Recent Posts

REGULATION PRO

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

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

A Regulator’s Public Interest is Not Unrestricted

by Erica Richler
July 26, 2021

There is significant debate amongst regulators as to the public interest they serve. Typically this debate occurs when engaging in strategic planning or policy making.

However, in Powerhouse Corporation v. Registrar of Alcohol, Gaming and Racing, 2021 ONSC 4116 (CanLII), https://canlii.ca/t/jgdwp Ontario’s Divisional Court added a statutory interpretation component to the discussion. In that case an establishment’s liquor licence prevented amplified sound outside that would disturb the neighbours. If the establishment sought a variance of the restrictions, the onus would be on the applicant to demonstrate the reasonableness of the request and only one such application could be made every two years. The establishment arranged for a new corporate entity to apply for a new licence where the onus would be on those wanting to restrict the licence to establish a lack of public interest.

The decision turned on the wording of a provision that read as follows:

the licence is not in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located

In opposing the application entirely, the city argued that the public interest included preventing applicants from circumventing the limitations on applications to vary existing conditions by having the application brought by a new corporation designed to achieve the same outcome. The Court rejected this argument. It held that the term “public interest” needed to be interpreted in accordance with the surrounding language of the provision. Under this provision the public interest was focussed on the needs and wishes of the community rather than a desire to prevent legal manoeuvres. The Court said:

The LAT’s [appeal tribunal’s] caution properly reflects the Supreme Court of Canada’s concern that “public interest” conditions in administrative enabling legislation not be given overly expansive interpretations that would give a board “total discretion over its limitations” ….

The Court did say that another provision of the Act, dealing with “reasonable grounds for belief that the applicant will not carry on business in accordance with the law and with integrity and honesty” could have been available if raised. In addition, the Court held that the history of noisy sound justified maintaining the restriction on amplified sound for the entity, just like it existed for the existing establishment.

The case does illustrate, however, that regulators need to interpret the public interest that they serve in accordance with the language and intent of their enabling legislation.

Registration Assessments are not Training Programs

Durcan_Rebecca_5583

by Rebecca Durcan
July 22, 2021

Registration assessments take many forms. They also have enormous significance to applicants. Where the assessment takes place in a practice setting, applicants may come to view them as training programs where they will be given feedback and further opportunities to improve their performance. So long as the applicant is clearly told that the experience is an assessment, regulators do not need to treat them as training programs: Sandhu v College of Physicians and Surgeons of Alberta, 2021 ABQB 494 (CanLII), https://canlii.ca/t/jgmd8/.

In this case the applicant was an internationally trained physician who was required to satisfactorily complete a required assessment for independent practice. Within a few days of commencing the months-long assessment the assessor indicated to the regulator that the applicant’s performance was unsatisfactory and that the assessor had to withdraw from the role for patient safety reasons. Upon reviewing the information and receiving submissions from the applicant the regulator agreed and required the applicant to complete significant additional training before being assessed again.

The Court dismissed the applicant’s request for judicial review. The Court found that the applicant had been clearly informed that the experience was an assessment, not a training opportunity. As such the applicant was not entitled to immediate notice of concerns, constructive feedback or opportunities to continue the assessment once safety concerns were identified. The Court also found that there was no appearance of bias on the part of the assessor for forming a quick conclusion. The Court also found that safety concerns could be partially based on record keeping and communication issues that placed the safety of patients at risk.

The Court found that the procedural fairness requirements on the regulator were met. On the extent of the duty of procedural fairness, the Court said:

In my view, this statement indicates that determining whether the PRA [assessment] process was fair requires consideration of the statutory and social context. The CPSA [regulator] is charged by statute with responsibility for establishing and enforcing appropriate standards of medical practice in Alberta. It has a duty under the Health Professions Act to protect and serve the public interest. It does this, in part, by designing a PRA process that reflects, to the greatest extent possible, the circumstances a physician will encounter in independent practice and ascertains the applicant’s ability to manage those exigencies without compromising patient safety. Put simply, Dr. Sandhu was not the only one who had a stake in the outcome of his PRA.

The case illustrates the value of regulators being clear as to the purpose and scope of registration assessments where they occur in a practice setting.

Can Competitors Challenge Regulatory Outcomes?

by Julie Maciura
July 19, 2021

An owner of a funeral home leased land beside it to a crematorium. The crematorium began to offer funeral services in competition with the funeral home. The funeral home objected and sued in court. The crematorium applied to the regulator for a licence to offer funeral services (something it did not initially do). The regulator granted the licence with conditions. The funeral home sought judicial review of the regulator’s decision saying that the regulator had not adequately considered the previous illegal practice of the crematorium. The issue before the Court was whether the funeral home had standing to challenge the regulator’s decision in respect of a different organization: Accettone Funeral Home Ltd. v. Ajax Crematorium and Visitation Centre and Bereavement Authority of Ontario, 2021 ONSC 4081 (CanLII), https://canlii.ca/t/jg8cm.

