novel constitutional principle expanding the scope of the review of delegated regulation under “fundamental justice” principles:
I have no doubt that it would be a good idea and sound public policy to make all law enforcement bodies subject to reasonable standards of transparency, accountability and adequate funding and that they be properly funded. But not all good ideas and sound public policies are constitutionally protected or mandated. Our task is not to decide what would be sound policy. We are charged with the more specific task of deciding what the Constitution requires ….
The Court concluded that none of the three requirements for establishing a novel constitutional principle requiring delegated regulators to be transparent, accountable and adequately funded were met in this case:
- To be a legal principle it must provide meaningful content; and avoid the adjudication of policy matters;
- It must be “vital or fundamental to our societal notion of justice”; and
- It must be “capable of being identified with precision and applied to situations in a manner that yields predictable results”.
The Court also found that the specific provisions relating to entry onto premises to help animals in distress were constitutional under existing legal principles. In the regulatory context involving a pressing social need, the provisions relating to search and seizure were reasonable. In addition, the “interference with bodily integrity or serious state-imposed psychological stress” did not rise to the level where the constitutional protections of liberty and security of the person were engaged to create a broader judicial authority to review search and seizure provisions.
This decision reinforces the concept of judicial restraint preventing the courts from intervening in legislative policy decisions unless those decisions also infringe on established legal principles.
Responsibilities of a Designated Manager
by Julie Maciura
December 12, 2019
Some professions require that a registrant be responsible for the overall policies and procedures of a practice. For example, the Ontario College of Pharmacists imposes responsibilities on a designated manager. Each pharmacy must have one. The case of Jaffer v Ontario (Health Professions Appeal and Review Board), 2019 ONSC 6770, http://canlii.ca/t/j3lh5 raises the issue of the duties of the designated manager where a serious error was made by another registrant. In this case, if the other registrant had followed the policies and procedures in place in the pharmacy at the time, the error would not have occurred. The regulator imposed remedial measures on the designated manager because he had not used the error as an opportunity to review the policies and procedures to see whether improvements could be made to prevent future mistakes. The designated manager challenged the decision on the basis that he should not be held accountable for the human error of another registrant who had not followed existing policies. The Divisional Court upheld the remedial measures as reasonable. Designated managers are accountable for their own role where mistakes occur.
There were also issues about whether the regulator had been procedurally fair in giving adequate notice that the communications of the designated manager were in issue in the complaint and whether the prior history, including instances related to communications issues, would be considered. The Court concluded that the designated manager had been given adequate notice of the scope of the complaint and a sufficient opportunity to respond to the prior history.
The designated manager also challenged the failure of the regulator to address in its reasons the generally favourable inspection report that was released contemporaneously with the incident in issue. The Court indicated that a regulator’s reasons need not cover every point raised by the practitioner. The basis for the directed remediation was clear. The fact that the policies and procedures of the practice were generally acceptable did not detract from the need for the designated manager to respond appropriately to the error in this case.
The Court also provided some procedural guidance on judicial review of decisions by the Health Professions Appeal and Review Board (HPARB) in complaints matters under the Regulated Health Professions Act. The Court indicated that while the Inquiries, Complaints and Reports Committee can generally provide submissions on the merits of the decision (at least where the complainant does not appear), HPARB should not do so. The Court also indicated that where an inappropriate affidavit is filed on an application for judicial review, the party opposing its admission should bring a motion before the hearing to determine the affidavit’s admissibility so that the record before the Court can be finalized.
Precautionary Principle Does Not Prevail
by Rebecca Durcan
December 5, 2019
What should a regulator do where:
- A novel procedure (in this case dealing with the disposition of deceased human bodies) is not being operated safely and ethically at the time of an inspection; and
- The procedure has not been established to be safe and has a potential risk associated with it?
In Registrar, Funeral, Burial and Cremation Services Act, 2019 ONSC 6091, http://canlii.ca/t/j2z22 the regulator applied the precautionary principle and proposed to revoke the crematorium operator licence. The Licence Appeal Tribunal declined to revoke the licence.
On appeal, the Court upheld the tribunal’s decision. On the first concern, the Court held that the premises were now operating in accordance with the rules and concerns about future non-compliance were speculative. On the second concern, the Court disposed of the matter on the basis of the regulator carrying the onus proof. The regulator had to provide evidence of risk of harm despite the absence of research on the method of disposition rather than the licensee having to provide evidence of its safety. The precautionary principle did not prevail.
The Registrar is seeking leave to appeal this decision.
No Discrimination Found
by Bernie LeBlanc
December 2, 2019
In the high profile case of Howe v Nova Scotia Barristers’ Society, 2019 NSCA 81, http://canlii.ca/t/j3085 a lawyer was found at discipline to have “been dishonest with the Court, made misrepresentations to the Court, demonstrated a significant lack of candour, was deliberately dishonest, failed to properly investigate client files, and failed to recognize conflicts of interest”. He was disbarred. On appeal the practitioner argued that the investigation and prosecution was tainted by racial discrimination and that he had been subject to differential treatment throughout his dealing with the regulator. The Court found that the hearing panel had carefully reviewed and considered the evidence it received over the course of 66 days. There was no legal error in the panel’s conclusion that the regulator was acting in response to legitimate concerns without discrimination.
The Court also found that the allegation of appearance of bias by one of the panel members on the basis of a pecuniary advantage in eliminating a competitor was, in the circumstances, without merit. The Court agreed with the panel that:
… “the impact of reducing the pool of criminal lawyers by one would have such a minimal impact on the number of clients for [the panel member] as to be insignificant. This cannot form the basis of a reasonable apprehension of bias by a reasonable person. [It] cannot form the basis to rebut the presumption of impartiality.”
BC Reforming the Regulation of Health Professions
by Erica Richler
November 27, 2019
The all-party steering committee formed after the publication of Harry Cayton’s report last April (see: https://www2.gov.bc.ca/assets/gov/health/practitioner-pro/professional-regulation/cayton-report-college-of-dental-surgeons-2018.pdf) has released a consultation paper with specific recommendations. The consultation paper includes the following recommendations for the modernization of the regulation of health professions in British Columbia:
- Governance. Regulatory Colleges should be governed by a Board consisting of 8-12 people, half of whom should be members of the public. Board members would be fairly compensated so that they are no longer viewed as volunteers. The Board would be selected through a competency-based process overseen by an independent oversight body.
- Reduction in the Number of Colleges. The twenty current Colleges would be combined into five Colleges: Nursing, Medicine, Pharmacy, Oral Health Professions, and all of the other currently regulated professions would be governed by the Health and Care Professions College.
- Oversight Body. An independent oversight body would be established. It will have a broader mandate than even the Professional Standards Authority of the UK. Its functions will include auditing, reviewing and investigating the performance of regulatory Colleges, creating template standards, approving regulatory College bylaws, recommending changes to the regulation of health professions, and operating a single public register of all practitioners.
- Complaints. Complaints would still be conducted by the Colleges through a more streamlined process with timelines for individual stages in the process. Agreements disposing of complaints will be public and placed on the public register. Colleges will also be able to make limited public comments about the nature and status of pending investigations. The complete prior complaints history of the practitioner must be considered by the Inquiries Committee. Colleges can share information and coordinate actions with other “health system stakeholders”. For example a complaint about a health care team could be coordinated by the affected Colleges so complainants only have to deal with one College and a consistent outcome results.
- Discipline. Discipline hearings will be removed from the Colleges and be conducted by independent, unified, discipline panels managed by the oversight body.
The consultation paper can be found at: https://engage.gov.bc.ca/app/uploads/sites/578/2019/11/Modernizing-health-profession-regulatory-framework-Consultation-Paper.pdf.
Submissions will be received up to January 10, 2020.
Registrar of Regulator Testifies as an Expert Witness
by Julie Maciura
November 25, 2019
Courts give regulators deference. In some cases that deference is quite broad. An example of broad deference is found in Pomarenski v Saskatchewan Veterinary Medical Association Professional Conduct Committee, 2019 SKQB 264, http://canlii.ca/t/j2x9z. The case dealt with a veterinarian’s care for an injured dog. During the hearing the Registrar, who was also a veterinarian, testified about the standard of practice that should have been applied. Despite the absence of notice of the expert testimony, the Court deferred to the tribunal’s admission of the evidence both because the tribunal was not bound by the civil rules of evidence and because the tribunal would have had its own expertise to apply to the facts of the case.
The Court also held that there was no double jeopardy as the five headings of misconduct were simply particulars of one allegation of professional misconduct.
The Court did set aside the costs order for paying all of the regulator’s costs (totalling $42,000) because the hearing panel did not follow a fair procedure in hearing evidence and receiving submissions justifying the specific amount, because the amounted exceeded past precedents and because the panel did not give reasons explaining how it arrived at its conclusion. The issue of costs was returned for a fresh decision.
Rare Order Stays Investigation of a Complaint
by Erica Richler
November 21, 2019
There is little doubt that it is rare for a Court to stay the simple investigation of a complaint pending the outcome of an application for judicial review challenging the investigation. However, Fawcett v College of Physicians and Surgeons of the Province of Alberta, 2019 ABQB 788, http://canlii.ca/t/j2s0s is such an exceptional case.
There, a lengthy and detailed complaint by a co-worker was made against a physician to her employer, a hospital. After a thorough investigation, the hospital dismissed the complaint. The co-worker then complained to the regulator for the physician. The regulator formally decided not to investigate the complaint being of the view it was primarily about work-related issues and did not, on its face, reveal any professional misconduct. The complainant appealed to the regulator’s internal Complaints Review Committee which determined that the complaint warranted investigation. The physician sought judicial review of that decision and requested a stay of the investigation while the judicial review was pending.
The Court granted the stay. It viewed the burden on the physician of responding to the detailed complaint as causing her irreparable harm:
… I am persuaded that a written response other than a blanket denial would be a time-consuming and repetitive exercise. Time alone is a precious commodity, and Dr. Fawcett is statutorily barred under the [the enabling statute] from seeking compensation from the College for either time or mental distress.
Given the above and given the delay in the matter reaching the College, the Court concluded that as between the physician and the College the balance of convenience favoured the physician.
The outcome might have been different if there had not been an initial decision by the regulator that the complaint was not worth investigating.
Some Protected Titles May be Unconstitutional
by Rebecca Durcan
November 18, 2019
Many regulators have two types of title protection provisions. The first reserves a title associated with a profession for use only by those registered with the regulator. No unregistered person can use the title in any context. The second prohibits the use of any title that can confuse the public as to whether the individual is qualified or competent to practise the profession.
In a case that played prominently in the media, the first provision has been found to be an unconstitutional infringement of the freedom of expression protections contained in the Canadian Charter of Rights and Freedoms: College of Midwives of British Columbia v MaryMoon, 2019 BCSC 1670, http://canlii.ca/t/j2nn8. Ms. MaryMoon, who assisted individuals and families through the dying process, called herself a “death midwife”. The regulator for midwives sought an injunction to prevent her from using the title “midwife”. She opposed the restraining order on the basis that her use of the term had nothing to do with the practice of midwifery. She argued that no member of the public would be confused by her use of the title.
The Court concluded that the provision did infringe on Ms. MaryMoon’s freedom of expression. The Court also found that there was insufficient evidence justifying the necessity for the provision that did not mislead the public. In its reasoning the Court found that the public was adequately protected by the other provision prohibiting anyone from using a title or designation suggesting the person was qualified or competent to practice the profession while unregistered. The Court not only declined to issue the injunction, but also declared the provision to be unconstitutional.
The College has appealed.
Curing Procedural Deficiencies
by Bernie LeBlanc
November 15, 2019
Procedural missteps by a regulator can often be cured. In Volochay v College of Massage Therapist, 2019 ONSC 5718, http://canlii.ca/t/j2np8, serious allegations of sexual abuse had been set aside in 2011 by the Divisional Court because the regulator did not follow the specified complaints procedure. However, on further appeal in 2012, the Court of Appeal found that the practitioner had an adequate alternative remedy and the matter was permitted to proceed. The matter was subsequently investigated, resulting in a referral to discipline. The practitioner was found to have engaged in professional misconduct. On appeal from the discipline decision, the Court held that the initial procedural defects had been cured by the subsequent investigation and hearing process where the practitioner was given notice and an opportunity to participate.
The Court also declined to receive “fresh evidence” that was available at the time of the hearing, the authenticity and relevance of which was questionable. The Court further held that the alleged delay taken to investigate the matter did not amount to procedural unfairness or an abuse of process, particularly since the practitioner was able to practise in the interim and no specific prejudice was established.
The Court also found that the credibility findings were adequately explained in the reasons for the panel’s decision, when read as a whole. The reasons included the basis for finding that the practitioner’s evidence was not credible.
Accessing Files When Responding to a Complaint is not a Privacy Breach
by Julie Maciura
November 12, 2019
Prior to the enactment of private sector privacy legislation over the past couple of decades it was generally accepted that the filing of a complaint provided implied consent for the practitioner to review their files and make a response. This was true even if the access and response involved confidential client information. In JK v Gowrishankar, 2019 ABCA 316, http://canlii.ca/t/j26r6 the issue was whether privacy legislation altered this approach. In that case a patient made complaints against two practitioners about their treatment: one to the health facility and one to the regulatory body. For the complaint to the regulatory body the patient provided consent for the regulatory body to have access to the patient’s personal health information. However, the practitioners themselves accessed the patient’s files to respond to the complaint.
The patient then made a complaint to the Information and Privacy Commissioner about the practitioners accessing the patient’s personal health information to respond to the complaints. The designated delegate of the Commissioner found in favour of the patient. However, on judicial review both levels of the Court reversed the finding and held that the practitioners had not breached the privacy legislation. They relied on the statutory exception permitting use for “conducting investigations, discipline proceedings, practice reviews or inspections relating to the members of a health profession or health discipline”.
The Court of Appeal concluded that the practitioners were covered by the exception because the use of the information was related to the investigation and was not for their personal use:
Any investigation requires the gathering of relevant information. An investigation is also contextual in that the information gathered will depend on the nature of the matter being investigated. At a minimum, it requires information surrounding the matter under investigation. It also assists the investigation if the person being investigated provides their response to the matter at issue. The response of the person being investigated is not for their personal benefit but for the benefit of the investigation as a whole.
The Court warned that the access and use of the information would have to relate to the scope of the investigation and not go beyond that.
The Court also held that the consent signed by the patient for the regulator to have access to the patient’s personal health information also authorized the actions of the practitioners.
The Court concluded:
A reasonable interpretation of the [privacy statute] requires a balancing of the competing values identified in s 2 of the Act. The adjudicator’s interpretation gives prominence to the privacy of the individual over appropriate sharing and access of health information to manage the health system. A complaint to a professional governing body, like the College, engages potentially serious consequences to a physician including the loss of his or her license to practice. While the jeopardy faced by the physician is not that of a criminal proceeding, the physician must be able to respond to the complaint… An interpretation that fails to balance competing values is unreasonable…
While the pathway of legal reasoning is different from what existed before private sector privacy legislation, the outcome seems quite similar. In fact, the approach taken in this case might even support practitioners accessing and using personal client information where the complaint is made by someone other than the client.
Fishing Expeditions and Frustrated Investigations
by Erica Richler
November 5, 2019
Regulators do not have a duty to ensure that practitioners under investigation are satisfied that the investigation is well supported before the practitioner provides information to the regulator. In Cusack v Law Society of Ontario, 2019 ONSC 5015, http://canlii.ca/t/j284r the practitioner was under investigation for allegations that he permitted the unauthorized practice of law. The practitioner refused to provide the files requested by the regulator unless he first had disclosure of the basis of the investigation and had an opportunity to make submissions on the scope of the disclosure requested. The practitioner questioned whether the investigation might be a fishing expedition. In upholding the resulting discipline finding for non-cooperation the Divisional Court said:
The Law Society is one of many self-governing professions in the Province of Ontario. It is fundamental to the ability of a self-governing profession to properly regulate itself. Part of self-governance is the ability to discipline its members where professional misconduct occurs. The ability to discipline can only occur where the professional body has the ability to investigate its members when confronted with a complaint. A full and complete investigation provides confidence to the general public that it can rely on a self-governing profession. … [T]he failure of someone under investigation to co-operate in an investigation results in delay that can jeopardize the collection of evidence, including the obtaining of statements from witnesses. Ultimately, this can result in the backlog of investigations, which can lead to an erosion of confidence in the ability of the Law Society to self-regulate itself.
The Court said there was no disclosure obligation on the part of the regulator unless the matter was referred to discipline.
by Rebecca Durcan
October 29, 2019
Imagine being the Chair of the Examination Committee of a professional regulator and receiving a report for review that is copied from one you have written. That occurred in Young v Alberta Assessors’ Association Practice Review Committee, 2019 ABQB 740, http://canlii.ca/t/j2jpb. An investigation ensued and ten practitioners were disciplined for copying the reports of others. On appeal by two of the practitioners, one of the points argued was that plagiarism was speculative and had not been proved. The Court upheld the discipline finding. The Court concluded that the process of identifying potential plagiarism through a computer program and then individually assessing the similarities for those that were unexpected (e.g., in the discussion portion of the reports rather than in the portions summarizing legislation and setting out definitions) was appropriate. The Court said:
They rightly concluded that the identical or highly similar wording contained in those sections of the Reports where analysis and application of concepts were required, coupled with common typographical errors and common mistakes, could only be reasonably accounted for by copying or plagiarism. Given where the similarities and identical wording were contained, and given that the typographical errors and obvious mistakes would be unlikely to be found in a textbook or other student resource, the overwhelming inference is that plagiarism/copying had occurred in relation to the Reports of Ms. Young and Ms. Skolney.
The Court concluded that the findings were based on reasonable inference and not speculation.
In response to the argument that the conduct did not constitute a breach of the Code of Ethics, the Court said:
Not only was copying or plagiarising prohibited under the terms of the course that was required as a condition of membership, copying another’s work and holding it out to be one’s own would generally be considered an act of dishonesty and a lack of integrity. Permitting this type of conduct – specifically permitting students to pass off other’s work as their own in the context of obtaining accreditation/membership in a professional organisation – might well result in a diminishing of public confidence in that professional group.
False Factual Findings
by Bernie LeBlanc
October 22, 2019
When a tribunal makes an erroneous factual finding a court will review the significance of the error in determining whether to set aside the decision. In Berger v Saskatchewan (Financial and Consumer Affairs Authority), 2019 SKCA 89, http://canlii.ca/t/j2fgr, a hearing panel found that Mr. Berger had traded in securities in Saskatchewan even though at all times he was in Costa Rica. One of the issues was Mr. Berger’s relationship with another player in the transactions, Latin Clearing. The hearing panel found that Mr. Berger had, at first, denied knowing who Latin Clearing was but there was no evidence to support that finding. The hearing panel’s conclusion that Mr. Berger was not credible was based in large part on that finding. The Court concluded that the error had a potentially significant impact on the finding and set aside the panel’s decision.
The Court also made the following additional findings:
- There had been no procedural error in denying an adjournment where the request was made late, the basis for the adjournment request was inconsistent (i.e., need to obtain legal counsel, a major family event) and where Mr. Berger indicated at the hearing that he could not afford legal counsel and offered no plan on how to retain legal counsel.
- There was also no procedural error by the hearing panel for providing allegedly insufficient support during the hearing as to the scope of the allegations as the allegations were sufficiently clear from the notice and disclosure and the discussions during the hearing itself.
- The Court was concerned that the hearing panel did not squarely address the issue of whether there was a sufficient connection between Mr. Berger and the allegations to Saskatchewan. The Court indicated that the new hearing panel should properly address that issue.
This case shows that even findings of credibility will be set aside when they are not based on facts led in evidence.
Forward Looking vs. Backward Looking Sanctions
by Julie Maciura
October 17, 2019
Most professional discipline statutes allow the imposition of a sanction upon a finding of misconduct. Sometimes called a “penalty”, the order imposes a consequence for the conduct. While consideration is given to the reform of the practitioner and deterring and guiding their future behaviour, there is a retrospective component to the order.
In many licensing statutes a Notice of Proposal model is used. A regulator proposes to terminate (or otherwise limit) the licence of the practitioner on the basis that their prior conduct “affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty”. This approach tends to be forward looking to the prospective conduct of the practitioner.
In Niagara Funeral Alternatives Inc. v Registrar, Funeral, Burial and Cremation Services Act, 2002, 2019 ONSC 4966, http://canlii.ca/t/j240k the Divisional Court considered this distinction. The Court recognized that for many cases, including that one, the difference in approach has no practical effect. However, the Court indicated the distinction was real and encouraged regulators to avoid “loose language”. It gave one example of where the difference in approach might be material. The failure of the practitioner in that case to acknowledge their errors supported a disposition that terminated the licence.
Claim Against Regulator is an Abuse of Process
by Erica Richler
October 15, 2019
A relatively recent amendment to the Court’s Rules of Civil Procedure allows a court to dismiss an action that “appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court”. That provision was recently used to dismiss an action against a regulator and those involved in the discipline of practitioner.
In Khan v Law Society of Ontario, 2019 ONSC 4974, <http://canlii.ca/t/j262p> a practitioner had been revoked after a discipline hearing on allegations of billing irregularities and alleged forged documents. While appealing the decision he also brought a civil claim for damages against the regulator on various grounds. The Court said: “you do not sue an adjudicative tribunal and its members because you disagree with the procedure and the result, especially when you are already appealing”.
This new rule of procedure permits the dismissal of a civil action in obvious cases through a streamlined process.
Disclosing the Names of Panel Members
by Rebecca Durcan
October 9, 2019
In Gouniavyi v Yukon (Government of), 2019 YKSC 40, http://canlii.ca/t/j1zzn the discipline finding against a pharmacist was set aside because of a series of procedural errors. The main error resulting in the reversal was a failure to particularize the alleged dispensing errors. The allegation of a pattern of errors was insufficient to alert the pharmacist of the case that had to be met.
One error of interest was characterized as being insufficient to set aside the decision on its own. The Court indicated that the names of the panel members considering the matter should have been disclosed, at least in the final decision and reasons, so that the practitioner could raise any concerns about the existence of an appearance of bias. Disclosure of the names was part of the transparency and accountability of the process. It is unclear whether the disclosure of the names of panel members needs to be given in advance of the decision or whether this principle applies to panels in non-disciplinary matters. Would posting the names of all of the committee members on the regulator’s website suffice? It is also unclear whether there could be exceptions (for example, where there are safety concerns).
A number of other procedural errors were identified including the failure to offer the practitioner an opportunity to make submissions as to penalty.
What Constitutes Malice?
by Bernie LeBlanc
October 7, 2019
To establish a cause of action against a regulator for malicious prosecution, the plaintiff has to, obviously, plead and establish malice. In Bahadar v Real Estate Council of Alberta, 2019 ABQB 633, http://canlii.ca/t/j1z2v the practitioner alleged that the regulator, members of their staff, the disciplinary tribunal and the regulator’s lawyers had been malicious in pursuing a discipline matter against him. The particulars of malice included such things as proceeding with the investigation and prosecution knowing they did not have a case, proffering evidence they knew to be false and concealing relevant information from the practitioner.
The regulatory defendants brought a motion to dismiss the action on the basis that no malice had been pleaded. For the purposes of the motion, the Court had to accept the pleadings as true. The Court indicated that what constitutes malice “is a difficult and murky issue”. The Court held that while it was not certain that these facts, if true, constituted malice, the Court was not in a position to say that the facts do not constitute malice. The case was allowed to proceed.
by Julie Maciura
October 2, 2019
Courts and tribunals operate from the default position that their proceedings are open to the public and the information revealed during the hearing is also public. Restrictions on access to that information require evidence that they are necessary to prevent a serious risk to an important public interest.
Rhyno v Nova Scotia Barristers’ Society, 2019 NSCA 67, http://canlii.ca/t/j1r3b gave guidance as to when this test is likely to be met:
- The identities of clients of the practitioner will often be protected because the professional confidentiality requirements create an expectation of privacy of that information and because disclosure may discourage clients from coming forward to the regulator.
- The identities of third parties involved in the events will ordinarily not be protected because there is no expectation of privacy.
- The medical information of the practitioner may be protected from disclosure because it is inherently personal and private.
This decision provides some guidance to regulators as well.
Stay Granted Where Public Not At Risk
by Erica Richler
September 30, 2019
In the ongoing saga of Fitzpatrick v College of Physical Therapists of Alberta, 2019 ABCA 306 http://canlii.ca/t/j1zgj, the practitioner is seeking leave to appeal to the Supreme Court of Canada of an appellate court decision upholding her discipline findings. The practitioner sought to stay the discipline order until after the Supreme Court of Canada makes its decision. The Court granted the stay, indicating:
The balance of convenience favours the granting of a stay for a short period until the Supreme Court of Canada makes a determination on the leave application. The underlying allegations lean more towards administrative issues and the overall compliance or lack thereof, with the court orders. While the finding of unprofessional conduct and sanctions relate to professional disrespect, the public is not at risk during this brief interim period.
Adding Parties to a Proceeding
by Rebecca Durcan
September 25, 2019
One reason for adding a party to a proceeding is to ensure that both sides are present to provide arguments to the panel as part of the adjudicative process. In HE v APEGA Appeal Board, 2019 ABCA 298, http://canlii.ca/t/j1w4d, a professional engineer appealed a discipline finding to court. The legislation made the tribunal, as opposed to the prosecutor, the respondent to the appeal. Generally the tribunal is limited in what submissions it can make of its own decision. The tribunal requested that the prosecuting entity at the discipline hearing be made a party to present the other side of the argument to the Court. The Court agreed indicating that this was appropriate and added the prosecuting entity as a party.
There are other circumstances in which a third entity can be added as a party to the proceedings. But the starting point for the analysis is to ensure that both sides at the original proceeding have standing.
What Do we Do Now?
by Bernie LeBlanc
September 23, 2019
Administrative mistakes happen. The challenge then is to figure out an appropriate response. In Hilson v 1336365 Alberta Ltd., 2019 ONCA 653, <http://canlii.ca/t/j1x45>, three members of the Ontario Court of Appeal heard a case. Two members participated in drafting reasons for decision. By accident the draft decision and reasons was sent to a different member of the court, who had not participated in the appeal, who signed it. The decision and reasons was sent out. When the error was discovered the Court determined as follows:
- The issued decision was not valid.
- It would now be unfair to have the third member of the Court review the decision and reasons to decide whether or not to agree with it, or to dissent from it.
- A different panel of the Court needed to deal with the matter and issue a fresh decision.
This outcome reinforces the importance of ensuring that every member of the panel participate in both making the decision and in drafting the reasons before the decision is released.
The Right of a Practitioner to Defend Themselves
by Julie Maciura
September 18, 2019
In an interesting pharmacy case, a practitioner was found to have engaged in professional misconduct by inducing vulnerable patients to transfer to his practice, including by offering gift cards and reduced dispensing fees. Some of the activity involved using confidential information to contact patients from other pharmacies where the practitioner provided relief services.
In Ghobrial v Ontario College of Pharmacists, 2019 ONSC 4776, http://canlii.ca/t/j1z8m, the Court upheld the findings of misconduct including the findings of credibility. The panel had adequately explained its credibility finding. It also found that there had been no reversal of the onus of proof when the panel commented negatively on the credibility of the practitioner tendering evidence as exculpatory that had no logical relevance to the issues.
On the issue of sanction, the panel imposed a twelve month suspension even though the practitioner submitted that a four month suspension was adequate and the regulator asked for a six month suspension. The Court held that this was acceptable and that, unlike a joint submission, there was no obligation to notify the parties that it was exceeding the maximum requested to hear additional submissions.
However, the Court found that it was an error of law for the panel to consider as an aggravating factor impact on vulnerable patients by requiring them to travel to the hearing and testify. “The Committee made an error of law in describing the Appellant’s exercise of his right to a hearing as an aggravating factor.” The Court reduced the suspension to ten months.
Challenging the Constitutional Validity of Admission Requirements
by Erica Richler
September 16, 2019
Non-government agencies who administer examinations required for registration with a regulator are often subject to judicial review: Kabiri v The National Dental Examining Board of Canada, 2018 BCSC 1938, http://canlii.ca/t/hvxxd. This can include challenges for failing to comply with the Canadian Charter of Rights and Freedoms. However, in a recent case in the Saskatchewan Court of Appeal, limits were imposed on those challenges.
In Yashcheshen v University of Saskatchewan, 2019 SKCA 67, http://canlii.ca/t/j1qkw an individual wished to enter law school. The law school required applicants to complete a law school admission test (LSAT). The applicant asked to be excused from the LSAT requirement because of her disability. The school refused. She also asked for accommodation:
She requested a large print test booklet, seating close to a washroom and “stop the clock” testing, i.e., testing wherein the time allotted for writing the LSAT would be extended by the amount of time she spent away from the testing room. It appears that she also asked for permission to use marijuana during testing and breaks. The Admission Council seems to have granted Ms. Yashcheshen some accommodations in the form of extended times to write each test section and extended break times between test sections. It declined to offer her stop the clock testing or permission to use marijuana.
The Court of Appeal upheld the determination that the school was not subject to the Charter even though the LSAT was an admission requirement. The Court held that the law school was not a part of the government (even though it received significant government funding), it was not engaging in government activity and it was not implementing a specific government policy or program.
Unfortunately, for the purposes of future guidance, the Court did not comment on the appropriateness of the school refusing some of the accommodation requests.
The Court also upheld the lower court finding that there was no appearance of bias on the school’s part because the Dean may have been involved in a Law Society registration matter in which the applicant “supported” another applicant. The bias argument was “unreasonable and suspicious at best”.
Procedural Fairness for Registration Assessments
by Rebecca Durcan
September 12, 2019
An Alberta court has provided valuable guidance to regulators in ensuring that their registration assessments are fair. In Mohamed v College of Physicians and Surgeons of Alberta, 2019 ABQB 657, http://canlii.ca/t/j22sb an internationally trained anesthesiologist was required to successfully complete a three month Practice Review Assessment in order to become registered. Within weeks his assessor concluded that the applicant would not be successful and the assessment was terminated.
The Court found that the assessment process was procedurally unfair for a number of reasons:
- The Manual for applicants was out of date and inaccurate. The Court was scathing in its comments about the need for regulators to ensure that the documents on its website are up to date. Even though the applicant had not relied on the Manual, even the letter of understanding that he did rely upon was not followed.
- The applicant was given no orientation in advance of the assessment despite twice requesting it. Even the assessor noted that the applicant “with no identification, access cards or parking, in short, no orientation to this working environment at all”.
- The applicant was advised to carefully review two assessment tools that were going to be used. Instead another tool was used. The Court rejected the argument that the tool used was similar and “would not have changed the outcome but that cannot be known since [the applicant] was told to carefully prepare for an assessment involving tools that were, without his knowledge, replaced with others.”
- The applicant was given no feedback in advance of the assessor’s recommendation to terminate the assessment. Also the assessor proceeded “without consulting with several other physicians who had had an opportunity to observe [the applicant] and without sharing his own observations with [the applicant] before providing them to” the regulator.
The Court set aside the decision to require the applicant to undertake additional training before again attempting an assessment. The Court directed that the next assessment be deemed to be the applicant’s first attempt.
These procedure expectations are valuable for all registration assessment processes, including examinations.
Proving Contempt of Court on Circumstantial Evidence
by Bernie LeBlanc
September 9, 2019
Establishing unauthorized practice can be difficult as many clients are happy to receive the service or, at the very least, are reluctant to testify about it. Sometimes only circumstantial evidence is available.
In College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia v Chik, 2019 BCSC 1135, <http://canlii.ca/t/j1gcp> an unregistered person was subject to a restraining order prohibiting them from practising traditional Chinese medicine (TCM) or acupuncture. The regulator placed the person under surveillance. He was observed going into a number of private residences with a black bag and leaving after a period of time consistent with providing treatment. Five months later a search warrant was obtained and a significant quantity of acupuncture and TCM supplies were found in the black bag and at the person’s residence. While the Court concluded that the person was probably practising TCM and acupuncture contrary to the restraining order, this had not been proved beyond a reasonable doubt (as required to prove even a civil contempt of court).
The challenges of obtaining evidence for unauthorized practice are not to be underestimated.
The Precautionary Principle
by Julie Maciura
September 5, 2019
How should regulators deal with new technologies where the risks of harm are uncertain? One Ontario regulator has had to face this challenging issue. A new form of chemical cremation was adopted by a funeral home. After liquefying the remains, the fluid is released into the municipal waste water system. Studies have shown that a high temperature version of this process neutralizes potential harmful agents. However, studies have not established the safety of a low temperature version of the process. The funeral home in issue used the low temperature version. The regulator suspended the funeral home’s licence. Part of the basis for doing so was to apply the precautionary principle that the public should not be exposed to a potentially fatal risk until the safety of the process was established. The appeal tribunal concluded that the risk of harm was so low that the licence should be reinstated.
The Court restored the interim suspension until an appeal could be heard of the tribunal’s decision. The balance of convenience favoured the protection of the public over the financial implications to the funeral home. See: Registrar, Funeral, Burial and Cremation Services Act, 2019 ONSC 4298, <http://canlii.ca/t/j1hj9>.
Lack of Insight Justifies Revocation
by Erica Richler
September 4, 2019
Regulators generally prefer a remedial approach to practice concerns in the absence of deliberate misconduct. However, where even a skilled practitioner lacks the insight to practise safely, revocation can be justified.
In Doyle v Discipline Committee of the College of Physicians and Surgeons of Ontario, 2019 ONSC 3905, http://canlii.ca/t/j15sr the practitioner had been found to have crossed boundaries and exercised poor judgment. The practitioner was receiving ongoing therapy and had undertaken scores of educational courses since the current concerns arose. However, the discipline panel expressed concern about the feasibility of changing the practitioner’s behaviour: “given numerous chances at remediation with many years of psychotherapy, supervision, monitoring and practice restrictions. Despite this, he is still struggling with professionalism, boundary issues, and clinical care…” that put his patients at serious risk. The Court upheld that revocation was reasonable given this lack of insight.
On a side note, there was discussion as to what use could be made of the practitioner’s failure to testify. The Court said: “I should note that, in the civil context of this proceeding, there would be nothing objectionable had the Discipline Committee drawn an inference that Dr. Doyle’s failure to testify signified his view that his testimony would not be helpful to his case.” While the discipline tribunal did not make that inference, it was entitled to note that his lack of testimony prevented it from evaluating his level of insight from his own words.
Nova Scotia Independent Review of Sexual Abuse Processes
by Rebecca Durcan
August 28, 2019
The College of Physicians and Surgeons of Nova Scotia released a report of an independent review of the regulator’s processes for dealing with sexual abuse matters. The report made a number of recommendations that will be familiar for those monitoring such reviews in other provinces. Recommendations include making the process of filing complaints more accessible, providing supports to those making complaints of sexual abuse, and ensuring that the hearing process is sensitive to the needs of those who have experienced trauma (e.g., publication bans, testifying out of sight from the practitioner).
Unlike the Ontario legislation, the reviewers were supportive of informal resolution of such complaints so long as they were complainant-initiated and led. In addition, the reviewers promoted that serious consideration should be given to closing all or part of the hearings to protect the privacy of the patients (and not rely solely on publication bans).
Also somewhat novel, the reviewers recommended that the discipline tribunal develop written guidelines for assessing the relevance of questions that could be asked of complainants, including identifying impermissible myths and stereotypes that would be deemed not relevant. Those guidelines would be based on the experience developed in criminal law relating to sexual assault.
The report can be found at: https://cpsns.ns.ca/wp-content/uploads/2019/07/CCLISAR-CPSNS-Final-Report.pdf.
Another Interim Order in a Sexual Abuse Case is Reduced
by Bernie LeBlanc
August 26, 2019
In Kumar v College of Physicians and Surgeons of Alberta, 2019 ABQB 514, http://canlii.ca/t/j1cqs a pediatrician was charged criminally with sexual assault and sexual interference with a minor. The charges were unrelated to his professional practice. As is often the case, the regulator was unable to obtain much evidence about the allegations pending the completion of the criminal process. The practitioner undertook to practise with a chaperone and post a sign in his clinic notifying patients of the requirement. Yet the regulator still imposed an interim suspension. The Court set aside the interim suspension (but maintained the terms of the undertaking) on the basis that the balance of convenience favoured the practitioner. The harm to his practise of a suspension was so significant that the public interest in protecting patients from harm did not justify such an intrusive step on the basis of the evidence then available to the regulator.
In applying the balance of convenience test, the Court indicated that some deference should be accorded to the regulator, but that the Court was not limited to assessing only whether the regulator’s decision was unreasonable. The Court did note that the facts of each case would determine the degree of risk to the public when assessing the balance of convenience.
Formulating a Penalty Order in Discipline in Sexual Abuse Cases
by Julie Maciura
August 22, 2019
There seem to be fewer areas in which courts have been giving confusing guidance to discipline panels than in the ordering of sanctions in sexual abuse cases. A major issue has been whether the range of sanctions should evolve to become more stringent in recognition of societal expectations or whether consistency with past decisions should be given priority. In Ontario (College of Physicians and Surgeons of Ontario) v Lee, 2019 ONSC 4294, http://canlii.ca/t/j1j5g the latter consideration seemed to prevail.
In that case the practitioner was found to have engaged in sexual misconduct (mostly language and gestures, but one instance of touching with his groin) with two patients. The discipline panel revoked his registration. The Divisional Court set that order aside and returned it for a new sanctioning hearing (where revocation was off the table) for a number of reasons including:
- Revocation was not consistent with prior decisions involving more serious conduct;
- Revocation was not proportional to the nature of the conduct that occurred;
- Excessive consideration was given to specific deterrence despite the evidence that suggested the practitioner was previously compliant with restrictions on his practice.
- The panel’s reliance on an earlier court decision that encouraged the increasing of sanctions for sexual abuse findings to reflect contemporary societal expectations, which court decision was later reversed on appeal.
- The panel’s failure to consider that the impact of the conduct on one of the patients was minimal.
This latter point is puzzling as many would say that the sanction should not depend on how much the “victim” was impacted by the conduct, as that is a matter of sheer luck. Rather, one would think that the potential (or even usual) impact of the conduct is a much more objective and relevant consideration. In any event, it is thought by many working in the area of sexual abuse that some impacts of sexual abuse may not be apparent in the short term.
Other points of interest in the case include:
- While it is preferable for the discipline panel to expressly discuss the lack of credibility of the practitioner when a finding is made against them, it is not always necessary. For example, in this case the testimony of the two patients was so diametrically opposite to that of the practitioner, that the discussion of their credibility implicitly addressed the lack of credibility of the practitioner.
- The rule in Browne v Dunn does not require the practitioner to be cross-examined directly on the specifics of the allegations where the practitioner is aware of them when testifying. There is no unfairness in failing to give the practitioner another opportunity to explain their response to the allegations.
- Ordering security for potential funding by the regulator should only be ordered where there is some evidence that the client will be making a claim for the funding.
Compelling a Reluctant Witness to Testify in a Sexual Abuse Matter
by Rebecca Durcan
August 20, 2019
This issue has again come up, this time in the context of an investigatory summons. In College of Physicians and Surgeons of Ontario v Dr. Kayilasanathan, 2019 ONSC 4350, <http://canlii.ca/t/j1hq9>, a mandatory report was filed by another physician that an unnamed patient had been sexually abused by the practitioner. The patient had refused to consent to her name being included in the mandatory report (as was her right). The regulator, upon receiving the mandatory report used its investigative powers to summons the reporting physician’s chart to learn of the identity of the patient. It then summonsed the patient to give a statement. She complied. At the discipline hearing the regulator again summonsed the patient to testify, as she was reluctant to do so voluntarily. The patient attempted to quash the summons on the basis that she had never consented to being part of the investigation. However, the discipline panel upheld it because the patient had highly relevant evidence and that there had been no abuse of process in the manner of the College’s investigation of the matter.
The Divisional Court held that the practitioner had no standing to challenge the discipline panel’s ruling on the validity of the summons. That challenge only affected the patient’s legal rights. Even if the practitioner had standing, there was no abuse of process. The right of the patient to refuse the inclusion of her name in the mandatory report did not prevent the College from using its investigative summons to obtain her identity and question her. So long as the College considered her reluctance at the time, it was open to the College to conclude that the public interest outweighed the patient’s privacy interests.
The Divisional Court made short shrift of the practitioner’s argument that the person was not really his patient. The practitioner had made clinical notes for the visits, had billed for the services and had issued a medical report excusing her from an examination.
The Court also upheld the discipline panel’s right to make an adverse inference from the failure of the practitioner to testify once a prima facie case had been established.
The Most Complex Discipline Case in Recent Memory
by Bernie LeBlanc
August 15, 2019
The Divisional Court described the case of Ontario (College of Physicians and Surgeons of Ontario) v Kunynetz, 2019 ONSC 4300, <http://canlii.ca/t/j1m2m> as one of the most complex discipline cases it has ever reviewed. The Court also observed that with the 2017 expansion of the scope of mandatory revocation for sexual abuse, motions and challenges to evidence are likely to become more frequent in such cases. The Court suggested that regulators should develop policies and procedures for hearing panel selection and scheduling of hearings to ensure that they do not extend unduly over a period of years, like this case did.
The Court undertook a detailed review of the credibility findings of the discipline panel on the main finding of sexual abuse. The Court held that the credibility findings of the discipline panel did not provide “an intelligible and reasonable line of analysis as to the credibility and reliability of the evidence” because of a number of omissions including:
- Failing to explain why the practitioner’s evidence of what he would have done was rejected (the practitioner acknowledged he had no individual recollection of the incident).
- Treating the practitioner and complainant differently regarding the way they refreshed their memories from previous statements without explaining why.
- Being inconsistent in its consideration of discrepancies and inconsistencies of the practitioner and the complainant in discrepancies of comparable significance.
- Failing to give sufficient weight to the credibility of the practitioner even though his evidence coincided in relevant ways with that of the complainant.
- Failing to explain why the panel accepted some of the practitioner’s evidence but rejected other aspects of it.
- Focussing on one example where the practitioner changed his testimony without placing that in the context of his days of testimony on other matters without panel comment.
The Divisional Court also found that the regulator had reversed the burden of proof by failing to establish (by expert evidence, it was suggested) that there was no clinical justification for the touching of the patient’s breasts.
The Court also found that “the decision to find that the Appellant engaged in disgraceful, dishonourable or unprofessional conduct by allowing his fat pad to come into contact with the body of a patient, not accompanied by a warning, apology or excuse, is not reasonable” because he was caught by surprise by that allegation. It had not been part of the notice of hearing, particulars, cross-examination at the hearing or even closing argument.
The Court provided its non-binding view on the retrospectivity of new grounds for the mandatory revocation of a certificate of registration. In particular, prior to the May 30, 2017 amendments, touching a patient’s breasts without a clinical basis had no mandatory minimum penalty. On or after May 30, 2017, revocation was mandatory for such touching. The discipline panel concluded that given the public interest purposes of the amendment, the mandatory penalty applied to such touching that occurred before the amendments. The Court held that this issue was one of general law, and that deference should not be awarded to the interpretation of the amendments by the discipline panel. If the Court had not set aside the finding in respect of the practitioner’s touching of the patient’s breasts, it would have held that the mandatory revocation amendments did not apply to this case.
The Court substituted the decision on penalty for the two less serious allegations that were upheld by ordering a retroactive suspension, which the practitioner served from the date of an earlier interim order up to the date of the Court’s order.
In a footnote the Divisional Court also raised concerns about some of the rulings not being signed by all of the panel members. The Court suggested that this could create an issue in future cases as a decision is not final until signed by all participating panel members.
Revocation Stayed but Publication Continues Pending Appeal
by Erica Richler
August 12, 2019
Where a discipline finding is made and a sanction is imposed, it is common for the practitioner to seek a stay of the sanction until the appeal is concluded. The usual three part test is generally applied (i.e., serious issue to be tried, irreparable harm, balance of convenience). However, such an application is not always an all or nothing proposition. In Houghton v Association of Ontario Land Surveyors, 2019 ONSC 3909 <http://canlii.ca/t/j14tb> a land surveyor was revoked for integrity concerns. It was his third discipline finding. His motion to stay the sanction succeeded because of the harm that would result to his practice. However, the regulator was permitted to proceed with the publication of the finding both because the practitioner had already communicated it to some people and to respect the open court principles that underlie both the discipline hearing itself and the appeal.
Protecting Regulators from Defamation and Harassment
by Rebecca Durcan
August 8, 2019
Regulators have to put up with a fair bit of criticism. In a free and democratic society, public interest bodies need to be open to scrutiny and disparagement. However, at some point such criticisms can cross a line such that the courts will intervene. That line was crossed in College of Pharmacists of Manitoba v Jorgenson, 2019 MBQB 87, <http://canlii.ca/t/j14jv>. A critic of the regulator accused it of being complicit in crimes by its inaction in preventing opioid drug overdoses of 24 indigenous people in northern Manitoba. The critic also accused the regulator of covering up its crimes. The accusations were broadly distributed and amounted to allegations of criminal behaviour. The critic attended at the regulator’s offices to pursue the matter and sent messages that were perceived as threatening (e.g., mentioning of home addresses) to family members of representatives of the regulator.
The regulator sued for defamation. It also sought an interim order preventing the critic from communicating with the regulator’s representatives and members of their families or from attending at the offices or at public meetings of the regulator. It also sought an order preventing the repetition of accusations against the regulator and its representatives. The Court indicated that such orders limiting free speech are rare. However, the order was granted in this case because the critic offered no evidence to substantiate the allegations, because no effective defence was raised and because the critic’s behaviour was, on an objective basis, emotionally distressing.
Factual Errors by a Complaints Screening Body
by Bernie LeBlanc
August 6, 2019
Complaints screening bodies do not make findings of fact. They also do not make findings of wrongdoing. And they can make remedial orders (e.g., issuing a caution) without a finding of wrongdoing in order to help a practitioner avoid similar situations in the future. However, this does not mean that a reviewing tribunal or court cannot address misstatements of the evidence: Montour v Health Professions Appeal and Review Board, 2019 ONSC 3451, http://canlii.ca/t/j0wzp.
In this case the screening committee ordered that a practitioner be cautioned because she did not personally assess a patient despite six calls from nursing staff. The screening committee concluded that a personal assessment was required where the patient was “decompensating” and experiencing progressive neurological changes. However, the Court reviewed the medical charts and found no evidence that this is actually what the practitioner was told by the nursing staff at the time. The Court was even prepared to interpret some of the medical language in the medical file in concluding that the screening committee had misunderstood the file.
While it is rare for a reviewing court to scrutinize the factual findings of a specialist tribunal in the area of practice of the profession, regulators need to ensure that they fairly and accurately summarize the critical portions of its investigation file when making screening decisions.
The Wettlaufer Inquiry Report: Implications for Regulators
by Erica Richler
August 1, 2019
Finding no individual misconduct, Commissioner Eileen E. Gillese’s report in the Public Inquiry into the Safety and Security of Residents in the Long-Term Care Homes System made 91 recommendations to prevent similar tragedies from occurring in the future (https://longtermcareinquiry.ca/en/final-report/). Most of the recommendations were directed towards the operation and oversight of long-term care homes, including their handling of access to drugs, and the Coroner’s office.
However, some of the recommendations were directed at how regulators could better address intentional harm to clients by practitioners. These recommendations included the following:
- Regulators should use their position and influence to educate practitioners, and students becoming practitioners, about the possibility of their colleagues intentionally harming clients, something that was almost unthinkable in Ontario before Ms. Wettlaufer’s confession.
