2018

REGULATION PRO – 2018

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

When Acting as a Licensee

ERichler_Webby Erica Richler
December 31, 2018

A regulator for horse racing imposed an interim suspension on a jockey after he had made threatening and abusive comments to another jockey, to a horse owner, and to racing officials. Subsequently he engaged in a destructive rampage at the home of the horse owner (who had reported the concerns to the officials), which resulted in criminal charges. The appeal tribunal set aside the interim suspension and the resulting notice of proposal to revoke the jockey’s licence on the basis that the conduct did not involve his acting as a jockey (i.e., on the race track).

The Divisional Court disagreed and restored the interim suspension: Registrar of Alcohol, Gaming and Racing v. MacLaren, 2018 ONSC 6576, <http://canlii.ca/t/hw31g>. The test for the tribunal in this case was whether there were “reasonable grounds to believe that, when acting as a licensee, the applicant will not act in accordance with the law, or with integrity, honesty, or in the public interest, having regard to the past conduct of the applicant.” The Court said:

Acting as a licensee under the Act encompasses more than just one’s activities while engaged in a race; it also involves having a relationship with the regulatory agency charged with enforcing the Act that does not undermine that body’s ability to fulfill its important public mandate.

The Court also said:

… what the Tribunal does not acknowledge or deal with is the connection between the Respondent’s criminal conduct and the Respondent’s responsibility as a licensee to allow himself to be governed by his regulatory body. This is important because the conduct was directly related to the disciplinary action that the racing officials had taken against the Respondent. It occurred in reaction to the suspension and it was directed at another licensee whose complaint had led to that disciplinary action. This raises a real question about the Respondent’s governability as a licensee.

The matter was sent back for a rehearing before a differently constituted panel. This case illustrates how an individual’s governability is relevant to their practice of a profession.

Two Recent Reminders of the Importance of Effective Governance

Photo - Darrell Pink

by Darrel Pink – Guest Contributor
December 28, 2018

Last week two significant reports addressing ineffective board governance were released. Both should concern professional regulators as they outline issues and challenges which many regulators may not be addressing. The Auditor General of Nova Scotia reviewed the IWK Health Centre and found Board oversight of spending was wanting, especially relating to reimbursement of travel and related expenses – https://oag-ns.ca/sites/default/files/publications/Ch2Dec2018.pdf.  The AG’s review arose because of findings that a former CEO and CFO had followed improper expense account procedures, which have resulted in criminal charges being laid.

The second report by Sen. Murray Sinclair  dealt with the Police Services Board in Thunder Bay – https://slasto-tsapno.gov.on.ca/ocpc-ccop. The origin of this report is well known as it relates to allegations of racism in the Thunder Bay Police Force.

Both are worth reading to understand current thinking about the role a board of directors must assume to do its job properly. Two themes emerge from the reports. First, although a relationship of ‘trust’ between senior staff leadership and the Board is essential, that relationship cannot be allowed to impede the Board from doing its job independently and thoroughly. Second, and much less understood, the tone of the organization must be set and communicated by the Board.

Here are some of the key lessons from the reports:

  1. The Board has responsibility to ensure the organization has and achieves diversity objectives and there is training in place to advance these goals.
  2. Acting independently the Board must ensure both strategic and operational goals are being met and must not rely exclusively on assurances provided by the CEO.
  3. The Board must demonstrate meaningful engagement in developing governance and oversight policies.
  4. The CEO must keep the Board apprised of serious risks that could affect the organization.
  5. Both the Board and management must effectively oversee internal controls to ensure reliable and accurate financial reporting, efficient and effective operations, and compliance with laws and regulations. The Board, through the Chief Executive Officer, is responsible for creating a culture of awareness of internal controls.
  6. Financial control policies should address fraud, travel and hospitality, internal meeting expenses, staff social events, gifts of appreciation, signing authority, and procurement. The Board should receive regular reporting on the effectiveness of internal controls.
  7. The Board should require, and management should implement, an internal or enterprise risk management system that documents internal controls and monitoring of both financial and operational risks and, I would add, regulatory risk for regulators. The Board and management should regularly monitor the effectiveness of the organization’s response to the risks.
  8. Governance policies should clearly state what ‘significant transactions’ require Board approval. Monetary amounts and organizational risk move a transaction from being ‘operational’ to the ‘Board’s business’.
  9. The Board should have processes in place to ensure the accuracy of financial reporting to the Board.
  10. The terms of reference of key Board committees, such as Finance, and Audit and Risk Management, should be regularly updated to ensure currency as the circumstances of the organization evolve.
  11. The Board should regularly evaluate the CEO and maintain documentation about that process and its results so future Boards have access to it. The CEO must in turn complete regular performance reviews of management and report on the results to the Board.

These reports show what happens when complacency sets in at the Board and it fails to stay alert and focused on all aspects of its fiduciary obligations. For organizations committed to good Board governance the recommendations are not earth shattering; however, they outline many important aspects of best practices that provide a timely reminder from which every Board can benefit.

A Nice Summary of the Standard of Review in Discipline Sanction Cases

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by Rebecca Durcan
December 27, 2018

Just as the Supreme Court of Canada is on the eve of considering the standard of review of administrative decisions generally, an Ontario Court has provided a nice summary of the current state of the law in respect of judicial review of discipline orders. In Gutman v College of Physicians and Surgeons of Ontario, 2018 ONSC 6936, http://canlii.ca/t/hw5wq a physician, found to have breached a prior discipline order, challenged the sanction imposed. In upholding the order, the Court summarized the standard of review as follows:

  1. A decision is reasonable if it falls within a range of possible acceptable outcomes (see: Dunsmuir v. New Brunswick2008 SCC 9 (CanLII), [2008] 1 S.C.R. 190, at para. 47).
  2. A decision is unreasonable only if, considering the reasons as a whole, there is “no line of analysis” in the reasons that could reasonably have led the tribunal to the result (see: Law Society of New Brunswick v. Ryan2003 SCC 20 (CanLII), [2003] 1 S.C.R. 247, at paras. 48-56).
  3. Reasons must be taken as a whole.  If the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met (see: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)2011 SCC 62 (CanLII), [2011] 3 S.C.R. 708, at para. 16).
  4. If the tribunal is a specialized body with expertise that the Court does not possess, and if their decisions require the exercise of discretion, it must be shown deference in both with respect to the facts and the law.  The Court should not substitute its own reasons, but assess reasonableness on the record (see:  Newfoundland, at para. 15).
  5. Deference is owed, especially with respect to sanctions for breaches of professional standards, in that they the tribunal had greater experience than the Court (see: College of Physicians and Surgeons of Ontario v. Peirovy2018 ONCA 420 (CanLII), 424 D.L.R. (4th) 613, at para. 31; Mast v. College of Nurses of Ontario2015 ONSC 5854 (CanLII), at p. 5; and Stetler v. Agriculture, Food and Rural Affairs Appeal Tribunal(2005), 2005 CanLII 24217 (ON CA), 76 O.R. (3d) 321 (C.A.), at para 108).

Pithy yet helpful.

Screening Committee Decisions

BLeBlanc_Webby Bernie LeBlanc
December 20, 2018

Two recent related decisions by the screening committee for the regulator of Ontario teachers reinforce the authority of screening committees to deal informally with concerns even if they arise outside of the practice of the profession.

In Bouragba v Ontario College of Teachers, 2018 ONSC 6935, <http://canlii.ca/t/hw6g8> a teacher brought an application for judicial review for being cautioned about the tone of his communications. The communications occurred when the teacher, acting in his capacity as a parent, communicated with a principal related to the treatment of the teacher’s child. The Court held the regulator did have jurisdiction over the teacher’s conduct when acting as a parent. The Court also held that a caution could be justified even where facts were in dispute and even in circumstances where another reasonable disposition would have been to take no action. The Court said:

A caution is not a disciplinary action, and is not made public.  It is not based on any finding of wrongdoing.  Rather, it is meant to express the Committee’s concern about conduct and to provide guidance for the future.

In a companion case, the Court also upheld the screening committee’s decision to take no action against the principal and two school board administrators who dealt with the teacher’s child: Bouragba v Ontario College of Teachers, 2018 ONSC 6940, <http://canlii.ca/t/hw6g7>. The Court found there was no appearance of bias on the basis that one of the screening committee members knew of one of the parties or that she had written a letter of reference for a former representative of the regulator, who was not involved in the case prior to the application for judicial review.

Burden of Proof in Registration Applications Involving Good Character

Maciura_Julie_5038by Julie Maciura
December 19, 2018

As a general proposition it is the applicant for registration who has the burden of proving that they meet the entry requirements. However, this conceptual approach is challenging when an issue arises as to whether the applicant is of good character. It is impractical to require every applicant to demonstrate that every aspect of their past and current lives are consistent with their good character. It is also challenging for an applicant to address concerns that have not been disclosed to them. While there are various approaches to addressing this conundrum, the recent case of Mundulai v Law Society of Ontario, 2018 ONSC 6965, <http://canlii.ca/t/hw6gh> provides one useful methodology.

Mr. Mundulai sought registration after having been disciplined a number of times and then having been revoked for being ungovernable. He insisted that it was up to the regulator to prove that he was not of good character. The Law Society provided him with disclosure of its concerns, related to his disciplinary history, and insisted that the onus was on him to establish his current good character. The Court said:

There is ample case law supporting the Society’s entitlement to rely on the prior disbarment to meet its initial burden at a licensing hearing to demonstrate that the applicant may not meet the good character requirement. Thereafter, an evidentiary burden falls on the applicant to establish that, despite his or her prior misconduct, he or she now meets the good character requirement.

Depending on the wording of one’s legislation, the approach of raising concerns about an applicant’s good character from prior events and then requiring the applicant to demonstrate that those past events are not reflective of their current and true character is a useful one for regulators to consider.

Deference to Clinical Examination Results

ERichler_Webby Erica Richler
December 17, 2018

Where an entry-to-practice examination involves clinical skills, it is particularly difficult to challenge (or defend) the outcome. The scoring typically involves the application of professional judgment, even where the criteria are explicitly set out. Courts dealing with judicial review applications of such outcomes generally apply a fair degree of deference to the examination body. This was demonstrated in Kabiri v The National Dental Examining Board of Canada, 2018 BCSC 1938, <http://canlii.ca/t/hvxxd> where the court upheld the failing grade given in a dentistry examination. The failure related to excess amalgam used in a filling and holes in a dental dam intended to prevent debris from reaching a patient’s throat. The candidate questioned how the excess amalgam was measured and also provided photographs that he asserted revealed no holes or tears in the dam.

The Court made the following points:

  • Judicial review was available, even though the examination body was a private corporation, because its examination was relied upon by statutory regulatory bodies for registration purposes.
  • Deference must be exercised since the examination involved the application of expertise.
  • Judicial review did not exist for the way in which the examination was structured; it just existed for the actual administration of the examination itself. For example, the court would not require the examiners to develop an alternative and more objective method of measuring excess amalgam.
  • In this case the examining body provided adequate reasons for dismissing the candidate’s internal appeal. For example, it explained why the close up photographs of the dam that did not reveal any holes or tears was not a sufficient basis to overturn the examiners’ on-site observations.
  • An examination body is permitted to defend the reasonableness of its decision on judicial review, particularly where there was no one else to argue the matter.

This decision gives guidance on how an examination body should manage internal appeals.

Disparaging Comments Misconduct Finding Upheld

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by Rebecca Durcan
December 14, 2018

The Saskatchewan Court of Appeal has upheld a finding of misconduct against an agrologist for making disparaging comments about other members of the profession and the regulator in Cameron v The Saskatchewan Institute of Agrologists, 2018 SKCA 91 (CanLII), <http://canlii.ca/t/hw5wd>.

In upholding the main finding the Court said:

[The Discipline Committee (DC)] found Mr. Cameron’s conduct “could negatively affect the public perception of the Agrology Profession to the detriment of the Profession and the ability of agrologists to effectively serve the public.” In coming to this conclusion, the DC highlighted the comments of Mr. Cameron that attacked and questioned the honesty and integrity of individual members of the association. In particular, the DC relied upon Mr. Cameron’s comments in the Grassroots newsletter that (i) accused the council of unethical behavior and the Institute of having a “two-tiered” code of ethics, and (ii) suggested lawyers may be controlling the council. Taken as a whole, it was reasonable to conclude that Mr. Cameron’s comments could negatively affect the public perception of the agrology profession.

The Court declined to hear a challenge to the validity of the misconduct provision under the Canadian Charter of Rights and Freedoms because the issue had not been raised before the appeal.

A National Regulatory Body is Possible in Canada

BLeBlanc_Webby Bernie LeBlanc
December 12, 2018

Under Canada’s Constitution, the regulation of professions falls under provincial jurisdiction (i.e., property and civil rights). With rare exceptions (e.g., banking, immigration), professions are not regulated through federal legislation. Previous attempts to facilitate uniform national regulation have been struck down by the courts: Reference re Securities Act, [2011] 3 SCR 837, 2011 SCC 66, http://canlii.ca/t/fpdwb.

However, the provincial regulation of professions has significant limitations. Governments have been trying to address them through informal government cooperation (e.g., related to health care) and through formal agreements (e.g., the Canadian Free Trade Agreement). In Australia, another country structured as a federation, agreements have been reached to facilitate a national approach to the regulation of health care workers: https://www.ahpra.gov.au/About-AHPRA/Who-We-Are.aspx.

Recently the Supreme Court of Canada has approved a plan for the national regulation of the securities industry: Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48, <http://canlii.ca/t/hw0hz>. The plan is complex and involves a model provincial / territorial statute, an accompanying federal statute and a national body with representation from the provincial / territorial ministers overseeing the regulation of securities in their home jurisdictions. Because the plan requires provincial / territorial approval to enact or amend the plan, the Court was of the view that it did not fetter provincial constitutional authority.

This plan can serve as a model for the national regulation of other professions and industries which might now be encouraged to give national regulation further consideration.

A Court-Approved Approach to Making Defensible Credibility Findings

Maciura_Julie_5038by Julie Maciura
December 10, 2018

In The Law Society of Manitoba v Young, 2018 MBCA 126, http://canlii.ca/t/hwbp5 Manitoba’s highest court rejected an appeal made on the basis that the hearing panel had made unsafe findings of credibility on the main disputed allegation. In upholding the credibility finding, the Court noted:

  • The panel gave detailed reasons on the credibility findings.
  • The reasons indicated that the panel had considered all of the evidence.
  • The inferences drawn from the evidence by the panel were reasonable.
  • The panel’s reasons indicated how the main prosecution’s witness was consistent with the documentary evidence.
  • The panel’s reasons addressed the inconsistencies in the main prosecution’s witness and explained why those inconsistencies did not undermine the witness’ overall credibility.
  • The panel’s reasons addressed the practitioner’s evidence and the corroborating witness called by the practitioner and explained how that evidence was inconsistent with the documentary evidence and was otherwise not credible (e.g., attempts to persuade the complainant to withdraw the complaint and, when that failed, making false statements to the regulator).

This judicial analysis gives guidance to hearing panels on the points they need to cover when dealing with credibility issues.

Courts also take a dim view of those who are unsuccessful at a hearing when raising one defence (e.g., “I am innocent”) and trying to introduce a new defence after they have been found guilty (e.g., “I had a medical condition that affected my behaviour”). The Court refused to receive fresh evidence, a psychological report, on the basis that such evidence should have been obtained and introduced at the original hearing. The Court emphasized the importance of the finality of hearings.