The Court held that a competitor has no “standing” to bring an application for judicial review challenging the regulator’s licensing decision. The Court held that the funeral home did not have a legal “interest” enabling it to challenge the decision. The Court said:

… this application is really about a business seeking to have the licence of a competitor revoked so it can eliminate the competition.  Losing a market advantage purely because it now faces a competitor next door does not provide [the funeral home] a basis for seeking declaratory relief.

The Court also said that there was no public interest in the issues in dispute in which the Court should granting standing to allow the funeral home to challenge the decision.

There is no evidence of [the funeral home]’s real and continued interest in the broader issue of regulation of the funeral industry.  [the funeral home]’s real interest is with respect to ACVC’s licence.  This is a transparent attempt to have the licence of a competitor revoked so it can eliminate the competition….  To allow [the funeral home] who has no direct interest in a matter to challenge the routine issuance of a licence would potentially open the floodgates to frivolous challenges being made by competing businesses any time a licence was granted to a competitor.

The funeral home’s remedy lay in civil court for any breach of contract that might exist.

No Municipal Manoeuvres

by Bernie LeBlanc
July 15, 2021

British Columbia’s highest court has said that municipalities cannot ignore safety requirements established by professional regulation legislation: Architectural Institute of British Columbia v. Langford (City), 2021 BCCA 261 (CanLII), https://canlii.ca/t/jgp72. Under provincial legislation, certain buildings must be designed by licensed architects. Some municipalities in the province issue building permits that do not comply with this requirement. The municipalities argue that their legislation give building officials discretion to issue permits without reference to the legislation regulating architects. The municipalities also argued that professional legislation regulates architects, not buildings.

The Court disagreed and upheld a declaration that the issuance of building permits for structures that require architectural design is not permitted.

The narrow question raised in this appeal is whether a decision to approve plans that are in contravention of the safety standard set out in the Architects Act can be justified in relation to the facts and law that constrain the decision maker. This question does not turn on the provisions of the Bylaw, but on the effect of mandatory provincial legislation external to the Bylaw. …

These provisions are safety standards that limit the exercise of discretion by any delegated decision maker tasked with the authority to approve the construction of buildings that fall within the statutory definition. On the face of the legislation, and having in mind the existing jurisprudence, the Act does constrain the building inspectors. No reasonable analysis has been suggested to support a contrary conclusion. It is not enough to simply state that the City is of a different view.

This case suggests that municipalities cannot ignore health and safety requirements established in provincial legislation regulating professions.

Dignified Access to Hearing Exhibits

by Bernie LeBlanc
July 12, 2021

A Supreme Court of Canada decision on sealing a court file may have implications for access to exhibits at discipline hearings. In Sherman (Estate) v. Donovan, 2021 SCC 25 (CanLII), https://canlii.ca/t/jgc4x the estate Trustees of a prominent family sought to seal the court file related to the estate. The deceased remain subject of an active murder investigation.

In setting aside the sealing order made by the trial Judge, the Court emphasized the open court principle. The test to seal a Court file was articulated as follows:

In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:

  1. court openness poses a serious risk to an important public interest;
  2. the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and
  3. as a matter of proportionality, the benefits of the order outweigh its negative effects.

The Court held that “Neither the susceptibility of people nor the fact that the advertisement is disadvantageous, embarrassing or distressing to some people will generally, on their own, justify an infringement of the principle of open court proceedings…”. Rather “the information in the court file is sufficiently sensitive such that it can be said to strike at the biographical core of the individual and, in the broader circumstances, that there is a serious risk that, without an exceptional order, the affected individual will suffer an affront to their dignity.” Examples of this rather vague test include: “information related to stigmatized medical conditions …, stigmatized work …, sexual orientation …, and subjection to sexual assault or harassment …”.

A sealing order can also be justified where there is a serious risk of physical harm should the information become public.

The Court also set out a number of considerations about whether alternative measures (such as redacting portions of the documents or banning publication) are sufficient in balancing the proportionality of the benefits and negative effects of a sealing order.

Hearing tribunals may have to apply a similar analysis when determining public access to their hearing exhibits. For example, many hearing tribunals routinely disallow public access to client or patient files. To avoid this issue, some regulators are redacting the identity of client information from documents before they are filed as exhibits.

Paw Patrol

Durcan_Rebecca_5583

by Rebecca Durcan
July 8, 2021

In Walia v. College of Veterinarians of Ontario, 2021 ONSC 4023 (CanLII), https://canlii.ca/t/jg6qj, a veterinarian was disciplined for failing to properly diagnose and treat a fracture in the paw of a dog and for failing to provide the treatment records, particularly the x-ray, to the usual treating veterinarian on a timely basis. After a contentious hearing, the practitioner’s licence was suspended for three months and was ordered to pay approximately two-thirds of the hearing costs, amounting to $135,000. In dismissing the appeal the Court made a number of points relevant to regulators:

