2019

REGULATION PRO – 2019

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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.

The Legality of Government Directives

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by Rebecca Durcan
December 23, 2019

With increasing frequency, governments have been using informal directives to implement policy rather than the more traditional and formal instruments like regulations and by-laws. A recent decision constraining the authority of government to rule through directives has important implications for autonomous agencies.

In Canadian Federation of Students v Ontario, 2019 ONSC 6658, http://canlii.ca/t/j3hcc the Cabinet of Ontario issued a mandatary guideline that universities ensure the fees it charges students for student organizations be optional. The Divisional Court found that universities were independent of government and there was no authority under the enabling legislation for the Cabinet to issue a directive on this matter. The fact that a significant portion of the funding of universities came from government did not authorize government to impose this restriction on its funding without statutory authority. The Court was unwilling to imply the authority of government to impose this sort of restriction where the enabling statutes were silent on the point.

The enabling statute of many regulators provides some authority for the relevant Minister to intervene in the affairs of the regulator. However, according to this case, that authority (and whether it is to be exercised informally or formally) likely goes no further than what is expressly described in the statute.

Judicial Scrutiny of Delegated Regulation

by Bernie LeBlanc
December 19, 2019

The Ontario Court of Appeal has rejected the proposition that courts should closely scrutinize the general transparency, accountability and adequacy of funding of delegated regulators: Ontario (Attorney General) v Bogaerts, 2019 ONCA 876, http://canlii.ca/t/j3d8n. In particular, the Court overruled the creation of a novel constitutional principle expanding the scope of the review of delegated regulation under “fundamental justice” principles:

I have no doubt that it would be a good idea and sound public policy to make all law enforcement bodies subject to reasonable standards of transparency, accountability and adequate funding and that they be properly funded. But not all good ideas and sound public policies are constitutionally protected or mandated. Our task is not to decide what would be sound policy. We are charged with the more specific task of deciding what the Constitution requires ….

The Court concluded that none of the three requirements for establishing a novel constitutional principle requiring delegated regulators to be transparent, accountable and adequately funded were met in this case:

  1. To be a legal principle it must provide meaningful content; and avoid the adjudication of policy matters;
  2. It must be “vital or fundamental to our societal notion of justice”; and
  3. It must be “capable of being identified with precision and applied to situations in a manner that yields predictable results”.

The Court also found that the specific provisions relating to entry onto premises to help animals in distress were constitutional under existing legal principles. In the regulatory context involving a pressing social need, the provisions relating to search and seizure were reasonable. In addition, the “interference with bodily integrity or serious state-imposed psychological stress” did not rise to the level where the constitutional protections of liberty and security of the person were engaged to create a broader judicial authority to review search and seizure provisions.

This decision reinforces the concept of judicial restraint preventing the courts from intervening in legislative policy decisions unless those decisions also infringe on established legal principles.

Responsibilities of a Designated Manager

by Julie Maciura
December 12, 2019

Some professions require that a registrant be responsible for the overall policies and procedures of a practice. For example, the Ontario College of Pharmacists imposes responsibilities on a designated manager. Each pharmacy must have one. The case of Jaffer v Ontario (Health Professions Appeal and Review Board), 2019 ONSC 6770, http://canlii.ca/t/j3lh5 raises the issue of the duties of the designated manager where a serious error was made by another registrant. In this case, if the other registrant had followed the policies and procedures in place in the pharmacy at the time, the error would not have occurred. The regulator imposed remedial measures on the designated manager because he had not used the error as an opportunity to review the policies and procedures to see whether improvements could be made to prevent future mistakes. The designated manager challenged the decision on the basis that he should not be held accountable for the human error of another registrant who had not followed existing policies. The Divisional Court upheld the remedial measures as reasonable. Designated managers are accountable for their own role where mistakes occur.

