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.

Credibility Considerations

by Natasha Danson
June 20, 2022

The main issue in Caine v. Ontario College of Teachers, 2022 ONSC 2592 (CanLII), https://canlii.ca/t/jnzv7 was the discipline panel’s consideration of the credibility of witnesses. The allegations related to allegations of sexual comments and touching of middle school students by a teacher. The teacher denied the allegations.

The Court found that the reasons for decision were adequate:

A trier is entitled to believe the complainant and to reject the denial of the respondent based on the totality of the evidence. As this court recognized in Lee, where the standard of proof is the balance of probabilities, believing one party may in fact mean disbelieving the other. Furthermore, a trier’s failure to explain why it rejected a respondent’s plausible denial of the allegations will not render the reasons deficient, as long as the reasons generally demonstrate that where the complainant’s evidence and the respondent’s evidence conflicted, the trier accepted the complainant’s evidence. This is particularly so in cases where there are no witnesses other than the member and the complainant and no corroborating evidence to tip the scales in favor of one version of events. [footnotes omitted]

The Court also found that the hearing panel had considered the teacher’s theory that the allegations were fabricated and the product of collusion. In addition, the Court found that the panel had not based its findings on the lack of credibility of the teacher only because it rejected the fabrication theory:

The Panel considered the Appellant’s theory of the case as it was required to do.  It found the students’ version of events to be more probable than that of the Appellant and then went on to consider and reject the theory that they had fabricated their evidence or colluded in their evidence. The Panel did not find that the Appellant lacked credibility because they rejected his position or legal theory.  Rather, the Panel rejected his position because it found the students were more credible than him. Separate and apart from this, the Panel concluded that the students lacked any motivation to fabricate the allegations against the Appellant.

The Court rejected the argument that the hearing panel had scrutinized the students’ evidence less stringently than the teacher’s evidence.

Further, in rejecting the fabrication theory, the Court found that the hearing panel had not reversed the burden of proof through the language the panel had used. The Court clarified that rejecting a defence does not mean that the panel was requiring the registrant to disprove the allegations:

The Panel correctly stated the burden of proof on the Respondent to prove the allegations on a balance of probabilities.  Where, as here, the trier expressly articulates the correct standard of proof, it is presumed that the correct standard was applied.

Despite instances in which the courts hold that credibility findings by disciplinary panels were not defensible, courts generally are deferential to such findings.

Intimate Partner Violence is a Regulatory Issue

by Julie Maciura
June 13, 2022

Many regulators view Intimate Partner Violence as a serious matter in which they have a significant role to play. For the medical profession, at least, the legal basis for this scrutiny was upheld by the Divisional Court of Ontario.

In Dr. Jha v. College of Physicians and Surgeons of Ontario, 2022 ONSC 769 (CanLII), https://canlii.ca/t/jp0xr a physician was found guilty of criminal offences related to the assault of his girlfriend. The Court granted him an absolute discharge. The regulator disciplined him solely on the basis of the criminal findings (i.e., the regulator did not re-prove the allegations) and imposed a three-month suspension, reprimand and ordered him to pay significant costs. The physician challenged the authority of the regulator to discipline him on the basis that this outcome frustrated the purpose of the absolute discharge he received in the criminal process. He also challenged the findings and sanction on the merits.

In a very detailed analysis, the Court found that the paramountcy of federal law did not prevent a provincial regulatory body from relying on a criminal court finding in a discipline proceeding. The Court found that the scope and purposes of criminal law and the related provisions related to an automatic records suspension (previously called a “pardon”) did not preclude a provincial regulator from relying on the underlying finding. There may be practical difficulties in the regulator obtaining the court evidence related to any findings after one year (for absolute discharges), but that did not affect the authority of the regulator to rely upon them. The purpose of the provision in the regulator’s enabling statute specifying that a criminal finding relevant to a practitioner’s suitability to practise constitutes professional misconduct was designed to avoid forcing regulators to relitigate the same facts.

The Court also rejected the physician’s assertion that the conduct was part of his private life and was not relevant to his suitability to practise the profession (i.e., that the regulator had no role policing the private morality of the practitioner).

It is well-established that actions of members of a profession in their private lives may in some cases be relevant to and have an impact on their professional lives – including where the conduct is not consistent with the core values of a profession and/or where there is a need for a regulated profession to maintain confidence of the public in the profession and not be seen to condone certain types of conduct by its members….

Discipline committees of regulated health professions in this province have consistently found that criminal findings of guilt of assault in a domestic violence context are relevant to a member’s suitability to practise because such conduct displays “poor judgment, lack of self-control, and capacity for violent acts which stands in stark opposition to the caring, protecting, and healing goals and values” characteristic of health professions ….

Some of these decisions also find that the conduct is relevant to a member’s suitability to practise based on the fact that in some medical specialities, physicians will be called on to treat victims of domestic violence, and must be sensitive to issues related to domestic violence; and also on the need for the profession to demonstrate to the public that acts of domestic violence by physicians, who stand in a position of trust towards patients, are not condoned by the profession.

The Court upheld the sanction including the three-month suspension. It affirmed that while a Panel cannot treat the vigorous defence of the allegations as an aggravating factor, it can treat such a defence as the lack of a mitigating factor that an early admission to the allegations would have afforded. The Court found that the three-month suspension was not clearly unfit despite the evidence of rehabilitation, given some of the aggravating factors of gender-based violence and the relevant principles with respect to penalty, including denunciation, maintaining public confidence in the profession, general deterrence, rehabilitation, and protection of the public.

The Court also found that the hearing panel could award costs for the entire hearing including preliminary motions heard before a differently constituted panel.

Discriminatory Tests Again

by Erica Richler
June 6, 2022

On the heels of Ontario Teacher Candidates’ Council v. The Queen, 2021 ONSC 7386 (CanLII), https://canlii.ca/t/jlcvg, regulators can expect more challenges to their registration examinations on the basis that they are discriminatory.

In one such case, the Court said that any such challenges need to particularize the manner in which the test, or other regulatory action, has a discriminatory impact on applicants for registration: Shaulov v. Law Society of Ontario, 2022 ONSC 2732 (CanLII), https://canlii.ca/t/jp4mf. In that case the applicant (who was actually conditionally registered) failed one of the licensing examinations for the maximum number of times. The applicant sued for damages on the grounds that the examination was discriminatory both on the basis of its unfair impact on those with cognitive disabilities and because of the applicant’s racial / ethnic background.

The Court held that the proceeding could not proceed because no basis for either category of discrimination had been pleaded. In fact, the applicant conceded that they did not have a cognitive disability. The Court was unwilling to allow them to challenge the examination for any impact it might have on those with such disabilities. Similarly, no particulars were provided to support the assertion that the examination had an adverse impact because of the applicant’s race / ethnicity beyond the fact that the applicant was unsuccessful and the applicant’s perception from looking around the examination room that an unusually high number of applicants repeating the examination appeared to be non-white.

The Court also found that the applicant could not challenge the validity and reliability of the examinations on the basis of the liberty and (psychological) security of the person protections conferred under s. 7 of the Charter:

… the rights guaranteed under section 7 are not engaged in the context of written examinations that are part of a regulated profession’s licensing process.  The right to liberty is not engaged as the only reason to write the Licensing Examinations is to be able to pursue a profession, which is not a protected interest under section 7.  Further, it cannot be said that the Licensing Examinations interfere with the Plaintiff’s ability to make decisions of fundamental personal importance.

The Court did not allow the applicant to challenge the jurisdiction of the regulator to administer the examination or its psychometric validity and reliability in a civil proceeding; such challenges must be made by way of judicial review. The applicant was granted permission to make limited amendments to their claim, so this matter may be considered by the courts again in the future.

New Evidence in Hearings De Novo Cuts Both Ways 

by Julie Maciura
June 3, 2022

Hearings de novo are strange creatures of administrative law. In effect, they are a complete redoing of a prior administrative decision – by a different body using a hearing format. They are quite unlike a review or appeal which are generally confined to the issues and information before the original tribunal, and which consist primarily of legal arguments and submissions.

One of the criticisms that regulators frequently make of hearings de novo is that the applicant or registrant can introduce new evidence and new arguments that were never before the original decision-maker. However, a recent decision indicates that this expanded scope of consideration also applies to the regulator: D. Michael Goldlist v. Registrar, Alcohol, Cannabis and Gaming Regulations and Public Protection Act, 1996, 2022 ONSC 2505 (CanLII), https://canlii.ca/t/jnxpm.

In that case, an applicant for a cannabis retail manager licence was refused by the regulator on the basis that there were reasonable grounds for belief that the applicant would not act in accordance with the law or with integrity, honesty, or in the public interest. The primary basis of the refusal was that the applicant had not made full and candid disclosure on their application. The applicant appealed to an independent Tribunal which held a hearing de novo. The Tribunal found that the answers on the application form did not warrant a refusal of a licence, but that the conduct underlying the questionable disclosure (i.e., a criminal finding, forced entry into premises to remove property, allegations of bad faith in a civil proceeding) provided a basis to refuse the licence. The applicant argued that this changed the nature of the issues to be addressed and was procedurally unfair.

The Court disagreed.

The Appellant was aware of the case he had to meet. During the hearing de novo, he raised new issues and produced new evidence. Submissions were made with respect to the totality of the evidence. The LAT [Tribunal] properly considered and weighed the evidence and submissions….

Finally, given that hearings before the LAT are hearing de novo, there was no legitimate or reasonable expectation that the Tribunal would not consider the totality of the evidence. The Tribunal is not limited to the particulars set out in the Proposal….

The Proposal put the Appellant’s honesty, integrity, and his ability to act in compliance with the law and the public interest squarely at issue. The Appellant was aware that the allegations in the Proposal involved, amongst other things, misrepresentations regarding the nature of his civil litigation and his involvement in the illegal cannabis dispensary. He also received disclosure related to these particulars before the hearing commenced.

The Court also noted that some of the evidence relied upon by the Tribunal in supporting the refusal to issue a licence were introduced by the applicant. The Tribunal was entitled to consider that evidence.

A notice of proposal that triggers a hearing de novo is not as strictly construed as, for example, a notice of hearing in a disciplinary matter.

Regulators Can Insist on Proper Processes Being Followed

Durcan_Rebecca_5583

by Rebecca Durcan
May 30, 2022

Regulators often insist on proper processes being followed. This occurred in Williams v. Health Professions Appeal and Review Board, 2022 ONSC 2217 (CanLII), https://canlii.ca/t/jnmm0. The issue in that case was whether the practitioner assessed the capacity of a patient before having them agree to a “Do Not Resuscitate” decision. The regulator imposed a remedial order because the practitioner had not conducted an assessment when there were numerous indications that the client may not have been capable. The practitioner challenged the decision on the basis that a client’s capacity can vary, that one can assume a client is capable unless there is reason to doubt it, and because the client did agree to the order. The Court upheld the remedial decision. The issue in dispute was not whether the client was capable at the time. Rather the issue was whether the were circumstances indicating that an assessment should be conducted before obtaining the instructions.

Insisting on practitioners following proper processes can be appropriate and justifiable.

Refusing to Accept Further Submissions

by Bernie LeBlanc
May 24, 2022

A core element of procedural fairness is permitting those affected by a decision to make submissions on the matter before the decision is made. However, there are circumstances in which further submissions can be refused.

In E v. Health Professions Appeal and Review Board, 2022 ONSC 2179 (CanLII), https://canlii.ca/t/jnmlw a practitioner was concerned about a complaints screening decision requiring remediation. The practitioner appealed the first decision to a Board that found that, while the investigation was adequate, one part of the screening decision did not reasonably explain the basis for the required remediation. The matter was returned to the screening committee for reconsideration. The practitioner wished to make further submissions and introduce additional evidence. The screening committee refused to receive it because it wished to focus just on redoing the decision based on the original record. The practitioner appealed the second decision primarily on the basis that they had not been afforded procedural fairness in that the additional submissions and evidence was not considered. Both the Board and the Court rejected the argument. Because there was no new information (beyond what the practitioner wanted to add) and no new issues, there was no obligation to redo the submission process again.

The Court noted that the screening committee could have agreed to accept the new submissions and evidence. The Court simply said that it did not have to.

Duty to Accommodate a Disability as a Defence in Discipline Hearings

by Anastasia-Maria Hountalas
May 16, 2022

Can a disability constitute a substantive defence to an allegation of professional misconduct? Must discipline panels accommodate a disability when making findings? This issue came up in Khan v. Law Society of Ontario, 2022 ONSC 1951 (CanLII), https://canlii.ca/t/jnf2z. The practitioner was disciplined for submitting false accounts (both for time periods worked and for disbursements) for publicly funded legal aid. The practitioner provided medical evidence that he suffered from “Generalized Anxiety Disorder, Persistent Depressive Disorder, and Attention Deficit Hyperactive Disorder (“ADHD”)”.

The Court accepted the tribunal’s approach that disability could provide a defence, requiring accommodation, but the practitioner:

had to prove: (1) he has a personal characteristic that is protected under the Human Rights Code; (2) he experienced an adverse impact or differential treatment from his professional regulator; and (3) the protected characteristic was a factor in the adverse impact.

The Court upheld the rejection of the defence that the practitioner had fabricated the false invoices over the course of one panicked weekend while experiencing unrecognized symptoms of mental illness. It was established in the evidence that the dishonest conduct occurred over an extended period of time, continued to be covered up, and was not disclosed until it was discovered by the auditors. The medical opinion evidence on the point was unhelpful because it was based on an inaccurate factual foundation. There was no causal connection between the disability and the conduct.

The Court did not address the tribunal’s musings that even if the disability defence applied, undue hardship to the protection of the profession would result if there was no finding or a sanction less than revocation.

While a disability may be considered on the issue of finding and not just on sanction, it has to meet the applicable criteria.

Leave the Room!

by Natasha Danson
May 9, 2022

When a Council or Board member of a regulator has a conflict of interest, is simply declaring the conflict sufficient? A recent municipal Council case provides useful guidance on this question.

In Budarick v. the Corporation of the Townships of Brudenell, Lyndoch and Raglan (Integrity Commissioner), 2022 ONSC 640 (CanLII), https://canlii.ca/t/jm283 the son of a municipal Councillor was invoiced by the fire department for a call related to lighting an open fire during a fire ban. The issue of the invoice came up at some Council meetings. The Councillor declared a conflict of interest but stayed in the room. During one meeting the Councillor proceeded to question a representative of the fire department about related matters (e.g., its fundraising, and general policies and procedures related to invoicing for calls). Some of that information was later used by the Councillor in representing her son in contesting the invoice in other venues. In another meeting that was closed to the public, the Councillor remained in the room.

The Court upheld the findings that the Councillor had acted in a conflict of interest. Simply declaring the conflict was insufficient. The questions by the Councillor of the broader policy issues were inappropriate in the circumstances: “when a member has a pecuniary interest in a matter under discussion in a council, the member should refrain from entering the fray, even in respect of issues that may seem tangential”. The Court also accepted favourably the comment of the lower court as follows:

I find it is more likely than not that the Respondent’s questions and comments were designed and intended to denigrate the Fire Department’s practices, to create doubt regarding service charges and to obtain information for the purpose of enhancing her son’s ability to challenge or reduce the invoice he received.

The Court also upheld the finding that the Councillor should have left the room of the closed meeting discussing her son’s invoice. In addition, the Court upheld the finding that the breach of the conflict of interest was, in all of the circumstances, intentional and not a mere error of judgment. Those circumstances included the Councillor’s use of her position of the Council to attempt to influence other municipal entities on the matter. The Councillor was ultimately removed from office.

While this decision turns somewhat on the language of the municipal conflict of interest legislation, it reinforces the best practice for Council, Board and Committee members of regulators to not only declare any conflicts of interest, but to then leave the room when the matter is discussed (even if it is a public meeting) and to not try to influence the decision. This duty cannot be circumvented by attempting to couch one’s input on the matter in terms of broader policy issues that are obviously related to the issue.

Tweaking a Major Reform

by Erica Richler
May 4, 2022

British Columbia’s major reform of the regulation for many non-health professions is being amended (https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceedings/42nd-parliament/3rd-session/bills/first-reading/gov21-1). The Professional Governance Act has been in effect for just over a year. Most of the changes are relatively minor, and include the following:

  • Updating terminology, such as changing the governing “council” to the “board”, changing “professional association” to “professional regulator”, and changing “president” to “chair”;
  • Authorizing the oversight office of the Superintendent to conduct informal inspections before determining whether a formal investigation or audit is required;
  • Requiring the regulatory bodies to pay fees to cover at least some of the cost of their oversight;
  • Reducing the ability of registrants to require the regulatory body to conduct a referendum on registrant resolutions at the annual general meeting or implement such resolutions;
  • Allowing the regulator to establish a more flexible process for administrative suspensions (e.g., for non-payment of fees);
  • Clarifying that the prohibition of reserved practices does not apply to a person exercising the rights of an Indigenous people;
  • Allowing the government to make regulations requiring registrants to make a declaration of their competence or of the existence of a conflict of interest;
  • Creating a presumptive 60-day time limit to initiate an application for judicial review of decisions made under the legislation;
  • Adjusting the process for transferring additional professions to the legislation; and
  • Eliminating the category of certified non-registrants from the legislative scheme.

This Bill demonstrates that regulatory reform is a process, not an event.

Disregarding an Invalid Order

by Bernie LeBlanc
May 2, 2022

If a regulator makes a flawed order, can the practitioner simply ignore it? Alberta’s highest court says “no”. In Alberta Securities Commission v Felgate, 2022 ABCA 107 (CanLII), https://canlii.ca/t/jnbz7 the regulator made an interim order banning an individual from trading in securities. The order was flawed in that, under the wording of the legislation, it should not have been made before the proceedings actually commenced. The individual breached the order and was convicted of an offence. The individual challenged the conviction on the basis that the interim order was invalid. The Court said:

The appellant, however, had three remedies:

A. He could have (but did not) make submissions about the proper form of the order at the hearing;

B. He could have appealed the order to the Court of Appeal under s. 38; or

C. He could at any time have applied it to vary or terminate the order under s. 214.

What the appellant was not entitled to do was to simply ignore the order and trade in securities as he wished ….