  1. It is proper and common for the regulator’s counsel to draft the allegations being referred to discipline, prosecuting the case at discipline, and then appearing on the appeal.
  2. There is no appearance of bias for independent legal counsel to act as prosecuting counsel in other discipline cases before other regulators.
  3. There was no unfairness in the regulator obtaining additional evidence after the referral to discipline, especially where that evidence was disclosed prior to the discipline hearing.
  4. The screening committee referring a matter to discipline does not need to give reasons for that decision.
  5. The regulator did not “falsify” evidence or act unfairly by alleging that the x-rays were not properly labelled and then withdrawing that allegation once clearer copies of the x-rays were obtained.
  6. The regulator does not need to produce the dockets of prosecuting counsel when seeking costs related to those legal expenses. Prosecuting counsel are also not limited to one lawyer. On the issue of the amount of costs, the Court said:

A tribunal’s decision with respect to the costs is owed significant deference. We agree with the Discipline Committee’s comment that Dr. Walia’s conduct did serve to lengthen the proceedings and increase the costs of the hearing. Another factor in the award of costs is that the College must fund its expenses from the collection of fees from its membership. If the guilty party does not pay those costs, they must be recovered from the membership at large. We do not see any error in principle or palpable and overriding error of fact in the discipline panel’s order that Dr. Walia pay costs in the sum of $ 135,000. There is no basis for this Court to intervene.

Practitioners run the risk of significant cost consequences when they raise numerous meritless challenges.

Penalty Again

by Natasha Danson
July 5, 2021

Given the principle of proportionality (i.e., that the sanction in discipline cases should be relatively consistent), it is often difficult to raise the range of sanctions for a particular type of conduct. If done carefully, the range can be increased where there is evidence that societal expectations have changed: Schwarz v. The College of Physicians and Surgeons of Ontario, 2021 ONSC 3313 (CanLII), https://canlii.ca/t/jfrsz. (See More Guidance on Scrutiny of Discipline Decisions for further discussion on this point.)

Another recent case suggests other considerations that can result in the upping of the range of penalty: Attallah v. College of Physicians and Surgeons of Ontario, 2021 ONSC 3722 (CanLII), https://canlii.ca/t/jg2wj. In that case, a physician’s registration was revoked for deliberately billing for services that were either ineligible for payment or were falsified. In upholding revocation, the Court noted the following:

  • In a prior decision almost 20 years earlier, the reasons of the discipline panel noted that false billing was a serious matter and that sanctions needed to increase.
  • There were a few prior cases of revocation where there were significant aggravating factors. Generally the range of sanctions for dishonest billing had gradually increased since those prior cases were decided.
  • The finding of the panel in this case was that the false billing was intentional and deliberate and thus revocation “was necessary to protect the public, promote public confidence in the profession and serve as general deterrence to the membership”.

The Court found that “[n]o error in principle has been shown. The penalty imposed, in the circumstances of this case, cannot be said to be clearly unfit.”

The case had a number of other interesting issues. For example, it contains guidance on various evidentiary issues, including that an inference can be drawn from a practitioner’s failure to testify:

At the close of the College’s case there was ample evidence which, if left unanswered, could establish professional misconduct on a balance of probabilities. In these circumstances, it is well settled that an adverse inference may be drawn from the physician’s failure to testify without any implicit alteration of the burden of proof ….”

In addition, the Court held that the catch-all definition of professional misconduct (i.e., conduct that is disgraceful, dishonourable or unprofessional) does not require moral failure. A serious or persistent disregard for one’s professional obligations is sufficient.

Finally, the Court held that it was entirely appropriate for the hearing panel to not permit the practitioner to testify at the sanction phase of the hearing about the findings of misconduct:

The Committee did not prevent the Appellant from testifying at his penalty hearing but did refuse to admit evidence that it determined could only serve as a collateral attack on its liability decision. It did not err in doing so. Where defense counsel in a professional discipline matter opts for the tactical advantage of not calling the respondent at the merits hearing, the respondent could not subsequently be permitted to testify during the penalty phase in an effort to rebut the core evidence heard by the panel during the liability phase. This would be a fundamental abuse of the principle of finality and of “time-honored and accepted” trial and sentencing procedures ….

Malicious Prosecution of Disciplinary Allegations

by Erica Richler
June 28, 2021

Whether and when regulatory staff and prosecuting counsel can be sued for malicious prosecution has always been unclear. The recent case of Bahadar v Real Estate Council of Alberta, 2021 ABQB 395 (CanLII), https://canlii.ca/t/jg371 continues that uncertainty.

After the practitioner’s discipline hearing for allegations related to mortgage fraud was stayed for undue delay, the practitioner sued regulatory staff and the prosecuting lawyers for malicious prosecution. In permitting the claim to proceed to trial, the Court indicated as follows:

  • It remains unclear whether the tort of malicious prosecution, usually arising in criminal prosecutions, is even available for professional misconduct prosecutions. The Court left that issue to the trial judge.
  • There were sufficient pleadings of the staff and legal counsel involvement in initiating and continuing the proceedings to leave that issue for the trial judge.
  • There is sufficient ambiguity as to whether a permanent stay of proceedings by the discipline committee for delay amounted to a disposition in favour of the practitioner so as to leave that issue for the trial judge.
  • There were sufficient facts pleaded as to the quality of the evidence before the regulator and the inordinate delay that the issue of whether the regulator and their legal counsel had reasonable cause to pursue the prosecution should be left to the trial judge.
  • The test as to what constitutes malice in such a prosecution remains unclear. The Court stated: “In my view, spite, ill-will or a spirit of vengeance combined with a willful and intentional effort on a prosecutor’s part that abuses or distorts his proper role within the disciplinary system will satisfy the definition of malice.” While the practitioner had to plead particulars of malice, the Court acknowledged that it was difficult to do so without having an opportunity to examine the defendants. The Court held that the allegations that the regulatory staff and legal counsel had mislead about the reasons for the delay in prosecution and failing to provide exculpatory evidence to process participants was sufficient at this early stage.