Please note Steinecke Maciura LeBlanc is putting on a workshop for tribunal members on how to assess credibility and write reasons on February 21, 2019. See: http://www.sml-law.com/resources/upcoming-events/ for more information.

Lisbon Recognition Convention

ERichler_Webby Erica Richler
December 7, 2018

The Lisbon Recognition Convention (LRC) is an international agreement involving Europe, the United States and Canada. It has been ratified by Canada earlier this year, so it reflects a commitment by the federal government. However, since it is the provincial (and territorial) governments that oversee the regulation of most professions in Canada and since the LRC does not, by itself, amend any statutes, it does not have any immediate direct impact on regulators. However, it will undoubtedly influence government expectations going forward, particularly for provinces that have a Fairness Commissioner.

The LRC deals with the recognition of academic credentials from other countries, e.g., when someone is applying to a university and wants to have past study considered or when someone is applying to a regulator for registration. The LRC urges timely assessment of credentials of internationally trained individuals, recognition of credentials unless there is a substantive difference, and accessible dissemination of information to those seeking recognition of credentials.

One interesting aspect of the LRC is that it would place the onus on the organization reviewing the credential to say if there is a substantial difference (rather than the individual having to say there is not). It is unlikely that the LRC will change established case law placing the onus on applicants to demonstrate that they meet registration requirements, at least in the short term. Beyond that, regulators may be expected by the Fairness Commissioner, the government and perhaps even the courts to respect the spirit of the LRC.

It is unlikely that the LRC will affect the Canadian Free Trade Agreement as the CFTA focusses on recognition of certified practitioners moving within Canada. The LRC applies primarily to the original Canadian jurisdiction that first assesses the qualifications of the practitioner. When and if the practitioner moves to another Canadian jurisdiction, the receiving jurisdiction will still accept that assessment without further evaluation in most cases.

For more information see the website of the Canadian Information Centre for International Credentials: https://www.cicic.ca/1639/canada_and_the_lisbon_recognition_convention.canada.

Wording of Restraining Orders

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by Rebecca Durcan
December 4, 2018

The wording of restraining orders is definitely an art, rather than a science. In the past courts have encouraged such orders to be worded as specifically as possible, and not to simply follow the wording of the statute, so as to make its scope clearer and its enforcement easier: Law Society of Saskatchewan v Mattison, 2015 SKQB 323, http://canlii.ca/t/glpws. However, the law of unintended consequences can supersede all. In College of Midwives of British Columbia v Lemay, 2018 BCSC 1827, http://canlii.ca/t/hvp09, the regulator obtained an injunction against an unregistered person preventing her from performing various midwifery procedures or holding herself out as a midwife. Subsequently the enabling legislation was amended changing some of the language used to describe the regulated activities. While the changes were not substantive, it became less clear what the individual was prohibited from doing. The regulator sought, and obtained, an order from the Court amending the wording of the restraining order to ensure that its manifest intent of preventing the individual from practising midwifery was maintained. Interestingly, the revised wording of the order required compliance with the legislation as it was worded from time to time. The specific prohibited activities were removed from the order.

Not Enforcing Administrative Penalties

BLeBlanc_Webby Bernie LeBlanc
November 27, 2018

When regulators impose a fine or administrative penalty, do they have an obligation to try to collect it? In British Columbia (Securities Commission) v Thow, 2018 BCSC 1823, http://canlii.ca/t/hvn8g the Court said no. Mr. Thow misappropriated a large amount of money from his clients. He was found criminally responsible and a large restitution order was issued. The Securities Commission also prosecuted him and obtained an administrative penalty in the amount of $250,000. The Commission did not take steps to collect the administrative penalty so that Mr. Thow could continue to make payments on the restitution order. Mr. Thow argued that, because of this inaction, any attempt to now collect the administrative penalty would be an abuse of process. The Court disagreed:

On [the] basis of the record, the most compelling conclusion is that the plaintiff’s decision to refrain from actively pursuing collection was based on a recognition that money paid in satisfaction of the restitution order was the preferable outcome because funds would find their way to the benefit of the victims, rather than to government coffers, as would result from payments on the penalty. If that is the case, as it seems to be, in my view it is eminently commendable, and quite the opposite of an abuse of the court’s process or action taken for some ulterior motive.

The Court deferred dealing with the second argument (that the Commission had promised not to collect the administrative penalty) until better evidence could be obtained.

This case confirms that regulators are not compelled to make immediate collection efforts on a fine or administrative penalty in order to preserve their claim.

Refusing to Consider Competencies Obtained Outside of School

Maciura_Julie_5038by Julie Maciura
November 20, 2018

The trend in registration matters has been to consider competencies rather than credentials. This is an essential part of the legal requirements imposed on regulators relating to national and international mobility. It is also consistent with the public interest in having all competent practitioners practise their professions. However, credential-based registration requirements are still legal and enforceable when required by legislation.

In Marshall v College of Psychologists of Ontario, 2018 ONSC 6282, http://canlii.ca/t/hvn9f the Divisional Court was faced with a challenge by a psychologist who had obtained a doctorate in Canada from a non-accredited program. At the time that the Canadian degree was obtained, the applicant likely met the requirements for registration. However, a subsequent regulation amendment (of which the applicant indicated he had not received prior notice) required equivalency to an accredited program, which the regulator concluded did not exist. After graduation the applicant had obtained significant relevant experience and had published a number of peer-reviewed articles in the field. It also appeared that if the applicant were internationally trained he might have faced a more flexible registration process.

The regulator concluded that the non-exemptible requirement had not been met since it spoke specifically about the applicant’s educational “program” which did not permit the consideration of post-graduation experience and writing. The appeal tribunal found this interpretation of the language of the regulation was reasonable. The Court, while acknowledging the policy arguments for considering competencies obtained outside of the program itself, agreed.

The Marshall case highlights the importance of the legislative language in registration matters.

Process Challenges

ERichler_Webby Erica Richler
November 15, 2018

In some discipline cases the defence relates to the process rather than the merits. To a large extent, Walia v College of Veterinarians of Ontario, 2018 ONSC 6189, http://canlii.ca/t/hvl9g was such a case. In brief, a number of process challenges were dismissed by the Ontario Divisional Court as follows:

  • If the allegations are within the scope of the complaint and the practitioner had an opportunity to respond to the complaint, then it does not matter that the formulation of the allegations in the notice of hearing differs from the summary of the complaint initially provided to the practitioner.
  • It is acceptable for prosecuting counsel to draft the specific allegations referred to discipline.
  • There is no conflict in having overlapping committee members on both the screening committee and the hearing committee if those overlapping members do not participate in the hearing.
  • It is permissible for a member of the hearing panel to have heard preliminary motions.
  • An expert’s involvement with a committee of the regulator in the past does not necessarily give rise to bias concerns.
  • When assessing costs for a discipline hearing, the dockets of prosecuting counsel need not have been disclosed or filed.

Courts look to whether the procedures followed actually affected the fairness of the hearing.

More Guidance on Awarding Costs at Discipline

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by Rebecca Durcan
November 12, 2018

The Ontario Divisional Court provided additional guidance on the awarding of costs by a discipline tribunal. In Robinson v College of Early Childhood Educators, 2018 ONSC 6150, http://canlii.ca/t/hvmwg, the practitioner was found guilty of having abused a child. The panel ordered the practitioner to pay $257,000 in costs which was more than five times his salary when he was fully employed. The practitioner challenged the authority of the tribunal to award costs on a technical argument related to the failure to provide a process in the tribunal’s rules of procedure and the intersection of the enabling statute with the provisions of the Statutory Powers Procedure Act. The Court found the tribunal’s interpretation of its provisions was reasonable even though another regulator had interpreted similar provisions differently.

The Court made non-binding observations however, that the awarding of costs could have a chilling effect on practitioners facing discipline where the tribunal adopted a policy of awarding costs in every case in which a finding was made. The Court would also be concerned if the regulator sent mixed signals as to whether costs would only be awarded where the practitioner acted unreasonably, but then proceeded to award costs where the practitioner’s defence was acknowledged to have been diligent and appropriate.

In this case, however, the costs order was upheld.

Excessive Delay

BLeBlanc_Webby Bernie LeBlanc
November 7, 2018

It is rare for a disciplinary case to be stayed on the grounds of excessive delay. However, Diaz-Rodriguez v British Columbia (Police Complaint Commissioner), 2018 BCSC 1642, http://canlii.ca/t/hv9pz is an example of where the test for a stay was met. The case involved allegations of the use of excessive force and of giving misleading statements by a transit police officer. The delay was for seven years despite the inclusion of tight timelines within the enabling legislation. The delay included the restarting of proceedings at least twice because the oversight body was not satisfied with earlier determinations.

The Court acknowledged that the timeliness requirements of criminal proceedings did not apply and that the case was governed by Blencoe v British Columbia (Human Rights Commission), [2000] 2 SCR 307, http://canlii.ca/t/525t: “the applicant must establish that: (1) the delay is unacceptable; and (2) there is a serious prejudice arising from the delay itself, not from the underlying allegations or charges”. The Court also accepted that section 7 of the Canadian Charter of Rights and Freedoms did not apply. The Court concluded that there was no material unfairness to the hearing process as the core evidence remained available through video recordings and promptly-taken witness statements.

However, the Court found that the extraordinary delay did meet the “inordinate” criterion given the time-sensitive nature of the legislative scheme and the circular nature of the proceedings. The Court also found that there was significant prejudice to the practitioner largely because of the career limiting restrictions he had worked under for five years and the impact the delays had on him and his family.

This case is a reminder to regulators that, despite the non-criminal law approach taken to regulatory delays, excessive delays can result in the staying of proceedings in appropriate, albeit rare cases. This is particularly true where interim restrictions are imposed.

Injecting Clients into a Professional Dispute is Misconduct

ERichler_Webby Erica Richler
November 1, 2018

Practitioners cannot use their clients as pawns in their professional disputes. Doing so can amount to professional misconduct. A physician learned this the hard way in Torbey v College of Physicians and Surgeons of Alberta, 2018 ABCA 285, http://canlii.ca/t/httn3. Dr. Torbey was upset that his operating room time was reduced. As a result he stopped seeing patients for procedures in the operating room on the days remaining to him. He also sent a communication to his patients “advising that his surgical schedule had been cut down to two days per month, and while he had requested outpatient time at the hospital nothing had been done … and asked his patients to get involved. He named the hospital doctors involved in the dispute and stated the administration was ‘greedy, self centered and discriminating’, ‘using the patient with urological problems as a tool to push me around and bullying me for no justifiable reason putting the urological patient at risk’.”

The discipline tribunal found that such behaviour was professional misconduct and “ordered that he be suspended for a period of one month, but that the suspension would not need to be served if he completed a Comprehensive Occupational Assessment for Professionals.” The Court held that both the finding and the sanction were reasonable.

Ten Implications of Cannabis Legalization for Regulators

Maciura_Julie_5038by Julie Maciura
October 29, 2018

The predominant reaction of regulators to the legalization of cannabis for recreational use has been that nothing has changed. And to a large extent that is correct. Prescribing cannabis for medical purposes is still restricted to physicians and nurse practitioners. In many respects the professional expectations about its use will be similar to the consumption of alcohol or the consuming of prescription drugs which are also both legal and can impair function. However, there are a number of aspects to the legalization of cannabis that may create issues regulators may have to address in the coming months and years. A preliminary list includes the following:

  1. Is there a difference between a practitioner prescribing cannabis and a practitioner recommending patients obtain recreational cannabis on their own for therapeutic use?
  2. If so, is such a recommendation within the scope of practice of the profession?
  3. Even if making recommendations about the use of cannabis is not within the scope of practice of the profession, is there a duty on practitioners to be generally aware of the risks of cannabis use and to provide this information to clients who indicate they are using cannabis?
  4. While administering a substance by inhalation and injection is a controlled act (in Ontario), administering it topically is not. In what circumstances could topical administration of cannabis oil or other products be acceptable?
  5. Informed consent to treatment may not be possible if a client is under the influence of cannabis. Issues may arise as to whether a practitioner should have recognized a client’s impairment or disregarded such an impairment.
  6. It is professional misconduct for practitioners to practise while under the influence of a substance that impairs judgment. Issues may arise with regard to allegations about inappropriate conduct by the practitioner during the treatment.
  7. For many professions there is a duty to report colleagues who are impaired. There may be a duty on practitioners to report where a colleague appears to be impaired or is observed using cannabis while or just before working.
  8. How should regulators consider previous convictions related to cannabis, for example on an application for registration? Are those convictions irrelevant now (i.e., was the person just a bit ahead of their time?) or is it still significant as it involved a breach of the law as it existed at the time (e.g., tax avoidance is still tax avoidance even if the tax laws later change)?
  9. How should regulators deal with information on the public register related to cannabis use? Is that information still relevant for the public to know?
  10. Should regulators have policies about the use of cannabis by their staff and Board and committee members? If so, is anything other than “don’t-arrive-impaired” appropriate?

As regulators are formulating their policies and practices relating to cannabis, they should be aware that the landscape will likely evolve over time as society adapts to these new rules and government potentially refines or expands upon the law. With more experience and guidance, regulators should be prepared to review their cannabis policies at regular intervals.

No Consent Required

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by Rebecca Durcan
October 22, 2018

Many screening committees are given the authority to take certain action and to also take other action not inconsistent with their enabling legislation. In Hancock v College of Registered Nurses of Manitoba, 2018 MBQB 149, http://canlii.ca/t/hv5xj the issue was whether the issuance of a letter of guidance was inconsistent with the Act. The screening committee could refer allegations to discipline or take certain other steps (e.g., censure, undertaking, surrender of registration) with the member’s consent. The practitioner argued that the intent of the Act was that remedial action required her consent and that delivering a letter of guidance without her consent was inconsistent with the Act. The Court disagreed. It found that a letter of guidance “does not affect the applicant’s rights or privileges as a member, that it is confidential and will only be reviewed in the case of a subsequent complaint of a similar nature” and thus did not require the consent of the member. The Court also found that the letter of guidance was not disciplinary in nature.

This case confirms the courts tend to be supportive of the authority of regulators to take creative remedial actions in response to complaints.

Good Reasons Save the Day

BLeBlanc_Webby Bernie LeBlanc
October 15, 2018

Good reasons are always essential, especially when a serious finding is based on circumstantial evidence. In Taylor v College of Physicians and Surgeons of Ontario, 2018 ONSC 4562, http://canlii.ca/t/htrqw, it was acknowledged that there had been systematic overbilling for surgical procedures and that there had been elaborate efforts made to cover it up. The issue was whether the physician was behind it or whether the overbilling and cover up was orchestrated by the physician’s office staff. The discipline tribunal’s conclusion that the physician was responsible for the scheme was challenged on appeal. The Divisional Court found that both the evidence and the reasons for decision supported the conclusion. The Court held that the reasons for decision:

  • contained no major gaps;
  • addressed the inconsistencies in the evidence of the prosecution witnesses;
  • addressed the concern of whether the communications amongst the prosecution witnesses amounted to collusion;
  • considered the prior inconsistent statements given by the prosecution witnesses;
  • applied a similar level of scrutiny to the evidence of the witnesses on both sides;
  • did not reject the evidence of defence witnesses in a cursory way; and
  • did not reverse the burden of proof or base the findings solely on its rejection of the practitioner’s evidence.