Practitioners who ignore an order because they do not think it is valid are taking a significant risk.

Intervention by a Friend of the Court

by Valreen Sealie 
April 25, 2022

Courts sometimes allow third parties to participate (intervene) in proceedings in order to provide assistance to the Court. Many regulatory tribunals do so as well.

The decision in Martin v. Health Professions Appeal and Review Board, 2022 ONSC 1340 (CanLII), https://canlii.ca/t/jmr8b reinforces the proposition that a proposed intervenor as a friend of the court must offer a contribution that is distinct from the contributions made by the parties to a dispute. Further, there is a heightened burden on the proposed intervener in cases that are closer to the private end of the spectrum. In that case, the Court set aside an order granting leave for the Ontario Trial Lawyers Association (“OTLA”) to intervene as a friend of the court in the judicial review application.

As background, the applicant sought judicial review of the decision of the appeal Board upholding the decision of the Inquiries, Complaints and Reports Committee of the regulator (“Committee”) to take no further action with respect to a complaint against the practitioner by the applicant. The complaint concerned the practitioner accessing the applicant’s medical records without consent for the purpose of litigation. OTLA took issue with the potential impact the Board’s decision confirming that practitioners in preparation for litigation have a legitimate reason to look at patient records without consent. OTLA applied for, and was granted, leave to intervene as a friend of the court in the judicial review application. The practitioner brought the motion to set aside the Order granting leave to the OTLA to intervene.

OTLA’s counsel, in support of why the OTLA should be granted intervenor status, argued that OTLA’s expertise would provide broader perspective to the issues beyond the parties.

The Court rejected the argument that OTLA would provide a contribution distinct from the applicant:

In my view, OTLA’s contribution appears to be in the vein of a “me too” submission. The concerns that it wishes to bring to the court’s attention are already raised by the appellant’s material and fundamentally reflect the applicant’s concerns with Dr. Shah’s conduct in accessing the medical records.  If OTLA was granted intervenor status, it would not be calling the attention to a fact or law not otherwise presented to the court by Mr. Martin.

Based upon the materials filed, I find that OTLA would not provide a contribution distinct from the appellant.

Further, I find that this matter lies near the private dispute end of the spectrum between private and public disputes. OTLA has not met its heightened burden to be made a friend of the court in the circumstances.

The judicial review application concerning the reasonableness of the Board’s decision in the disciplinary process is still before the court.

I Should Not Be Seeing This- Part 2

Durcan_Rebecca_5583

by Rebecca Durcan
April 20, 2022

Recently we wrote about a civil case with implications for regulators. In Continental Bank of Canada v. Continental Currency Exchange Canada Inc., 2022 ONSC 647 (CanLII), https://canlii.ca/t/jm284 the Court expressed concern about one party who had lengthy and undefined access to the privileged legal advice of the other party. The lesson for regulators based on the case is to immediately stop viewing any such legal advice it mistakenly receives and respond appropriately (e.g., disclose the access and find a safe way to separate out and return or destroy the privileged legal advice).

In another recent civil case, the Court awarded significant damages when others had access, without consent, to the intimate images of an individual: Roque v Peters, 2022 MBQB 34 (CanLII), https://canlii.ca/t/jmzcq. The portion of the case of relevance to regulators is that a police force was considering the employment application of a woman who had a sexual relationship with an employee of the force. The spouse of the employee discovered the intimate images and provided them to the police force. Those involved in the hiring process viewed the images, indicating that they were relevant to the suitability of the applicant for the job, including whether she could be subject to blackmail. The job applicant successfully sued the police force for viewing the images.

While the lawsuit was based on provincial law, the principles involved are similar to a provision in the Criminal Code of Canada. The police force asserted that the “public interest” defence for viewing the images applied. The Court indicated that in order to give meaning to the purpose of the legislation the public interest defence had to be interpreted narrowly. Disclosing the images needed to serve the public good including through necessary law enforcement and medical research and treatment. The legitimate goals of the police force could have been achieved had the police force simply considered the existence of the intimate images without actually viewing them.

Regulators are sometimes given intimate images as evidence of professional misconduct. When this occurs, the regulator needs to immediately conduct an analysis of whether it should retain the images, whether they are relevant to its regulatory activities and, if they are relevant, whether the actual images need to be viewed. In those rare cases where the images are relevant and need to be viewed, a careful analysis should be conducted to determine who should view the images and for what purpose.

Public Statements

by Julie Maciura
April 19, 2022

Increasingly, regulators are being asked to deal with complaints that a practitioner made public statements without a reasonable basis for making them. Another example of this issue is found in Buckingham v. Law Society of Newfoundland and Labrador, 2022 NLSC 37 (CanLII), https://canlii.ca/t/jn3gz. In that case, a lawyer’s (“practitioner”) client died while in custody. Representatives of the correctional officers made public statements to the effect that the prisoner was the author of his own death and that the correctional officers had acted appropriately. The practitioner gave public statements to the media asking for a public inquiry indicating that the death was unusual and that it was “at the hands” of the correctional officers.

In response to a complaint, the regulator issued a letter of caution indicating that the practitioner did not have a sufficient basis for making those public statements, in part because they were  made before the official finding that the death had been a homicide. The practitioner sought judicial review. The Court found that the reasons of the regulator for issuing the letter of caution were inadequate. In looking at all of the circumstances, including the public statements by the union and the context of calling for a public inquiry, the practitioner’s statements were not without reasonable basis. The degree of certainty the regulator was requiring of the practitioner to support their public statement was too high.

Chipping Away at the Regulatory Privilege

by Natasha Danson
April 11, 2022

Over two decades ago, the Court of Appeal for Ontario issued a comprehensive decision protecting information obtained or used by health regulators from being used in civil proceedings: F. (M.) v. Dr. Sutherland, 2000 CanLII 5761 (ON CA), https://canlii.ca/t/1cwt9. In Ontario, that protection is set out in section 36(3) of the Regulated Health Professions Act, 1991 or the RHPA. A prime rationale for that protection was to encourage candid cooperation by practitioners with the regulator’s complaints and discipline processes without fear that the information provided would be used to sue them. Another equally important rationale was to permit regulators to obtain, use, and discuss this information without a concern that they were affecting civil proceedings. A third rationale was to prevent the complaints and discipline processes from being used for a collateral purpose such as advancing a civil claim in the courts.

A recent decision of that same Court appears to qualify that protection somewhat. K.K. v. M.M., 2022 ONCA 72 (CanLII), https://canlii.ca/t/jm07l, was a child custody case. A major consideration in that dispute was an expert report by a physician that strongly favoured one side over the other. In challenging the written opinion, one of the parties sought to introduce materials from the physician’s regulator’s complaints process where the regulator expressed significant concerns about the physician’s approach to the expert report that had been prepared in the custody proceedings. The physician gave an undertaking to address those concerns, which was posted on the regulator’s website.

The Court upheld the general principle that the legislation regulating health practitioners in Ontario (and specifically section 36(3) of the RHPA) created

… a blanket prohibition against admitting in a civil proceeding any records, reports or documents directly related to a proceeding under the RHPA. The text of the provision leaves no room for exception or discretion in relation to the specific items mentioned: a record of a proceeding, a report, a document or thing prepared for or statement given at such a proceeding, or an order or decision made in such a proceeding.

However, the Court qualified that protection as follows:

… anything not specifically mentioned is fair game. As mentioned, the trial judge noted that the statutory prohibition did not preclude admissibility of evidence of the fact that a complaint was made and did not capture the website information referring to the undertakings given by Dr. Goldstein. We agree. The law is clear that the fact that a complaint was launched, an investigation held, and a decision rendered by the [complaints committee] are not covered by s. 36(3) of the RHPA and may be otherwise provable in court, without reference to a prohibited document ….

As well, Dr. Goldstein’s undertakings, while they may have been made in response to a decision or order covered by s. 36(3), are also not themselves either a decision or order captured by s. 36(3). The undertakings were generated by Dr. Goldstein himself, not by the board, and presumably were also generated after the board had completed its process and released its decision. The rationale that applies to keeping the other items listed in s. 36(3) confidential does not apply to them. Public undertakings are not meant to be confidential, they provide the public with notice, and their admission in civil proceedings where a trial judge deems them relevant does not undermine the purpose of s. 36(3), discussed below. We therefore agree with the trial judge that the undertakings themselves were admissible.

In fact, most undertakings given by practitioners are given to regulators before any decision is made on a complaint. The reason a practitioner gives an undertaking is often to demonstrate insight and the ability to change one’s practices to avoid a more significant outcome. This decision may make it more difficult for regulators to negotiate undertakings with practitioners.

Lay Scrutiny of Specialist Registration Applications

by Erica Richler
April 4, 2022

How does a lay tribunal, made up entirely of non-practitioners, review registration matters where the original decision is made by an expert regulatory panel including practitioners of the profession? This issue came to a head in the case of College of Psychologists of Ontario v. Ontario (Health Professions Appeal and Review Board), 2022 ONSC 1365 (CanLII), https://canlii.ca/t/jn1vs. The applicant for registration had been refused registration because relevant portions of their education had been done remotely and asynchronously. The regulator interpreted the registration requirement as requiring the interaction associated with instructors and students to occur simultaneously.

On a previous occasion, the review Board had returned the application to the regulator with a recommendation that the regulator accept asynchronous education. After further review the regulator declined to accept that recommendation. On a further review by the Board, it ordered the applicant to be registered.

On appeal, the Court reversed the decision of the review Board. In doing so, it provided guidance on the role of the Board on a review. The Court stated that the “standard of review” was not an issue. First, the Board was not reviewing the decision of the regulator; under the language of the legislation, it was reviewing the application for registration. More significantly, the role of the Board was set out in the statute. The Board could only direct the registration of the applicant where the regulator had exercised its powers improperly and the Board found that the applicant substantially qualified for registration.

In this case, the Board had incorrectly concluded that the regulator had exercised its powers improperly because it rejected the Board’s previous recommendation. The Board was required to assess the regulator’s reasoning to ascertain whether its reasoning amounted to an improper exercise of its powers.

The Court also addressed how the Board should respect the expertise of the regulator in accordance with the decision of College of Physicians and Surgeons of Ontario v. Payne, 2002 CanLII 39150 (ON SCDC), https://canlii.ca/t/7bh9. The Court concluded that on issues like whether an unapproved educational program was substantially similar to an approved program, the Board was required to defer to the expertise of the regulator. However, as is often the case on Board reviews, where additional information is before the Board than was before the regulator, the impact of the regulator’s expertise changes:

In those circumstances, absent evidence that the Registration Committee exercised its powers improperly, the Board is limited in what it can do.  It cannot do more than refer the application back to the Registration Committee for further consideration by a panel on the basis of the more extensive evidentiary record together with the Board’s reasons and recommendations.

The Court sent the matter back to the regulator to consider the new information presented to the Board that was not before the regulator.

Under this legislative scheme, at least, the final decision in most registration matters will rest with the regulator.

I Should Not Be Seeing This

by Erica Richler
March 31, 2022

Sometimes regulators come across information that they were not intending to see. Responding appropriately can be important.

In a civil case, two business partners were in a dispute about a transaction. When the relationship soured, one party secretly obtained access to the backed up emails of the other party through their shared IT provider. The emails included legal advice. When this came out during litigation, the Court stayed (halted) the legal proceedings because of the party’s access to privileged information belonging to the other party. The Court said that the onus was on the party with unauthorized access to privileged information to demonstrate that it would gain no advantage from the access. Given how long the party had access to it and their inability to demonstrate that the legal advice had not been reviewed or used, the Court halted the proceedings. See: Continental Bank of Canada v. Continental Currency Exchange Canada Inc., 2022 ONSC 647 (CanLII), https://canlii.ca/t/jm284.

If a regulator gains access to a practitioner’s legal advice, even inadvertently, perhaps through an investigation, the regulator should stop reviewing the information immediately and obtain legal advice. Taking quick action to ensure that representatives of the regulator do not review or use the privileged information, in a manner that can be documented, can prevent unforeseen consequences.

Streamlined Discipline Hearings

Durcan_Rebecca_5583

by Rebecca Durcan
March 28, 2022

Many regulators have recurring issues that some practitioners seem to ignore. Often, they involve a failure to comply with a routine obligation. For example, many regulators have issues with practitioners completing their annual renewal documentation or complying with professional development requirements. Sometimes these issues can be dealt with through administrative suspensions. However, where judgment is required to assess the nature and degree of non-compliance, discipline hearings may be the only effective remedy.

For the Law Society of Ontario, this recurring issue is, surprisingly, a failure to cooperate with the regulator during complaints or investigations. There are approximately 40 to 50 such discipline hearings each year. Frequently the practitioner complies by the time the hearing is held. This process causes delays in investigations and consumes unnecessary resources.

Recently the disciplinary tribunal changed its processes to address this concern. The initiative includes the following components:

  1. Scheduling such cases through an expedited stream.
  2. Using a presumptive written hearing process to consider the matter (leaving the possibility of an oral hearing for exceptional cases, such as where the fact of non-cooperation is genuinely disputed).
  3. Setting out a grid of usual dispositions, as follows:
    • a one-time non-disciplinary invitation to attend without costs where all outstanding answers are provided within 14 days of filing of the Notice of Application
    • no costs, if failure to co-operate is found by a written hearing but all outstanding answers have been provided prior to the hearing
    • reduced costs of $1,500, if failure to co-operate is found by a written hearing and there continue to be outstanding answers
    • standardized penalty orders where the application proceeds by written hearing
    • no change to penalty, or costs, principles if the application proceeds to an oral hearing
  4. Providing for paid “duty counsel” to assist practitioners in non-cooperation cases.

Aspects of this approach might be a model for other regulators. For more information see: https://lawsocietyontario.azureedge.net/media/lso/media/about/convocation/2022/convocation-february-2022-tribunal-committee-report.pdf.

Vexatious Litigants and Harassment of Regulators

by Bernie LeBlanc
March 21, 2022

Regulatory staff appear to be facing a pandemic of harassment by some of the practitioners that they regulate. Sometimes, but not always, this is accompanied by vexatious litigation. In College of Registered Nurses v. Shannon Hancock, 2022 MBQB 26 (CanLII), https://canlii.ca/t/jmg9r the Court considered harassment of regulatory staff, board and committee members as a factor in restraining future litigation by the practitioner.

In that case the practitioner had engaged in numerous proceedings against the regulator and their representatives. The Court considered a number of factors in determining that the litigation was vexatious including: the number of proceedings, their unsuccessful nature, the failure to pay costs, the manner of the litigation (e.g., leaving in the middle of a proceedings, failing to attend proceedings, abandoning a proceeding and commencing another one soon thereafter), making claims that had no reasonable prospect of success, making claims for unrealistic amounts of damages, making apparently spurious allegations against the lawyers for the regulator, and expressing the intent to initiate future litigation. However, of particular interest to regulators may be the following circumstance that was taken into account.

It is also clear that she has proceeded in an abusive, harassing and unacceptable manner against individuals connected to the College. The named defendants in the 2020 action include members of the governing council for the College.  These individuals are all volunteers who donate their time and efforts to the work of the College.  After naming this group of volunteers as defendants in a legal action and acknowledging the 2020 action was inappropriate, Ms. Hancock continued to harass the members.  In April 2021, she managed to track down the private home addresses of these volunteers and deliver packages of materials to their front door. This was unnecessary and unacceptable as she had been involved with the College for years and was aware all correspondences should be directed to the offices of the College.

The Court declared her a vexatious litigant and restricted her ability to continue existing proceedings and initiating new proceedings against the regulator.

Alleging Intent

by Julie Maciura
March 14, 2022

In discipline matters, regulators generally do not have to prove that the practitioner had malicious or dishonest intent to engage in the conduct. Failing to fulfill one’s professional obligations is generally sufficient to constitute professional misconduct. One exception is where the definition of professional misconduct contains an intent requirement (e.g., “knowingly”). Another exception is where the regulator alleges a particular type of intent which is then not proved.

An example of the second exception is found in the peculiar case of The Law Society of British Columbia v. Cole, 2022 BCCA 55 (CanLII), https://canlii.ca/t/jm8bc. The matter related to whether the practitioner had advised a client to act contrary to securities requirements. In the first allegation the regulator alleged that the practitioner knew or ought to have known that their advice contravened the securities requirements. In the second and third allegations the regulator alleged that the practitioner failed to make reasonable inquiries as to whether the advice was contrary to securities requirements. The hearing panel found that in all three cases the practitioner intentionally advised the client contrary to the securities requirements. As such, the first allegation was established, but the second and third ones were not proved because the intention of the practitioner was worse than alleged (i.e., the evidence showed that the practitioner did much more than “fail to make reasonable inquiries”). The Court refused to grant leave to appeal saying that the regulator should have sought to amend its particulars at the hearing but should not be able to do so now.

This case highlights the importance of the wording of allegations, and the imperative to amend them, where that is possible, as soon as it becomes clear that the evidence is different from what was originally anticipated.