- Regulators need to incorporate “the healthcare serial killer phenomenon” into how it investigates and screens complaints and reports about the conduct of practitioners.
- For example, regulators need to raise awareness of mandatory reporting requirements by employers and colleagues and revise the forms used for such reports to include the following:
- A clear explanation of the mandatory reporting requirements including the content of the information that must be contained in the report;
- A declaration section by the reporter that they understand and have complied with those requirements;
- A request for all of the details and relevant supporting documents, a request for the disciplinary history of the practitioner, and the ability to expand the section in the form for providing details of the incident so as to encourage (and not deter) a full reporting of them; and
- The ability to submit such reports conveniently, such as by email.
- Indeed, all policies and procedures of the regulator should be reviewed to take into account the possibility of intentional harm to clients.
- The College of Nurses of Ontario was encouraged to share the research it has undertaken with other regulators on the issue of “how to prevent, deter, and detect healthcare professionals who may seek to intentionally harm those in their care.”
In respect of the last point, earlier this year representatives of the College of Nurses of Ontario (CNO) published an article on some of its learnings to date: Erin Tilley et al., “A Regulatory Response to Healthcare Serial Killing,” (2019) 10:1 Journal of Nursing Regulation 4. While the CNO found no algorithm for identifying healthcare serial killers, it did identify some warning signs “such as frequent changes in employment settings, patterns of poor conduct, access to high-risk intravenous medications, and concerns from colleagues”. The article also discussed strategies for preventing and detecting such conduct. The CNO has recently amended its public register to include more information about the work history of its registrants.
Disciplining Contentious Practitioners
by Julie Maciura
July 30, 2019
Where there is a history of contentious proceedings between a regulator and a practitioner, additional challenges arise. As the Court pointed out in Fitzpatrick v College of Physical Therapists of Alberta, 2019 ABCA 254, http://canlii.ca/t/j13wn, actions by one party are more likely to be interpreted less generously by the other. Allegations of bias are more likely to arise as many staff and committee members of the regulator will have had prior involvement with the practitioner. However, it is still possible for a regulator to navigate these shoals.
In the Fitzpatrick case the practitioner had been disciplined previously. While some of the findings were set aside, others were upheld and sanctions involving certain remedial steps (e.g., courses, inspections) and payment of costs were ordered. Discussions ensued to arrange the inspection but the practitioner stopped responding to correspondence and it was never scheduled. In one case an extension and substitution for a course was requested the day before the deadline; the request was refused. The practitioner brought a civil suit against the regulator and some of its employees. The Registrar initiated a complaint for non-compliance that was referred to discipline. Findings were again made and a three-month suspension was ordered. The suspension would continue (or be re-instituted) if the remediation steps were not completed in accordance with an updated schedule. The practitioner was also required to provide payment plans for the outstanding costs.
The Court dismissed appearance of bias concerns:
While we can appreciate that the legislative framework established by the HPA can create the impression of a unitary College, in fact the legislation separates the disciplinary process from the regulatory process. When a party is exercising their authority as explicitly contemplated in the governing legislation, the mere exercise of that authority cannot give rise to a reasonable apprehension of bias ….
The Court was not troubled by the Complaints Director appointing herself as the investigator in the circumstances. The Court noted that the regulator had made the effort to ensure that those sitting on tribunals hearing the practitioner’s case had not been previously involved with her matters. Any procedural unfairness that may have occurred during the investigation was cured during the discipline hearing and internal appeal hearing.
The Court also upheld the findings of non-cooperation based on such conduct as ceasing to respond to communications attempting to schedule inspections, failing to complete a course on time, and declining to provide responsive answers to questions in the subsequent investigation (rather just challenging the investigation itself). Based on the fact that the practitioner was actively practising at the time, the tribunals were entitled to reject the argument that she was too emotionally drained to complete the course on time.
The Court also accepted as reasonable in the circumstances the indefinite length of the suspension and the requirement to provide information about payment of the costs.
Timely Access to Discipline Hearing Exhibits
by Julie Maciura
July 26, 2019
Last year, in upholding the constitutional right of the public, including the media, to obtain copies of exhibits filed in hearings, Justice Morgan said:
Generally speaking, it is essential in a system that protects free expression and the press that “the media…should not have their right to report on proceedings…delayed for any greater period of time than a court believes is absolutely necessary”. Just as justice delayed can be justice denied, so reportage delayed can be reportage denied. [citations omitted]
In that case, Toronto Star v AG Ontario, 2018 ONSC 2586, <http://canlii.ca/t/hrq6s>, the Court did not prescribe a minimum period for providing access, assuming that once the right of access (with rare exceptions) was entrenched, delays should be significantly reduced.
However, in a recent article in Toronto Life magazine, the author objected to a process of having to make a request in writing that resulted in an eight week wait for access to the exhibits: https://torontolife.com/city/greed-betrayal-medical-misconduct-north-york-general/. The writer contrasted that experience with obtaining exhibits from a court hearing, which was generally automatic and prompt.
Since discipline hearings often involve marking confidential client files as exhibits, including health charts, many discipline panels require a motion in writing, with an opportunity for both parties at the hearing to make submissions, sometimes followed by advice from independent legal counsel, before exhibits are released. [The exception may be if the request is made at the hearing itself when everyone is present to speak to the matter.] Given Justice Morgan’s comments, what is a reasonable time frame for access to be granted?
There are at least two options for speeding up the process:
- Expedite the request, submissions and decision process. However, this option would likely still take about 30 days even in routine cases with very short turnaround times for submissions and advice.
- Change the assumptions. The discipline panel could require parties to assert any concerns about public access to the exhibit at the time that they were filed at the hearing. In the absence of a request, the exhibit is presumed to be public. This is similar to how courts often operate.
The second option would impose an obligation that could take up time in many discipline hearings when the reality is that very few requests for access to exhibits are made. In addition, one can foresee oversights occurring resulting in very sensitive exhibits being made public automatically.
With increasing expectations of prompt access to hearing exhibits and with more tribunals considering online hearing documents, regulators and discipline panels will have to grapple with this issue more frequently.
Duty to Cooperate with a Regulator’s Quality Assurance Program Upheld
by Erica Richler
July 23, 2019
In Vey v Newfoundland and Labrador (Pharmacy Board), 2019 NLSC 111, http://canlii.ca/t/j0qfx a pharmacist was disciplined for refusing to cooperate with a practice assessment conducted as a part of the regulator’s quality assurance program. The Court concluded cooperation was required by the practitioner.
- The fact that no quality assurance committee had been established to appoint the assessor was irrelevant as the regulator had an independent duty (and authority) to conduct a quality assurance program. A committee was only one option for doing so.
- The legislation protecting the privacy of patient information in the province had an exception for regulators. That legislation therefore permitted the practitioner to provide the requested patient information.
- The practitioner could not rely on her lawyer’s inaccurate legal advice as a basis for refusing to cooperate. The regulator had done nothing to support her lawyer’s opinion. A mistake of law is not a recognized defence.
- There was no arbitrariness in the regulator conducting a full assessment sooner than expected because the practitioner was moving her premises. This was consistent with the regulator’s usual policy.
- There was no obligation on the regulator to attempt informal resolution rather than a referral to discipline. Alternate dispute resolution was optional, not mandatory.
This case reinforces the recent trend by the courts to give a liberal and purposive interpretation to legislation authorizing quality assurance initiatives by regulators.
Costs Against a Regulator Not Confined to Bad Faith Prosecutions
by Rebecca Durcan
July 18, 2019
It is rare for a disciplinary tribunal to award costs to the practitioner where the regulator has not established the allegations of misconduct. At the time that the regulator makes the referral to discipline it is not in a position to assess the credibility of the witnesses. In addition, its public interest mandate may require the regulator to refer matters to discipline even though it is uncertain as to the outcome after a full hearing. However, where legislation entitles a practitioner to seek costs against a regulator, the discipline tribunal must apply the proper criteria.
It should be noted that different legislation applies different tests to when such costs will be awarded. For example, a frequent test is whether the referral to discipline was unwarranted. The legislation applicable to the Alberta real estate regulator has a more general test related to the circumstances of the case. In Pethick v Real Estate Council (Alberta), 2019 ABQB 431, http://canlii.ca/t/j0xmj an appeal tribunal set aside a misconduct finding against the practitioner due to serious procedural defects in the original discipline hearing. However, it indicated that the practitioner would generally only receive an order for costs where the practitioner demonstrated that the regulator had acted in bad faith or for an improper motive. The Court concluded that this test was too stringent and referred the matter back to a hearing. The Court said:
Focusing on a party (or counsel’s) conduct and its effects, rather than on the party’s motives or intentions, makes sense in the context of costs. Costs awards are not primarily punitive; rather, they allocate the costs of legal proceedings fairly, and in light of who caused the costs to be incurred. They are “a tool in the furtherance of the efficient and orderly administration of justice”…. The efficient and orderly administration of justice requires that improper conduct be discouraged, not merely improper motives.
The Court returned the matter for reconsideration with the following guidance:
- The tribunal may properly consider the public mandate function of the regulator in deciding whether or not costs ought to be awarded.
- The tribunal cannot require the practitioner to demonstrate that the regulator or lower tribunal acted with an improper purpose or otherwise in bad faith in order to receive an award of costs.
- The tribunal can take into account whether the conduct of the proceedings against the practitioner constituted a marked departure from the standards to be expected in a regulatory proceeding of that type.
- The tribunal must consider the totality of the circumstances of a practitioner’s hearing and appeal, including other factors set out in the enabling statute.
While different statutes do set out different criteria, few require the demonstration of bad faith in order for the practitioner to receive a costs award.
Progressive Discipline is Not Arithmetic
by Bernie LeBlanc
July 15, 2019
When it comes to imposing a sanction at discipline, one of the oft-cited principles is that discipline should be progressive to enable a practitioner the opportunity to learn from their mistakes and to change their behaviour. In Peet v Law Society of Saskatchewan, 2019 SKCA 49, http://canlii.ca/t/j0tkc, Saskatchewan’s highest court indicated that this principle, while valuable, has limitations. In that case the practitioner failed to respond to his regulatory body’s request for information about his trust accounts over a period of more than five months despite frequent reminders. The practitioner had been the subject of six prior discipline hearings with about ten similar findings of misconduct. In the most recent previous matter involving an almost identical allegation, he received a three-month suspension and a fine. That penalty was imposed around the same time he finally complied with the request in issue in the current matter. In the current matter he was suspended for twice as long (i.e., six months) and was subject to a much larger fine.
The practitioner argued that the principles of progressive discipline suggested that since the previous penalty was imposed after his conduct in this case, it should not be seen as a prior discipline sanction. He had no chance to correct his behaviour after having the penalty imposed. He suggested that the penalty in the current matter should be the same three-month suspension and a lower fine. The Court disagreed. Progressive discipline was not a mathematical exercise. The fact that the practitioner “was blithely ignoring requests for a response from the Law Society at the same time his penalty was being considered for the earlier similar offence” indicated his disregard for his professional obligations. The Court said:
… a hearing committee is not bound to apply the principle of progressive discipline. All that is required is consideration of progressive discipline as one of many sentencing factors. The Committee in the within case did that. I am of the view this is as it should be. A hearing committee should not be unnecessarily restricted in performing its duties.
The Court made a number of other interesting points including the following:
- The practitioner’s “attempt to trivialize his conduct as a mere compliance issue” fails to recognize the importance of cooperation in enabling a regulator to protect the public.
- Progressive discipline may have less of a role in cases of very serious misconduct, where revocation may be appropriate in a first instance.
- The principles of mitigation (e.g., admitting the allegations) have less weight in professional misconduct matters than in criminal matters because another party is affected by the conduct (i.e., credibility and reputation of the regulator and the “collective reputation of an accused’s peer group”).
- When identifying the range of sanctions one must look to the facts of each case. In this case the “penalty is not directly comparable to other penalties because the circumstances here are worse than any available comparators.”
- When considering the expertise of a tribunal, one looks to the specialized knowledge and experience of the tribunal as a whole and not of the individual members sitting on a particular case.
Ultimately this decision reinforces yet again the degree to which the sanction imposed in a discipline case depends so much upon its particular circumstances.
Following Your Own Policies and Procedures
by Erica Richler
July 11, 2019
Regulators, like many organizations, develop numerous written policies and procedures to guide their staff and committees. Some are borrowed and adapted from those of other organizations. Of course, human nature being what it is, sometimes the actual day-to-day practices vary from the written document. The impact of such a departure arose in the case of Berge v College of Audiologists and Speech-Language Pathologists of Ontario, 2019 ONSC 3351 (http://canlii.ca/t/j0vqs). The practitioner in that case was disciplined for using the title “Doctor” when doing so was prohibited by legislation. She acknowledged her use of the title. Her discipline finding was upheld upon appeal. Afterwards the practitioner again challenged the outcome and obtained a copy of the regulator’s policy and procedures manual which suggested a formal written motion for referrals to discipline. The regulator had not made such a formal motion.
The Court held that a policy and procedure was not the same as a statutory condition precedent. Failure to follow the suggested process in the manual did not affect the referral to discipline. It would have only affected the validity of the legal proceedings if the action actually taken amounted to procedural unfairness. There was no such unfairness or loss of jurisdiction here because it was obvious that a referral to discipline had been made (despite the absence of a formal written motion) and the practitioner knew at all times the content of the allegations. The Court also found that the later discovery of the full manual did not meet the test for fresh evidence and its non-disclosure did not amount to a fraud on the disciplinary tribunal or the Court.
Of course, it is always preferable to ensure that current practices and written policies and procedures remain consistent over time.
Scope of Terms, Conditions and Limitations
by Rebecca Durcan
July 8, 2019
Disciplinary and other committees often have the authority to impose terms, conditions and limitations (TCLs) on the practice of a practitioner. Little guidance is given as to what sorts of TCLs are appropriate and which would over-reach the regulator’s authority. The case of Khalil v Ontario College of Pharmacists, 2019 ONSC 3738, <http://canlii.ca/t/j11kg> demonstrates that the scope of TCLs are broad.
In that case a pharmacist was found to have participated in significant false billing of the publicly funded drug program. Patient records had also been falsified to support the claims. The finding and most of the sanctions were agreed to including a lengthy suspension of the practitioner’s registration and ongoing monitoring upon reinstatement. However, the practitioner challenged the jurisdiction of the discipline panel to impose TCLs prohibiting him from owning or being a director of a corporation that owned a pharmacy. He argued that the regulation of pharmacies, including ownership and control rules, were addressed in a different statute that “covered the field”. The Court found that the discipline panel’s interpretation of the broad authority to impose TCLs was reasonable and that the other statute did not preclude the TCLs. The Court also accepted the strong public interest purpose of the TCLs on the facts of the case.
So long as any TCLs flow from and are relevant to the findings made by the discipline panel and the public interest is being served by the regulator, the power to impose them is quite broad.
Broad and Flexible Injunction Powers
by Bernie LeBlanc
July 4, 2019
Many regulators have the authority to seek a court order to compel people to comply with the law. Recent decisions by the Courts have upheld the breadth and flexibility of these provisions. For example, in the very recent case of Retirement Homes Regulatory Authority v In Touch Retirement Living for Vegetarians/Vegans Inc., 2019 ONSC 3401, http://canlii.ca/t/j0rm4 the regulator obtained an order against an individual who had been operating a retirement home for years without a licence and in contravention of a number of health and safety orders.
In making the order, the Court affirmed that where a public authority brings an application to enforce its legislation and there has been a clear breach of the legislation “only in exceptional circumstances will the court refuse an injunction to restrain the continued breach”. It is no defence to argue that one is as competent or capable as a person who is registered. The Court concluded that assertions of racial discrimination and of religious convictions amounted to “unconvincing, after-the-fact excuses to justify a history of non-compliance and disregard of the applicable law”. Similarly the Court held that the perspective of a family member of one of the residents, that the regulator should assist the person to comply with the rules rather than shutting down the retirement home, did not amount to an exceptional circumstance.
The Court demonstrated the flexibility of the provision by ordering the person to provide all information it had about the residents to the regulator so that it could make arrangements for their continued care and orderly transfer. Clearly such an ancillary order was required as simply closing the facility abruptly was not a realistic option.
Cooperation with One’s Regulator Must be Prompt
by Julie Maciura
July 3, 2019
All practitioners have an obligation to cooperate with their regulator. At what point does a delay in providing information to the regulator demonstrate a lack of good faith cooperation? In Law Society of Ontario v Diamond, 2019 ONSC 3228, http://canlii.ca/t/j0l82 the Court said that it depends on the circumstances of the case. However, a failure to provide clearly requested documents for a period of four to six months (despite cooperation in providing other documents quickly), where the documents are required to be readily available, could constitute a failure to cooperate in good faith. The Court said:
It is consistent with the purpose of the Rule respecting that duty and the positive obligation it imposes on lawyers, that it is not sufficient for a lawyer to have genuine or honest belief that they are fulfilling their duty to co-operate. The efforts to co-operate must be measured against the objective standard of reasonableness….
To find otherwise would allow a lawyer who has not taken the time or made reasonable efforts to understand and comply with their obligations to be immunized from regulation by the Law Society. This would be contrary to the public interest. As noted in Ghobrial, supra, at para. 9, when it comes to the licensee’s duty to respond to Law Society requests for information completely and promptly “it is essential that the licensee treat the response as a priority….
Similarly, in the duty to co-operate context, a lawyer cannot be found to have acted in good faith to provide a complete and prompt response when the basis for their delay is their ignorance of their professional obligations or their negligence in making the efforts they are required to make to provide the requested information promptly….
There is nothing unreasonable about the Appeal Division’s analysis of the concept of “good faith”. It does not hold lawyers to a standard of perfection. It imposes a duty on them to make every reasonable effort to comply with their obligations. This is consistent with the purpose of the Rule….
This decision reinforces that a practitioner’s duty to cooperate with their regulator means a prompt and complete response to each request.
Can a Practitioner’s Privacy be Protected by the Terms of an Adjournment?
by Erica Richler
June 24, 2019
Mr. Colpitts, a lawyer, was convicted of a serious criminal offence. He appealed the conviction. In the meantime a resulting interim discipline process was adjourned, pending the outcome of the appeal, on the basis that he undertook not to practise the profession. The agreement was confidential. After further investigation the regulator referred Mr. Colpitts to a hearing under another provision. Mr. Colpitts sought judicial review of that decision arguing that the terms of the earlier adjournment precluded any further discipline action until the criminal appeal was heard. Mr. Colpitts asked the court to protect his privacy in the judicial review proceedings on the basis of the assurance of confidentiality he had received in the earlier adjournment matter.
The Nova Scotia Court of Appeal upheld the lower court ruling that regardless of how one interpreted the terms of his adjournment before the Law Society, he had not established the need to have the court proceedings held anonymously: Colpitts v Nova Scotia Barristers’ Society, 2019 NSCA 45, <http://canlii.ca/t/j0pmz>. The Court said:
Courts operate in the public domain, not behind closed doors, unless it is necessary to prevent a serious risk to an important public interest and the salutary effects outweigh the deleterious effects of the requested confidentiality order.
The privacy interests of a practitioner of a profession would not normally meet these criteria.
This case also illustrates how the wording of agreements with practitioners should contemplate other proceedings and not just the one proceeding currently in mind.
Reviewing a Draft of an Adjudicator’s Decision and Reasons
by Julie Maciura
June 21, 2019
Hearing panels have the responsibility to independently make decisions and draft their own reasons. However, courts have permitted some degree of peer review of decisions and reasons by other members of the committee, who were not on the actual hearing panel, so long as safeguards are employed. The strictness of those safeguards was discussed in the decision of Shuttleworth v Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518: http://www.ontariocourts.ca/decisions. In that case the tribunal’s Executive Chair reviewed a draft decision. The issue of deliberative secrecy in the review process did not arise on the facts of the case. However, the review process was described in the evidence and the court had three concerns about it:
- The review by the Chair of the tribunal did not appear to be at the option of the adjudicator as legal staff sent it to the Chair without the prior knowledge and consent of the adjudicator.
- The Chair had significant power over the reappointment of the adjudicator to the position and thus was in a position of influence.
- There were not clear policies and procedures establishing safeguards for the review process including its voluntariness and affirming the adjudicator’s independence.
The decision of the tribunal was set aside.
In light of this ruling, tribunals that permit persons other than the hearing panel members themselves to review draft decisions and reasons should consider reviewing (and applying) policies and procedures that ensure the independence of the tribunal. The Court of Appeal distinguished the role of independent legal counsel (ILC) from that of the Chair of the tribunal as ILC was the servant of the hearing panel. However, even ILC cannot encroach on the independence of the hearing panel.
US Debate About De-Regulation Just Got More Nuanced
by Rebecca Durcan
June 17, 2019
There has been a noticeable push in the US to de-regulate professions on the basis that regulation restricts access to workers, drives up prices, and is largely unnecessary. In a thoughtful paper, the oversimplification of these arguments is effectively dismantled. The authors acknowledge that some regulatory models may be overly restrictive yet warns against full repeal of many smaller professions where the risk they pose warrants oversight. Further, the authors argue that more effective and directed regulation is required of the professions where the risk of harm to the public is highest. See: Scheffler, Gabriel and Nunn, Ryan, “Occupational Licensing and the Limits of Public Choice Theory”(2019) Faculty Scholarship at Penn Law 2072: https://scholarship.law.upenn.edu/faculty_scholarship/2072.
The conclusion to the paper sums up the arguments nicely:
In sum, the standard public choice narrative about occupational licensing is simultaneously overinclusive and underinclusive. On one hand, it is overinclusive as it suggests that licensing laws are rarely justified, even in the face of plausible alternative explanatory accounts. If policymakers and judges were to take this narrative at face value, they might strike down many licensing laws that benefit the public. Of course, there is a strong case for subjecting licensing laws to greater scrutiny, and there are professions for which the costs of licensure clearly outweigh the benefits. Yet in other cases—perhaps in many cases—the cost-benefit calculus will be less clear.
At the same time, however, the standard public choice narrative is underinclusive as it tends to focus less on dominant professional organizations, such as physicians and lawyers, and more on smaller, lower-wage professions. This is unfortunate, since the former licensing regimes have particularly detrimental consequences for workers and consumers. In addition, the public choice narrative is underinclusive because it has little to say about professions for which there are credible public safety risks of unregulated activity. We argue that there is a strong basis for licensure reform in these professions that, while less radical than complete deregulation, would nonetheless enhance labor market access and benefit consumers.
Federal Trade Marks and Provincially Protected Terms
by Bernie LeBlanc
June 13, 2019
A common method of regulation is to restrict the use of a term or designation to those who have met certain requirements. There has been some uncertainty as to whether federal trade mark rules could be used to circumvent provincial restrictions on the use of terms and designation. The case of Royal Demaria Wines Co. Ltd. v Lieutenant Governor in Council, 2018 ONSC 7525, http://canlii.ca/t/hwn9n goes a long way to dispelling those concerns.
In that case the winery could not obtain approval for its wines, particularly its icewine, because it did not pass the taste test requirements of the provincial regulator. Under the provincial legislation, the term “icewine” was restricted to wines approved by the regulator. The winery obtained a federal trademark as “Canada’s Icewine Specialist” and sought a declaration that it could use that term to describe its products. The Court noted that the principle that federal law is paramount over inconsistent provincial law should be applied with restraint in the spirit of cooperative federalism. The fact that a federal law addressed a topic does not imply that a valid provincial law is excluded from the field. Obtaining a trade mark does not imply a right to use the term or designation when its use was prohibited by provincial law. The Court said:
Both the Act and the Trade-Marks Act have consumer protection purposes that are consistent and compatible with each other. The Act furthers the consumer protection purpose of the Trade-Marks Act by ensuring that when wine manufacturers use certain terms that are also subject to provincial regulation, they are meeting quality standards. This complements, rather than frustrates, the purpose of the federal legislation.
The laws were not inconsistent in the sense that the winery could comply with both of them at the same time.
The case also contains an interesting discussion of the validity of taste tests as a regulatory tool authorized by the enabling statute. The Court also upheld the termination of the winery’s membership with the regulator if it had no wine approved within an 18-month period.
Legal Status of a Regulator’s Policies
by Julie Maciura
June 10, 2019
The Ontario Court of Appeal has re-affirmed the authority of regulators to make policies setting out the expectations of practitioners in the course of their practice. This is so even where the enabling statute authorized the enactment of standards through regulation. The difference is that a regulation is “law” that is directly enforceable at discipline whereas a policy is only a statement of expectations that may form some evidence of the existing standard of practice but is not automatically enforceable at discipline. Despite it not being formal law, it still needs to be consistent with the Canadian Charter of Rights and Freedoms because, at least in this case, it was implementing a specific government objective.
In the case of Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393, <http://canlii.ca/t/j08wq> the Ontario Court of Appeal accepted the reasoning of the Divisional Court and concluded that the policies appropriately balanced the competing interests of access to health care (especially abortion services and medical assistance in dying) and the religious beliefs of certain physicians. The Court also gave deference to the view of the regulator that simply providing generic information to vulnerable patients of their options was an insufficient balancing of the rights; the regulator was entitled to apply its expertise to require an effective referral to a person or facility that would provide the service.
This case is consistent with other recent cases where the courts give deference to regulators when enacting policies. However, the thorough nature of the Court’s analysis indicates that it is prudent for regulators to conduct a full workup of their policies, especially when rights under the Charter might be affected.
Reviewing the Prior History of a Practitioner in Complaints Matters
by Erica Richler
June 6, 2019
In complaints matters it is common, but not universal, that the prior complaints and discipline history of the practitioner will be reviewed. However, the weight to be placed on that prior history will vary. In College of Physicians and Surgeons of British Columbia v The Health Professions Review Board, 2019 BCSC 539, <http://canlii.ca/t/hzpm3>, the practitioner had been disciplined for sexual misconduct a dozen years previously. The current complaint related to a failure to recognize a clinical condition. The screening committee did not consider the practitioner’s prior history. The Review Board found this failure to be unreasonable and returned the matter for a new decision. The Court disagreed and noted that the screening committee had discretion to consider prior decisions (the governing legislation did not mandate that prior decisions be reviewed):
The College had the discretion to make a finding on the degree of similarity, if any, between Dr. Fletcher’s sexual misconduct in 2003 and clinical conduct matters in 2015. The 2003 Admonition was regarding Dr. Fletcher’s personal relationship with a patient, which is substantially different than the clinical performance issues involved with the Complaint, except in the broadest sense that both events are breaches of professional standards. The two are not similar in time, type of conduct, context, or the standards breached.
The Court concluded that the Review Board had not assessed whether the screening committee acted reasonably in the circumstances. Rather, the Review Board inappropriately substituted its views for those of the regulator. The Court sent the matter back to the Review Board for a new decision.
New Approach to Vexatious Litigants
by Rebecca Durcan
May 27, 2019
Litigants who abuse the legal system have been a challenge for many decades. Recently the approach of the courts to dealing with abusive litigants has evolved. A lengthy and fascinating decision on the topic, on a case that relates to professional regulation, is found in Unrau v National Dental Examining Board, 2019 ABQB 283, http://canlii.ca/t/hzztc. In that matter an unsuccessful examination candidate sued many individuals and entities but provided no specifics of what they had done wrong and requested “impossible remedies”. The action was struck out. However, the Court, on its own motion, initiated a “show cause” process as to whether restrictions should be imposed on Mr. Unrau’s ability to litigate generally. After considering the litigation history of Mr. Unrau the Court imposed an order that Mr. Unrau had to obtain permission before continuing or initiating legal actions in Alberta.
The Court noted that the modern approach to abusive litigants was proactive, rather than reactive, including being initiated by the Court itself rather than by frustrated parties. In addition, the Court had an inherent authority to act and was not constrained by the existing vexatious litigant’s legislation. Ongoing restrictions could be imposed where future abusive litigation is anticipated. The restriction, of requiring permission to continue or initiate legal proceedings, was seen as minimally impairing Mr. Unrau’s access to the courts.
This “modern” approach should provide some relief to regulators who experience such challenges. Obviously, this relief is limited as it does not necessarily apply to regulatory proceedings themselves. In addition, regulators often have to initiate legal proceedings on their own to protect the public and a vexatious litigant will have a right to respond.
Proving Inadequate Supervision of Unregistered Persons
by Bernie LeBlanc
May 21, 2019
Most professions have standards of practice (written or unwritten) about what tasks a practitioner can and cannot delegate to an unregistered assistant. However, it is always difficult to prove whether there was a pattern of inadequate supervision since the amount of supervision not provided is difficult to articulate. In Farkas v The Law Society of Ontario, 2019 ONSC 2028 (CanLII), <http://canlii.ca/t/hzgk2> the issue was whether the lawyer provided sufficient supervision to his unregistered staff in the filling out of refugee claim forms. The practitioner and some of the staff who worked for him testified as to his training of the staff, his personal involvement in meeting with the clients and his reviewing of the forms. However, the forms themselves were generally inadequate according to expert testimony inferring that there must have been minimal practitioner involvement. A former staff person and two clients testified as to almost complete lack of involvement of the practitioner in their cases and that the forms were signed while blank (or almost blank) and were filled in by staff who made up the contents. The Court upheld the credibility findings of the tribunal based on this combination of lay and expert opinion evidence, and because the tribunal provided good reasons for its decision.
On the issue of costs, the Court upheld a large award ($200,000) because the tribunal’s reasons took into account the following factors: “the length of the hearing, the costs requested, the time necessary for preparation, the extensive cross-examination of the appellant, the lack of evidence of financial hardship, and comparable cases that had come before the [regulator].”
Geographical Jurisdiction over a Practitioner’s Conduct
by Julie Maciura
May 16, 2019
Regulators often say that they have jurisdiction over a practitioner for their misconduct regardless of where it occurred. That proposition makes sense. The public is at risk if a practitioner is unethical or incompetent even if in the past that behaviour has only been demonstrated elsewhere. But how far does this proposition extend? Pretty far according to Saplys v Ontario Association of Architects, 2019 ONSC 1679, http://canlii.ca/t/hzs49.
In that case a practitioner was alleged to have, among other things, engaged in work with a client of a former architectural firm on the same building project for a similar purpose. Under the rules in Ontario, practitioners are required to give notice of this retainer to the former architectural firm. He had not done so in this case. One of the projects was in Saskatchewan, where that rule about giving notice to the previous firm did not exist. The Divisional Court of Ontario upheld the finding by the Ontario regulator for breaching the Ontario rule. The Court held that the rule could apply to out-of-province work. It rejected the argument that the jurisdiction over the person should be limited to conduct that involves moral turpitude or that engages a concern about the protection of the public in Ontario.
The Court also held that the discipline tribunal properly excluded expert opinion evidence on the interpretation of the language in the legislation related to the scope of practice of the profession. Expert evidence regarding the usual practice of the profession or an alleged common understanding was not relevant to this issue and would not assist the panel members including those who were not architects. The Court said the expert evidence did not relate to the standard of care of an architect nor did it involve any technical or scientific knowledge that could only be understood by the Committee with the assistance of an expert.
Failing to Comply with a Remedial Order
by Erica Richler
May 13, 2019
Some regulators have the ability to impose mandatory remediation (e.g., attend for a caution, complete a course) when disposing of a complaint or investigation without first conducting a hearing or making a finding of wrongdoing. In Cartier v College of Nurses of Ontario, 2019 ONSC 2289 (CanLII), <http://canlii.ca/t/hzmhl> the practitioner refused to complete mandatory remediation because she believed that the allegations in the investigation were unfounded. When the regulator disciplined her for not complying with the remedial order, her defence was that there was no basis for the order to have been made in the first place. The tribunal concluded she was obliged to comply with the order.
The Divisional Court agreed. It said that neither the discipline tribunal nor the Court had the jurisdiction to assess whether the screening committee’s mandatory remediation order was well founded. That would be a collateral attack on the decision of the screening committee. If the practitioner disagreed with the mandatory remediation order, she should have sought a review or appeal through the proper channels.
Interestingly, the regulator cross-appealed the discipline decision on the basis that the tribunal did not find that the refusal to comply was dishonourable (it was only unprofessional). The tribunal found that to be dishonourable the conduct had to include “deceit, dishonesty or moral failing”. The regulator argued that conduct could be dishonourable if it “brings shame upon the profession and the Member”. The regulator argued conduct that was “deliberate, knowing or reckless disregard for professional obligations” was also dishonourable. The Divisional Court declined to formulate a definition of the words “dishonourable, disgraceful and unprofessional” and simply found that it was open to the tribunal (having heard the practitioner explain why she did not comply with the order) to conclude that her misguided views were only unprofessional and were not also dishonourable.
Protecting Quality Assurance Information
by Rebecca Durcan
May 6, 2019
Professional regulators in British Columbia are subject to freedom of information legislation. As a result, individuals can apply to the Information and Privacy Commissioner to review a regulator’s refusal to provide such access. This regime led to a showdown in College of Physicians and Surgeons of British Columbia v British Columbia (Information and Privacy Commissioner), 2019 BCSC 354, <http://canlii.ca/t/hz4n1>.
A component of the quality assurance program for physicians in British Columbia involves multi-source feedback (MSF). Colleagues, coworkers and patients are asked to submit a confidential survey to a third party firm. The third party compiles the survey results in aggregate form and provides a report to both the practitioner and the regulator. This information is scored against results of the practitioners’ peers and, along with information gathered by other components of the quality assurance program (e.g., an analysis of patient charts, a review of office procedures), results in feedback to the practitioner and potentially remedial action.
In this case the practitioner sought access to copies of the actual survey forms. The regulator refused. Recourse was sought before the Information and Privacy Commissioner whose representative ordered that the surveys be provided to the practitioner. The regulator sought judicial review. The Court concluded that a purposeful interpretation of the legislation required that the public interest in the effective quality assurance program took priority. This necessitated that the confidentiality interests of the individuals answering the survey took precedence over the access interests of the practitioner. Otherwise the MSF component of the quality assurance program would be placed in jeopardy by a lack of candid (or any) participation.
The order of the Information and Privacy Commissioner was quashed.
Duty of Candour Exists in Canada
by Julie Maciura
May 2, 2019
One of the more significant developments in the regulation of health professions in the UK is the codification of the duty of candour when an error is discovered: https://www.sml-law.com/wp-content/uploads/2019/03/Greyar234.pdf. Some professions in Canada have similar obligations. In Law Society of Alberta v Schuster, 2019 ABCA 111, <http://canlii.ca/t/hzbjj> the Court upheld as reasonable the discipline finding against a lawyer who failed to inform his client of an error where $300,000 was deposited into the wrong trust account and was not immediately retrievable. The Court agreed that this error was material and that, even though the client expressed the desire not to be kept informed of all the operational details of the project, this error should have been disclosed.
The Court also found that there was no unfairness in the discipline tribunal taking a different view of the nature of the conduct than that expressed in the original complaint and investigation report.
Complaints Against Adjudicators
by Erica Richler
April 29, 2019
Some practitioners act as adjudicators. What is the role of regulatory bodies when dealing with complaints about practitioners acting in their capacity as an adjudicator? This issue was touched upon, but not fully addressed, in Cuhaci v College of Social Workers (Ontario), 2019 ONSC 1801, <http://canlii.ca/t/hz74q>. Ms. Cuhaci, a social worker, arbitrated a custody dispute. Afterwards, a complaint was made about her conduct. While the screening committee initially indicated it had no role in respect of the actual adjudication, it went on to make some comments suggesting that it may have considered her actions in that capacity. Ultimately the screening committee issued advice about the clarity of the practitioner’s communications, which advice was not confined to the adjudication decision. The practitioner sought judicial review.
The Court held that the application was moot:
The applicant still has a license to practice as a social worker, and there are no conditions or restrictions on her license. She faces no professional jeopardy as a result of the outcome of this complaint.
The Court almost exercised its discretion to hear the matter anyway to clarify the jurisdictional issue, but declined to do so, in part because:
… counsel for the College conceded that the Complaints Committee may have overstepped in this case, and that the College does not have jurisdiction to investigate the decision making process of a social worker engaged in the functions of an arbitrator in the context of family law proceedings. She argued that there may be circumstances that would warrant the College’s intervention, if for example the member had an intimate relationship with one of the parties, but she agreed that the decision making process and the decision itself do not fall within the College’s jurisdiction.
Interestingly, there was also a procedural issue in that the screening committee made its decision without disclosing all of the complainant’s submissions to the practitioner. However, the Court was satisfied that the regulator cured the concern, on the facts of this case at least, by providing the materials after reaching its decision, receiving further submissions from the practitioner, and then rendering an addendum to its decision. In any event, the Court also found this issue to be moot.
Time Might Eventually Be Enough
by Bernie LeBlanc
April 23, 2019
How long should a major breach of trust of a sexual nature with a minor exclude someone from practising in a different profession with little exposure to minors? That was the issue in CS v Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONSC 1652, <http://canlii.ca/t/hz16c>. The practitioner applied for registration as a real estate salesperson. However, she had been a teacher and had participated in a long-term sexual relationship with a former student (who became her foster child) for which she was found criminally responsible. In addition, her status as teacher was revoked. The Registrar (and the appeal tribunal) found that this breach of trust was so serious that it was reasonable to assume she might not practise the real estate profession with honesty and integrity.
The Divisional Court upheld the finding:
The appellant committed a serious set of criminal acts involving violations of trust in the fairly recent past. She was not dissuaded by the school principal, her CAS training, or her own moral compass, from abusing someone to whom she was duty-bound and who she undertook to protect.
However, the Court indicated that it was unreasonable to expect the applicant to have self-reported her criminal conduct at the time; concealment was a natural aspect of the criminal conduct itself. In addition, the Court indicated that the passage of time may eventually be sufficient to permit registration as a real estate salesperson:
Almost nine years have now passed since the victim terminated his relationship with the appellant. I agree with the LAT [Licence Appeal Tribunal] that the reasonableness of relying upon past breaches of trust to ground an inference concerning future risks to the public may well be affected by the passage of time.
Arguably, this contrasts with the perspective that the passage of time is not, in itself, sufficient in the case (albeit with different facts) of: Chen v Alcohol and Gaming Commission of Ontario, 2019 ONSC 1680 (CanLII), <http://canlii.ca/t/hz16b>.
Time and Stability Is Not Enough
by Bernie LeBlanc
April 23, 2019
Seven years ago Ms. Chen was excluded from all gaming sites by the Alcohol and Gaming Commission for engaging in loan sharking: Chen v Alcohol and Gaming Commission of Ontario, 2019 ONSC 1680, <http://canlii.ca/t/hz16b>. The Registrar declined to lift the exclusion order despite the passage of time and a stable employment and family history during the past seven years. The Divisional Court upheld the Registrar’s decision concluding that it was “was reasonable, given the gravity of the past conduct and the applicant’s failure to provide adequate information showing she appreciated the gravity of the past conduct and demonstrated there was not a risk of reoccurrence”. The Court also found that the paper reinstatement process was procedurally fair given that Ms. Chen had a full opportunity to present her case and that meaningful reasons had been given.
Time and stability were insufficient on their own to warrant reinstatement, on these facts at least. However, in other cases the courts hold out the promise that eventually the passage of time might be sufficient: CS v Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONSC 1652 (CanLII), <http://canlii.ca/t/hz16c>.
The Cayton Report
by Rebecca Durcan
April 15, 2019
The Cayton report released on April 11th contains a detailed review of the performance of the College of Dental Surgeons of British Columbia. It identified serious deficiencies in the governance of the regulator. It also concluded that there were gaps in the regulatory performance of the regulator in eleven areas. It commented on a number of areas for improvement in its external relationships with various groups. It concluded that the regulator was not focussed exclusively on its public interest mandate, particularly in the area of public safety.
The report makes a number of sweeping short term and long term proposals for regulatory reform for all health professional regulators. These include: a completely appointed Board of twelve people, half of whom are public members; merging regulators; separating out the adjudication of discipline matters and the operation of a single public register; and the creation of an oversight agency that would review and report on the regulatory performance of the regulators.
This report is broadly consistent with recent developments in British Columbia, and other provinces including Ontario and Nova Scotia and the regulatory regime that has existed in Quebec for many years. More to come.
The Cayton report can be found at: https://www2.gov.bc.ca/assets/gov/health/practitioner-pro/professional-regulation/cayton-report-college-of-dental-surgeons-2018.pdf.
by Julie Maciura
April 8, 2019
Regulators encourage practitioners with a disability to participate in assessment and treatment with the hope that the practitioner can remain in practice. Correspondingly, practitioners with health issues often cooperate with their regulator in their assessment and treatment in the anticipation that they will remain in practice. However, what happens when the assessment and treatment indicates to the regulator that the practitioner may not be able to practise safely and the practitioner disagrees? While regulators try to be as accommodating as possible (not only because it is a human rights obligation, but also to encourage participation in remedial programs), client safety has to come first.
In Collett v College of Physicians & Surgeons of Alberta, 2019 ABCA 86 (CanLII), <http://canlii.ca/t/hxvvm> a physician, on his own volition, attended a neuropsychological assessment that identified some cognitive concerns. The physician declined to pursue further investigation into the concerns and refused repeated requests to cease practising until the cognitive concerns could be addressed. The regulator suspended the physician’s ability to practise until he could demonstrate that the cognitive concerns would not interfere with it. The physician applied to the courts to lift his suspension. The Court refused both on the basis that no error appeared to have been made in the process leading up to the suspension and because the public interest in allowing the regulator to fulfill its mandate outweighed the harm to the physician.
Referencing Absolute and Conditional Discharges in the Public Register
by Erica Richler
April 4, 2019
Some regulators publish information about criminal findings against their members in a public register so that the public has access to this information. In fact, this is now mandatory for the regulated health professions in Ontario.
A recent Ontario Court of Appeal case raises questions about whether the Criminal Records Act imposes any restrictions on a regulator in publishing absolute or conditional discharges in their public register (a discharge is an outcome in a criminal proceeding where the court finds the defendant guilty of a criminal offence, but there is no resulting conviction). The Criminal Records Act sets out special rules that apply to absolute and conditional discharges. One year after receiving an absolute discharge and three years after a conditional discharge, the matters are excluded from the person’s criminal record.
In the recent case of R v Montesano, 2019 ONCA 194, <http://canlii.ca/t/hxzc3>, the Court of Appeal concluded that the Criminal Records Act prevented the Crown in a spousal assault case from advising the sentencing judge that the defendant had previously received an absolute discharge for an earlier finding of spousal assault. The Court held that the Criminal Records Act prevented any disclosure of that absolute discharge (without prior approval by the Minister). The Court went on to say that the Crown could refer to the fact of the previous assault, but not the fact of the discharge.
This decision does not apply directly to the question of whether provincial regulators can publish absolute discharges on their registers. The brief Court of Appeal reasons suggest broad application of the Criminal Records Act. However, posting information on a regulator’s public register about a regulated professional in the public interest is arguably a very different context than a sentencing hearing in the criminal justice system. And it would seem puzzling if a regulator could post the more prejudicial information (i.e., the criminal finding) in a public register but could not include the more mitigating information (i.e., that a court felt the circumstances did not require a punishment and ordered a discharge). Following this case, regulators may face challenges from their members about the proper use of information about absolute and conditional discharges.
Regulators Have No Vicarious Liability for Actions of Practitioners
by Rebecca Durcan
April 1, 2019
The Courts have affirmed yet again that regulators are not vicariously liable for the conduct of the people they regulate. Vicarious liability is legal responsibility for the damage caused by a third party. An example would be that an employer might be vicariously liable for the harm done by its employee arising from the employee’s performance of work duties. Vicarious liability is often accompanied by a claim that the third party breached a duty to properly supervise the person causing the harm.
In Yashcheshen v College of Physicians and Surgeons of Saskatchewan, 2019 SKQB 43, <http://canlii.ca/t/hxq6r> a self-represented litigant sued both a physician (Dr. Bowen) and the physician’s regulator for the denial of insurance benefits because of an unsupportive medical report. In respect of the regulator, Ms. Yashcheshen claimed that the regulator’s handling of her complaint against the physician amounted to “systematic negligence, which occurs within their complaints process to purposefully evade responsibility for their member”.
On the issue of vicarious liability, the Court said:
There must be some sort of nexus or relationship between Dr. Bowen and the College in order to meet the test for vicarious liability and such a relationship simply does not exist. Dr. Bowen is not an employee of the College. He is a member of the College, as a statutory body, by virtue of being a physician in Saskatchewan. The College is Dr. Bowen’s governing professional body but that relationship does not create vicarious liability on the part of the College in the circumstances of this case.
This decision is consistent with past decisions on the issue.
Removing Information from the Public Register
by Bernie LeBlanc
March 26, 2019
There is increasing pressure on regulators to provide more information about practitioners who have engaged in behaviour of concern. As a result there is increasing reluctance by regulators to remove information from the public register once it is posted. Practitioners, however, often feel it is unfair that public register information remains public permanently. Those issues came to a head in De Santis v Ontario College of Teachers, 2019 ONSC 1344, http://canlii.ca/t/hxqb8.
In 2014 Ms. De Santis was disciplined and, following a joint submission, was reprimanded and required to engage in remedial activities. She completed the remedial activities at which point the details of that term, condition and limitation was removed from the public register. She asked for the reference to the reprimand be removed as well. The Registrar declined the request because the by-laws indicated removal would only occur if a reprimand was the only sanction ordered. Ms. De Santis sought judicial review.
The Court upheld the Registrar’s decision. The wording of the by-law was clear. More than a reprimand had been ordered. The removal of the specifics of the remedial program from the public register did not alter the nature of the original order. The Court declined to evaluate the public policy rationale (or reasonableness) of the by-law.
Criteria for Measuring a Successful Regulator
by Julie Maciura
March 18, 2019
Last month the Professional Standards Authority of the UK published an update of the criteria it uses to assess the performance of the regulators it oversees. There are eighteen specific standards listed. Most of the standards are what one would expect including:
- Complete transparency about the regulator’s activities and processes
- Professional standards are published and regularly reviewed
- Regular guidance provided to the profession including on emerging risks
- Up to date educational requirement for registration
- An accurate and current public register
- Fair, efficient and proportional registration process
- Ensuring that practitioners continue to be fit to practise (i.e., quality assurance)
- Anyone must be able to raise a concern with the regulator about a practitioner
- Fair and proportionate disciplinary investigations, screening and hearings that prioritize client service and safety, and
- Prioritizing cases involving serious risk to safety including use of interim orders.
Some of the standards reflect values that may be of more recent origin or may be seen as innovative compared to views about successful professional regulation in previous decades:
- Clear purposes and continuous learning applied to every regulatory activity
- Recognizing the diversity of practitioners and clients and ensuring there are no inappropriate or discriminatory barriers
- Reporting on the regulator’s performance and demonstrated learning from any public findings related to the regulator
- Enforcement against unauthorized practice and use of titles is proportional and risk-based (i.e., not protective of the profession) and
- Supporting all participants in a complaint to participate effectively.
The points listed above are only a summary. Each standard is loaded with meaning. The full document may be seen at: https://www.professionalstandards.org.uk/docs/default-source/publications/standards/standards-of-good-regulation-2018-revised.pdf?sfvrsn=ce597520_4
Staying Discipline Orders During an Appeal
by Erica Richler
March 11, 2019
The question of whether a discipline order is stayed (or halted) when there is an appeal to court depends on the applicable statute. In Abrametz v The Law Society of Saskatchewan, 2019 SKCA 21, <http://canlii.ca/t/hxp2j> the legislation provided that the disbarment of the practitioner took effect immediately unless the court ordered a stay. Mr. Abrametz was disbarred for conduct related to his management of trust accounts. Mr. Abrametz requested a stay of the order until the appeal was heard, with conditions of ongoing supervision. The Law Society opposed the request and argued that the Court had no jurisdiction to impose conditions (it could only impose a stay or not).