The Court also upheld the order of revocation noting that the reasons for decision addressed the mitigating factors and appropriately addressed the aggravating factors including the level of dishonesty involved, the harm to the reputation of the profession and the harm inflicted on the staff members who were asked to participate in the cover-up.

Authority of Oversight Bodies

Maciura_Julie_5038by Julie Maciura
October 11, 2018

Independent oversight bodies with the authority to interfere in individual decisions are rare in common law Canada. They are more prevalent elsewhere, perhaps with the Professional Standards Authority of the UK being best known. The Real Estate Council of British Columbia has recently had the Superintendent of Real Estate appointed to oversee it. The oversight role of the Superintendent was clarified in Superintendent of Real Estate v Real Estate Council of B.C., 2018 BCSC 1500, http://canlii.ca/t/htrm5.

The Real Estate Council investigated a complaint and determined that only a warning was warranted. The complainant took the matter up with the Superintendent who reviewed it and directed the Council to refer the matter to a discipline hearing. The Council refused and the Superintendent sought judicial review.

The Court identified the oversight role of the Superintendent and concluded that the provisions authorized the Superintendent to direct the Council to refer matters to discipline. While the Council still controlled the specific content of the allegations, the Court indicated that the Council would be acting in bad faith if it referred “blank” allegations to discipline. The Court also held that there was no genuine unfairness to the practitioner facing a referral to discipline after being told no action would be taken by the Council because the legislation clearly contemplated this supervisory role for the Superintendent. Having established the authority of the Superintendent to assume this oversight role, the Court declined to order the Council to take action in this particular matter because the Superintendent had not acted with procedural fairness by failing to notify the practitioner that the matter was being reviewed.

This case demonstrates that courts will recognize the authority of oversight bodies where it is set out in legislation and will try to ensure that this authority meets the intended goals.

Interim Orders and Evidence of Exposure to Harm

ERichler_Webby Erica Richler
October 5, 2018

Many regulators have the authority to impose interim orders before a hearing where the public is at risk of harm. Courts defer to the expertise of the regulator in these cases but still require evidence that the public is exposed to harm or injury. Guidance on this issue was provided by the Divisional Court of Ontario in Fingerote v The College of Physicians and Surgeons of Ontario, 2018 ONSC 5131, http://canlii.ca/t/htqf7. In that case a complaint was made by a patient that the practitioner had commented on, stared at and unnecessarily touched her breasts during the course of a chest auscultation. The practitioner denied any inappropriate conduct and suggested that the patient may have misperceived the nature of the interaction. The regulator imposed an interim order imposing a requirement for a chaperone while patients are seen.

The Court set aside the interim order on the basis that there was no evidence that the doctor’s conduct exposes or is likely to expose his patients to harm or injury (the test for health regulators in Ontario). There was no expert evidence that indicated that the reported observations of the patient were inconsistent with appropriate clinical procedures. The Court indicated that it was not open to the panel to make those conclusions based on its own expertise in the circumstances of this case. Nor was there evidence that the conduct might continue. The Court did say that there may be “cases where the facts alleged without more will be probative or logically related to the existence of a risk of future harm” but this was not one of them.

The Court also said:

If society once erred on the side of protecting doctors’ reputations, times have rightly changed. The law prefers and gives primacy to the goal of protecting vulnerable patients. If there is a demonstrated likelihood that a doctor will expose his or her patients to harm or injury, the Committee is free to act and its opinion and remedial discretion will be accorded deference.

This decision highlights the difficult task regulators face when deciding on interim orders. In some cases, the allegations of misconduct themselves may not be sufficient to meet the exposure to harm test required for interim orders.

Scope of Investigations

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by Rebecca Durcan
October 1, 2018

A recurring issue for regulators is the scope of investigations. In Yu v College of Dental Surgeons of British Columbia, 2018 BCSC 1315, http://canlii.ca/t/htc3c, a complaint was made about Dr. Yu’s approach to orthodontics. Concerns were identified and an undertaking was proposed. Dr. Yu declined to provide the undertaking. The committee learned that Dr. Yu had more orthodontic patients than he had previously indicated and initiated a review of a larger sampling of files. Dr. Yu sought an injunction to halt the review, in part, because the regulator was expanding the scope of the original complaint.

The Court was of the view that since there were broader concerns and since the committee had the authority to initiate an investigation on its own authority, the review was not of concern. However, the Court found there was an issue to consider about whether the strong expression of opinion by one of the committee members about Dr. Yu’s approach to orthodontics (which the committee member called “unscientific”) may have influenced the decision to conduct the review even though the committee member had been removed from the committee. However, the Court concluded that Dr. Yu had not established irreparable harm and the balance of convenience favoured allowing the file review to proceed. The Court concluded:

The public’s need to be assured that the profession is being regulated and that they are protected from incompetent practice, far outweighs the needs of the individual dentist. The individual dentist never had a high expectation of privacy or right to practice without inspection and regulation.

Practising Law is Practising Law

BLeBlanc_Webby Bernie LeBlanc
September 24, 2018

In Law Society of Ontario v Leahy, 2018 ONSC 4722, http://canlii.ca/t/ht9nq the regulator sought an injunction against Mr. Leahy for practising law. Mr. Leahy did not dispute the facts, but raised a number of legal defences. The Court rejected all of them including the following:

  • The fact that Mr. Leahy initially received authorization to practice from the courts prior to the new regulatory regime requiring a licence to provide legal services did not require the revocation of the original authorization in order to revoke Mr. Leahy’s licence to practice law.
  • Federal paramountcy principles did not authorize the practising of law before a federal tribunal, at least where the federal legislation did not expressly authorize such practice.
  • The exception for individuals providing services to their corporate employer did not allow the corporation to provide legal services to the public.
  • The location of the corporation outside of Ontario did not oust the regulator’s jurisdiction where the clients received services in Ontario.
  • The exception for practitioners of other professions providing services in the scope of that profession has no application where Mr. Leahy was not registered with another profession.

The injunction was granted.

Controlled Acts Injunction

Maciura_Julie_5038by Julie Maciura
September 20, 2018

Under the Regulated Health Professions Act a College can obtain an order under the statute to prohibit unauthorized persons from performing certain activities or using protected titles. A number of recent cases have set out the criteria used by the courts to determine when to make an order. Those cases are nicely summarized in College of Physicians and Surgeons of Ontario v Canon, 2018 ONSC 4815, http://canlii.ca/t/htkjf. In that case there was uncontroverted evidence that the respondent had used protected titles (e.g., Dr., osteopath), had communicated a diagnosis (e.g., slipped disc in her lower back with bursitis in both shoulders), administered injections, made spinal adjustments and had performed procedures below the dermis of patients. Interestingly, some persuasive evidence (against the individual) came from patient testimonials from his website. The Court summarized the approach on such applications by citing judicial comments in another case:

In Canada v. IPSCO Recycling Inc., at para. 51, Justice Dawson of the Federal Court summarized the legal principles that are to be applied in determining whether to grant a statutory injunction, as follows:

51. On the basis of the authorities cited by the parties I am satisfied that where a statue provides a remedy by way of injunction, different considerations govern the exercise of the court’s discretion than apply when an Attorney General sues at common law to enforce public rights. The following general principles apply when an injunction is authorized by statute:

(i) The court’s discretion is more fettered. The factors considered by a court when considering equitable relief will have a more limited application.

(ii) Specifically, an applicant will not have to prove that damages are inadequate or that irreparable harm will result if the injunction is refused.

(iii) There is no need for other enforcement remedies to have been pursued.

(iv) The Court retains a discretion as to whether to grant injunctive relief. Hardship from the imposition and enforcement of an injunction will generally not outweigh the public interest in having the law obeyed. However, an injunction will not issue where it would be of questionable utility or inequitable.

(v) It remains more difficult to obtain a mandatory injunction. [internal citations omitted]

The Court went on to say:

Proof of damages or proof of harm to the public is not an element of the legal test to obtain a statutory injunction.

Where a public authority applies to the court to enforce legislation, and a clear breach of the legislation is established, only in exceptional circumstances will the court refuse an injunction to restrain the continued breach. The onus to raise the exceptional circumstances lies with the respondent, and those circumstances are limited; for example, to where there was a right that pre-existed the enactment contravened or where the events do not give rise to the mischief the enactment was intended to preclude. [citations omitted]

The restraining order was granted.

Further Clarity on the Mental Intent for Professional Misconduct

ERichler_Webby Erica Richler
September 17, 2018

A recent decision of the Ontario Court of Appeal further clarifies that the required intent for a finding of professional misconduct depends on the nature of the definition of professional misconduct. As previously reported, in The Law Society of Upper Canada v. Nguyen, 2018 ONCA 709, http://canlii.ca/t/htqbc a lawyer was found to have engaged in professional misconduct by failing to advise his clients (mortgage lenders) of material facts (relating to credits the purchasers received on closing). There was no dispute about those findings. The information was material and it was not disclosed. The lawyer’s intent was irrelevant. However, there was a dispute as to whether the lawyer had also participated in mortgage fraud. A finding of mortgage fraud would result in a much more serious sanction.

The Court of Appeal accepted the finding of failing to maintain the standard of practice of the profession but indicated that a finding of mortgage fraud would require dishonesty, willful blindness or recklessness on the part of the practitioner. Since the hearing panel found that the practitioner had made an honest mistake, the intent requirement was not met and no finding of mortgage fraud could be made. The Court of Appeal declined to order the matter back for a new hearing on the issue as desired by the internal appeal tribunal and the Divisional Court.

Crossing the Line

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by Rebecca Durcan
September 13, 2018

Practitioners are entitled to criticize their regulators and colleagues, to a point. However, when the tone and content of the criticism undermines the integrity of the regulatory process or brings the profession into disrepute, it crosses the line. That is what the Alberta Court of Appeal concluded in Zuk v Alberta Dental Association and College, 2018 ABCA 270, http://canlii.ca/t/htl8m.

Dr. Zuk, a general dentist, made numerous statements online, to traditional media and in a book alleging that orthodontic specialists and the regulator were, in effect, conspiring to prevent him and other general dentists from providing certain beneficial services to the public. The tone and language of some of the statements were disrespectful (e.g., “veneer Nazis”). The Court of Appeal upheld the discipline finding was reasonable. The Court found that the statements could be viewed as advertisements in the broad sense of the term and that Dr. Zuk’s freedom of expression was not infringed by the decision (applying the Doré analysis). It was not necessary for the regulator to establish harm to the public in order to make this finding of misconduct.

The Court also upheld a finding that Dr. Zuk had threatened the regulator by demanding it withdraw the complaints within seven days or face counter-complaints and a messy process.

However, the Court set aside as unreasonable the findings that Dr. Zuk had breached a historic undertaking that did not clearly and unambiguously cover the conduct in issue. Despite the fact that the disciplinary tribunal had otherwise handled the issue of sanction well (including considering mitigating factors), the one year suspension and $175,000 costs award was set aside because the reversed breach of undertaking finding was significant to those conclusions.

On the matter of crossing the line, the regulator was assisted somewhat by its attempts to communicate with Dr. Zuk on the issue before commencing disciplinary action.

Jurisdiction Over Conduct Before Registration

BLeBlanc_Webby Bernie LeBlanc
September 10, 2018

For over a century and a half there has been debate and inconsistent court decisions about whether regulators have jurisdiction over members for their unprofessional conduct before they were registered. On the one hand, it seems odd for a person to be accountable for their behaviour when the rules they are said to have breached did not apply to them at the time. On the other hand, the conduct could well reflect on their suitability to be a member of the profession. The Divisional Court has attempted to reconcile the case law in Association of Professional Engineers of Ontario v. Leung, 2018 ONSC 4527, http://canlii.ca/t/htl3k. In that case the allegations included conduct by a certificate holder relating to what amounted to illegal practice of the profession prior to obtaining the certificate. The Discipline Committee concluded it had no jurisdiction over the conduct. The regulator appealed.

The Divisional Court said that the issue was one of interpreting the intent of the legislation. Thus the answer could well be different under different statutes. Under the Professional Engineers Act, which was silent on the issue, there seemed to be a distinction between the disciplinary enforcement mechanism, which applies only to members and certificate holders, and certain offence provisions that applies to others as well. In fact there was a specific offence for offering services to the public without a certificate. The Court concluded that it was both reasonable and correct to view the discipline process to be available for pre-registration conduct only where the conduct continued to when the person was registered or where there was “conduct that resulted in the fraudulent procurement of a licence which negatively affected the individual’s fitness to practice”.

This approach to the jurisdiction over conduct that occurs before registration might become the starting point of the analysis for other regulators whose statutes are silent on the issue.

Combined Investigations Upheld

Maciura_Julie_5038by Julie Maciura
September 6, 2018

The Ontario Court of Appeal has held that under the Regulated Health Professions Act the regulator is permitted to combine various processes into a single investigation. In Abdul v Ontario College of Pharmacists 2018 ONCA 699, http://canlii.ca/t/htpdg, the regulator received both a formal complaint and additional, overlapping, information about the conduct of the practitioner. The regulator discussed the options with the complainant who agreed to withdraw her complaint so that the entire matter could be investigated through a single Registrar’s investigation. This use of the Registrar’s investigation process was challenged, in part, on the basis that the complaints process, requiring the Registrar to notify the practitioner early on, was not followed. The Divisional Court accepted this argument concluding that there was no mechanism for allowing the withdrawal of the complaint and that the mandatory complaints procedures were not followed. The Divisional Court would have required parallel investigations of the two matters. The Court of Appeal reversed the decision of the Divisional Court, concluding that the legislation did not prohibit the withdrawal of a complaint (with the consent of the regulator) and that combining the matters into a single Registrar’s investigation was both practical and authorized. The Court of Appeal found that there was no denial of procedural fairness by using the alternative investigative process (the requirements of which had been followed).

The Court of Appeal held that the use of the alternative process was subject to abuse of process safeguards but found there was no prejudice to the practitioner (which is often required to establish an abuse of process) on the facts of this case. In reaching this decision the Court sidestepped the either/or dichotomy to the narrow/liberal interpretation of legislation dispute and indicated that the legislation should be interpreted in a manner that protects the public but is still fair to the practitioner. The regulator was allowed to proceed with its discipline hearing.

Reformation of the Practitioner vs. Respect for the Profession

ERichler_Webby Erica Richler
September 4, 2018

The Quebec Court of Appeal grappled with whether the sanctioning of a Judge should focus on whether the Judge’s behaviour could be reformed or whether the public’s respect for the judiciary should be safeguarded. In Bradley (Re), 2018 QCCA 1145, http://canlii.ca/t/ht0d2, the Court dealt with a recommendation by the Quebec Judicial Council that Judge Bradley be removed from office for disrespectful conduct towards two litigants in a $500 fence repair dispute. Judge Bradley tried to force the parties to settle the matter and, when they indicated resolution was not possible, declined to hold the hearing. It was the second complaint against Judge Bradley.

The only two sanctioning options available were a reprimand or recommending removal from office. The majority of the Court concluded that Judge Bradley had demonstrated insight into his conduct and had only one prior complaint in a career that involved hundreds of cases. They ordered a reprimand. A minority of the Court would have upheld the recommendation for removal because the conduct of Judge Bradley could undermine the confidence of the public in the judiciary. This tension between the views as to which consideration should be given primacy might have been avoided if a sanction between reprimand and removal were available.