Expectations of Regulatory Investigations

by Natasha Danson
March 7, 2022

In MacDonald v College of Dental Hygienists of Ontario, 2022 ONSC 632 (CanLII), https://canlii.ca/t/jm3zz, a practitioner who was found to have engaged in a sexual relationship with a patient based on adverse credibility findings challenged the finding, primarily on the basis that the investigation was inadequate and unfair. The Court disagreed, finding that the investigation was appropriate. The Court noted the following in its reasons:

  1. It was not necessary for the regulator to obtain a sworn or signed statement from the key witness to facilitate the cross-examination of the witness at the resulting discipline hearing. A statement from the investigator outlining what the witness said during an interview with the investigator was sufficient. The practitioner could still cross-examine the witness on any inconsistent statements made by the witness.
  2. On appeal, the practitioner raised a concern that the evidence of the patient was more detailed than what was contained in the investigation interview statement, which in turn made it more difficult to cross-examine the patient. The Court said that it was incumbent on the practitioner to raise the issue at the hearing and to ask for additional time to prepare for the cross-examination, rather than raise the concern for the first time on appeal.
  3. The practitioner also expressed a concern that the investigation report was not filed as an exhibit at the hearing. The Court noted that the practitioner had not requested that it be filed as an exhibit and, in any event, had the full opportunity to cross-examine the investigator on the report.
  4. The regulator did not obtain the 911 tapes of a call made by the patient that may have been relevant to the sequence of events. The Court found that the regulator did not have an obligation to obtain those tapes and was not required to disclose evidence it did not have. If the practitioner believed that this third-party document was necessary for a fair hearing, they should have sought an order from the panel directing their production.

The practitioner proposed to testify on matters not put to the patient when the patient was cross-examined contrary to the rule in Browne v Dunn. The panel permitted the practitioner to engage in this type of questioning, but allowed the regulator to recall the patient to address the new areas. The patient refused to testify a second time and the regulator lost the opportunity to respond to the new evidence. The panel chose not to compel the patient to testify. The Court held that this caused no unfairness to the practitioner as the panel did not discount the practitioner’s evidence because of her failure to comply with the rule in Browne v Dunn. In addition, the practitioner had no right to cross-examine the patient a second time.

The practitioner also expressed concern that the panel had not taken all possible measures to ensure that the patient and their spouse did not observe each other’s evidence during the hearing. The hearing was held electronically. The Court held that reasonable measures were taken (e.g., an order directing the exclusion of witnesses) by the panel and there was no evidence of any breach of the order excluding witnesses from observing the hearing before they testified.

The Court upheld the credibility findings made by the hearing panel.

Screening Committee’s Remedial Direction Found to Have a Deterrent Value

by Erica Richler
February 28, 2022

Screening committees often recommend or, where authorized to do so, direct practitioners to engage in remedial activities. The rationale for this authority is that such remediation can enhance the quality of the performance of the practitioner and can prevent complaints from a similar nature arising in the future. However, a recent Court decision said that such directions can also have a deterrent value: M.J.S. v. Health Professions Appeal and Review Board, 2022 ONSC 548 (CanLII), https://canlii.ca/t/jm05m.

In that case a practitioner made a comment that was, at a minimum, highly insensitive and inappropriate. The practitioner’s employer investigated the concern and required the practitioner to undergo communications training. The regulator then investigated the matter relying partly, but not entirely, on the employer’s investigation file. The screening committee directed the practitioner to do some self-reflection and to be cautioned in person. Such a caution is posted on the public register.

In upholding the decision (including its affirmation by the reviewing Board), the Court noted that posting the outcome did not fundamentally alter the educational and remedial nature of the direction; it was not a punishment. However, part of the reason for posting it on the public register was the specific deterrence of the practitioner and the general deterrence of the profession as a whole. Overall, the Court held that the caution “is an educational and remedial measure intended to improve the physician’s practice and to benefit the public by avoiding future concerns.”

The Court also provided guidance on the criteria for reviewing the screening committee’s decision. An adequate investigation does not require the screening committee to repeat the employer’s investigation unless there was reason to believe that some relevant information had not been obtained.

In terms of the reasonableness of the decision, a reviewing Board would look to whether the screening committee “explained its reasons for the disposition, tied its disposition to the conduct of concern, and recognized its mandate is to improve a physician’s practice and to protect the public.”

Records vs. Recollection

by Ahmad Mozaffari 
February 24, 2022

An individual’s recollection of a particular event or set of events can be a powerful piece of evidence, however its impact can be significantly undermined by the passage of time.  This was the key issue in the recent case of Szommer v. Ontario College of Nurses, 2021 ONSC 8463, https://canlii.ca/t/jlhht,  a case involving a complaint made in 2019 with respect to events that occurred a decade earlier.

The complainant had alleged that a nurse falsely recorded her visits and bloodwork. The College investigated and determined that while the original records were no longer available, the electronic records were and did not bear out the complaint. The complainant asserted the records had been falsified, however based on the time between the events at issue and the complaint and the fact that the available records did not support the complaint, the College did not investigate the allegations of falsification further.

The complainant appealed to the Health Professions Appeal and Review Board (HPARB) and argued that the College should have investigated her allegations of falsification of records further. The HPARB, preferring the available records over the complainant’s memory, affirmed the College’s decision and held that in the absence of compelling information to the contrary, health records are a reliable source of information as to what occurred during patient encounters. The complainant appealed that decision to the Divisional Court.

Interestingly, the Court put the complainant on notice that it was considering dismissing her application as frivolous, vexatious and/or an abuse. It directed her to explain the legal error made by the HPARB, or the finding of fact for which there was no evidentiary basis such that the Court could be justified intervening with the HPARB’s decision. In response, she merely reasserted that the records had been falsified and that it was an error of law for HPARB to accept them.

The Court rejected the complainant’s argument and held that her personal recollection of events from ten years prior was not sufficient to displace HPARB’s reliance on the records, which was appropriate in the circumstances. Moreover, reliance on the medical records rather than oral testimony of events from ten years ago was even more compelling to the Court. The Court accordingly dismissed the proceeding as frivolous, vexatious and an abuse of process.

It should be noted that the complainant was criticized for bringing her matter by way of application rather than by appeal. However pursuant to section 70 of the Health Professions Procedural Code, a matter may only be brought by appeal if it concerns “a registration hearing or review”, or a proceeding before a panel of the Discipline or Fitness to Practise Committee, which was not the case here. This apparent oversight, which perhaps can be associated with the summary nature of the ruling, was not part of the primary basis for the decision.

Dishonesty: Intent, Mental Health and Sanction

by Justine Wong
February 23, 2022

A recent Alberta Court of Appeal case addressed how regulators think about dishonesty allegations against practitioners, the use of mental health evidence in determining liability, and sanctioning based on the parity principle.

In Virk v Law Society of Alberta, 2022 ABCA 2 (CanLII), https://canlii.ca/t/jlmgd, a lawyer was disbarred for engaging in a conflict of interest and dishonesty when he concealed and denied a past sexual affair with the ex-wife of a client. The lawyer represented his client in a paternity and spousal support lawsuit. Virk clarifies that conflict of interest and dishonesty allegations can overlap or be separate depending on the facts. As in Virk, an overlap need not vitiate a sanction on both allegations.

More importantly, Virk clarifies that the threshold for finding dishonesty is low because intention to deceive is not required. However, being negligent or making a mistake that results in an inaccurate statement will not engage a misconduct finding. Instead, Discipline Committees can find misconduct where a practitioner has been wilfully blind, reckless, indifferent, or irresponsible towards stating inaccuracies. Regardless of their field of practise, practitioners must diligently check the truth of their statements and be forthcoming and frank when unsure about the truth.

The expectation for practitioners to be honest also depends on context. This expectation is reasonably higher for solemner occasions. In Virk, the same lawyer falsely stated in court that he made full disclosure when he had not. His duty to be candid was high given the formality of the court context. Practitioners must therefore consider the impact of their statements on clients when reflecting on how meticulous they should be in their fact-checking and whether they should speak up when carrying out their duty to be honest.

Virk also encourages regulators to think about how to consider dishonesty allegations where the practitioner argues inculpability due to a mental disorder. As Virk indicated, the medical evidence must be strong and, more importantly, material to the alleged misconduct to justify reduced blameworthiness.

Regulators will also find Virk’s approach to sanctioning thought-provoking. Virk emphasizes a case-by-case approach to determine appropriate order and notes that “comparison with other decisions is rarely decisive.” As Virk explains, the need to restore public confidence in the profession and protect the public varies by case. For Ontario regulators that usually apply the parity principle by identifying the most directly comparable prior case to determine appropriate sanction, Virk advocates a less rigorous approach. Perhaps a strong consideration for regulators is a balanced approach to sanction that contemplates prior cases and the unique circumstances of the case at hand.

Contemporaneous Access to Hearing Exhibits

by Erica Richler
February 18, 2022

The open-hearing principle is robust.

A police discipline hearing was held following a public outcry and independent review into the police service’s handling of investigations. In CBC v. Chief of Police, 2021 ONSC 6935 (CanLII), https://canlii.ca/t/jk3nd a police officer was alleged to have responded inappropriately to a report that a defendant violently choked a victim during sexual activity. The case was newsworthy because the defendant was released without being charged at the time. The defendant was later found to have murdered eight men, some of them after the interview occurred. During the discipline hearing a video of the interview between the police officer and the defendant was made an exhibit. There already was an order banning publication of the identity of the victim. Without first hearing submissions on the issue, the tribunal ordered a publication ban on the video “on the basis that the video contained intimate details of sex acts … and was necessary to protect the victim.” The media requested an opportunity to make submissions on the publication ban. Before the submissions were heard, the parties agreed to withdraw the video as an exhibit and the media request was not addressed on the merits.

The Court found that the tribunal breached the open-hearing principle when it granted the publication ban over the video without considering the proper principles and when it permitted the exhibit to be withdrawn. The openness principles for courts and tribunals were the same. The Court held that, given the publication ban on the identity of the victim, there was no important public interest in limiting access to the video. “It has long been the law that the sensibilities of individuals are not an important risk justifying a publication ban.” The Court also noted that there was “a long line of cases refusing to impose publication bans to protect from shame and embarrassment.” The Court did order that the victim’s name be redacted from the video.

Of perhaps even greater interest to regulators is the Court’s views on the importance of providing timely access to exhibits during the hearing:

Part and parcel of the right to access exhibits is the right to access them in a timely manner. Providing hearing exhibits days or weeks after the hearing has concluded ensures that those exhibits will not form part of the media’s reporting and for all practical purposes public access is denied. To submit that there are insufficient resources or that there are other priorities is not a justification for an infringement of the open hearing principle. There was no evidence in this case that the exhibits could not have been made available while the hearing was still pending.  Producing the exhibits after the hearing concluded contravened the open hearing principle.  Going forward, the Toronto Police Service shall be required to provide exhibits in police misconduct hearings during the hearing except in exceptional circumstances.  In addition, the exhibits shall be provided in accordance with the TPS policy to provide access to exhibits at no charge if they are available electronically and at a nominal charge, if they are not available electronically.

Regulators may wish to ensure they have administrative processes to facilitate the prompt distribution of exhibits.

Playing Games

Durcan_Rebecca_5583

by Rebecca Durcan
February 17, 2022

Practitioners facing serious allegations of misconduct have the right to a fair hearing, including adjournments, when necessary to prepare their case or because of health issues. However, where accommodations are repeatedly requested without a solid basis or avoidance techniques are employed with the apparent goal of delaying or derailing the process, regulators and the courts will allow the process to proceed without the practitioner. That was the case in Gill v. College of Physicians and Surgeons of Ontario, 2022 ONSC 49 (CanLII), https://canlii.ca/t/jlmb7. The practitioner faced serious allegations related to false billing and incompetence. The practitioner obtained adjournments to seek legal counsel, some of whom later withdrew from representing the practitioner, and failed to attend various stages of the proceeding including a pre-hearing conference and the hearing on the merits of the allegations. The practitioner then sought to reopen the hearing to lead additional evidence both on the merits (expert opinion) and on the reasons for non-attendance (medical) but did not follow through on the specified procedure. Eventually, the discipline tribunal made a finding, revoked the practitioner’s registration, and imposed significant costs.

The Court dismissed all of the grounds of appeal:

The fresh evidence should not be accepted as the practitioner had made a tactical choice not to introduce it before the hearing panel and could not now use it.

Refusing the request for an adjournment of the hearing dates and proceeding with the hearing was procedurally fair in all of the circumstances including the lack of communication from the practitioner and the past history of adjournments.

The Committee’s decision to suspend the practitioner’s registration as a term of granting an adjournment of the motion to re-open the hearing was justified given the seriousness of the concerns and strength of the evidence received to date and extensive delays that had already occurred.

Refusing to re-open the hearing was justified:

The Committee found that there was no reasonable explanation for Dr. Gill’s failure to tender this new affidavit evidence sooner. It considered the prejudice to the College with re-opening at that stage – after cross-examinations were complete. It considered the negative impact on the integrity of the Committee’s rules and processes in permitting any further delay. The Committee properly exercised its discretion not to admit the new evidence.

The relief sought to re-open the case is granted only in exceptional cases. There is a strong public interest in the finality of disciplinary proceedings and the discretion to re-open a hearing should be exercised sparingly and with the greatest care so that fraud and abuse of the [tribunal’s] processes do not result (671122 Ontario Ltd v Sagaz Industries Canada Inc, 2001 SCC 5960). This is not an exceptional case. The Committee did not err in its decision not to re-open the case.

Revocation was a defensible order in the circumstances:

The Committee considered the breadth, severity and persistence of Dr. Gill’s misconduct, and noted that his misconduct encompassed both grossly inadequate clinical care that put his patients at risk and dishonest actions by which he placed his own interests ahead of those of his patients and the public. It noted that there was no basis to conclude that the Appellant had shown insight or remorse, nor had he provided meaningful details about any remediation. It is clear from all the evidence that revocation was necessary in terms of the Appellant’s incompetence and was the only order that would adequately protect the public and maintain the public’s confidence in the medical system….

The findings against Dr. Gill were extremely serious, involving clinical incompetence and dishonest billing in the amount of $146,000. Revocation was well within the range of available penalties for this misconduct and has been imposed for similar misconduct in recent decisions upheld by this Court.

Where the conduct of the practitioner in delaying the process can reasonably be seen as undermining the process, the result can be a determination with minimal practitioner involvement.

Remediation Redux

by Bernie LeBlanc
February 14, 2022

Regulators are being given increased authority to impose remediation to address concerns about a practitioner’s practice at the complaints screening stage. While there are concerns, the regulator makes no finding of wrongdoing and no discipline hearing is commenced. But at what point does repeated remediation become an abuse of process?

In Dr. Luay Ali Al-Kazely v. College of Physicians and Surgeons of Ontario, 2022 ONSC 44 (CanLII), https://canlii.ca/t/jlmb3 there were ongoing concerns about a practitioner’s record keeping. After issuing advice on two separate occasions, a third concern resulted in a remediation program involving completing educational courses, self-study and assessment by a colleague. The re-assessment revealed ongoing concerns. The practitioner declined voluntary additional remediation. As a result, the Registrar appointed an investigator. The screening committee imposed a further, more intensive remediation program including additional educational courses, some clinical supervision, and a further re-assessment. The practitioner challenged the ongoing remediation.

The Court noted that there had been procedural unfairness in that the practitioner’s third and final written submission had not been provided to the screening committee. However, that omission had no impact on the decision. The submission was quite similar to the previous two submissions.

Where a breach of procedural fairness has had no impact on the decision, the matter need not be returned to the decision-maker for reconsideration. As set out by the Federal Court of Appeal in Nagulathas v. Canada (Minister of Citizenship and Immigration), 2012 FC 1159, at para. 24; and the Supreme Court of Canada in Canada (Minister of citizenship and Immigration) v. Khosa, 2009 SCC 12, at para. 43), “Where there may be a breach of the rules of fairness, the court should assess whether the error ‘occasions no substantial wrong or miscarriage of justice’ …… The breach of procedural fairness must affect the outcome for the court to find a reviewable error”.

The Court also rejected the argument that the appointment of an investigator because the practitioner refused to accept a proposal for voluntary remediation was inappropriate:

The Registrar is not barred from initiating an investigation if a member refuses voluntary remediation. In fact, it is a necessary step for the College to use its statutory powers to address the evidence of substandard practice. It would be a dereliction of the College’s duty to protect the public if it failed to act in the face of evidence that a physician was practicing below the standard and was unwilling to voluntarily engage in the required remediation.

The Court also accepted the suitability of a course of escalated remediation:

This is the ICRC’s second attempt to remediate Dr. Al-Kazely, which is directly related to the record-keeping concerns identified by the Assessor and represent a targeted escalation of educational intervention aimed at remediating the Applicant’s lack of success with lower-level remediation. In the circumstances, this is a reasonable and proportionate intervention.

The Court noted that establishing an abuse of process is difficult:

In order to constitute an abuse of process, proceedings must be “unfair to the point that they are contrary to the interests of justice”. An abuse of process is established only where: “(1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency.” (Toronto (City v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 35 (CanLII), 2003 SCC, at para. 35).

In fact, the situation was quite the opposite:

To quash the 2020 SCERP [remediation] and permit Dr. Al-Kazely to forgo any further remediation and reassessment would run contrary to the community’s sense of fair play and its interest in the proper regulation of physicians (Abdul v. Ontario College of Pharmacists, 2018 ONCA 699 (CanLII) paras. 16, 18, 22). It was not an abuse of process for the ICRC to find that Dr. Al-Kazely be further remediated.

While remediation efforts must, at some point end, reasonably escalated remediation efforts are appropriate.

Most Convenient Forum

by Julie Maciura
February 10, 2022

If a practitioner is registered in two jurisdictions, which should proceed first with the investigation and hearing? This issue arose in Mema v Chartered Professional Accountants of Alberta (Complaints Inquiry Committee), 2022 ABCA 4 (CanLII), https://canlii.ca/t/jlnm0. The practitioner was alleged to have engaged in serious financial misconduct in British Columbia. Most of the witnesses were located there. The practitioner argued that the British Columbia regulator should proceed before the Alberta regulator because this was the most convenient forum to address the matter. However, the Court questioned whether the most convenient forum consideration was even an appropriate one in a regulatory context. The practitioner was registered in Alberta and the Alberta regulator had jurisdiction over the practitioner and had the authority to discipline them for their conduct anywhere in the world. In any event, there was no unfairness due to Alberta proceeding first because the British Columbia regulator had deferred its investigation pending the outcome of the Alberta proceedings and there was also a question about B.C’s jurisdiction since most of the conduct occurred before the practitioner was registered in B.C. (but occurred while registered in Alberta). Also relevant was that some of the conduct (i.e., non-cooperation with the investigation) related solely to the Alberta regulator.