The Court emphasized that at this point in the proceeding it was required to accept the practitioner’s factual pleadings as true. If the practitioner could not prove them at trial, the claim would fail.

The one issue clarified by the Court was that prosecutors in disciplinary proceedings are in a different position than Crown prosecutors. They represent a client (the regulatory body) and are not held to the same standards of independence as Crown prosecutors.

More Guidance on Scrutiny of Discipline Decisions

Durcan_Rebecca_5583

by Rebecca Durcan
June 21, 2021

Probably the best way to see the level of scrutiny of disciplinary decisions since the decision of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), https://canlii.ca/t/j46kb is to read current decisions of the Divisional Court. A recent example in a sexual abuse case is: Schwarz v. The College of Physicians and Surgeons of Ontario, 2021 ONSC 3313 (CanLII), https://canlii.ca/t/jfrsz.

One thing that becomes immediately obvious is the level of detail of the discussion of the credibility findings and sanction ordered. In pre-Vavilov cases, the courts often provided much shorter reasons essentially expressing deference to the tribunal that heard the evidence. In the Schwartz case the Court conducted a detailed analysis of the credibility findings and the sanction considerations.

For the credibility analysis the Court provided guidance on the palpable and overriding error test:

Palpable and overriding error is a deferential standard that recognizes the expertise and competence of the original trier of fact…. “An error is palpable if it is plainly seen and if all the evidence need not be reconsidered to identify it, and is overriding if it has affected the result.” It is not in the nature of a “needle in the haystack, but of a beam in the eye” [citation omitted]….

In upholding the credibility findings the Court noted the following:

  • The hearing panel does not need to address every credibility issue raised by the parties.
  • There is a distinction between peripheral issues (e.g., the date of an event) and a central aspect of the event. The panel is entitled to put more weight on consistency on the central aspects of the event.
  • There is also a distinction between applying different levels of scrutiny to the credibility of a party (which is not permitted) and finding one party credible and the other party not credible based on a similar level of scrutiny.
  • The Court will give deference to the expertise of the panel in assessing significance of what is and is not recorded in the records and whether specialist terminology is being misused.

In upholding the sanction of revocation the Court noted the following:

  • A determination that a practitioner is ungovernable, or unwilling to be remediated, is a finding of fact that is given deference by the courts. In this case the practitioner had participated in ethics and boundaries remediation before engaging in the conduct.
  • In determining the proportionality of the sanction compared to other cases, the panel can consider more than just the actual behaviour.

In this case, while Dr. Schwarz’s misconduct may not have been as serious as some, it did persist over a number of years (2010 to 2012 and again in 2015), it did involve multiple occasions with 4 different people, one of whom was a vulnerable patient, and, most importantly, there was evidence to support the finding that Dr. Schwarz was not capable of being rehabilitated.

  • The Court also said that a hearing panel can take into account changing societal norms in increasing the usual range of penalties, particularly where there was supporting evidence.

Furthermore, as the Committee found, the decision of the Ontario Court of Appeal in Peirovy does allow a College tribunal to take into account changing societal norms to justify a penalty that may be a departure from the range of penalties imposed in the past. In Peirovy, the Court was clear that it was not up to the Court to “change the penalty range for an entire category of behavior.” This was “not to suggest that penalty ranges cannot change”, but that “[t]he Discipline Committee was in the best position to assess whether a deviation from the range of penalties previously imposed for similar misconduct or a wholesale change was required”: Peirovy, at para. 83. The evidence of the change in societal norms that the Committee used was a task force report on sexual abuse in the medical profession that was released in the same year that Dr. Schwarz’s sexual misconduct towards Patient A occurred (2015). Thus, the norms were in place at the time that Dr. Schwarz committed the most serious offenses that led to the revocation of his certificate.

This case suggests that while the Courts will examine the evidence and arguments in more detail than in the past, the actual level of scrutiny is not much higher than before Vavilov.

Is Publication Worse than a Discipline Hearing?

by Bernie LeBlanc
June 14, 2021

A former member facing a discipline hearing challenged the regulator’s decision to publish notice of the upcoming hearing, as well as the right to hold the hearing itself. In fact, it seemed in Dhillon v The Law Society of British Columbia, 2021 BCSC 806 (CanLII), https://canlii.ca/t/jfqn5 that the resigned practitioner was more concerned about the publication than the hearing itself, since he had resigned from the profession years ago. The primary basis of the challenge was that the regulator had permitted him to resign without conditions, in effect, waiving its right to prosecute him.