The Court also expressed concerns about the fact that the Council did not separate the hearing into a finding stage and a sanctioning stage. However, even those Justices who expressed the most serious concern about the issue concluded that the problem was resolved by the new hearing before the Court of Appeal.

Procedure and Criteria for Accessing Mental Health Records

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by Rebecca Durcan
August 28, 2018

There are significant restrictions upon regulators gaining access to mental health records, especially from a psychiatric facility, without the consent of the patient. A Court order is required. In Laity v. The College of Physicians and Surgeons of Ontario, 2018 ONSC 4557, http://canlii.ca/t/ht5v7, there were “allegations that Dr. Laity sexually abused the patient and that he failed to maintain the standard of practice of the profession when he prescribed medication for her”. Dr. Laity was the family physician for the patient. His chart contained two consultation notes from a psychiatrist that were relevant to the allegation of improper prescribing. In fact, an expert opinion on the concern was largely based on the consultation notes. The regulator sought a court order permitting access to the consultation notes. Dr. Laity consented to the order as he wanted to use those records to found a motion for production of the broader psychiatric records of the patient as part of his defence. The patient did not consent to the release of the consultation notes.

The Court said its task was:

to determine whether the disclosure of the documents is essential in the interests of justice.  This requires the Court to consider the relevance and probative value of the documents and the parties’ ability to obtain a just determination of the proceeding between them.  Weighed against the parties’ interest is the patient’s interest in preserving privacy and confidentiality with respect to very sensitive medical information.  The onus is on the applicants to show that disclosure is essential in the interests of justice.

The Court concluded that the notes were essential to the prosecution of the professional misconduct allegations. The Court also concluded that the records were relevant to the proposed defence motion for production of the patient’s broader record.

This case will be of assistance to regulators considering using psychiatric facility records in their proceedings.

Adjournments and Compelled Testimony

BLeBlanc_Webby Bernie LeBlanc
August 21, 2018

A recurring issue at hearings is whether to grant adjournments, particularly to retain legal counsel. In Evgueni Todorov and Sophia Nikolov v. Ontario Securities Commission, 2018 ONSC 4503, http://canlii.ca/t/ht4qv, a request for an adjournment was made by counsel who indicated that he anticipated being retained in a few days. The tribunal refused the adjournment because it had been clear over many months that the defendants had to retain legal counsel for the specified hearing date, the parties had indicated an intention to retain counsel by then, no request for an adjournment was made in advance, no explanation was offered as to why legal counsel was not retained on time, and the defendants themselves failed to attend the scheduled hearing date. The Court upheld the decision. The Court indicated that while the standard of review for procedural fairness issues was correctness, since the granting of adjournments is discretionary, the Court will look to see if the refusal of the adjournment was reasonable. In these circumstances it was reasonable given the conduct of the defendants.

A second issue was whether it was appropriate for the Securities Commission to prove its case through the admissions of the defendants obtained from them under compulsion during the course of the investigation. The Court indicated that, since these were administrative and regulatory proceedings designed to protect the public, and not criminal or penal proceedings, it was consistent with the protections in legislation and the Canadian Charter of Rights and Freedoms to rely on this compelled evidence. The use of this evidence did not amount to prohibited self-incrimination.

Reasons for Registration Decisions

Maciura_Julie_5038by Julie Maciura
August 16, 2018

How closely do courts review reasons for decisions in registration cases? In Alfahem v College of Physicians & Surgeons of Alberta, 2018 ABQB 539, http://canlii.ca/t/ht02l, the answer is moderately closely.

Dr. Alfahem was an internationally trained physician who sought registration on the basis of a practice readiness assessment. During the course of the first assessment it was determined that his English language fluency skills were inadequate and he would fail the assessment. Rather than completing the assessment, Dr. Alfahem agreed to upgrade his language fluency first. A second assessor was selected to conduct the subsequent assessment. The second assessor found that Dr. Alfahem’s language fluency was adequate, but found that some of his clinical skills were unsatisfactory. The regulator refused registration on the basis of the second assessment report. Dr. Alfahem challenged the decision on the basis that the reasons did not explain why the second assessment’s results on clinical issues were accepted over the tentative conclusion of the first, incomplete assessment.

The Court emphasized the importance of reasons for decision in registration matters that should address the “why” for a decision. However, the Court also noted that it will scrutinize the entire record to see whether the “why” is evident. In this case it was apparent that the regulator was concerned about the objectivity of the first assessor, who seemed to be taking a more educational approach than a true assessment approach. In addition, the first assessment was interim in nature and was not finalized. The Court was not prepared to find the reasons inadequate in the circumstances.

The Court also rejected the ground of review based on the concerns that the applicant had not had full disclosure of the materials upon which the decision was made. The Court concluded that the applicant had not established that he did not have relevant and material information.

Defamation Challenge to Transparency Fails

ERichler_Webby Erica Richler
August 13, 2018

Should regulators go public with safety concerns before they are fully established? That was the issue facing a regulator, a hospital and the government in the spring of 2009. A review of the radiological interpretations by Dr. Tsatsi indicated serious concerns that placed the public at risk. The regulator decided to conduct a broader review. However, Dr. Tsatsi was suspended from his position in the meantime and a press release was issued so that the public could take appropriate measures to protect their health. A decision was made to name Dr. Tsatsi publicly (rather than just send private communications to affected patients) for a number of reasons including to better enable patients to take action, to protect the reputation of other radiologists who would otherwise be placed under suspicion and to demonstrate transparency in circumstances where the media would almost certainly identify Dr. Tsatsi in any event. Dr. Tsatsi sued for defamation.

In Tsatsi v College of Physicians and Surgeons of Saskatchewan, 2018 SKCA 53, http://canlii.ca/t/hswdj, Saskatchewan’s highest court upheld the summary dismissal of the lawsuit. It held that the defence of justification applied in that, at the time that the statements were made by the regulator, the statements (namely that the public was at risk) were accurate. A subsequent investigation largely confirmed the accuracy of those statements as well. The Court also held that the defence of qualified privilege applied in that the regulator had a duty to protect the public and it acted without malice in deciding whether or not to publish Dr. Tsatsi’s name.

Regulators can take comfort that courts will be sympathetic to transparency initiatives taken in good faith.

Do Additional Considerations Apply to Applications for Registration by Indigenous Persons?

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by Rebecca Durcan
August 8, 2018

In Moore v The Law Society of British Columbia, 2018 BCSC 1084, http://canlii.ca/t/hssff, an applicant (Ms. Moore) had conditions imposed on her registration because of conduct concerns while practising in another province. Ms. Moore consented to the conditions relating to engaging a mentor and practising under supervision. However, those conditions did not work for Ms. Moore and she withdrew her consent to the conditions and sought to have them removed. The regulator refused. Ms. Moore sought judicial review on the basis that the conditions were unreasonable and that the conditions failed to take into account her background as an indigenous person. On the latter point Ms. Moore argued both that she could much to offer to the justice system because of her cultural competence in aboriginal issues and that the regulator had failed to consider her background when evaluating the significance of her discipline history in Alberta.

The Court held that there was no formal requirement on the regulator to consider her indigenous background when dealing with registration matters. However, the Court was concerned that the regulator could have done more in the circumstances:

However, there are moments where the Law Society and the Credentials Committee could have better supported and assisted Ms. Moore in the application process. It is likely that supports such as meeting with Ms. Moore in person, explicitly referencing Ms. Moore’s background and life experiences in the decisions or discussing them with her, or providing active support in creating conditions or proposals for mentorship, would have assisted in both protecting the public interest, and better supporting and assisting Ms. Moore in applying for transfer and fulfilling her duties in the practice of law.  Improved communication from the Law Society would likely have had the effect of assisting Ms. Moore to find constructive solutions.

As Ms. Moore notes and I am sure the Law Society would agree, it is also in the public interest to have practising Indigenous lawyers who can provide culturally appropriate services to clients. Supporting Indigenous lawyers in the process of becoming admitted to the bar and remaining members of the bar, whether that is accomplished through future policies or other means, will foster the process of reconciliation that the Law Society has, on its own initiative, embarked upon.

The Court also found that the decision of the regulator was reasonable. It had considered the information provided and applied criteria relating to protecting the public interest that was specified in its enabling legislation. In particular the Court concluded that expressing misgivings about proposed conditions before consenting to them does not make that consent invalid. The Court also held that an applicant cannot withdraw consent once the final decision to register with conditions was made. The proper remedy was to apply to have the conditions removed.

After upholding the regulator’s decision as reasonable, the Court then took the unusual step of suggesting to the parties how they might consider a fresh application to vary the conditions in a different manner:

It may assist if Ms. Moore were to make another application to the Law Society to remove the conditions, that the parties engage in a form of mediation or conversation to resolve any issues that arise in that application, and in a manner that is sensitive to the issues discussed in this petition. There were opportunities in these circumstances for the Law Society to take further steps in recognizing the challenges that Ms. Moore as an Indigenous lawyer faced in entering and remaining in the profession.  In addition, a conversation with the Law Society may assist Ms. Moore in finding a constructive route to the partnership she sought for her work on Indigenous justice issues.

The Court’s comments reinforce the need for regulators to approach registration cases individually and not routinely apply criteria without considering any special circumstances.

It is interesting to note that shortly after this decision the regulator adopted a report to promote training on indigenous matters for students, indigenous representation on committees and reviewing standards for systemic barriers:
https://s3.amazonaws.com/tld-documents.llnassets.com/0007000/7036/truthandreconciationactionplan2018.pdf. That report was obviously in the works well before this decision was released.

Re-Enactment of the Events by Disciplinary Tribunal Upheld

BLeBlanc_Webby Bernie LeBlanc
July 31, 2018

In College of Physiotherapists of Ontario v. Boon, 2018 ONSC 3463, http://canlii.ca/t/hsgbg, the disciplinary tribunal had to assess the credibility of the practitioner for allegations related to the intimate touching of a patient. While the tribunal concluded the touching was not of a sexual nature, it still found the touching to be unprofessional. In making its findings, the tribunal found the practitioner’s evidence lacked plausibility because it was physically difficult to do the procedures the practitioner described in his evidence. In part this lack of plausibility was based on an attempt by the tribunal to re-enact the procedures in the deliberation room.

The primary ground of appeal by the practitioner was that this private re-enactment by the tribunal amounted to the creation of additional evidence in the absence of the parties and was thus a breach of the principles of procedural fairness. The Divisional Court disagreed. It found that the re-enactment was simply a method of assessing the detailed evidence given by the practitioner in his own evidence. There was a basis in the evidence to doubt the plausibility of the practitioner’s evidence without the re-enactment. In addition, the re-enactment was an extension of what counsel for the practitioner had already requested of the tribunal during a break in the hearing: the tribunal was asked to hold a book that the practitioner testified had been shown to the patient without it touching the patient (contrary to the patient’s evidence).

On the issue of sanction, while the Court was troubled by the tribunal listing the lack of remorse by the practitioner as an aggravating factor (rather than being the absence of a mitigating factor), the Court upheld the order as reasonable, particularly where the tribunal had specifically affirmed the practitioner’s right to make full answer and defence.

Incarceration an Order of Last Resort in Unauthorized Practice Cases

Maciura_Julie_5038by Julie Maciura
July 24, 2018

It is common to seek restraining orders against those practising the profession or holding themselves out. When an individual continues to perform a restricted activity or hold themselves out as a member of the profession after the restraining order has been granted, it is contempt of court. Contempt of court is a serious matter which can result in imprisonment.

In The Law Society of Upper Canada v. Hatzitrifonos, 2018 ONSC 3719, http://canlii.ca/t/hsl8r, Mr. Hatzitrifonos was found in contempt of court for the “repeated, wilful and deliberate” practise of law over a period of two years after a restraining order had been imposed. The regulator sought a 30 day jail term. The Court held that the primary purpose of sanction for contempt of court was to compel compliance with the law. A secondary purpose was deterrence. In this case however, Mr. Hatzitrifonos apologized for his conduct, changed his career path to avoid the temptation to practise law again, promised his conduct would never happen again, undertook community service and began payment of the costs he owed to the regulator. The Court said that incarceration was a last resort in contempt of court cases. It also found that a fine would be counter-productive as Mr. Hatzitrifonos had no money and very little income and it would prevent him from repaying the costs he already owed. Instead the Court expanded the amount of community service Mr. Hatzitrifonos had to fulfill and reinforced the need to continue paying the costs owed.

The Kitchen Sink

ERichler_Webby Erica Richler
July 17, 2018

Some appeals involve multiple issues. Kennedy v. College of Veterinarians, 2018 ONSC 3603, http://canlii.ca/t/hsfqb is one of those cases. In that case the Court held as follows:

  1. Theft of the court reporter’s computer resulting in losing the transcript for one and a half days of the hearing did not result in an inability to hold a meaningful appeal where the notes of two panel members and independent legal counsel provided sufficient information for the Court to assess the issues.
  2. Where primary disclosure has been made of the regulator’s evidence, a party seeking disclosure of the investigation file of another agency involved in the matter requires an O’Connor type of motion. The failure of the regulator to obtain the other agency’s file and disclose it is not a refusal to make primary disclosure. The fact that the practitioner had not brought a motion for the other agency’s documents was fatal to his appeal.
  3. Where a party consents to the qualifications of an expert witness, they cannot later challenge the neutrality of the witness in most circumstances.
  4. The regulator is not required to call an independent person as its witness at the request of the practitioner. The practitioner is in an equal position to summons the independent person.

The Court also found that the findings and reasons on credibility, penalty (i.e., revocation) and costs were reasonable.

Accommodation Has to be Requested

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by Rebecca Durcan
July 10, 2018

In Zaidi v. Immigration Consultants of Canada Regulatory Council, 2018 FCA 116, http://canlii.ca/t/hsjrq the applicant for registration by a regulated profession was unable to meet the language proficiency requirements. The applicant repeatedly failed the language proficiency test and challenged the requirement as discriminatory on the basis of his medical conditions. The Court dismissed the challenge primarily on the basis that it did not have jurisdiction to hear the appeal. However, it also said that the appeal had no merit because the applicant had not sought accommodation and thus had not been refused accommodation. Thus there is an onus on applicants to request accommodation before a complaint of discrimination on the basis of disability can be made out.

Test for Establishing Negligent Investigations

BLeBlanc_Webby Bernie LeBlanc
July 5, 2018

Regulators are sometimes criticized for their investigations. Most regulators are protected for actions taken in good faith, even if negligent. However, to the extent that regulators can be sued for negligent investigations, the test for establishing liability can be summarized as follows (see: Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, http://canlii.ca/t/hs9m7):

  1. The appropriate standard of care for the tort of negligent investigation is that of the reasonable police officer in similar circumstances.
  2. In the laying of charges, the reasonable standard is informed by the presence of reasonable and probable grounds to believe the suspect has committed the offence.
  3. This standard does not require police to establish a prima facie case for conviction.
  4. The police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges.
  5. A police officer is not required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds.

This test is probably also relevant for courts and tribunals reviewing the adequacy of a regulator’s investigation in the context of complaint reviews or disciplinary hearings.

The Court in Tremblay noted that there should be expert evidence as to the standard of investigations in the context of the case before any finding of inadequate investigation is made. The Court also indicated that it is appropriate for investigators to choose not to interview the subject of the investigation before initiating further proceedings.