The Court granted a stay and found that the authority to impose a stay included the authority to impose terms and conditions.
The usual three-part test applied to the motion: (1) whether the appeal raised serious issues; (2) whether the practitioner would suffer irreparable harm if the stay was not granted; and (3) whether the balance of convenience favoured granting a stay. Mr. Abrametz raised some arguable issues. The Court indicated that common sense indicated that he would suffer irreparable harm by way of significant economic hardship in having to close his practice and then rebuild it up again if he was successful on the appeal. In addition, his clients would experience delays and additional costs in having to locate another lawyer mid-way through their cases. The Court considered the public interest in commencing the sanction now that a finding was made and maintaining public confidence in the profession. However, those considerations were outweighed by the harm to the practitioner on the facts of this case. On this balance of convenience assessment, the Court was particularly influenced by the fact that the public would be protected by the supervision terms and conditions. They were similar to those imposed on the practitioner for the almost six years while the investigation and hearing took place. Also, the hearing of the appeal was scheduled on an extremely timely basis.
The Court indicated that stay decisions would depend very much on the facts of the case.
Limits to Accommodating Self-Represented Practitioners
by Rebecca Durcan
March 4, 2019
Courts are, justifiably, quite concerned about the plight of litigants appearing at hearings without legal assistance. Courts have imposed a number of duties on tribunals including an ongoing duty to explain the process and ensure that the party is able to fully participate. Tribunals even have some obligation to raise legal concerns that a party may not appreciate. However, Courts do not view these accommodations as unlimited.
For example, in Hill v College of Physicians and Surgeons of Ontario, 2018 ONSC 5833, <http://canlii.ca/t/hvd70> the physician was without legal counsel for the hearing itself. The Court upheld the decision of the hearing panel to exclude expert evidence tendered by the physician where the expert witness was not available for cross-examination. The Court also supported the panel’s decision to exclude irrelevant good character evidence of the physician at the hearing of finding. Additionally, the Court found that there was no duty of the panel to then consider the previously excluded (but perhaps now relevant) evidence on the issue of penalty when the physician did not attend the penalty portion of the hearing. The panel was commended for providing many procedural accommodations (including multiple adjournments), but was not required to accommodate the physician on substantive law.
Public Interest Litigation Against Investigators
by Bernie LeBlanc
February 25, 2019
Can the courts be used to effect change in the way that investigators conduct their inquiries? That issue is squarely raised in Williams v London Police Services Board, 2019 ONSC 227, <http://canlii.ca/t/hwxbr>. Representative plaintiffs and a well-known legal aid clinic that focusses on addressing violence against women sued a municipal police service for systematically declaring complaints of sexual assault as unfounded “based on sexual stereotypes and myths about sexual assault and sexual assault complainants”. The plaintiffs sought a declaration that the rights of sexual assault complaints under s. 15 of the Canadian Charter of Rights and Freedom were infringed, implementing a “Court appointed external review panel to review all LPS sexual assault cases that have been closed as “unfounded”” and damages. The police service moved to strike out the claim on various grounds including that claims were frivolous, that the legal aid clinic did not have standing to be a party and that the relief sought was not available in law.
The Court rejected those arguments and allowed the claim to continue. The Court held that it was not clear and certain the claim would fail and that it should be allowed to proceed. The Court did require some changes to the pleadings, but nothing that altered the ability of the action to proceed.
Regulators should be aware that claims for systemic discrimination against investigators are possible in Canada.
Evidence in Judicial Review of Examination Appeals
by Julie Maciura
February 19, 2019
Wan v The National Dental Examining Board of Canada, 2019 BCSC 32 (CanLII), <http://canlii.ca/t/hwz7b> the Examining Board was permitted to file an affidavit from an expert explaining the process. The applicant objected arguing that the evidence offended the fresh evidence rule but the Court admitted the evidence finding that it really was appropriate to the context:
In contrast to the objectionable fresh evidence in Air Canada [2018 BCCA 387], I find that the evidence the petitioner identifies as objectionable in the Gerrow Affidavit is not fresh evidence. It does not seek to adduce evidence of facts that were not before the tribunal, nor does it somehow reconstruct or step outside of the bounds of the Decision. Rather, in general, it is evidence that relates to the policies and procedures employed by this specialized tribunal and which would have been known to the Appeals Committee members. It permissibly summarizes, explains and consolidates some of the more technical information contained in the documents that make up the record; provides general background information that assists me in understanding the history and nature of the case; contains a written description of the physical evidence that is not before me but that forms part of the record before the Appeals Committee; and provides information on matters that are of common understanding to those in the dentistry field and the foundation from which the Appeals Committee approaches an appeal. Overall, the evidence contained within the Gerrow Affidavit helps educate me on matters that are within the specialized expertise of the Appeals Committee and which form the common understanding of those who operate in this highly particular field.
Examining appeal bodies can rely on this decision to provide guidance as to what should and should not be included in their affidavits on judicial review. Prudent examination bodies might include much of this information as part of their record when processing the examination in the first place (e.g., by notifying applicants of the background documents) so no affidavit is necessary in a future proceeding.
by Erica Richler
February 11, 2019
Unregistered persons can be creative in the use of language to describe themselves and their services. When there is a risk that members of the public might confuse those unregistered persons with regulated practitioners, the courts’ powers can be invoked. That occurred in the case of the College of Physicians and Surgeons Of New Brunswick v Anhorn, 2018 NBQB 246 (CanLII), <http://canlii.ca/t/hww05>. In New Brunswick, the naturopathy profession is not regulated. The issue in the case was whether naturopaths using phrases like “medically trained” and “practice of family medicine” to describe themselves or their naturopathy practice could reasonably be viewed as holding themselves out as physicians. The Court was of the view that they were illegally holding out and that the phrases they used “are misleading because that assumes that people understand what exactly is naturopathy”.
This case should be read with some caution, at least in the five jurisdictions in Canada (including Ontario) where naturopaths are regulated and are subject to various requirements when describing themselves and their practice. The Anhorn case is a lower court decision from another province where naturopathy is not regulated. However, the case suggests that whether there is “holding out” should be assessed from the perspective of a consumer who is not familiar with the professions in issue.
Staying out of Civil Proceedings
by Rebecca Durcan
February 7, 2019
Most regulators have a statutory confidentiality provision. Some, but not all, of those provisions protect regulators from having to produce information or act as a witness in civil disputes: F. (M.) v Dr. Sutherland, 2000 CanLII 5761 (ON CA), <http://canlii.ca/t/1cwt9>. A recent decision addressed the right of a claimant to obtain a Norwich order providing access to information about security trades to ascertain whether other, unknown, persons had manipulated the market: Harrington Global Opportunities Fund S.A.R.L. v Investment Industry Regulatory Organization of Canada, 2018 ONSC 7739 (CanLII), <http://canlii.ca/t/hwqz7>. The regulator, IIROC, did not have a statutory provision protecting it from such involvement. However, even without such a provision, the court still refused to grant the disclosure order. This decision articulates the rationale as to why such confidentiality provisions (or concepts) exist.
The Court refused to issue the disclosure order primarily on the basis that IIROC’s regulatory role required it to process complaints and, where appropriate, take regulatory action. Such a role did not create a “proximity” to the claimant such that it should be required to assist the claimant in their private claim. IIROC’s decision to maintain confidentiality about the evidence gathered in its investigations resulted from its regulatory role, respect of individuals’ privacy and desire to maintain access to sources of information for future investigations. In some respects, the claimant’s application was a collateral attack against the decision of IIROC to not proceed with the claimant’s complaint.
The Court also held that the regulator’s interest in preserving its investigative processes outweighed the claimant’s interest in pursuing its civil claims for damages.
Discretion to Refuse to Process Complaints
by Bernie LeBlanc
February 4, 2019
Policy makers are torn about how much discretion to give regulators to refuse to process complaints that are outside of the regulator’s jurisdiction or are otherwise without merit. The competing values, on the side of minimal discretion, include ensuring that the complaints process is available to all, that serious issues are not missed on a preliminary screening, and that the process be held accountable. On the other hand there is the value of ensuring that regulators are permitted to focus their resources on serious concerns and not waste them on matters that are unlikely to go anywhere.
Some statutes require all complaints to be formally investigated and determined. Others require any decision not to proceed with the matter to be handled by a statutory committee that has public representation. Some Acts permit staff to decline to process a complaint. Legislation also varies as to whether there is an external review of decisions not to process a complaint.
An example of a complaints process where maximum flexibility is given to the regulatory body is found at: Fabrikant v Law Society of Ontario, 2018 ONSC 7393, <http://canlii.ca/t/hwj6n>. Dr. Fabrikant made a complaint against a lawyer who advised a human rights commission. The basis of the complaint was that Dr. Fabrikant was not given access to the lawyer’s advice to the commission. The lawyer’s regulator took no action on the complaint because it related to a legal dispute and not the professionalism of the lawyer’s conduct and was, therefore, outside of the jurisdiction of the regulator to address.
The Divisional Court held that the enabling legislation gave the regulator discretion as to how the complaints were to be screened. Under the legislation it was open for a staff person at the regulatory body to decide not to proceed with a complaint that was outside of the mandate of the regulator. In addition, the complaints review process was only available for disposition of complaints on their merits and was not available for complaints screened out by staff on a preliminary basis for not being within the mandate of the regulator.
The facts of this case might illustrate why policy makers gave such a broad discretion to this regulator to decline to process complaints.
Not Vague and Unenforceable
by Julie Maciura
January 28, 2019
In Francis v Newfoundland and Labrador Pharmacy Board, 2018 NLSC 248, http://canlii.ca/t/hwgdr a group of pharmacists tried a second time to challenge the validity of provisions in the regulator’s standards of practice and by-laws. Their challenge was that the provisions dealing with the following were too vague and were unenforceable:
- A requirement for pharmacies to be connected to a provincial database;
- A requirement to have equipment to scan documents;
- A requirement for pharmacists to have a patient consultation area;
- The authority for the regulator to issue a conditional licence as one of its registration options;
- Adding the charging of excessive fees to the definition of professional misconduct; and
- Adding practising in a conflict of interest to the definition of professional misconduct.
In a previous application for an interim injunction to prevent the provisions from taking effect, a court had upheld each of these provisions either on their merits or because the issue was moot for the practitioners bringing the proceeding: Francis v Newfoundland and Labrador Pharmacy Board, 2016 CanLII 97222 (NL SC), <http://canlii.ca/t/gx7bn>. In the present case the Court held that the practitioners could not re-litigate the issues in a different proceeding.
Mistakes vs. Misconduct
by Rebecca Durcan
January 22, 2019
It is generally accepted that not all mistakes by practitioners constitute professional misconduct. Sometimes drawing that line is difficult. In other cases it is relatively easy. In Strother v Law Society of British Columbia, 2018 BCCA 481, http://canlii.ca/t/hwqtx, a lawyer advised Client A that their business model was no longer possible under income tax law. Client A wound down the business as a result of the lawyer’s advice. Later Client B (a competitor of Client A) pointed out to the lawyer another approach that might make the business model feasible. The lawyer changed his opinion and went into business with Client B. Client A was not informed of either the change of opinion or of the lawyer’s participating in a competitor’s business.
The lawyer argued that he was honestly of the view that his fiduciary obligations to Client A had ended and that this mistake should not constitute professional misconduct. The lawyer suggested the line between mistakes and misconduct should be articulated as follows:
… professional misconduct is conduct that no reasonable and well-informed lawyer acting with care and deliberation would fail to recognize as wrong; that is, conduct on which there could be no serious dispute among reasonable and well-informed lawyers that it was a breach of professional obligations.
The Court indicated that this formulation was too restrictive. The Court described the actual test as follows:
However, in my view, it is important to state with clarity the accepted test for professional misconduct. The test is that articulated by the Law Society in Martin and Lawyer 12: a hearing panel will consider whether the lawyer’s conduct was a marked departure from the conduct expected of lawyers. Put another way, the lawyer’s conduct must display culpability of a gross or aggravated nature, rather than a mere failure to exercise ordinary care. While I agree with Mr. Strother that not every breach of professional obligations constitutes professional misconduct, the operationalized definition he proposes adds a different focus.
The Court also said that comments by judges in a civil case as to whether the conduct of the lawyer was unlawful were irrelevant to the issue of whether his conduct was unethical or unprofessional.
Given the finding of the hearing panel that the lawyer had failed to make disclosure to Client A because of his own financial interests, the finding that the lawyer had a conflict of interest was upheld. So was the five month suspension order.
Air of Reality
by Erica Richler
January 17, 2019
A case that regulators have been following closely seems to have been resolved in favour of the regulator. In Fitzpatrick v College of Physical Therapists of Alberta, 2018 ABQB 989, <http://canlii.ca/t/hwghw> a practitioner who had been disciplined sued the regulator for, among other things, maliciously expanding the scope of the investigation beyond the original complaint and acting in a conflict of interest.
The Court held that the limitation period for such an action began to run when the initial finding of misconduct was made against the practitioner (and not when the sanctioning process or the appeals were completed). Thus the proceeding was initiated out of time.
More interesting for regulators was the Court’s conclusion that when an initial investigation identifies concerns beyond the original complaint, it is appropriate for the regulator to investigate those concerns as well (through proper channels). Doing so is not evidence of malice or bad faith. In addition, a poor choice of words (i.e., calling a suspicious referral system an investigation of “kickbacks”) does not found a claim of bad faith.
Finally the Court concluded that the fact that a tribunal member may have been interested in buying the practice of the practitioner years before the events in issue does not amount to a conflict of interest, at least where no objection on the basis of appearance of bias is made at the hearing.
The Court concluded that the claim had no air of reality and it was summarily dismissed.
Searching for Professionals on Google
by Natasha Danson
January 10, 2019
Health regulators have long faced criticism that they lack transparency and that they hide information about their members from the public. This criticism is often frustrating for regulators, particularly because a regulator’s governing statute often prevents them from disclosing the information.
However, every enabling statute allows regulators to share at least some information with the public, and one of the primary ways that regulators achieve transparency is through their public registers. As most readers of this newsletter know, a regulator’s public register is typically a searchable database found on the regulator’s website that contains the names of all members (and sometimes former members) along with specific information about each member, including whether the member has been subject to disciplinary or other regulatory action. The public register is a great tool that can be used to uncover information about regulated professionals, but, unfortunately, many members of the public do not know that such registers exist, let alone how to access them. Some regulators even require that users answer skill-testing questions to verify that they are not “bots”, which arguably makes the information contained on the registers less accessible.
In our experience, when the average computer-savvy person wants to screen a health care professional, they turn to a search engine such as Google. Because of that, we wanted to see if a professional’s register entry (or any information from the regulator) would appear in Google search results. We therefore conducted our own informal survey where we Googled the names of members of the 26 health care regulators in Ontario under the Regulated Health Professions Act, 1991 to see what information was coming up on the Google search engine.
Here is what we found:
- No discipline: When we Googled the names of health care professionals who were not subject to discipline or another form of public regulatory action (such as a caution or a specified continuing education or remedial program), there were very few search results from regulators’ websites; 20 out of the 26 regulators (77%) did not appear in Google. This may help explain why many members of the public do not know about the existence of regulators’ public registers.
- Current discipline: We next Googled the names of health care professionals who were currently subject to discipline proceedings. Note that two of the 26 regulators surveyed did not have any members who were currently subject to disciplinary proceedings at the time we conducted this search. Of the remaining 24 regulators, results from 19 regulators (79%) came up on Google when we searched for the names of members currently facing disciplinary action.
- Past discipline: Results from 16 of the 26 health regulators (62%) appeared in Google for members who had been subject to discipline in the past. For five of the 26 regulators (19%), a member subject to past disciplinary proceedings did not consistently show up in Google, and there were no results that appeared from the remaining five health regulators when we searched their members who had previously been subject to disciplinary proceedings.
- Other outcomes: We also Googled members who had been subject to other public regulatory outcomes (e.g. cautions, specified continuing education or remedial programs or undertakings). These outcomes were harder to search, and for eight of the 26 regulators we were unable to conduct the search because we did not know the names of members to Google. Of the 18 professions we did search, only four regulators showed those outcomes in Google (22%). No results showed up in Google for the other 14 regulators (78%).
These results suggest that potentially valuable information is not appearing on the platform that is often used by the public to choose health care professionals and to check if there are any red flags. Anecdotally, we understand that many regulators may not want public register results to be searchable on Google because of concerns related to member privacy and the resultant spam mail that members may receive. However, anything that is posted on a regulator’s public register is, by definition, public. Regulators may want to consider doing more to make sure that public information is accessible to the public in a meaningful and practical way, including by ensuring that the information is searchable on Google.
 Thank you to Laura Sumner for her tremendous assistance with the research supporting this article and with the article itself.
[This article was also featured in the December 2018 newsletter of the Canadian Network of Agencies for Regulation.]
Particulars of Bad Faith
by Bernie LeBlanc
January 8, 2019
As a general rule, regulators can only be sued for damages if they act in bad faith. When a person sues a regulator they must give particulars of the bad faith that they allege occurred. Many actions against regulators are dismissed where the bad faith is pleaded too baldly. In Robson v The Law Society of Upper Canada, 2018 ONCA 944, <http://canlii.ca/t/hw70d> the Ontario Court of Appeal allowed an action for malicious prosecution and misfeasance in public office to proceed against the regulator and some of its employees. In this case, the practitioner claimed the investigation and prosecution had been conducted in bad faith in that the regulator had deliberately cherry-picked comments made by a court that the regulator knew to be false, and had deliberately avoided interviewing witnesses during the investigation that would be favourable to the practitioner in order to retaliate against the practitioner who was a thorn in their side. The Court accepted that sufficient particulars had been alleged against the regulator. The proceeding was permitted to proceed to the discovery stage. The Court emphasized that it was making no evaluation of whether these allegations were true; that assessment would occur later in the process.
Refusal of an Adjournment Upheld
by Julie Maciura
January 3, 2019
Discipline tribunals often struggle when a practitioner requests an adjournment to obtain legal counsel. The right to have representation at a hearing affecting one’s livelihood is given significant weight. Also, courts review procedural fairness issues, such as refusing an adjournment request, on a correctness (not reasonableness) basis. However, in Spaetgens v Alberta (Securities Commission), 2018 ABCA 410, <http://canlii.ca/t/hwd8w> Alberta’s highest court upheld a refusal to grant an adjournment to obtain legal counsel (previous legal counsel withdrawing two months before the hearing) because:
- There was insufficient evidence that the practitioner was diligently searching for new counsel;
- There was no corroboration that a prospective lawyer would act for the practitioner if an adjournment was granted;
- The practitioner raised financial problems in retaining a lawyer but provided no explanation as to how those issues would be resolved so that he would, in fact, be able to obtain legal counsel.
In the circumstances the Court concluded that the tribunal was correct in concluding that what was really being requested was an indefinite adjournment. The circumstances included the failure to propose alternative hearing dates, the failure to take steps to obtain the disclosure from a third party that the practitioner said he needed, and that the prosecution witnesses would be prejudiced by the late request for an adjournment, particularly since one of them was in poor health.
The Court did, however, reduce the administrative financial penalty by 75% because the amount was based on a comparison to one when the practitioner was working. A financial penalty for an unemployed person should be less than for an employed person. The length of the trading ban was also reduced to reflect the outcome in other similar cases.
When Acting as a Licensee
by Erica Richler
December 31, 2018
A regulator for horse racing imposed an interim suspension on a jockey after he had made threatening and abusive comments to another jockey, to a horse owner, and to racing officials. Subsequently he engaged in a destructive rampage at the home of the horse owner (who had reported the concerns to the officials), which resulted in criminal charges. The appeal tribunal set aside the interim suspension and the resulting notice of proposal to revoke the jockey’s licence on the basis that the conduct did not involve his acting as a jockey (i.e., on the race track).
The Divisional Court disagreed and restored the interim suspension: Registrar of Alcohol, Gaming and Racing v. MacLaren, 2018 ONSC 6576, <http://canlii.ca/t/hw31g>. The test for the tribunal in this case was whether there were “reasonable grounds to believe that, when acting as a licensee, the applicant will not act in accordance with the law, or with integrity, honesty, or in the public interest, having regard to the past conduct of the applicant.” The Court said:
Acting as a licensee under the Act encompasses more than just one’s activities while engaged in a race; it also involves having a relationship with the regulatory agency charged with enforcing the Act that does not undermine that body’s ability to fulfill its important public mandate.
The Court also said:
… what the Tribunal does not acknowledge or deal with is the connection between the Respondent’s criminal conduct and the Respondent’s responsibility as a licensee to allow himself to be governed by his regulatory body. This is important because the conduct was directly related to the disciplinary action that the racing officials had taken against the Respondent. It occurred in reaction to the suspension and it was directed at another licensee whose complaint had led to that disciplinary action. This raises a real question about the Respondent’s governability as a licensee.
The matter was sent back for a rehearing before a differently constituted panel. This case illustrates how an individual’s governability is relevant to their practice of a profession.
Two Recent Reminders of the Importance of Effective Governance
by Darrel Pink – Guest Contributor
December 28, 2018
Last week two significant reports addressing ineffective board governance were released. Both should concern professional regulators as they outline issues and challenges which many regulators may not be addressing. The Auditor General of Nova Scotia reviewed the IWK Health Centre and found Board oversight of spending was wanting, especially relating to reimbursement of travel and related expenses – https://oag-ns.ca/sites/default/files/publications/Ch2Dec2018.pdf. The AG’s review arose because of findings that a former CEO and CFO had followed improper expense account procedures, which have resulted in criminal charges being laid.
The second report by Sen. Murray Sinclair dealt with the Police Services Board in Thunder Bay – https://slasto-tsapno.gov.on.ca/ocpc-ccop. The origin of this report is well known as it relates to allegations of racism in the Thunder Bay Police Force.
Both are worth reading to understand current thinking about the role a board of directors must assume to do its job properly. Two themes emerge from the reports. First, although a relationship of ‘trust’ between senior staff leadership and the Board is essential, that relationship cannot be allowed to impede the Board from doing its job independently and thoroughly. Second, and much less understood, the tone of the organization must be set and communicated by the Board.
Here are some of the key lessons from the reports:
- The Board has responsibility to ensure the organization has and achieves diversity objectives and there is training in place to advance these goals.
- Acting independently the Board must ensure both strategic and operational goals are being met and must not rely exclusively on assurances provided by the CEO.
- The Board must demonstrate meaningful engagement in developing governance and oversight policies.
- The CEO must keep the Board apprised of serious risks that could affect the organization.
- Both the Board and management must effectively oversee internal controls to ensure reliable and accurate financial reporting, efficient and effective operations, and compliance with laws and regulations. The Board, through the Chief Executive Officer, is responsible for creating a culture of awareness of internal controls.
- Financial control policies should address fraud, travel and hospitality, internal meeting expenses, staff social events, gifts of appreciation, signing authority, and procurement. The Board should receive regular reporting on the effectiveness of internal controls.
- The Board should require, and management should implement, an internal or enterprise risk management system that documents internal controls and monitoring of both financial and operational risks and, I would add, regulatory risk for regulators. The Board and management should regularly monitor the effectiveness of the organization’s response to the risks.
- Governance policies should clearly state what ‘significant transactions’ require Board approval. Monetary amounts and organizational risk move a transaction from being ‘operational’ to the ‘Board’s business’.
- The Board should have processes in place to ensure the accuracy of financial reporting to the Board.
- The terms of reference of key Board committees, such as Finance, and Audit and Risk Management, should be regularly updated to ensure currency as the circumstances of the organization evolve.
- The Board should regularly evaluate the CEO and maintain documentation about that process and its results so future Boards have access to it. The CEO must in turn complete regular performance reviews of management and report on the results to the Board.
These reports show what happens when complacency sets in at the Board and it fails to stay alert and focused on all aspects of its fiduciary obligations. For organizations committed to good Board governance the recommendations are not earth shattering; however, they outline many important aspects of best practices that provide a timely reminder from which every Board can benefit.
A Nice Summary of the Standard of Review in Discipline Sanction Cases
by Rebecca Durcan
December 27, 2018
Just as the Supreme Court of Canada is on the eve of considering the standard of review of administrative decisions generally, an Ontario Court has provided a nice summary of the current state of the law in respect of judicial review of discipline orders. In Gutman v College of Physicians and Surgeons of Ontario, 2018 ONSC 6936, http://canlii.ca/t/hw5wq a physician, found to have breached a prior discipline order, challenged the sanction imposed. In upholding the order, the Court summarized the standard of review as follows:
- A decision is reasonable if it falls within a range of possible acceptable outcomes (see: Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII),  1 S.C.R. 190, at para. 47).
- A decision is unreasonable only if, considering the reasons as a whole, there is “no line of analysis” in the reasons that could reasonably have led the tribunal to the result (see: Law Society of New Brunswick v. Ryan, 2003 SCC 20 (CanLII),  1 S.C.R. 247, at paras. 48-56).
- Reasons must be taken as a whole. If the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met (see: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII),  3 S.C.R. 708, at para. 16).
- If the tribunal is a specialized body with expertise that the Court does not possess, and if their decisions require the exercise of discretion, it must be shown deference in both with respect to the facts and the law. The Court should not substitute its own reasons, but assess reasonableness on the record (see: Newfoundland, at para. 15).
- Deference is owed, especially with respect to sanctions for breaches of professional standards, in that they the tribunal had greater experience than the Court (see: College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420 (CanLII), 424 D.L.R. (4th) 613, at para. 31; Mast v. College of Nurses of Ontario, 2015 ONSC 5854 (CanLII), at p. 5; and Stetler v. Agriculture, Food and Rural Affairs Appeal Tribunal(2005), 2005 CanLII 24217 (ON CA), 76 O.R. (3d) 321 (C.A.), at para 108).
Pithy yet helpful.
Screening Committee Decisions
by Bernie LeBlanc
December 20, 2018
Two recent related decisions by the screening committee for the regulator of Ontario teachers reinforce the authority of screening committees to deal informally with concerns even if they arise outside of the practice of the profession.
In Bouragba v Ontario College of Teachers, 2018 ONSC 6935, <http://canlii.ca/t/hw6g8> a teacher brought an application for judicial review for being cautioned about the tone of his communications. The communications occurred when the teacher, acting in his capacity as a parent, communicated with a principal related to the treatment of the teacher’s child. The Court held the regulator did have jurisdiction over the teacher’s conduct when acting as a parent. The Court also held that a caution could be justified even where facts were in dispute and even in circumstances where another reasonable disposition would have been to take no action. The Court said:
A caution is not a disciplinary action, and is not made public. It is not based on any finding of wrongdoing. Rather, it is meant to express the Committee’s concern about conduct and to provide guidance for the future.
In a companion case, the Court also upheld the screening committee’s decision to take no action against the principal and two school board administrators who dealt with the teacher’s child: Bouragba v Ontario College of Teachers, 2018 ONSC 6940, <http://canlii.ca/t/hw6g7>. The Court found there was no appearance of bias on the basis that one of the screening committee members knew of one of the parties or that she had written a letter of reference for a former representative of the regulator, who was not involved in the case prior to the application for judicial review.
Burden of Proof in Registration Applications Involving Good Character
by Julie Maciura
December 19, 2018
As a general proposition it is the applicant for registration who has the burden of proving that they meet the entry requirements. However, this conceptual approach is challenging when an issue arises as to whether the applicant is of good character. It is impractical to require every applicant to demonstrate that every aspect of their past and current lives are consistent with their good character. It is also challenging for an applicant to address concerns that have not been disclosed to them. While there are various approaches to addressing this conundrum, the recent case of Mundulai v Law Society of Ontario, 2018 ONSC 6965, <http://canlii.ca/t/hw6gh> provides one useful methodology.
Mr. Mundulai sought registration after having been disciplined a number of times and then having been revoked for being ungovernable. He insisted that it was up to the regulator to prove that he was not of good character. The Law Society provided him with disclosure of its concerns, related to his disciplinary history, and insisted that the onus was on him to establish his current good character. The Court said:
There is ample case law supporting the Society’s entitlement to rely on the prior disbarment to meet its initial burden at a licensing hearing to demonstrate that the applicant may not meet the good character requirement. Thereafter, an evidentiary burden falls on the applicant to establish that, despite his or her prior misconduct, he or she now meets the good character requirement.
Depending on the wording of one’s legislation, the approach of raising concerns about an applicant’s good character from prior events and then requiring the applicant to demonstrate that those past events are not reflective of their current and true character is a useful one for regulators to consider.
Deference to Clinical Examination Results
by Erica Richler
December 17, 2018
Where an entry-to-practice examination involves clinical skills, it is particularly difficult to challenge (or defend) the outcome. The scoring typically involves the application of professional judgment, even where the criteria are explicitly set out. Courts dealing with judicial review applications of such outcomes generally apply a fair degree of deference to the examination body. This was demonstrated in Kabiri v The National Dental Examining Board of Canada, 2018 BCSC 1938, <http://canlii.ca/t/hvxxd> where the court upheld the failing grade given in a dentistry examination. The failure related to excess amalgam used in a filling and holes in a dental dam intended to prevent debris from reaching a patient’s throat. The candidate questioned how the excess amalgam was measured and also provided photographs that he asserted revealed no holes or tears in the dam.
The Court made the following points:
- Judicial review was available, even though the examination body was a private corporation, because its examination was relied upon by statutory regulatory bodies for registration purposes.
- Deference must be exercised since the examination involved the application of expertise.
- Judicial review did not exist for the way in which the examination was structured; it just existed for the actual administration of the examination itself. For example, the court would not require the examiners to develop an alternative and more objective method of measuring excess amalgam.
- In this case the examining body provided adequate reasons for dismissing the candidate’s internal appeal. For example, it explained why the close up photographs of the dam that did not reveal any holes or tears was not a sufficient basis to overturn the examiners’ on-site observations.
- An examination body is permitted to defend the reasonableness of its decision on judicial review, particularly where there was no one else to argue the matter.
This decision gives guidance on how an examination body should manage internal appeals.
Disparaging Comments Misconduct Finding Upheld
by Rebecca Durcan
December 14, 2018
The Saskatchewan Court of Appeal has upheld a finding of misconduct against an agrologist for making disparaging comments about other members of the profession and the regulator in Cameron v The Saskatchewan Institute of Agrologists, 2018 SKCA 91 (CanLII), <http://canlii.ca/t/hw5wd>.
In upholding the main finding the Court said:
[The Discipline Committee (DC)] found Mr. Cameron’s conduct “could negatively affect the public perception of the Agrology Profession to the detriment of the Profession and the ability of agrologists to effectively serve the public.” In coming to this conclusion, the DC highlighted the comments of Mr. Cameron that attacked and questioned the honesty and integrity of individual members of the association. In particular, the DC relied upon Mr. Cameron’s comments in the Grassroots newsletter that (i) accused the council of unethical behavior and the Institute of having a “two-tiered” code of ethics, and (ii) suggested lawyers may be controlling the council. Taken as a whole, it was reasonable to conclude that Mr. Cameron’s comments could negatively affect the public perception of the agrology profession.
The Court declined to hear a challenge to the validity of the misconduct provision under the Canadian Charter of Rights and Freedoms because the issue had not been raised before the appeal.
A National Regulatory Body is Possible in Canada
by Bernie LeBlanc
December 12, 2018
Under Canada’s Constitution, the regulation of professions falls under provincial jurisdiction (i.e., property and civil rights). With rare exceptions (e.g., banking, immigration), professions are not regulated through federal legislation. Previous attempts to facilitate uniform national regulation have been struck down by the courts: Reference re Securities Act,  3 SCR 837, 2011 SCC 66, http://canlii.ca/t/fpdwb.
However, the provincial regulation of professions has significant limitations. Governments have been trying to address them through informal government cooperation (e.g., related to health care) and through formal agreements (e.g., the Canadian Free Trade Agreement). In Australia, another country structured as a federation, agreements have been reached to facilitate a national approach to the regulation of health care workers: https://www.ahpra.gov.au/About-AHPRA/Who-We-Are.aspx.
Recently the Supreme Court of Canada has approved a plan for the national regulation of the securities industry: Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48, <http://canlii.ca/t/hw0hz>. The plan is complex and involves a model provincial / territorial statute, an accompanying federal statute and a national body with representation from the provincial / territorial ministers overseeing the regulation of securities in their home jurisdictions. Because the plan requires provincial / territorial approval to enact or amend the plan, the Court was of the view that it did not fetter provincial constitutional authority.
This plan can serve as a model for the national regulation of other professions and industries which might now be encouraged to give national regulation further consideration.
A Court-Approved Approach to Making Defensible Credibility Findings
by Julie Maciura
December 10, 2018
In The Law Society of Manitoba v Young, 2018 MBCA 126, http://canlii.ca/t/hwbp5 Manitoba’s highest court rejected an appeal made on the basis that the hearing panel had made unsafe findings of credibility on the main disputed allegation. In upholding the credibility finding, the Court noted:
- The panel gave detailed reasons on the credibility findings.
- The reasons indicated that the panel had considered all of the evidence.
- The inferences drawn from the evidence by the panel were reasonable.
- The panel’s reasons indicated how the main prosecution’s witness was consistent with the documentary evidence.
- The panel’s reasons addressed the inconsistencies in the main prosecution’s witness and explained why those inconsistencies did not undermine the witness’ overall credibility.
- The panel’s reasons addressed the practitioner’s evidence and the corroborating witness called by the practitioner and explained how that evidence was inconsistent with the documentary evidence and was otherwise not credible (e.g., attempts to persuade the complainant to withdraw the complaint and, when that failed, making false statements to the regulator).
This judicial analysis gives guidance to hearing panels on the points they need to cover when dealing with credibility issues.
Courts also take a dim view of those who are unsuccessful at a hearing when raising one defence (e.g., “I am innocent”) and trying to introduce a new defence after they have been found guilty (e.g., “I had a medical condition that affected my behaviour”). The Court refused to receive fresh evidence, a psychological report, on the basis that such evidence should have been obtained and introduced at the original hearing. The Court emphasized the importance of the finality of hearings.
Please note Steinecke Maciura LeBlanc is putting on a workshop for tribunal members on how to assess credibility and write reasons on February 21, 2019. See: http://www.sml-law.com/resources/upcoming-events/ for more information.
Lisbon Recognition Convention
by Erica Richler
December 7, 2018
The Lisbon Recognition Convention (LRC) is an international agreement involving Europe, the United States and Canada. It has been ratified by Canada earlier this year, so it reflects a commitment by the federal government. However, since it is the provincial (and territorial) governments that oversee the regulation of most professions in Canada and since the LRC does not, by itself, amend any statutes, it does not have any immediate direct impact on regulators. However, it will undoubtedly influence government expectations going forward, particularly for provinces that have a Fairness Commissioner.
The LRC deals with the recognition of academic credentials from other countries, e.g., when someone is applying to a university and wants to have past study considered or when someone is applying to a regulator for registration. The LRC urges timely assessment of credentials of internationally trained individuals, recognition of credentials unless there is a substantive difference, and accessible dissemination of information to those seeking recognition of credentials.
One interesting aspect of the LRC is that it would place the onus on the organization reviewing the credential to say if there is a substantial difference (rather than the individual having to say there is not). It is unlikely that the LRC will change established case law placing the onus on applicants to demonstrate that they meet registration requirements, at least in the short term. Beyond that, regulators may be expected by the Fairness Commissioner, the government and perhaps even the courts to respect the spirit of the LRC.
It is unlikely that the LRC will affect the Canadian Free Trade Agreement as the CFTA focusses on recognition of certified practitioners moving within Canada. The LRC applies primarily to the original Canadian jurisdiction that first assesses the qualifications of the practitioner. When and if the practitioner moves to another Canadian jurisdiction, the receiving jurisdiction will still accept that assessment without further evaluation in most cases.
For more information see the website of the Canadian Information Centre for International Credentials: https://www.cicic.ca/1639/canada_and_the_lisbon_recognition_convention.canada.
Wording of Restraining Orders
by Rebecca Durcan
December 4, 2018
The wording of restraining orders is definitely an art, rather than a science. In the past courts have encouraged such orders to be worded as specifically as possible, and not to simply follow the wording of the statute, so as to make its scope clearer and its enforcement easier: Law Society of Saskatchewan v Mattison, 2015 SKQB 323, http://canlii.ca/t/glpws. However, the law of unintended consequences can supersede all. In College of Midwives of British Columbia v Lemay, 2018 BCSC 1827, http://canlii.ca/t/hvp09, the regulator obtained an injunction against an unregistered person preventing her from performing various midwifery procedures or holding herself out as a midwife. Subsequently the enabling legislation was amended changing some of the language used to describe the regulated activities. While the changes were not substantive, it became less clear what the individual was prohibited from doing. The regulator sought, and obtained, an order from the Court amending the wording of the restraining order to ensure that its manifest intent of preventing the individual from practising midwifery was maintained. Interestingly, the revised wording of the order required compliance with the legislation as it was worded from time to time. The specific prohibited activities were removed from the order.
Not Enforcing Administrative Penalties
by Bernie LeBlanc
November 27, 2018
When regulators impose a fine or administrative penalty, do they have an obligation to try to collect it? In British Columbia (Securities Commission) v Thow, 2018 BCSC 1823, http://canlii.ca/t/hvn8g the Court said no. Mr. Thow misappropriated a large amount of money from his clients. He was found criminally responsible and a large restitution order was issued. The Securities Commission also prosecuted him and obtained an administrative penalty in the amount of $250,000. The Commission did not take steps to collect the administrative penalty so that Mr. Thow could continue to make payments on the restitution order. Mr. Thow argued that, because of this inaction, any attempt to now collect the administrative penalty would be an abuse of process. The Court disagreed:
On [the] basis of the record, the most compelling conclusion is that the plaintiff’s decision to refrain from actively pursuing collection was based on a recognition that money paid in satisfaction of the restitution order was the preferable outcome because funds would find their way to the benefit of the victims, rather than to government coffers, as would result from payments on the penalty. If that is the case, as it seems to be, in my view it is eminently commendable, and quite the opposite of an abuse of the court’s process or action taken for some ulterior motive.
The Court deferred dealing with the second argument (that the Commission had promised not to collect the administrative penalty) until better evidence could be obtained.
This case confirms that regulators are not compelled to make immediate collection efforts on a fine or administrative penalty in order to preserve their claim.
Refusing to Consider Competencies Obtained Outside of School
by Julie Maciura
November 20, 2018
The trend in registration matters has been to consider competencies rather than credentials. This is an essential part of the legal requirements imposed on regulators relating to national and international mobility. It is also consistent with the public interest in having all competent practitioners practise their professions. However, credential-based registration requirements are still legal and enforceable when required by legislation.
In Marshall v College of Psychologists of Ontario, 2018 ONSC 6282, http://canlii.ca/t/hvn9f the Divisional Court was faced with a challenge by a psychologist who had obtained a doctorate in Canada from a non-accredited program. At the time that the Canadian degree was obtained, the applicant likely met the requirements for registration. However, a subsequent regulation amendment (of which the applicant indicated he had not received prior notice) required equivalency to an accredited program, which the regulator concluded did not exist. After graduation the applicant had obtained significant relevant experience and had published a number of peer-reviewed articles in the field. It also appeared that if the applicant were internationally trained he might have faced a more flexible registration process.
The regulator concluded that the non-exemptible requirement had not been met since it spoke specifically about the applicant’s educational “program” which did not permit the consideration of post-graduation experience and writing. The appeal tribunal found this interpretation of the language of the regulation was reasonable. The Court, while acknowledging the policy arguments for considering competencies obtained outside of the program itself, agreed.
The Marshall case highlights the importance of the legislative language in registration matters.
by Erica Richler
November 15, 2018
In some discipline cases the defence relates to the process rather than the merits. To a large extent, Walia v College of Veterinarians of Ontario, 2018 ONSC 6189, http://canlii.ca/t/hvl9g was such a case. In brief, a number of process challenges were dismissed by the Ontario Divisional Court as follows:
- If the allegations are within the scope of the complaint and the practitioner had an opportunity to respond to the complaint, then it does not matter that the formulation of the allegations in the notice of hearing differs from the summary of the complaint initially provided to the practitioner.
- It is acceptable for prosecuting counsel to draft the specific allegations referred to discipline.
- There is no conflict in having overlapping committee members on both the screening committee and the hearing committee if those overlapping members do not participate in the hearing.
- It is permissible for a member of the hearing panel to have heard preliminary motions.
- An expert’s involvement with a committee of the regulator in the past does not necessarily give rise to bias concerns.
- When assessing costs for a discipline hearing, the dockets of prosecuting counsel need not have been disclosed or filed.
Courts look to whether the procedures followed actually affected the fairness of the hearing.
More Guidance on Awarding Costs at Discipline
by Rebecca Durcan
November 12, 2018
The Ontario Divisional Court provided additional guidance on the awarding of costs by a discipline tribunal. In Robinson v College of Early Childhood Educators, 2018 ONSC 6150, http://canlii.ca/t/hvmwg, the practitioner was found guilty of having abused a child. The panel ordered the practitioner to pay $257,000 in costs which was more than five times his salary when he was fully employed. The practitioner challenged the authority of the tribunal to award costs on a technical argument related to the failure to provide a process in the tribunal’s rules of procedure and the intersection of the enabling statute with the provisions of the Statutory Powers Procedure Act. The Court found the tribunal’s interpretation of its provisions was reasonable even though another regulator had interpreted similar provisions differently.
The Court made non-binding observations however, that the awarding of costs could have a chilling effect on practitioners facing discipline where the tribunal adopted a policy of awarding costs in every case in which a finding was made. The Court would also be concerned if the regulator sent mixed signals as to whether costs would only be awarded where the practitioner acted unreasonably, but then proceeded to award costs where the practitioner’s defence was acknowledged to have been diligent and appropriate.
In this case, however, the costs order was upheld.
by Bernie LeBlanc
November 7, 2018
It is rare for a disciplinary case to be stayed on the grounds of excessive delay. However, Diaz-Rodriguez v British Columbia (Police Complaint Commissioner), 2018 BCSC 1642, http://canlii.ca/t/hv9pz is an example of where the test for a stay was met. The case involved allegations of the use of excessive force and of giving misleading statements by a transit police officer. The delay was for seven years despite the inclusion of tight timelines within the enabling legislation. The delay included the restarting of proceedings at least twice because the oversight body was not satisfied with earlier determinations.
The Court acknowledged that the timeliness requirements of criminal proceedings did not apply and that the case was governed by Blencoe v British Columbia (Human Rights Commission),  2 SCR 307, http://canlii.ca/t/525t: “the applicant must establish that: (1) the delay is unacceptable; and (2) there is a serious prejudice arising from the delay itself, not from the underlying allegations or charges”. The Court also accepted that section 7 of the Canadian Charter of Rights and Freedoms did not apply. The Court concluded that there was no material unfairness to the hearing process as the core evidence remained available through video recordings and promptly-taken witness statements.
However, the Court found that the extraordinary delay did meet the “inordinate” criterion given the time-sensitive nature of the legislative scheme and the circular nature of the proceedings. The Court also found that there was significant prejudice to the practitioner largely because of the career limiting restrictions he had worked under for five years and the impact the delays had on him and his family.
This case is a reminder to regulators that, despite the non-criminal law approach taken to regulatory delays, excessive delays can result in the staying of proceedings in appropriate, albeit rare cases. This is particularly true where interim restrictions are imposed.
Injecting Clients into a Professional Dispute is Misconduct
by Erica Richler
November 1, 2018
Practitioners cannot use their clients as pawns in their professional disputes. Doing so can amount to professional misconduct. A physician learned this the hard way in Torbey v College of Physicians and Surgeons of Alberta, 2018 ABCA 285, http://canlii.ca/t/httn3. Dr. Torbey was upset that his operating room time was reduced. As a result he stopped seeing patients for procedures in the operating room on the days remaining to him. He also sent a communication to his patients “advising that his surgical schedule had been cut down to two days per month, and while he had requested outpatient time at the hospital nothing had been done … and asked his patients to get involved. He named the hospital doctors involved in the dispute and stated the administration was ‘greedy, self centered and discriminating’, ‘using the patient with urological problems as a tool to push me around and bullying me for no justifiable reason putting the urological patient at risk’.”
The discipline tribunal found that such behaviour was professional misconduct and “ordered that he be suspended for a period of one month, but that the suspension would not need to be served if he completed a Comprehensive Occupational Assessment for Professionals.” The Court held that both the finding and the sanction were reasonable.
Ten Implications of Cannabis Legalization for Regulators
by Julie Maciura
October 29, 2018
The predominant reaction of regulators to the legalization of cannabis for recreational use has been that nothing has changed. And to a large extent that is correct. Prescribing cannabis for medical purposes is still restricted to physicians and nurse practitioners. In many respects the professional expectations about its use will be similar to the consumption of alcohol or the consuming of prescription drugs which are also both legal and can impair function. However, there are a number of aspects to the legalization of cannabis that may create issues regulators may have to address in the coming months and years. A preliminary list includes the following:
- Is there a difference between a practitioner prescribing cannabis and a practitioner recommending patients obtain recreational cannabis on their own for therapeutic use?
- If so, is such a recommendation within the scope of practice of the profession?
- Even if making recommendations about the use of cannabis is not within the scope of practice of the profession, is there a duty on practitioners to be generally aware of the risks of cannabis use and to provide this information to clients who indicate they are using cannabis?
- While administering a substance by inhalation and injection is a controlled act (in Ontario), administering it topically is not. In what circumstances could topical administration of cannabis oil or other products be acceptable?
- Informed consent to treatment may not be possible if a client is under the influence of cannabis. Issues may arise as to whether a practitioner should have recognized a client’s impairment or disregarded such an impairment.
- It is professional misconduct for practitioners to practise while under the influence of a substance that impairs judgment. Issues may arise with regard to allegations about inappropriate conduct by the practitioner during the treatment.
- For many professions there is a duty to report colleagues who are impaired. There may be a duty on practitioners to report where a colleague appears to be impaired or is observed using cannabis while or just before working.
- How should regulators consider previous convictions related to cannabis, for example on an application for registration? Are those convictions irrelevant now (i.e., was the person just a bit ahead of their time?) or is it still significant as it involved a breach of the law as it existed at the time (e.g., tax avoidance is still tax avoidance even if the tax laws later change)?
- How should regulators deal with information on the public register related to cannabis use? Is that information still relevant for the public to know?
- Should regulators have policies about the use of cannabis by their staff and Board and committee members? If so, is anything other than “don’t-arrive-impaired” appropriate?
As regulators are formulating their policies and practices relating to cannabis, they should be aware that the landscape will likely evolve over time as society adapts to these new rules and government potentially refines or expands upon the law. With more experience and guidance, regulators should be prepared to review their cannabis policies at regular intervals.
No Consent Required
by Rebecca Durcan
October 22, 2018
Many screening committees are given the authority to take certain action and to also take other action not inconsistent with their enabling legislation. In Hancock v College of Registered Nurses of Manitoba, 2018 MBQB 149, http://canlii.ca/t/hv5xj the issue was whether the issuance of a letter of guidance was inconsistent with the Act. The screening committee could refer allegations to discipline or take certain other steps (e.g., censure, undertaking, surrender of registration) with the member’s consent. The practitioner argued that the intent of the Act was that remedial action required her consent and that delivering a letter of guidance without her consent was inconsistent with the Act. The Court disagreed. It found that a letter of guidance “does not affect the applicant’s rights or privileges as a member, that it is confidential and will only be reviewed in the case of a subsequent complaint of a similar nature” and thus did not require the consent of the member. The Court also found that the letter of guidance was not disciplinary in nature.