The Court disagreed. While there was no clear provision stating that the regulatory body had continuing jurisdiction over former members, the Court concluded that the intent of the legislation was to maintain such jurisdiction. There was a provision in the enabling statute referring to the discipline of non-members. The Court concluded that an amendment to the legislation enabling the regulator to refuse to accept a resignation or to impose conditions on a resignation was not the only mechanism to ensure ongoing jurisdiction over former members.

However, the case illustrates the value of provisions in regulatory statutes explicitly maintaining jurisdiction over former members.

Oversight Blues

by Julie Maciura
June 10, 2021

While some regulators in Ontario are accountable to appeal tribunals (e.g., Licence Appeal Tribunal) and many Ontario regulators are scrutinized by the Office of the Fairness Commission, few are subject to true oversight bodies. Québec, British Columbia and the United Kingdom have much more experience with oversight bodies. One Ontario exception is the role of the Ontario Civilian Police Commission over police forces. That Commission has had extensive litigation with the Durham Regional Police Service (DRPS) in recent years including over the Commission’s appointment of an administrator in 2019. Some insight into the complexities of such oversight can be found in the decision of Durham Regional Police Service v. The Ontario Civilian Police Commission, 2021 ONSC 2065 (CanLII), https://canlii.ca/t/jfqjq.

In that case the Commission directed the DRPS to halt a disciplinary prosecution of an officer on the basis that the preconditions for referral to discipline, including a formal investigation, had not been met. The DRPS challenged the direction on a number of grounds. The Court found that:

  1. The Commission had provided procedural fairness by adequately identifying the concern about compliance with the statutory preconditions for the discipline hearing and providing two opportunities for the DRPS to make written submissions about the concern.
  2. The Commission had not denied procedural fairness by refusing to grant a second request for an extension to make the written submissions. When considering the process as a whole the DRPS had been given adequate opportunity to make submissions. The extension requests were made late and the reasons given for the requests were not persuasive. Even though the second extension request was refused, the Commission considered the written submissions even though they were late.
  3. The DRPS had not established that an appearance of bias existed, the allegation of which was largely based on the argument that the history of conflicts between the DRPS and the Commission had created an adversarial relationship that amounted to institutional bias. The Court considered that the oversight role of the Commission could naturally lead to these sorts of conflicts and that the DRPS was required to provide more than speculation to establish bias.
  4. The decision made by the Commission about the statutory preconditions to discipline was reasonable.

This case demonstrates the type of unpleasantness that can arise where there is true oversight. Fortunately the experience in Québec, British Columbia and the United Kingdom suggests that these sorts of difficult relationships are the exception rather than the rule.

The “Jump” Principle

by Natasha Danson
June 7, 2021

A deliberate breach of an injunction restraining illegal practice deserves significant sanction. Such conduct is contempt of court. However, determining the severity of the sanction is challenging as was demonstrated in Law Society of Alberta v Beaver, 2021 ABCA 163 (CanLII), https://canlii.ca/t/jfrx7.

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

The lower court imposed a sanction of incarceration for one year. Mr. Beaver appealed on several grounds. The Court of Appeal held that the finding of contempt of court was well founded and that the finding that Mr. Beaver was not credible and that his apology was insincere was unassailable.

However, the Court did conclude that the order for a one-year period of incarceration disregarded some mitigating factors and failed to employ the principle of “laddering” sanctions gradually to give the practitioner opportunities to change their behaviour before receiving a very serious sanction:

We conclude that the chambers judge erred in arriving at the sanction of one year incarceration. On assessing mitigating factors it is an error to wholly reject, as opposed to properly weigh, those factors advanced by Mr Beaver. As noted above, these are accepted every day in criminal courts: Mr Beaver’s personal circumstances, character, current lifestyle, promise to change his behaviour, and the effect of imprisonment on his family. Additionally, it is too great a “jump” to impose a first-time incarceration of one year. We conclude that this term of incarceration is out of the range that should be considered reasonable and proper for Mr Beaver’s civil contempt. Taken as a whole, these conclusions constitute an error in principle, and we find they did have an impact on the sanction imposed, such that it was, in context, demonstrably unfit.

The Court ordered a 90-day period of incarceration to be served on weekends, along with 200 hours of community service so that the sanction was more proportional to those ordered in analogous cases.