There were also issues about whether the regulator had been procedurally fair in giving adequate notice that the communications of the designated manager were in issue in the complaint and whether the prior history, including instances related to communications issues, would be considered. The Court concluded that the designated manager had been given adequate notice of the scope of the complaint and a sufficient opportunity to respond to the prior history.

The designated manager also challenged the failure of the regulator to address in its reasons the generally favourable inspection report that was released contemporaneously with the incident in issue. The Court indicated that a regulator’s reasons need not cover every point raised by the practitioner. The basis for the directed remediation was clear. The fact that the policies and procedures of the practice were generally acceptable did not detract from the need for the designated manager to respond appropriately to the error in this case.

The Court also provided some procedural guidance on judicial review of decisions by the Health Professions Appeal and Review Board (HPARB) in complaints matters under the Regulated Health Professions Act. The Court indicated that while the Inquiries, Complaints and Reports Committee can generally provide submissions on the merits of the decision (at least where the complainant does not appear), HPARB should not do so. The Court also indicated that where an inappropriate affidavit is filed on an application for judicial review, the party opposing its admission should bring a motion before the hearing to determine the affidavit’s admissibility so that the record before the Court can be finalized.

Precautionary Principle Does Not Prevail

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by Rebecca Durcan
December 5, 2019

What should a regulator do where:

  1. A novel procedure (in this case dealing with the disposition of deceased human bodies) is not being operated safely and ethically at the time of an inspection; and
  2. The procedure has not been established to be safe and has a potential risk associated with it?

In Registrar, Funeral, Burial and Cremation Services Act, 2019 ONSC 6091, http://canlii.ca/t/j2z22 the regulator applied the precautionary principle and proposed to revoke the crematorium operator licence. The Licence Appeal Tribunal declined to revoke the licence.

On appeal, the Court upheld the tribunal’s decision. On the first concern, the Court held that the premises were now operating in accordance with the rules and concerns about future non-compliance were speculative. On the second concern, the Court disposed of the matter on the basis of the regulator carrying the onus proof. The regulator had to provide evidence of risk of harm despite the absence of research on the method of disposition rather than the licensee having to provide evidence of its safety. The precautionary principle did not prevail.

The Registrar is seeking leave to appeal this decision.

No Discrimination Found

by Bernie LeBlanc
December 2, 2019

In the high profile case of Howe v Nova Scotia Barristers’ Society, 2019 NSCA 81, http://canlii.ca/t/j3085 a lawyer was found at discipline to have “been dishonest with the Court, made misrepresentations to the Court, demonstrated a significant lack of candour, was deliberately dishonest, failed to properly investigate client files, and failed to recognize conflicts of interest”. He was disbarred. On appeal the practitioner argued that the investigation and prosecution was tainted by racial discrimination and that he had been subject to differential treatment throughout his dealing with the regulator. The Court found that the hearing panel had carefully reviewed and considered the evidence it received over the course of 66 days. There was no legal error in the panel’s conclusion that the regulator was acting in response to legitimate concerns without discrimination.

The Court also found that the allegation of appearance of bias by one of the panel members on the basis of a pecuniary advantage in eliminating a competitor was, in the circumstances, without merit. The Court agreed with the panel that:

… “the impact of reducing the pool of criminal lawyers by one would have such a minimal impact on the number of clients for [the panel member] as to be insignificant. This cannot form the basis of a reasonable apprehension of bias by a reasonable person. [It] cannot form the basis to rebut the presumption of impartiality.”