The Court also found that the timeline provisions in the Alberta legislation did not amount to a limitation period and could be extended by the regulator. The Court also maintained the significant costs order imposed by the Alberta regulator for its interim proceedings in the absence of evidence that the order would have a significant impact on the practitioner’s ability to defend themselves at the discipline hearing on the merits.

Regulators can discipline practitioners for conduct occurring in another jurisdiction even where that other jurisdiction has an equivalent regulator.

Scrutiny of Complaints Dispositions

by Natasha Danson
February 7, 2022

The complaints decisions of many regulators are subject to external scrutiny. The scrutiny is often focused on whether the public interest was served. The test for such scrutiny varies, but perhaps the most common one has two components: 1) Was the investigation adequate? 2) Was the decision reasonable?

British Columbia’s highest Court again waded into the meaning of that test in The College of Physicians and Surgeons of British Columbia v. The Health Professions Review Board, 2022 BCCA 10 (CanLII), https://canlii.ca/t/jlpc1. The Court slightly modified its view about the test that it had set out in Moore v. College of Physicians and Surgeons of British Columbia, 2014 BCCA 466 (CanLII), https://canlii.ca/t/gfk07 only eight years earlier around whether regulatory investigations were adequate. The Court described that test as follows:

Adequacy describes a relationship between an action and a goal. An investigation is “adequate” if it is sufficient to meet its goals. There may be many goals of an investigation of a complaint against a physician. Obvious goals include public accountability and uncovering the truth. A further possible goal is to gather sufficient information to allow an effective remedy to be crafted. Scarcity of resources dictates that one goal of investigations will be to obtain necessary information without squandering resources. There are, no doubt, other goals that can be ascribed to the investigative process.

In this case, the complaint decision was first reviewed by the province’s Review Board. According to the Court, it was insufficient for the Review Board simply to assert that more investigation should have been done. Instead, the Review Board should have identified the ways the investigation was inadequate, which in turn would have been likely to produce relevant information that might have affected the disposition of the complaint. The Court found that most of the additional investigatory steps suggested by the Board related to matters where it was likely that the relevant information had already been obtained, meaning that the additional steps related to portions of the investigation that were adequate. There was only one area in the investigation where the Court agreed additional relevant information should be sought as it might affect the decision.

In terms of the component of the review focused on whether the disposition was reasonable, the Court said:

[The legislation] indicates that, in respect of the disposition, the statute’s focus of deference is on the College. A failure by the Review Board to afford deference to the College would be a fundamental violation of the statutory scheme. … The reasonableness standard of review recognizes that there will often be a range of acceptable outcomes on questions of law or fact. Each of those outcomes will be characterized as reasonable, and a tribunal does not fall into error by choosing one of the reasonable outcomes. Any of those outcomes will be a “right” answer.

This legislation also provided for a streaming of complaints into serious and less serious categories. The Court held that it was beyond the jurisdiction of the Review Board to question which stream had been selected; rather the Board should have focused only on whether the investigation was adequate and the decision reasonable.

Other regulators with similar complaints scrutiny criteria will be guided by this decision.

Investigative Insults

by Erica Richler
February 3, 2022

What should a regulator do where a practitioner refuses to cooperate with an investigation and attacks the investigation aggressively on social media including posting documents from the investigation? The traditional option is to refer the non-cooperation and behaviour itself to discipline. However, this approach can delay the regulator’s ability to address the conduct under investigation. In College of Physicians and Surgeons of Ontario v. O’Connor, 2022 ONSC 195 (CanLII), https://canlii.ca/t/jlvck, the regulator sought a court order compelling compliance and limiting the social media postings.

In that case the regulator was investigating a number of practitioners for their conduct related to the pandemic including allegedly issuing medical exemptions on questionable grounds and posting potentially harmful public statements about vaccination, mask mandates and other related topics without scientific support. The practitioners refused to cooperate and posted “angry” statements about the investigation that revealed the identities of regulatory staff, regulatory legal counsel and some practitioners who had been consulted to provide advice on the professional aspects of the alleged conduct.

The Court had little difficulty ordering the practitioners to cooperate fully with the investigation. This was their legal obligation under the legislation.

Generally speaking, a statutory injunction does not place as onerous a burden on the party seeking it as does a mandatory injunction at common law: Ontario (Minister of Agriculture & Food) v Georgian Bay Milk Co., [2008] O.J. No. 485, at para. 34 (S.C.J.). Where a regulator “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”: College of Physicians and Surgeons of Ontario v. Canon2018 ONSC 4815, at para. 43. “Exceptional circumstances” includes instances where the physician has ceased the activity, making the injunction moot, or where there is uncertainty as to whether the physician has done anything to justify an injunction by the Applicant: Gavin Downing v. Agri-Cultural Renewal Co-operative Inc. O/A Glencolton Farms2018 ONSC 128, at para. 113.

The Court had more difficulty with the request for an order banning publication of certain information about the investigation. All those identified had received disturbing postings and messages from members of the public including messages to the effect that they would face legal repercussions, such as a Nuremburg-type or criminal prosecution. The Court said: “What the Applicant actually wants is a ban on verbal harassment, not physical intimidation.”

The Court did agree that the identity of the practitioner consultants should be protected. They were analogous to witnesses and attempts to harass them could undermine the process: “Without some anonymizing of doctors who come forward in an effort to assist the medical community at large by assisting the regulator, the Applicant may be unable to operate efficiently and effectively …” However, the court viewed regulatory investigative staff and legal counsel as being analogous to public servants. The values of an open and democratic society allow for criticism, even unfair criticism. The confidential nature of investigations and the lack of an open hearing before the screening committee were not considered as part of the Court’s analysis. The Court wrote:

My reading of the communications cited by the Applicant and its counsel is that they are laced with anger. The language of [the practitioner’s] followers, in particular, is vituperative and certainly not to my liking. It appears defamatory and may be actionable. But it does not really threaten violence or indicate that the authors will take other illegal action against public officials or the Applicant’s personnel. Rather, for the most part it consists of people vowing to take legal action – unfounded legal action, to be sure – but nevertheless not illegal or extra-legal action.

The Court concluded that “If threats of violence or actual intimidation emerge, the Applicant will of course be free to revisit this issue in the face of fresh evidence.”

The Court has provided some guidance as to when it will be prepared to act proactively to prohibit future conduct to ensure effective investigations. This decision will make it more difficult for regulators to protect their staff and representatives from harassment. Of course, different considerations apply to holding practitioners accountable afterwards for the professionalism of their conduct.

Concrete Concerns

Durcan_Rebecca_5583

by Rebecca Durcan
February 1, 2022

There is no general duty of procedural fairness or duty to consult when proposing legislative amendments or making policies: Covant v. College of Veterinarians of Ontario, 2021 ONSC 8193 (CanLII), https://canlii.ca/t/jlc8m. However, there are exceptions. One exception can be found in Leavitt v Association of Professional Engineers and Geoscientists of Alberta, 2021 ABQB 983 (CanLII), https://canlii.ca/t/jl789. In that case, the regulator for professional engineers issued a practice bulletin requiring professional engineers to supervise construction concrete testing laboratories.

However, the issue of whether professional technologists (who are not professional engineers) could supervise such a laboratory had been the subject of dispute for some years. There had been previous litigation on the topic and various standard setting organizations had been lobbied to revise their standards on the point (which they had). The legislation applicable to regulating professional engineers established joint bodies to determine scope of practice issues. That legislation provided for an appeal process where the equally constituted joint body could not reach a decision.

The Court concluded that the regulator had the legal authority to issue the practice bulletin clarifying its expectations for the supervision of the laboratories. This was so even though there was no explicit legislative provision enabling the regulator to address this topic through non-legislative policy. Part of the regulator’s mandate is to provide guidance to the profession as to scope of practice issues. The Court also concluded that despite the secretive way in which the practice bulletin was developed, there was no improper motive by the regulator in developing the practice bulletin.

However, the Court found that the regulator improperly circumvented the statutory joint body consultation process: “By knowingly acting on inadequate information and declining to acquire relevant information, APEGA’s decision to issue the Practice Bulletin was unreasonable.” The Court also found that in the unique circumstances of this case, the regulator did not comply with the principles of procedural fairness including “breaching the doctrine of legitimate expectations”. The Court declared that the practice direction was not validly made and returned the issue to the joint body for determination in accordance with the legislative scheme.

This case illustrates the necessity of following the legislatively designed process for policy development (where it exists) and for regulators to avoid a deliberate lack of transparency.

Court Reviews of an Interim Suspension

by Bernie LeBlanc
January 25, 2022

Interim suspensions (or other orders) during an investigation are always challenging for Courts to decide. Typically, they are challenged through an application for judicial review. On such applications a court will generally review whether a fair procedure was followed and whether the regulator reasonably applied the statutory criteria for imposing such an order. In Kalia v Real Estate Council of Alberta, 2021 ABQB 950 (CanLII), https://canlii.ca/t/jkxnn a different process was specified in the enabling statute. Under that legislation, a practitioner could ask the Court to “stay” the interim order. As such, the Court applied the interim injunction test (i.e., issue to be tried, irreparable harm, balance of convenience). Despite this unusual procedure, the Court’s decision provides some interesting perspectives on interim orders that may be relevant to other legislative schemes.

The Court reviewed the purpose of interim orders:

The legislative purpose of a temporary or interim suspension is to protect the public while the regulatory body undertakes conduct proceedings, including the investigation into the allegations against its licensee and any hearing of the merits. In deciding whether to impose an interim suspension, the regulatory body is not determining whether the complaints are “true” or choosing between two competing versions of events. Instead, the regulator is assessing whether a prima facie case of misconduct is established such that in the surrounding circumstances, and having regard for the personal impact on the licensee, action is necessary to protect the public on an interim basis until the conduct proceedings are concluded….

In satisfying itself that a prima facie case is established, the regulator examines whether the evidence, if believed, covers all of the essential elements of the alleged misconduct and justifies a finding against the licensee in the absence of an answer. The regulator generally does not weigh the credibility or merits of a disputed allegation, except to discount evidence that is inconsistent with objective or undisputed evidence or which is manifestly unreliable. At this stage of the conduct proceeding, the regulator only seeks to exclude complaints that are manifestly unfounded or exaggerated…. [citations omitted]

The Court then looked at the procedural fairness extended by the regulator. Reliance on hearsay information was appropriate in this context. And while some disclosure, particularly of the particulars of the allegations, is necessary, full disclosure of all information is not. In fact, such disclosure could affect the integrity of the ongoing investigation:

However, full disclosure might properly be withheld during the investigation as a review officer gathers and tests the reliability of evidence. For example, a review officer might seek to explore the credibility of the licensee by collecting the licensee’s version of events before confronting the licensee with contrary evidence.

The Court also discussed the types of considerations that can be taken into account when balancing the practitioner’s interests against the public interest:

a) whether a prima facie case of misconduct is shown on the merits;

b) the nature and gravity of the impugned conduct;

c) the circumstances in which the impugned conduct occurred;

d) whether interim relief remains necessary to protect the public from a real risk of harm;

e) the likelihood of the impugned conduct being repeated;

f) the licensee’s disciplinary history, if any;

g) new allegations of misconduct reported or arising during the suspension;

h) the extent of the licensee’s cooperation with the investigation, which may assist in demonstrating the licensee’s respect for regulatory compliance and professional governance in the immediate future;

i) the overall passage of time in the conduct proceedings, including the likely timeline until the conclusion of the proceedings;

j) the extent of the irreparable harm to which the licensee will continue to be exposed; and

k) whether means less restrictive than a suspension are available to adequately protect the public.

In this case the Court had little difficulty in determining that the risk to the public warranted an interim suspension and that monitoring conditions were not suitable. However, the Court did indicate that if the hearing did not commence within four months, the stay application could be renewed.

While regulators should always look to the criteria for imposing interim orders set out in their legislation, the above comments can offer some guidance as to how a court will review their determination.

Impact of Bankruptcy on Discipline Sanctions

by Julie Maciura
January 21, 2022

There is continuing ambiguity as to the impact of a practitioner’s bankruptcy proceedings on disciplinary sanctions. The goal of the bankruptcy process is to enable an individual to obtain a fresh financial start. That goal is undermined if debts are not extinguished by the bankruptcy. In the case of Alberta Securities Commission v Hennig, 2021 ABCA 411 (CanLII), https://canlii.ca/t/jl93g, Alberta’s highest court indicated that the exceptions to that rule should be narrowly interpreted.

In that case the individual was found to have engaged in serious securities violations including issuing misleading statements to the investing public. The sanction included a significant administrative penalty and a large costs order. The regulator argued that the sanction survived the individual’s bankruptcy under exceptions related to “a fine, penalty, restitution order or other order similar in nature … imposed by a court in respect of an offence” or a “debt or liability resulting from obtaining property or services by false pretences or fraudulent misrepresentation”. The Court, on a detailed interpretation of the provisions concluded that the exceptions did not apply, and that the sanction orders were extinguished upon the individual’s discharge from bankruptcy. While not in issue, the reasoning of the Court would likely have led to the same result if the sanction had been a fine rather than an administrative penalty. The same outcome (extinguishing of the debt) would be even more likely to have resulted, before this Court at least, for monetary sanctions imposed for non-financial misconduct by a practitioner of another profession (e.g., a health practitioner).

The Court noted that the other sanctions, namely a permanent ban on being an officer or director or an issuer and a 20-year cease trading ban, remained in force.

While the case law on the point is somewhat confusing, when imposing sanctions in discipline matters, regulators should take into account that the financial aspects of their order might be impacted by the bankruptcy process. It may be prudent to include non-financial elements as part of the sanction, perhaps even as an alternative to fulfillment of the financial sanctions.

Public Protection Outweighs Irreparable Harm to the Practitioner

by Natasha Danson
January 18, 2022

Courts are frequently tasked with deciding whether a discipline sanction should commence even though an appeal or judicial review is pending. Even where a court concludes that the appeal or judicial review application is not frivolous and that continuing the sanction in the meantime will cause irreparable harm to the practitioner, it can still decline to stay the discipline order.

In Kirby v. Association of Chartered Professional Accountants of Newfoundland and Labrador, 2021 NLSC 159 (CanLII), https://canlii.ca/t/jl1mf an accountant was found by the discipline tribunal to have engaged in serious misconduct requiring revocation. The Court noted that the inability to practise and the publication of the finding would cause irreparable harm to the practitioner. However, the Court found that the public interest outweighed the individual harm:

I am not satisfied that the Applicant has demonstrated that his case is exceptional.  The loss of accountancy income and the reputational harm that he will incur are the inevitable consequences of the findings of the Tribunal.  There is nothing in the circumstances of his case that distinguishes it from the case of any other professional who appeals from a decision revoking their right to practice.  Unlike the circumstance in Shea v. The Law Society, public protection is very much a concern in this case.  If a stay is granted, then the Applicant will continue to provide chartered accountancy services to a public that will be unaware that a tribunal of the association governing his profession has found him guilty of unprofessional conduct and imposed the most severe sanction against him.  The Applicant’s private interest in avoiding reputational or financial harm does not outweigh the public interest.

The Court put significant weight on the fact that the enabling legislation did not automatically stay the discipline sanction when an appeal was taken.

Code of Conduct Proceedings

by Erica Richler
January 14, 2022

Occasionally regulators have to address breaches of their Code of Conduct by a Board or Council member. Where the concerns amount to allegations of wrongdoing (as opposed to objective facts such as missing a specified number of Board meetings) an investigation and adjudication is often necessary. Guidance as to the procedures and degree of neutrality required of Board or Council members in such proceedings has been provided in Chiarelli v. Ottawa (City of), 2021 ONSC 8256, https://canlii.ca/t/jlh5f. While that case relates to a municipal council, some analogies are likely to apply to regulatory Boards or Councils.

In that case serious allegations of sexual harassment were made by three women who had applied for a job with the Councillor. The City’s Integrity Commissioner investigated the allegations, made a report finding that the allegations were substantiated and recommended the maximum sanction (270 days of forfeited pay). The Council accepted the report and imposed the recommended sanction. On judicial review, the Councillor raised a number of issues.

One was that the Commissioner demonstrated an appearance of bias. The Court held that it should not consider the issue because it was not raised at the time. The Court said:

This is no mere technicality. An allegation of bias impugns the integrity and conduct of the person against whom it is made. That person is not a party to the underlying conflict, and the allegation, by its nature, seeks to cast a neutral party into the conflict itself. That person is entitled to respond to the allegation and, where the allegation of bias is rejected, to explain why they are not biased in fact, and why their conduct does not give rise to a reasonable apprehension of bias. Usually, this is the only chance the person has to respond to serious allegations made against them. If this issue is then pursued on judicial review, it is the task of this court to review the decision on the bias issue – a task we cannot perform since the issue was not raised with the Commissioner and so he has not made a decision on the issue that we can review.

The Court, however, went on to review the concerns and found that they were not established.

The Councillor experienced a number of serious health issues. The Councillor argued that the Commissioner should not have proceeded with the investigation during the period of illness. The Court found that the Commissioner had accommodated the Councillor’s health condition throughout the process including by providing a series of deferments to the Councillor and modifying the manner in which the Councillor could respond to the investigation. The Commissioner only proceeded to finalize the report after it was clear that the Councillor had no intention of participating in the investigation.

However, the Court did find that the City Council, itself, had demonstrated an appearance of bias. The Court indicated that because of the Council’s political role, it was not governed by the same principles of neutrality as purely adjudicative bodies like courts (or, we would suggest, discipline committees). Commenting on concerns of significant public interest including the reputation of the City and reiterating the Council’s commitment against sexual harassment was permissible so long as the Councillors did not demonstrate a closed mind when it performed its adjudicative role. While regulatory Boards or Councils have a policy, rather than a political, role, a similar test would likely apply to them. In this case, the statements made by some Councillors were so strong, were accompanied by a refusal of some of them to sit at the same meeting table as the Councillor in issue, and where there was no public self-reminder by the Councillors that their adjudication required an open mind in reviewing the evidence indicated that the closed mind criteria had been met. The Court set aside the decision of the Council and substituted its own decision (which, in fact, resulted in the same outcome).