Another Broad Interpretation of Investigation Powers

by Erica Richler
June 3, 2021

The trend in court decisions to recognize regulators’ broad investigative powers was reinforced in the decision of A Lawyer v The Law Society of British Columbia, 2021 BCSC 914 (CanLII), https://canlii.ca/t/jfx2v. In that case the regulator demanded and obtained access to all of the practitioner’s paper and electronic records including personal phones. The regulator took the position that it had the right to access the entire records of the practitioner as part of the investigation. In dismissing the practitioner’s challenge to the breadth of the investigation, the Court made the following points:

  1. Under the wording of the provisions of the enabling statute, the regulator could investigate the entire practice of the practitioner and was not limited to the reasonable and probable grounds of misconduct relied upon to authorize the investigation. The Court noted that this provision was different, in this respect, from that of some other regulators that did confine the scope of the investigation to the reasonable and probable grounds.
  2. As a result, the practitioner was not able to challenge the relevance of the information sought. The practitioner could only challenge the regulator accessing information that was personal and irrelevant (e.g., non-practice activities) or that was privileged (e.g., the practitioner’s communications with their own lawyer).
  3. The regulator had not yet made any statutory decisions, so their actions were not yet susceptible to judicial review. Only if the regulator decided to take regulatory action (beyond investigation) were their actions subject to judicial review.
  4. The regulator had met its duty of procedural fairness by determining that there were reasonable and probable grounds to initiate the investigation, providing notice of the investigation and offering a procedure to request exclusion of information that was personal or privileged. At this point at least, the practitioner was not entitled to disclosure of the basis of the investigation or the content of the reasonable and probable grounds.
  5. There was no abuse of process in the regulator initiating a more specific complaints procedure in respect of identified concerns when the broader investigation was stalled due to the legal challenge.
  6. The approval of the very broad investigation by the chair of the discipline committee did not amount to an unauthorized sub-delegation to regulatory staff as to the scope of the investigation.
  7. By referencing in its description of the legal process that legal advice had been given did not amount to a waiver of solicitor and client privilege such that the practitioner could obtain access to the legal opinion.
  8. There was no unreasonable search or seizure contrary to section 8 of the Canadian Charter of Rights and Freedoms. The practitioner had a low expectation of privacy in his practice records and the request for access to the information was reasonable under the provisions in the legislative scheme. Even access to the personal phones was justified as they contained practice information and the regulator was not seeking access to the non-practice related information on the phones.
  9. It was also reasonable for the investigators to remind the practitioner of the practitioner’s duty to cooperate with the investigation.

This case buttresses the principle that practitioners can only rarely challenge an investigation of their regulatory body, at least until it is completed.

Remote Mischief

Durcan_Rebecca_5583

by Rebecca Durcan
May 31, 2021

One of the concerns about witnesses testifying in a virtual hearing is that other people might be present who can influence their testimony. It is for that reason that witnesses are often asked if anyone else is present in the room when they testify.

In Kaushal v. Vasudeva et al., 2021 ONSC 440 (CanLII), https://canlii.ca/t/jcr9v, a party in a civil action was cross-examined on their affidavit in the boardroom of their lawyer. The witness and the lawyer both stated that no one else (other than an interpreter) were present. The examination concluded. However, the lawyer conducting the examination heard conversation that suggested that the witness’s family had also been present during the examination. The interpreter eventually indicated that the family members had been present and had provided assistance to the witness in answering the questions during the examination. While the suggestion was made that the interpreter had been intimidated to providing that information, the witness’s lawyer and family members never gave evidence to support the suggestion or to deny that unauthorized persons were in the room. The Court concluded that the family members had been present in the room, contrary to the assurance of the witnesses and legal counsel, that they had provided assistance to the witness during the examination and that the interpreter had not been intimidated to provide false evidence.

The Court concluded that there had not only been interference with the witness, but that there had been a serious abuse of process. The Court struck out not only the evidence provided during the cross-examination, but also the original affidavit. The order likely ended the proceeding.

While this kind of behaviour in a virtual hearing is unlikely to occur frequently, it is reassuring that strong remedies will be imposed. This case forms a precedent for regulators conducting virtual hearings.

Permission for Vexatious Litigants to Commence another Action

by Bernie LeBlanc
May 25, 2021

As courts become more assertive in restricting vexatious litigants, a new form of legal proceeding is emerging. A court order restraining vexatious litigants typically requires the litigant to obtain permission to commence any further actions. Often that permission needs to be obtained without involving those proposed to be sued, presumably to spare them the further aggravation. Courts are now exploring how it will evaluate such requests from vexatious litigants.

Some guidance has been provided in Yashcheshen v Law Society of Saskatchewan, 2021 SKQB 110 (CanLII), https://canlii.ca/t/jfkj4. The litigant had commenced numerous proceedings against the regulator for failing to accommodate her medical disability in the registration process. One of her claims was that the regulator had failed to provide “an alternative to the law school component for admissions to the [admissions process] for persons who cannot obtain a law degree, due to a medical disability”.

The Court said that the litigant had to demonstrate two things in order to obtain permission to commence the new proceeding: “An applicant must establish the proposed proceedings are not an abuse of process [citation omitted] and must establish there are reasonable grounds for the proceedings [citation omitted].”

The Court concluded that the proposed proceeding attempted to raise, yet again, arguments that had previously been dismissed by the courts. The Court also concluded that there were no reasonable grounds for proceeding. The causes of actions would not succeed.

It will be rare for vexatious litigants to obtain permission to commence a new action unless it is unrelated to the previous litigation and there is a reasonable prospect of establishing their claim.