Going Behind the Corporate Veil

Maciura_Julie_5038by Julie Maciura
June 25, 2018

Regulators have special challenges when regulating practitioners who practise through a corporate structure. One such challenge is being clear in any notice of hearing whether the regulator is pursuing allegations against the individual, the corporation or both. In Best Import Auto Ltd. v Motor Dealer Council of British Columbia, 2018 BCSC 834, http://canlii.ca/t/hs4n5, the notice of hearing clearly indicated that the corporation could face sanction, but was less clear whether the responsible officer / owner was also at risk of sanction. As a result the Court set aside the sanction imposed against the individual.

On another issue the Court gave short shrift to the concern about a single hearing being held on both the issues of finding and sanction. The defendants complained that they should have been given full detail of the findings before being required to address sanction. The Court noted that many courts and tribunals combine both stages of the hearing. The Court noted that the defendants could waive their right to separate hearings. Only where the defendants requested separate hearings and they were denied was this a true issue of fairness.

The Court also indicated that under the legislation in issue, an implied aspect of the power to impose a revocation was the added authority to specify a time period before the defendant could apply for reinstatement. In this case the specified period was ten years.

Oversight Responsibilities of the Responsible Minister

ERichler_Webby Erica Richler
June 18, 2018

Government Ministers are responsible for overseeing statutory regulators. However, that responsibility does not mean that the Minister is a necessary party to any legal disputes involving the regulator: A Solicitor v. The Law Society of British Columbia, 2018 BCCA 163, http://canlii.ca/t/hrq4w.

Ms. Walker was a lawyer. She has disabilities which she indicated had profound financial consequences for her. After being given notice, her membership with the Law Society of British Columbia was terminated for non-payment of fees. Ms. Walker sought judicial review of the failure of the Law Society to give her a further extension to pay her fees. As is required, she served a copy of the notice of application for judicial review on the Attorney General of the province. The Attorney General is the Minister with general oversight for the Law Society. In fact, the Attorney General is by virtue of their office a Bencher (Board member) of the Law Society. Ms. Walker wanted to require the Attorney General to be a party to the judicial review proceeding to assist her in pursuing her application.

The Court held, in the course of a procedural motion, that the oversight duties of the Attorney General do not include an obligation to participate as a party in legal challenges against the regulator.

Raising the Bar is Not Easy

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by Rebecca Durcan
June 11, 2018

In a series of cases over the last few years it seems clear that the College of Physicians and Surgeons of Ontario has been trying to impose more significant sanctions in sexual abuse and sexual impropriety cases. It has had limited success. The latest setback is found in Horri v. The College of Physicians and Surgeons, 2018 ONSC 3193, http://canlii.ca/t/hs8sz. Dr. Horri began a sexual relationship with a vulnerable and relatively young patient two weeks after the professional relationship ended. He acknowledged that he later learned that this conduct was unacceptable because of the ongoing power imbalance. He successfully completed a boundaries course, including follow up visits and introduced psychiatric evidence indicating that he was of a low risk to repeat such conduct.

The discipline panel revoked Dr. Horri’s registration. The Court said:

The Committee acknowledged that revocation was outside the range of typical penalties imposed in prior cases; however, revocation was justified because of the seriousness of Dr. Horri’s misconduct and the Committee’s concern that he did not have sufficient insight to control himself in the future. The Committee offered no review of similar cases. The Committee held that typical penalties might need to reflect changing societal values.

The Divisional Court quashed the revocation and returned the matter for further consideration. The Court held that where there was a significant increase in the sanction from the existing range of cases, some of which were even more serious in nature, the panel had to provide persuasive analysis beyond “changing societal values”. The previous cases needed to be evaluated in detail. The Court also indicated that, while it was open to the panel to reject opinion evidence about future risk of harm, it had to do so carefully and that it still needed affirmative evidence to conclude that there was an actual risk of harm.

Interestingly, the same month as this decision was released, amendments to the RHPA deemed such conduct to be “sexual abuse” engaging a mandatory order of revocation. Sometimes legislation is easier than litigation.

Few Lessons for Regulators from Groia

BLeBlanc_Webby Bernie LeBlanc
June 4, 2018

Few decisions were as anticipated by the legal profession as was the Supreme Court of Canada verdict in Groia v. Law Society of Upper Canada, 2018 SCC 27, http://canlii.ca/t/hsb9d. Mr. Groia had been disciplined for incivility for the way in which he had treated the opposing lawyer in a high profile securities prosecution. Mr. Groia had made allegations of prosecutorial misconduct (mostly about disclosure issues), using strong language, throughout much of the trial. The Supreme Court reversed the misconduct finding on the basis that while Mr. Groia was mistaken about the law, he acted in good faith and had some basis for making the assertions (despite his incorrect view of the law).

For regulators of professions other than law, the case will have little significance. The Court affirmed the reasonableness standard of review of findings of professional misconduct and supported an approach that involved considering all of the circumstances. The majority of the Court found that, in the context of this case, it was unreasonable to find that Mr. Groia had crossed the line given his good faith, but erroneous, view of the prosecutor’s disclosure obligations and the circumstances in the particular case (e.g., the conduct of the prosecutor and the relatively passive stance of the judge). A key consideration, which will not apply to most other regulators, was that the conduct occurred in court and was directed at another member of the profession where resolute and fearless advocacy for a client is required. It is doubtful that a court would give that amount of leeway for practitioners advocating in a rude manner for their own clients in other contexts (e.g., a health care setting).

Unfortunately for regulators, this decision may slightly embolden defence counsel to make allegations of prosecutorial misconduct by the regulator. While such allegations are rarely successful, they can significantly increase the costs of misconduct investigations and hearings.

What to Include in the Reasons for Imposing a Sanction

ERichler_Webby Erica Richler
May 31, 2018

In Davis v. British Columbia (Securities Commission), 2018 BCCA 149, http://canlii.ca/t/hrlk7 an investor relations service provider accepted $7,000 from an investor for the purchase of shares that were never obtained. Mr. Davis was found to have engaged in fraud because he “untruthfully told an investor he owned the shares he was selling to that investor. Mr. Davis contends his actions do not amount to fraud because he believed he would receive those shares in the future.” The allegations were established and the sanctions included a lifetime full-market ban.

On appeal, the Court returned the matter for a fresh hearing on sanctions, despite the fact that such dishonesty often resulted in permanent market bans. The Court held that the sanction had to be proportional to the conduct. In this case the reasons of the tribunal did not reflect a consideration of the personal circumstances of Mr. Davis (including his unblemished record, his age, and that the order would end his long-established career) and consideration of whether the alternate available sanctions would be sufficient to protect the public.

Reasons for decision for sanction should include an explicit consideration of the mitigating circumstances and an explanation as to why the lesser available orders are not appropriate in the case. This is true even where dishonesty has been found.

Considering a Prior Decision that is Under Review

Maciura_Julie_5038by Julie Maciura
May 28, 2018

In Law Society of British Columbia v. Perrick, 2018 BCCA 169, http://canlii.ca/t/hrs3p, a lawyer was facing two discipline hearings for conduct that occurred at roughly the same time. The first hearing resulted in a finding with a fine, but no suspension, primarily because of the lawyer’s “clean” record. While that decision was under review, the second hearing was held and also resulted in a finding. However, this time the prior finding was considered and the second case resulted in a suspension. The lawyer appealed on the basis that the tribunal should not have considered the prior finding while it was still under review. The Court disagreed. It held that the prior finding was “final” and could be considered unless and until it was reversed. If the prior finding was reversed on review, the lawyer could then appeal the second decision on that basis.

While this decision reassures discipline tribunals that it can consider the past record of the practitioner as it stands on the date of the hearing, it does place the regulator at some risk should a prior finding be set aside.

Court of Law vs. Court of Public Opinion

ERichler_Webby Erica Richler
May 23, 2018

Few discipline cases have achieved as much notoriety as the discipline of Ms. Strom, a nurse in Saskatchewan, for posting comments on Facebook that were critical of the care that her grandfather had received at a facility. Ms. Strom was found to have engaged in professional misconduct, fined $1,000, and ordered to pay $25,000 in costs. It is probably no exaggeration to say that the decision was skewered in the court of public opinion. In fact, journalist André Picard made the case a focal point of his keynote address to the Canadian Network of Agencies for Regulation (CNAR) conference in 2017. He argued that the decision to prosecute the case at discipline reflected a misguided choice of regulatory priorities and a fundamental lack of appreciation of the role (and future) of social media.

Ms. Strom appealed the decision. However, in Strom v. Saskatchewan Registered Nurses’ Association, 2018 SKQB 110, http://canlii.ca/t/hrm9c the Court upheld the disciplinary decision. Repeatedly citing the principle of deference to the expertise of the specialist tribunal, the Court found it was reasonable for the tribunal to assert jurisdiction over the off-duty conduct of a nurse, to find that the conduct was unprofessional, to conclude that the infringement on the nurse’s freedom of expression was reasonable, and to award $25,000 in costs.

This case illustrates the multi-faceted accountability of regulators, which does not always result in consistent messages.

Complaints Against Staff of a Regulator

BLeBlanc_Webby Bernie LeBlanc
May 17, 2018

Most regulators have some staff members who are also registered members of the profession. Occasionally misconduct complaints are made against these staff members even though the conduct occurred in the course of their regulatory duties. Frequently those complaints are made in retaliation for action taken by the regulator against the complainant / practitioner. These retaliatory complaints can amount to an abuse of process. Regulators have to then decide how seriously and thoroughly to take those complaints.

In Aylward v Law Society of Newfoundland and Labrador, 2018 NLCA 20, http://canlii.ca/t/hrh67, the regulator had to deal with this very issue. The Executive Director and the Legal Director of the regulator were the subject of a counter-complaint by Mr. Aylward. Mr. Aylward had himself been the subject of a complaint that resulted in a caution. Mr. Aylward complained that the regulatory staff had, among other things, concealed and fabricated evidence that related to the previous complaint against him. The regulator took Mr. Aylward’s complaint seriously. The investigation and screening committee conducted a thorough investigation and retained an external lawyer to investigate key aspects of the complaint. The investigation and screening committee determined there were insufficient grounds to take action against the regulatory staff.

Mr. Aylward appealed, arguing that there was an appearance of bias on the part of the external investigator (who had done some previous work for the regulator and may have wanted to receive additional assignments). Mr. Aylward was also concerned that some of the witnesses he identified were not interviewed. The Court of Appeal adopted the reasons of the lower court. The lower court (at: http://canlii.ca/t/hn8wn) found there was no reasonable apprehension of bias in the circumstances and that there was little likelihood that the witnesses who were not interviewed would provide additional useful information. On this point the lower Court said:

Once a complaint is laid the CAC [i.e., the investigating and screening committee] is the body that decided how to proceed and what procedures are to be followed. The CAC is given a very wide discretion as to how the investigation is to be carried out, if witnesses are to be called or whether only a written record will suffice. There is a reason for this and the reason is that these complaints authorization committees are set up to deal with issues that could involve minor misconduct or things as serious as the misappropriation of the public’s money or any range of professional misconduct toward the public or a fellow solicitor. As such, the process is meant to be flexible, allowing the Committee to investigate as thoroughly as it deems necessary depending on the nature of the complaint.

While there may be some cases in which treating such a complaint is viewed as an abuse of process, in many cases it may be prudent for the regulator to process the complaint even though it is far-fetched.

Parity in Penalties Remains Important

Maciura_Julie_5038by Julie Maciura
May 14, 2018

Even before the Court of Appeal rendered its decision in College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, http://canlii.ca/t/hrt0r, the courts have been reaffirming the importance of consistency in sanctions. In Billing v. College of Physicians and Surgeons of Ontario, 2018 ONSC 2624, http://canlii.ca/t/hrp9r, Dr. Billing was found guilty of professional misconduct relating to record keeping and a lack of sterile technique in procedures. The Discipline Committee imposed a two month suspension and extensive monitoring and supervision restrictions. The Court said:

The Discipline Committee conducted an appropriate parity analysis. It expressly stated that, in general, like cases should be treated alike, and it had considered the cases cited.  Despite the appellant’s argument that the penalty was outside the range, the suspension was within the range of penalties in prior decisions, which ranged from zero to six months suspension.  Each case obviously turns on its particular circumstances.

The Committee also correctly observed that parity is not the only relevant consideration. It explained that a suspension was warranted because the misconduct was pervasive and systemic in the appellant’s practice, it related to many patients over an extended period of time, and it exposed his patients to a risk of serious harm.  The Committee was concerned about both general and specific deterrence, as well as the need to address the impact of the conduct on public confidence in the College’s regulation of the profession.

The Committee did not misconstrue the Peirovy decision (at the Divisional Court) as no longer requiring it to take prior decisions into account.  It expressly stated that similar cases should generally be dealt with in a similar fashion.  It also stated that it had considered past cases and was “satisfied that the penalty imposed on Dr. Billing is reasonable and proportionate given the particular facts of this case.”

While consistency in orders is not the only consideration, it remains an important factor.

Court Review of Credibility Findings

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by Rebecca Durcan
May 10, 2018

If one of the most difficult tasks for a hearing panel is to assess the credibility of witnesses, one of the more challenging roles for a court is to review the credibility findings of lay tribunals. In two recent cases, courts have considered credibility findings. In the cases, the courts have provided some insight as to both what they look for on such an appeal and how difficult it is to reverse credibility findings.

In Ontario College of Nurses of Ontario v. Todd, 2018 ONSC 1689, http://canlii.ca/t/hrbzz the issue was whether a nurse had slapped a patient in a psychiatric facility. As the court said, it was a “he said vs. they said” case (as the regulator’s case involved not only the patient, but a number of witnesses). The discipline panel found that the allegations had not been proved on a balance of probabilities. The College appealed on the basis that the hearing panel misapprehended some of the evidence, failed to adequately address the inconsistencies in the nurse’s evidence and failed to sufficiently explain why it did not accept the patient’s evidence.

The Court dismissed the appeal. It found that the hearing panel’s assessment of the evidence was reasonable. It had identified serious concerns about the consistency of the evidence of the key witnesses to the incident. The hearing panel had addressed the inconsistencies in the nurse’s evidence as being consistent with his not recalling the details of an ordinary day. In addition, the Court held that the assessment of the credibility of the patient (i.e., essentially that “the nature of the evidence that she was able to provide to the Panel lacked specificity, and could therefore not be heavily relied upon by the Panel”), while brief, was adequate in the circumstances. The Court found that the lack of specificity in the patient’s evidence was apparent from the hearing panel’s description of her evidence.

The second case, College of Physicians and Surgeons of Ontario v. Yaghini, 2018 ONSC 2449, http://canlii.ca/t/hrjwf, involved a “he said, she said” allegation of a male physician kissing a fifteen-year old patient while making inappropriate comments. There were no witnesses in this case. The physician appealed the finding of professional misconduct. Many of the typical challenges to credibility findings were raised, including: failing to adequately address the discrepancies in the patient’s evidence, failing to distinguish between the honesty of a witness and their reliability, and treating the discrepancies in the practitioner’s evidence more harshly than those of the witness. For each of those issues the Court found that there was reasonable support for the reasons of the panel indicating that these errors had not, in fact, been made.