This case confirms the courts tend to be supportive of the authority of regulators to take creative remedial actions in response to complaints.
Good Reasons Save the Day
by Bernie LeBlanc
October 15, 2018
Good reasons are always essential, especially when a serious finding is based on circumstantial evidence. In Taylor v College of Physicians and Surgeons of Ontario, 2018 ONSC 4562, http://canlii.ca/t/htrqw, it was acknowledged that there had been systematic overbilling for surgical procedures and that there had been elaborate efforts made to cover it up. The issue was whether the physician was behind it or whether the overbilling and cover up was orchestrated by the physician’s office staff. The discipline tribunal’s conclusion that the physician was responsible for the scheme was challenged on appeal. The Divisional Court found that both the evidence and the reasons for decision supported the conclusion. The Court held that the reasons for decision:
- contained no major gaps;
- addressed the inconsistencies in the evidence of the prosecution witnesses;
- addressed the concern of whether the communications amongst the prosecution witnesses amounted to collusion;
- considered the prior inconsistent statements given by the prosecution witnesses;
- applied a similar level of scrutiny to the evidence of the witnesses on both sides;
- did not reject the evidence of defence witnesses in a cursory way; and
- did not reverse the burden of proof or base the findings solely on its rejection of the practitioner’s evidence.
The Court also upheld the order of revocation noting that the reasons for decision addressed the mitigating factors and appropriately addressed the aggravating factors including the level of dishonesty involved, the harm to the reputation of the profession and the harm inflicted on the staff members who were asked to participate in the cover-up.
Authority of Oversight Bodies
by Julie Maciura
October 11, 2018
Independent oversight bodies with the authority to interfere in individual decisions are rare in common law Canada. They are more prevalent elsewhere, perhaps with the Professional Standards Authority of the UK being best known. The Real Estate Council of British Columbia has recently had the Superintendent of Real Estate appointed to oversee it. The oversight role of the Superintendent was clarified in Superintendent of Real Estate v Real Estate Council of B.C., 2018 BCSC 1500, http://canlii.ca/t/htrm5.
The Real Estate Council investigated a complaint and determined that only a warning was warranted. The complainant took the matter up with the Superintendent who reviewed it and directed the Council to refer the matter to a discipline hearing. The Council refused and the Superintendent sought judicial review.
The Court identified the oversight role of the Superintendent and concluded that the provisions authorized the Superintendent to direct the Council to refer matters to discipline. While the Council still controlled the specific content of the allegations, the Court indicated that the Council would be acting in bad faith if it referred “blank” allegations to discipline. The Court also held that there was no genuine unfairness to the practitioner facing a referral to discipline after being told no action would be taken by the Council because the legislation clearly contemplated this supervisory role for the Superintendent. Having established the authority of the Superintendent to assume this oversight role, the Court declined to order the Council to take action in this particular matter because the Superintendent had not acted with procedural fairness by failing to notify the practitioner that the matter was being reviewed.
This case demonstrates that courts will recognize the authority of oversight bodies where it is set out in legislation and will try to ensure that this authority meets the intended goals.
Interim Orders and Evidence of Exposure to Harm
by Erica Richler
October 5, 2018
Many regulators have the authority to impose interim orders before a hearing where the public is at risk of harm. Courts defer to the expertise of the regulator in these cases but still require evidence that the public is exposed to harm or injury. Guidance on this issue was provided by the Divisional Court of Ontario in Fingerote v The College of Physicians and Surgeons of Ontario, 2018 ONSC 5131, http://canlii.ca/t/htqf7. In that case a complaint was made by a patient that the practitioner had commented on, stared at and unnecessarily touched her breasts during the course of a chest auscultation. The practitioner denied any inappropriate conduct and suggested that the patient may have misperceived the nature of the interaction. The regulator imposed an interim order imposing a requirement for a chaperone while patients are seen.
The Court set aside the interim order on the basis that there was no evidence that the doctor’s conduct exposes or is likely to expose his patients to harm or injury (the test for health regulators in Ontario). There was no expert evidence that indicated that the reported observations of the patient were inconsistent with appropriate clinical procedures. The Court indicated that it was not open to the panel to make those conclusions based on its own expertise in the circumstances of this case. Nor was there evidence that the conduct might continue. The Court did say that there may be “cases where the facts alleged without more will be probative or logically related to the existence of a risk of future harm” but this was not one of them.
The Court also said:
If society once erred on the side of protecting doctors’ reputations, times have rightly changed. The law prefers and gives primacy to the goal of protecting vulnerable patients. If there is a demonstrated likelihood that a doctor will expose his or her patients to harm or injury, the Committee is free to act and its opinion and remedial discretion will be accorded deference.
This decision highlights the difficult task regulators face when deciding on interim orders. In some cases, the allegations of misconduct themselves may not be sufficient to meet the exposure to harm test required for interim orders.
Scope of Investigations
by Rebecca Durcan
October 1, 2018
A recurring issue for regulators is the scope of investigations. In Yu v College of Dental Surgeons of British Columbia, 2018 BCSC 1315, http://canlii.ca/t/htc3c, a complaint was made about Dr. Yu’s approach to orthodontics. Concerns were identified and an undertaking was proposed. Dr. Yu declined to provide the undertaking. The committee learned that Dr. Yu had more orthodontic patients than he had previously indicated and initiated a review of a larger sampling of files. Dr. Yu sought an injunction to halt the review, in part, because the regulator was expanding the scope of the original complaint.
The Court was of the view that since there were broader concerns and since the committee had the authority to initiate an investigation on its own authority, the review was not of concern. However, the Court found there was an issue to consider about whether the strong expression of opinion by one of the committee members about Dr. Yu’s approach to orthodontics (which the committee member called “unscientific”) may have influenced the decision to conduct the review even though the committee member had been removed from the committee. However, the Court concluded that Dr. Yu had not established irreparable harm and the balance of convenience favoured allowing the file review to proceed. The Court concluded:
The public’s need to be assured that the profession is being regulated and that they are protected from incompetent practice, far outweighs the needs of the individual dentist. The individual dentist never had a high expectation of privacy or right to practice without inspection and regulation.
Practising Law is Practising Law
by Bernie LeBlanc
September 24, 2018
In Law Society of Ontario v Leahy, 2018 ONSC 4722, http://canlii.ca/t/ht9nq the regulator sought an injunction against Mr. Leahy for practising law. Mr. Leahy did not dispute the facts, but raised a number of legal defences. The Court rejected all of them including the following:
- The fact that Mr. Leahy initially received authorization to practice from the courts prior to the new regulatory regime requiring a licence to provide legal services did not require the revocation of the original authorization in order to revoke Mr. Leahy’s licence to practice law.
- Federal paramountcy principles did not authorize the practising of law before a federal tribunal, at least where the federal legislation did not expressly authorize such practice.
- The exception for individuals providing services to their corporate employer did not allow the corporation to provide legal services to the public.
- The location of the corporation outside of Ontario did not oust the regulator’s jurisdiction where the clients received services in Ontario.
- The exception for practitioners of other professions providing services in the scope of that profession has no application where Mr. Leahy was not registered with another profession.
The injunction was granted.
Controlled Acts Injunction
by Julie Maciura
September 20, 2018
Under the Regulated Health Professions Act a College can obtain an order under the statute to prohibit unauthorized persons from performing certain activities or using protected titles. A number of recent cases have set out the criteria used by the courts to determine when to make an order. Those cases are nicely summarized in College of Physicians and Surgeons of Ontario v Canon, 2018 ONSC 4815, http://canlii.ca/t/htkjf. In that case there was uncontroverted evidence that the respondent had used protected titles (e.g., Dr., osteopath), had communicated a diagnosis (e.g., slipped disc in her lower back with bursitis in both shoulders), administered injections, made spinal adjustments and had performed procedures below the dermis of patients. Interestingly, some persuasive evidence (against the individual) came from patient testimonials from his website. The Court summarized the approach on such applications by citing judicial comments in another case:
In Canada v. IPSCO Recycling Inc., at para. 51, Justice Dawson of the Federal Court summarized the legal principles that are to be applied in determining whether to grant a statutory injunction, as follows:
51. On the basis of the authorities cited by the parties I am satisfied that where a statue provides a remedy by way of injunction, different considerations govern the exercise of the court’s discretion than apply when an Attorney General sues at common law to enforce public rights. The following general principles apply when an injunction is authorized by statute:
(i) The court’s discretion is more fettered. The factors considered by a court when considering equitable relief will have a more limited application.
(ii) Specifically, an applicant will not have to prove that damages are inadequate or that irreparable harm will result if the injunction is refused.
(iii) There is no need for other enforcement remedies to have been pursued.
(iv) The Court retains a discretion as to whether to grant injunctive relief. Hardship from the imposition and enforcement of an injunction will generally not outweigh the public interest in having the law obeyed. However, an injunction will not issue where it would be of questionable utility or inequitable.
(v) It remains more difficult to obtain a mandatory injunction. [internal citations omitted]
The Court went on to say:
Proof of damages or proof of harm to the public is not an element of the legal test to obtain a statutory injunction.
Where a public authority applies to the court to enforce legislation, and a clear breach of the legislation is established, only in exceptional circumstances will the court refuse an injunction to restrain the continued breach. The onus to raise the exceptional circumstances lies with the respondent, and those circumstances are limited; for example, to where there was a right that pre-existed the enactment contravened or where the events do not give rise to the mischief the enactment was intended to preclude. [citations omitted]
The restraining order was granted.
Further Clarity on the Mental Intent for Professional Misconduct
by Erica Richler
September 17, 2018
A recent decision of the Ontario Court of Appeal further clarifies that the required intent for a finding of professional misconduct depends on the nature of the definition of professional misconduct. As previously reported, in The Law Society of Upper Canada v. Nguyen, 2018 ONCA 709, http://canlii.ca/t/htqbc a lawyer was found to have engaged in professional misconduct by failing to advise his clients (mortgage lenders) of material facts (relating to credits the purchasers received on closing). There was no dispute about those findings. The information was material and it was not disclosed. The lawyer’s intent was irrelevant. However, there was a dispute as to whether the lawyer had also participated in mortgage fraud. A finding of mortgage fraud would result in a much more serious sanction.
The Court of Appeal accepted the finding of failing to maintain the standard of practice of the profession but indicated that a finding of mortgage fraud would require dishonesty, willful blindness or recklessness on the part of the practitioner. Since the hearing panel found that the practitioner had made an honest mistake, the intent requirement was not met and no finding of mortgage fraud could be made. The Court of Appeal declined to order the matter back for a new hearing on the issue as desired by the internal appeal tribunal and the Divisional Court.
Crossing the Line
by Rebecca Durcan
September 13, 2018
Practitioners are entitled to criticize their regulators and colleagues, to a point. However, when the tone and content of the criticism undermines the integrity of the regulatory process or brings the profession into disrepute, it crosses the line. That is what the Alberta Court of Appeal concluded in Zuk v Alberta Dental Association and College, 2018 ABCA 270, http://canlii.ca/t/htl8m.
Dr. Zuk, a general dentist, made numerous statements online, to traditional media and in a book alleging that orthodontic specialists and the regulator were, in effect, conspiring to prevent him and other general dentists from providing certain beneficial services to the public. The tone and language of some of the statements were disrespectful (e.g., “veneer Nazis”). The Court of Appeal upheld the discipline finding was reasonable. The Court found that the statements could be viewed as advertisements in the broad sense of the term and that Dr. Zuk’s freedom of expression was not infringed by the decision (applying the Doré analysis). It was not necessary for the regulator to establish harm to the public in order to make this finding of misconduct.
The Court also upheld a finding that Dr. Zuk had threatened the regulator by demanding it withdraw the complaints within seven days or face counter-complaints and a messy process.
However, the Court set aside as unreasonable the findings that Dr. Zuk had breached a historic undertaking that did not clearly and unambiguously cover the conduct in issue. Despite the fact that the disciplinary tribunal had otherwise handled the issue of sanction well (including considering mitigating factors), the one year suspension and $175,000 costs award was set aside because the reversed breach of undertaking finding was significant to those conclusions.
On the matter of crossing the line, the regulator was assisted somewhat by its attempts to communicate with Dr. Zuk on the issue before commencing disciplinary action.
Jurisdiction Over Conduct Before Registration
by Bernie LeBlanc
September 10, 2018
For over a century and a half there has been debate and inconsistent court decisions about whether regulators have jurisdiction over members for their unprofessional conduct before they were registered. On the one hand, it seems odd for a person to be accountable for their behaviour when the rules they are said to have breached did not apply to them at the time. On the other hand, the conduct could well reflect on their suitability to be a member of the profession. The Divisional Court has attempted to reconcile the case law in Association of Professional Engineers of Ontario v. Leung, 2018 ONSC 4527, http://canlii.ca/t/htl3k. In that case the allegations included conduct by a certificate holder relating to what amounted to illegal practice of the profession prior to obtaining the certificate. The Discipline Committee concluded it had no jurisdiction over the conduct. The regulator appealed.
The Divisional Court said that the issue was one of interpreting the intent of the legislation. Thus the answer could well be different under different statutes. Under the Professional Engineers Act, which was silent on the issue, there seemed to be a distinction between the disciplinary enforcement mechanism, which applies only to members and certificate holders, and certain offence provisions that applies to others as well. In fact there was a specific offence for offering services to the public without a certificate. The Court concluded that it was both reasonable and correct to view the discipline process to be available for pre-registration conduct only where the conduct continued to when the person was registered or where there was “conduct that resulted in the fraudulent procurement of a licence which negatively affected the individual’s fitness to practice”.
This approach to the jurisdiction over conduct that occurs before registration might become the starting point of the analysis for other regulators whose statutes are silent on the issue.
Combined Investigations Upheld
by Julie Maciura
September 6, 2018
The Ontario Court of Appeal has held that under the Regulated Health Professions Act the regulator is permitted to combine various processes into a single investigation. In Abdul v Ontario College of Pharmacists 2018 ONCA 699, http://canlii.ca/t/htpdg, the regulator received both a formal complaint and additional, overlapping, information about the conduct of the practitioner. The regulator discussed the options with the complainant who agreed to withdraw her complaint so that the entire matter could be investigated through a single Registrar’s investigation. This use of the Registrar’s investigation process was challenged, in part, on the basis that the complaints process, requiring the Registrar to notify the practitioner early on, was not followed. The Divisional Court accepted this argument concluding that there was no mechanism for allowing the withdrawal of the complaint and that the mandatory complaints procedures were not followed. The Divisional Court would have required parallel investigations of the two matters. The Court of Appeal reversed the decision of the Divisional Court, concluding that the legislation did not prohibit the withdrawal of a complaint (with the consent of the regulator) and that combining the matters into a single Registrar’s investigation was both practical and authorized. The Court of Appeal found that there was no denial of procedural fairness by using the alternative investigative process (the requirements of which had been followed).
The Court of Appeal held that the use of the alternative process was subject to abuse of process safeguards but found there was no prejudice to the practitioner (which is often required to establish an abuse of process) on the facts of this case. In reaching this decision the Court sidestepped the either/or dichotomy to the narrow/liberal interpretation of legislation dispute and indicated that the legislation should be interpreted in a manner that protects the public but is still fair to the practitioner. The regulator was allowed to proceed with its discipline hearing.
Reformation of the Practitioner vs. Respect for the Profession
by Erica Richler
September 4, 2018
The Quebec Court of Appeal grappled with whether the sanctioning of a Judge should focus on whether the Judge’s behaviour could be reformed or whether the public’s respect for the judiciary should be safeguarded. In Bradley (Re), 2018 QCCA 1145, http://canlii.ca/t/ht0d2, the Court dealt with a recommendation by the Quebec Judicial Council that Judge Bradley be removed from office for disrespectful conduct towards two litigants in a $500 fence repair dispute. Judge Bradley tried to force the parties to settle the matter and, when they indicated resolution was not possible, declined to hold the hearing. It was the second complaint against Judge Bradley.
The only two sanctioning options available were a reprimand or recommending removal from office. The majority of the Court concluded that Judge Bradley had demonstrated insight into his conduct and had only one prior complaint in a career that involved hundreds of cases. They ordered a reprimand. A minority of the Court would have upheld the recommendation for removal because the conduct of Judge Bradley could undermine the confidence of the public in the judiciary. This tension between the views as to which consideration should be given primacy might have been avoided if a sanction between reprimand and removal were available.
The Court also expressed concerns about the fact that the Council did not separate the hearing into a finding stage and a sanctioning stage. However, even those Justices who expressed the most serious concern about the issue concluded that the problem was resolved by the new hearing before the Court of Appeal.
Procedure and Criteria for Accessing Mental Health Records
by Rebecca Durcan
August 28, 2018
There are significant restrictions upon regulators gaining access to mental health records, especially from a psychiatric facility, without the consent of the patient. A Court order is required. In Laity v. The College of Physicians and Surgeons of Ontario, 2018 ONSC 4557, http://canlii.ca/t/ht5v7, there were “allegations that Dr. Laity sexually abused the patient and that he failed to maintain the standard of practice of the profession when he prescribed medication for her”. Dr. Laity was the family physician for the patient. His chart contained two consultation notes from a psychiatrist that were relevant to the allegation of improper prescribing. In fact, an expert opinion on the concern was largely based on the consultation notes. The regulator sought a court order permitting access to the consultation notes. Dr. Laity consented to the order as he wanted to use those records to found a motion for production of the broader psychiatric records of the patient as part of his defence. The patient did not consent to the release of the consultation notes.
The Court said its task was:
to determine whether the disclosure of the documents is essential in the interests of justice. This requires the Court to consider the relevance and probative value of the documents and the parties’ ability to obtain a just determination of the proceeding between them. Weighed against the parties’ interest is the patient’s interest in preserving privacy and confidentiality with respect to very sensitive medical information. The onus is on the applicants to show that disclosure is essential in the interests of justice.
The Court concluded that the notes were essential to the prosecution of the professional misconduct allegations. The Court also concluded that the records were relevant to the proposed defence motion for production of the patient’s broader record.
This case will be of assistance to regulators considering using psychiatric facility records in their proceedings.
Adjournments and Compelled Testimony
by Bernie LeBlanc
August 21, 2018
A recurring issue at hearings is whether to grant adjournments, particularly to retain legal counsel. In Evgueni Todorov and Sophia Nikolov v. Ontario Securities Commission, 2018 ONSC 4503, http://canlii.ca/t/ht4qv, a request for an adjournment was made by counsel who indicated that he anticipated being retained in a few days. The tribunal refused the adjournment because it had been clear over many months that the defendants had to retain legal counsel for the specified hearing date, the parties had indicated an intention to retain counsel by then, no request for an adjournment was made in advance, no explanation was offered as to why legal counsel was not retained on time, and the defendants themselves failed to attend the scheduled hearing date. The Court upheld the decision. The Court indicated that while the standard of review for procedural fairness issues was correctness, since the granting of adjournments is discretionary, the Court will look to see if the refusal of the adjournment was reasonable. In these circumstances it was reasonable given the conduct of the defendants.
A second issue was whether it was appropriate for the Securities Commission to prove its case through the admissions of the defendants obtained from them under compulsion during the course of the investigation. The Court indicated that, since these were administrative and regulatory proceedings designed to protect the public, and not criminal or penal proceedings, it was consistent with the protections in legislation and the Canadian Charter of Rights and Freedoms to rely on this compelled evidence. The use of this evidence did not amount to prohibited self-incrimination.
Reasons for Registration Decisions
by Julie Maciura
August 16, 2018
How closely do courts review reasons for decisions in registration cases? In Alfahem v College of Physicians & Surgeons of Alberta, 2018 ABQB 539, http://canlii.ca/t/ht02l, the answer is moderately closely.
Dr. Alfahem was an internationally trained physician who sought registration on the basis of a practice readiness assessment. During the course of the first assessment it was determined that his English language fluency skills were inadequate and he would fail the assessment. Rather than completing the assessment, Dr. Alfahem agreed to upgrade his language fluency first. A second assessor was selected to conduct the subsequent assessment. The second assessor found that Dr. Alfahem’s language fluency was adequate, but found that some of his clinical skills were unsatisfactory. The regulator refused registration on the basis of the second assessment report. Dr. Alfahem challenged the decision on the basis that the reasons did not explain why the second assessment’s results on clinical issues were accepted over the tentative conclusion of the first, incomplete assessment.
The Court emphasized the importance of reasons for decision in registration matters that should address the “why” for a decision. However, the Court also noted that it will scrutinize the entire record to see whether the “why” is evident. In this case it was apparent that the regulator was concerned about the objectivity of the first assessor, who seemed to be taking a more educational approach than a true assessment approach. In addition, the first assessment was interim in nature and was not finalized. The Court was not prepared to find the reasons inadequate in the circumstances.
The Court also rejected the ground of review based on the concerns that the applicant had not had full disclosure of the materials upon which the decision was made. The Court concluded that the applicant had not established that he did not have relevant and material information.
Defamation Challenge to Transparency Fails
by Erica Richler
August 13, 2018
Should regulators go public with safety concerns before they are fully established? That was the issue facing a regulator, a hospital and the government in the spring of 2009. A review of the radiological interpretations by Dr. Tsatsi indicated serious concerns that placed the public at risk. The regulator decided to conduct a broader review. However, Dr. Tsatsi was suspended from his position in the meantime and a press release was issued so that the public could take appropriate measures to protect their health. A decision was made to name Dr. Tsatsi publicly (rather than just send private communications to affected patients) for a number of reasons including to better enable patients to take action, to protect the reputation of other radiologists who would otherwise be placed under suspicion and to demonstrate transparency in circumstances where the media would almost certainly identify Dr. Tsatsi in any event. Dr. Tsatsi sued for defamation.
In Tsatsi v College of Physicians and Surgeons of Saskatchewan, 2018 SKCA 53, http://canlii.ca/t/hswdj, Saskatchewan’s highest court upheld the summary dismissal of the lawsuit. It held that the defence of justification applied in that, at the time that the statements were made by the regulator, the statements (namely that the public was at risk) were accurate. A subsequent investigation largely confirmed the accuracy of those statements as well. The Court also held that the defence of qualified privilege applied in that the regulator had a duty to protect the public and it acted without malice in deciding whether or not to publish Dr. Tsatsi’s name.
Regulators can take comfort that courts will be sympathetic to transparency initiatives taken in good faith.
Do Additional Considerations Apply to Applications for Registration by Indigenous Persons?
by Rebecca Durcan
August 8, 2018
In Moore v The Law Society of British Columbia, 2018 BCSC 1084, http://canlii.ca/t/hssff, an applicant (Ms. Moore) had conditions imposed on her registration because of conduct concerns while practising in another province. Ms. Moore consented to the conditions relating to engaging a mentor and practising under supervision. However, those conditions did not work for Ms. Moore and she withdrew her consent to the conditions and sought to have them removed. The regulator refused. Ms. Moore sought judicial review on the basis that the conditions were unreasonable and that the conditions failed to take into account her background as an indigenous person. On the latter point Ms. Moore argued both that she could much to offer to the justice system because of her cultural competence in aboriginal issues and that the regulator had failed to consider her background when evaluating the significance of her discipline history in Alberta.
The Court held that there was no formal requirement on the regulator to consider her indigenous background when dealing with registration matters. However, the Court was concerned that the regulator could have done more in the circumstances:
However, there are moments where the Law Society and the Credentials Committee could have better supported and assisted Ms. Moore in the application process. It is likely that supports such as meeting with Ms. Moore in person, explicitly referencing Ms. Moore’s background and life experiences in the decisions or discussing them with her, or providing active support in creating conditions or proposals for mentorship, would have assisted in both protecting the public interest, and better supporting and assisting Ms. Moore in applying for transfer and fulfilling her duties in the practice of law. Improved communication from the Law Society would likely have had the effect of assisting Ms. Moore to find constructive solutions.
As Ms. Moore notes and I am sure the Law Society would agree, it is also in the public interest to have practising Indigenous lawyers who can provide culturally appropriate services to clients. Supporting Indigenous lawyers in the process of becoming admitted to the bar and remaining members of the bar, whether that is accomplished through future policies or other means, will foster the process of reconciliation that the Law Society has, on its own initiative, embarked upon.
The Court also found that the decision of the regulator was reasonable. It had considered the information provided and applied criteria relating to protecting the public interest that was specified in its enabling legislation. In particular the Court concluded that expressing misgivings about proposed conditions before consenting to them does not make that consent invalid. The Court also held that an applicant cannot withdraw consent once the final decision to register with conditions was made. The proper remedy was to apply to have the conditions removed.
After upholding the regulator’s decision as reasonable, the Court then took the unusual step of suggesting to the parties how they might consider a fresh application to vary the conditions in a different manner:
It may assist if Ms. Moore were to make another application to the Law Society to remove the conditions, that the parties engage in a form of mediation or conversation to resolve any issues that arise in that application, and in a manner that is sensitive to the issues discussed in this petition. There were opportunities in these circumstances for the Law Society to take further steps in recognizing the challenges that Ms. Moore as an Indigenous lawyer faced in entering and remaining in the profession. In addition, a conversation with the Law Society may assist Ms. Moore in finding a constructive route to the partnership she sought for her work on Indigenous justice issues.
The Court’s comments reinforce the need for regulators to approach registration cases individually and not routinely apply criteria without considering any special circumstances.
It is interesting to note that shortly after this decision the regulator adopted a report to promote training on indigenous matters for students, indigenous representation on committees and reviewing standards for systemic barriers:
https://s3.amazonaws.com/tld-documents.llnassets.com/0007000/7036/truthandreconciationactionplan2018.pdf. That report was obviously in the works well before this decision was released.
Re-Enactment of the Events by Disciplinary Tribunal Upheld
by Bernie LeBlanc
July 31, 2018
In College of Physiotherapists of Ontario v. Boon, 2018 ONSC 3463, http://canlii.ca/t/hsgbg, the disciplinary tribunal had to assess the credibility of the practitioner for allegations related to the intimate touching of a patient. While the tribunal concluded the touching was not of a sexual nature, it still found the touching to be unprofessional. In making its findings, the tribunal found the practitioner’s evidence lacked plausibility because it was physically difficult to do the procedures the practitioner described in his evidence. In part this lack of plausibility was based on an attempt by the tribunal to re-enact the procedures in the deliberation room.
The primary ground of appeal by the practitioner was that this private re-enactment by the tribunal amounted to the creation of additional evidence in the absence of the parties and was thus a breach of the principles of procedural fairness. The Divisional Court disagreed. It found that the re-enactment was simply a method of assessing the detailed evidence given by the practitioner in his own evidence. There was a basis in the evidence to doubt the plausibility of the practitioner’s evidence without the re-enactment. In addition, the re-enactment was an extension of what counsel for the practitioner had already requested of the tribunal during a break in the hearing: the tribunal was asked to hold a book that the practitioner testified had been shown to the patient without it touching the patient (contrary to the patient’s evidence).
On the issue of sanction, while the Court was troubled by the tribunal listing the lack of remorse by the practitioner as an aggravating factor (rather than being the absence of a mitigating factor), the Court upheld the order as reasonable, particularly where the tribunal had specifically affirmed the practitioner’s right to make full answer and defence.
Incarceration an Order of Last Resort in Unauthorized Practice Cases
by Julie Maciura
July 24, 2018
It is common to seek restraining orders against those practising the profession or holding themselves out. When an individual continues to perform a restricted activity or hold themselves out as a member of the profession after the restraining order has been granted, it is contempt of court. Contempt of court is a serious matter which can result in imprisonment.
In The Law Society of Upper Canada v. Hatzitrifonos, 2018 ONSC 3719, http://canlii.ca/t/hsl8r, Mr. Hatzitrifonos was found in contempt of court for the “repeated, wilful and deliberate” practise of law over a period of two years after a restraining order had been imposed. The regulator sought a 30 day jail term. The Court held that the primary purpose of sanction for contempt of court was to compel compliance with the law. A secondary purpose was deterrence. In this case however, Mr. Hatzitrifonos apologized for his conduct, changed his career path to avoid the temptation to practise law again, promised his conduct would never happen again, undertook community service and began payment of the costs he owed to the regulator. The Court said that incarceration was a last resort in contempt of court cases. It also found that a fine would be counter-productive as Mr. Hatzitrifonos had no money and very little income and it would prevent him from repaying the costs he already owed. Instead the Court expanded the amount of community service Mr. Hatzitrifonos had to fulfill and reinforced the need to continue paying the costs owed.
The Kitchen Sink
by Erica Richler
July 17, 2018
Some appeals involve multiple issues. Kennedy v. College of Veterinarians, 2018 ONSC 3603, http://canlii.ca/t/hsfqb is one of those cases. In that case the Court held as follows:
- Theft of the court reporter’s computer resulting in losing the transcript for one and a half days of the hearing did not result in an inability to hold a meaningful appeal where the notes of two panel members and independent legal counsel provided sufficient information for the Court to assess the issues.
- Where primary disclosure has been made of the regulator’s evidence, a party seeking disclosure of the investigation file of another agency involved in the matter requires an O’Connor type of motion. The failure of the regulator to obtain the other agency’s file and disclose it is not a refusal to make primary disclosure. The fact that the practitioner had not brought a motion for the other agency’s documents was fatal to his appeal.
- Where a party consents to the qualifications of an expert witness, they cannot later challenge the neutrality of the witness in most circumstances.
- The regulator is not required to call an independent person as its witness at the request of the practitioner. The practitioner is in an equal position to summons the independent person.
The Court also found that the findings and reasons on credibility, penalty (i.e., revocation) and costs were reasonable.
Accommodation Has to be Requested
by Rebecca Durcan
July 10, 2018
In Zaidi v. Immigration Consultants of Canada Regulatory Council, 2018 FCA 116, http://canlii.ca/t/hsjrq the applicant for registration by a regulated profession was unable to meet the language proficiency requirements. The applicant repeatedly failed the language proficiency test and challenged the requirement as discriminatory on the basis of his medical conditions. The Court dismissed the challenge primarily on the basis that it did not have jurisdiction to hear the appeal. However, it also said that the appeal had no merit because the applicant had not sought accommodation and thus had not been refused accommodation. Thus there is an onus on applicants to request accommodation before a complaint of discrimination on the basis of disability can be made out.
Test for Establishing Negligent Investigations
by Bernie LeBlanc
July 5, 2018
Regulators are sometimes criticized for their investigations. Most regulators are protected for actions taken in good faith, even if negligent. However, to the extent that regulators can be sued for negligent investigations, the test for establishing liability can be summarized as follows (see: Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, http://canlii.ca/t/hs9m7):
- The appropriate standard of care for the tort of negligent investigation is that of the reasonable police officer in similar circumstances.
- In the laying of charges, the reasonable standard is informed by the presence of reasonable and probable grounds to believe the suspect has committed the offence.
- This standard does not require police to establish a prima facie case for conviction.
- The police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges.
- A police officer is not required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds.
This test is probably also relevant for courts and tribunals reviewing the adequacy of a regulator’s investigation in the context of complaint reviews or disciplinary hearings.
The Court in Tremblay noted that there should be expert evidence as to the standard of investigations in the context of the case before any finding of inadequate investigation is made. The Court also indicated that it is appropriate for investigators to choose not to interview the subject of the investigation before initiating further proceedings.
Going Behind the Corporate Veil
by Julie Maciura
June 25, 2018
Regulators have special challenges when regulating practitioners who practise through a corporate structure. One such challenge is being clear in any notice of hearing whether the regulator is pursuing allegations against the individual, the corporation or both. In Best Import Auto Ltd. v Motor Dealer Council of British Columbia, 2018 BCSC 834, http://canlii.ca/t/hs4n5, the notice of hearing clearly indicated that the corporation could face sanction, but was less clear whether the responsible officer / owner was also at risk of sanction. As a result the Court set aside the sanction imposed against the individual.
On another issue the Court gave short shrift to the concern about a single hearing being held on both the issues of finding and sanction. The defendants complained that they should have been given full detail of the findings before being required to address sanction. The Court noted that many courts and tribunals combine both stages of the hearing. The Court noted that the defendants could waive their right to separate hearings. Only where the defendants requested separate hearings and they were denied was this a true issue of fairness.
The Court also indicated that under the legislation in issue, an implied aspect of the power to impose a revocation was the added authority to specify a time period before the defendant could apply for reinstatement. In this case the specified period was ten years.
Oversight Responsibilities of the Responsible Minister
by Erica Richler
June 18, 2018
Government Ministers are responsible for overseeing statutory regulators. However, that responsibility does not mean that the Minister is a necessary party to any legal disputes involving the regulator: A Solicitor v. The Law Society of British Columbia, 2018 BCCA 163, http://canlii.ca/t/hrq4w.
Ms. Walker was a lawyer. She has disabilities which she indicated had profound financial consequences for her. After being given notice, her membership with the Law Society of British Columbia was terminated for non-payment of fees. Ms. Walker sought judicial review of the failure of the Law Society to give her a further extension to pay her fees. As is required, she served a copy of the notice of application for judicial review on the Attorney General of the province. The Attorney General is the Minister with general oversight for the Law Society. In fact, the Attorney General is by virtue of their office a Bencher (Board member) of the Law Society. Ms. Walker wanted to require the Attorney General to be a party to the judicial review proceeding to assist her in pursuing her application.
The Court held, in the course of a procedural motion, that the oversight duties of the Attorney General do not include an obligation to participate as a party in legal challenges against the regulator.
Raising the Bar is Not Easy
by Rebecca Durcan
June 11, 2018
In a series of cases over the last few years it seems clear that the College of Physicians and Surgeons of Ontario has been trying to impose more significant sanctions in sexual abuse and sexual impropriety cases. It has had limited success. The latest setback is found in Horri v. The College of Physicians and Surgeons, 2018 ONSC 3193, http://canlii.ca/t/hs8sz. Dr. Horri began a sexual relationship with a vulnerable and relatively young patient two weeks after the professional relationship ended. He acknowledged that he later learned that this conduct was unacceptable because of the ongoing power imbalance. He successfully completed a boundaries course, including follow up visits and introduced psychiatric evidence indicating that he was of a low risk to repeat such conduct.
The discipline panel revoked Dr. Horri’s registration. The Court said:
The Committee acknowledged that revocation was outside the range of typical penalties imposed in prior cases; however, revocation was justified because of the seriousness of Dr. Horri’s misconduct and the Committee’s concern that he did not have sufficient insight to control himself in the future. The Committee offered no review of similar cases. The Committee held that typical penalties might need to reflect changing societal values.
The Divisional Court quashed the revocation and returned the matter for further consideration. The Court held that where there was a significant increase in the sanction from the existing range of cases, some of which were even more serious in nature, the panel had to provide persuasive analysis beyond “changing societal values”. The previous cases needed to be evaluated in detail. The Court also indicated that, while it was open to the panel to reject opinion evidence about future risk of harm, it had to do so carefully and that it still needed affirmative evidence to conclude that there was an actual risk of harm.
Interestingly, the same month as this decision was released, amendments to the RHPA deemed such conduct to be “sexual abuse” engaging a mandatory order of revocation. Sometimes legislation is easier than litigation.
Few Lessons for Regulators from Groia
by Bernie LeBlanc
June 4, 2018
Few decisions were as anticipated by the legal profession as was the Supreme Court of Canada verdict in Groia v. Law Society of Upper Canada, 2018 SCC 27, http://canlii.ca/t/hsb9d. Mr. Groia had been disciplined for incivility for the way in which he had treated the opposing lawyer in a high profile securities prosecution. Mr. Groia had made allegations of prosecutorial misconduct (mostly about disclosure issues), using strong language, throughout much of the trial. The Supreme Court reversed the misconduct finding on the basis that while Mr. Groia was mistaken about the law, he acted in good faith and had some basis for making the assertions (despite his incorrect view of the law).
For regulators of professions other than law, the case will have little significance. The Court affirmed the reasonableness standard of review of findings of professional misconduct and supported an approach that involved considering all of the circumstances. The majority of the Court found that, in the context of this case, it was unreasonable to find that Mr. Groia had crossed the line given his good faith, but erroneous, view of the prosecutor’s disclosure obligations and the circumstances in the particular case (e.g., the conduct of the prosecutor and the relatively passive stance of the judge). A key consideration, which will not apply to most other regulators, was that the conduct occurred in court and was directed at another member of the profession where resolute and fearless advocacy for a client is required. It is doubtful that a court would give that amount of leeway for practitioners advocating in a rude manner for their own clients in other contexts (e.g., a health care setting).
Unfortunately for regulators, this decision may slightly embolden defence counsel to make allegations of prosecutorial misconduct by the regulator. While such allegations are rarely successful, they can significantly increase the costs of misconduct investigations and hearings.
What to Include in the Reasons for Imposing a Sanction
by Erica Richler
May 31, 2018
In Davis v. British Columbia (Securities Commission), 2018 BCCA 149, http://canlii.ca/t/hrlk7 an investor relations service provider accepted $7,000 from an investor for the purchase of shares that were never obtained. Mr. Davis was found to have engaged in fraud because he “untruthfully told an investor he owned the shares he was selling to that investor. Mr. Davis contends his actions do not amount to fraud because he believed he would receive those shares in the future.” The allegations were established and the sanctions included a lifetime full-market ban.
On appeal, the Court returned the matter for a fresh hearing on sanctions, despite the fact that such dishonesty often resulted in permanent market bans. The Court held that the sanction had to be proportional to the conduct. In this case the reasons of the tribunal did not reflect a consideration of the personal circumstances of Mr. Davis (including his unblemished record, his age, and that the order would end his long-established career) and consideration of whether the alternate available sanctions would be sufficient to protect the public.
Reasons for decision for sanction should include an explicit consideration of the mitigating circumstances and an explanation as to why the lesser available orders are not appropriate in the case. This is true even where dishonesty has been found.
Considering a Prior Decision that is Under Review
by Julie Maciura
May 28, 2018
In Law Society of British Columbia v. Perrick, 2018 BCCA 169, http://canlii.ca/t/hrs3p, a lawyer was facing two discipline hearings for conduct that occurred at roughly the same time. The first hearing resulted in a finding with a fine, but no suspension, primarily because of the lawyer’s “clean” record. While that decision was under review, the second hearing was held and also resulted in a finding. However, this time the prior finding was considered and the second case resulted in a suspension. The lawyer appealed on the basis that the tribunal should not have considered the prior finding while it was still under review. The Court disagreed. It held that the prior finding was “final” and could be considered unless and until it was reversed. If the prior finding was reversed on review, the lawyer could then appeal the second decision on that basis.
While this decision reassures discipline tribunals that it can consider the past record of the practitioner as it stands on the date of the hearing, it does place the regulator at some risk should a prior finding be set aside.
Court of Law vs. Court of Public Opinion
by Erica Richler
May 23, 2018
Few discipline cases have achieved as much notoriety as the discipline of Ms. Strom, a nurse in Saskatchewan, for posting comments on Facebook that were critical of the care that her grandfather had received at a facility. Ms. Strom was found to have engaged in professional misconduct, fined $1,000, and ordered to pay $25,000 in costs. It is probably no exaggeration to say that the decision was skewered in the court of public opinion. In fact, journalist André Picard made the case a focal point of his keynote address to the Canadian Network of Agencies for Regulation (CNAR) conference in 2017. He argued that the decision to prosecute the case at discipline reflected a misguided choice of regulatory priorities and a fundamental lack of appreciation of the role (and future) of social media.
Ms. Strom appealed the decision. However, in Strom v. Saskatchewan Registered Nurses’ Association, 2018 SKQB 110, http://canlii.ca/t/hrm9c the Court upheld the disciplinary decision. Repeatedly citing the principle of deference to the expertise of the specialist tribunal, the Court found it was reasonable for the tribunal to assert jurisdiction over the off-duty conduct of a nurse, to find that the conduct was unprofessional, to conclude that the infringement on the nurse’s freedom of expression was reasonable, and to award $25,000 in costs.
This case illustrates the multi-faceted accountability of regulators, which does not always result in consistent messages.
Complaints Against Staff of a Regulator
by Bernie LeBlanc
May 17, 2018
Most regulators have some staff members who are also registered members of the profession. Occasionally misconduct complaints are made against these staff members even though the conduct occurred in the course of their regulatory duties. Frequently those complaints are made in retaliation for action taken by the regulator against the complainant / practitioner. These retaliatory complaints can amount to an abuse of process. Regulators have to then decide how seriously and thoroughly to take those complaints.
In Aylward v Law Society of Newfoundland and Labrador, 2018 NLCA 20, http://canlii.ca/t/hrh67, the regulator had to deal with this very issue. The Executive Director and the Legal Director of the regulator were the subject of a counter-complaint by Mr. Aylward. Mr. Aylward had himself been the subject of a complaint that resulted in a caution. Mr. Aylward complained that the regulatory staff had, among other things, concealed and fabricated evidence that related to the previous complaint against him. The regulator took Mr. Aylward’s complaint seriously. The investigation and screening committee conducted a thorough investigation and retained an external lawyer to investigate key aspects of the complaint. The investigation and screening committee determined there were insufficient grounds to take action against the regulatory staff.
Mr. Aylward appealed, arguing that there was an appearance of bias on the part of the external investigator (who had done some previous work for the regulator and may have wanted to receive additional assignments). Mr. Aylward was also concerned that some of the witnesses he identified were not interviewed. The Court of Appeal adopted the reasons of the lower court. The lower court (at: http://canlii.ca/t/hn8wn) found there was no reasonable apprehension of bias in the circumstances and that there was little likelihood that the witnesses who were not interviewed would provide additional useful information. On this point the lower Court said:
Once a complaint is laid the CAC [i.e., the investigating and screening committee] is the body that decided how to proceed and what procedures are to be followed. The CAC is given a very wide discretion as to how the investigation is to be carried out, if witnesses are to be called or whether only a written record will suffice. There is a reason for this and the reason is that these complaints authorization committees are set up to deal with issues that could involve minor misconduct or things as serious as the misappropriation of the public’s money or any range of professional misconduct toward the public or a fellow solicitor. As such, the process is meant to be flexible, allowing the Committee to investigate as thoroughly as it deems necessary depending on the nature of the complaint.
While there may be some cases in which treating such a complaint is viewed as an abuse of process, in many cases it may be prudent for the regulator to process the complaint even though it is far-fetched.
Parity in Penalties Remains Important
by Julie Maciura
May 14, 2018
Even before the Court of Appeal rendered its decision in College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, http://canlii.ca/t/hrt0r, the courts have been reaffirming the importance of consistency in sanctions. In Billing v. College of Physicians and Surgeons of Ontario, 2018 ONSC 2624, http://canlii.ca/t/hrp9r, Dr. Billing was found guilty of professional misconduct relating to record keeping and a lack of sterile technique in procedures. The Discipline Committee imposed a two month suspension and extensive monitoring and supervision restrictions. The Court said:
The Discipline Committee conducted an appropriate parity analysis. It expressly stated that, in general, like cases should be treated alike, and it had considered the cases cited. Despite the appellant’s argument that the penalty was outside the range, the suspension was within the range of penalties in prior decisions, which ranged from zero to six months suspension. Each case obviously turns on its particular circumstances.
The Committee also correctly observed that parity is not the only relevant consideration. It explained that a suspension was warranted because the misconduct was pervasive and systemic in the appellant’s practice, it related to many patients over an extended period of time, and it exposed his patients to a risk of serious harm. The Committee was concerned about both general and specific deterrence, as well as the need to address the impact of the conduct on public confidence in the College’s regulation of the profession.
The Committee did not misconstrue the Peirovy decision (at the Divisional Court) as no longer requiring it to take prior decisions into account. It expressly stated that similar cases should generally be dealt with in a similar fashion. It also stated that it had considered past cases and was “satisfied that the penalty imposed on Dr. Billing is reasonable and proportionate given the particular facts of this case.”
While consistency in orders is not the only consideration, it remains an important factor.
Court Review of Credibility Findings
by Rebecca Durcan
May 10, 2018
If one of the most difficult tasks for a hearing panel is to assess the credibility of witnesses, one of the more challenging roles for a court is to review the credibility findings of lay tribunals. In two recent cases, courts have considered credibility findings. In the cases, the courts have provided some insight as to both what they look for on such an appeal and how difficult it is to reverse credibility findings.
In Ontario College of Nurses of Ontario v. Todd, 2018 ONSC 1689, http://canlii.ca/t/hrbzz the issue was whether a nurse had slapped a patient in a psychiatric facility. As the court said, it was a “he said vs. they said” case (as the regulator’s case involved not only the patient, but a number of witnesses). The discipline panel found that the allegations had not been proved on a balance of probabilities. The College appealed on the basis that the hearing panel misapprehended some of the evidence, failed to adequately address the inconsistencies in the nurse’s evidence and failed to sufficiently explain why it did not accept the patient’s evidence.
The Court dismissed the appeal. It found that the hearing panel’s assessment of the evidence was reasonable. It had identified serious concerns about the consistency of the evidence of the key witnesses to the incident. The hearing panel had addressed the inconsistencies in the nurse’s evidence as being consistent with his not recalling the details of an ordinary day. In addition, the Court held that the assessment of the credibility of the patient (i.e., essentially that “the nature of the evidence that she was able to provide to the Panel lacked specificity, and could therefore not be heavily relied upon by the Panel”), while brief, was adequate in the circumstances. The Court found that the lack of specificity in the patient’s evidence was apparent from the hearing panel’s description of her evidence.
The second case, College of Physicians and Surgeons of Ontario v. Yaghini, 2018 ONSC 2449, http://canlii.ca/t/hrjwf, involved a “he said, she said” allegation of a male physician kissing a fifteen-year old patient while making inappropriate comments. There were no witnesses in this case. The physician appealed the finding of professional misconduct. Many of the typical challenges to credibility findings were raised, including: failing to adequately address the discrepancies in the patient’s evidence, failing to distinguish between the honesty of a witness and their reliability, and treating the discrepancies in the practitioner’s evidence more harshly than those of the witness. For each of those issues the Court found that there was reasonable support for the reasons of the panel indicating that these errors had not, in fact, been made.
In both cases it was the effort by the tribunals to provide reasons explaining why it made its credibility findings that resulted in the decisions being upheld.
Public Has a Constitutional Right of Access to the Record of a Hearing
by Bernie LeBlanc
May 8, 2018
In Toronto Star v. AG Ontario, 2018 ONSC 2586, http://canlii.ca/t/hrq6s, the media outlet brought a wide ranging challenge to the practice of many, but not all, government tribunals restricting the public’s right of access to their hearing records. The tribunals that restricted access did so on the basis of the privacy rights of individuals referred to in the hearing record citing the Freedom of Information and Protection of Privacy Act (FIPPA). The Court found that FIPPA contained a presumption of privacy that was inconsistent with the open court principle inherent in the freedom of expression protections in the Canadian Charter of Rights and Freedoms. The Court gave the government one year to amend FIPPA to make it consistent with the Charter. The decision only applies to tribunals that hold hearings.
Most professional regulators in Ontario are not directly part of the government and thus are not governed by FIPPA. Most professional regulators already take the presumption of public access approach. So this decision has little direct application to them. However, in the course of its reasons, the Court emphasized that the Charter right of public access requires a speedy process for access requests to be honoured. The Court also indicated that there would be circumstances in which the hearing tribunal could restrict access (e.g., withhold or redact some information) where the privacy interests of the individual outweighs the usual principle of openness. Where the request for access to the hearing record is made during the hearing itself, it can usually be decided quickly. However, where the request is made after a hearing (or where it relates to the privacy interests of a person who is not present at a hearing), regulators must develop procedures to consult the relevant persons promptly. The Court suggested that a 30-day time period might be acceptable.