Deference to Sanction Findings

by Julie Maciura
May 17, 2021

The Ontario Divisional Court continues to show deference to sanctions (or penalties) imposed by regulators. In 1855456 Ontario Inc. v. Registrar, Motor Vehicle Dealers Act, 2002, 2021 ONSC 2905 (CanLII), https://canlii.ca/t/jfg85 the Court dealt with a revocation of registration related to the sale of two vehicles where there were concerns about the accuracy of representations made to the consumers and about the safety of the vehicles.

The Court held that the decision on sanction would stand unless palpable and overriding error was shown. The Court described the degree of deference as follows:

On the question of penalty, 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”: Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039 at para. 18.

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 registrant’s main argument was that revocation was excessive given their previous clean record. The Court noted that this consideration was considered by the tribunal “but [it] nevertheless concluded that the two proven breaches involved sufficiently serious misconduct as to warrant revocation”.

The fact that the tribunal addressed that argument, albeit briefly, in its reasons assisted the Court in upholding the decision.

“This is a helluva way to run a railroad”

by Richard Steinecke 
May 10, 2021

Giving full deference to the enormous challenges in managing a once-in-a-century pandemic, one still has to wonder sometimes. The above quote, from 1906, might apply to managing a health care system as well as railroads. On April 20, 2021, without prior notice to key stakeholders, the Chief Medical Officer of Health (CMOH) issued a replacement Medical Directive #2 addressed to “Health Care Providers (Regulated Health Professionals or Persons who operate a Group Practice of Regulated Health Professionals)”. Thus the Directive appeared to be aimed at health practitioners generally, not the hospital sector. The Directive stated: “The following steps are required immediately:  All non-emergent and non-urgent surgeries and procedures should be ceased.” In the fine print there was a disclaimer about the provision of other health services, but that disclaimer was unclear. The most reasonable reading of the document as a whole was that it was directed at limiting exposure to COVID by drastically reducing the provision of health services in the community. The Directive can be found at: https://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/directives/RHPA_professionals.pdf.

Regulators of health care practitioners were blindsided. Most posted the Directive on their website immediately (as is their custom to support the CMOH during the pandemic), but offered no commentary. Instead urgent calls were placed to the authorities in an attempt to understand the intent and meaning of the Directive. Were health care practitioners who do not provide non-urgent services to cease all services immediately? Word drifted back from helpful Ministry of Health contacts that the Directive did not really mean what it appeared to say.

Three days later Ministry of Health officials issued a Question and Answer document stating that “procedures” meant something that “requires surgical nursing support or anaesthetist support or carries a risk of resulting in the use of emergency medical services or other hospital services due to serious intra-operative or post-operative complications.” See: https://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/directives/Directive_2_QA.pdf. In other words, the Directive was about conserving hospital resources. Procedures that were unlikely to require use of hospital resources were not restricted.

This unnecessary panic of regulatory partners could have been avoided by a better initial communication rather than sending confusing messages to those trying their best to support the orderly provision of health services during this pandemic.

Family Matters

by Natasha Danson
May 3, 2021

For some professions, such as nursing, professionals are strongly discouraged from involving themselves in the care of family members is because it is difficult to remain objective. In Hancock v College of Registered Nurses of Manitoba, 2021 MBCA 20 (CanLII), https://canlii.ca/t/jdp6q a nurse was disciplined and suspended for two months for this type of conduct. The nurse, despite being warned not to become involved, intervened in the care of her mother-in-law, including by communicating with a treating physician and accessing the mother-in-law’s records. The hearing panel found that this involvement crossed professional boundaries and failed to respect the privacy of health records.

In upholding the sanction, the Court said:

The Panel’s determination that the appellant lacked insight is reasonably supported by the record.  The appellant’s lack of insight and failure to accept responsibility distinguishes this case from other cases involving breaches of professional boundaries.  The misconduct was serious.  It was intentional and involved repeated intrusions into H.L.’s medical record which continued until the conduct was discovered, rather than being a momentary lapse.  While the circumstances here are unique in the sense that they involve a family member’s medical record accessed with good intentions and after-the-fact consent, the College’s policy prohibiting this conduct is clear.  The College’s policy regarding professional boundaries is intended to prevent conflicts involving a nurse’s personal and professional interests in order to ensure client safety.

The appeal involved a number of other legal issues that may be relevant to other regulators, including the following findings:

  • There was no undue delay, especially when considering that significant portions of the delay were caused by the nurse of the nurse’s representatives.
  • Oral reasons recorded in a transcript can meet the requirement for giving reasons for hearing motions.
  • Procedural fairness requirements during the investigation and screening stage are less than at the hearing stage and any deficiencies can often be cured by a fair discipline hearing.

This case shows that crossing boundaries and breaching privacy of client records can result in significant consequences, despite the best of intentions.

Hiding Behind a Corporation

by Erica Richler
April 26, 2021

Unregistered persons practising a profession through a corporation generally cannot escape prosecution for unauthorized practice. That was the message of the Ontario Court of Appeal in R. v. Codina, 2020 ONCA 848 (CanLII), https://canlii.ca/t/jcbs7. Ms. Codina, a disbarred lawyer was found to have provided immigration advice for compensation without being registered with the immigration consultants’ regulatory body. She argued that all clients contracted with her corporation and all fees were paid to the corporation and thus she should not personally be convicted.