Thus, Code of Conduct proceedings for regulatory Board or Council members are not the same as discipline proceedings for practitioners. They do, however, require a minimal level of objectivity.

Posting Predicament

by Natasha Danson
January 13, 2022

Some regulators are required to post on their public registers information about offence charges and findings against practitioners. However, such postings can have implications for third parties. For example, in B.M.D. et al. v. HMTQ, 2021 ONSC 5938 (CanLII), https://canlii.ca/t/jhz3p the charges and findings related to intimate partner violence. Through a complex array of events related to publication bans, the Divisional Court considered what information should be posted by the regulator. The Court was deeply concerned about the impact of the information on the practitioner’s spouse even if the spouse was not directly identified in the posting. In the end, the Court concluded that the information should be posted and that the posting should make reference to intimate partner violence:

I have concluded that the countervailing public interest in the College investigating and reporting on the criminal actions of one of its professional members outweighs B.M.D.’s privacy interests.  Further, I accept that the physician’s commission of an intimate partner assault would be an important matter for his current patients and any potential patients to know about in choosing whether to accept him as their medical treatment provider.  Such a choice is intimate to each person.  Sadly, too many of a physician’s patients may themselves be victims of intimate partner violence.  Those individuals, if armed with information that their doctor had committed such an offence, should be afforded an opportunity to choose not to be treated by that physician.”

While regulators do need to take extra care in these situations, their duty of transparency is recognized as an important one.

No Procedural Unfairness Unmasked

by Erica Richler
January 12, 2022  

In Matheson v. College of Physicians and Surgeons of Ontario, 2021 ONSC 7597 (CanLII), https://canlii.ca/t/jktjh the regulator received a complaint that the practitioner saw a patient without wearing a mask shortly after undertaking to comply with public health guidelines including wearing a mask. The Court upheld the interim suspension issued by the regulator. In respect of the argument that the regulator was unfair in not granting a lengthy extension of time to respond to the proposed interim order, the Court said:

In my view, there was no procedural unfairness in this case. When considering whether to extend the 14-day minimum period for submissions, the College is not only concerned with fairness to its members, but also with the public interest. In this case, the College had information that Dr. Matheson was not complying with a requirement that he wear a mask when seeing patients. This was not only contrary to his undertaking but contrary to basic public health advice and directives. In the circumstances, the College had to balance Dr. Matheson’s interests against the public interest. In the absence of any compelling reason for extending the deadline other than the stated need for more time, there was no procedural unfairness.

The Court also said that, while limited findings of fact can be made in interim order matters, none was required in this case because the practitioner did not actually deny the specific complaint of taking off his mask when seeing the complaining patient. Evidence of general compliance with the undertaking also did not detract from the finding on this uncontested point.

The Court also found that the reasons for decision were adequate in the context, including why it did not consider an alternative order short of suspension to be appropriate:

In this context, the Committee’s use of the word “ungovernable” is meant to convey that he cannot be counted on to comply with his undertaking to wear a mask when meeting with patients. In other words, it supports the Committee’s conclusion that less restrictive measures would not be effective to protect the public pending a hearing before the Discipline Committee.

It was also unnecessary for the regulator to discuss the literature submitted by the practitioner about the risks of wearing a mask as the issue was the practitioner’s failure to comply with the undertaking given.

The procedural fairness requirements for interim orders have to take into account the context in which such orders are made.

Consultation Requirements

Durcan_Rebecca_5583

by Rebecca Durcan
January 11, 2022

Most regulators consult with the public and the profession when making or amending its rules or policies. However, is this a legal requirement? And should any consultation be similar to the kind of notice given in discipline matters.

In Covant v. College of Veterinarians of Ontario, 2021 ONSC 8193 (CanLII), https://canlii.ca/t/jlc8m the Court said no to both questions. In that case a veterinarian was disciplined for selling large quantities of drugs to pharmacies. The regulator had long restricted the ability of veterinarians to sell drugs for resale. However, it further limited the exception for resale to pharmacies so that it could only be done for reasonably limited quantities to address a temporary shortage. The practitioner challenged the validity of the amended provision on a number of grounds.

The Court held that the provision was within the mandate of the regulator to enact given the authority to make regulations in respect of standards of practice and drugs. The Court noted that the authority of a regulator to enact provisions is given significant deference. It stated:

The purpose of the amendment was to diminish the risk associated with veterinarians buying and selling drugs, with an exception when required to ensure that patients have access to the medications they need. The amended language of s. 33(2)(d) addresses a veterinarian’s ability to dispense drugs and thus falls squarely within Council’s regulation-making authority under s. 7(1)(9). Because s. 33(2)(d) relates directly to its statutory purpose, it is not ultra vires.

The Court also found that the phrases “reasonably limited quantities” and “temporary shortage” did not render the provision unintelligible or without a basis for coherent judicial interpretation. The Court identified the context of the provision as allowing practitioners to understand their obligations. The Court also found that the provision was not overbroad; it did not capture obviously appropriate conduct within its net.

The Court also found that the regulator had followed the required process for enacting the regulation. There was no duty of procedural fairness similar to what was owed in a disciplinary proceeding. This point, that procedural fairness is not required for legislative-type decisions by regulators was made in another recent case: Ontario Teacher Candidates’ Council v. The Queen, 2021 ONSC 7386 (CanLII), https://canlii.ca/t/jlcvg. Consultation can, of course, be required by the provisions of the enabling statute: Leavitt v Association of Professional Engineers and Geoscientists of Alberta, 2021 ABQB 983 (CanLII), https://canlii.ca/t/jl789.

In the Covant case the evidence was that the amendments were circulated in advance to all practitioners for comment (which was not strictly required) and the regulator had distributed the amendments to the profession after they were made. There was also evidence that the practitioner in this case was specifically made aware of the provision by a number of individuals.

The Court also found that there was extensive evidence to support a finding of breaching the provision. The Court also upheld the rejection of expert evidence on the duty to consult that was, in essence, a legal opinion.

The Court also upheld the sanction ordered (which included a one-month suspension) and payment of costs that amounted to one-third of the actual hearing costs. In doing so that Court explained that the “error in principle” and “clearly unfit” test for review includes the following considerations:

While determining the appropriate penalty is inherently discretionary, in the regulated health profession context, the penalty must be proportionate to the findings made and guided by penalties imposed in other cases….  Other relevant factors include ensuring public protection and confidence in the College’s ability to govern the profession, denunciation of the conduct at issue, specific and general deterrence and rehabilitation of the member. The Supreme Court of Canada has found that discipline committees have “greater expertise than courts in the choice of sanction for breaches of professional standards” …. “Deference is owed to discipline committees because they are tribunals composed of members of the profession and of the public with the expertise to assess the level of threat to the public and the… profession posed by certain forms of behaviour…. [citations omitted]

Ungovernability Onus

by Bernie LeBlanc
January 7, 2022

It is trite law that the burden of proof in discipline matters is on the regulator. However, this concept can be pushed too far. In Park v. Royal College of Dental Surgeons of Ontario, 2021 ONSC 8088 (CanLII), https://canlii.ca/t/jl911 the practitioner’s registration was revoked on the basis of ungovernability because the practitioner repeatedly breached two undertakings given to the regulator restricting the performance of implant procedures. The Court had little difficulty in finding that this conduct supported revocation.

In arguing the appeal, the practitioner raised a number of circumstances in which the hearing panel had in some way reversed the burden of proof. In each case the Court disagreed.

a) The hearing panel did not have to locate similar cases to support the finding that revocation was “within the range”. The Court said:

On its face, revocation is a fit sentence because it addresses the concern that Dr. Park cannot be counted on to abide by further conditions or limitations imposed on his ability to practice dentistry. In the absence of a clear line of cases showing that the Discipline Committee has not imposed revocation in similar cases, I do not find that the Discipline Committee made an error in principle by failing to refer to specific similar cases in its decision.

b) The hearing panel did not err in failing to review the test for ungovernability in its reasons. Both parties had presented a case describing the test and the hearing panel set out a number of considerations that closely matched the criteria set out in the jointly submitted case.

c) The hearing panel did not fail to address the practitioner’s evidence in making its findings of fact. Rather, it did not accept the practitioner’s evidence. It was open to the hearing panel to conclude that there was no evidence that the practitioner misunderstood the obligations in the undertaking when it was signed. Actual understanding of the terms of the undertaking by the practitioner did not need to be proved by the regulator.

d) The statement by the hearing panel that the practitioner would have to demonstrate an ability to return to practice safely upon re-instatement was a reference to the re-instatement process, where the onus was actually reversed, and was not a reference to the burden of proof applied at the current hearing.

While the concept that the burden of proving allegations at discipline is on the regulator is a firm and strong one, it is not to be applied inappropriately.

Second Contempt Sentence 

by Julie Maciura
January 5, 2022

How long should a person be jailed for contempt of court for a second breach of a restraining order for illegal practice? British Columbia’s highest court dealt with that issue in College of Physicians and Surgeons of British Columbia v. Ezzati, 2021 BCCA 422 (CanLII), https://canlii.ca/t/jkcpp. The lower court had imposed a six-month jail sentence and fine for “repeatedly violated an interim injunction by: holding herself out as being qualified to practise medicine; purporting to examine and advise others as to their suitability for a botulinum toxin or dermal filler injection for cosmetic purposes; and injecting clients with botulinum toxin and dermal filler”. The first contempt incidents resulted in a fine of $5,000.

The Court of Appeal found that the lower court had properly declined to consider rehabilitation since no evidence had been provided in evidence. The Court also held that there had been no material error in considering the expert evidence of risk of harm. The Court also declined to consider fresh evidence of insight or of undue impact of incarceration on the individual as either being irrelevant or unconvincing. However, the Court did reduce the period of incarceration to three months, saying:

… a six-month period of incarceration in these circumstances is a disproportionate (by which I mean a clearly excessive) response to the appellant’s conduct. It does not reflect restraint in the use of incarceration for civil contempt. In addition, the sanction does not reflect a measured application of the “step-up” principle. While there is nothing to be said for the appellant’s conduct and few mitigating factors, the sentence for the second contempt is a very significant jump from the $5,000 fine imposed for the first breach. In addition, I am of the view that the sanction represents a marked and substantial departure from sanctions imposed in similar contexts.

While outcomes will depend upon the particular circumstances, this appellate court decision provides guidance.

Presumptive Prematurity

by Natasha Danson
December 30, 2021

Courts are more frequently requiring parties to complete the administrative process before seeking a judicial remedy. A prime example is found in Gill v. College of Physicians and Surgeons, 2021 ONSC 7549 (CanLII), https://canlii.ca/t/jkg43. In that case a physician faced several complaints and investigations in respect of statements made related to the pandemic. Some complaints and the Registrar’s investigation resulted in a caution. Other complaints were dismissed. Several of the complaints were appealed to an independent tribunal by both the practitioner and a complainant. The decision on the Registrar’s investigation did not have an internal appeal option. The practitioner sought judicial review of all of the decisions seeking a declaration that attempted to regulate the practitioner’s comments, claiming it was contrary to their freedom of expression rights contained in the Canadian Charter of Rights and Freedoms.

The regulator challenged the judicial review on the complaints matters on the basis that the application was premature. Ordinarily parties wait to raise the prematurity issue at the application hearing on the merits to avoid having to deal with the issue twice. However, in this case the regulator brought a motion in advance.

The Court found that the judicial review of the complaints matter was premature. The Court commented that the issues should be addressed by the administrative tribunal first to avoid fragmenting and even duplicating the proceedings. Since complainants were not parties to the application for judicial review, they might be excluded from the process in which they would participate at the tribunal. The fact that the issues included an argument based on the Charter and the practitioner sought a remedy not available elsewhere (i.e., a declaration) was not an exceptional circumstance justifying Court intervention. Nor was the fact that there would have to be a judicial review application in any event to deal with the decision flowing from the Registrar’s investigation.

This decision emphasizes yet again the Court’s strong preference that administrative proceedings be allowed to finish before going to the courts.

Parity Between Professions

by Erica Richler
December 23, 2021

Should different professions impose the same standards, and the same sanctions, for the same conduct? In Jobin c. Technologues (Ordre professionnels des), 2021 QCTP 83 (CanLII), https://canlii.ca/t/jk8vp the Professions Tribunal said not necessarily. In that case, the practitioner was registered with two regulators (one for professional engineers and one for professional technologists). The practitioner was convicted criminally for municipal corruption. The practitioner was disciplined by the professional engineering regulator and was suspended for six months and fined $10,000. When disciplined for the same conduct by the regulator for professional technologists, the practitioner was suspended for 12 months and fined $7,500. On appeal, the practitioner argued that since the crime was committed in his capacity as a professional engineer, he should not be disciplined as a professional technologist. He also argued that the professional technologists regulator should not impose a more severe penalty than what was imposed by the professional engineering regulator.

The Court upheld both the finding and the sanction. The Court upheld the finding that a criminal conviction for corruption was relevant to the practitioner’s practice of professional technology. The Court also indicated that different professions did not necessarily have to impose the same sanction for the same conduct.

Parity of discipline amongst professions is not required.

Redacting Exhibits in Public Hearings

Durcan_Rebecca_5583

by Rebecca Durcan
December 20, 2021

The Courts have recently emphasized the “open court” principle that hearings, and exhibits filed at hearings, should be publicly available in most circumstances. In Turner v. Death Investigation Council et al., 2021 ONSC 6625 (CanLII), https://canlii.ca/t/jk3p8 the Court has provided guidance on the application of this principle to regulatory bodies. In that case, a complainant sought judicial review of the handling of a complaint against the Chief Forensic Pathologist of Ontario. The regulator sought guidance on whether its file could be sealed or, at least, the identities of the participants could be redacted. The Court found that the stringent test for sealing the file was not met. Even for the autopsy files, it was sufficient for the identities of the children who were examined and their families to be redacted.

The Court also held that there was an insufficient basis for redacting the identities of the individuals interviewed despite their being given assurances of confidentiality for participating in the investigation. They were not vulnerable witnesses (being coroners and pathologists) and there was no evidence to support their concern of potential repercussions and reprisals. In fact, the Court felt that making their participation public would better protect them from reprisals than keeping their identities secret. The assurance of confidentiality should not have been given. The documents would not be redacted to conceal their identity.

Regulators can draw lessons from this decision on when redaction of files that may later be made public can be justified.

BC Court Upholds Broad Investigative Powers

by Bernie LeBlanc
December 13, 2021

The highest court in British Columbia has upheld the broad scope of investigative powers for the legal regulator there. In A Lawyer v. The Law Society of British Columbia, 2021 BCCA 437 (CanLII), https://canlii.ca/t/jkg5x, a routine audit of a lawyer’s practice raised concerns about their allowing trust accounts to be used for money laundering, among other concerns. The investigator was appointed and, in essence, took copies of the entire electronic records of the firm. The practitioner argued that many of the records were irrelevant to the concerns used to initiate the investigation. The regulator responded that the investigation was not limited to the initial concerns and, in essence, the entire practice was under investigation.

The Court of Appeal upheld that the regulator could investigate the entire practice of the practitioner. This view was supported by “the plain words of s. 36(b), their statutory context, and the overarching purpose” of the legislation. A narrower interpretation “would frustrate the Law Society’s ability to regulate the profession and protect the public effectively.” The Court also rejected the argument that such a broad approach to the regulator’s investigative powers made the provisions inconsistent with the protections in the Canadian Charter of Rights and Freedoms against unreasonable search and seizure. In the context of a lessened expectation of privacy, a reasonable basis to commence the investigation and an opportunity to challenge the investigation later in the process if discipline proceedings resulted, the seizure was reasonable.

The Court also agreed that the application for judicial review was premature as the practitioner had not exhausted all of the internal mechanisms for limiting the use of the information seized.

This decision, while based in part on the specific language in the statute, reinforces recent case law that regulatory bodies have broad authority to investigate practitioners.

Publication of Complaints Decisions

by Julie Maciura
December 6, 2021

Health regulators in Ontario are required to post on their website information about complaints decisions that result in remedial directions (e.g., to attend for a caution) even though the matter was not referred to discipline. In Doe v. College of Physicians and Surgeons, 2021 ONSC 7550 (CanLII), https://canlii.ca/t/jkgwj a practitioner sought judicial review of a decision cautioning her for inappropriate comments to colleagues. The practitioner sought the removal of the posting from the regulator’s website until a determination was made about the legality of the complaints decision.

In terms of whether the practitioner would suffer irreparable harm, the Court said:

The applicant argues that she is already experiencing harm in the form of reputational damage and embarrassment, and this experience will not be undone if she is eventually vindicated.  In my view this argument cannot prevail.  In a great many cases – whether criminal, family, civil litigation, or administrative proceedings, findings are made that cause parties to feel reputational damage and embarrassment.  They are found to have acted badly (sometimes very badly).  They are not believed.  Their conduct may be criticized.  Such harm is corrected by the vindication one receives on appeal or review, and the transitory upset one experiences is a normal and inevitable consequence of a public litigation process: it is not irreparable harm within the meaning of the test for a stay.

In terms of the balance of convenience, the Court said:

I do not consider the balance of convenience to tilt particularly strongly in this case, but on balance I find it favours denying a stay.  The CPSO has a general policy of reporting ICRC decisions of this kind on its web site once the decisions are rendered.  That policy, of general application, is based on balancing the interests of transparency and public accountability with fairness to physicians, interests established by the Legislature. By analogy to other professional regulatory contexts, the point at which a decision is made by a professional regulator is a sensible and appropriate time in the overall process for the disposition to be made available to the public.  I see nothing about the circumstances of this case to take it out of the course of general application.  This tilts the balance against a stay: professional discipline decisions are reported publicly at this stage in the process, and there is nothing about this case to take it out of this principle of general application.