Changing Society and Historical Law
by Rebecca Durcan
May 4, 2018
Perhaps the most notorious sexual abuse case in recent years was determined by Ontario’s Court of Appeal earlier this month. In College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, http://canlii.ca/t/hrt0r, a physician was found to have engaged in the sexual abuse of four patients by touching their breasts without consent or medical indication. Another finding of unprofessional conduct occurred because he “had asked a fifth patient on a date immediately following his medical examination of her during which her breasts were exposed”. The regulator sought revocation. However, the discipline panel imposed a six month suspension, numerous conditions and serious financial consequences.
The regulator appealed its own tribunal’s decision as it believed the sanction was not sufficient. The Divisional Court, in a particularly strongly worded decision, would have returned the matter for the imposition of a much more serious sanction. That Court found that the tribunal had based its penalty decision on an acceptance of a “lack of awareness” explanation by the physician that was inconsistent with the tribunal’s finding that the conduct was obviously sexual in nature and that the patients did not “misunderstand” Dr. Peirovy’s touching. The Divisional Court also held that reliance on a range of unfit penalties in previous cases did not justify a penalty that no longer reflected current societal values.
The majority of the Court of Appeal concluded that the Divisional Court had erred by reading the reasons of the discipline tribunal too rigorously and by failing to show adequate deference to the specialized knowledge of the expert disciplinary tribunal. The majority concluded that the discipline committee had considered and explained in its reasons why the sanction selected was reasonable and protected the public. One member of the Court of Appeal dissented, vigorously supporting the approach taken by the Divisional Court on both issues.
Interestingly, the Court of Appeal had very different interpretations of the subsequent amendments to the legislation that now require revocation for such conduct. The amendments were almost certainly a direct result of the controversy over the Discipline Committee’s decision in the Peirovy case. The majority indicated that the discipline panel was implementing the framework that existed at the time and the Legislature’s ensuing alteration of the framework was irrelevant.
The dissenting Justice viewed the amendments to the legislation as a reaction to the discipline panel’s failure to recognize that societal expectations had indeed shifted.
The Impact of Bankruptcy on Disciplinary Fines and Costs
by Julie Maciura
April 30, 2018
Bankruptcy is intended to provide people with an opportunity to gain a fresh start without the burden of debt; it is governed by federal law. Disciplinary proceedings are intended to protect the public from harm, often through the imposition of a sanction to deter the regulated practitioner and others; they are governed by provincial law. Valid federal law is paramount over inconsistent provincial law. One can just imagine the complexities that flow where a bankrupt practitioner also faces fines and costs imposed by a disciplinary panel. This complexity is fully evident in the lengthy discussion of the issues in Chartered Professional Accountants of Alberta v Neilson, 2018 ABQB 170, http://canlii.ca/t/hr0wg.
In that case the practitioner initiated bankruptcy proceedings while he was under investigation by his regulator for allegations of serious misconduct (the events of two incidents arose before he declared bankruptcy; the events of the third incident occurred after he declared bankruptcy). Ultimately an agreement was reached between the practitioner and regulator resolving all three matters and resulting in the cancellation of the practitioner’s registration, a fine of $50,000 and a $15,000 costs order, among other things. When the regulator tried to collect those amounts, the practitioner refused to pay, saying that they were covered by the bankruptcy proceeding and that he would not have reached an agreement with the regulator if he knew he would actually have to pay the fines and costs. The primary issue for the court was determining whether these amounts were contingent liabilities that could be estimated (i.e., were provable) at the time of bankruptcy (in which case they would be covered by the bankruptcy proceeding) or whether they were too speculative to be included in the bankruptcy process.
After a detailed analysis, the court found that the costs ordered by the Discipline panel relating to the two complaints that arose prior to the practitioner declaring bankruptcy were provable because they were relatively predictable in the circumstances (and as such, they were covered by the bankruptcy process and the regulator could not collect on them). However, the fines imposed in relation to all three complaints, as well as any costs that related to the third complaint, were speculative at the time the practitioner declared bankruptcy and so they could be recovered by the regulator outside of the bankruptcy process. The court analyzed the various factors that go into determining what sanction a discipline panel will order in a particular case and found that it was impossible to predict that a fine would be imposed against the practitioner (in addition to revoking his registration, which seemed guaranteed). As such, the court ordered that the regulator was entitled to a money judgement against the practitioner for the fines (as well as the incremental costs related to the third allegation).
Where regulators are aware that a member has initiated bankruptcy proceedings prior to a discipline hearing, they should take the bankruptcy proceedings into account when developing the appropriate sanction. In addition, regulators should generally be aware that bankruptcy proceedings after a discipline hearing can have a significant impact on the collectability of the monetary aspects of the sanction.
Disability and Disciplinary Orders
by Erica Richler
April 26, 2018
Where a practitioner raises the mitigating factor of the practitioner’s illness, who has to prove what? This issue was squarely raised in Braile v Calgary (Police Service), 2018 ABCA 109, http://canlii.ca/t/hr36m. The police officer was found guilty “for misconduct connected with a prolonged and dangerous high-speed police chase on December 15, 2008 in Calgary, contrary to CPS policy, which resulted in serious injury to an individual unconnected with the chase.” At the penalty phase of the hearing the police officer raised, as a mitigating factor, that he was in a manic phase of a bi-polar disorder.
The Court held that the burden of proof was on the practitioner to establish the presence of a mitigating factor on a balance of probabilities. The practitioner would have to establish both the presence of the illness and that the illness caused or contributed to the behaviour in issue. The Court upheld as reasonable the tribunal’s finding that it had not been established that the police officer was experiencing manic symptoms at the time of the high-speed car chase.
Considering Exemptions for Registration
by Rebecca Durcan
April 23, 2018
Some regulators are permitted to consider exemptions (sometimes called waivers) for applicants for registration who do not meet the technical requirements. Typically these exemptions permit an applicant to demonstrate that they meet the necessary competencies through an alternative means (e.g., experience as well as formal education). It is necessary for regulators to consider whether an exemption should be granted. Failing to analyze the availability of the exemption can nullify the determination. That was the case in Yates v Nova Scotia Board of Examiners in Psychology, 2018 NSSC 43, http://canlii.ca/t/hqvww.
In the Yates case the applicant had a “non-practising” registration status in Saskatchewan. Nova Scotia did not have such a category. The Court held that the applicant did not qualify under the Agreement on Internal Trade as Nova Scotia was not required to create such a category for her. However, the regulator now had to consider whether she qualified under the existing requirements for applicants. The Nova Scotia legislation permitted persons without an approved degree to receive individual consideration if registered elsewhere (even in a non-practising capacity). As a result of the policies and procedures adopted by the regulator, it did not actually consider whether this applicant should receive the waiver. Failing to do so resulted in the matter being returned for fresh consideration. The Court said:
The protection of the public is not solely achieved by powers of exclusion. It is also served by the permissive power to consider the inclusion of individuals, where appropriate, whom the authority feels may be able to assist in protecting the public by the delivery of competent, professional services, notwithstanding their technical inability to meet all of the requirements ….
The Court was also concerned that some materials had not actually been provided to the decision makers on the basis that staff thought the materials were not relevant. Rather, only a verbal summary of the materials was provided. The Court noted that the materials were potentially relevant to the issue of whether an exemption should be granted and, as such, procedural unfairness resulted.
A New Test for Interim Mandatory Injunctions
by Bernie LeBlanc
April 19, 2018
Often a major dispute in a proceeding is who has to do what until the matter is finally decided. Courts frequently rely on the status quo so if one side wants to preserve it in the face of a proposed regulatory change, they traditionally only had to prove that there is a serious issue to be considered, they will suffer “irreparable harm” and the “balance of convenience” favours their position: RJR-MacDonald Inc. v Canada (Attorney General),  1 SCR 311, http://canlii.ca/t/1frtw.
More recently, the Supreme Court of Canada recently stated that if a party wants to order the other party to do something, their position has “such merit that it is very likely to succeed at trial”: R. v Canadian Broadcasting Corp., 2018 SCC 5, http://canlii.ca/t/hq979. In the CBC case the court refused to order a media outlet to temporarily remove articles identifying a victim posted before an order banning publication was made because it was not clear that the application to permanently do so would succeed.
Even more recently, in Moore v The Law Society of British Columbia, 2018 BCSC 386, http://canlii.ca/t/hr06v, the Court confirmed this new test on an interim request to remove the restrictions imposed on a lawyer’s licence pending a full hearing on the validity of those restrictions. Ultimately the Court did not have to assess the strength of the applicant’s case because the balance of convenience favoured the regulator.
One can see this new test becoming an issue when a regulator seeks an interim injunction compelling an unregistered practitioner to stop practising or to cease using a protected title. This new test is less likely to become an issue for interim suspension orders during investigations or hearings because the legislation often imposes its own legal test for making the determination (i.e., likely to expose a client to harm or injury).
by Julie Maciura
April 16, 2018
Some regulators provide the ability for internal appeals of registration, complaints or discipline decisions. Often the question is: should those appeals be like appeals to a court, where the parties make submissions on the basis of the record before the first tribunal, or should there be a complete redoing of the hearing with oral evidence and fresh submissions? In Dorn v Association of Professional Engineers and Geoscientists of the Province of Manitoba, 2018 MBCA 18, http://canlii.ca/t/hqx9j, Manitoba’s highest court gave guidance on the issue. It applied the following principles:
- Where the legislation is not clear, the usual presumption is that an internal appeal will be an appeal based on the record (e.g., the transcript and exhibits) from the first hearing and is not a redoing of the entire hearing.
- This presumption can be rebutted by clear, not ambiguous, statutory language.
- Where the regulator has the authority to make regulations or by-laws on the subject, the regulator has significant discretion to design an appropriate appeal mechanism for itself.
- Even where an appeal is on the record of the first hearing, the appellate body generally has discretion to permit oral evidence on some issues.
Regulators would be wise to clarify the appeals process where it is permitted to do so in a regulation or by-law.
Ungovernability: The Sequel
by Erica Richler
April 12, 2018
Being found to be ungovernable twice in two years is quite a feat. This happened to a Manitoba nurse in Kuny v College of Registered Nurses of Manitoba, 2018 MBCA 21, http://canlii.ca/t/hqx9l. In that decision “the Discipline Committee found that Kuny had, by his actions and words, refused to accept the authority or take direction from his governing body and was therefore ungovernable.” Without going into detail, the Court held that this finding was well supported by the evidence. The Court also upheld an order cancelling the nurse’s registration and imposing $30,000 in costs as reasonable in the circumstances. The Court indicated that this was the second finding of ungovernability, which was an aggravating factor. The Court did state that a lack of remorse cannot be an aggravating factor resulting in a more severe sanction, but could be a reason for not otherwise extending leniency. In this case the tribunal had not commented on the lack of remorse when dealing with penalty. Rather, it had only indicated that he had failed “to accept responsibility or to be accountable for his actions” when discussing the issue of ungovernability, which was appropriate.
The “I Did Not Receive the Email” Defence Fails
by Rebecca Durcan
April 9, 2018
In The Law Society of Manitoba v Alghoul, 2018 MBCA 23, http://canlii.ca/t/hqx9n, a lawyer was sent numerous emails from an adjudicator which he did not answer. Ultimately the adjudicator had to contact the lawyer’s firm to obtain the information. The proceedings were compromised because of the delay. The adjudicator made a complaint to the regulator. In response to the complaint the practitioner acknowledged receiving the emails and explained that his failure to respond was due to travel and personal issues. Just prior to the discipline hearing the practitioner asserted that the emails went into a junk file folder of an inactive email address and he therefore had not received the emails. The discipline tribunal rejected these explanations and concluded that his earlier admissions were more accurate. It held a hearing and found that the conduct involved a continuing failure to display “candour, courtesy and respect” and was unprofessional. It imposed a reprimand and awarded $28,000 of costs against him in part because of the manner in which he conducted his defence. The Court upheld the finding and order as reasonable.
While the facts of this case are somewhat unusual, the outcome indicates that regulatory bodies can infer that emails were received, particularly where there is a delay in the assertion that they were not received. The case also indicates that significant cost implications can be imposed where a practitioner departs from their initial response to the complaint at a subsequent discipline hearing.
Regulator Implements Anonymous Tip Line Recommendation
by Bernie LeBlanc
April 3, 2018
The groundbreaking June 2016 report of the Independent Advisory Group into the regulation of the real estate industry in British Columbia contained the following recommendation:
- The Real Estate Council implement confidential reporting channels (for example, reporting hotlines or whistle-blower programs) for industry and the public, to facilitate reporting of licensee misconduct.
Very few regulators encourage anonymous reports for a number of reasons. It is difficult (although not legally impossible) for an anonymous tip to constitute reasonable and probable grounds to support the initiation of an investigation. Even if an investigation can be initiated, it may be difficult to investigate effectively without a witness. In addition, approaching a practitioner about a serious abuse of trust without possessing some evidence can result in the identification of the anonymous reporter (through the details reported), increasing the risk of either interference with the reporter /witness or the concealing of evidence. It takes a great deal of skill and effort to screen anonymous tips for relevance and to combine them with other information (e.g., already on file or contained in other anonymous tips). This sort of time investment is necessary because an apparently innocuous, seemingly malicious or ostensibly incomprehensible report could, in fact, relate to significant misconduct or incompetence. Failing to investigate such reports, if they do turn out to have merit, makes it appear retrospectively that the regulator “missed it”. Many practitioners feel it is unfair to be subject to an investigation without being able to comment on the credibility or motivation of their accuser. And there is, of course, the potential for a complaints/reports program to be abused by those with a personal grudge or by a competitor.
Despite these concerns the Real Estate Council of British Columbia has implemented the recommendation. Reports can be made either online or by telephone. Reporters are requested to complete a detailed form. Areas of possible reporting are identified with an emphasis on concealed or consensual misconduct that might not otherwise become known (e.g., secret commissions). Practitioners are reminded that filing an anonymous tip does not satisfy their mandatory reporting requirements, which must be made with the reporter’s identity revealed. For more information about the confidential reporting initiative, see:
It will be interesting to watch unfold any discipline proceedings (and potential court challenges) that result from these anonymous reports.
What Constitutes a Final Decision?
by Erica Richler
March 26, 2018
Appeals of most regulatory decisions are only available if the decision is final. In civil cases, there has been much litigation about what constitutes a final decision for the purpose of determining the appropriate appeal route. In that context, a decision will be considered final if the ruling deprives a party of a “substantive right which could be determinative of the entire action”.
In The Law Society of Upper Canada v. Piersanti, 2018 ONSC 640, http://canlii.ca/t/hqjnd the disciplinary tribunal made an evidentiary ruling accepting the findings of fact of a trial judge in a civil case as binding on the practitioner. The tribunal would not allow the practitioner to challenge (or re-litigate) those findings of fact. The practitioner attempted to appeal that ruling, both internally to an appeal committee and in the courts. The tribunal had not yet made a decision with respect to the alleged misconduct or penalty.
The Divisional Court declined to hear the appeal and held that the test for finality used in civil cases did not apply. The Court indicated that in regulatory proceedings there is a high value in allowing the proceedings to be completed before appeals are considered. Given the public protection mandate of regulators, their non-legal structure and the practical problems created by interrupting the process, the Court determined that in most cases the hearing process should run its complete course before there is recourse to the courts. A final decision in regulatory cases is one in which all matters have been determined. Then, if necessary, a party can challenge the entire process in one appeal.
Dropping the F Bomb
by Rebecca Durcan
March 21, 2018
Is it always professional misconduct for a practitioner to use profanity? In Johnson v. Law Society of British Columbia, 2018 BCCA 40, http://canlii.ca/t/hq732, the Court supported a finding that a lawyer “dropping the F Bomb” in a courthouse corridor directed at a police officer who was a witness in his court case “constituted a marked departure from the conduct the Law Society expects from its members”. The Court accepted that there may have been provocation by the police officer (who later arrested the lawyer when their “chests or stomachs” touched), but deferred to the expertise of the professional regulator. However, it was clear from the Court’s reasons that it accepted the proposition that not every profanity by a practitioner was professional misconduct and that the regulator needed to examine the circumstances of each case.
The Next Step in Combatting Sexual Abuse
by Julie Maciura
March 16, 2018
The government is consulting on three separate regulations as part of its ongoing efforts to eradicate sexual abuse by health care practitioners. In the first, it includes as part of the definition, for the purpose of the sexual abuse provisions, of a patient a person with whom a practitioner has direct contact and where the person is billed, is the subject of a record entry by the practitioner, provides consent to treatment recommended by the practitioner, or is prescribed a drug by the practitioner. (Keep in mind that the Code itself, when the amendments are in force, will also include a definition of patient that does not “restrict the ordinary meaning of the term” and that will impose a one year “cooling off” period on sexual relationships with former patients.) Excluded from the definition of patient for the purposes of the sexual abuse provisions are persons with whom the practitioner already has a sexual relationship and who is treated only during an emergency.
The second regulation requires the practitioner to be revoked if found guilty of a sexual offence under the Criminal Code.
The third regulation requires the public register to provide information about practitioners: criminal charges and findings, conditions of release after arrest, and registration status and misconduct findings in other jurisdictions.
The consultation period on these regulations is remarkably brief and ends on March 22, 2018. That and the fact that the consultation is upon final legislative language suggests an intention to enact the regulations before the election this June.
by Bernie LeBlanc
March 12, 2018
Most professions require their practitioners to show respect to their clients and colleagues. One of the central issues in Sullivan v. Ontario College of Teachers, 2018 ONSC 942 was on how to interpret this duty. Mr. Sullivan was a teacher who had concerns about vaccinations. There was a vaccination clinic for the students at his school. Mr. Sullivan left his class unattended to express his concerns about whether the nurse staffing the clinic was obtaining truly informed consent. His comments were found to be aggressive and intimidating (e.g., questioning whether the students were being told that one of the side effects of vaccination was death). Some of Mr. Sullivan’s comments were heard by and, in one case, directed at students. The Discipline Committee found that Mr. Sullivan’s conduct demonstrated a lack of respect to the nurse and the students (as well as his class which was left unattended).
On appeal, Mr. Sullivan argued that he was demonstrating respect to his students by trying to ensure that they gave truly informed consent, which he honestly believed was not occurring. The Court held that the issue of informed consent was between the students, their parents and the nurse. Mr. Sullivan had no role in the matter. The Court also held that it was reasonable for the Discipline Committee to find that Mr. Sullivan’s method of intervening did not honour the principle of respect.
Short Term Gain for Long Term Pain
by Julie Maciura
March 5, 2018
When there is a public outcry about extremely inappropriate behaviour alleged against a practitioner, the regulator often feels compelled to reassure the public that such conduct is not acceptable. However, those public statements can then be used as ostensible proof of prejudgment when the regulator addresses the concerns through its investigation and discipline process. That is what occurred in Calandrini v. Canada (Attorney General), 2018 FC 52. The conduct in issue related to reported acts of nudity, sexual harassment and even assault by an RMCP police officer towards his male colleagues. When the media picked up the story, the Deputy Commissioner of the RCMP said:
When this came to our attention, we were appalled at what the allegations were. I found it hard to believe that in this day and age that this kind of behaviour would take place in our organization or anywhere else. It is completely unacceptable behaviour. It is abhorrent. The kind of behaviour that was alleged is completely in opposition to our core values.
The Court applied the following test as to whether these comments created an appearance of bias:
To find that discretion has been fettered, the facts before the Court must give rise to a reasonable apprehension that the decision-maker treated another individual’s views as binding or conclusive, without the need to consider any other factors or to conduct an independent analysis.
The issue was complicated by the fact that the concerns had already been addressed informally. That informal resolution was then subject to review. During that review process the media raised concerns about the case. The officer conducting the review referred the matter to a discipline hearing. However, in reviewing the entire file (including the steps taken before the media outcry, the notes by the screening person indicating that they did not discuss the matter with the Commissioner and the documentation about the processing of the concerns), the Court was satisfied that there was no fettering of discretion despite the comments made by the Commissioner.
Inferences vs. Speculation
by Erica Richler
February 27, 2018
In a number of recent cases the courts have said that regulators should base their conclusions on evidence rather than speculation. What is often left unaddressed is the difference between drawing inferences from the evidence (which is permitted) and speculating based on the facts (which is not permitted). In Finkelstein v. Ontario Securities Commission, 2018 ONCA 61, the Court of Appeal for Ontario stated that reviewing courts should not intervene when a tribunal makes an inference from the evidence even if it is not the inference that the court would have made. The case dealt with insider tipping in the stock market where cases are almost always established through circumstantial evidence.
The Court then went on to accept the following definition of what constitutes an “inference”:
“An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion the trier of fact may, but not must, draw in the circumstances.”: David Watt, Watt’s Manual of Criminal Evidence, 2017 (Toronto: Thomson Reuters, 2017), §12.01.
The Court of Appeal reviewed the Divisional Court’s handling of the evidence and the reasons of the tribunal and concluded:
The function of a reviewing court, such as the Divisional Court, is to determine whether the tribunal’s decision contains an analysis that moves from the evidence before it to the conclusion that it reached, not whether the decision is the one the reviewing court would have reached: Ottawa Police Services, at para. 66. With due respect to the Divisional Court, it failed to do so in the case of the Panel’s decision about Cheng. Instead, it impermissibly re-weighed the evidence and substituted inferences it would make for those reasonably available to the Panel. That was an error. The findings of fact made and inferences drawn by the Panel in respect of Cheng were reasonably supported by the record.
The difference between drawing valid inferences and engaging in speculation is a subtle one. Tribunals should take care to explain the reasons for the conclusions they draw from the evidence.
You Gotta Come to the Party to Dance
by Rebecca Durcan
February 21, 2018
A self-represented practitioner was referred to the Discipline Committee for failing to attend a caution before the Inquiries, Complaints and Reports Committee (Lum v. College of Physiotherapists of Ontario, 2018 ONSC 567). The practitioner did not attend their discipline hearing and a finding of professional misconduct was made. The practitioner then tried to appeal the decision on a series of procedural concerns. The Divisional Court held that failing to attend the hearing to raise the procedural concerns was sufficient to deny the appeal. This was so even though the practitioner was self-represented (“Ignorance of the law is not an excuse”). The Court also held that the grounds of appeal were without merit:
- That the hearing panel composition overlapped with the panel hearing a motion to exclude prejudicial evidence was neither unfair nor contrary to the panel’s rules of procedure permitting a separate panel to conduct preliminary motions;
- There is nothing prejudicial or unfair in the hearing panel referring to the history of the proceedings, including the practitioner’s attempts to obtain an injunction to prevent the hearing from proceeding;
- There is no duty on the regulator to specify which portions of the disclosure it will rely upon at the discipline hearing; and
- The sanction for failing to attend at the caution was a reprimand, a suspension until a particular course was successfully completed and costs of $4,500 was “a very reasonable one, having regard to the seriousness of the misconduct”.
by Bernie LeBlanc
February 16, 2018
One of the most difficult allegations to prove during discipline is regarding conduct that is only misconduct if it is done cumulatively. For example, being rude on one occasion rarely deserves sanction. However, a pattern of rude conduct may demonstrate a lack of professionalism particularly where the practitioner knows that there have been concerns and they have been warned about it. The conduct then moves from the category of inadvertence or a slip into the classification of deliberate or, at least, indifference to professional duties.
In MacLeod v Alberta College of Social Workers, 2018 ABCA 13, a social worker was alleged to have engaged in a pattern of rudeness towards clients, their families and colleagues along with a specific example on a specific day. The Court was concerned that the allegations were not sufficiently particularized to enable the practitioner to know the case he had to meet. In addition, even though the pattern of behaviour had been confined to a two-year window, evidence relating to his entire 25-year career was introduced without consideration as how the non-specified events should be used during the hearing. In fact, the Court was concerned that the finding made by the panel appeared to relate to conduct that was not contained in the notice of hearing, as broad as it was. The Court said:
Those findings might be supported by inferences drawn from evidence of related events, but those related events could not independently support a finding of professional misconduct, or expand the scope of the charges.
While the Court does not appear to require that a pattern of behaviour list every incident with specificity, regulators should be careful not to make general allegations of a pattern of vague conduct (i.e., “rudeness”) without ensuring that the practitioner is in a position to have a fair sense of the case they have to meet. And disciplinary tribunals should clearly identify how they have used unalleged or unspecified conduct in assessing the alleged events.
Relying on Stolen Evidence
by Julie Maciura
February 13, 2018
What does a regulator do when someone brings stolen information demonstrating serious misconduct on the part of a practitioner? Is it permissible or appropriate to use the information? The Ontario Judicial Council had to deal with this issue in the case of the Honourable Justice John Keast. An unnamed person surreptitiously copied text messages from Justice Keast’s phone and gave them to the local Children’s Aid Society (CAS). The texts revealed highly inappropriate comments by Justice Keast to an employee of the CAS making derogatory comments about other employees of the CAS and about the CAS itself. Justice Keast also attempted to obtain confidential information from his friend. At the time Justice Keast had a case before him involving the CAS and regularly dealt with other CAS cases. Justice Keast tried to exclude the texts from evidence because they were stolen.
The Council admitted the texts. Neither the Council nor the CAS had encouraged the individual to steal the information. And the individual who took them was acting in a private capacity thus making the Canadian Charter of Rights and Freedoms inapplicable. The Council said:
… in a hearing to determine whether judicial misconduct took place, it is virtually inconceivable that the administration of justice would be better served by excluding the evidence of the alleged misconduct, rather than admitting it.
Justice Keast thereupon admitted his misconduct. He was reprimanded, ordered to make certain apologies and was suspended without pay for thirty days.
The Council’s decision is available online: http://www.ontariocourts.ca/ocj/ojc/public-hearings-decisions/d2017/
Over-Broad Disclosure Requests
by Erica Richler
February 8, 2018
Occasionally practitioners argue that they have been singled out for regulatory action in ways that other members who have engaged in similar conduct are not. In order to make such an argument, the practitioner would need to demonstrate details about how other members were treated. Often these other cases are not in the public domain. So the practitioner seeks disclosure of the other cases in order to make the selective prosecution argument. The Law Society of British Columbia v. McLean, 2017 BCCA 388 was one such case.
The allegation was that Mr. McLean had not paid his accounts to court reporters and had not communicated transparently with them about the payment of those accounts. Mr. McLean sought disclosure of “all complaints it [the regulator] had received since its inception regarding late payment of debts, and particulars related to those complaints”. The regulator (and the disciplinary tribunal) refused the request on the basis that it would involve the disclosure of confidential information, that the request was overly broad and unworkable and that the information would not assist Mr. McLean in his defence on the merits. The Court upheld the refusal, particularly because of its broad nature.
This is not to say that a request for access to other regulatory files of a similar nature will always be refused. However, an overly broad request made on a speculative basis is likely to experience a similar fate.
When is a Breach of the Law in One’s Private Life Misconduct?
by Rebecca Durcan
February 5, 2018
For most professions, the reach of the regulator extends to one’s private life in some circumstances. Typically, dishonesty or breach of trust outside of one’s practice constitutes professional misconduct. How about honest mistakes? This issue arose in College of Physicians & Surgeons Alberta v Ali, 2017 ABCA 442, where the practitioner inaccurately completed forms and failed to fulfill other disclosure obligations in the course of his bankruptcy proceedings. The disciplinary tribunal found that he had not done so deliberately. However, it found that he had failed to exercise the thoroughness and take the care expected of a physician in the circumstances. The majority of the appellate Court said:
… the issue was not whether the off-duty conduct reflected on the individual’s competence as a professional but whether it could affect the public’s confidence in the profession or the reputation of the profession when the individual’s private behaviour fails to meet the standards of conduct expected of a member of that profession….
In the view of the Hearing Tribunal, the public would expect members of the medical profession to act with the highest professional and personal integrity. A member in financial difficulty would be expected to take appropriate steps to comply with bankruptcy obligations and be honest and thorough in dealing with the Trustee in Bankruptcy. The public would be unlikely to support a physician who had gone into bankruptcy and continued to earn a very substantial income from the profession, while disregarding his obligations to his creditors.
The majority of the Court found this explanation to be reasonable. A dissenting Justice, however, felt that the making of honest mistakes in these circumstances should not amount to professional misconduct.
It probably did not help the practitioner’s case that he had failed to promptly pay the regulator fees and had failed to cooperate in setting up a meeting with a representative of the regulator when asked to do so.
The Court also gave short shrift to the practitioner’s argument that there was an appearance of bias because other lawyers in the large firm of the independent legal counsel had acted against the practitioner in a small, unrelated matter some years before. The Court also upheld the sanction of a reprimand and payment of $65,000 in costs.
Considering Past History When Imposing Disciplinary Sanctions
by Bernie LeBlanc
February 1, 2018
In Thistle v. Law Society of Newfoundland and Labrador, 2017 CanLII 86502 (NL SCTD), a practitioner was disciplined for inappropriate conduct in mortgage transactions. The main issue on appeal was the appropriateness of the sanction. The practitioner had a complaints history involving letters of caution and warnings. The Court said that some weight could be placed on this history even though no disciplinary finding had been made:
Recognizing that the test for a decision of the Committee falls short of a finding of guilt, I can see no fault in the Tribunal’s consideration of the letters of caution and letters of counsel, as part of the Appellant’s overall conduct history with the Law Society. In the context of the Tribunal’s decision on sanction, the fact that on several prior occasions the Committee formed the opinion that there were reasonable grounds to believe the Appellant’s conduct was deserving of sanction, should not be ignored. Rather, the question is one of how much weight to be attributed to this part of the Appellant’s conduct history. For example, a finding of guilt for professional misconduct might weigh more heavily against the Appellant, than a letter of caution arising from the reasonable opinion of the Committee. Each is relevant, however, and in this case the Appellant’s conduct record contains both.
The Court also said that some consideration could be given to other conduct of concern even though it had not been dealt with before the conduct in issue at the discipline hearing. While it could not be said that the practitioner had failed to learn from the other matter, it was still part of his prior history that could be considered.
Disclosure Duty Applies only to Relevant Information
by Julie Maciura
January 29, 2018
In Peters v. The Law Society of Upper Canada, 2017 ONSC 7142, the practitioner was alleged to have failed to fulfill her professional obligations including failing to attend scheduled court dates in a number of cases. She sought disclosure of the investigation files of other practitioners involved in two of those cases. The regulator refused even though those files dealt with clients shared with Ms. Peters. The Court agreed:
Given that the conduct at issue in the R matter concerned Ms. Peters’ failure to attend court on three occasions and her failure to pay a costs order, it was reasonable for the Hearing Panel to conclude that a complaint against the opposing lawyer in the same proceeding had no relevance. It was Ms. Peters’ conduct that was at issue, not the opposing lawyer’s. In the C matter, the complaint was against a paralegal that Ms. Peters’ client had retained before she retained Ms. Peters. Again, it was not unreasonable to find that this complaint had no relevance to the allegations against Ms. Peters, which concerned her conduct, not that of the paralegal.
The implication of this decision is that the files of the regulator’s investigation of other practitioners can be disclosed where relevant. However, disclosure can be safely refused where the other files do not relate to the actual allegations against the practitioner even if there is some connection between the cases.
The Divisional Court also refused to hear an argument on appeal about delay by the regulator where the issue was not raised at the hearing and the court would not have a proper record to consider (e.g., the regulator’s explanation for the apparent delay).
Only Obtain Information at the Hearing
by Erica Richler
January 25, 2018
Hearing panel members are often tempted to find out more about the case before them. It may be because of general curiosity. It may be because of a sense that there are things they are not being told. It may be because it is difficult for panel members to be passive during the hearing. However, under our adversarial legal system it is important that hearing panels obtain all of the information in the hearing room and in the presence of all parties.
In Kadioglu v Real Estate Council of British Columbia, 2017 BCSC 2252 (http://canlii.ca/t/hp6c1), the chair of a disciplinary hearing panel sent an email to the hearing staff support person requesting details about the investigation that had taken place in the case before them. A copy of the email was also sent to the regulator’s legal counsel. Independent legal advice was obtained that the chair should recuse himself from the panel, which he did. The remaining panel members completed the hearing and a finding was made against the practitioner.
The practitioner appealed and argued that he was denied procedural fairness (among other things). The practitioner relied on the chair’s email and subsequent recusal to argue that the chair must have had “misgivings” about whether due process had been followed prior to the hearing. The practitioner argued that the chair “resigned from the panel since he obviously felt that [the practitioner] was not being treated with procedural fairness and the Committee was turned into a kangaroo panel.”
The appeal court held that the practitioner’s assertions were “clearly wrong” and his appeal was dismissed. Nevertheless, the case serves as a caution to hearing panel members about the need to confine their information gathering to the hearing room itself.
Continuing Credibility Confusion
by Rebecca Durcan
January 22, 2018
Perhaps one of the most difficult tasks for a lay disciplinary tribunal is articulating the reasons for a credibility finding. In Ahmed v College of Registered Nurses, 2017 MBCA 121, the panel relied upon the testimony of the patient in order to make a finding of sexual abuse. However, two difficulties arose in the panel’s assessment of the patient’s credibility. The allegations centred on whether the nurse’s examination involved the sexual touching of the patient’s breasts and labia. The Court found the panel’s decision unreasonable for two reasons.
The first was that the panel did not address whether the patient might have been honest but mistaken about the touching. While at first this conclusion might sound surprising given that there was expert evidence that the examination of this patient’s condition should not have involved the touching of those areas, the court remained troubled that the distinction (between honesty and reliability) was not discussed in the reasons. The patient’s “physical and emotional state on the night in question” may have affected her capacity to perceive and recall the events accurately. In addition, the Court was troubled at the number of inconsistencies in the patient’s various statements and said:
It is, of course, one thing to find one or two inconsistencies on peripheral matters to be immaterial; it is quite another to find a dozen or more inconsistencies to be immaterial without considering whether all of them, taken together, demonstrate an absence of reliability.
The second concern was that the panel appeared to use the patient’s prior consistent statements as proof of the credibility of her evidence. While prior consistent statements are sometimes helpful (e.g., to rebut an assertion that the witness is changing their story), it cannot be used “as evidence of the truth of the complainant’s in-hearing testimony”.
The finding was overturned and the Court sent the matter back for consideration of whether another hearing was warranted.
Disability Not Necessarily a Basis for Nullifying an Unsuccessful Examination Attempt
by Bernie LeBlanc
January 18, 2018
Regulators offering a limited number of examination attempts face frequent requests to nullify an attempt by candidates who have been unsuccessful the maximum number of times. Increasingly, the basis for such requests is grounded in a disability, often temporary, of the candidate. In Martino v. College of Nurses, 2017 ONSC 6892, the Divisional Court found that it is sometimes reasonable to refuse such a request. Her request was summarized as:
her personal circumstances that her mother had died about a year before the attempt and she suffered depression and anxiety as a consequence, and she was taking medications with side effects such as blurred vision, headaches, anxiety, depression, drowsiness and fatigue. She submitted a report from a registered psychologist which stated that the medications “can, in fact, lead to a state of drowsiness, fatigue and confusion.”
The Court said:
The appellant had the onus to establish her mental and emotional state at the time of the examination and the direct impact of those circumstances on her inability to comprehend their effect on her examination performance. The evidence respecting her state of mind at the time of the first examination was essentially limited to that of the appellant. Ms. Hannell [the psychologist] did not assess the appellant around the time of the first examination; rather, she relied on the appellant’s own account of the history of her condition in making her report. More importantly, Ms. Hannell did not give an opinion that the appellant was confused at the time of the first examination, nor that the appellant was unable to comprehend her inability to pass the examination.
The [reviewing] Board concluded that the appellant could have and should have assessed the side effects of her medications and the impact of her mother’s death well before the examination. That is a reasonable conclusion, given that the appellant’s mother died a year earlier, and the appellant had been taking the medications for some time before the examination.
The Board expressed sympathy for the appellant’s situation. That does not mean the Board found her evidence persuasive, as her counsel argues.
The Board considered the evidence and found that it did not demonstrate exceptional circumstances that would warrant the extraordinary relief of the annulment of the first examination.
Guidance on Interpreting Frivolous and Vexatious Provisions
by Julie Maciura
January 15, 2018
Many regulators have a provision permitting them to not proceed with complaints that are frivolous, vexatious, made in bad faith, an abuse of process or moot. Ontario’s Divisional Court provided guidance on the interpretation and application of such a provision in Catford v. The Health Professions Appeal and Review Board, 2017 ONSC 7411. In that case, Dr. Catford, a physician, was involved in acrimonious litigation with her uncle. In the course of that litigation, Dr. Catford expressed concerns in a letter about her uncle’s conduct towards his own daughter as well as towards Dr. Catford herself. A complaint about the letter resulted in no action against Dr. Catford other than a warning about its wording. The uncle pursued the matter against a number of other individuals and then made a fresh complaint against Dr. Catford generally related to the same conduct. The regulator declined to process it and the review Board declined to consider it on the basis that the complaint “was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process”.
The Divisional Court found the Board’s decision to be reasonable. It made the following points that will be of interest to regulators:
- The provision permits the regulator (and review Board) to decline to deal with a complaint that “clearly has no merit, seeks to re-litigate a claim already decided or is brought for an improper purpose”.
- This authority to decline to deal with a complaint is “consistent with the court’s determination of when a proceeding is frivolous, vexatious or an abuse of power”.
- Factors that are relevant to the determination include situations where the dispute in which the conduct occurred is a personal one, the relevance of the conduct to the practice of the profession, any other unsuccessful proceedings (including against third parties) in which similar issues are raised, whether there is a better forum for the complainant to have raised the concerns, and whether the complaint appears to be made for an ulterior or improper purpose.
- The previous complaint does not have to be identical to fit the criteria; it is sufficient if the previous complaint is about essentially the same issue.
While declining to deal with a complaint will continue to be a rare and exceptional outcome, there are cases in which it is an appropriate decision for a regulator.
Cross-Border Internet Practice
by Erica Richler
January 12, 2018
Yesterday an important decision was rendered by the Ontario Superior Court on the cross-border internet practice of professions. In College of Optometrists of Ontario v. Essilor Group Canada Inc., 2018 ONSC 206, two regulators (the College of Opticians of Ontario was also a party) obtained an injunction against a major internet supplier of contact lenses and eyeglasses requiring it to comply with Ontario rules relating to dispensing eyewear. Essilor (the parent of Clearly and Coastal) operated out of British Columbia. Essilor tried to portray the application as turf protection to guard the commercial interests of optometrists and opticians. The Court viewed that argument as irrelevant; the issue was whether the online dispensing of lenses and eyeglasses was permitted by the legislation.
The Court first addressed whether the actions of Essilor breached the Ontario legislation by “dispensing” eyewear, which is a controlled act. The Court noted that while the controlled act scheme in the legislation was designed to prevent harm, one had to interpret the language of the provision and not conduct a risk-assessment of the specific conduct in the case. The Court concluded “that ‘dispensing’ is not a singular act but a series of acts that encompass the making, adjustment (fitting) and delivery of” eyewear. Under the Essilor business model, no Ontario-registered practitioner was responsible for performing these functions. That outcome was contrary to the purpose of the provisions (i.e., ensuring the provision of proper health care by qualified and authorized professionals). It was evident to the Court that Essilor was making and delivering contact lenses and eyeglasses.
The second issue was whether Ontario legislation applied in circumstances where almost everything Essilor did occurred in British Columbia. The Court indicated that it should not take an “old-world understanding of place and time”. The location of the action should not be assessed on a purely commercial transaction basis (i.e., where was the contract made?), as is done under the Civil Code in Quebec. Rather, location should be determined in a manner consistent with the purpose of the provisions. Under this approach the Court looked for whether there was a “sufficient connection” between the conduct and Ontario. The Court said that a “purposive analysis of the legislation demonstrates that this situation is best characterized not as a contract for the sale of eyeglasses, but as the delivery of health care.”
The Court engaged in a fascinating discussion of the location of events over the internet. It cited authorities viewing such interactions as occurring “both here and there”. The Court concluded that where the order was placed by an individual in Ontario and the eyewear was received in Ontario, presumably to be used in Ontario, there was a sufficient connection to Ontario. “To find otherwise would mean the eyeglasses are provided without obligation to adhere to Ontario regulation.” The Court was also not swayed by the fact that ordering lenses and eyeglasses online was permitted in British Columbia; such a change in the law in Ontario should be done by the legislature, not the courts.
In passing, the Court noted that the regulatory rules of Ontario also applied to internet practice within Ontario. Internet providers that are based in Ontario and dispense eyewear to Ontario clients need to comply with all Ontario rules.
This case provides some urgently needed clarity on the issue of cross-border internet practice.
[NB This decision was reversed on appeal at 2019 ONCA 265. Leave to appeal to the Supreme Court of Canada was refused at 2019 CanLII 96491 (SCC). For more information see: https://www.sml-law.com/wp-content/uploads/2019/04/Greyar235.pdf.]
A Nice Summary
by Rebecca Durcan
January 8, 2018
Courts sometimes provide a summary of the law that is so concise and clear that they are of enormous assistance to regulators. In The Law Society of Upper Canada v. Hatzitrifonos, 2017 ONSC 6759, one can find such a summary. The regulator obtained an injunction against Mr. Hatzitrifonos from practising law. He ignored it. The regulator brought a civil contempt motion. The Court summarized the test as follows [citations omitted]:
It is well established that there is a three-part test for a finding of contempt of court, as set out by the Supreme Court of Canada in Carey v. Laiken:
- The order that was breached must clearly and unequivocally state what should or should not be done;
- The party who disobeyed the order must have had actual knowledge of it; and
- The party alleged in breach intentionally did the act the order prohibits or intentionally failed to do the act the order compels.
The elements of the contempt must be proven on the basis of the criminal law standard, namely, proof beyond a reasonable doubt. Moreover, the contempt power is discretionary and should be utilized as an enforcement power of last rather than first resort. At the same time, the party subject to the court order must comply with both “the letter and the spirit of the order”; a party cannot hide behind a restrictive or literal interpretation of an order in order to circumvent it, as this would make a mockery of the order and the administration of justice. Moreover, it is not necessary to prove that a person deliberately intended to breach a court order. It is sufficient if the person in question intentionally performed the act which is in fact prohibited by the order.
The Court also gave this description as to the importance of ensuring compliance with its orders [citation again omitted]:
It has long been observed that the judiciary controls no purse and commands no army; its power comes from words alone. It is precisely for this reason that it is critical that the decisions and orders of the courts be generally respected and observed. The deliberate flouting of court orders, if tolerated or permitted, will inevitably erode the public respect accorded to court decisions, thereby undermining an independent judiciary and the rule of law itself.
Is Providing One’s Views Different from Giving Advice?
by Bernie LeBlanc
January 4, 2018
In Law Society of British Columbia v Sprague, 2017 BCSC 2025 the regulator sought an injunction against Mr. Sprague for practising law. Mr. Sprague argued that he did not provide legal advice. He said that he merely expressed his views on a legal matter. He argued that doing so was protected by the freedom of expression guaranteed under the Canadian Charter of Rights and Freedoms. Mr. Sprague also asserted that he was not paid for providing legal advice but only for spending his time with the individuals consulting him. He also indicated that the demand letter he signed on behalf of one person was simply a dictation he transcribed on behalf of the individual.
The Court concluded that it should look at the substance of the interactions and concluded that Mr. Sprague was clearly practising law. The injunction was granted.
Suing a Regulator for an Interim Suspension
by Julie Maciura
December 28, 2017
Can a regulator be liable for damages for imposing an interim suspension in good faith where the concerns/allegations are later withdrawn? In Gillis v Law Society of NB et al, 2017 NBQB 212 the Court said no. Mr. Gillis was found guilty of a criminal offence. Despite his intention to appeal the criminal conviction, the regulator referred him to discipline and ordered an interim suspension pending the hearing. Afterwards the criminal conviction was set aside and a new trial was ordered. The regulator then withdrew the interim suspension as well as the referral to discipline. Mr. Gillis sued the Law Society for damages.
The Court dismissed the action for two reasons. First, Mr. Gillis did not commence the action within the two-year limitation period. Second, Mr. Gillis did not establish that the actions of the regulator were taken in bad faith (there being statutory immunity for actions taken in good faith). The Court said:
I find there was no evidence to support the argument that either Ms. MacLean or Mr. Richard [representatives of the regulator] acted in anything but good faith. There was no evidence before this Court that would support a conclusion that they had ulterior motives, or that their conduct was unlawful, or that their conduct was willful. There was no evidence that either Ms. MacLean or Mr. Richard were either careless or reckless in their behaviour. In fact, they approached this with an abundance of caution. Counsel for the defendants argued that the Law Society acted as the regulator and moved to sanction as the Act required it to do so. I agree.
Can a Party Ferret Out Dissenters?
by Erica Richler
December 20, 2017
Can a party insist that individual panel members tell the party that they agree with the panel’s decision? That issue arose in Aylward v. Law Society of Newfoundland, 2017 NLCA 67. The complainant was disappointed that no action was taken on his complaint. The decision was not signed by the panel members. The complainant sought an order that the public member on the panel confirm directly to him that the public member participated in and fully supported the decision of the panel. The Court rejected the request and stated:
There is nothing either in the legislation or [sic] provided to this Court to indicate that the decision of the committee must be unanimous or, alternatively, that the lay bencher must be part of the majority. In the absence of a provision stating otherwise, it may be inferred that a majority of members on the committee could determine the disposition. Further, there is no reason to require the lay bencher to be part of the majority if the decision is not unanimous.
The decision confirms that panels act through majority decisions (unless the governing legislation says otherwise). While it may be fairer for dissenting panel members to indicate their dissent, in this context, at least, they are not required to do so.
Disclosure During Investigations
by Rebecca Durcan
December 14, 2017
It is common for practitioners under investigation to seek full particulars and disclosure before providing their response. It is also common for investigators to not provide detailed particulars (as the investigator does not yet know the facts) and to hold back what other witnesses have said (so that the practitioner responds with their actual recollection of the events). In Kuny v College of Registered Nurses of Manitoba, 2017 MBCA 111, this “game of chicken” went all the way to the Manitoba Court of Appeal. Nurse Kuny was disciplined at work. The College investigated the concerns. Mr. Kuny attended a first interview but refused to participate in a second interview until given full particulars of the incidents and signed witness statements from the other participants in the events. Mr. Kuny was disciplined for failure to cooperate and, among other sanctions, was suspended for four months. His appeal was made on the basis that he did not have a duty to cooperate before being given the disclosure.
The Court dismissed the appeal. It concluded that “the duty of fairness at the investigation stage requires the disclosure of the substance of the individual allegations such that the member will be able to respond reasonably” and that this had been provided. The Court expressly determined that there was no obligation to provide the witness statements (which may not even have existed). Whether that degree of disclosure had been provided depends on the facts and circumstances of each case. One Justice expressed concern at the investigator’s proposal to provide additional particulars of each allegation during the interview itself (giving Mr. Kuny and his lawyer no time to prepare to answer the resulting questions), but concluded that no unfairness resulted because Mr. Kuny was well aware of the concerns from his own employer’s disciplinary process.
Interim Order Stayed
by Bernie LeBlanc
December 11, 2017
Courts tend to be quite deferential to regulators when reviewing interim orders made to protect the public pending discipline. However, such an order was set aside in Rohringer v. Royal College of Dental Surgeons of Ontario, 2017 ONSC 6656. Dr. Rohringer acknowledged performing a sexual act in front of under-aged women while in Florida. He was charged with a crime. The regulator subsequently learned of the charges and conducted an investigation. While it appeared that Dr. Rohringer’s colleagues were quite supportive of him, some employees identified some lesser concerns: (e.g., inappropriate sexual jokes, kissing an employee). There was also an old complaint of an inappropriate sexual relationship with another employee that had been dealt with informally. Dr. Rohringer had practised for 32 years without discipline.