In both cases it was the effort by the tribunals to provide reasons explaining why it made its credibility findings that resulted in the decisions being upheld.

Public Has a Constitutional Right of Access to the Record of a Hearing

BLeBlanc_Webby Bernie LeBlanc
May 8, 2018

In Toronto Star v. AG Ontario, 2018 ONSC 2586, http://canlii.ca/t/hrq6s, the media outlet brought a wide ranging challenge to the practice of many, but not all, government tribunals restricting the public’s right of access to their hearing records. The tribunals that restricted access did so on the basis of the privacy rights of individuals referred to in the hearing record citing the Freedom of Information and Protection of Privacy Act (FIPPA). The Court found that FIPPA contained a presumption of privacy that was inconsistent with the open court principle inherent in the freedom of expression protections in the Canadian Charter of Rights and Freedoms. The Court gave the government one year to amend FIPPA to make it consistent with the Charter. The decision only applies to tribunals that hold hearings.

Most professional regulators in Ontario are not directly part of the government and thus are not governed by FIPPA. Most professional regulators already take the presumption of public access approach. So this decision has little direct application to them. However, in the course of its reasons, the Court emphasized that the Charter right of public access requires a speedy process for access requests to be honoured. The Court also indicated that there would be circumstances in which the hearing tribunal could restrict access (e.g., withhold or redact some information) where the privacy interests of the individual outweighs the usual principle of openness. Where the request for access to the hearing record is made during the hearing itself, it can usually be decided quickly. However, where the request is made after a hearing (or where it relates to the privacy interests of a person who is not present at a hearing), regulators must develop procedures to consult the relevant persons promptly. The Court suggested that a 30-day time period might be acceptable.

Changing Society and Historical Law

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by Rebecca Durcan
May 4, 2018

Perhaps the most notorious sexual abuse case in recent years was determined by Ontario’s Court of Appeal earlier this month. In College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, http://canlii.ca/t/hrt0r, a physician was found to have engaged in the sexual abuse of four patients by touching their breasts without consent or medical indication. Another finding of unprofessional conduct occurred because he “had asked a fifth patient on a date immediately following his medical examination of her during which her breasts were exposed”. The regulator sought revocation. However, the discipline panel imposed a six month suspension, numerous conditions and serious financial consequences.

The regulator appealed its own tribunal’s decision as it believed the sanction was not sufficient. The Divisional Court, in a particularly strongly worded decision, would have returned the matter for the imposition of a much more serious sanction. That Court found that the tribunal had based its penalty decision on an acceptance of a “lack of awareness” explanation by the physician that was inconsistent with the tribunal’s finding that the conduct was obviously sexual in nature and that the patients did not “misunderstand” Dr. Peirovy’s touching. The Divisional Court also held that reliance on a range of unfit penalties in previous cases did not justify a penalty that no longer reflected current societal values.

The majority of the Court of Appeal concluded that the Divisional Court had erred by reading the reasons of the discipline tribunal too rigorously and by failing to show adequate deference to the specialized knowledge of the expert disciplinary tribunal. The majority concluded that the discipline committee had considered and explained in its reasons why the sanction selected was reasonable and protected the public. One member of the Court of Appeal dissented, vigorously supporting the approach taken by the Divisional Court on both issues.

Interestingly, the Court of Appeal had very different interpretations of the subsequent amendments to the legislation that now require revocation for such conduct. The amendments were almost certainly a direct result of the controversy over the Discipline Committee’s decision in the Peirovy case. The majority indicated that the discipline panel was implementing the framework that existed at the time and the Legislature’s ensuing alteration of the framework was irrelevant.

The dissenting Justice viewed the amendments to the legislation as a reaction to the discipline panel’s failure to recognize that societal expectations had indeed shifted.

The Impact of Bankruptcy on Disciplinary Fines and Costs

Maciura_Julie_5038by Julie Maciura
April 30, 2018

Bankruptcy is intended to provide people with an opportunity to gain a fresh start without the burden of debt; it is governed by federal law. Disciplinary proceedings are intended to protect the public from harm, often through the imposition of a sanction to deter the regulated practitioner and others; they are governed by provincial law. Valid federal law is paramount over inconsistent provincial law. One can just imagine the complexities that flow where a bankrupt practitioner also faces fines and costs imposed by a disciplinary panel. This complexity is fully evident in the lengthy discussion of the issues in Chartered Professional Accountants of Alberta v Neilson, 2018 ABQB 170, http://canlii.ca/t/hr0wg.

In that case the practitioner initiated bankruptcy proceedings while he was under investigation by his regulator for allegations of serious misconduct (the events of two incidents arose before he declared bankruptcy; the events of the third incident occurred after he declared bankruptcy). Ultimately an agreement was reached between the practitioner and regulator resolving all three matters and resulting in the cancellation of the practitioner’s registration, a fine of $50,000 and a $15,000 costs order, among other things. When the regulator tried to collect those amounts, the practitioner refused to pay, saying that they were covered by the bankruptcy proceeding and that he would not have reached an agreement with the regulator if he knew he would actually have to pay the fines and costs. The primary issue for the court was determining whether these amounts were contingent liabilities that could be estimated (i.e., were provable) at the time of bankruptcy (in which case they would be covered by the bankruptcy proceeding) or whether they were too speculative to be included in the bankruptcy process.

After a detailed analysis, the court found that the costs ordered by the Discipline panel relating to the two complaints that arose prior to the practitioner declaring bankruptcy were provable because they were relatively predictable in the circumstances (and as such, they were covered by the bankruptcy process and the regulator could not collect on them). However, the fines imposed in relation to all three complaints, as well as any costs that related to the third complaint, were speculative at the time the practitioner declared bankruptcy and so they could be recovered by the regulator outside of the bankruptcy process. The court analyzed the various factors that go into determining what sanction a discipline panel will order in a particular case and found that it was impossible to predict that a fine would be imposed against the practitioner (in addition to revoking his registration, which seemed guaranteed). As such, the court ordered that the regulator was entitled to a money judgement against the practitioner for the fines (as well as the incremental costs related to the third allegation).

Where regulators are aware that a member has initiated bankruptcy proceedings prior to a discipline hearing, they should take the bankruptcy proceedings into account when developing the appropriate sanction. In addition, regulators should generally be aware that bankruptcy proceedings after a discipline hearing can have a significant impact on the collectability of the monetary aspects of the sanction.

Disability and Disciplinary Orders

ERichler_Webby Erica Richler
April 26, 2018

Where a practitioner raises the mitigating factor of the practitioner’s illness, who has to prove what? This issue was squarely raised in Braile v Calgary (Police Service), 2018 ABCA 109, http://canlii.ca/t/hr36m. The police officer was found guilty “for misconduct connected with a prolonged and dangerous high-speed police chase on December 15, 2008 in Calgary, contrary to CPS policy, which resulted in serious injury to an individual unconnected with the chase.” At the penalty phase of the hearing the police officer raised, as a mitigating factor, that he was in a manic phase of a bi-polar disorder.

The Court held that the burden of proof was on the practitioner to establish the presence of a mitigating factor on a balance of probabilities. The practitioner would have to establish both the presence of the illness and that the illness caused or contributed to the behaviour in issue. The Court upheld as reasonable the tribunal’s finding that it had not been established that the police officer was experiencing manic symptoms at the time of the high-speed car chase.

Considering Exemptions for Registration

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by Rebecca Durcan
April 23, 2018

Some regulators are permitted to consider exemptions (sometimes called waivers) for applicants for registration who do not meet the technical requirements. Typically these exemptions permit an applicant to demonstrate that they meet the necessary competencies through an alternative means (e.g., experience as well as formal education). It is necessary for regulators to consider whether an exemption should be granted. Failing to analyze the availability of the exemption can nullify the determination. That was the case in Yates v Nova Scotia Board of Examiners in Psychology, 2018 NSSC 43, http://canlii.ca/t/hqvww.

In the Yates case the applicant had a “non-practising” registration status in Saskatchewan. Nova Scotia did not have such a category. The Court held that the applicant did not qualify under the Agreement on Internal Trade as Nova Scotia was not required to create such a category for her. However, the regulator now had to consider whether she qualified under the existing requirements for applicants. The Nova Scotia legislation permitted persons without an approved degree to receive individual consideration if registered elsewhere (even in a non-practising capacity). As a result of the policies and procedures adopted by the regulator, it did not actually consider whether this applicant should receive the waiver. Failing to do so resulted in the matter being returned for fresh consideration. The Court said:

The protection of the public is not solely achieved by powers of exclusion. It is also served by the permissive power to consider the inclusion of individuals, where appropriate, whom the authority feels may be able to assist in protecting the public by the delivery of competent, professional services, notwithstanding their technical inability to meet all of the requirements ….

The Court was also concerned that some materials had not actually been provided to the decision makers on the basis that staff thought the materials were not relevant. Rather, only a verbal summary of the materials was provided. The Court noted that the materials were potentially relevant to the issue of whether an exemption should be granted and, as such, procedural unfairness resulted.

A New Test for Interim Mandatory Injunctions

BLeBlanc_Webby Bernie LeBlanc
April 19, 2018

Often a major dispute in a proceeding is who has to do what until the matter is finally decided. Courts frequently rely on the status quo so if one side wants to preserve it in the face of a proposed regulatory change, they traditionally only had to prove that there is a serious issue to be considered, they will suffer “irreparable harm” and the “balance of convenience” favours their position: RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311, http://canlii.ca/t/1frtw.

More recently, the Supreme Court of Canada recently stated that if a party wants to order the other party to do something, their position has “such merit that it is very likely to succeed at trial”: R. v Canadian Broadcasting Corp., 2018 SCC 5, http://canlii.ca/t/hq979. In the CBC case the court refused to order a media outlet to temporarily remove articles identifying a victim posted before an order banning publication was made because it was not clear that the application to permanently do so would succeed.

Even more recently, in Moore v The Law Society of British Columbia, 2018 BCSC 386, http://canlii.ca/t/hr06v, the Court confirmed this new test on an interim request to remove the restrictions imposed on a lawyer’s licence pending a full hearing on the validity of those restrictions. Ultimately the Court did not have to assess the strength of the applicant’s case because the balance of convenience favoured the regulator.

One can see this new test becoming an issue when a regulator seeks an interim injunction compelling an unregistered practitioner to stop practising or to cease using a protected title. This new test is less likely to become an issue for interim suspension orders during investigations or hearings because the legislation often imposes its own legal test for making the determination (i.e., likely to expose a client to harm or injury).

Internal Appeals

Maciura_Julie_5038by Julie Maciura
April 16, 2018

Some regulators provide the ability for internal appeals of registration, complaints or discipline decisions. Often the question is: should those appeals be like appeals to a court, where the parties make submissions on the basis of the record before the first tribunal, or should there be a complete redoing of the hearing with oral evidence and fresh submissions? In Dorn v Association of Professional Engineers and Geoscientists of the Province of Manitoba, 2018 MBCA 18, http://canlii.ca/t/hqx9j, Manitoba’s highest court gave guidance on the issue. It applied the following principles:

  1. Where the legislation is not clear, the usual presumption is that an internal appeal will be an appeal based on the record (e.g., the transcript and exhibits) from the first hearing and is not a redoing of the entire hearing.
  1. This presumption can be rebutted by clear, not ambiguous, statutory language.
  1. Where the regulator has the authority to make regulations or by-laws on the subject, the regulator has significant discretion to design an appropriate appeal mechanism for itself.
  1. Even where an appeal is on the record of the first hearing, the appellate body generally has discretion to permit oral evidence on some issues.

Regulators would be wise to clarify the appeals process where it is permitted to do so in a regulation or by-law.

Ungovernability: The Sequel

ERichler_Webby Erica Richler
April 12, 2018

Being found to be ungovernable twice in two years is quite a feat. This happened to a Manitoba nurse in Kuny v College of Registered Nurses of Manitoba, 2018 MBCA 21, http://canlii.ca/t/hqx9l. In that decision “the Discipline Committee found that Kuny had, by his actions and words, refused to accept the authority or take direction from his governing body and was therefore ungovernable.” Without going into detail, the Court held that this finding was well supported by the evidence. The Court also upheld an order cancelling the nurse’s registration and imposing $30,000 in costs as reasonable in the circumstances. The Court indicated that this was the second finding of ungovernability, which was an aggravating factor. The Court did state that a lack of remorse cannot be an aggravating factor resulting in a more severe sanction, but could be a reason for not otherwise extending leniency. In this case the tribunal had not commented on the lack of remorse when dealing with penalty. Rather, it had only indicated that he had failed “to accept responsibility or to be accountable for his actions” when discussing the issue of ungovernability, which was appropriate.

The “I Did Not Receive the Email” Defence Fails

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by Rebecca Durcan
April 9, 2018

In The Law Society of Manitoba v Alghoul, 2018 MBCA 23, http://canlii.ca/t/hqx9n, a lawyer was sent numerous emails from an adjudicator which he did not answer. Ultimately the adjudicator had to contact the lawyer’s firm to obtain the information. The proceedings were compromised because of the delay. The adjudicator made a complaint to the regulator. In response to the complaint the practitioner acknowledged receiving the emails and explained that his failure to respond was due to travel and personal issues. Just prior to the discipline hearing the practitioner asserted that the emails went into a junk file folder of an inactive email address and he therefore had not received the emails. The discipline tribunal rejected these explanations and concluded that his earlier admissions were more accurate. It held a hearing and found that the conduct involved a continuing failure to display “candour, courtesy and respect” and was unprofessional. It imposed a reprimand and awarded $28,000 of costs against him in part because of the manner in which he conducted his defence. The Court upheld the finding and order as reasonable.

While the facts of this case are somewhat unusual, the outcome indicates that regulatory bodies can infer that emails were received, particularly where there is a delay in the assertion that they were not received. The case also indicates that significant cost implications can be imposed where a practitioner departs from their initial response to the complaint at a subsequent discipline hearing.

Regulator Implements Anonymous Tip Line Recommendation

BLeBlanc_Webby Bernie LeBlanc
April 3, 2018

The groundbreaking June 2016 report of the Independent Advisory Group into the regulation of the real estate industry in British Columbia contained the following recommendation:

  1. The Real Estate Council implement confidential reporting channels (for example, reporting hotlines or whistle-blower programs) for industry and the public, to facilitate reporting of licensee misconduct.

Very few regulators encourage anonymous reports for a number of reasons. It is difficult (although not legally impossible) for an anonymous tip to constitute reasonable and probable grounds to support the initiation of an investigation. Even if an investigation can be initiated, it may be difficult to investigate effectively without a witness. In addition, approaching a practitioner about a serious abuse of trust without possessing some evidence can result in the identification of the anonymous reporter (through the details reported), increasing the risk of either interference with the reporter /witness or the concealing of evidence. It takes a great deal of skill and effort to screen anonymous tips for relevance and to combine them with other information (e.g., already on file or contained in other anonymous tips). This sort of time investment is necessary because an apparently innocuous, seemingly malicious or ostensibly incomprehensible report could, in fact, relate to significant misconduct or incompetence. Failing to investigate such reports, if they do turn out to have merit, makes it appear retrospectively that the regulator “missed it”. Many practitioners feel it is unfair to be subject to an investigation without being able to comment on the credibility or motivation of their accuser. And there is, of course, the potential for a complaints/reports program to be abused by those with a personal grudge or by a competitor.