This decision provides significant support for transparency of complaints decisions by regulators, at least where supported by legislation.

Proving Standards of Practice

by Natasha Danson
November 29, 2021

When an allegation is made that a practitioner failed to meet the standard of practice of the profession, the evidence often consists of both published documents and expert witnesses. The inter-relation of these two types of evidence is often an issue, as it was in Wall v. Chartered Professional Accountants of Ontario, 2021 ONSC 6440 (CanLII), https://canlii.ca/t/jjj5h. In that case the practitioner was alleged to have failed to comply with auditing standards. There was a formal published document specifying the expectations on the practitioner when conducting this type of audit. The practitioner had not complied with the expectations in that document. The practitioner’s main defence was that the published standard should not prevail over the common practice of what was actually done by practitioners in the real world.

The Court found that the tribunal had a reasonable basis for accepting the regulator’s expert evidence that the published standard reflected the generally accepted standard of practice in the profession. In addition, the Court found as reasonable the rejection of the defence expert on the point as their evidence did not establish a common practice; their evidence on the point was “speculative”. The defence expert’s evidence did not establish a responsible body of professional opinion contrary to the published standard.

Based on this case, it appears that in many contested standard of practice cases there will continue to be a mixture of published documents and expert opinions that inter-relate with each other. Hearing panels will need to consider how any experts treat the published standard document and whether the expert opinions establish that a different accepted standard of practice exists.

Duty to Offer French-Language Services

by Erica Richler
November 22, 2021

Some regulators have a duty to provide their services in French. There are also proposals to expand this duty to all regulators of professions in Ontario. There is debate as to whether providing services through translation is sufficient to meet this obligation. There has also been discussion as to how broad or narrow a statutory exception, where providing services in French is not feasible, should be interpreted. In Bélanger v. College of Physicians and Surgeons of Ontario, 2021 ONCS 5132 (CanLII), https://canlii.ca/t/jh6mf, the Court emphasizes that French language dealings with the regulator without translation should be the norm and that the exception should be given a narrow interpretation. In Bélanger, a physician sought to have a discipline hearing in French (not with the use of interpreters). The discipline panel declined to do so on the basis that there were insufficient number of French speaking Council members to constitute a quorum of the hearing panel. The Court said that a generous interpretation of the duty to provide services in French should be taken.

The Court set aside the discipline panel’s decision, holding that the practitioner had a presumptive right to a hearing before a panel that could understand and speak French. There was an insufficient basis for the panel to decline the request. There was no evidence that the regulator had asked the government to appoint French-speaking public Council members. The panel had also not done an assessment of whether holding the hearing in English, with interpreters, was reasonable in the circumstances of the specific case and whether a delay in holding the hearing would place the public at risk.

The Court acknowledged that exceptions could still be made in extraordinary circumstances. The Court sent the matter back to the panel to determine whether there were reasonable limits – in the particular circumstances of this case – to deny the practitioner’s right to a hearing before a bilingual panel. The Court also expressed its preference for the government to appoint a bilingual Council member so that this issue could be avoided.

Interim Suspension Orders by the Hearing Panel

Durcan_Rebecca_5583

by Rebecca Durcan
November 15, 2021

Some regulators have the ability to make interim orders before a discipline hearing is held. Typically, those orders are made by a screening or other committee, not the discipline panel itself. Those provisions often specify the circumstances in which such an order can be made. However, s. 16.1 of the Statutory Powers Procedure Act permits a discipline tribunal to make interim orders.

In Dua v. College of Veterinarians of Ontario, 2021 ONSC 6917 (CanLII), https://canlii.ca/t/jjstn, it was confirmed that this provision permits the making of substantive orders, including orders suspending a practitioner from practising the profession, pending the outcome of the hearing itself. The Court also confirmed that the usual court test for injunctions should be used (serious issue to be heard, irreparable harm, balance of convenience).

The Court also upheld that the imposition of an interim suspension was reasonable in the case. The allegations were serious, summarized by the Court as follows:

These included inappropriate sexual conduct with a female minor; inappropriately obtaining and administering drugs to the female minor before, during and after the sexual conduct; being charged with various criminal offences; and breaching two of the conditions attached to his license, namely, failing to immediately report the criminal charges or allegations of misconduct to the College and being in the company of female under 18 alone in a clinical practice setting.

The Court also found that the tribunal’s reliance on similar sexual misconduct incident with other minors as being relevant to the issue.

The Court also said, for similar reasons, that a refusal to postpone the discipline hearing until the parallel criminal proceedings were completed was reasonable.

The Court also found that there was no evidence that the role of independent legal counsel in giving advice and in assisting in the preparation of reasons was inappropriate.

Freeze Orders

by Bernie LeBlanc
November 8, 2021

A freeze order is a type of interim order made by a regulator preventing a person from dealing with their financial assets until a concern can be resolved. In Party A v. British Columbia (Securities Commission), 2021 BCCA 358 (CanLII), https://canlii.ca/t/jjchh, the Court discussed the criteria for making a freeze order pending investigation of concerns under securities legislation in British Columbia. The court said:

… [a regulator’s] public interest mandate requires that there be a preliminary assessment of the basis of the proposed investigation and that all relevant factors in the public interest be considered, which factors can vary from case to case but can include factors beyond the protection of the investing public.

In describing the degree of preliminary assessment, the Court said:

… [the decision maker] is required to assess the evidence to determine if it is sufficient to raise a serious question that the investigation could show breaches of the [legislation] …. The evidence must be more than mere speculation or mere suspicion, but it can be less than evidence required to satisfy a balance of probabilities. In assessing the evidence, the Commission will bring to bear its experience, expertise and common sense, including in drawing reasonable inferences.

Perhaps most interesting for regulators generally is the Court’s description of the public interest factors that should be considered:

The public interest includes not only protection of the public, but also public confidence in the markets. Public confidence will often require the Commission to take into account the interests of the asset owners and to recognize that an asset freeze order is extremely intrusive.

There can be any number of factors relevant to the public interest in a given case, depending on the circumstances. A non‑exhaustive list of factors that may be relevant in a given case includes: the seriousness and scope of the allegations; the stage of the investigation and any urgency; the scope and value of the assets to be frozen in relation to the potential claims or penalties; the potential consequences of the order on the asset owner or other parties; and the strength of the evidence in support of the asset freeze order. Other factors may also be relevant, including whether there is a link between the assets and the wrongful conduct, a risk of dissipation of assets, or other security for the potential claims or penalties. These are not mandatory criteria that must be analyzed in a checklist fashion, but simply examples of factors that may be relevant to the public interest analysis.

The Court also discussed a policy published by the regulator and concluded that it was inconsistent with the legislation and therefore should be disregarded.

The Court was hearing multiple appeals and, in applying the above criteria, upheld the freeze order in some of them and set them aside in others of them.

Costs for an Unwarranted Referral to Discipline

by Julie Maciura
November 4, 2021

Some regulators have the authority to award costs to a practitioner where no finding of professional misconduct is made and the referral to discipline by the screening committee is “unwarranted”. Further guidance is given with respect to when such costs can be awarded in Assoc. of Professional Engineers of Ontario v. Pelow, 2021 ONSC 7034 (CanLII), https://canlii.ca/t/jk09q.

In the Pelow case there were allegations of failing to meet the accepted standard in respect of two small residential projects. The complaint was made by a local Chief Building Official. The screening committee had two expert reports indicating that the standard was not met. The Discipline Committee found that the allegations had not been proved and a majority of the panel directed the regulator to pay the practitioner $35,000 in costs. The regulator appealed.

The Court held that the panel had to consider the referral based on the information before the screening committee at the time and should not consider the evidence that arose during the course of the hearing. In particular, the Court was concerned about the following:

  • The majority of the discipline panel considered factors that were irrelevant to the decision of whether the matter should be referred to discipline, namely “the limited scope and cost of the Projects, lack of broad impact on the public and the absence of any threat to public safety”.
  • The majority of the discipline panel was of the view that one of the experts relied upon by the screening committee had no experience with small projects. The Court noted that this was factually incorrect, that the hearing panel had qualified the expert at the discipline hearing, and that there was a second expert opinion relied upon by the screening committee whose small project qualifications were not disputed.
  • The majority of the discipline panel was concerned about the “questionable motivations” of the complainant. The Court found that this factor was irrelevant to the issue of whether there were concerns about whether the practitioner failed to meet the standard of practice. In any event, the discipline panel explicitly held in its decision on the merits that the motivation of the complainant was irrelevant to the allegations at the discipline hearing.
  • The majority of the discipline panel felt that the investigation was inadequate. However, the example it gave was not an issue raised by the practitioner before the screening committee and, thus, there was no basis for the screening committee to investigate that issue.

The Court set aside the costs order.

Discipline panels, when considering whether the referral to discipline was unwarranted, need to focus on the information before the screening committee at the time of the referral.

Interim Order Banning Regulator from Posting Information on its Website

Durcan_Rebecca_5583

by Rebecca Durcan
November 1, 2021

Increasingly, regulators post information about criminal charges against practitioners on their websites to provide all relevant information to the public and to enable the public to make informed choices. If the practitioner challenges the regulator’s legal authority to post the information, should the information appear on the regulator’s website while the challenge is ongoing?

On the one hand, the information about the criminal charges is publicly available, just not well known. The value of making the information public diminishes if there is a delay in posting it. The public expectation of a regulator making such information public, where the regulator knows about it, is likely high.

On the other hand, there will probably be permanent harm to the reputation of the practitioner if the legal challenge succeeds and the Court determines there is no authority to post the information on the regulator’s website. In effect, the practitioner will have no meaningful remedy to challenge the regulator’s interpretation of its legal authority because the publication will have already occurred.

In AB v College of Physicians and Surgeons of Alberta, 2021 ABCA 320 (CanLII), https://canlii.ca/t/jj7pt the Court said that there should be a balancing of the competing interests. In that case the practitioner had been charged with the criminal offence of sexual assault. The practitioner agreed to a restriction on his practice to only see female patients with a chaperone present. Information about that practice condition was available to anyone who searched the practitioner’s profile on the regulator’s website.

The Court concluded that, on the facts of this case, an order should be granted prohibiting the regulator from publishing information about the criminal charges until the court case on the merits had been determined. The Court emphasized the short period of time for which this prohibition would be in place and the public interest protection already provided by the chaperone requirement and the public’s access to information about that practice condition.

This case may be limited to its particular facts since a balancing of public interest considerations is required. In addition, the effectiveness of chaperone-based restrictions is being questioned by many regulators.

Concurrent Discipline and Criminal Proceedings

by Bernie LeBlanc
October 25, 2021

Should a discipline hearing proceed even though a criminal trial on related allegations is pending? In Berko v. Ontario College of Pharmacists, 2021 ONSC 6120 (CanLII), https://canlii.ca/t/jj5tn the practitioner asked for the discipline hearing to be deferred:

The Applicant argued before the Discipline Committee that he would face irreparable harm if the discipline hearing preceded the criminal trial; should he choose to testify at the hearing, that testimony could be used against him in the subsequent criminal trial.  Moreover, the Applicant’s participation in the discipline hearing would serve to reveal his defence strategy to the criminal prosecutor, or the Discipline Committee might draw an adverse inference if he did not testify.

The Committee balanced the competing considerations and indicated that it “was not persuaded that the Applicant would suffer any irreparable harm if the stay [i.e., deferral] was denied”. The practitioner sought judicial review of the decision. The Court declined to interfere on the basis that the application was premature. The Court provided the following additional observations:

The Applicant may well face some tactical choices about whether to testify in the discipline hearing but that does not rise to the level of procedural unfairness that would constitute an exceptional circumstance.  If there is prejudice to the fairness of the disciplinary proceedings, that can be raised at the end of the hearing on an appeal.

As well, it is not unusual that discipline proceedings and criminal proceedings overlap.  The Applicant’s submission that testifying at the discipline hearing might prove prejudicial, or that the discipline hearing would betray his defence strategy in the criminal case, is a generic submission that could be made in every case.  To show exceptional or extraordinary circumstances requires more.

There is no evidence that the Applicant will expose himself to any irreparable harm should the discipline hearing precede the criminal trial.  The disciplinary allegations overlap with but are not the same as the criminal charges.  We can only presume that the criminal court will ensure the Applicant’s right to a fair trial by adhering to the rules of evidence and affording the Applicant protections guaranteed by the Charter.

While discipline panels need to consider the circumstances of the individual case, in the absence of particular unfairness discipline proceedings may proceed before the related criminal trials.

Appearance of Bias related to Adjudicative Conduct

by Natasha Danson
October 21, 2021

An appearance of bias can arise as a result of the way that a proceeding is conducted. In Kivisto v. Law Society of Ontario, 2021 ONSC 6394 (CanLII), https://canlii.ca/t/jjbnh an unusual objection was made that the way an appeal hearing was held by the Divisional Court on a discipline appeal demonstrated an appearance of bias.

The objection was against one of the three Justices hearing the case and was based on several aspects in the proceeding, including that the Justice had refused to allow the appellant to file a longer than permitted factum, that the hearing was allegedly rescheduled deliberately to permit the Justice to hear the case, that excessive questions and comments were made by the Justice during the practitioner’s submissions, and that the decision itself revealed an appearance of bias.

The affected Justice released separate reasons explaining his response to each of the allegations. Some of this explanation described the routine processes followed by the Court.

The affected Justice nicely summarized the test for an appearance of bias quoting from a previous case as follows:

Bias as applied to a person or tribunal… is a state of mind disqualifying the person affected from adjudicating impartially in respect of the subject-matter under consideration. … As reflected in this statement, bias is not solely circumscribed by a subjective animus towards a participant in the proceedings, or some personal interest in the outcome.  “Bias” refers to anything that may reasonably lead the adjudicator to decide the case on some basis other than the evidence before the tribunal and the law.  “Apprehended bias” refers to anything that may lead the informed and reasonable observer to form a reasonable apprehension that the adjudicator might decide the case on some basis other than the evidence and the law.

The other two Justices concurred that there was no appearance of bias, stating:

As observed by Corbett J., administrative judges are required to make many directions and rulings on issues leading up to a hearing, including the permissible length of a factum. Corbett J.’s ruling denying Mr. Kivisto’s request to file a factum longer than 30 page in this case, including the language used to describe Mr. Kivisto’s proposed factum, would not lead a reasonable person to conclude that our colleague had made up his mind about the merits of Mr. Kivisto’s case. It is trite law that a ruling unfavourable to a litigant, even when expressed in strong language, on its own cannot form the basis for finding a reasonable apprehension of bias.

We also agree that there is no basis for Mr. Kivisto’s suggestion that there is a reasonable apprehension of bias in the manner in which this matter was scheduled. As one of the administrative judges of the Divisional Court, Justice Favreau is aware of how matters are scheduled in this Court. Generally, as in this case, hearing panels are scheduled months ahead to sit for a week at a time. Here, when the original hearing date was cancelled due to a conflict of interest by Justice Sachs, it was fortuitous that there was availability for a hearing the following week. There was no design to schedule this matter before Corbett J. and any suggestion by Mr. Kivisto to the contrary is unsupported and defies common sense.

Also, we agree that the manner in which the hearing was conducted does not give rise to a reasonable apprehension of bias. It is normal and expected for the president of a panel to control the hearing process and for all members of a panel to ask questions, including expressing their concerns about the positions advanced by the parties. In order for such questions or interventions to give rise to a reasonable apprehension of bias, courts look at the cumulative conduct and not at isolated questions or interventions. We have reviewed the transcript in this matter and are satisfied that the conduct of the hearing did not create a reasonable apprehension of bias. The questions and interventions were directed at testing the logic and foundation of Mr. Kivisto’s arguments and positions. This is a proper and appropriate role of the Court on an appeal, such as this one, where Mr. Kivisto challenged multiple findings made by the tribunal below.

Besides the arguments made by Mr. Kivisto addressed in Corbett J.’s reasons, in his factum Mr. Kivisto also relies on findings made by the Court of Appeal in an unrelated case about the manner in which our colleague had conducted a prior case. That decision and the Court of Appeal’s comments in that case have no bearing or relevance on the issue of whether there is a reasonable apprehension of bias in this case. The decision in question is over 5 years old. Mr. Kivisto was not a party to that case nor has he suggested that this matter is in any way related to that case. There is no basis for Mr. Kivisto’s attempt to suggest a reasonable apprehension of bias based on an unrelated decision of the Court of Appeal.

The approach taken in this case may be of assistance to tribunals as well, and particularly to tribunal members who face an objection that their conduct during a hearing has created an appearance of bias.

Suing a Regulator for Breach of Privacy

by Julie Maciura
October 18, 2021

In Khan v. Law Society of Ontario, 2021 ONSC 6019 (CanLII), https://canlii.ca/t/jj1xj a practitioner was disbarred in respect of his billing practices for accounts submitted to legal aid. He had an appeal pending before the Divisional Court on the finding. In the meantime, he commenced a legal action against the regulator (amongst others) for damages. The claim was far reaching. Most of the claims were dismissed because they made bald allegations of bad faith by the regulator without any particulars and because they amounted to a collateral attack on the discipline finding that was under appeal.

There was also an unusual claim that the regulator breached the practitioner’s privacy rights under the “intrusion upon seclusion” tort. The Court said:

The allegations made by the plaintiff to support the claim for violation of his informational privacy relate largely to the publication of his disbarment following the LST hearing, and the use by the LSO Defendants of his medical information during the investigation process for the purposes of obtaining an independent medical expert report.  In the absence of a confidentiality order, the LST proceedings are public and their decisions are subject to publication.  The plaintiff produced and relied on his own medical evidence in defence to the allegations of misconduct made by the LSO.  By doing so, he has waived the right to privacy over those medical records for the purposes of the LSO investigation and the LST/LSAT hearings.  Further, the Law Society Act authorizes the LSO and its representatives to disclose confidential information when required in the proper administration of the Act or where necessary in connection with a proceeding conducted under the Act (s. 49.12(2)(a) and (b)). Based on the facts alleged, there is no unlawful invasion into the plaintiff’s privacy pursuant to FIPPA and the claim for the tort of intrusion upon seclusion is struck as disclosing no reasonable cause of action.