The panel for the regulator suspended Dr. Rohringer’s registration pending investigation and discipline expressing concern that he lacked control and judgment to practise safely.
After the initial decision was made, Dr. Rohringer submitted an expert report expressing the opinion that he did not pose a risk to patients. Dr. Rohringer also offered to be subject to a term, condition and limitation that he have a registered dental hygienist present for all patient interactions. The panel did not vary its order. No reasons were given for this decision.
The Court concluded that the panel had not been fair when it failed to give reasons on the request to vary its earlier decision. The Court was also concerned that some of the language used by the panel in the initial decision suggested that the wrong criteria may have been applied. The panel used some language suggesting that a mere risk or possibility of harm was sufficient, rather than consistently stating that an order should be made only if there was a likelihood of harm to patients. The Court also said that there needed to be evidence (not speculation) to support the making of an interim order. The Court also felt that the old complaint, referred to by the panel, was irrelevant. The Court was concerned that the panel had not indicated that it had considered a less restrictive order (i.e., monitoring by another regulated professional) rather than a suspension.
It is too early to tell whether this decision reflects the particular facts of this case or the start of a trend for courts to offer less deference to interim orders made by regulators.
Regulators Cannot Easily Resolve Personal Conflicts between Colleagues
by Julie Maciura
December 8, 2017
Dr. Al-Ghamdi, a physician, had difficulties with some of the nurses with whom he worked. He made complaints against four of them to their regulatory body, the College and Association of Registered Nurses of Alberta (CARNA). The Court summarized the concerns as follows:
Dr. Al-Ghamdi’s affidavit affirms that he complained to CARNA about the actions of two nurses. In the affidavit, he alleges that one of these nurses acted outside her scope of practice, blackmailed him “by informing that [he] had reported her to CARNA, and that her staff created a hostile workplace for him.” He accuses a second nurse of blocking his patient from access to surgery, of being evasive and abusive, of being a difficult person and a friend of the first nurse he had reported to CARNA. He further alleges that this nurse hid equipment so that there was a delay in his patient’s surgery. He then alleges that these two nurses accused him of falsely threatening the second nurse, and then used their connections and authority to influence other staff to write a petition saying they would not work with him.
Dr. Al-Ghamdi’s affidavit then names a third nurse, a close friend of the first nurse and “a notorious person,” as the person who was behind the petition. He then accuses a fourth nurse of telling the mother of a child patient that the child’s surgery would not happen unless she changed surgeons.
The complaints were all investigated and dismissed. Dr. Al-Ghamdi sought judicial review on numerous grounds related to procedure. In Al-Ghamdi v College and Association of Registered Nurses of Alberta, 2017 ABQB 685, the Court dismissed all of his concerns. It found that the regulator did not have to interview all of the witnesses proposed by a complainant. It also was puzzled by Dr. Al-Ghamdi’s assertions that the regulator should not rely on information provided by third parties. The Court did not accept that complainants have a right to access the complete investigator’s report of the investigation. It also rejected bald allegations of bias against College staff. The Court went on to accept the regulator’s request that Dr. Al-Ghamdi be declared a vexatious litigant. The decision also dealt with a number of additional claims against other parties as well.
Avoiding Judicial Review Application Delays
by Erica Richler
December 5, 2017
Regulators have seen this scenario many times. A practitioner is referred to discipline. The practitioner brings an application for judicial review to challenge the referral and requests that the hearing be delayed until the application is determined. The resulting delay is usually years rather than months. In Foulds v. Justice of the Peace Review Council, 2017 ONSC 5807, Justice of the Peace Foulds was referred to a misconduct hearing for allegedly trying to interfere with a criminal proceeding involving the former boyfriend of Mr. Foulds’ then girlfriend. Mr. Foulds filed an application for judicial review.
Rather than awaiting its outcome, the tribunal scheduled the misconduct hearing. Mr. Foulds brought a motion to stay the hearing until the judicial review application was heard. The regulator brought a cross-motion to dismiss the judicial review application as premature. Mr. Foulds disputed the ability of a single motions judge to dismiss the application for prematurity.
The Court held that there is now a line of cases permitting the dismissal by a single motions judge of an application for judicial review on the basis of prematurity in clear cases. The Court held that this was a clear case where all of Mr. Foulds’ concerns could be brought to the tribunal hearing the misconduct case. The Court also noted that Mr. Foulds would have an opportunity to challenge the final decision of the tribunal by way of judicial review. The Court dismissed the application for judicial review.
Many regulators are hesitant to proceed with their hearings in the face of a judicial review application for fear of demonstrating disrespect to the Court. In this case the Court took no offence.
Summarizing Disciplinary Decisions
by Bernie LeBlanc
November 28, 2017
As regulators summarize complaints and discipline decisions for publication, practitioners often dispute the synopsis. This issue arose in an earlier version of Bill 87 where the practitioner’s right to correct errors in such summaries was greatly reduced in the final version of the Bill. In Faminoff v. The Law Society of British Columbia, 2017 BCCA 373 the practitioner tried to do something about it. At his discipline hearing, he was found to have backdated documents in an attempt to mislead the regulator and received a two-month suspension. On an appeal of the sanction he tendered fresh evidence on the wording of the regulator’s published summary of the decision. The practitioner argued it was unbalanced. While technically accurate and while the entire decision was linked to the summary, the summary “did not state that his actions did not harm his clients or that he had not personally gained from his misconduct”. In fact, when requested, the regulator published an addendum to the summary stating this. The practitioner indicated that he was the subject of significant adverse internet comment. As a result, he argued, his suspension should be reduced because of what he had already suffered.
The Court upheld the appeal decision that the proffered fresh evidence would not have altered the order. In fact, the practitioner’s argument reflected a lack of appreciation of the seriousness of the finding made against him.
The Court also rejected the practitioner’s argument that the hearing panel had acted improperly by summarizing the practitioner’s prior history which included details of a matter that the regulator had chosen not to publish at the time.
This decision provides support for regulators wishing to be transparent in their processes by providing accessible and complete information to the public. However, practitioner complaints about the fairness of decision summaries are likely not going to go away.
Judicial Review of Procedural Fairness
by Julie Maciura
November 21, 2017
For a number of years now the Courts have asserted that it will review most decisions of regulators on the basis of the reasonableness, rather than the correctness, of the decision. One exception is that no deference is given to the issue of whether the regulator acted with procedural fairness. Either the procedure was fair or it was not. In Brooks v. Ontario Racing Commission, 2017 ONCA 833, Ontario’s highest court held that the adequacy of the reasons for decision of a regulator was not a matter of procedural fairness and should be evaluated on a reasonableness basis. The Court re-affirmed that the adequacy of the reasons is not a “stand alone” ground of judicial review. In this case the Court found that the reasons provided adequately explained the conclusion that Mr. Brooks had permitted his brother to be involved in his practice despite the brother’s suspension by the regulator. The Court specifically held that “reasons need not reference every piece of contradictory evidence”.
The Court also held that the notice provided by the regulator was adequate. At least where the allegations relate to ongoing conduct, alleging that the conduct occurred over a period of time was sufficient. Similarly, an allegation that the practitioner “surreptitiously permitted [his brother] to participate in their racing enterprise when he was not authorized to do so” permitted a finding of “fraud”.
The Court also held that the tribunal member was permitted to rely on s. 4.3 of the Statutory Powers Procedure Act to continue to act when their term of office ended on the basis that the hearing “commenced” with preliminary motions.
Liability of Independent Legal Counsel
by Erica Richler
November 17, 2017
The Alberta Court of Appeal indicates that it is almost impossible to find independent legal counsel (ILC) in discipline matters liable for malicious prosecution. In Clark v Hunka, 2017 ABCA 346, an accountant facing discipline objected to ILC because she was not truly independent. She prosecuted other cases at discipline before the same tribunal. The tribunal accepted that there was an appearance of bias created and directed a new hearing before a different panel with different ILC. Eventually, on appeal, the accountant had the proceedings stayed. The accountant sued ILC for malicious prosecution.
The Court dismissed the action as having no chance of success on two bases. First, an essential element of the tort of malicious prosecution is that the person initiated (or continued) the initial legal proceedings. ILC, as an advisor to the tribunal, does not have that role. This element could not be met.
Second, no particulars of malice against ILC were alleged. The Court held that “malice requires a willful and intentional effort on behalf of prosecutors to abuse or distort their proper role within the disciplinary system”. The Court said that “malice requires more than incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence or even gross negligence”. A failure to appreciate an appearance of bias until it was raised does not constitute malice. In addition, malice would require actual bias, not an appearance of bias.
This second basis for the Court’s findings should be of assistance to prosecutors and tribunal members as well.
by Rebecca Durcan
November 14, 2017
The fascinating case of Registrar, Real Estate and Business Brokers Act v. Stolberg, 2017 ONSC 5904 provides guidance on the challenges of regulating dishonesty by practitioners. Mr. Stolberg was a real estate salesperson who was caught on camera stealing small objects and money from a piggy bank when inspecting a home by himself. The regulator proposed to revoke his registration, however, the Licence Appeal Tribunal replaced the revocation with terms and conditions (e.g., only visiting a property in the presence of a client or colleague, keeping a written log of all of his visits to properties). The Divisional Court found the Tribunal’s decision to be unreasonable and returned the matter to the appeal Tribunal for a new hearing. The Court had three concerns about how the Tribunal dealt with the issue of dishonesty.
The Court was concerned that the Tribunal relied on the expert opinion of Mr. Stolberg’s social worker as to the reasons for the conduct (related to depression and cognitive distortions) and his prognosis for future similar behaviour. The Court indicated that the Tribunal should not have done so after holding that the social worker was not qualified to provide the opinion. The Court held that even though there was no objection to the consideration of the expert report, the Tribunal had an ongoing gatekeeper role to consider and rely only on expert opinions that the person was qualified to give. The Tribunal also had a duty to critically evaluate the opinion (e.g., accepting that there had been no further thefts even though this statement could only be based on Mr. Stolberg’s own assertions).
Interestingly, the Court assumed that the distinction between the notice requirements for independent experts and provider experts, discussed in the civil case of Westerhof v. Gee Estate, 2015 ONCA 206, applied.
The Court was also concerned that the Tribunal did not view the video of the theft. The Court found that watching the fifteen minute video provided valuable insights into the nature, extent and intrusiveness of the dishonesty.
The Court was also troubled by the proposed terms and conditions and found them to be unreasonable. They imposed a monitoring duty on persons who would be unaware of their role (i.e., clients and colleagues) and who would not be present with the practitioner throughout the entire property visit. In addition, the terms and conditions depended on the honesty of the practitioner for their effectiveness, which is the very thing that required monitoring.
Legislating Professional Conduct
by Bernie LeBlanc
November 10, 2017
In recent weeks there have been three separate initiatives by Ontario’s politicians to address conflicts of interest. Bill 160 would require drug manufacturers and makers of drug devices to disclose for publication all benefits conferred to health providers, such as physicians. Bill 165 would prohibit lawyers from referring a client to another lawyer for a fee (something that many other professions do not permit). Bill 166 would severely limit the ability for a real estate professional to act on both sides of a real estate transaction.
Two of those initiatives are government Bills (Bill 160 and Bill 166) which begs the question as to why the government is addressing these issues through legislation rather than working with the regulator of the respective professions? In all likelihood the regulators of the medical and real estate professions would have cooperated with the change of their professional misconduct / code of ethics provisions if requested by the government. Regardless of whether the reasons relates to a desire for publicity or a lack of confidence in the regulators, this recent trend is not good news for regulators.
The Rationale for Calling Expert Evidence in Standards Cases
by Erica Richler
November 7, 2017
Courts have said for some time that in standards of practice cases the regulator generally needs to call expert evidence. In Hanif v College of Veterinarians of Ontario, 2017 ONSC 497 the Divisional Court explained why. The case involved the treatment of animals. Dr. Hanif objected to the College calling an expert witness on the very issue before the hearing panel of whether the standards of practice were met. The Court said that not only was such expert evidence admissible, it was expected for the following reasons:
Expert evidence is generally required in order to establish the relevant standard of practice of the profession and is important evidence helpful to the adjudicator in making findings in relation thereto. The Discipline Committee panel in most cases would be in error in finding a failure to maintain a standard of the profession in the absence of expert opinion as to that standard. In addition, just because an expert offers an opinion on whether the standard was breached does not require the Discipline Committee panel to accept it. It will make its own determination on that central issue.
Among the several reasons for this requirement is the fact that there may be lay persons on the panel who do not have the requisite intimate knowledge or understanding of the professional practice issues. In many cases even the professional members on a panel may lack deep understanding of the particular area of specialization involved and the standards that prevail within it.
Further, it is vital that the person who is the subject of a charge of having failed to maintain the standard of practice be afforded an opportunity to hear and challenge such expert opinion in an open form, rather than be made subject to discipline and sanction as a result of a closed-door discussion influenced only by members of the profession who sit on the discipline panel.
In the end, I agree that it is the function of the panel to decide whether the expert’s opinion will be assigned weight and whether the impugned conduct qualifies as professional misconduct. In my view, however, there is no support in this record for a conclusion that the Discipline Committee panel’s function in this regard was improperly usurped by the expert.
The Court also rejected a submission that the prosecutor had acted improperly by telling witnesses that they had a choice as to whether to speak with representatives of the member in advance of the hearing to discuss their possible evidence. It also dismissed concerns about an appearance of bias in having the President of the Council sit on the panel where a significant costs award was under consideration. The Court did reverse one aspect of the decision on the basis that it was unsafe to conclude that a cat had been abused where the complainant was the only witness, the complainant stated that she reported the incident to another veterinarian, that other veterinarian denied receiving such a report and the panel found the other veterinarian to be credible.
Caution and Criticisms Letter
by Julie Maciura
October 31, 2017
In Maroofi v College of Physicians and Surgeons of B.C., 2017 BCSC 1558, a physician received a letter of caution from the Inquiry Committee of the College criticizing some of his conduct (including failing to carry professional liability protection and engaging in behaviour that some viewed as harassment). Dr. Maroofi sought judicial review of that decision. The Court concluded that judicial review was not available because no formal findings had been made, the decision had no impact on Dr. Maroofi’s legal rights and the decision was not publicly available. In addition the Court concluded, for similar reasons, that the decision was moot:
Even if the Inquiry Committee Disposition could be found to be amenable to judicial review, which I have determined it is not, the College submits that it is a decision that did not impact Dr. Maroofi’s right to practice medicine, did not make findings of fact binding on anyone, did not impose limits or conditions on Dr. Maroofi’s practice of medicine, did not impose formal disciplinary measures and did not affect his entry on the College’s register. As a result, this application for judicial review, no matter what its result, would not alter Dr. Maroofi’s right to practice medicine. In such circumstances, the College says his application is moot because any resolution to the controversy he raises will not affect his rights.
The Court also found that the decision was reasonable in the circumstances given the evidence that had been obtained even though Dr. Maroofi disputed most of it (other than the fact that he had not carried professional liability protection). Ontario Courts seem to be more open to reviewing complaints outcomes similar to the one in this case, perhaps because, among other things, some screening committee outcomes in Ontario now do get placed on the public register.
Intent Requirements for Professional Misconduct
by Erica Richler
October 24, 2017
It is an oversimplification to say that intent is not required to prove professional misconduct. Sometimes it is. The recent case of Law Society of Upper Canada v. Nguyen, 2017 ONSC 5431 demonstrates that this can be a tricky issue. A lawyer was found to have engaged in professional misconduct by failing to advise his clients (mortgage lenders) of material facts (relating to credits the purchasers received on closing). There was no dispute about those findings. The information was material and it was not disclosed. The lawyer’s intent was irrelevant. However, there was a dispute as to whether the lawyer had also participated in mortgage fraud.
The hearing tribunal found that the lawyer had not participated in fraud because he had made inquiries and satisfied himself that there were legitimate reasons for the credits. However, the appeal panel found that the hearing tribunal made a number of errors. In particular, whether the lawyer believed he was being dishonest was irrelevant. The majority of the Divisional Court agreed and a new hearing was required. The hearing tribunal should have asked whether there was a fraudulent transaction and if so, whether the lawyer was aware, willfully blind or reckless.
In a strong dissent, one judge concluded that where the allegation is participating in mortgage fraud, the regulator had to prove that the lawyer subjectively believed he was putting his clients at risk. According to the dissenting judge, there was no evidence of this level of intent and therefore the hearing tribunal’s decision should be reinstated.
The wording of the applicable definition of professional misconduct and the specific allegations are important in assessing the intent requirements for making a finding.
[Since posting this article, the decision has been appealed and the result is found at The Law Society of Upper Canada v. Nguyen, 2018 ONCA 709, http://canlii.ca/t/htqbc.]
Need for Regulators to Obtain All of the Important Evidence
by Rebecca Durcan
October 17, 2017
A regulator’s duty of disclosure applies only to the information it has. If a practitioner wishes to obtain evidence from a third party, it has to bring a motion for production. However, where the information is important to the case, the regulator takes a risk in not obtaining it themselves. In Kawula v Institute of Chartered Accountants of Saskatchewan, 2017 SKCA 70, an accountant was disciplined for not commenting, in her capacity as an auditor, on materially misleading financial statements. Throughout the proceedings Ms. Kawula attempted to obtain a copy of a report from another accounting firm which had looked into the issue. A number of participants, including the complainant and the tribunal, had prevented her from gaining access to it until well after she had been found guilty of professional misconduct. In fact a summary of the report, which later turned out not to have been fair and complete, had been admitted into evidence.
Ms. Kawula’s diligence paid off. She eventually obtained the report and persuaded the Court to receive it as fresh evidence. The Court found that it was relevant to the issues (primarily that Ms. Kawula had not been provided with all of the information when conducting her audit) and that it could have altered the outcome of the hearing. The Court directed a new hearing be held. The Court suggested that this result could have been avoided if the regulator had made more strenuous efforts to obtain the report earlier.
This is What Procedural Fairness for a Self-Represented Party Looks Like
by Bernie LeBlanc
October 10, 2017
In Challans v Timms-Fryer, 2017 ONSC 1300, the complainant was a party to the discipline hearing of a police officer. There already was a regulatory prosecutor and defence counsel for the officer. As such, the tribunal did not actively involve the complainant in the hearing. At the hearing the officer was found not guilty of the allegations. The Divisional Court found that the tribunal had failed to offer the complainant a fair hearing:
A minimum level of assistance, to ensure meaningful participation by the unrepresented public complainant, would have required the Hearing Officer to do the following, on the record:
- Confirm whether the public complainant was aware that he was entitled to be represented by legal counsel at the proceedings and whether he was waiving the right to legal representation.
- Explain the roles of the parties at the proceeding and the process that would be followed. This would include the right of each party, including the public complainant, to call witnesses, introduce evidence, object to evidence adduced, cross-examine witnesses, and make submissions on all motions and at the end of the hearing.
- Explain the role of the adjudicator in the proceedings, including his role in relation to the unrepresented public complainant.
- Confirm that the public complainant understands the process and his role in it.
- Ask the public complainant, at the appropriate time, if he would like to call any witnesses.
- Ask the public complainant, at the appropriate time, if he would like to question each of the witnesses of the prosecution and the defence.
- Ask the public complainant if he would like to make submissions on all motions and at the end of the hearing.
There was no obligation on the complainant to prove that this unfairness would have altered the outcome of the hearing. The Court also did not support the filing of affidavit evidence on what the complainant had been told off the record. The Court said:
There is a reason why hearings, such as the one here, are conducted “on the record”. It is to avoid disputes, later on, regarding what occurred before the tribunal or court, including when the proceeding is the subject of an appeal. It is to avoid the spectacle of warring affidavits being filed, as to what occurred outside of the formal proceedings, of the type that both Mr. Timms-Fryer, and the Amherstburg Police Service, attempted to file in this case. If any of the discussions occurred involving Mr. Timms-Fryer, as are alleged in these affidavits, then the contents of those discussions ought to have been repeated by counsel on the record, so that everyone had the opportunity to confirm, or refute, the contents of those discussions. None of that occurred in this case.
Alberta Affirms Ability of Regulators to Make Rules
by Erica Richler
October 2, 2017
Sobeys challenged the validity of the rules restricting the ability of pharmacies to offer inducements (i.e., loyalty points) to patients purchasing drugs. After Sobeys had an initial success in British Columbia, the B.C. Court of Appeal upheld the validity of the regulator’s rules. Sobeys persisted in Alberta and again had initial success in the lower courts. However, the Court of Appeal reversed that decision and upheld the authority of the regulator to make these rules: Alberta College of Pharmacists v Sobeys West Inc., 2017 ABCA 306.
Citing Green v Law Society of Manitoba, 2017 SCC 20, the Court of Appeal held that the standard of review for the validity of such rules was reasonableness, not correctness. The Court also said that applications for judicial review of the validity of a rule should generally be confined to the materials that were before the regulator when it made its decision.
The Court held that a rule by a regulator will rarely be seen to be outside of its authority to make. Only where the rule is “irrelevant”, “extraneous” or “completely unrelated” to the statutory purpose of the regulator would it be unauthorized. The Court also held that a rule will only be viewed as unreasonable if it is one that no reasonable regulator would make. This rule did not fall into that category.
by Rebecca Durcan
September 26, 2017
An occupational therapist was ordered by the Discipline Committee to successfully complete an ethics course; the requirement was made a term, condition and limitation on her certificate. As an incentive, her suspension would be reduced by one month if she successfully completed the course by a certain date. However, she failed the course “because her final essay contained a verbatim passage from a website without attribution….” She refused to re-take the course and was referred to discipline again (this was now her third time at discipline). At the subsequent hearing her conduct was found to be both relevant to the practice of the profession and disgraceful, dishonourable and unprofessional despite her assertion that the failure to attribute was inadvertent and her inability to take the course again was due to challenging personal circumstances. On appeal, the Divisional Court held that the Discipline Committee had made a reasonable finding: Arora v College of Occupational Therapists of Ontario, 2017 ONSC 1535. The Court also upheld a four month suspension finding that the possible reduction of the original suspension was indeed an incentive rather than a prior determination of the penalty she should serve for failing to successfully complete the course, (i.e., a future Discipline panel would still have discretion to determine what penalty she would serve for the failure). The Court gave deference to the costs order of $26,000 even though the College had not been successful at discipline in arguing that she should be revoked for ungovernability.
Significant Penalty for Borrowing Money from Clients
by Julie Maciura
September 21, 2017
In College of Physicians and Surgeons of Ontario v. Virani, 2017 ONSC 3445 a physician borrowed over $600,000 from two patients to make an investment. The investment turned out to be fraudulent and Dr. Virani lost the money borrowed from his patients and much of his own money. Dr. Virani became insolvent and the patients are still out most of their funds. Misconduct was admitted. The issue on appeal was whether an eight month suspension was excessive in the circumstances particularly given that other cases involving physicians borrowing money from patients resulted in a lesser sanction.
The Divisional Court upheld the order finding that there were numerous factors supporting a lengthy suspension including:
- The amount of funds borrowed from the patients was significant both in absolute terms and in terms of the impact upon their financial resources.
- The patients were vulnerable and Dr. Virani “manipulated for his personal gain” his ethnic and linguistic connection with the patients and the status that he enjoyed as a physician in the Iranian community.
- Virani was not candid with the patients or the College about the matter. For example, he issued NSF cheques to the patients and did not disclose the matter, initially, on his annual renewal forms with the College.
- Virani showed little remorse and made very little effort to offer restitution, instead relying on the insolvency laws to extinguish the debt.
The Divisional Court did not accept Dr. Virani’s arguments that there was little need for specific deterrence (as he had not been honest and his financial circumstances were even more limited now than before), that undue emphasis was placed on Dr. Virani’s ethnic background (as that had been considered only in terms of the degree of trust placed in him by the patients when asking for the loan) and of the proportionality of the order compared to other cases (as those other cases had fewer aggravating and more mitigating factors). The eight-month suspension was upheld.
Investigative Access to a Practitioner’s Electronic Devices
by Bernie LeBlanc
September 14, 2017
The Alberta Court of Appeal has reinforced a lower court ruling that, where relevant, a regulator can have access to a practitioner’s electronic devices even when they are partially used for personal purposes. In Law Society of Alberta v Sidhu, 2017 ABCA 224, the regulator began investigating Mr. Sidhu when media reported his arrest for allegedly bringing drugs to a client in jail. He was eventually convicted. Mr. Sidhu resisted attempts by the regulator to obtain full access to his telephone, laptop and other electronic devices on the basis that this amounted to an unreasonable, and quite intrusive, search and seizure. While the Court did not formally declare the enabling provision as being consistent with section 8 of the Canadian Charter of Rights and Freedoms (protecting against unreasonable search and seizure), it did state that the privacy expectations of members of regulated professions is significantly reduced. Ready access to information relevant to an investigation is necessary to protect the public. In addition, regulators often do have the authority to investigate a practitioner’s conduct in their private life where it reflects on their professional practice. Mr. Sidhu was found to have contributed to the problem by his own choices:
Moreover, it is important to emphasize that the appellant’s concern is of his own making. He has admittedly blended his business and personal life by using his cellphone and computers for both business and personal reasons, and by his further suggestion that he has allowed his friends to use those devices without regard for privilege and confidentiality concerns in doing so. That he now asserts an all-encompassing expectation of privacy when faced with a Law Society investigation is unreasonable and defeats the very objectives of the Act.
The Court found on the facts of the case that the regulator reasonably required access to the devices. The information appeared to be relevant even if the investigator had not formally stated that they had reasonable and probable grounds or a reasonable suspicion.
Mobility Provisions and Unauthorized Practice
by Rebecca Durcan
September 12, 2017
When obtaining a restraining order against the unauthorized practice of a profession, do mobility rights have to be taken into account? The answer is yes according to Law Society of British Columbia v Pyper, 2017 BCSC 1197. In that case, a former lawyer continued to practise law by becoming a paid director of two of his former corporate clients and appearing in court on behalf of those companies. The Court rejected the argument that the regulator’s alleged delay in processing Mr. Pyper’s application for reinstatement means it did not come to court with “clean hands”. Only in exceptional circumstances would a restraining order not be granted where the breach of the law was established.
However, the Court declined to grant a blanket order prohibiting Mr. Pyper from practising in British Columbia until his licence was reinstated. The Court said that if Mr. Pyper were to become a lawyer in another province and have the right to practise in British Columbia under the mobility provisions, he should be permitted to do so.
Practical Examination Appeals
by Julie Maciura
September 8, 2017
Appeals of practical (i.e., OSCE) examination results are always challenging. Invariably there are disputes as to the candidate’s right of access to examination materials and criteria for grading. The examination body must be fair, but also needs to preserve the integrity of the examination (which is expensive to develop) for future candidates. In addition, the procedural fairness requirements may be challenging to articulate as, at the end of the day, the decision is based on expert professional judgment.
While the brief reasons in Alizadeh v National Dental Examining Board of Canada, 2017 ONSC 3947 leave one wishing for more, they are still helpful. The Divisional Court indicated the following:
- Courts will show deference to the standards, established by the expert examination organization, for passing the examination.
- Courts will also show deference to the appeals process developed by the organization and held that:
- At least where credibility is not an issue, a paper hearing is fine; and
- Providing access to the examination materials with restrictions is sufficient. (Unfortunately, the restrictions in this case were not identified.)
- Reasons for the decision on appeal must be given, but they can be brief.
In this case, the Court found that “there is no basis for this Court to interfere with the clinical evaluation”.
Outside Reading by Tribunal Members
by Erica Richler
September 5, 2017
Tribunal members are frequently admonished not to conduct independent research related to cases they hear. They are to obtain all of their information from the hearing itself. In Harris v. Royal Newfoundland Constabulary Public Complaints Commission, 2017 CanLII 46340 (NL SCTD), the issue related to the police interactions with a young man with Asperger’s Syndrome. During the hearing, the adjudicator made statements indicating that he had done some reading on the condition. At one point, on cross-examination, the young man responded to a question by saying “Can I throw that microphone at your head?” The adjudicator declined to view the comment as a threat of violence towards counsel and appeared to ascribe it to the young man’s disability. On appeal, the officers asserted that the adjudicator had demonstrated an appearance of bias. The Court did not accept that argument. The Court indicated that bias arguments must be raised before the adjudicator and should not be raised for the first time on the appeal. Doing so respects the process, is more efficient and permits the adjudicator to put any relevant facts on the record. In addition, the Court did not find that any outside reading materially affected the conduct of the hearing or the findings of credibility. The detailed reasons of the adjudicator assisted the Court in making this determination.
Ongoing Duty to Ensure Expert Evidence is Impartial and Fair
by Rebecca Durcan
August 18, 2017
An adjudicator’s duty to ensure that expert witnesses give neutral and impartial testimony just got a bit more challenging. In Bruff-Murphy v. Gunawardena, 2017 ONCA 502, a civil case involving damages from an automobile accident, Ontario’s highest Court has given detailed guidance on the role of adjudicators. In that case, the defence expert interviewed the accident victim for approximately one hour and then spent ten to twelve hours reviewing her medical records and identifying a number of inconsistencies between those records and what the expert had been told. The accident victim was not given an opportunity to explain those apparent inconsistencies. The expert witness then provided a report that seemed to focus on the credibility of the accident victim much more than on her condition. There were also concerns that the expert witness was unfair in many of his comments about both the accident victim and the other practitioners who had seen her.
The Court indicated that, before allowing an expert to testify, the adjudicator should consider not only the technical admissibility (e.g., relevance of the opinion and expertise of the expert), but also whether the expert is neutral and impartial and whether the benefits of the expert opinion outweigh the possible damage to the hearing process. The Court found that the trial judge was incorrect in balancing these other threshold factors given the expert’s approach to the matter and that this was a jury trial where undue weight could be given to the expert’s opinion.
The most significant aspect of the case was the finding by the Court that the adjudicator had an ongoing duty to ensure that the above threshold criteria continued to be met. When the trial judge’s concerns about the impartiality and fairness of the expert witness were realized, the trial judge should have intervened by hearing submissions, giving direction to the witness during his testimony and / or by giving a clear warning to the jury on how to assess the expert’s evidence. Even though legal counsel did not raise the concern, the adjudicator had a duty to the integrity of the hearing process to intervene.
Presumably, courts will give more deference to regulatory committees who are not made up of lawyers or judges. However, the need to ensure that expert witnesses provide impartial and fair testimony is a consideration such tribunals must take into account.
Limits to the Good Faith Immunity for Regulators
by Bernie LeBlanc
August 14, 2017
Many lawsuits against regulators never make it to trial because the practitioner cannot demonstrate any basis to challenge the good faith of the regulator. In Fitzpatrick v Physiotherapy Alberta College, 2017 ABQB 453, a practitioner was able to pass this hurdle by asserting details of three types of alleged bad faith.
- The investigator allegedly told the practitioner that she was being investigated for paying kickbacks when this was not the basis of the complaint. The implication of the pleading is that the investigator was unduly suspicious and was trying to broaden the scope of the investigation.
- The Registrar allegedly gave consideration to the insurance industry’s concerns about improper billing by practitioners to take an aggressive approach to disciplining her, and then expanded the allegations to lesser, but more provable allegations, to justify the allegedly hasty initial referral to discipline.
- A member of the discipline panel allegedly had previously expressed an interest in purchasing the practitioner’s practice and then prior to the discipline decision being released, allegedly told a banker that the practitioner may now be ready to sell her practice.
The Court was clear that these assertions of bad faith were not established. The Court merely held that sufficient details were provided to permit the issues to go to trial for determination. The claims against many of the other participants in the discipline process were dismissed as there were no particulars suggesting they did anything but perform their duties.
‘Jordan’ Approach to Delay Not Applied to Delay in Discipline Cases
by Julie Maciura
August 9, 2017
In Law Society of Upper Canada v. Abbott, 2017 ONCA 525, the Ontario Court of Appeal has provided guidance on a number of important issues for regulators of professions.
The first issue addressed by the Court was how much deference administrative appeal tribunals should show to the first level tribunals making the original discipline decision. The Court said that administrative appeal tribunals, when reviewing lower level decisions, should show the same level of deference as the Courts do. For penalty decisions at least, the administrative appeal tribunal must find the lower tribunal’s decision to be unreasonable before it is entitled to interfere with it. In this particular scenario, past precedents had established that revocation was the presumptive penalty for knowingly participating in mortgage fraud, absent exceptional mitigating circumstances.
The appeal tribunal in this case had found exceptional mitigating circumstances existed in the delay of seven years between the initiation of the investigation and the beginning of the discipline hearing such as to allow them to overturn the first level decision. The Court disagreed, holding that the first level tribunal had fully considered: the delay; that mortgage fraud cases are difficult to investigate; that the misconduct was quite serious going to the very character of the practitioner; the risk to the public; and that there was no substantial prejudice shown to the practitioner by the delay. The Court found that the appeal tribunal did not establish the unreasonableness of the decision of the hearing tribunal and as a result the appeal tribunal had wrongly interfered with the hearing level decision.
The Court made an interesting comment about the fact that the practitioner had good character references and had not engaged in any misconduct since the original events:
With respect, these mitigating circumstances are quite generic, and in the context of an active prosecution, one would expect the member to be on his best behaviour or risk making things worse. As for the supportive reference letters, it is well to keep in mind the observations of Sir Thomas Bingham M.R. in Bolton, at para. 16:
It often happens that a solicitor appearing before the Tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. [Emphasis added.]
The Court of Appeal also said that in administrative law matters, the Court of Appeal does not show deference to the decisions of the Divisional Court.
Failing to ‘Speak with One Voice’ is Grounds for Removal
by Erica Richler
August 2, 2017
A fundamental governance principle is that governing Boards or Councils should speak with one voice. When a decision has been made, individual Board or Council members should not speak against it publicly. Rather, they should simply explain the decision and reasons why it was reached and not get into their personal disagreement with the decision. Otherwise the credibility of the organization and its effectiveness in implementing initiatives is compromised. Board or Council members with significant concerns about the decision should either resign or, in some circumstances, bring the matter back for reconsideration based on new information through proper channels.
This principle received judicial support in Béliveau v. Town of Sackville, 2017 NBCA 26. In that case, a member of a heritage Board disagreed with the permission to demolish an older church in the downtown core. He then advocated against the Board’s decision before a separate appeal tribunal, going so far as to file an affidavit. He was removed from the Board. His challenge to the removal on the basis that he was a whistle-blower acting in his personal capacity was not accepted by the courts.
No Need to Inquire into Language Proficiency of Legal Representatives
by Rebecca Durcan
July 25, 2017
After a discipline hearing imposing sanctions on a veterinarian, he appealed on the basis that he did not have a fair hearing because his paralegal representative was not proficient in English. In Aziz v College of Veterinarians of Ontario, 2017 ONSC 2746, the Divisional Court rejected the argument saying:
The Appellant has provided no jurisprudence to suggest that where counsel appears before a Tribunal or Court lacking in proficiency in one of the two official languages, that the Court or Tribunal has an obligation to enquire as to whether counsel requires the assistance of an interpreter. This, frankly, is a matter of common sense, as the Court and/or Tribunal is entitled to take judicial notice of the fact that a lawyer and/or paralegal licensee is obliged, pursuant to their governing statutes, to be proficient in one or other of the official languages.
The Court also dismissed the argument that the member was prejudiced by not having a formal witness list provided. There was no statutory requirement to provide a witness list and it was obvious from the notice of hearing that the person was a key College witness. Disclosure of what the witness would say had been provided. In any event, the panel accommodated the member by giving him time after the examination in chief to prepare for the cross-examination of the witness.
The Court also rejected the argument that findings under multiple heads of professional misconduct constituted double jeopardy. Each heading of misconduct had a separate basis for a finding.
The Court also upheld a four month suspension and terms and conditions for obstructing the investigation and for being convicted criminally for assaulting two of his female staff. The Court upheld this as reasonable as follows:
The findings of fact made by the Committee go directly to his suitability to practise veterinary medicine. They also call into question the public interest in ensuring that women, whether they be employees or members of the public, are adequately protected. The various issues that came before the Committee called into question the Appellant’s honesty, integrity, as well as his governability.
The Court also upheld a costs order at discipline of $94,000 in part because prosecuting counsel kept the member aware of the costs as they escalated, much of the length of the legal proceeding was attributed to the conduct of member’s counsel and because no persuasive evidence was tendered as to the inability of the member to pay the costs.
Penalty Precedents and Assignment of Panels
by Bernie LeBlanc
July 21, 2017
To use diplomatic language, the case of R. v. Gashikanyi, 2017 ABCA 194 is an example of frank and vigorous debate within an appeal panel. The issue was whether the sentence for sexual assault in a criminal case was appropriate. Each of the three Justices issued separate reasons.
One Justice made an impassioned case that precedents and established “starting points” constituted an unfair constraint on individual trial judges to establish the sentence that they think is fair. The Justice said: “A “precedent” may be nothing more than the product of the assignment of a like-minded three or five person panel to hear an appeal. Judges of a particular “doctrinal disposition” will set the precedent simply because the panel was “first at bat”.” The second Justice was supportive of this approach, but couched that support in terms of permitting Judges at sentencing hearings to distinguish precedents on the facts of their case. The third Justice, however, took exception to this approach to precedents, indicating that they provide useful guidance to subsequent courts. That Justice said: “that consistency, certainty, predictability and sound judicial administration are achieved with the adherence to precedent”.
While not an issue in this case, there was also spirited debate by the three Justices on whether assignments to appeal panels should be random. The first Justice raised the issue, stating:
The presence of individual discretion in a system of assignment poses a risk that some may think that panelists will be selected based on their perceived predispositions. [Citing: Robert Brown Jr. and Allison Herren Lee, “Neutral Assignment of Judges at the Court of Appeals” (2000) 78: 5 Tex. L. Rev. 1037 at 1103.] An appellate court that utilizes discretionary non-random methods to assign (or to replace an assigned judge) leaves open the potential for manipulation.
Neither of the other Justices agreed with this comment. The second Justice cited such considerations as expertise, workload, illness and appearance of bias would warrant the exercise of discretion by the Chief Justice, although random selection should still be the general rule. The third Justice interpreted the first Justice’s comments as being an attack on the impartiality of Judges generally and a baseless suggestion against the open-mindedness of the current assignment system in particular. This discussion has obvious implications for the assignment of panels by the chairs of committees of regulators.
Trying to Taint a Hearing Panel by Your Own Motion
by Julie Maciura
July 17, 2017
Can you bring a motion to a disciplinary tribunal and then later argue that they are biased because they presided over the motion? That strategy failed in Campkin v College of Social Workers of Alberta, 2017 ABQB 358. The College there alleged that Mr. Campkin should be disciplined for misleading his previous regulators in other jurisdictions. Mr. Campkin’s argument that the College had no jurisdiction to hear the allegations was unsuccessful before the hearing panel. He then brought an application asking a Court to set aside the hearing panel’s preliminary ruling. The Court declined to hear his application and sent the matter back to the panel for a hearing on the merits. The Court also declined to direct that a differently constituted panel hear the case on the merits, finding that there was no reasonable apprehension of bias caused simply because the panel had ruled against Mr. Campkin on his preliminary motion.
Role of the Complainant
by Erica Richler
July 13, 2017
What role should the complainant play in a regulator’s complaints and discipline process? One view is that the complainant merely provides information to the regulator and has no ongoing role. This view is expressed in the case of Tran v College of Physicians and Surgeons of Alberta, 2017 ABQB 337 where the Court said:
A person who complains to a professional regulatory body has the same interest as any member of the public: an interest in ensuring that members of the profession meet the standards set by the governing body. It is the role and the obligation of the professional regulator, not the complainant, to ensure that standard is met.
However, Ontario’s Regulated Health Professions Act, 1991 provides a more enhanced role. Under that Act as of May 30, 2017, complainants have the right to request the withdrawal of their complaint, participate in resolutions and appeal unsatisfactory decisions by the regulator. The Ontario Sexual Abuse Task Force recommended an even larger role for complainants including full party status at discipline hearings.
It is rare for there to be such divergent views on such a fundamental issue.
The Tran case also provides some guidance on the role of the screening committee in serious complaints with significant credibility issues. The Court said:
In my view, the record in this case demonstrates that the Applicant’s complaint was taken seriously and was subject to a proper investigation. The Committee was not required to refer the matter to a full hearing, notwithstanding a conflict between the Applicant’s statement and other evidence (the physician’s response and hospital records). The Committee was entitled to consider the information before it and determine that there was “insufficient or no evidence of unprofessional conduct.”
Practitioners Who Wear Two Hats
by Rebecca Durcan
July 10, 2017
Are practitioners subject to a regulator when they are acting in another capacity? This issue arose in A.C. Waring and Associates Inc v Institute of Chartered Accountants of Alberta, 2017 ABCA 152, where an accountant was facing an investigation for his actions when acting as a trustee in bankruptcy. Mr. Waring sought a declaration that the Institute could not investigate his conduct because he was not acting as an accountant and because of the protections in the federal Bankruptcy Act protecting trustees in bankruptcy. The Court dismissed this argument. It applied the case of Law Society of Alberta v Krieger, 2002 SCC 65 (dealing with the discipline of a lawyer acting as Crown Attorney) to hold that regulators could investigate and discipline members acting in another capacity, at least for bad faith conduct. The immunity in bankruptcy legislation was not intended to interfere with this regulatory role.
Reasons by a Complaints Screening Committee
by Bernie LeBlanc
July 6, 2017
It is not enough for a complaints screening committee to say that the complaint does not raise a significant concern of professional misconduct. The committee also needs to explain why this is so when choosing to give advice rather than refer the matter to discipline. In Harrison v Association of Professional Engineers of Ontario, 2017 ONSC 2569 the complaint was by a supplier whose shop drawings were rejected by the practitioner resulting in the assignment of the contract for a public project to another supplier. The complainant was concerned that the practitioner and the other supplier had a personal relationship that may have influenced the rejection of the shop drawings. While the Court found the committee’s reasons inadequate, it found a sufficient basis in the file to support its conclusion, particularly in the well-articulated letter from the respondent to the complainant. The Court warned the committee to ensure that, in future, its reasons provide justification of its decisions in an intelligible and transparent manner. The Court suggested that it obtain advice on its reasons in a legally appropriate manner from its legal counsel.
Is a Person Who Receives Episodic Services a Client?
by Julie Maciura
June 29, 2017
In a number of recent cases, regulators have found that practitioners have a professional relationship with people to whom they provide intermittent services unless the relationship is clearly terminated. This approach is necessary to protect the public from exploitative behaviour where there remains in the client a trust in the practitioner. Examples of exploitative conduct include lawyers borrowing money and health practitioners engaging in sexual behaviour. An example of the former is found in Weir v. Law Society of New Brunswick, 2017 NBCA 18. In assessing whether there was a professional relationship, the Court provides the following criteria:
I agree the central question to be answered is based on a reasonable person test: whether a reasonable person in the position of a party with knowledge of all the facts would reasonably form the belief that the lawyer was acting for a particular party. In addition, in Trillium [Trillium Motor World Ltd. v General Motors of Canada Limited, 2015 ONSC 3824], the judge held that it is not only the client’s knowledge of a relationship that matters; it is also relevant what the lawyer knew or ought to have known about the client’s expectations or thoughts about the existence of a relationship. There is also a burden on lawyers to show that their characterization of the relationship is correct, particularly where the retainer has not been reduced to writing.
A similar result occurred in Clokie v The Royal College of Dental Surgeons of Ontario, 2017 ONSC 2773. The Court upheld as reasonable the finding that a person receiving episodic care from the dentist was a patient even though no further appointments had been made and even though she had moved to Sweden for part of the time. The finding was supported by certain chart entries including references to future planned procedures and correspondence from the dentist to another practitioner referring to the person as a patient. The finding was critical in that case as it made the difference between no finding of sexual abuse and a finding of sexual abuse resulting in mandatory revocation.
Regulators would be wise to communicate these principles to their members.
by Erica Richler
June 26, 2017
Many regulators prohibit the use of testimonials because they may be inherently unverifiable and, thus, misleading. In addition, the process of gathering testimonials tests the propriety of the practitioner-client relationship. In Edmison v Health Professions Appeal and Review Board, 2017 ONSC 3664, a physician challenged a caution imposed for his clinic’s advertising that contained testimonials. He argued that the postings were not really testimonials because they did not say positive things about him personally, just about the procedure that the clinic performed. He argued that the provision had to be the interpreted as it was understood by the profession. He also argued that the complainant’s motivation in making the complaint should be taken into account. The Divisional Court rejected both arguments and upheld the reasonableness of the Committee’s conclusion. The Court said:
The testimonials in Focus’ advertising were not rendered in a vacuum. They were inextricably linked to Focus [the clinic co-owned by the physician] and its services. Viewed through the eyes of the public, a common sense inference would link the testimonials to Focus, and not merely laser eye surgery procedure in general.
The Court reinforced the point made recently in Green v. Law Society of Manitoba, 2017 SCC 20 that deference will be given to regulators when interpreting their own legislation.
Can the Sanctions Panel be Differently Constituted from the Findings Panel?
by Rebecca Durcan
June 19, 2017
Can the sanction (or order) in a discipline hearing be determined by a panel that is different from the panel that made the finding of misconduct? The Ontario Court of Appeal has concluded that this is a reasonable interpretation of the securities legislation and the Statutory Powers Procedure Act (“SPPA”). While acknowledging that there was certainly another reasonable interpretation, the Court concluded that this interpretation was open to the tribunal. The sanctions hearing could be viewed as a separate proceeding under the SPPA such that the composition of the panel could be different. In addition, there was no procedural unfairness in adopting this procedure as both parties could introduce all relevant evidence on the sanctioning hearing, including relevant transcripts, from the proceeding on the merits. The Court also acknowledged that this approach was helpful to tribunals with a small pool of panel members to draw from: Ontario Securities Commission v. MRS Sciences Inc., 2017 ONCA 279. It will be interesting to see if other regulators take a similar interpretation and whether the courts see this concept as applying to other regulatory statutes.
Charging Fees to Non-Members
by Bernie LeBlanc
June 15, 2017
In BSA Diagnostics Imaging Inc. v The College of Physicians and Surgeons of Ontario, 2017 ONSC 1950, the Divisional Court upheld the legal authority of a regulator to charge fees to non-members. In most situations (e.g., a fee for accessing information) the regulator can simply insist on payment of the fee before providing the service. However, in BSA, the College was, at the request of the provincial government, conducting an assessment of an independent health facility governed under a different statute. The Court determined that the two pieces of legislation worked together and that the by-law imposing the fee to the non-member for the assessment was valid. As a result the regulator was entitled to sue for the recovery of the fee in court. This decision may have turned on the wording of the particular legislative provisions.
A National Examination Board is Legal
by Julie Maciura
June 11, 2017
The brief reasons in Aljawhiri v Pharmacy Examining Board of Canada, 2017 ONSC 2609 belie its significance. A candidate failed four times for the national pharmacy examination. The rules did not permit a fifth sitting. The Divisional Court rejected the argument that a federal Act permitting a body to administer an entry-to-practice examination infringed on provincial legislative authority:
We do not agree that the Act creating the Pharmacy Examining Board of Canada was ultra vires Parliament because it does not purport to regulate the profession. The Act merely authorizes the Board to create and administer an examination for qualification of pharmacists across Canada which provincial licensing bodies may use if they wish to but are not obliged to.