Despite these concerns the Real Estate Council of British Columbia has implemented the recommendation. Reports can be made either online or by telephone. Reporters are requested to complete a detailed form. Areas of possible reporting are identified with an emphasis on concealed or consensual misconduct that might not otherwise become known (e.g., secret commissions). Practitioners are reminded that filing an anonymous tip does not satisfy their mandatory reporting requirements, which must be made with the reporter’s identity revealed. For more information about the confidential reporting initiative, see:
https://www.recbc.ca/licensing/about-tipline.html.

It will be interesting to watch unfold any discipline proceedings (and potential court challenges) that result from these anonymous reports.

What Constitutes a Final Decision?

ERichler_Webby Erica Richler
March 26, 2018

Appeals of most regulatory decisions are only available if the decision is final. In civil cases, there has been much litigation about what constitutes a final decision for the purpose of determining the appropriate appeal route. In that context, a decision will be considered final if the ruling deprives a party of a “substantive right which could be determinative of the entire action”.

In The Law Society of Upper Canada v. Piersanti, 2018 ONSC 640, http://canlii.ca/t/hqjnd the disciplinary tribunal made an evidentiary ruling accepting the findings of fact of a trial judge in a civil case as binding on the practitioner. The tribunal would not allow the practitioner to challenge (or re-litigate) those findings of fact. The practitioner attempted to appeal that ruling, both internally to an appeal committee and in the courts. The tribunal had not yet made a decision with respect to the alleged misconduct or penalty.

The Divisional Court declined to hear the appeal and held that the test for finality used in civil cases did not apply. The Court indicated that in regulatory proceedings there is a high value in allowing the proceedings to be completed before appeals are considered. Given the public protection mandate of regulators, their non-legal structure and the practical problems created by interrupting the process, the Court determined that in most cases the hearing process should run its complete course before there is recourse to the courts. A final decision in regulatory cases is one in which all matters have been determined. Then, if necessary, a party can challenge the entire process in one appeal.

Dropping the F Bomb

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by Rebecca Durcan
March 21, 2018

Is it always professional misconduct for a practitioner to use profanity? In Johnson v. Law Society of British Columbia, 2018 BCCA 40, http://canlii.ca/t/hq732, the Court supported a finding that a lawyer “dropping the F Bomb” in a courthouse corridor directed at a police officer who was a witness in his court case “constituted a marked departure from the conduct the Law Society expects from its members”. The Court accepted that there may have been provocation by the police officer (who later arrested the lawyer when their “chests or stomachs” touched), but deferred to the expertise of the professional regulator. However, it was clear from the Court’s reasons that it accepted the proposition that not every profanity by a practitioner was professional misconduct and that the regulator needed to examine the circumstances of each case.

The Next Step in Combatting Sexual Abuse

Maciura_Julie_5038by Julie Maciura
March 16, 2018

The government is consulting on three separate regulations as part of its ongoing efforts to eradicate sexual abuse by health care practitioners. In the first, it includes as part of the definition, for the purpose of the sexual abuse provisions, of a patient a person with whom a practitioner has direct contact and where the person is billed, is the subject of a record entry by the practitioner, provides consent to treatment recommended by the practitioner, or is prescribed a drug by the practitioner. (Keep in mind that the Code itself, when the amendments are in force, will also include a definition of patient that does not “restrict the ordinary meaning of the term” and that will impose a one year “cooling off” period on sexual relationships with former patients.) Excluded from the definition of patient for the purposes of the sexual abuse provisions are persons with whom the practitioner already has a sexual relationship and who is treated only during an emergency.

The second regulation requires the practitioner to be revoked if found guilty of a sexual offence under the Criminal Code.

The third regulation requires the public register to provide information about practitioners: criminal charges and findings, conditions of release after arrest, and registration status and misconduct findings in other jurisdictions.

The consultation period on these regulations is remarkably brief and ends on March 22, 2018. That and the fact that the consultation is upon final legislative language suggests an intention to enact the regulations before the election this June.

Showing Respect

BLeBlanc_Webby Bernie LeBlanc
March 12, 2018

Most professions require their practitioners to show respect to their clients and colleagues. One of the central issues in Sullivan v. Ontario College of Teachers, 2018 ONSC 942 was on how to interpret this duty. Mr. Sullivan was a teacher who had concerns about vaccinations. There was a vaccination clinic for the students at his school. Mr. Sullivan left his class unattended to express his concerns about whether the nurse staffing the clinic was obtaining truly informed consent. His comments were found to be aggressive and intimidating (e.g., questioning whether the students were being told that one of the side effects of vaccination was death). Some of Mr. Sullivan’s comments were heard by and, in one case, directed at students. The Discipline Committee found that Mr. Sullivan’s conduct demonstrated a lack of respect to the nurse and the students (as well as his class which was left unattended).

On appeal, Mr. Sullivan argued that he was demonstrating respect to his students by trying to ensure that they gave truly informed consent, which he honestly believed was not occurring. The Court held that the issue of informed consent was between the students, their parents and the nurse. Mr. Sullivan had no role in the matter. The Court also held that it was reasonable for the Discipline Committee to find that Mr. Sullivan’s method of intervening did not honour the principle of respect.

Short Term Gain for Long Term Pain

Maciura_Julie_5038by Julie Maciura
March 5, 2018

When there is a public outcry about extremely inappropriate behaviour alleged against a practitioner, the regulator often feels compelled to reassure the public that such conduct is not acceptable. However, those public statements can then be used as ostensible proof of prejudgment when the regulator addresses the concerns through its investigation and discipline process. That is what occurred in Calandrini v. Canada (Attorney General), 2018 FC 52. The conduct in issue related to reported acts of nudity, sexual harassment and even assault by an RMCP police officer towards his male colleagues. When the media picked up the story, the Deputy Commissioner of the RCMP said:

When this came to our attention, we were appalled at what the allegations were. I found it hard to believe that in this day and age that this kind of behaviour would take place in our organization or anywhere else. It is completely unacceptable behaviour. It is abhorrent. The kind of behaviour that was alleged is completely in opposition to our core values.

The Court applied the following test as to whether these comments created an appearance of bias:

To find that discretion has been fettered, the facts before the Court must give rise to a reasonable apprehension that the decision-maker treated another individual’s views as binding or conclusive, without the need to consider any other factors or to conduct an independent analysis.

The issue was complicated by the fact that the concerns had already been addressed informally. That informal resolution was then subject to review. During that review process the media raised concerns about the case. The officer conducting the review referred the matter to a discipline hearing. However, in reviewing the entire file (including the steps taken before the media outcry, the notes by the screening person indicating that they did not discuss the matter with the Commissioner and the documentation about the processing of the concerns), the Court was satisfied that there was no fettering of discretion despite the comments made by the Commissioner.

Inferences vs. Speculation

ERichler_Webby Erica Richler
February 27, 2018

In a number of recent cases the courts have said that regulators should base their conclusions on evidence rather than speculation. What is often left unaddressed is the difference between drawing inferences from the evidence (which is permitted) and speculating based on the facts (which is not permitted). In Finkelstein v. Ontario Securities Commission, 2018 ONCA 61, the Court of Appeal for Ontario stated that reviewing courts should not intervene when a tribunal makes an inference from the evidence even if it is not the inference that the court would have made. The case dealt with insider tipping in the stock market where cases are almost always established through circumstantial evidence.

The Court then went on to accept the following definition of what constitutes an “inference”:

“An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion the trier of fact may, but not must, draw in the circumstances.”: David Watt, Watt’s Manual of Criminal Evidence, 2017 (Toronto: Thomson Reuters, 2017), §12.01.

The Court of Appeal reviewed the Divisional Court’s handling of the evidence and the reasons of the tribunal and concluded:

The function of a reviewing court, such as the Divisional Court, is to determine whether the tribunal’s decision contains an analysis that moves from the evidence before it to the conclusion that it reached, not whether the decision is the one the reviewing court would have reached: Ottawa Police Services, at para. 66. With due respect to the Divisional Court, it failed to do so in the case of the Panel’s decision about Cheng. Instead, it impermissibly re-weighed the evidence and substituted inferences it would make for those reasonably available to the Panel. That was an error. The findings of fact made and inferences drawn by the Panel in respect of Cheng were reasonably supported by the record.

The difference between drawing valid inferences and engaging in speculation is a subtle one. Tribunals should take care to explain the reasons for the conclusions they draw from the evidence.

You Gotta Come to the Party to Dance

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by Rebecca Durcan
February 21, 2018

A self-represented practitioner was referred to the Discipline Committee for failing to attend a caution before the Inquiries, Complaints and Reports Committee (Lum v. College of Physiotherapists of Ontario, 2018 ONSC 567). The practitioner did not attend their discipline hearing and a finding of professional misconduct was made. The practitioner then tried to appeal the decision on a series of procedural concerns. The Divisional Court held that failing to attend the hearing to raise the procedural concerns was sufficient to deny the appeal. This was so even though the practitioner was self-represented (“Ignorance of the law is not an excuse”). The Court also held that the grounds of appeal were without merit:

  1. That the hearing panel composition overlapped with the panel hearing a motion to exclude prejudicial evidence was neither unfair nor contrary to the panel’s rules of procedure permitting a separate panel to conduct preliminary motions;
  2. There is nothing prejudicial or unfair in the hearing panel referring to the history of the proceedings, including the practitioner’s attempts to obtain an injunction to prevent the hearing from proceeding;
  3. There is no duty on the regulator to specify which portions of the disclosure it will rely upon at the discipline hearing; and
  4. The sanction for failing to attend at the caution was a reprimand, a suspension until a particular course was successfully completed and costs of $4,500 was “a very reasonable one, having regard to the seriousness of the misconduct”.

Proving Patterns

BLeBlanc_Webby Bernie LeBlanc
February 16, 2018

One of the most difficult allegations to prove during discipline is regarding conduct that is only misconduct if it is done cumulatively. For example, being rude on one occasion rarely deserves sanction. However, a pattern of rude conduct may demonstrate a lack of professionalism particularly where the practitioner knows that there have been concerns and they have been warned about it. The conduct then moves from the category of inadvertence or a slip into the classification of deliberate or, at least, indifference to professional duties.

In MacLeod v Alberta College of Social Workers, 2018 ABCA 13, a social worker was alleged to have engaged in a pattern of rudeness towards clients, their families and colleagues along with a specific example on a specific day. The Court was concerned that the allegations were not sufficiently particularized to enable the practitioner to know the case he had to meet. In addition, even though the pattern of behaviour had been confined to a two-year window, evidence relating to his entire 25-year career was introduced without consideration as how the non-specified events should be used during the hearing. In fact, the Court was concerned that the finding made by the panel appeared to relate to conduct that was not contained in the notice of hearing, as broad as it was. The Court said:

Those findings might be supported by inferences drawn from evidence of related events, but those related events could not independently support a finding of professional misconduct, or expand the scope of the charges.

While the Court does not appear to require that a pattern of behaviour list every incident with specificity, regulators should be careful not to make general allegations of a pattern of vague conduct (i.e., “rudeness”) without ensuring that the practitioner is in a position to have a fair sense of the case they have to meet. And disciplinary tribunals should clearly identify how they have used unalleged or unspecified conduct in assessing the alleged events.

Relying on Stolen Evidence

Maciura_Julie_5038by Julie Maciura
February 13, 2018

What does a regulator do when someone brings stolen information demonstrating serious misconduct on the part of a practitioner? Is it permissible or appropriate to use the information? The Ontario Judicial Council had to deal with this issue in the case of the Honourable Justice John Keast. An unnamed person surreptitiously copied text messages from Justice Keast’s phone and gave them to the local Children’s Aid Society (CAS). The texts revealed highly inappropriate comments by Justice Keast to an employee of the CAS making derogatory comments about other employees of the CAS and about the CAS itself. Justice Keast also attempted to obtain confidential information from his friend. At the time Justice Keast had a case before him involving the CAS and regularly dealt with other CAS cases. Justice Keast tried to exclude the texts from evidence because they were stolen.

The Council admitted the texts. Neither the Council nor the CAS had encouraged the individual to steal the information. And the individual who took them was acting in a private capacity thus making the Canadian Charter of Rights and Freedoms inapplicable. The Council said:

… in a hearing to determine whether judicial misconduct took place, it is virtually inconceivable that the administration of justice would be better served by excluding the evidence of the alleged misconduct, rather than admitting it.

Justice Keast thereupon admitted his misconduct. He was reprimanded, ordered to make certain apologies and was suspended without pay for thirty days.

The Council’s decision is available online: http://www.ontariocourts.ca/ocj/ojc/public-hearings-decisions/d2017/

Over-Broad Disclosure Requests

ERichler_Webby Erica Richler
February 8, 2018

Occasionally practitioners argue that they have been singled out for regulatory action in ways that other members who have engaged in similar conduct are not. In order to make such an argument, the practitioner would need to demonstrate details about how other members were treated. Often these other cases are not in the public domain. So the practitioner seeks disclosure of the other cases in order to make the selective prosecution argument. The Law Society of British Columbia v. McLean, 2017 BCCA 388 was one such case.

The allegation was that Mr. McLean had not paid his accounts to court reporters and had not communicated transparently with them about the payment of those accounts. Mr. McLean sought disclosure of “all complaints it [the regulator] had received since its inception regarding late payment of debts, and particulars related to those complaints”. The regulator (and the disciplinary tribunal) refused the request on the basis that it would involve the disclosure of confidential information, that the request was overly broad and unworkable and that the information would not assist Mr. McLean in his defence on the merits. The Court upheld the refusal, particularly because of its broad nature.

This is not to say that a request for access to other regulatory files of a similar nature will always be refused. However, an overly broad request made on a speculative basis is likely to experience a similar fate.

When is a Breach of the Law in One’s Private Life Misconduct?

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by Rebecca Durcan
February 5, 2018

For most professions, the reach of the regulator extends to one’s private life in some circumstances. Typically, dishonesty or breach of trust outside of one’s practice constitutes professional misconduct. How about honest mistakes? This issue arose in College of Physicians & Surgeons Alberta v Ali, 2017 ABCA 442, where the practitioner inaccurately completed forms and failed to fulfill other disclosure obligations in the course of his bankruptcy proceedings. The disciplinary tribunal found that he had not done so deliberately. However, it found that he had failed to exercise the thoroughness and take the care expected of a physician in the circumstances. The majority of the appellate Court said:

… the issue was not whether the off-duty conduct reflected on the individual’s competence as a professional but whether it could affect the public’s confidence in the profession or the reputation of the profession when the individual’s private behaviour fails to meet the standards of conduct expected of a member of that profession….

In the view of the Hearing Tribunal, the public would expect members of the medical profession to act with the highest professional and personal integrity. A member in financial difficulty would be expected to take appropriate steps to comply with bankruptcy obligations and be honest and thorough in dealing with the Trustee in Bankruptcy. The public would be unlikely to support a physician who had gone into bankruptcy and continued to earn a very substantial income from the profession, while disregarding his obligations to his creditors.

The majority of the Court found this explanation to be reasonable. A dissenting Justice, however, felt that the making of honest mistakes in these circumstances should not amount to professional misconduct.

It probably did not help the practitioner’s case that he had failed to promptly pay the regulator fees and had failed to cooperate in setting up a meeting with a representative of the regulator when asked to do so.