This case reinforces the rights of regulators to use otherwise confidential information when performing its functions and to be transparent in its regulatory activities.

Limits to the Freedom of Expression

by Erica Richler
October 14, 2021

There is little doubt that the limits on practitioners’ freedom of expression is becoming a central issue in professional regulation in recent years. Pandemic-related speech will only accelerate this trend. While the circumstances are rather unique, the case of Lauzon v. Justices of the Peace Review Council, 2021 ONSC 6174 (CanLII), https://canlii.ca/t/jj90l provides some additional insights on this issue.

The practitioner, a Justice of the Peace, published an opinion piece about the bail system in a national newspaper. A disciplinary panel found the article constituted professional misconduct for bringing the administration of justice into disrepute because of “the manner by which she did so, including the language that she used, the personal attacks that she levied against Crown counsel appearing before her, and the statements she made conveying disdain for the justice system in which she is an integral participant.” The majority of the panel recommended removing her from her position.

The Court found that the panel had conducted an appropriate balancing exercise in determining whether the nature, context and content of the expression supported disciplinary action despite the practitioner’s freedom of expression rights. Of relevance were guidelines that had been published on the issue. The Court found that the panel did not require actual evidence as to whether public confidence in the administration of justice was undermined.

In terms of the sanction, the Court upheld the recommendation for removal on the basis that no error in principle was demonstrated. The sanction was protective of public confidence in the legal system and not punitive. The conduct was serious, mitigating factors were taken into account, and prior precedents were considered. The Court also indicated that the panel’s consideration of the manner in which the practitioner responded to the complaint and during the hearing (misleading and combative) and the lack of remorse and remediation were appropriately considered on the issue of whether a lesser sanction would be effective. Those considerations were not treated as aggravating factors.

Taking a contextual approach as to whether a particular expression is unprofessional can result in misconduct findings being upheld.

Adding Allegations Mid-Hearing

by Natasha Danson
October 12, 2021

It is a fundamental principle that a practitioner should know the allegations (and case) they will meet before their discipline hearing starts. Some exceptions exist to permit the regulator to amend the allegations where new information arises during the hearing (e.g., slight discrepancies about the date of events), so long as no unfairness is created. The goal is to address the substance of the concerns without becoming overly technical.

In Alsaadi v Alberta College of Pharmacy, 2021 ABCA 313 (CanLII), https://canlii.ca/t/jj4bh, a pharmacist was disciplined for accessing confidential electronic records for no health care reason; he viewed some 700 patient records out of “curiosity”. There was another allegation about failing to cooperate fully and honestly with the investigation. During the hearing the practitioner gave evidence that may have been inconsistent with both statements he had made during the investigation and in his earlier testimony. For example, the practitioner suggested during the hearing that a friend may have accessed his computer without his knowledge, which had not been disclosed in statements made during the investigation and may have conflicted with admissions made during the hearing itself. The regulator then provided further “particulars” of the allegation to cooperate fully and honestly related to the statements made during the hearing.

The majority of the Court found that the new allegations were not additional particulars but, rather, amounted to entirely new allegations. Permitting the new allegations to be added during the hearing was unfair:

First, doing so treats the new misconduct as aggravations of the initial allegations. There is no logic to doing so. They are discrete events, on their face. Second, such an approach conscripts the defending professional into immediately justifying the conduct which, as said, may have a non-inculpatory explanation. The approach turns the hearing process and the burden of proof completely around. Third, such an approach in effect makes the hearing tribunal, which should be acting as an impartial adjudicator, both a prosecutor and an eyewitness.

The Court also found the sanction, including a three-year suspension, over-emphasized general deterrence and denunciation and was disproportionate to both the conduct and the outcome of other cases. The Court also noted that discipline panels should consider the collateral consequences experienced by the practitioner. In this case he had been subjected to a period of house arrest for related offence charges, had lost employment, and had already ceased practising for three years. The Court also found that a condition of direct supervision for 500 hours was unrelated to the conduct as there was no concern about the competence of the practitioner; indirect supervision of his access to computerized records adequately protected the public. The sanction was reduced to a suspension of six months, indirect supervision, and a reduced fine of just over $10,000 among other things. The Court also reduced the costs payable by the practitioner to the regulator.

While amending the allegations mid-hearing is permissible in some circumstances, fairness to the practitioner must always be considered.

Rare Example of a Court Permitting the Rejection of a Joint Submission

by Erica Richler
October 7, 2021

Discipline panels should generally accept joint submissions unless doing so would bring the administration of justice into disrepute or would be contrary to the public interest. Recently the Divisional Court emphasized that only where the joint submission in a discipline hearing was “unhinged” from the conduct should the joint submission not be accepted: Bradley v. Ontario College of Teachers, 2021 ONSC 2303 (CanLII), https://canlii.ca/t/jdz7v.

But in another recent case, the Divisional Court, including one Judge who sat on the Bradley case, upheld a rejection of a joint submission. In Sammy Vaidyanathan v. College of Physicians and Surgeons of Ontario, 2021 ONSC 5959 (CanLII), https://canlii.ca/t/jj39x a physician had been found to have engaged in professional misconduct for various actions including recklessly prescribing and dispensing of controlled substances, including opioids, that exposed patients to potential harm. A partial joint submission (there was disagreement as to the length of the suspension) was tendered. One of the terms of the joint submission was restrictions on the practitioner’s ability to prescribe or dispense controlled substances in his out-of-hospital practice. The panel expressed concern that the restrictions did not apply to the practitioner’s hospital practice as well. After hearing additional submissions, the panel concluded that there was no rational basis to exclude the restrictions from the practitioner’s hospital practice and the panel rejected the joint submission.

On appeal the Court upheld the rejection of the joint submission:

In my view, the Committee’s extensive explanation and its pronounced rejection of the joint submission, demonstrated in clear and cogent terms that the Committee understood and considered the “undeniably high threshold” for its departure from a joint submission. It applied the requirements of R v. Anthony-Cook 2016 SCC 43, paras. 34 and 60, and it met those requirements. Its repeated references to the public interest and its concern that the joint submission would be difficult to support and explain, captured the depth of its concern that the Committee’s acceptance of the joint submission would bring the administration of justice into disrepute.

While the Court reaffirmed the established criteria for rejecting a joint submission, this case indicates that there can be situations where the high test is met.

Raising Abuse of Process Concerns

Durcan_Rebecca_5583

by Rebecca Durcan
October 4, 2021

The Divisional Court has again confirmed that abuse of process concerns should first be raised with the discipline panel rather than by an application for judicial review to stay the discipline hearing. In Pan v. College of Physicians and Surgeons of Ontario, 2021 ONSC 5325 (CanLII), https://canlii.ca/t/jhcdh a physician was referred to discipline for inappropriate sexual contact with a patient or former patient after having been found not guilty for sexual assault in respect of the same events. The Divisional Court declined to stay the commencement of the discipline hearing on the basis that the application was premature. The practitioner should raise the issue before the hearing panel first and, if unsuccessful, then raise the issue on an appeal of the panel decision. There were no exceptional circumstances warranting the Court’s intervention at this point in the process. The Court also said:

As held by this Court in Karkanis v. College of Physicians and Surgeons of Ontario, 2009 CanLII 18292 (Div. Ct.), at para. 25, another case where a physician sought a stay before the completion of disciplinary proceedings, “there is a public interest in permitting a self-regulating profession to carry out its supervisory jurisdiction over members without regular interventions by the courts as the process unfolds”.

Bad Faith Investigations

by Bernie LeBlanc
September 27, 2021

It is difficult to sue a regulator for their investigations even if the resulting discipline hearing is resolved in the practitioner’s favour. The practitioner needs to prove that the investigation was conducted in bad faith or with malice for there to be liability. Negligent investigation is not sufficient. For that reason many such proceedings are dismissed without the necessity of a hearing because the bad faith is not particularized. However, in Robson v. The Law Society of Upper Canada, 2021 ONSC 5271 (CanLII), https://canlii.ca/t/jhh33 the motion to dismiss the claim before trial was unsuccessful.

The practitioner was ultimately successful in defending a discipline allegation that he had fraudulently concealed assets in his bankruptcy proceedings. The practitioner claimed that the investigation was conducted in bad faith by only interviewing witnesses who would help prove the allegation and by not interviewing obvious witnesses who might disprove the allegation. There was conflicting evidence about who interviewed whom and when. The Court said that it was possible that bad faith could be established depending on the credibility findings made. The Court directed that the matter proceed to trial.

Not all bad faith claims can be dismissed before trial.

Practical Constraints on Clinical Examination Appeals

by Julie Maciura
September 23, 2021

Appealing a clinical assessment or examination is challenging. Even in the internal appeal stage, where there are experts present, it is often impossible for the appeal body to review the actual work, which cannot effectively be preserved. As the Court said in Chauhan v The National Dental Examining Board of Canada, 2021 BCSC 1538 (CanLII), https://canlii.ca/t/jhfw2,

In this case, it is worth noting that the Appeal Panel’s review of the grading of the Dental Dam Requirement is necessarily limited by the factual constraint that the applied dental dam material, clamp and frame cannot be transported and therefore preserved in the event of an appeal.  This practical constraint bears on this court’s assessment of the reasonableness of the Appeal Panel’s decision.

Even if preservation of the work is possible, internal appeals are generally a review of the process and procedures and not a completely fresh evaluation of the quality of the work.

Finally, on a judicial review, a court just does not have the capacity to evaluate the work on the merits. As said in Chauhan:

As this court noted in Verma, “[s]itting in a courtroom on judicial review, I have neither the qualifications nor an evidentiary basis that would justify me in characterizing the panel’s assessment as unreasonable.”

While there still is scope for review of processes and procedures, appeals of clinical assessments suffer from significant practical constraints.

Focus on the Allegations!

by Natasha Danson
September 20, 2021

It is trite to say that a discipline panel can only make findings in respect of the allegations contained in the notice of hearing document. However, applying that principle can sometimes be challenging. In Whieldon v British Columbia College of Nurses and Midwives, 2021 BCSC 1648 (CanLII), https://canlii.ca/t/jhnjg, a registered nurse working in a perinatal unit was alleged to have engaged in professional misconduct and to demonstrate incompetence. The main allegation under review was worded as follows:

(c)  on or about May 6, 2016, during the bath of Patient #3, an infant (B.G.M.), you observed and documented signs and symptoms that may have indicated seizure activity by stating, “strange movements with hands, clenching, splaying fingers, gripping & internally rotating wrists – will need to observe”.  B.G.M. was 1 day old and you were involved in her delivery, which was vacuum-assisted due to fetal tachycardia greater than 170 beats per minute.  B.G.M.’s one minute Apgar score was 1 and her 5 minute Apgar score was 9.  Despite your knowledge regarding B.G.M.’s birth events and Apgar scores, your observation regarding the “strange movements” and your documentation regarding same, you did not appropriately advise Patient #3’s parents of your observations or escalate the infant’s care by notifying the charge nurse, patient care coordinator, or physician; further, you did not perform any additional assessments of infant Patient #3.

The Court found that the core of this allegation was that the practitioner had failed to escalate the concerns by notifying her colleagues. The Court found that the reasons of the panel focused too much on whether the baby’s symptoms observed by the practitioner indicated possible seizures. The Court was also concerned that the panel did not acknowledge the evidence that the practitioner had, in fact, notified a number of her colleagues of the observations she had made. As a result, the Court determined that the hearing was procedurally unfair in that findings made (about understanding what the baby’s symptoms might indicate) did not match the wording of the allegations, which focused on the lack of escalation of the concerns.

The Court also had concerns of a similar nature with other aspects of the discipline panel’s reasons for decision. This case emphasizes that the reasons of the panel should directly address the allegations as worded.

Rudeness towards Colleagues

by Erica Richler
September 16, 2021

It is professional misconduct to be significantly rude to one’s colleagues. In the legal profession such rudeness is often called “incivility”. It is more challenging to prosecute such cases where the rudeness occurs in a legal proceeding where the practitioner has a duty to vigorously advocate for their client. However, in Histed v Law Society of Manitoba, 2021 MBCA 70 (CanLII), https://canlii.ca/t/jhjvz such a finding of incivility was upheld.

In that case the practitioner made repeated comments about prosecuting counsel in a criminal case. In essence the practitioner accused the colleagues of causing the suicide of a complainant by the manner in which they prosecuted the case. The practitioner also said that the prosecutors tried to extort the practitioner’s client by suggesting in the course of settlement discussions that a more serious charge would be proceeded with if resolution was not achieved. In effect, the practitioner attacked their integrity. The Court considered the freedom of expression values contained in the Canadian Charter of Rights and Freedoms as applied in the case of Groia v. Law Society of Upper Canada, 2018 SCC 27 (CanLII), [2018] 1 SCR 772, https://canlii.ca/t/hsb9d. The Court found that the disciplinary panel had looked at all of the surrounding circumstances: “The record amply supports the Panel’s conclusion that there was no reasonable basis for the allegations and they were not founded on an honest assessment of the evidence.” The Court concluded:

The allegations directly impugned the integrity of the Crown and the Assistant Deputy, and struck at the core of their professional obligations as ministers of justice.  The Panel considered that these attacks were personal and disparaging of their character.  The communications included gratuitous comments, such as the appellant’s personal opinion about the Crown’s handling of other cases and irrelevant aspersions regarding the Assistant Deputy’s intention in filing the complaint.  The Panel was particularly critical of the appellant for targeting the character and motivation of the Crown and the Assistant Deputy when he knew that their actions, in relation to the NCO, were in accordance with longstanding Manitoba Justice domestic violence policy.  The Panel also took note that the allegations were repeated multiple times in stronger language as time went on through to and including the hearing.

It is apparent from a review of the Panel’s decision, the evidentiary record and the submissions of counsel, why the Panel concluded that the cumulative impact of repetitive, unfounded, serious personal attacks using unnecessary invective and a disrespectful tone, was uncivil and amounted to professional misconduct.  I would not accede to this ground.

The finding of incivility was upheld.

Withdrawing an Undertaking to a Regulator

Durcan_Rebecca_5583

by Rebecca Durcan
September 13, 2021

Can a practitioner withdraw a formal undertaking made to a regulator? That issue arose in Al-Naami v College of Physicians and Surgeons of Alberta, 2021 ABQB 549 (CanLII), https://canlii.ca/t/jh0tv. In that case, a pediatrician was charged with possession and transmission of child pornography. The regulator sought and obtained a formal undertaking from the practitioner to withdraw from practice until certain criteria had been met. The regulator’s investigation was put on hold pending the outcome of the criminal charges. Time passed. The practitioner experienced financial distress. The practitioner sought a revision to the undertaking permitting practice in the presence of chaperones. The regulator refused, in part because the practitioner would not consent to disclosure of the Crown’s evidence brief. The practitioner initiated steps to withdraw the undertaking and resume practice. The matter went to court.

The Court held that the undertaking is a formal promise to the regulator and could not be withdrawn unilaterally. However, the regulator was required to reconsider the ongoing appropriateness of the undertaking upon request:

As I suggested, reconsideration complements the use of undertakings. In my opinion, an entitlement to request reconsideration in light of changed circumstances is a reasonable adjunct to the undertaking procedure. The possibility of reconsideration based on changed circumstances or the changed appreciation of circumstances prevents an undertaking from becoming a “trap” and avoids deterring physicians from entering undertakings for fear of being trapped. Just as it makes practical sense from a disciplinary process perspective for physicians to accept interim resolutions by way of undertaking, so it makes sense for the College to reconsider interim resolutions. Without reconsideration, physicians would be better off to invite suspension or the imposition of conditions and to seek relief in the courts through a stay application.

The reconsideration should contain three components:

First, is the complaint supported by credible evidence or by a prima facie case? Second, do the circumstances of the complaint show that the physician represents a risk to the public? Third, given the risk of harm, what interim restrictions or conditions would be required to abate, manage, or mitigate that risk?

The Court found that the regulator had not conducted a proper reconsideration. While the first two components were supported in the circumstances, the regulator had not adequately considered whether a revision of the undertaking, short of a complete withdrawal from practice, would adequately protect the public.

The Court also found that the regulator could not take into account the practitioner’s failure to provide consent for disclosure of the Crown’s evidence brief because it was not directly related to the reconsideration criteria and that it was otherwise inappropriate.

The Court referred the matter back to the regulator to properly consider whether the undertaking should be modified and, if so, to determine the content of the replacement restrictions.

This case suggests that a regulator may have an obligation to consider a request to modify an undertaking. This case related to an interim undertaking. However, should this duty also apply to permanent undertakings, additional considerations might apply including ensuring that the regulator has sufficient evidence to assess risk should such a request be made.

Making Factual Findings in the Complaints Process

by Bernie LeBlanc
September 9, 2021

The complaints screening process is not a discipline hearing, so complaints screening bodies should be careful not to make credibility findings as if it were a discipline hearing panel. However, that does not mean that complaints screening bodies can make no factual findings. In Griffith v. Health Professions Appeal and Review Board, 2021 ONSC 5246 (CanLII), https://canlii.ca/t/jhnx5, a dentist was cautioned and directed to undergo remediation. The caution, in particular, included an expression of concern about the need for the practitioner to be accurate in their submissions to the regulator, which accuracy the screening body felt was missing in this case. The practitioner appealed to a tribunal that upheld the screening body’s decision. The practitioner then sought judicial review of that decision on the basis that such a finding and caution would have a significant impact on their career.