The Court also dismissed the submission that the rule limiting additional attempts was a reviewable statutory decision:
We find that limiting the number of times a person can write the examination is nothing more than establishing the terms and conditions of the examination as s. 11(c) of the Act permits. It does not result in any regulation of the profession by restricting entry into the profession. It is the provincial licensing bodies that make those decisions. Accordingly the creation of the attempt limit is not ultra vires the statute.
Of course, it is not that such limits can never be challenged. Rather, they would have to be challenged within the registration process for the particular profession.
Collateral Attacks at the Human Rights Tribunal Disallowed
by Erica Richler
June 9, 2017
In Toronto Police Services Board v Briggs, 2017 ONSC 1591, the Divisional Court dealt with whether the Ontario Human Rights Tribunal could hear an allegation of racial profiling by the Toronto police. The police officer had stopped a young black man driving a vehicle and charged him for driving while suspended, for providing a forged document and for driving while not having insurance. The driver brought a motion under the Canadian Charter of Rights and Freedoms to exclude evidence on the basis that the traffic stop was based on racial profiling. The driver did not testify at that motion. The criminal court dismissed the application and the driver was convicted of two of the charges. The driver did not appeal, but he made a complaint to the Human Rights Tribunal about the police officer. The police officer challenged the human rights proceeding on the basis that it was a collateral attack on the court findings. The Tribunal concluded that there were different aspects to the racial profiling allegation that had not been addressed by the court and that it was appropriate for the human rights application to proceed.
In a detailed review of the criteria for determining whether the Tribunal can determine issues addressed in previous proceedings, the Divisional Court concluded that the human rights complaint was indeed a collateral attack on the court findings. The Court concluded that the Tribunal had not properly considered all of the relevant factors in determining whether it was appropriate to proceed with the human rights application. For example, the Court held that the Tribunal relied on policy considerations without an adequate evidentiary basis (e.g., that accused may feel pressure to testify), instead of focusing on the particular situation of the driver and the fairness of applying finality in this case.
There was also a preliminary issue as to whether the application to the Divisional Court was premature because it related to a preliminary ruling by the Tribunal before the actual hearing had been held. The Court indicated that an abuse of process argument of this sort fell within the rare exception where the Court would intervene in the midst of a pending hearing. Failing to do so would defeat the whole purpose of the abuse of process protection in that the police officer would be put through the very hearing that was, arguably, abusive. In addition, the court process would not cause delay to the Tribunal process because the Tribunal hearing was not scheduled for many months.
Bias by Association
by Rebecca Durcan
June 7, 2017
When is a panel member disqualified from hearing a matter because a colleague is affiliated with the practitioner facing discipline? This issue arose in Institute of Chartered Accountants of Newfoundland and Labrador v. Cole, 2017 CanLII 20403 (NL SCTD). The panel was hearing two complaints against a practitioner. The complainant in one matter was a colleague from the same large accounting firm as a panel member. The panel (as opposed to the panel member only) decided to disqualify itself from the one complaint – but not both. The Court upheld the tribunal’s decision. It concluded that the panel properly disqualified itself from hearing the first complaint because of the connection. The Court also concluded that the panel member was not disqualified on the second complaint simply because she was now aware that her colleague had made a complaint against the practitioner. This would not create a reasonable apprehension of bias.
The case also provides guidance on transitioning pending cases when the enabling legislation is replaced by a new statute.
Enough is Enough
by Bernie LeBlanc
May 30, 2017
Tribunals are cautious about refusing adjournment requests, particularly where there is no public risk in waiting to proceed later. In Broda v. Law Society of Alberta, 2017 ABCA 118, the practitioner had been removed from practice. He was appealing. However, he repeatedly failed to provide the required documents to the appeal tribunal. He was given a further adjournment that was peremptory (absolute) on him. After missing that deadline his appeal was dismissed. The Court upheld that decision, saying:
It seems to us that every courtesy was extended to the appellant. He had ample opportunity to make full answer and defence to the allegations that brought him before the Law Society of Alberta. The record is replete with cogent evidence of foot dragging on his part which was met with patient regard by the Appeal Panel to afford to the appellant multiple opportunities to put forward his evidence and submissions. Procedural unfairness is not made out. The principle of audi alteram partem was adhered to throughout the proceedings. The principles of fundamental justice were not infringed.
It is Professional Misconduct to Say: “I should shoot you”
by Julie Maciura
May 30, 2017
It is professional misconduct for a lawyer to say to a social worker that he should shoot her because she “takes away too many kids”. In Foo v. Law Society of British Columbia, 2017 BCCA 151, the lawyer, Mr. Foo, said that the comment was meant in jest and amounted to a flubbed joke. The tribunal disagreed and the Court upheld the finding and the resulting two-week suspension. The Court also rejected the argument that the finding encroached excessively into the lawyer’s freedom of speech, which does not protect threats of violence. The Court also rejected the view that the legislative provision authorizing discipline for a “marked departure” from that conduct the Law Society expects of lawyers was too vague. The Court found that a specialist tribunal was able to give meaning to this language.
An interesting collateral issue was whether the lawyer’s evidence that the comments were made in jest was in evidence before the tribunal. The Agreed Statement of Facts attached statements from Mr. Foo on the point, but offered them only as his statements and not for the truth of their contents. Mr. Foo did not testify or offer formal evidence. The Court held that Mr. Foo had not placed that evidence before the tribunal. It is helpful when an Agreed Statements of Facts is prepared to ensure that the evidentiary status of the information contained in them is clear.
Going Solo During Investigative Interviews
by Erica Richler
May 9, 2017
Can a person who is under investigation insist upon having someone with them during an interview? That was the issue raised in British Columbia (Securities Commission) v. Clozza, 2017 BCSC 419. Mr. Clozza wanted a director from his company present with him during his investigative interview. It just so happened that the director was a former employee of the regulator. The regulator declined to proceed with the colleague present and insisted that Mr. Clozza answer the questions on his own. Mr. Clozza refused, arguing that his colleague would act as his “counsel”.
The Court held that Mr. Clozza could not insist on having his colleague present. His colleague was not a lawyer and thus did not fit within the exception for having “counsel” present. Having the colleague present could compromise the confidentiality of the investigation. In addition, in the circumstances of this case, the colleague might be a potential witness or perhaps even a party in any subsequent proceedings. The Court ordered Mr. Clozza to attend the interview and answer questions without his colleague present.
This case does not address the issue of whether the regulator could permit a witness or subject of the investigation to have a “support person” present in the interview in appropriate circumstances.
Head in the Sand Strategy Fails Again
by Rebecca Durcan
May 3, 2017
In Morgan v Institute of Chartered Accountants of Ontario, 2017 ONSC 1466, the practitioner failed to attend a discipline hearing because he felt the process was “stacked against him”. When a finding and order were imposed, he did not appeal. He waited more than two years. Then, when the regulator eventually began to enforce the order he finally commenced an application for judicial review. The Divisional Court declined to hear the application because he waited so long and because he should have appealed the decision when it was made. It was unfair to the process for him to raise his defences for the first time on the application for judicial review.
Assistance in Writing Discipline Reasons
by Bernie LeBlanc
April 27, 2017
Some regulators are experimenting with using administrative staff to sit in on the deliberations of a discipline panel, to make notes and help prepare the reasons of the panel. This approach has not been fully considered by the courts yet. However, the acceptability of that practice has received some support in Redekop v. Okanagan Mainline Real Estate Board, 2017 BCSC 417. There, a real estate professional was disciplined for directly communicating with a party to a transaction who was represented by another agent. During both the initial hearing and the appeal, the tribunal was supported by a staff member who assisted with the preparing of the reasons and, in at least one case, sat with the tribunal during deliberations. The Court found that this did not breach the rules of natural justice so long as the staff person was neutral and did not participate in the deliberations.
This case should be read with some caution by Ontario regulators, however, not only because it was decided in another province, but because the disciplinary tribunal was part of a voluntary rather than a statutory regulator. The Court indicated that the degree of scrutiny was less for voluntary associations; for example, the Court condoned the practice of not disclosing the entire investigation results to the practitioner for the purpose of making submissions about what action the regulator should or should not take.
Holding Out and Title Protection
by Julie Maciura
April 24, 2017
It seems that many people try to skirt the rules about protected titles and holding out in the accounting field. This may be because it is often acceptable to practise accounting, so long as one does not misrepresent one’s status or qualifications. In Organization of Chartered Professional Accountants of British Columbia v. Nordine, 2017 BCCA 103, the regulator tried to obtain an injunction against accountants who called themselves “Professional Business Accountants” and use the designation “PBA”. The title “Professional Accountant” and designation “PA” were protected. Before the lower court the regulator was unsuccessful because the provision did not explicitly protect against the use of variations of the protected title and designation. However, the Court of Appeal reversed that decision and imposed the injunction on the basis that this variation of the protected title amounted to “holding out” as a regulated practitioner. The Court also held that it would be rare for there to be unfairness in a court requiring compliance with a public interest statute.
Expanding the Scope of Interim Orders
by Erica Richler
April 18, 2017
In Morzaria v. College of Physicians and Surgeons of Ontario, 2017 ONSC 1940, a pediatrician faced serious allegations of isolating and sexually abusing a 13 year-old patient. While criminal charges were pending, the College negotiated an undertaking with Dr. Morzaria to ensure that a monitor was present when patients under the age of 16 were seen. The criminal charges were later stayed on the basis of delay and the Inquiries, Complaints and Reports Committee (ICRC) completed its investigation, referred the matter to discipline and imposed an interim order. The interim order went further than the original undertaking in two material respects: the monitor could not have other duties while Dr. Morzaria was seeing a patient, and patients had to be expressly informed in advance of the monitoring requirement. Dr. Morzaria challenged the increased measures, indicating that nothing had changed since the undertaking was in place. The evidence was that he fully complied with the undertaking for years. The majority of the Divisional Court gave deference to the ICRC, holding that the undertaking did not prevent the ICRC from re-evaluating the degree of risk particularly since there had been an earlier allegation of a similar nature.
However, one judge issued a strong dissent expressing concern that there was no evidence (let alone no new evidence) to justify the increased, intrusive requirements. The dissenting judge also expressed concerns that Dr. Morzaria was not really told why the ICRC was more concerned now than in the past, that there was a material delay by the College in investigating and referring the case, and that the previous allegation was quite old and never established.
Even though the interim order was upheld by the majority, regulators should be mindful of the concerns raised by the dissenting judge when crafting interim orders and managing investigations and referrals in which interim orders are made.
It should be noted that a recent Newfoundland and Labrador case dealt with a similar issue. In Wentzell v. Law Society of Newfoundland and Labrador, 2017 CanLII 15042 (NL SCTD), a lawyer had given a number of undertakings to address concerns about alcohol impairment. However, a screening committee then imposed a more onerous interim suspension of his ability to practise on the basis of new concerns about his conduct. The Court set that suspension aside on the basis that the practitioner had not been alerted to the new concerns and had not been given an opportunity to respond to them before the decision was made.
Getting the Last Word
by Bernie LeBlanc
April 11, 2017
Even when ordering remediation, a committee has to provide procedural fairness. In Zaki v Ontario College of Physicians and Surgeons, 2017 ONSC 1613, the Inquiries, Complaints and Reports Committee (ICRC) ordered a Specified Continuing Education and Remediation Program (SCERP) to enhance record keeping (particularly legibility) followed by an assessment. The assessment identified continuing gaps in record keeping, but also noted a number of concerns about the actual treatment provided. The ICRC provided the assessment report to Dr. Zaki, who made a full response. Dr. Zaki’s response was forwarded to the assessor, who replied. The reply accepted the validity of some of Dr. Zaki’s submissions, but disagreed with his other points. Dr. Zaki was not given a copy of the assessor’s reply and another SCERP relating to both record keeping and substantive practice was ordered. The Divisional Court found the failure to provide the reply to Dr. Zaki for comments to be procedurally unfair:
First, procedural fairness must not only be accorded to a party, in fact, it must also be seen to have been accorded to the party. Providing information to the ICRC, upon which it relied in reaching its decision, that was not provided to the applicant, is neither procedurally fair in fact nor in appearance. The adage “no harm, no foul” is not a principle upon which the respondent can rely to overcome a fundamental failure to ensure that the applicant knew the case that he had to meet. The suggestion, that the second report was of no consequence, is a conclusion based on [sheer] speculation as to what the applicant might have done, including what submissions the applicant might have advanced, if the second report had been disclosed.
The Court went on to comment on the SCERP process. The Court said that requiring an assessment as part of the SCERP was not only permissible, but also necessary to ensure that the remediation was effective. However, the assessment should be carefully tailored so that it is rationally connected to the original concern. Where that assessment identified new concerns, it was appropriate for the College to consider them and, in appropriate cases, order a second SCERP with another assessment. However, judicial review remained available should the process descend into an apparently endless cycle of remediation and assessments.
Creative Defences to Sexual Abuse Allegations Fail
by Rebecca Durcan
April 5, 2017
After numerous decisions by the Ontario Court of Appeal holding that the mandatory revocation provisions for sexual abuse are valid, one has to credit defence counsel with ingenuity in raising interesting new arguments in Sliwin v College of Physicians and Surgeons, 2017 ONSC 1947. Dr. Sliwin was a plastic surgeon. From time to time over the course of many years, he employed and had a sexual relationship with a woman. During this period the surgeon performed numerous cosmetic procedures on her without charge. He also provided other medical services. Dr. Sliwin appealed the finding of sexual abuse and the mandatory revocation on a number of grounds.
Dr. Sliwin argued that he should be excused from sexual abuse (although not a boundary violation) on the ground of officially induced error. He argued that his misinterpretation of various College publications on the topic of sexual abuse (e.g., statements permitting episodic minor procedures) lead him to believe that his conduct did not constitute sexual abuse. The Divisional Court held it was reasonable for the Discipline Committee to reject that argument on the basis that Dr. Sliwin “knew that what he was doing was wrong, that the advice from the College was not erroneous, and that he did not reasonably rely on erroneous advice”.
Dr. Sliwin also submitted that there was an abuse of process because the College had, in various communications with his defence counsel, tried to dissuade them from raising Charter of Rights issues or to represent him. While the Court was concerned about some of those interventions, it found that they did not compromise Dr. Sliwin’s ability to have a fair hearing before an impartial tribunal as the Committee was not involved. Dr. Sliwin also argued that the failure of the College to record and disclose, at least initially, that the complainant was concerned that a “sexual abuse” allegation had been made and that she wanted to withdraw her complaint was also an abuse of process. The Court did not find that this information was relevant to the case as it was the College that framed the prosecution once the complaint was made.
Dr. Sliwin also argued that the complainant was not his patient when they had sex. While all agreed that the sexual activity had to be concurrent with the Doctor-patient relationship, the Court deferred to the tribunal’s findings that the ongoing nature of the services resulted in the professional relationship encompassing at least some of the sexual activity.
The Divisional Court also rejected Dr. Sliwin’s argument that the prior Court of Appeal decisions could be disregarded because of subsequent spousal exemption amendments to the enabling statute, the Regulated Health Professions Act. The Court found that these narrow amendments did not significantly change the law and that, in any event, this sexual relationship was clearly not a spousal relationship. The Court also held that it was bound by the prior Court of Appeal decisions that the right to liberty protections found in section 7 of the Charter of Rights did not apply to Dr. Sliwin’s sexual freedom or his “right” to practise his profession.
The Court did, however, set aside the part of the tribunal’s order requiring Dr. Sliwin to post security for costs for therapy and counselling for the complainant. The Court concluded that on the facts of this case there was no reasonable prospect that the complainant would request such counselling and therapy.
Parity is not Dead
by Julie Maciura
March 27, 2017
In College of Physicians and Surgeons of Ontario v Peirovy, 2017 ONSC 136, the Divisional Court refused to apply the “parity principle” where the range of sanctions from previous cases that counsel relied on was found by the Court to be clearly “unfit” such that those cases ought not to be followed. However, even in that decision the Court said that consistency in decision-making was important. A recent Alberta Court of Appeal case (which, by the way, did not cite Peirovy) reinforces that consistency in sanctioning is generally desirable.
In Constable A v Edmonton (Police Service), 2017 ABCA 38, a fifteen-year constable working for the Edmonton police had an unblemished record. During an investigation, she recruited a confidential informant for the first time in her career, but did not follow her employer’s protocol. To protect her informant’s identity she swore a false Information to obtain a search warrant and then maintained the falsehoods throughout the process. Eventually she told the Crown Attorney the truth, which resulted in her discipline. The discipline tribunals focused on the falsehoods and dismissed her. On judicial review the main issue was whether the dismissal was justified.
The Court held that, while dismissal was an option, it was not the only reasonable outcome for persistent deceit. It summarized the considerations that should be taken into account as follows:
…fitness of sanction depends on numerous factors, including: the seriousness of the misconduct; the moral culpability of the constable; the existence of remorse and recognition of responsibility; the resulting consequences for the public and the administration of law; the need for deterrence, denunciation or rehabilitation; and the overall fitness of the constable for police service. A fit sanction is also proportional; it reflects the moral blameworthiness of the person being sanctioned and the gravity of the misconduct.
The Court found that the tribunal had erred by not considering the parity principle especially where there were a number of decisions involving persistent deceit that did not result in dismissal. The Court said:
At issue here is the application of parity – one of the fundamental normative values that must inform every just sanctioning exercise. Those who are similarly situated should be treated similarly. No system of discipline can be fair in the absence of consideration of parity. A system that accepts that sentencing is completely individualized overlooks the importance of confidence and respect in the system that is fostered by a consistent rather than an arbitrary approach to sanction. In other words, precedents matter. Previous decisions, particularly well-reasoned decisions from the same tribunal, provide important guide posts when determining the gravity of conduct and the degree of responsibility of the officer, and in ensuring that the disciplinary system is applied fairly and not arbitrarily.
Given some of the mitigating factors in the case (e.g., exemplary record, motivation was to protect the confidential informant, not protect herself), the Court returned the matter for further consideration of an appropriate order. So the parity principle is still alive, however, it is important to remember that the Court in Peirovy recognized that the type of misconduct at issue there (sexual assault) has come to be viewed differently now by society and so what might have been a fitting precedent in the past was now in fact “unfit”. It is not clear that society’s view of false testimony by a police officer has really changed over time.
Deference to Discretion in Interim Suspensions
by Erica Richler
March 20, 2017
Interim orders have become increasingly important for protecting the public when dealing with disciplinary matters. Bill 87 is poised to permit Ontario health regulators to impose them during the investigative stage (rather than only after allegations have been referred to discipline). That is already the case for lawyers in Ontario, which presented three distinct issues in the interesting case of Marusic v Law Society of Upper Canada, 2017 ONSC 663. Ms. Marusic was a professional and romantic partner with another lawyer who was suspended for serious misconduct including misappropriating trust funds. When her involvement in the transactions was brought under scrutiny, the Law Society issued an interim order restricting her access to trust funds. A stricter order was possibly avoided because she had broken off her personal relationship with the suspended partner. Subsequently new concerns were raised about Ms. Marusic allowing her former partner to participate in the practice of law and charge an unreasonable fee to a client. Apparently the romantic relationship had also been re-established. The Law Society varied the interim order to suspend her entirely from the practice of law. In rejecting her challenge to that suspension, the Divisional Court made the following points:
- The Law Society properly considered her personal relationship with the suspended lawyer because the first interim order, restricting her access to trust funds, was made in part on the basis of her submission that “she was a victim of [her partner’s] deceitful ways, but had ended her personal relationship with him”.
- The Law Society properly imposed a total suspension, rather than just imposing restrictions, given that the misconduct concerns under investigation now stretched beyond one discrete area of practice (i.e., more than mishandling trust funds was now in issue).
- The Law Society gave adequate consideration to the concern that an interim order might be unfair because the investigation would be long and protracted. The tribunal gave reasons addressing that concern and provided a mechanism to revisit the order if the investigation was not completed in a timely manner.
The Use of Precedents when Imposing Disciplinary Orders (Part 2)
by Rebecca Durcan
March 13, 2017
In another rare example of a College successfully appealing a decision of its own Discipline Committee, the College of Physicians and Surgeons of Ontario has had a sexual abuse matter returned for re-consideration. In College of Physicians and Surgeons of Ontario v Peirovy, 2017 ONSC 136, the physician was found to have inappropriately touched the breasts of four patients under the “pretense” of a medical examination. The Court agreed with the College that a six month suspension was not fit and proper. The discussion ought to be whether the sanction should be revocation or a suspension for years, not months.
The Court said this about the use of past disciplinary precedents (portions of which have been quoted frequently by the media):
The main justification given by the Committee and the Respondent for the penalty imposed is that it is in line with similar penalties that have been imposed in similar cases…. The facts of these cases are base. It is depressing to review them. They do little to encourage confidence in the Committee’s approach to eradicating sexual abuse in the profession. Consistency in the imposition of sentence is a proper consideration, but a litany of clearly unfit penalties does not justify the penalty imposed in the present case. The penalty imposed in the present case was clearly unfit. It was inadequate to protect the public and vindicate the integrity of the profession.
Public confidence in the profession is not a “shifting standard.” Rather I think that community tolerance for sexual abuse by doctors has lessened. The public’s confidence in the medical profession demands more from the disciplinary process than recent sexual abuse discipline cases suggest.
The Use of Precedents when Imposing Disciplinary Orders (Part 1)
by Bernie LeBlanc
March 7, 2017
The Divisional Court upheld a finding of sexual abuse and a resulting revocation of registration in College of Physicians and Surgeons of Ontario v. McIntyre, 2017 ONSC 116. While there were acknowledged serious concerns about the disrespect of patients and serious boundary crossings in respect of two patients, the only actual sexual abuse finding related to a single extended and passionate kiss.
The kiss occurred two months after the last billed patient visit. The Court upheld the finding that the person was still the patient of Dr. McIntrye because of the pattern of periodic visits and the absence of actual evidence that the professional relationship had been terminated. The Divisional Court stated that an adverse inference could have been made on whether the physician-patient relationship had been terminated before the kiss on the basis that Dr. McIntyre did not testify. There is no right to silence in discipline proceedings and in these circumstances applying the adverse inference principle would not have amounted to reversing the onus of proof.
The Court also rejected the propositions that there existed a principle that the sanction should be the least intrusive one in the circumstances or that revocation is reserved for the most serious misconduct by the most serious offender. This is consistent with another recent decision, Chen v. College of Denturists of Ontario, 2017 ONSC 530, where the Divisional Court rejected the proposition that revocation was ordinarily reserved for repeat offenders. The Chen case involved a denturist who systematically practised dentistry over a 2 ½ period and then falsely billed for the services in the names of actual dentists.
The Court also accepted that the Discipline Committee could depart from older precedents that may no longer reflect its (and society’s) understanding of the seriousness of the conduct:
The applicability of precedent and the general principle of maintaining consistency in the penalties imposed for similar situations are difficult issues for discipline committees, particularly on issues where public mores may be evolving…. The Committee also was guided by the importance of deterrence, protection of the public and ensuring that the public continued to have confidence in the College to protect the interests of patients…. In reaching its decision, the Committee was cognizant of the particular circumstances of this particular doctor and these particular patients. However, the Committee also took a broad policy-based view of its own mandate: to protect the public; to recognize the devastating impact on patients when the trust they place in doctors has been violated, particularly through sexual abuse; and to maintain public confidence in the ability of the medical profession to regulate itself in the public interest…. In our view, the Committee’s penalty decision is reasonable, defensible, and supported by cogent reasons.
Reviewing the Registration Process
by Julie Maciura
March 2, 2017
The registration process is different from most other activities of a regulator. For example, the onus is on the applicant to establish meeting the requirements, yet the regulator should give some notice of the concerns. The balancing of these issues occurred in Risseeuw v Saskatchewan College of Psychologists, 2017 SKQB 8. The applicant was registered in Alberta and had tried for years to become registered in Saskatchewan; it was a mobility case. The Court concluded that, in the circumstances of the case, the application for judicial review should be dismissed for undue delay. The applicant was aware from previous litigation that judicial review applications needed to be brought promptly, but had waited for two years from the decision to initiate the application. The regulator had a right to some finality of its decision.
The Court went on to consider the merits of the judicial review and found the application lacking. The Court held that the regulator was not required to give the applicant the same notice and particulars as is required in the disciplinary process. The applicant is taken to know the registration requirements and should not be surprised if the regulator applies those requirements to the application. Similarly, the applicant should know that incomplete or inconsistent information provided on the application will be considered by the regulator. Similarly, the applicant should not be surprised that the regulator will want information as to her current competency if her previous application was rejected because of concerns about her competence.
Perhaps most interesting is the Court’s approach to the mobility issue. The Court suggested that, where an applicant applied previously and there were competency concerns at that time, the regulator can now (again) consider the applicant’s competency:
“The applicant’s position takes the narrowest possible view. It presupposes that the mobility provisions will be applied almost as a rubber stamp. It presumes that the respondent must purge itself of past knowledge of incompetency. The applicant’s position takes this narrow, literal view without adopting a purposive approach to legislative interpretation. The suggestion that the respondent is obligated by s. 20(2) of the Act in a robotic fashion does not comport with the overall legislative scheme and intention.”
The Court’s approach may be based on the specific legislative context rather than a pure analysis of most mobility provisions for professions and may not have broad application to other cases.
The Court also indicated that the regulator can engage in a certain amount of inquiry into the accuracy of the applicant’s information. However, the Court did not clarify how extensive those inquiries could be.
Reasonable Rejection of Reinstatement Request
by Erica Richler
February 24, 2017
In Manoukian v Ontario College of Pharmacists, 2017 ONSC 589, the former pharmacist had a significant discipline and criminal history. After being revoked for trafficking narcotics he was reinstated only to be revoked again for fraudulent billing. However, those findings were decades old and he was now a licensed paralegal. In support of his application for reinstatement to the College he had letters of reference from respected sources, including judges; expert reports from both a psychologist and a psychiatrist stating that his risk of re-offending was low; and he successfully completed various educational courses including one on professional ethics. In upholding the refusal of the Discipline Committee to reinstate the applicant the Court made the following points:
- The standard of review by the Court was reasonableness.
- The Discipline Committee applied the balance of probabilities standard to the evidence at the reinstatement hearing.
- The Discipline Committee was entitled to consider the reputation of the profession and the impact of the decision on the public.
- The Discipline Committee was entitled to reject the option of reinstatement upon terms, conditions and limitations in the circumstances of the case.
- The Discipline Committee could discount the significance of successfully completing the educational courses given what was required to complete those courses.
- The Discipline Committee did not have to accept the expert reports put before them (even though they were not contradicted).
- The Court would not re-weigh the evidence where the Discipline Committee found the applicant’s evidence to be “self-serving and not forthright” and where the Committee explained why it reached that conclusion.
The Court said: “The panel concluded that to reinstate the applicant, a second time, would not only pose a risk to the public, but it would also not reflect well on the profession. That was a reasonable conclusion for the panel to reach. It was certainly a decision that ‘falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’ ….”
Asking Good Character and Capacity Questions on Annual Renewal Form
by Rebecca Durcan
February 21, 2017
In Health Sciences Association of Alberta v Alberta College of Paramedics, 2016 ABQB 723, the content of the annual renewal form was prescribed by subordinate legislation. The regulatory body added to the form three broadly worded questions relating to police or criminal interactions, to treatment for mental or physical conditions that could affect a practitioner’s capacity to practice, and to substance abuse. On a challenge to the questions, the Court held that there was no authority for the regulatory body to add the questions to the form. The Court rejected the regulator’s argument that the questions were not substantive because the questions did affect the human rights and the privacy rights of practitioners. However, the Court declined to make a general statement as to whether the College had the authority to ask practitioners about these matters in contexts other than annual renewal of registration. Because of the narrow focus of the decision of the Court in this case, it is difficult to extrapolate the ruling to other contexts, including annual renewal forms used under other legislation. However, the Court did view the asking of these questions as a serious matter.
Context is Important in Assessing whether there is an Appearance of Bias
by Bernie LeBlanc
February 15, 2017
At day 39 of what would turn into a 60 day registration hearing, the applicant raised an appearance of bias concern. The concern was that the applicant for a paralegal licence was giving advice to an individual in a human rights case where the chair of the hearing panel represented the respondent. The individual was also going to become a character witness for the applicant. The chair of the panel immediately transferred the case (her involvement had only been brief at this point) to another lawyer in the firm and separated herself entirely from the human rights case.
In Kopyto v. The Law Society of Upper Canada, 2016 ONSC 7545 the Divisional Court held that there was no appearance of bias. The Court found that the appeal tribunal’s conclusion on the bias issue was reasonable, when the appeal tribunal said: “A reasonably informed person would not form the view that Ms. Blight’s brief representation of the respondent to G’s human rights application would impair her ability to fairly adjudicate the appellant’s licensing proceeding.” Undoubtedly, the raising of this concern so late in the protracted hearing process was a significant consideration.
The Court also said that the appointment process for the hearing panel in registration matters did not require a degree of independence of an appointment of a Judge to the courts. Allowing the chair of the tribunal to freely appoint panel members demonstrated an adequate degree of independence.
No Stay Pending Appeal in Ungovernability Case
by Julie Maciura
February 10, 2017
In Kuny v College of Registered Nurses of Manitoba, 2016 MBCA 122, two findings of professional misconduct were made against nurse Kuny. The first was for failing to cooperate in an investigation and the second was for failing to abide by a remediation agreement (and misleading the College about failing to do so). The second finding resulted in an order of cancellation / revocation. The Court in considering the stay application said: “The law relating to the granting of a stay pending appeal is clear. It is a matter of judicial discretion and there is a heavy onus on the applicant since the presumption is in favour of the correctness of the decision of the tribunal.” The Court also applied the test for injunctions (i.e., there must be an arguable case, irreparable harm and the balance of convenience must favour the injunction).
The Court declined to stay the disciplinary order of revocation and appeared to be most influenced by the nurse’s apparent ungovernability. The Court did, however, stay the order to pay the College money as the Court felt that might prevent the nurse from exercising his legal rights since he was not working and had the expenses of the appeal.
Challenging an Undertaking Never to Re-Apply
by Erica Richler
February 6, 2017
Colleges often agree not to proceed with a discipline hearing if the practitioner undertakes to resign and never to re-apply for registration. This type of resolution is often appropriate where the allegations do not require denunciation and where there are mitigating factors such as illness or the practitioner is ending a long and distinguished career. Dr. Stelmaschuk, a dentist in British Columbia, entered into such an undertaking. He suffered from bi-polar disorder. Later he sued his regulatory body to set aside the undertaking on the basis that he did not have capacity to understand the agreement he was signing because he was in an acute stage of his illness at the time. The agreement confirmed that he had legal advice at the time of signing.
In Stelmaschuk v. The College of Dental Surgeons of British Columbia, 2016 BCSC 2196, the regulator sought access to information from the dentist’s lawyers to challenge whether the dentist had capacity to enter the undertaking. The dentist resisted on the basis of solicitor and client privilege. The Court concluded that the dentist had waived this privilege when he asserted his lack of capacity and ordered access of the information to the regulatory College.
The fact that this litigation is ongoing may serve as a warning to regulators to be cautious when entering into such undertakings where there is evidence of an illness that might affect the capacity of the practitioner.
Use of Evidence of Disability in Discipline Hearings
by Rebecca Durcan
February 1, 2017
Regulators continue to face the difficult task as to how to balance evidence of some degree of disability (e.g., mental or cognitive impairment, substance abuse disorders) when dealing with allegations of professional misconduct. Further guidance was provided by the Manitoba Court of Appeal in The Law Society of Manitoba v Cherrett, 2016 MBCA 119. In that case a lawyer had misappropriated $20,000. He argued that he was in a “cognitive fog” and was confusing different files when he transferred the funds into various accounts controlled by him. On the issue of finding, the Court upheld the findings of the tribunal that “found that the appellant’s methodical actions were inconsistent with that argument, and that his actions were done “purposefully” and were “deliberate and considered conduct.”” The Court later said, on the issue of penalty: “While the panel acknowledged that the appellant’s ill health affected his ability to practice law, it found that the appellant’s diminished capacity argument was inconsistent with what he did, and explained why.” Thus, even where incapacity is present, that does not necessarily mean that the tribunal must conclude that the conduct resulted from the disability where the facts suggest otherwise.
Raising the Ineffective Assistance of Defence Counsel as a Ground of Review
by Bernie LeBlanc
January 27, 2017
Occasionally, practitioners raise the issue of the ineffective assistance of defence counsel as a ground for reviewing an adverse disciplinary decision. This sort of issue is not uncommon before the criminal courts. The British Columbia Court of Appeal gave some guidance on when such arguments might be accepted in the disciplinary context in Jalloh v. Insurance Council of British Columbia, 2016 BCCA 501. In that case, an insurance sales licensee faced a four year suspension for violating the privacy of a former romantic partner. He claimed that his lawyer unexpectedly sent a junior lawyer to represent him at his discipline hearing and that he was prevented from testifying at the hearing. The practitioner kept his senior lawyer for the appeal hearing before an independent tribunal. The practitioner then sought judicial review, but only at the last minute added the concern about ineffective representation.
Both the reviewing court and the Court of Appeal declined to accept this argument. They based their decisions on a number of considerations including the apparent strength of the case against the licensee, the fact that the hearing was otherwise procedurally fair, that such concerns are rarely accepted and that he raised the issue very late in the process. While the multitude of considerations makes it difficult to apply this case to others, the outcome does indicate that it will be a rare and strong case that will persuade a court that ineffective representation would make a discipline hearing so unfair as to nullify the results.
R v. Jordan Makes its First Appearance at Discipline
by Julie Maciura
January 23, 2017
Earlier this year the Supreme Court of Canada imposed strict time limits for criminal proceedings in R. v. Jordan, 2016 SCC 27. Absent special circumstances, a matter in provincial court must be completed within 18 months and a matter in superior court must be completed within 30 months. The media reports that, as a result of this decision, many cases have already been stayed in the criminal court system. The Jordan decision is based on s. 11 of the Canadian Charter of Rights and Freedoms which does not apply to discipline hearings. However, it was only a matter of time before the principles of that case were raised in a discipline hearing context.
In Coady v Law Society of Upper Canada, 2016 ONSC 7543, a lawyer had her licence revoked some years ago for various forms of misconduct suggesting ungovernability. She brought a motion asking the court to reconsider its earlier decision based on delays at her discipline hearing citing the Jordan case. The Court dismissed her motion as frivolous and vexatious and because it did not have jurisdiction to reconsider its decision. This case indicates a reluctance by the courts to apply the Jordan case to past discipline proceedings, at least.
Far Reaching Interim Order in Unauthorized Practice Case
by Erica Richler
January 17, 2017
In Ontario College of Pharmacists v Thi Kim Tien Nguyen, 2016 ONSC 7639, a pharmacist undertook to resign, cease practising and transfer ownership or close down her pharmacy in exchange for a stay of discipline proceedings. She did not do so. College witnesses provided evidence that she continued to operate the pharmacy and to dispense medications, including a narcotic.
The College brought an application under s. 87 of the Regulated Health Professions Act to require the former pharmacist to comply with the Act and cease practising. The College asked for an interim order to be made in the meantime (before the application was heard on the merits), which the Court granted. The Court applied the usual test for an interlocutory injunction (i.e., there must be an arguable case, irreparable harm and the balance of convenience must favour the injunction) but accepted that there was a presumption of irreparable harm where an individual was willfully breaching the law. The Court also declined to order the College to undertake to pay damages should the interim order later prove to have been unwarranted.
Perhaps most interestingly, the Court granted the College’s request that it be permitted to enter the pharmacy and remove all of the drugs to store in a secure location until such time as the issues could be resolved. Since this was just an interim order that, officially, was made without prior notice (although actual notice had been given and the former pharmacist’s spouse was present and made submissions), a date was set to hear further arguments on the matter.
When is being Transparent Defamatory?
by Rebecca Durcan
January 13, 2017
At times there is tremendous pressure on the government and a regulator to be transparent about possible incompetence or misconduct that undermines confidence in the health care system. Awaiting the end of the disciplinary process to comment may not be feasible. However, issuing public statements, particularly where an individual practitioner is identified, can have a devastating impact on the practitioner. In Tsatsi v College of Physicians and Surgeons, 2016 SKQB 389 the decision by the regulator, the Minister and the hospital to inform the public of apparent radiological misinterpretations and to reassure the public of the steps being taken to protect them resulted in a defamation lawsuit.
In that case the Court summarily dismissed the action on the grounds that there was a basis for the public statements (i.e., a peer review report) and that, even if the statements were not justified, the entities were protected by “qualified privilege” which protected them in the absence of malice. On the qualified privilege point the Court said:
In so deciding I am cognizant that Sunrise [the hospital] and McMorris in his capacity as Minister of Health owe their primary duties to the public. Even the College does not exist merely for the purpose of protecting members of the medical profession. Each of the defendants owed a duty to the public, and in particular, an obligation to safeguard the health and welfare of the people of this province and inform them when a potentially serious risk of misdiagnosis has been discovered. The court must therefore exercise caution in second guessing the manner in which this public duty was discharged. This is especially so where, as in this case, there was a factual basis for the impugned communications and each of the defendants was careful to relay only the facts as they understood them and the measures that they were implementing in response.
This case should not only provide assurance to regulators who feel that they must make a public statement (confidentiality provision permitting) on a troubling case, but can also provide guidance on how to do so in a way that minimizes the regulator’s risk of liability.
Serving Documents, Technically
by Bernie LeBlanc
January 10, 2017
Technical arguments do not usually succeed in professional regulation unless there is some actual unfairness. Two recent cases confirm this principle.
In Institute of Chartered Accountants of Alberta (Complaints Inquiry Committee) v Barry, 2016 ABCA 354, the main issue was whether the notice of hearing in a discipline matter was served in accordance with the legislation. The provision permitted service by courier. The practitioner argued that XpressPost did not meet the requirements of the provision. The Court disagreed, saying that this was a type of courier service. Even if it were not, the Court said the fact that the practitioner actually received the notice of hearing meant that any non-compliance with the provision was inconsequential.
In Nobody v Ontario Civilian Police Commission, 2016 ONSC 7261, a complainant filed an appeal electronically upon the Ontario Civilian Police Commission. There was a 30-day time period to file the appeal. The appeal was filed on the last day of the time limit and was received by the Commission on the same day. However, the legislation deemed electronic documents to be filed the day after it was sent, which was after the 30-day time limit. The Commission dismissed the appeal as being late. The Divisional Court said:
The decision of the Commission is undoubtedly unfortunate. To deprive a citizen of his or her statutory right of appeal where he has actually served his notice of appeal within the statutory time limit on the basis of a deeming provision is, if not unfair, certainly undesirable. That is particularly so in a legislated police complaints system intended to be transparent and accessible, in order to promote public confidence in police and policing. However, in my view, in addition to being unfortunate the decision is wrong in law….
Deeming provisions like this are intended to be of benefit to a party serving a document. They provide certainty to the serving party. They are not intended to be traps for the unwary.
Regulators should generally take a purposeful and beneficial view of technical requirements.
It’s All Circumstantial
by Julie Maciura
January 5, 2017
Insider trading cases are often circumstantial in nature. Fiorillo v Ontario Securities Commission, 2016 ONSC 6559 is no different. In a very lengthy decision, the findings of the Commission were upheld. The circumstantial evidence included a pattern of telephone calls between a person with access to material non-public information and those that bought the securities shortly after the calls. There were other factors that supported the inference, such as attempts to conceal the true person behind the trades. The Court upheld that findings can be based on circumstantial evidence where it is sufficiently compelling.
The Court commented on a number of other issues. For example, it said that there is a low threshold of fairness for beginning an investigation or in compelling a practitioner to undergo an interview both in terms of grounds to initiate the process and in terms of disclosure given in advance of the examination.
The Court also said that hearsay evidence is admissible in regulatory proceedings (unless the statute says otherwise) and the reading in of the transcript of the mandatory interview of a witness was upheld even though that meant the other practitioners could not cross-examine the witness. In that case, both parties appeared to have equal access to the witness to summons them to the hearing for questioning, if wanted. Each side wanted the other to call the witness so that they could cross-examine her. However, it appeared that the witness was, in fact, adverse to the prosecution and not adverse to the practitioners in that she denied participating in the alleged wrongdoing. So the Court did not see any duty on the prosecution to call the witness in person.
The Court also upheld an order to pay about 11% of the total costs even though the costs included concerns that had not been established and even though the $300,000 ordered was more than the prosecution had requested. The Court indicated that significant deference should be given to costs orders.
Another recent securities commission case that discusses and applies the concepts of circumstantial evidence and making inferences is: Finkelstein v Ontario (Securities Commission), 2016 ONSC 7508.
Establishing Holding Out Through Facebook and LinkedIn
by Erica Richler
January 3, 2017
It can be challenging for regulators to prove holding out based primarily on social media postings. The case of Law Society of Saskatchewan v Siekawitch, 2016 SKQB 345 may make it easier for them to do so. In that case, the regulator sought an injunction against Mr. Siekawitch for holding himself out as a lawyer based on a telephone call in which he called himself an attorney, as well as his Facebook and LinkedIn posts. There was no direct evidence that Mr. Siekawitch was the person on the telephone beyond his identifying himself at the beginning of the call. The Court held that such self-identification was a recognized exception to the hearsay rule.
In terms of the social media postings, the Court was willing to infer that they had been posted by Mr. Siekawitch based on their content. The Court took judicial notice of the nature of the social media sites and analyzed the detailed content of those sites as making it unlikely that they belonged to anyone else. The Court also noted similarities between the claims made on the sites and the language used in the telephone conversation. Mr. Siekawitch’s uncommon name and the fact that he did not appear to dispute the evidence against him gave the Court confidence that the sites represented holding out and the Court issued an injunction against him.
Searching a Member’s Home for Private Dishonesty
by Rebecca Durcan
December 19, 2016
It is rare for regulators to search a member’s home. However, in Law Society of Saskatchewan v Abrametz, 2016 SKQB 320 the Court held that a practitioner’s home is not sacrosanct. The Court said that “if [the member’s] argument were to prevail, it could lead to a perverse result. A member could simply insulate himself or herself from regulatory scrutiny by moving documents from the office to the home.”
In that case, the lawyer was being investigated for arranging partial payment of services outside of his firm’s accounting system as an apparent tax-avoidance scheme. The lawyer argued that the regulator had no business looking at his private financial affairs. The Court said: “the principle that regulatory jurisdiction does not stop at the office doors of the professional person in question and that a narrow view of jurisdiction is inconsistent with the broad purposive scope and mandate of the applicable self-governance legislation.”
The Court did identify two areas of possible caution for regulators. First, the Court commended the regulator in this case for giving prior notice of its intent to execute the search so that the member could challenge it first in court. Regulators may not always conclude that affording prior notice is prudent as this might provide opportunity for the tampering with evidence. Second, the Court deferred dealing with the constitutional issue of a provincial regulator enforcing a breach of a federal statute. The Court said that the disciplinary allegations, which had not yet been drafted, might involve issues of dishonesty and a lack of integrity that were different from a bare allegation of breaching a federal statute. For example, the allegations might relate to misleading the regulator or involving clients in a scheme to not declare income, which are different from an allegation of breaching the Income Tax Act.
Bill 87 Gives Government Much More Power over Health Regulators
by Erica Richler
December 12, 2016
The changes contained in Bill 87 to the Regulated Health Professions Act, 1991 have been presented as relating primarily to addressing sexual abuse by health practitioners. And the Bill does contain some important provisions doing just that. For example, if passed:
- The sexual abuse provisions will apply to former patients for at least one year.
- Interim orders could be imposed immediately upon receipt of a complaint or report (previously they could not be imposed until after the investigation had been completed).
- Gender-based restrictions (e.g., not allowing a practitioner to treat female clients) will not be permitted.
- The criteria for mandatory revocations will be expanded to include most forms of sexual touching.
- Eligibility for funding for counselling and therapy and related expenses will be expanded.
- The penalties for failing to report sexual abuse will be increased.
Significantly, Bill 87 also contains a number of provisions that would increase the powers of the Minister over the regulatory Colleges. The Minister would be able to require Colleges to provide information to the Minster about individual cases (including personal information and personal health information). The Minister would also be able to set the composition, quorum, eligibility and disqualification requirements for all College committees. There would not necessarily have to be a majority, or even any, professional members on the committees. In addition, the Minister would be able to require additional information about practitioners to be placed on the public register. The Minister could also expand the mandate of the patient relations program. Overall, the Minister will have a much larger say in the day-to-day operations of the regulatory bodies.
Bill 87 has only passed first reading and still has to go through the entire legislative process. This Bill may be viewed online: http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=4477
Mandatory Reporting Duty and Making False Allegations
by Bernie LeBlanc
December 6, 2016
Everyone is required to make a report to the Children’s Aid Society about any reasonable suspicion that a child is in need of protection. A person making a report has immunity for any such report unless it is made in bad faith. In order to facilitate the making of such reports, courts provide a strong immunity to those who make them. Otherwise, a chill might arise discouraging the making of such reports. However, in Grogan v Ontario College of Teachers, 2016 ONSC 6545 the Ontario Divisional Court has upheld that where the report is false, the regulator can and should take action.
In Grogan, the teacher made multiple reports about a colleague to the Children’s Aid Society, the police and the colleague’s employer about the colleague’s “involvement with a non-verbal, developmentally delayed female student”. The complaint was referred to discipline on the basis that the report was false. The Discipline Committee was troubled by not only the apparent falsity of the reports, but their persistent and repetitive nature. The panel held that the false reports amounted to professional misconduct and the practitioner’s registration was revoked. The Divisional Court upheld both the finding and the sanction on the basis that the Discipline Committee had provided detailed reasons explaining both determinations. The Court was impressed that the panel had explicitly addressed the potentially chilling effect of its findings.
Given this outcome, regulators can expect more complaints about allegedly false mandatory reports. However, only in those complaints where there is a preponderance of evidence that the report was falsely made will result in disciplinary action.
Cooperation, Bias and Costs
by Julie Maciura
November 29, 2016
The Ontario Court of Appeal has supported one of the more significant disciplinary decisions of 2016. In Reid v. College of Chiropractors of Ontario, 2016 ONCA 779 the Court found that there was no arguable case on the grounds of appeal challenging the Divisional Court’s decision upholding the discipline findings and suspension and costs orders of the Discipline Committee. Dr. Reid had been found to have engaged in professional misconduct for threatening and harassing a colleague and failing to cooperate with the College’s investigation of that complaint. Among other things, Dr. Reid was suspended for twelve months and ordered to pay costs in the amount of $166,194.50.
The Court found that there was evidence to support the findings; indeed the finding of failing to cooperate was unassailable. The Court also indicated that an appellate court’s role in reviewing a cost order was to determine whether it was reasonable in the circumstances and an appellate court should not conduct its own evaluation of what the costs should have been.
The Court also rejected the notion that a panel member sitting on a previous case against the practitioner has an appearance of bias, at least where there were no adverse credibility findings made.
Plump up that Résumé with Caution
Practitioners have a status that many organizations like to use. However, lending that status to an organization creates a duty on the practitioner to ensure that the organization is acting appropriately. In Wong v Health Professionals Appeal and Review Board, 2016 ONSC 6413 (Div.Ct.), a physician permitted a clinic to list him as its Associate Medical Director. The clinic then advertised services he did not provide and made Groupon offers. The practitioner was unaware of these advertisements. The ICRC screening committee gave educational advice to the practitioner. He objected to the advice because he was not aware of the advertisements. The Appeal and Review Board and the Court upheld the advice, finding that he had a responsibility to exercise due diligence into how his status would be used by the clinic.