The Court also gave short shrift to the practitioner’s argument that there was an appearance of bias because other lawyers in the large firm of the independent legal counsel had acted against the practitioner in a small, unrelated matter some years before. The Court also upheld the sanction of a reprimand and payment of $65,000 in costs.

Considering Past History When Imposing Disciplinary Sanctions

BLeBlanc_Webby Bernie LeBlanc
February 1, 2018

In Thistle v. Law Society of Newfoundland and Labrador, 2017 CanLII 86502 (NL SCTD), a practitioner was disciplined for inappropriate conduct in mortgage transactions. The main issue on appeal was the appropriateness of the sanction. The practitioner had a complaints history involving letters of caution and warnings. The Court said that some weight could be placed on this history even though no disciplinary finding had been made:

Recognizing that the test for a decision of the Committee falls short of a finding of guilt, I can see no fault in the Tribunal’s consideration of the letters of caution and letters of counsel, as part of the Appellant’s overall conduct history with the Law Society. In the context of the Tribunal’s decision on sanction, the fact that on several prior occasions the Committee formed the opinion that there were reasonable grounds to believe the Appellant’s conduct was deserving of sanction, should not be ignored. Rather, the question is one of how much weight to be attributed to this part of the Appellant’s conduct history. For example, a finding of guilt for professional misconduct might weigh more heavily against the Appellant, than a letter of caution arising from the reasonable opinion of the Committee. Each is relevant, however, and in this case the Appellant’s conduct record contains both.

The Court also said that some consideration could be given to other conduct of concern even though it had not been dealt with before the conduct in issue at the discipline hearing. While it could not be said that the practitioner had failed to learn from the other matter, it was still part of his prior history that could be considered.

Disclosure Duty Applies only to Relevant Information

Maciura_Julie_5038by Julie Maciura
January 29, 2018

In Peters v. The Law Society of Upper Canada, 2017 ONSC 7142, the practitioner was alleged to have failed to fulfill her professional obligations including failing to attend scheduled court dates in a number of cases. She sought disclosure of the investigation files of other practitioners involved in two of those cases. The regulator refused even though those files dealt with clients shared with Ms. Peters. The Court agreed:

Given that the conduct at issue in the R matter concerned Ms. Peters’ failure to attend court on three occasions and her failure to pay a costs order, it was reasonable for the Hearing Panel to conclude that a complaint against the opposing lawyer in the same proceeding had no relevance. It was Ms. Peters’ conduct that was at issue, not the opposing lawyer’s. In the C matter, the complaint was against a paralegal that Ms. Peters’ client had retained before she retained Ms. Peters. Again, it was not unreasonable to find that this complaint had no relevance to the allegations against Ms. Peters, which concerned her conduct, not that of the paralegal.

The implication of this decision is that the files of the regulator’s investigation of other practitioners can be disclosed where relevant. However, disclosure can be safely refused where the other files do not relate to the actual allegations against the practitioner even if there is some connection between the cases.

The Divisional Court also refused to hear an argument on appeal about delay by the regulator where the issue was not raised at the hearing and the court would not have a proper record to consider (e.g., the regulator’s explanation for the apparent delay).

Only Obtain Information at the Hearing

ERichler_Webby Erica Richler
January 25, 2018

Hearing panel members are often tempted to find out more about the case before them. It may be because of general curiosity. It may be because of a sense that there are things they are not being told. It may be because it is difficult for panel members to be passive during the hearing. However, under our adversarial legal system it is important that hearing panels obtain all of the information in the hearing room and in the presence of all parties.

In Kadioglu v Real Estate Council of British Columbia, 2017 BCSC 2252 (http://canlii.ca/t/hp6c1), the chair of a disciplinary hearing panel sent an email to the hearing staff support person requesting details about the investigation that had taken place in the case before them. A copy of the email was also sent to the regulator’s legal counsel. Independent legal advice was obtained that the chair should recuse himself from the panel, which he did. The remaining panel members completed the hearing and a finding was made against the practitioner.

The practitioner appealed and argued that he was denied procedural fairness (among other things). The practitioner relied on the chair’s email and subsequent recusal to argue that the chair must have had “misgivings” about whether due process had been followed prior to the hearing. The practitioner argued that the chair “resigned from the panel since he obviously felt that [the practitioner] was not being treated with procedural fairness and the Committee was turned into a kangaroo panel.”

The appeal court held that the practitioner’s assertions were “clearly wrong” and his appeal was dismissed. Nevertheless, the case serves as a caution to hearing panel members about the need to confine their information gathering to the hearing room itself.

Continuing Credibility Confusion

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by Rebecca Durcan
January 22, 2018

Perhaps one of the most difficult tasks for a lay disciplinary tribunal is articulating the reasons for a credibility finding. In Ahmed v College of Registered Nurses, 2017 MBCA 121, the panel relied upon the testimony of the patient in order to make a finding of sexual abuse.  However, two difficulties arose in the panel’s assessment of the patient’s credibility. The allegations centred on whether the nurse’s examination involved the sexual touching of the patient’s breasts and labia. The Court found the panel’s decision unreasonable for two reasons.

The first was that the panel did not address whether the patient might have been honest but mistaken about the touching. While at first this conclusion might sound surprising given that there was expert evidence that the examination of this patient’s condition should not have involved the touching of those areas, the court remained troubled that the distinction (between honesty and reliability) was not discussed in the reasons. The patient’s “physical and emotional state on the night in question” may have affected her capacity to perceive and recall the events accurately. In addition, the Court was troubled at the number of inconsistencies in the patient’s various statements and said:

It is, of course, one thing to find one or two inconsistencies on peripheral matters to be immaterial; it is quite another to find a dozen or more inconsistencies to be immaterial without considering whether all of them, taken together, demonstrate an absence of reliability.

The second concern was that the panel appeared to use the patient’s prior consistent statements as proof of the credibility of her evidence. While prior consistent statements are sometimes helpful (e.g., to rebut an assertion that the witness is changing their story), it cannot be used “as evidence of the truth of the complainant’s in-hearing testimony”.

The finding was overturned and the Court sent the matter back for consideration of whether another hearing was warranted.

Disability Not Necessarily a Basis for Nullifying an Unsuccessful Examination Attempt

BLeBlanc_Webby Bernie LeBlanc
January 18, 2018

Regulators offering a limited number of examination attempts face frequent requests to nullify an attempt by candidates who have been unsuccessful the maximum number of times. Increasingly, the basis for such requests is grounded in a disability, often temporary, of the candidate. In Martino v. College of Nurses, 2017 ONSC 6892, the Divisional Court found that it is sometimes reasonable to refuse such a request. Her request was summarized as:

her personal circumstances that her mother had died about a year before the attempt and she suffered depression and anxiety as a consequence, and she was taking medications with side effects such as blurred vision, headaches, anxiety, depression, drowsiness and fatigue. She submitted a report from a registered psychologist which stated that the medications “can, in fact, lead to a state of drowsiness, fatigue and confusion.”

The Court said:

The appellant had the onus to establish her mental and emotional state at the time of the examination and the direct impact of those circumstances on her inability to comprehend their effect on her examination performance. The evidence respecting her state of mind at the time of the first examination was essentially limited to that of the appellant. Ms. Hannell [the psychologist] did not assess the appellant around the time of the first examination; rather, she relied on the appellant’s own account of the history of her condition in making her report. More importantly, Ms. Hannell did not give an opinion that the appellant was confused at the time of the first examination, nor that the appellant was unable to comprehend her inability to pass the examination.

The [reviewing] Board concluded that the appellant could have and should have assessed the side effects of her medications and the impact of her mother’s death well before the examination. That is a reasonable conclusion, given that the appellant’s mother died a year earlier, and the appellant had been taking the medications for some time before the examination.

The Board expressed sympathy for the appellant’s situation. That does not mean the Board found her evidence persuasive, as her counsel argues.

The Board considered the evidence and found that it did not demonstrate exceptional circumstances that would warrant the extraordinary relief of the annulment of the first examination.

Guidance on Interpreting Frivolous and Vexatious Provisions

Maciura_Julie_5038by Julie Maciura
January 15, 2018

Many regulators have a provision permitting them to not proceed with complaints that are frivolous, vexatious, made in bad faith, an abuse of process or moot. Ontario’s Divisional Court provided guidance on the interpretation and application of such a provision in Catford v. The Health Professions Appeal and Review Board, 2017 ONSC 7411. In that case, Dr. Catford, a physician, was involved in acrimonious litigation with her uncle. In the course of that litigation, Dr. Catford expressed concerns in a letter about her uncle’s conduct towards his own daughter as well as towards Dr. Catford herself. A complaint about the letter resulted in no action against Dr. Catford other than a warning about its wording. The uncle pursued the matter against a number of other individuals and then made a fresh complaint against Dr. Catford generally related to the same conduct. The regulator declined to process it and the review Board declined to consider it on the basis that the complaint “was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process”.

The Divisional Court found the Board’s decision to be reasonable. It made the following points that will be of interest to regulators:

  • The provision permits the regulator (and review Board) to decline to deal with a complaint that “clearly has no merit, seeks to re-litigate a claim already decided or is brought for an improper purpose”.
  • This authority to decline to deal with a complaint is “consistent with the court’s determination of when a proceeding is frivolous, vexatious or an abuse of power”.
  • Factors that are relevant to the determination include situations where the dispute in which the conduct occurred is a personal one, the relevance of the conduct to the practice of the profession, any other unsuccessful proceedings (including against third parties) in which similar issues are raised, whether there is a better forum for the complainant to have raised the concerns, and whether the complaint appears to be made for an ulterior or improper purpose.
  • The previous complaint does not have to be identical to fit the criteria; it is sufficient if the previous complaint is about essentially the same issue.

While declining to deal with a complaint will continue to be a rare and exceptional outcome, there are cases in which it is an appropriate decision for a regulator.

Cross-Border Internet Practice

ERichler_Webby Erica Richler
January 12, 2018

Yesterday an important decision was rendered by the Ontario Superior Court on the cross-border internet practice of professions. In College of Optometrists of Ontario v. Essilor Group Canada Inc., 2018 ONSC 206, two regulators (the College of Opticians of Ontario was also a party) obtained an injunction against a major internet supplier of contact lenses and eyeglasses requiring it to comply with Ontario rules relating to dispensing eyewear. Essilor (the parent of Clearly and Coastal) operated out of British Columbia. Essilor tried to portray the application as turf protection to guard the commercial interests of optometrists and opticians. The Court viewed that argument as irrelevant; the issue was whether the online dispensing of lenses and eyeglasses was permitted by the legislation.

The Court first addressed whether the actions of Essilor breached the Ontario legislation by “dispensing” eyewear, which is a controlled act. The Court noted that while the controlled act scheme in the legislation was designed to prevent harm, one had to interpret the language of the provision and not conduct a risk-assessment of the specific conduct in the case. The Court concluded “that ‘dispensing’ is not a singular act but a series of acts that encompass the making, adjustment (fitting) and delivery of” eyewear. Under the Essilor business model, no Ontario-registered practitioner was responsible for performing these functions. That outcome was contrary to the purpose of the provisions (i.e., ensuring the provision of proper health care by qualified and authorized professionals). It was evident to the Court that Essilor was making and delivering contact lenses and eyeglasses.

The second issue was whether Ontario legislation applied in circumstances where almost everything Essilor did occurred in British Columbia. The Court indicated that it should not take an “old-world understanding of place and time”. The location of the action should not be assessed on a purely commercial transaction basis (i.e., where was the contract made?), as is done under the Civil Code in Quebec. Rather, location should be determined in a manner consistent with the purpose of the provisions. Under this approach the Court looked for whether there was a “sufficient connection” between the conduct and Ontario. The Court said that a “purposive analysis of the legislation demonstrates that this situation is best characterized not as a contract for the sale of eyeglasses, but as the delivery of health care.”

The Court engaged in a fascinating discussion of the location of events over the internet. It cited authorities viewing such interactions as occurring “both here and there”. The Court concluded that where the order was placed by an individual in Ontario and the eyewear was received in Ontario, presumably to be used in Ontario, there was a sufficient connection to Ontario. “To find otherwise would mean the eyeglasses are provided without obligation to adhere to Ontario regulation.” The Court was also not swayed by the fact that ordering lenses and eyeglasses online was permitted in British Columbia; such a change in the law in Ontario should be done by the legislature, not the courts.

In passing, the Court noted that the regulatory rules of Ontario also applied to internet practice within Ontario. Internet providers that are based in Ontario and dispense eyewear to Ontario clients need to comply with all Ontario rules.

This case provides some urgently needed clarity on the issue of cross-border internet practice.

[NB This decision was reversed on appeal at 2019 ONCA 265. Leave to appeal to the Supreme Court of Canada was refused at 2019 CanLII 96491 (SCC). For more information see: https://www.sml-law.com/wp-content/uploads/2019/04/Greyar235.pdf.]

A Nice Summary

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by Rebecca Durcan
January 8, 2018

Courts sometimes provide a summary of the law that is so concise and clear that they are of enormous assistance to regulators. In The Law Society of Upper Canada v. Hatzitrifonos, 2017 ONSC 6759, one can find such a summary. The regulator obtained an injunction against Mr. Hatzitrifonos from practising law. He ignored it. The regulator brought a civil contempt motion. The Court summarized the test as follows [citations omitted]:

It is well established that there is a three-part test for a finding of contempt of court, as set out by the Supreme Court of Canada in Carey v. Laiken:

  1. The order that was breached must clearly and unequivocally state what should or should not be done;
  2. The party who disobeyed the order must have had actual knowledge of it; and
  3. The party alleged in breach intentionally did the act the order prohibits or intentionally failed to do the act the order compels.

The elements of the contempt must be proven on the basis of the criminal law standard, namely, proof beyond a reasonable doubt. Moreover, the contempt power is discretionary and should be utilized as an enforcement power of last rather than first resort. At the same time, the party subject to the court order must comply with both “the letter and the spirit of the order”; a party cannot hide behind a restrictive or literal interpretation of an order in order to circumvent it, as this would make a mockery of the order and the administration of justice. Moreover, it is not necessary to prove that a person deliberately intended to breach a court order. It is sufficient if the person in question intentionally performed the act which is in fact prohibited by the order.

The Court also gave this description as to the importance of ensuring compliance with its orders [citation again omitted]:

It has long been observed that the judiciary controls no purse and commands no army; its power comes from words alone. It is precisely for this reason that it is critical that the decisions and orders of the courts be generally respected and observed. The deliberate flouting of court orders, if tolerated or permitted, will inevitably erode the public respect accorded to court decisions, thereby undermining an independent judiciary and the rule of law itself.

Is Providing One’s Views Different from Giving Advice?

BLeBlanc_Webby Bernie LeBlanc
January 4, 2018

In Law Society of British Columbia v Sprague, 2017 BCSC 2025 the regulator sought an injunction against Mr. Sprague for practising law. Mr. Sprague argued that he did not provide legal advice. He said that he merely expressed his views on a legal matter. He argued that doing so was protected by the freedom of expression guaranteed under the Canadian Charter of Rights and Freedoms. Mr. Sprague also asserted that he was not paid for providing legal advice but only for spending his time with the individuals consulting him. He also indicated that the demand letter he signed on behalf of one person was simply a dictation he transcribed on behalf of the individual.

The Court concluded that it should look at the substance of the interactions and concluded that Mr. Sprague was clearly practising law. The injunction was granted.

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