The factual findings related to submissions that the practitioner made about the treatment plan for a patient and the practitioner’s assertion that this plan was similar to that of the subsequent treating practitioner. The screening body concluded that those assertions to them by the practitioner were inconsistent with the practitioner’s own records. In concluding that these sort of factual findings were permissible, the Court said:

The ICRC is primarily a screening committee, and in carrying out that role it cannot make findings that are reserved to the other committees of the College; it has “no power to make determinations or findings of fact concerning incompetence, incapacity, failure to meet standards or professional misconduct.”

However, it is not correct to say that the ICRC [screening body] has no fact-finding powers at all. Rather, while the ICRC “does not assess credibility per se, [it] is permitted to engage in some limited weighing of the facts to assess the complaint.” The ICRC is entitled to take a critical look at the facts underlying the complaint and the evidence that does and does not support it, along with a myriad of other issues. Where an independent account, such as documentary evidence, is available to corroborate a version of events, there is no need for oral evidence or cross-examination for the ICRC to reach factual conclusions. …

In making its determination in this case, the ICRC was squarely within this fact-finding sphere. It looked critically at the documentary record before it and the Applicant’s submissions and identified areas where, in its opinion, it was clear that the Applicant’s submissions were inconsistent with the dental records that he and his staff created. …

The Applicant’s fundamental complaint is simply that the ICRC did not accept his explanations.  As set out above, the ICRC is entitled to engage in a limited weighing of the facts. In this case, the ICRC concluded that the dental records prepared by the Applicant and his staff did not support his submissions. This is a decision upon which the ICRC directly brought to bear its expertise and experience. The ICRC’s decision was coherent, rationally supported by the record and reasonable. [footnotes omitted]

The Court also rejected the submission that the screening body and appeal tribunal failed to consider the impact that the caution would have on the practitioner’s career and livelihood. A caution is not a punishment even if it is published. The reasons for decision did not require the kind of extensive analysis as to its impact on the practitioner that a disciplinary sanction would have.

Thus, while complaints screening bodies still need to avoid making credibility findings as if it were a discipline tribunal, there are certain kinds of factual findings that it can appropriately make in assessing what sort of remedial direction it might give.

Usurping the Role of the Courts?

by Natasha Danson
September 7, 2021

Regulators sometimes address conduct by practitioners that are also being addressed by the courts. For example, a practitioner can be disciplined for sexual abuse and can also be subject to criminal proceedings and a civil cause of action for damages in relation to the same conduct. It is generally understood that the various proceedings have different purposes and there is concurrent jurisdiction. Do the same principles apply where the dispute is overbilling by a practitioner and compliance with a related court order? According to Chijindu v. Law Society of Ontario, 2021 ONSC 4872 (CanLII), https://canlii.ca/t/jgvsc, the answer is yes.

In that case, the practitioner billed a client for recovery of client money that had been misappropriated by others. The practitioner kept more of the recovered money than had been specified in the retainer agreement. The client brought proceedings against the practitioner and a court ordered repayment of most of the funds. Rather than repaying the money to the client, the practitioner rendered new invoices that were alleged to have been false and misleading. The regulator then disciplined the practitioner for failing to comply with the court order, keeping client money that the practitioner was not entitled to, and rendering false accounts. The practitioner’s licence was ultimately revoked.

On appeal from the discipline proceedings, the Divisional Court upheld the findings. With respect to the issue of whether the disciplinary process can address billing issues or non-compliance with court orders, the Divisional Court said:

The inquiry undertaken at the hearing division was whether fees charged were fair and reasonable, or contrary to Rule 3.6-1 of the Rules of Professional Conduct, and, as noted, the hearing division was empowered by the legislature to determine any question of fact or law before it. Accordingly, we conclude that it was not an abuse of process for the hearing panel to determine whether the fees were fair and reasonable.

Similarly, the Divisional Court did not agree that breaching a court order could only be enforced by a contempt of court proceeding; a regulator could also view that behaviour as constituting professional misconduct.

The Divisional Court also upheld the sanction of revocation, finding that the conduct was dishonest, a breach of trust analogous to misappropriation of client trust funds, and constituted a disregard for the law, inconsistent with the practitioner’s status as a lawyer.

Breaching Confidentiality of another Practitioner’s Clients

by Julie Maciura
September 1, 2021

In an old case that was controversial at the time, a medical practitioner acting in the capacity as a journalist published an article about a medical error in a hospital. The article identified the patient. The practitioner was disciplined for breaching the confidentiality of that patient: Re Shulman and College of Physicians & Surgeons of Ontario, 1980 CanLII 1700 (ON SC), https://canlii.ca/t/g1d6d.

An analogous case in the internet age can be found at: Denham v. Ontario College of Social Workers, 2021 ONSC 5149 (CanLII), https://canlii.ca/t/jh43v. The practitioner, a social service worker, was in conflict with a local child services agency in her personal capacity. She surreptitiously recorded a meeting at the agency where confidential non-client information was recorded. The recording was posted on the internet. She also found a gap in the security of the agency’s website that provided access to numerous files containing sensitive client information. She posted the URL to those documents on various internet platforms encouraging people to access the information. She also identified (to the traditional media) where on the agency’s website the privacy failings were located.

The Divisional Court upheld the finding of professional misconduct and the sanction of a suspension of up to six month along with remediation. The Court said:

In sum, the Committee was entitled on all of the facts before it to find that:

  1. the Appellant had demonstrated her disregard for the importance of the rights to privacy and confidentiality of 285 families involved with FCSLLG [the agency] and the potential adverse impact that publication or dissemination of their confidential information could have on them; and
  2. she should have known better than to act as she had with regard to the confidential information of FCSLLG and the 285 families.

The conduct was unprofessional. The Court also found that the conduct breached provincial legislation despite the practitioner’s acquittal on provincial offences charges. The discipline panel was not bound by that finding given the different standard of proof and the different evidence in the two proceedings. In particular, at the discipline hearing there was evidence of the practitioner encouraging others to access the confidential information left exposed on the agency’s website and that the practitioner did not take steps to notify the agency of the privacy breach so that it could be protected. The Court also accepted that the practitioner’s conduct was a serious breach of her duty to respect client privacy even if the clients were not hers.

The Court also accepted that there was no unfairness in the procedure at the hearing where the practitioner was confined to the agreed statement of facts and where documents referenced in the agreed statement of facts were provided to the hearing panel.

Practitioners have a professional obligation to respond appropriately to a privacy breach by others and not to permit or encourage dissemination of confidential client information.

Court Acts as Gatekeeper to Regulator Misconduct Complaints

by Erica Richler
August 30, 2021

Courts are becoming more assertive in controlling vexatious litigants. A recent decision from Alberta indicates that in some circumstances Courts will prevent vexatious complaints to a professional regulator. The history of why the initial order was made is not clear in Association of Professional Engineers and Geoscientists of Alberta v Drover, 2021 ABQB 511 (CanLII), https://canlii.ca/t/jgrq5. However, in addition to preventing the individual from taking steps in court proceedings, the Court also ordered the following:

To make a complaint to the Association of Professional Engineers and Geoscientists of Alberta about any member of the Association of Professional Engineers and Geoscientists of Alberta, David Howard Drover shall submit an application to the Chief Justice or Associate Chief Justice, or his or her designate:

i. The Chief Justice or Associate Chief Justice, or his or her designate, may, at any time, direct that notice of an application make a complaint to the Association of Professional Engineers and Geoscientists of Alberta about a member of the Association of Professional Engineers and Geoscientists of Alberta be given to any other person.

ii. Any application shall be made in writing.

iii. Any application to make a complaint to the Association of Professional Engineers and Geoscientists of Alberta about any member of the Association of Professional Engineers and Geoscientists of Alberta must be accompanied by an affidavit:

a. attaching a copy of the Order restricting David Howard Drover’s access to complain to the Association of Professional Engineers and Geoscientists of Alberta about any member of the Association of Professional Engineers and Geoscientists of Alberta;

b. attaching a copy of the complaint that David Howard Drover proposes make to the Association of Professional Engineers and Geoscientists of Alberta;

c. deposing fully and completely to the facts and circumstances surrounding the proposed complaint, so as to demonstrate that the complaint is not an abuse of process, and that there are reasonable grounds for it;

d. indicating whether David Howard Drover has ever sued some or all of the defendants or respondents previously in any jurisdiction or Court, and if so providing full particulars;

e. undertaking that, if leave is granted, the authorized complaint to the Association of Professional Engineers and Geoscientists of Alberta, the Order granting leave to proceed, and the affidavit in support of the Order will promptly be served on the Association of Professional Engineers and Geoscientists of Alberta; and

f. undertaking to diligently prosecute the complaint.

Now, if only regulators had a similar power to prevent someone from making multiple frivolous complaints.

No Circumventing the Appeal Route

Durcan_Rebecca_5583

by Rebecca Durcan
August 23, 2021

Appeals from discipline hearings require a bit of effort. They have to be brought quickly. The appealing party has to prepare a copy of the record and order a transcript. There are tight timelines for completing the written argument. An application for judicial review can be a bit easier to initiate. At least in the past, there is no firm deadline to commence them (although taking more than six months to commence one can result in a presumption of delay). [Now applications for judicial review are to be initiated within 30 days.] The tribunal has to prepare a first copy of the record. If the tribunal has a copy of the transcript, that can result in a significant cost savings. Also, judicial reviews are not always limited to final decisions of tribunals.

However, in Savic v. College of Physicians and Surgeons of Ontario, 2021 ONSC 4756 (CanLII), https://canlii.ca/t/jgr2k the Court held that, where an appeal is available, that is the route that must be taken barring exceptional circumstances. In that case the former practitioner delayed over two years in commencing the application for judicial review. The Court held that difficulty in retaining counsel, the difficulty in now obtaining permission to appeal so late, the extra work and cost involved in preparing an appeal record, and the advantage of combining the challenge to the discipline hearing with that in another complaints matter do not constitute exceptional circumstances.

The Court also held that the delay in challenging the complaints matter provided a basis for not permitting the application for judicial review on that matter as well.

Where an appeal is available, that is the proper way of challenging a decision.

Ontario Not-for-Profit Corporations Act to be Proclaimed Into Force

by Natasha Danson
August 20, 2021

After more than a decade, the Ontario Not-for-Profit Corporations Act will take effect as of October 19, 2021. It will replace the ancient Corporations Act of Ontario. For many regulators this will have no impact. Many regulators are corporations created by their enabling statute and not any general corporate legislation. Some regulators will be affected though. For example, some regulators have a few provisions in the Not-for-Profit Corporations Act that, according to their enabling Act, will specifically apply to them. For example, there are regulators that have created charitable organizations or foundations for some of their activities, such as making grants. For those regulators, we recommend that they check if the Not-for-Profit Corporations Act applies to the charitable entity. There are also some regulators, such as some administrative authorities, that are incorporated under the Corporations Act of Ontario that could be significantly affected by the proclamation of this new act, though regulators incorporated under the federal Not-for-Profit Corporations Act will not be affected. There will be a three-year transition period to become compliant with the Not-for-Profit Corporations Act. Nevertheless, affected regulators should act promptly as there could be many important policy decisions to be made about the governance of their organization (e.g., the composition and selection of the Board of Directors). Also, by-law changes will likely require the approval of members. For more information, see: https://www.ontario.ca/page/not-profit-corporations-act-2010-transition-considerations.

A Bright Line

by Bernie LeBlanc
August 16, 2021

The Ontario Court of Appeal has formally considered its previous sexual abuse cases upholding revocation for frank acts of sex by health practitioners and patients. The Court has reaffirmed its previous decisions finding such a sanction as both fair and constitutional: Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482 (CanLII), https://canlii.ca/t/jgql5.

The practitioner had a professional relationship with the patient. This developed into a sexual relationship. Treatment continued periodically during the sexual relationship and after their eventual marriage. Treatment continued periodically during this time. The practitioner thought the sexual relationship was acceptable because a colleague said that a spousal exception applied. In fact, the spousal exception was only proposed and was not enacted for some years afterwards. The practitioner challenged the fairness of the mandatory revocation provision as well as relying on the liberty and security of the person provisions and the cruel and unusual treatment protections contained in the Canadian Charter of Rights and Freedoms.

On the main issue of whether sexual abuse must be exploitative or abusive to constitute professional misconduct the Court said:

This argument must be rejected. In essence, it invites the court to convert the bright-line rule prohibiting sexual relationships into a standard requiring the nature and quality of sexual relationships between practitioners and patients to be evaluated to determine whether discipline is warranted in particular circumstances. It finds no support in the language of the Code and would frustrate its clear purpose. Moreover, it begs the question by assuming that no concerns arise in the context of pre-existing sexual relationships, regardless of the nature or duration of those relationships.

The Code is clear when it comes to sexual relationships. It is neither ambiguous nor vague. Professional misconduct is established once sex occurs between a member of a regulated health profession and a patient. That the misconduct is termed “sexual abuse” neither mandates nor permits an inquiry as to the nature of a sexual relationship. The Legislature did not prohibit only sexual relationships that are abusive, leaving it to disciplinary proceedings to determine what constitutes abuse; it prohibited sexual relationships between regulated health practitioners and their patients per se. This approach obviates the need for discipline committees – bodies composed of health care professionals and laypeople – to inquire into the nature of sexual relationships and whether, as the appellant would have it, they give rise to “actual sexual abuse” because they arise out of coercion or exploitation. Justice Feldman’s observation in Leering, at para. 41, remains apt:

The discipline committee of the College has expertise in professional conduct matters as they relate to chiropractic practice. Their expertise is not in spousal relations or dynamics, nor would it be fruitful, productive or relevant to the standards of the profession for the committee to investigate the intricacies of the sexual and emotional relationship between the professional and the complainant. That is why the Code has defined the offence in such a way that the fact of a sexual relationship and the fact of a doctor-patient relationship are what must be established.

In finding that section 7 of the Charter does not apply to mandatory revocation of one’s right to practise one’s profession, the Court said:

But s. 7 does not apply simply because legislation gives rise to serious consequences. Psychological integrity is a narrow and limited concept, and the right to security of the person is engaged only if there is a serious and profound effect on psychological integrity. The matter is to be judged on an objective basis, having regard to persons of ordinary sensibilities. It is irrelevant whether state action causes upset, stress, or worse. There must be a serious and profound impact on psychological integrity before the protection of s. 7 is engaged. Nothing in this case suggests that this threshold has been crossed, nor has the appellant proffered any basis for this court to revisit that threshold.

In terms of section 12 of the Charter the Court said:

…the appellant says, the combined effect of mandatory revocation of registration and the permanent notation on the public register constitutes cruel and unusual treatment.

The appellant’s submissions founder at the first stage of the inquiry. Although “treatment” may extend the protection of s. 12 beyond instances of punishment and other state action associated with the criminal law that affects individuals, there is no authority supporting the premise that professional regulation constitutes “treatment” within the meaning of s. 12. I see no basis for concluding that regulation of the health care professions is subject to s. 12, and no basis for concluding that it would meet the very high bar established by the Supreme Court in any event.

The bright line prohibiting a simultaneous professional and sexual relationship remains in place.

Enough Is Enough

by Julie Maciura
August 9, 2021

Rule 59.06 permits a court to set aside or vary an order if an error was made in the order or if the order was obtained through fraud or should be altered because of facts arising or discovered after the order was made. However, the provision is available in very restricted circumstances and is not an invitation to re-litigate matters. In Berge v. College of Audiologists, 2021 ONSC 4403 (CanLII), https://canlii.ca/t/jghqj a practitioner had unsuccessfully appealed a previous finding of professional misconduct (i.e., using the title of “Doctor” when not entitled to do so) all the way the Supreme Court of Canada. The practitioner had then brought unsuccessful motions to both the court under rule 59.06 and before the original disciplinary tribunal trying to re-open the issues. The practitioner now brought a further motion under rule 59.06 to argue new concerns about the process followed during the original investigation. The Court, on its own motion, considered whether the practitioner was abusing the Court’s process. The Court said:

Ms Berge was obliged to raise all her issues in the proceedings before the College.  Then, at each stage of the further litigation, she was obliged to raise all issues with the court, so that the matter could be adjudicated fully and brought to a conclusion.  It is far too late for her to be raising “new” issues now.  A bald assertion that there is “fresh evidence” – in respect to issues that had to be apparent at the time of the hearing before the College – is a frivolous response to the R.2.1 notice.  The motion to reopen this court’s decision from 2016 is dismissed as frivolous, vexatious and an abuse of process pursuant to R.2.1.

Ms Berge’s prior R.59.06 motion was patently without merit.  The current motion has been dismissed pursuant to R.2.1.  Enough is enough.  It is clear that Ms Berge does not accept that her discipline case has been decided finally and is over.

The Court then imposed significant restrictions on the practitioner initiating new proceedings or steps in proceedings before the courts.

Similar considerations would likely apply to disciplinary tribunals who have made rules of procedure permitting reconsideration of concluded matters. The principle of finality means that one a matter is determined, it is inappropriate to keep on challenging it.

Take it to the Tribunal First

by Natasha Danson
August 3, 2021

A Newfoundland and Labrador court has again affirmed the importance of raising appearance of bias concerns with a hearing panel before taking the issue to court. In Power v. Association of Chartered Professional Accountants of Newfoundland and Labrador, 2021 NLSC 92 (CanLII), https://canlii.ca/t/jgl4x, a discipline tribunal had made a finding of professional misconduct but had not yet determined sanction. It transpired that the complainant, who was a key witness at the discipline hearing, approached another lawyer in the firm of independent legal counsel for advice on civil litigation arising from the same series of events. The other lawyer provided some assistance before withdrawing from the matter. The practitioner sought court intervention on the basis that this assistance to the complainant by a colleague of independent legal counsel created an appearance of bias on the part of the hearing panel.

The Court treated the matter as premature and directed the practitioner to first raise the issue before the hearing panel for a ruling. The Court indicated that the issue was whether the hearing panel was tainted by this involvement of the complainant and witness with another lawyer in the firm of independent legal counsel.

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.