The jury heard a great deal of evidence about the operation of Codina International and its employment of various individuals, some of whom were qualified to give advice or provide representation under s. 91. The trial judge, however, appreciated that the operation of Codina International was not the focus of the trial. The appellant’s liability turned on what she did and said in respect of the events giving rise to the charges. If she gave advice, she was responsible for that conduct, regardless of how her company was structured or organized its business.

As a matter of law, if the appellant offered advice or provided representation, it was irrelevant to her liability that others operating within Codina International were also providing advice or representation. It was equally irrelevant that the appellant purported to give advice or provide representation in her capacity as a spokesperson, officer or employee of Codina International. The corporate veil offers no protection from personal criminal responsibility for one’s own conduct ….

The Court also rejected the argument that it was the corporation and not the individual who received the compensation:

The appellant submits it is unfair to hold the appellant liable for her personal acts even if done in the course of the operation of Codina International, while at the same time imposing liability based on consideration paid only to Codina International. I fail to see any unfairness. If the appellant engaged in the conduct prohibited by s. 91, and directed the payment of the consideration elsewhere, she remains equally responsible for her actions. In any event, it stretches credulity to find any unfairness here. The money went into a bank account totally controlled by the appellant. Clearly, she benefited directly from the consideration paid.

Hiding behind a corporate structure is unlikely to be an effective circumvention strategy for most unauthorized practice cases.

Court Directed Reconsideration Hearings

Durcan_Rebecca_5583

by Rebecca Durcan
April 19, 2021

Regulators received some guidance on how to conduct re-hearings after being directed to do so by a court in: Hanif v. College of Veterinarians of Ontario, 2021 ONSC 1819 (CanLII), https://canlii.ca/t/jdpmt. In that case the Court set aside one of the disciplinary findings and directed that the matter be returned to the “panel for a reconsideration” of penalty and costs. The matter was re-heard by the original panel (with one person unable to participate given the passage of time) which imposed a different penalty (a one month suspension and terms and conditions) and costs of $65,000. The practitioner appealed the re-hearing outcome. The Court held:

  1. There was no appearance of bias in the same panel conducting the re-hearing. In fact, that is precisely what the Court had ordered.
  2. The provisions allowing a lesser number of panelists to complete a hearing if a panel member was unable to continue with the hearing applies to the re-hearing proceedings.
  3. It is improper for the practitioner to bring motions or raise issues related to the issue of finding as the finding is now final. In fact, there should be cost consequences to the practitioner for persistently doing so.

The Court also held that little weight should be placed on other cases in which supposedly similar conduct may not have been referred to discipline when assessing penalty. The Court said: “…the results of these Complaint Committee cases are simply not comparable to penalty decisions based on a finding of professional misconduct following a contested hearing”.

Publication of Remediation Direction does not make it a Penalty

by Bernie LeBlanc
April 12, 2021

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

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

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

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

Reasonable and Probable Grounds

by Julie Maciura
April 8, 2021

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

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

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

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

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

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

Joint Submission Was not “Unhinged”

by Natasha Danson
April 6, 2021

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

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

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

Procedural Rulings

by Erica Richler
March 29, 2021

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

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

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

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

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

One Year Incarceration

Durcan_Rebecca_5583

by Rebecca Durcan
March 22, 2021

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

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

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

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

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

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

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

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

Duty to “Cooperate Fully”

by Bernie LeBlanc
March 15, 2021

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

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

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

Scrutiny of Discipline Decisions

by Julie Maciura
March 10, 2021

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

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

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

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

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

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

Constricting Confidentiality Clause

by Natasha Danson
March 8, 2021

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

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

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

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

Request to Reconsider

by Erica Richler
March 1, 2021

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

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

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

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

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

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

Lawsuits for Failure to Act on a Complaint

Durcan_Rebecca_5583

by Rebecca Durcan
February 22, 2021

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

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

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

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

Third Party Complaints

by Bernie LeBlanc
February 16, 2021

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

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

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

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

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

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

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

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

Regulators’ Confidentiality Protections

by Julie Maciura
February 8, 2021

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

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

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

Thus the Court maintained the confidentiality of the documents.

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

Revisiting Referrals to Discipline

by Natasha Danson
February 1, 2021

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

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

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

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

Publication of Remediation Directions Does not Alter their Remedial Nature

Durcan_Rebecca_5583

by Rebecca Durcan
January 25, 2021

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

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

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

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

Necessary and Proportional

by Erica Richler
January 18, 2021

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

Who Drives a Complaints Investigation?

by Bernie LeBlanc
January 14, 2020

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

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

The Court went on to say:

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

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

Access to Hearing Exhibits 

by Julie Maciura
January 11, 2021

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

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

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

The Court described the role of the tribunal as follows:

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

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

Interpreting Quorum Requirements

by Natasha Danson
January 4, 2021

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

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

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

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

To view previous issues of Regulation Pro, click here.

Comments are closed.