Another physician who had not loaned their status to the clinic and who had not known about the advertisements ultimately received no educational advice.
Enforcing Unauthorized Practice Provisions through Contempt of Court
by Erica Richler
November 16, 2016
Regulators are increasingly obtaining restraining orders against illegal practitioners (particularly former members). As a result of these cases, the law of civil contempt has actually become clearer. Recently, in The Law Society of Upper Canada v Fingold, 2016 ONSC 5684, the Ontario Superior Court of Justice clarified the process for finding a person in contempt. Quoting the recent Court of Appeal case, Chirico, the Court said: “The test for civil contempt is well established. The order must be clear and unequivocal, the failure or refusal to comply with the order must be deliberate, and the failure or refusal to comply with the order must be proved beyond a reasonable doubt….” The Court emphasized: “Most importantly, the Court of Appeal in Chirico reaffirmed the principle that the party subject to the court order must comply with ‘both the letter and spirit of the order’….” and “the days are long gone when someone subject to a court order can get away with circumventing it by relying on a benign technicality. To allow that to happen would be disrespectful of the order and of the administration of justice.” In this case, the Court rejected a circumvention scheme in which Mr. Fingold, a disbarred lawyer, hired paralegals to file the paperwork on his behalf.
The Court rejected any concern that the enforcement proceedings were initiated by the regulator and not the client in the transaction. The Court also approved the practice of separating the finding phase of the hearing from the penalty phase, to prevent the evidence that is relevant to one phase improperly tainting the other phase.
Regulating by Referendum
by Julie Maciura
November 8, 2016
The latest in the series of Trinity Western University (TWU) cases indicates that statutory bodies cannot regulate by referendum. TWU is a Christian university that has a code of conduct students must sign agreeing to only engage in sexual relations with one’s spouse of the opposite (it assumes there are only two) gender. Law Societies have been struggling to determine whether to recognize graduates of the school. Last week’s decision by the British Columbia Court of Appeal struck down the Law Society of British Columbia’s refusal to recognize the school: Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423.
The major concern of the Court was that the Law Society decided to be bound by the results of a referendum by its members on the issue. The profession voted 74% to deny recognition of the school and the Law Society accepted those referendum results. The Court concluded that the regulator had to balance the competing interests and not fetter its authority by way of the referendum results. The Court said: “the adoption of a resolution not to approve TWU’s faculty of law would limit the engaged rights to freedom of religion in a significantly disproportionate way — significantly more than is reasonably necessary to meet the Law Society’s public interest objectives.”
The Court concluded:
A society that does not admit of and accommodate differences cannot be a free and democratic society — one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal. This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.
Forcing Finney Farther from Fault Finding
The case of Finney v. Barreau du Quebec, 2004 SCC 36 has puzzled regulators for more than a decade as it appeared to suggest that regulators could be ordered to pay damages in a civil suit for negligence. Finney appeared to be at odds with cases both before and after Finney that appeared to say that regulators are immune from a civil suit for damages unless they acted in bad faith. The case of Robson v Law Society of Upper Canada, 2016 ONSC 5579 provides yet a further distancing of the courts from Finney. Robson was found by the hearing panel of the Law Society to have engaged in professional misconduct and his licence was revoked. Robson succeeded before the appeal panel, which reversed the finding. The appeal panel declined to award him costs, however, finding that the prosecution had not been unwarranted. Robson sued both the Law Society and its individual representatives for negligence, malicious prosecution, and malfeasance (abuse of) public office.
In a motion to strike the pleadings, the Law Society succeeded on the basis that it and its representatives were immune from negligence claims and that there had been no particulars of how the defendants had acted in bad faith or for an ulterior purpose. The Court held that the Finney case turned on the concepts found in the Quebec Civil Code that did not apply to the common law concepts of malicious prosecution and malfeasance (abuse) of public office. However, the Court gave leave to amend the pleadings to enable Robson to try to plead the missing particulars. The Court rejected the notion that Robson was not in a position to plead those particulars until later in the proceedings; the regulator was entitled to know the case it had to meet. On the other hand, the Court also rejected the proposition that the appeal panel’s determination that the prosecution had not been unwarranted made the current proceeding an abuse of process or an inappropriate re-litigation of issues.
by Bernie LeBlanc
October 24, 2016
The Supreme Court of Canada has provided detailed guidance on how adjudicators should approach joint submissions. While the case deals with a criminal case (a manslaughter finding where the victim hit his head on the ground following a punch), it will likely have significant application to discipline cases as well. Past discipline cases have taken a similar approach to criminal cases when dealing with joint submissions: Rault v. Law Society of Saskatchewan, 2009 SKCA 81.
In R. v. Anthony Cook, 2016 SCC 43, the Court examined the reasons why joint submissions should usually be accepted, including that the defendant is giving up their right to a hearing and that both sides and the public often gain a significant benefit by having such agreements generally accepted. For example, witnesses are spared being put through a trial and both the “victim” and the defendant can benefit from the acknowledgement of responsibility and more quickly putting the blame part of the process behind them. The Court concluded that the most stringent of tests for rejecting a joint submission should be applied, namely, only where it would bring the administration of justice into disrepute or is otherwise not in the public interest. In particular, adjudicators should not analyze whether the joint submission is “unfit” in the circumstances.
The Court, in a bit of an unusual step, offered practical guidance to adjudicators who have concerns with a joint submission. One suggestion was to ask the parties about the circumstances of the agreement including any benefits obtained by the prosecution and any concessions offered by the defendant. These circumstances could include things like reluctant witnesses, evidence of uncertain admissibility and any undertakings offered by the defendant. The Court also suggested that if an adjudicator is seriously considering not accepting the joint submission, it should notify the parties not only to permit additional submissions, but also to enable the defendant the opportunity to withdraw from the agreement. It is not obvious whether this aspect of the Court’s advice would apply to professional misconduct proceedings.
Investigative Powers Not to be Restrained in Advance
by Bernie LeBlanc
October 17, 2016
Can a regulator have access to the member’s personal cell phone and residence? In McLean v. Law Society of British Columbia, 2016 BCCA 368 the Court said “it depends”. In that case the lower court issued an injunction against the regulator from doing either. The British Columbia Court of Appeal quashed that injunction, but did not say that the regulator could do those things. The Court of Appeal observed that there had been no evidence that the Law Society intended to do either of those things. It found that injunctions should not be granted to prohibit any prospective action that was not in actual contemplation. For example, the Court of Appeal was concerned that there was no evidence as to what documents were located in the residence of the member or for what use the personal cell phone had been used. The implication was that if there was a reasonable basis for the regulator to believe that important and relevant information was to be found in either place, the investigation might “go there”. However, the implication was also that a regulator could not enter a member’s private resident or take possession of the member’s private cell phone on speculative grounds.
You Can Reap Only What You Sow
by Julie Maciura
October 12, 2016
In a professional misconduct case, the prosecution decides what seed to plant in the wording of the allegations. The prosecution is then restricted to reaping findings only from those allegations. It cannot try to reap a different harvest after the seed has sprouted. That is the lesson gleaned from Meier v Saskatchewan Institute of Agrologists, 2016 SKCA 116. The allegation there was that Mr. Meier had made false and misleading statements about a seed planting experiment he had conducted. The “particular” (i.e., the specific facts supporting the allegation) that was alleged against him was that Mr. Meier had failed to disclose that the difference in growth was the result of different seed planting depths and not the manner in which the fertilizer had been administered. However, at the hearing the prosecution had difficulty establishing that “particular” because its key witness could not establish with certainty which field of crops he had examined. The Discipline Committee made a finding against Mr. Meier on the basis that he had not followed a proper scientific method in making his claims. The Court of Appeal found that this shift of focus was unfair to Mr. Meier because he had prepared his entire defence based on the seed-depth issue. He had not been properly notified of the particular upon which the Committee had based its finding. The hearing was thus unfair and the result reversed. Wording of the statement of allegations, particularly (no pun intended) in standards of practice cases, is extremely important.
Restricting the Activities of Suspended Members
by Erica Richler
October 4, 2016
There has been a lot of litigation over the years regarding the authority of regulators to restrict the activities of suspended members. One of the reasons is that different statutes take different approaches to whether a suspended member is still a member of the profession. The Alberta Court of Appeal recently addressed this issue in Law Society of Alberta v Beaver, 2016 ABCA 290. Mr. Beaver was suspended by the Law Society. He continued to perform activities within the practice of law, including acting as an agent. The Law Society sought an injunction to prevent him from doing so. Mr. Beaver argued that suspended lawyers could act as agents because there was no explicit prohibition in the Act.
The Court rejected this argument. It held that such an interpretation would defeat the public protection purpose of the Act. An important factor was that suspended members remain members under this Act and the Act prevents members from acting as agents due to the risk of public confusion.
The Court also concluded that the regulator had the implied authority to restrict the activities of suspended members in this case, even if it was not expressly stated in the Act. The Court also stated that a regulator had standing to bring applications for injunctions to protect the public from unregistered practitioners and that Courts had the inherent power to grant such injunctions even if the enabling legislation did not have a restraining order provision. This case should assist regulators who have outdated enabling statutes.
Production Orders in Investigations Upheld
by Bernie LeBlanc
September 26, 2016
Are journalists’ notes exempt from regulatory investigators? The Court in Mulgrew v. The Law Society of British Columbia, 2016 BCSC 1279 says no. In an interview with the Vancouver Sun, a lawyer made comments critical of an expert witness in one of the lawyer’s cases. The expert witness sued for defamation and made a complaint to the Law Society. The Law Society appointed an investigator who issued an order to the Vancouver Sun to produce its notes of the interview with the lawyer. The Vancouver Sun challenged the order on various grounds.
The Court held that the authority of regulatory investigators to compel third parties, including journalists, to produce information to assist in an investigation of a complaint resulted in little protection under the Canadian Charter of Rights and Freedoms. The expectation of privacy in these circumstances was minimal, the public interest in regulating lawyers was significant and the procedure permitted the third party to challenge the order before it was enforced. In addition, there was no real restriction on the ability of the journalist to write what they wanted. Thus the legislative provisions appeared to be consistent with the freedom against unreasonable search and seizure, the right to life, liberty and security of the person and the freedom of expression protections of the Charter.
The Court also held that the discretion of the investigator to seek relevant documents for an investigation ought to be given considerable deference, even if there was parallel civil litigation for defamation. However, in this case at least, the investigator had to file evidence justifying the investigatory decisions.
This case does not address fully concerns that might arise if the investigator sought production of confidential sources of the journalist.
Preventing Sexual Abuse
Most of the attention on the Sexual Abuse Task Force (SATF) report in Ontario has been focused on the proposed changes to the complaints, investigation and discipline system. However, chapter 4 of the report provides excellent resources on preventing sexual abuse in the first place.
The SATF suggests that there are three key ways of preventing sexual abuse of patients:
- Severe consequences to practitioners who abuse patients.
- Specifying clear boundaries to both practitioners and the public.
- Adequate education, especially for students, but also ongoing once registered.
The education of practitioners (and others) should cover nine components:
- The concept of zero tolerance (e.g., no excuses).
- Boundaries such as the time, location and duration of treatment, language used, reasons and method of touching, self-disclosure and socializing and dual relationships.
- Why sexual abuse occurs, including the vulnerability of patients and motivations of practitioners who abuse them (e.g., falling in love).
- The various forms, extent and timing of the harm from sexual abuse.
- That consent is not valid for sexual abuse and an understanding as to why apparent consent may occur.
- Post-termination involvements with patients and why they are always troublesome and when they are never appropriate.
- Mandatory reporting rules and how to manage ambivalence about doing it and why it is so important.
- Knowledge of the legislation, rules and standards that exist for every profession.
- How to critically evaluate potential boundary violations so that the practitioner has the tools to manage unexpected or challenging situations.
This chapter provides useful information for all regulators, not just those associated with health professions.
Fundamentally Reshaping Sexual Abuse Investigations and Prosecutions
by Julie Maciura
September 9, 2016
Transfer the handling of all sexual abuse complaints from self-regulatory bodies to a central, independent, public agency and separate hearing tribunal. That is a key recommendation of the long-awaited Sexual Abuse Task Force (SATF) report in Ontario. Interestingly, the central agency would have multiple roles including educating the profession and the public, supporting complainants and investigating and screening sexual abuse complaints. The central agency would provide free legal support and also pay for a support person for the complainant. Compensation for therapy and counselling would be available from the time that a complaint was made and would cover related expenses (e.g., medication, child care, travel).
The discipline hearings themselves would also be significantly altered. Hearings would be held before a single, specially trained tribunal. The complainant would automatically become a full party at the discipline hearing with the right to call their own witnesses and make arguments, much like hearings now before the Human Rights Tribunal. Complainants would be able to testify behind a screen. The complainant could choose to adopt a video statement of their investigative interview rather than have to repeat their testimony. In no circumstances would the practitioner being disciplined personally cross-examine the complainant; it would be done by the practitioner’s representative. Strict court rules of evidence would not apply, so hearsay and most relevant documents could be admitted. Expert witnesses on the dynamics and impact of sexual abuse selected by the central, public agency would replace experts called by the parties.
If a finding is made, the complainant could make a victim impact statement without being cross-examined. The mandatory revocation provisions would be expanded to include more types of frank sexual acts (e.g., touching a patient’s breasts for no clinical reason). For sexual abuse findings that do not require revocation, gender-based restrictions (not being able to see female patients) are not permitted. Gender-based restrictions assume a level of trust that a practitioner would comply with them even though the practitioner has already demonstrated a fundamental lack of trustworthiness.
The SATF is also concerned about unregistered practitioners, including formerly regulated practitioners who have been revoked, sometimes even for sexual abuse. To address this risk of sexual abuse, the report recommends that unregulated practitioners be brought under the auspices of existing Colleges. In addition, practitioners would be responsible for the sexual abuse of the people they oversee. Further, other regulators in Canada should be notified of all sexual abuse findings and a national and international database be maintained of all sexual abuse findings.
The SATF also recommends that the new central, public agency and tribunal would be subject to oversight by an independent Council, similar to the Professional Standards Authority in the UK. The oversight Council would have representatives of government, the health sector, survivors of sexual abuse and advocates in the field. The Council would require detailed data from both the central public agency and the tribunal about how they handled individual cases, conduct surveys of participants in the process and evaluate the effectiveness of the new system.
If the SATF report is fully implemented, all participants in the complaints and discipline system would have to rethink how they do things.
Independent Task Force Report on Sexual Abuse and the RHPA Released
by Robin McKechney
September 9, 2016
Today the Ontario Ministry of Health and Long Term Care released the much anticipated Independent Task Force report “To Zero: Independent Report of the Minister’s Task Force on the Prevention of Sexual Abuse of Patients and the Regulated Health Professions Act.” The report recommends broad-based and sweeping reform to the treatment of sexual abuse complaints against regulated health professionals. The key recommendations include the following:
The creation of the Ontario Safety and Patient Protection Authority (OSAPPA) which would have responsibility for the investigation of sexual abuse complaints against all regulated health professionals.
- The creation of an independent tribunal for the adjudication of OSAPPA cases either through the Ontario Human Rights Tribunal or through a restructuring of the Health Professions Appeal and Review Board (HPARB).
- The expansion of the sexual acts that would result in mandatory revocation.
- Removal of the ability to place gender based patient restrictions on a health professional’s practice in response to an allegation or finding of sexual abuse.
- Funding for patient therapy throughout the complaint process commencing at the investigation stage.
- A pilot project through Legal Aid Ontario to give complainants access to legal information and options.
- Full standing for complainants as parties at disciplinary hearings.
- Enhanced transparency on college registers regarding disciplinary decisions involving sexual abuse, misconduct or impropriety.
- The funding and development of a public education and legal information program regarding patients’ legal rights and options for recourse when they have been sexually abused by a regulated health professional.
- Enhanced protection from sexual abuse by unregulated health practitioners by assigning unregulated health practitioners to an existing college.
- Where an unregulated health practitioner is contracted to or employed by a regulated health professional, the regulated health professional should be held responsible for acts of sexual abuse or harassment by those employees/subcontractors.
- A research study to track and analyze the rates, responses and dispositions of sexual abuse cases of patients by regulated health professionals retrospectively and going forward.
The Ministry has stated that it intends to move forward on some of the above initiatives over the coming months. Notably, this does not include the creation of OSAPPA or an independent tribunal to adjudicate its cases, both of which require further review. The initiatives identified by the Ministry for which legislative amendments will be brought forward this year include the following:
- Expanding access to counselling and therapy by allowing the funding for these services to begin when a complaint of sexual abuse is made.
- Expanding the list of acts of sexual abuse that will result in a mandatory revocation of a regulated health professional’s certificate of registration.
- Removing the ability of a college to impose ‘gender-based restrictions’ on a regulated health professional’s practice in response to disciplinary findings involving sexual abuse of a patient.
- Increasing fines for regulated health professionals and facilities that fail to report to a college suspected cases of patient sexual abuse.
- Enhancing transparency by adding to what colleges must report on their public register and websites.
- Clarifying the boundaries of the patient-provider relationship.
SML will be providing ongoing analysis on the Recommendations and the Report.
Permission to Appeal Late Refused in Two Cases
by Erica Richler
September 6, 2016
In two recent cases the courts have refused to extend the time a practitioner could appeal a disciplinary decision. In the first case, the practitioner had agreed to the facts, a finding of professional misconduct and a six month suspension: Khahra v College of Veterinarians of Ontario, 2016 ONSC 4692. There was no notice of an intention to appeal until the start date of the suspension became an issue. The Court described the test to extend the time to appeal as follows:
- Whether the moving party formed an intention to appeal in the relevant appeal period
- The length of the delay and the explanation for the delay
- Any prejudice to the responding party
- The merits of the appeal
- Whether the “justice of the case” requires an extension
The Court refused to extend the time to appeal on all of the grounds, but appeared to be significantly persuaded by the fact that the communications suggested that an appeal was considered only after the practitioner could not obtain a deferral of the suspension.
The case is also interesting in its discussion of the issue of when a practitioner can challenge their agreement to a joint submission. The Court was not persuaded that the agreement was involuntary even though the practitioner indicated that his lawyer had stated he would not represent the practitioner if the practitioner did not proceed with a joint submission. The Court also relied on the fact that the practitioner provided no medical evidence to establish that the stress he was undergoing at the time made his decision to proceed with the joint submission involuntary.
In the second case the Court found that the pattern of delay by the practitioner, including one year to file materials, undermined any basis to grant an extension of time: Abi-Mansour v. Ontario College of Teachers, 2016 ONCA 602.
Articulating Credibility Findings
by Rebecca Durcan
August 29, 2016
Courts have said that in credibility cases adjudicators should say more than just that they believed one witness over another. There should be some explanation of those findings. However, articulating why one witness is more credible than another witness is difficult. In one recent discipline case, the highest court of British Columbia gave an example of what might be acceptable reasons. In The Law Society of British Columbia v. Sas, 2016 BCCA 341 the tribunal in that case used language such as evidence that was “argumentative, imperious, self-serving and evasive” or that was “argumentative, evasive in answering some questions, and non-responsive in answering others”. The tribunal gave examples in its reasons to illustrate these conclusions. The tribunal also did a close analysis of the substantive series of events describing what it viewed as actually having occurred. The Court said that the tribunal had not used “empty descriptions to characterize the evidence of” the witnesses it did not believe. The “reasons were “meaningful, and describe proper bases for assessing evidence”.
The Court also gave the tribunal a pass on not addressing a discrepancy between a witness’ original statement and her testimony at the hearing as to whether she issued one or three cheques on a particular account. The Court said: “While [the practitioner’s] counsel undertook an extended cross-examination on the discrepancies between Ms. Clarke’s original statement and her testimony at trial, the discrepancies were not of any particular moment. They went only to minor details surrounding the August 31, 2011 transactions. At most, the discrepancies might have cast some doubt on Ms. Clarke’s ability to recall minute details of the August 31 transactions. The discrepancies did not go to the nature of the transactions, themselves. In my view, given the limited importance of the discrepancies, it was not incumbent on the hearing panel to mention them in its reasons.”
Thus discipline panels need to articulate in some reasonable fashion why it believed one witness over another and should discuss any significant discrepancies in the evidence of a witness whose evidence it accepts. However, perfection is not required.
Wilful Blindness and Recklessness
by Bernie LeBlanc
August 22, 2016
In professional misconduct hearings the regulator generally does not have to prove that the practitioner deliberately engaged in the conduct. Proving the act or omission is generally sufficient. There are some exceptions where the wording of the definition of misconduct inserts a mental element. In addition, for some matters, a defence of due diligence may be available (e.g., that the practitioner took all reasonable steps to avoid the result occurring). One situation that recurs often is where an employee of the practitioner engaged in the conduct without the practitioner’s knowledge. In The Law Society of British Columbia v. Sas, 2016 BCCA 341 the practitioner argued that the billing irregularities were made by staff without her knowledge. However, the Court upheld the finding saying that the practitioner was wilfully blind. There were suspicious circumstances such that the practitioner “ought to have recognized that something was amiss”. In the case, there was a blitz to close old files and none of the scores of clients who had prepaid a deposit had any funds returned to them. All the prepaid funds were being transferred to the practitioner’s bank account. The Court said: “In the circumstances, the … [practitioner] had a duty to look at the backup documents, and to make inquiries.”
In describing the difference between wilful blindness and recklessness, the Court cited a Supreme Court of Canada discussion in a criminal case:
Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.
In most cases, even if some intent is desired in order to make a finding of professional misconduct, it does not have to be deliberateness. It can be wilful blindness or recklessness.
by Julie Maciura
August 15, 2016
Most municipalities in Ontario are required to hold open Council and Committee meetings. The public can be excluded only in limited circumstances where there is a compelling countervailing interest that outweighs the benefits of openness (e.g., safety concerns, formulating litigation or contractual negotiation strategies, obtaining legal advice). Transparency helps ensure that good decisions are made, that self-dealing and other conflicts of interest are avoided, and enhances accountability and public trust in the organization. A decade ago, the Supreme Court of Canada upheld a broad interpretation of this duty because of its importance: London (City) v. RSJ Holdings Inc.,  2 SCR 588. Many regulators have similar provisions that apply to their Board or Council meetings. Even if there are no such provisions, many regulators have voluntarily adopted a similar approach in order to foster public confidence.
Recently the Ontario Ombudsman’s office has released its third edition of the Sunshine Law Handbook guiding organizations in applying transparency principles. Their top ten tips are as follows:
- Know and follow the Municipal Act, 2001 and your procedure by-law’s open meeting requirements.
- Make sure you have a procedure by-law that complies with the Municipal Act.
- Give adequate advance public notice of all meetings, closed sessions and agenda items.
- Do not add last-minute agenda items to closed sessions, except in truly urgent situations.
- Open the meeting unless closure is specifically authorized under the Municipal Act and there is a real need to exclude the public.
- Pick the right s. 239 exception before closing a meeting.
- Pass a resolution in public that includes meaningful information about the issue to be considered – before closing the doors.
- Record the meeting, including all resolutions and decisions, preferably using digital audio or video.
- Do not hold a vote in closed session unless it is for a procedural matter or for giving directions to staff.
- Report back publicly in open session about what occurred in closed session.
These tips, with appropriate modifications, may assist regulators in achieving maximum openness in their processes.
What’s Going on with those Trinity Western University Cases?
August 10, 2016
It may be difficult to follow the numerous cases dealing with Trinity Western University. Just last week we reported that Ontario’s highest court upheld the refusal of the Law Society of Upper Canada to accredit the school: Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518.
However, late last month, in The Nova Scotia Barristers’ Society v Trinity Western University, 2016 NSCA 59, the highest court in Nova Scotia appeared to reach the opposite conclusion. To be fair, the two decisions are different. In Nova Scotia the regulator enacted provisions that allowed it to adjudicate whether the school breached the Nova Scotia Human Rights Act. The Court was concerned with this approach as only courts should make formal declarations of this sort. Also, the wording of the provision appeared to give the regulator powers to give directions to the out-of-province educational program rather than to simply assess the suitability of the applicants for registration. Interestingly, the court in Nova Scotia did not even address the Canadian Charter of Rights and Freedoms that played such a significant role in the Ontario Court of Appeal decision.
Thus, the two decisions may not even be inconsistent. However, it is likely that the broader issue will go to the Supreme Court of Canada which will be interesting, not only for the legal and societal values in issue, but also because in 1998 that Court sided with Trinity Western University when a similar issue arose in respect of its teaching program.
Will the Member Do it Again?
by Erica Richler
August 8, 2016
One of the most common arguments against revocation in serious cases of misconduct is that the member has learned his or her lesson and will not repeat the conduct. In Doolan v Law Society of Manitoba, 2016 MBCA 57, Manitoba’s highest court gave guidance as to when such an argument can be rejected even for first findings against members with a long and clean record and extensive good character references. Doolan had been found guilty of misappropriating about $10,000 of client money. The Court upheld that a misappropriation finding could be made even in cases where a deliberate attempt to steal the money was not proved. Unauthorized use of clients’ funds was sufficient.
On the issue of revocation, the Court noted that the fact the member tried to conceal the misappropriation was a significant aggravating factor that indicated the member might do it again. In addition, letters of reference could be discounted where the authors were not aware of the finding (or even the initial allegations) at the time they wrote the letters.
Trinity Western University Again
by Rebecca Durcan
August 2, 2016
In Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518 the Ontario Court of Appeal upheld the refusal of the Law Society of Upper Canada to accredit the law school program.
Six Canadian law regulators have accredited the program. Three, including Ontario’s, have not. Their refusal is due to the mandatory code of conduct “covenant” which prohibits sexual activity except between a married man and woman and is arguably inconsistent with fundamental Canadian values and human rights.
The Court held that the decision of the Law Society discriminated against the freedom of religion of some students at Trinity Western. However, that discrimination was outbalanced by the discriminatory impact of the covenant on other groups including the LGBTQ community. The Court said: “My conclusion is a simple one: the part of TWU’s Community Covenant in issue in this appeal is deeply discriminatory to the LGBTQ community, and it hurts.” The Court held that the Law Society was acting reasonably in denying a public benefit (i.e., accreditation) to a program from a school that was acting in a profoundly discriminatory fashion. In making that decision the regulator was entitled to consider public interest factors beyond the quality of the education provided by the school.
Incivility Finding Upheld by Court of Appeal
by Bernie LeBlanc
July 25, 2016
In Groia v. The Law Society of Upper Canada, 2016 ONCA 471 the issue was balancing the duty of lawyers to be civil against the duty of lawyers to be fearless advocates: During a hotly contested hearing related to the Bre-X mining scandal, a lawyer made repeated comments that were characterized as “rude, unnecessarily abrasive, sarcastic, demeaning, abusive or … that attacks the personal integrity of opponents, parties, witnesses or of the court, where there is an absence of a good faith basis for the attack”. The Court of Appeal upheld the finding of professional misconduct in this case. It stated that such a hearing “is a contextual and fact-specific inquiry [such] that a precise definition of incivility is elusive and undesirable”. The Court also held that there is no conflict between the duty to be a zealous advocate and to be civil. The Court also saw no breach of the freedom of expression protections contained in the Canadian Charter of Rights and Freedoms given this fact-specific approach to the allegations.
The Court of Appeal sidestepped the issue of how a discipline panel can use the reasons for decision of a court in making a finding of professional misconduct. The Court of Appeal indicated that it was clear not much weight was put on those reasons so nothing much turned on the hearing panel considering the Bre-X judge’s reasons.
The Court of Appeal also found the penalty (a one month suspension) and the costs award ($200,000) as being reasonable in the circumstances and warranting deference by the courts.
There was a dissenting judgment based primarily on an assessment of whether, in the context of this case, including the trial judge’s rulings, the conduct of Mr. Groia was really unprofessional.
Disclosure of Regulator’s Files
by Julie Maciura
July 18, 2016
One of the duties of a regulator in disciplinary matters is to disclose all relevant information it possesses unless the information is privileged. This duty was discussed in detail in Law Society of Upper Canada v Savone, 2016 CanLII 33941 (ON SCDC). It was alleged that Savone had participated in mortgage fraud by flipping properties at inflated prices in “no money down” transactions. Savone sought access to the client files of the lawyers for the other parties in those transactions but the Law Society refused to make that disclosure. In upholding the duty to disclose those files, the Divisional Court held that the confidentiality provisions of the Law Society Act did not create a special privilege; instead the usual test of relevance and privilege remained in place. The fact that the files were obtained by the regulator in other investigations (not the investigation of Savone) was irrelevant; the Law Society possessed them. Once the issue of disclosure of the files was raised by Savone, the prosecution had a duty to review the files and disclose all relevant information unless it was asserting a privilege. Both decisions (i.e., relevance and privilege) were reviewable by the hearing panel. The Court held that a broad view should be taken on the issue of relevance to any issue in the proceeding. Disclosure was not limited to information that would exculpate the member. That the files were held by another department of the regulator did not make them “third-party” files requiring a special procedure to determine whether they should be produced (i.e., an O’Connor motion).
Case Deals with Hot Topics in Discipline – Part 2
by Erica Richler
July 14, 2016
The case of Reid v College of Chiropractors of Ontario, 2016 ONSC 1041 (CanLII), http://canlii.ca/t/gs27k involved a chiropractor who made inappropriate and harassing comments to the complainant (another chiropractor) and failed to adequately cooperate with the College’s investigation of the complaints. The case is notable because it touches on a number of “hot topics” in discipline. While some questions are clarified by this decision, others remain unsettled:
Confusion regarding standard of proof: The Divisional Court stated that the College was required to prove the allegations of professional misconduct “on the basis of evidence that is clear, convincing and cogent and that supports a finding that there has been a significant departure from acceptable professional standards” (relying on Re Bernstein and College of Physicians and Surgeons of Ontario and Barrington v. The Institute of Chartered Accountants of Ontario). The Court made no mention of the balance of probabilities standard as set out in F.H. v. McDougall. Nor did the Court refer to the recent Jacobs v. Ottawa (Police Service) decision, where the Court of Appeal held that “clear and convincing evidence” (as required under the Police Services Act) is a higher standard of proof than the balance of probabilities. Despite the relative certainty over the last several years that discipline committees were required to make findings on the balance of probabilities in all cases, this case raises the question of whether the old notion of a sliding scale (the more serious the conduct, the higher the standard of proof) is creeping back into judicial thinking.
Controversy over costs: The discipline panel had ordered costs against the member in the amount of $166,194.50, representing 51% of the total costs (the hearing was five and a half days and involved some agreed facts). The majority of the Divisional Court upheld this decision as reasonable. However, in a strong dissent, one judge found that the costs award was “unfair and abusive” and would have ordered costs of $60,000 instead. Although it was a dissent, regulators should expect members to raise many of the points made by the dissenting judge in future cases, including the need for a discipline panel to consider the reasonable expectations of the member (he paid his lawyer $32,000 compared to the College’s legal fees of over $260,000) and that costs awards must not be punitive.
Case Deals with Hot Topics in Discipline – Part 1
by Erica Richler
July 12, 2016
The case of Reid v College of Chiropractors of Ontario, 2016 ONSC 1041 (CanLII), http://canlii.ca/t/gs27k involved a chiropractor who made inappropriate and harassing comments to the complainant (another chiropractor) and failed to adequately cooperate with the College’s investigation of the complaints. The case is notable because it touches on a number of “hot topics” in discipline. While some questions are clarified by this decision, others remain unsettled:
No bias on the part of discipline panel member who sat on previous panel involving the same member: Many regulators (particularly in smaller professions) face challenges when appointing discipline panels: quorum and composition have to be met and a reasonable apprehension of bias must be avoided. In this case, the member argued that a panel member’s participation in an earlier hearing involving the same member gave rise to a reasonable apprehension of bias. The Court disagreed and confirmed that “past participation by a Panel member in a matter does not amount to a valid concern about bias when the earlier hearing involved an Agreed Statement of Facts and no findings of credibility.”
College has authority to compel member’s cooperation in investigations: The Court noted that the Health Professions Procedural Code does not require a member to respond to a complaint; the language is permissive. However, the College in this case also had a written standard of practice setting out an expectation that members must cooperate with the College and its committees when reasonable requests for information are made. The letters written to the member in this case had also specifically requested a response to the complaints. In these circumstances, the Court held that the College had the authority to require a response from the member and the member’s failure to cooperate amounted to professional misconduct.
Number of Exam Re-Writes
by Rebecca Durcan
July 4, 2016
Regulators who require applicants to pass an examination before registration grapple with how often the applicant should be able to attempt the exam. There is a concern about fairness to the applicant (the rationale being that few people who fail an exam three or four times ever pass it). Repeated retakes are expensive for both applicants and regulators alike and arguably “block” the number of seats available for new applicants. Other concerns include applicants “learning the exam” rather than the underlying competencies that are being tested and the deterioration of applicants’ competencies over the months and years as they focus on the exam.
For the College of Nurses of Ontario (CNO) the most frequent ground of appeal in registration matters to the Appeal Board are from applicants who have been unsuccessful in the examination more than three times. The CNO is currently consulting on a proposed registration regulation change that would give its Council the ability to expand the number of examination attempts and could even make them unlimited. The CNO has advised the National Council Licensure Examination – Registered Nurse that its review of all of the information, including psychometric evidence, suggests that it is appropriate to permit unlimited attempts. This step by a major regulatory body may spark a reconsideration of the issue by other regulators. See: http://www.cno.org/en/trending-topics/registration-regulation-tell-us-what-you-think/ for more details.
Voluntary Associations Governed by Procedural Fairness Too
by Bernie LeBlanc
June 27, 2016
It is a popular misconception that an organization has to be exercising a statutory power to be subject to judicial review. The courts have held that voluntary associations serving a significant public purpose are also subject to the administrative law rules of procedural fairness. This principle was demonstrated recently in Gymnopoulos v. Ontario Assn. of Basketball Officials, 2016 ONSC 1525 where coaches of a school basketball team became irate at the officials after losing a lead in the last 90 seconds of a playoff game as a result of six fouls called against them. The resulting disciplinary suspension of the coaches from basketball was set aside by the court because of a cumulative series of procedural errors including lack of formal notice of the allegations, incomplete disclosure of evidence, limited participation in the hearing process and an absence of reasons to explain the disparate sanctions imposed. The Court heard the case even though the suspensions were largely over. Voluntary associations need to follow a fair procedure when dealing with disciplinary issues.
Participant Expert Witnesses
by Julie Maciura
June 24, 2016
Generally expert witnesses must be neutral and they must provide a written report of their opinion well in advance of any hearing. Last year the Ontario Court of Appeal stated that these rules did not necessarily apply to “participant experts”: Westerhof v. Gee Estate, 2015 ONCA 206. For example, a health care practitioner involved in the treatment of a patient could express opinions within the practitioner’s expertise about the matter (e.g., the nature, cause and likely prognosis about the patient’s condition). Further guidance on this principle was provided in the civil case of XPG, A Partnership v Royal Bank of Canada, 2016 ONSC 3508. The issues in the case involved grain futures contracts. A participant in the events, who was employed by one of the parties, was an expert on the issues. The Court permitted the witness to express opinions about the events in issue but not to provide broader expert opinions on the larger issues in the case. The Court held that permitting wide ranging opinions on broader issues was unfair because no expert report had been provided in advance of the hearing. The Court also indicated that the lack of independence of the expert evidence could be considered when determining how much weight to put on the opinion. It is unclear to what extent the “participant expert” exceptions to disclosure apply in regulatory hearings. In order to avoid “surprise” participant expert opinions at hearings, regulators may wish to make rules of procedure to require disclosure of participant expert opinions.
Absolute Liability Findings
by Erica Richler
June 20, 2016
While most professional misconduct does not require the proof of intent to do something wrong, generally evidence of taking all proper precautions will result in no finding being made. However, there are some types of professional misconduct that prohibit certain conduct, regardless of any precautions taken. In horse racing, for example, there is an absolute rule that the horse not test positive for certain substances on race day. In Director, Ontario Racing Commission v Ontario Racing Commission, 2016 ONSC 3312, a horse tested positive for a pain killer administered well before the recommended cut-off time for that drug. The Divisional Court held that the wording of the provision made it clear that ensuring no amount of the substance was in the horse’s blood stream was an absolute liability “offence” and as such the trainer could not rely on a defence that he had taken all reasonable precautions.
Therefore, the wording of the definition of misconduct is important.
However, on the issue of penalty, the sanction imposed was quite modest (i.e., only removal of first place standing on the race and the resulting purse) because of the circumstances. This result of imposing a lower than expected sanction in an absolute liability matter where there was evidence of some due diligence was expressly upheld in a Divisional Court decision released a few days earlier: Ontario (Racing Commission) v Durham, 2016 ONSC 2490.
Basis for Exemptions of Registration Requirements
by Rebecca Durcan
June 16, 2016
A recurring theme in registration cases is the consideration of special circumstances for exempting registration requirements. An Alberta court upheld the reasonableness of the refusal to grant an exemption in Muti v Law Society of Alberta, 2016 ABQB 276. The applicant was an immigration consultant practising in Calgary who had taken on-line courses to obtain a law degree from a school based in England. To establish equivalence of education, the tribunal directed him to complete eight upper year in-person courses in an accredited law school. The applicant objected on the basis that his distance learning should be given more weight because of his related Canadian experience as an immigration consultant. He also stated that due to his age and family and financial responsibilities he needed to keep working. The Court found that it was reasonable for the tribunal to not consider the applicant’s immigration consulting work as the practice of law (in terms of experience) and that one’s personal situation is not a special circumstance that can be substituted for educational qualifications.
Another View of the Role of Screening Committees
by Bernie LeBlanc
June 13, 2016
In Ontario the law is pretty well settled that complaints screening committees do not make findings of wrongdoing and do not impose sanctions when directing educational and remedial measures. As such, screening committees have a low threshold for directing remedial measures, such as caution. There simply needs to be a reasonable basis for taking the remedial step. However, that does not seem to be the case everywhere. In Peddle v. The Newfoundland and Labrador Pharmacy Board, 2016 CanLII 29648 (NL SCTD), the court said:
In my view, it is impossible for the Committee to issue a “caution” without a finding of conduct deserving of sanction, even if the conduct is not sufficiently egregious to warrant sending the complaint to a discipline hearing. The fact that the consequences are less than a finding of guilt by a discipline panel does not change the fact that the Committee’s decision would be a negative incident on Peddle’s file. This finding did have consequences adverse to the Applicant, which would make the decision subject to scrutiny by this Court.
The caution relating to a verbal disagreement was removed because there was “no evidence” that it was the pharmacist’s fault.
In Peddle, the Court also held that there was no appearance of bias caused by staff attending at complaints screening committee meetings or by attempting to resolve the complaint.
Giving More than is Asked
by Julie Maciura
June 9, 2016
Just as Discipline Committees should accept a joint submission unless it would bring the administration of justice into disrepute, so they should not impose a sanction well beyond what the prosecutor has sought unless first seeking further input. In Becker v. College of Pharmacists of Manitoba, 2016 MBQB 105, a pharmacist was found to have engaged in unskilled practice. While there was agreement on many aspects of the sanction, there was disagreement as to how long the pharmacist should practice under supervision and for how long he should not be permitted to be a pharmacy manager. The Discipline Committee imposed a period for both restrictions that fell between what the prosecutor sought and what the defence requested. On an internal appeal to the Council of the College, the Council, without warning, imposed significantly longer periods for both restrictions, well beyond what the prosecutor had originally requested. The Court held that before there could be a significant departure from what was requested, the tribunal should have given notice of its concerns and allowed the parties to make submissions. There have been a number of previous cases saying similar things over the years and tribunals should be reminded regularly of this expectation.
Guidance on Definition of Bad Faith
by Rebecca Durcan
June 6, 2016
Ever since the Supreme Court of Canada in Finney v. Barreau du Québec,  2 S.C.R. 17 suggested that some forms of negligence could constitute bad faith, regulators have struggled with the concept. The scope of “bad faith” is important as that is the hurdle that must be established before one can successfully sue a regulator for damages. In Salehi v. Association of Professional Engineers of Ontario, 2016 ONCA 438, Ontario’s highest court clarified how the Finney case fits in with the rest of jurisprudence. The context was an action for damages by a professional engineer who went through a fifteen-year registration process to demonstrate his competency to practise. In dismissing the claim, the Court described the criteria for suing a regulator as follows:
We agree with the motion judge that none of the acts the appellant complains of can be said to constitute bad faith. There was no evidence of malice or intent to harm on the part of the APEO, nor was there a fundamental breakdown in the orderly exercise of its authority or any abuse of power.
Cross-Border Internet Practice Permitted
by Erica Richler
June 2, 2016
The Quebec Court of Appeal has limited the authority of a regulator to prevent the treatment of patients within the province by out-of-province practitioners. A Quebec patient obtained a prescription for corrective lenses from a Quebec practitioner and then ordered glasses and contact lenses from Coastal Contacts, a British Columbia internet-based company. The Quebec regulator then brought legal action against Coastal Contacts for illegally practising in Quebec. The Court held that there was no breach of the law as the “sale” occurred in British Columbia, not Quebec. Unlike some recent cases in other provinces, this Court took a narrow interpretation of the Quebec legislation, taking the approach that it preserved a monopoly and should therefore be given a restrictive and technical meaning. For example, because the legislation prohibited the sale of lenses, not their delivery, it did not capture the conduct of Coastal Contacts in Quebec. In addition, the Court held that the regulator has no jurisdiction over the public that purchases glasses/lenses. In other words, the act of placing the order, paying and receiving confirmation were all acts done, not by Coastal, but by a member of the public over whom the regulator had no jurisdiction. There will likely be a request for leave to appeal this decision to the Supreme Court of Canada. The case may be found at: Ordre des optometrists du Québec c. Coastal Contacts Inc., 2016 QCCA 837 (CanLII), http://canlii.ca/t/grqsf.
Mobility and Good Character
by Bernie LeBlanc
May 25, 2016
Dr. Lum is a dentist in British Columbia with a long history of complaints, some of which resulted in remediation. However, he was in good standing as none of the complaints had been referred to discipline and he had no discipline findings. He applied for registration in Alberta. The Alberta regulatory College refused to register him because Dr. Lum had not demonstrated that he was of good character given his complaints and remediation history. In Lum v Alberta Dental Association and College (Review Panel), 2016 ABCA 154, Alberta’s highest court upheld the decision. The Court held that regulators deserve significant deference in exercising its public interest discretion in this area. The Court said:
The requirement of good character and reputation is fundamental to that profession’s ability to self-regulate. It must be able to accept or reject members and discipline its own members. Of necessity, that determination is to some extent subjective. The considerations include but are not limited to whether the person has fulfilled all educational requirements, whether the person is of integrity and respects the professional guidelines, rules and ethics that are an essential part of the profession. This includes competence, responsibility to patients and to the public at large, respect for other members of the profession, comporting oneself as befitting a professional and conducting oneself at all times within those parameters.
The Court also found that mobility trade agreements were not directly enforceable against regulatory bodies and it was up to the government to change any laws necessary to implement such agreements.
Collateral Consequences of Guilty Pleas
by Julie Maciura
May 20, 2016
Guilty Pleas must be voluntary, unequivocal and informed. The Ontario Court of Appeal allowed a person to withdraw his guilty plea for dangerous driving because he did not realize (because his lawyer did not tell him) that the conviction would result in an indefinite suspension of his driver’s licence. In R. v. Quick, 2016 ONCA 95 the Court found that the “collateral consequence” of the guilty plea was legally relevant and made the plea of guilty uninformed. The Court did not precisely identify what sorts of collateral consequences would usually nullify a guilty plea, but rather said it depended on the facts. The Court applied the following test: “is there a realistic likelihood that an accused, informed of the collateral consequence of a plea, would not have pleaded guilty and gone to trial? In short, would information have mattered to the accused?
There are two significant consequences for regulators. The first is when a regulator prosecutes an individual in criminal or provincial offences court. The regulator should ensure that the accused is aware of the regulatory consequences (e.g., possible loss of registration) of pleading guilty. The second possible consequence for regulators is to consider whether this principle might apply to pleas in regulatory proceedings like discipline hearings. Generally criminal concepts are not imported directly to discipline hearings, but sometimes the underlying principles are loosely applied.
Drawing the Line Between Privacy and Transparency
by Erica Richler
May 16, 2016
Public bodies struggle to draw the line between respecting the privacy of individuals and being transparent, and the line keeps moving. Take the example of where a concern of harassment has been raised against a public office holder (e.g., a Registrar or a member of a Council/Board of Directors of a Regulator). Such investigations and resolutions are almost always done with a promise of confidentiality to the person raising the concern, at least to the greatest extent possible. However, should the matter become public in some way, the organization can easily be accused of “censoring” the information or protecting itself unless it discloses the information. Political columnist Martin Regg Cohn argues that in the recent controversy involving Premier Kathleen Wynne, silence was the right response. Any regulators faced with a similar situation should think seriously about how to strike the right balance between public accountability and protecting the privacy of the individuals involved. https://www.thestar.com/news/queenspark/2016/05/12/how-to-deal-with-mpps-accused-of-sexual-assault-cohn.html
Ontario Launches Red Tape Challenge
by Rebecca Durcan
May 12, 2016
The Ontario government is attempting a new form of consultation. It is online. It permits anonymous submissions. And it looks at one sector of activity at a time (rather than at a specific program or regulator). The stated goal of the initiative is to develop: “modern, outcome-focused and evidence-based regulations…By reducing the burden to business while protecting consumers, workers and the environment, Ontario is helping to create the right climate to create jobs and grow the economy.” Six sectors have been selected for sequential review over the next two years. Two of those sectors, financial services and forestry, involve professional regulators. While one tends to be cynical of any government activity that uses the words “red tape” and while one wonders what will happen to any proposals for reform as they make their way through the affected Ministries and stakeholders, this may still be worth watching. For more information, see: https://www.ontario.ca/page/red-tape-challenge?_ga=1.34876449.1445893852.1456780114
How Strong Must the Evidence be Before Making an Interim Order?
by Bernie LeBlanc
May 10, 2016
“Not very”, says the British Columbia Court of Appeal. When a screening committee decides whether there should be restrictions on the practitioner until the discipline hearing can be held, the primary issue is whether in all of the circumstances the public needs immediate protection. In Scott v. College of Massage Therapists of British Columbia, 2016 BCCA 180, the screening committee imposed an interim order requiring the massage therapist to post signs about and use a chaperone for treatments. The complaint was about sexual abuse. There were no witnesses or other evidence. The massage therapist argued that the allegations were unsubstantiated.
The court said that the role of the screening committee, in reviewing the strength of the case, is to make “a provisional assessment of the facts” to consider “the reliability of the evidence, its internal and external consistency, the plausibility of the complaint, and motivation. This is in aid of determining whether the complaint is manifestly unfounded or manifestly exaggerated (Perry). The inquiry committee’s mandate is not…to test the sufficiency of the evidence to establish his sexual misconduct”.
Regulatory Rule-Making Still Under Increased Scrutiny
by Julie Maciura
May 3, 2016
A lower Alberta court disagrees with the British Columbia Court of Appeal and says regulators need empirical evidence that their rules protect the public interest. “Anecdotal” evidence (i.e., the views of Council members) is not enough. This Court held that rules making it a conflict of interest for pharmacists to offer inducements (e.g., reward points) to patients to buy drugs are invalid. In Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 232, the Court characterized the rules as relating to the cost of drugs and competition between pharmacists, finding the rules unrelated to the professionalism or ethics of the individual pharmacists. Interestingly, the Court also ascertained the mandate of the College’s powers to make rules by referring to Hansard debates of the legislature when the statute was being enacted, rather than focusing primarily on the legislative scheme itself.