BC Reforming the Regulation of Health Professions

by Erica Richler
November 27, 2019

The all-party steering committee formed after the publication of Harry Cayton’s report last April (see: https://www2.gov.bc.ca/assets/gov/health/practitioner-pro/professional-regulation/cayton-report-college-of-dental-surgeons-2018.pdf) has released a consultation paper with specific recommendations. The consultation paper includes the following recommendations for the modernization of the regulation of health professions in British Columbia:

  1. Governance. Regulatory Colleges should be governed by a Board consisting of 8-12 people, half of whom should be members of the public. Board members would be fairly compensated so that they are no longer viewed as volunteers. The Board would be selected through a competency-based process overseen by an independent oversight body.
  2. Reduction in the Number of Colleges. The twenty current Colleges would be combined into five Colleges: Nursing, Medicine, Pharmacy, Oral Health Professions, and all of the other currently regulated professions would be governed by the Health and Care Professions College.
  3. Oversight Body. An independent oversight body would be established. It will have a broader mandate than even the Professional Standards Authority of the UK. Its functions will include auditing, reviewing and investigating the performance of regulatory Colleges, creating template standards, approving regulatory College bylaws, recommending changes to the regulation of health professions, and operating a single public register of all practitioners.
  4. Complaints. Complaints would still be conducted by the Colleges through a more streamlined process with timelines for individual stages in the process. Agreements disposing of complaints will be public and placed on the public register. Colleges will also be able to make limited public comments about the nature and status of pending investigations. The complete prior complaints history of the practitioner must be considered by the Inquiries Committee. Colleges can share information and coordinate actions with other “health system stakeholders”. For example a complaint about a health care team could be coordinated by the affected Colleges so complainants only have to deal with one College and a consistent outcome results.
  5. Discipline. Discipline hearings will be removed from the Colleges and be conducted by independent, unified, discipline panels managed by the oversight body.

The consultation paper can be found at: https://engage.gov.bc.ca/app/uploads/sites/578/2019/11/Modernizing-health-profession-regulatory-framework-Consultation-Paper.pdf.
Submissions will be received up to January 10, 2020.

Registrar of Regulator Testifies as an Expert Witness

by Julie Maciura
November 25, 2019

Courts give regulators deference. In some cases that deference is quite broad. An example of broad deference is found in Pomarenski v Saskatchewan Veterinary Medical Association Professional Conduct Committee, 2019 SKQB 264, http://canlii.ca/t/j2x9z. The case dealt with a veterinarian’s care for an injured dog. During the hearing the Registrar, who was also a veterinarian, testified about the standard of practice that should have been applied. Despite the absence of notice of the expert testimony, the Court deferred to the tribunal’s admission of the evidence both because the tribunal was not bound by the civil rules of evidence and because the tribunal would have had its own expertise to apply to the facts of the case.

The Court also held that there was no double jeopardy as the five headings of misconduct were simply particulars of one allegation of professional misconduct.

The Court did set aside the costs order for paying all of the regulator’s costs (totalling $42,000) because the hearing panel did not follow a fair procedure in hearing evidence and receiving submissions justifying the specific amount, because the amounted exceeded past precedents and because the panel did not give reasons explaining how it arrived at its conclusion. The issue of costs was returned for a fresh decision.

Rare Order Stays Investigation of a Complaint

by Erica Richler
November 21, 2019

There is little doubt that it is rare for a Court to stay the simple investigation of a complaint pending the outcome of an application for judicial review challenging the investigation. However, Fawcett v College of Physicians and Surgeons of the Province of Alberta, 2019 ABQB 788, http://canlii.ca/t/j2s0s is such an exceptional case.

There, a lengthy and detailed complaint by a co-worker was made against a physician to her employer, a hospital. After a thorough investigation, the hospital dismissed the complaint. The co-worker then complained to the regulator for the physician. The regulator formally decided not to investigate the complaint being of the view it was primarily about work-related issues and did not, on its face, reveal any professional misconduct. The complainant appealed to the regulator’s internal Complaints Review Committee which determined that the complaint warranted investigation. The physician sought judicial review of that decision and requested a stay of the investigation while the judicial review was pending.

The Court granted the stay. It viewed the burden on the physician of responding to the detailed complaint as causing her irreparable harm:

… I am persuaded that a written response other than a blanket denial would be a time-consuming and repetitive exercise. Time alone is a precious commodity, and Dr. Fawcett is statutorily barred under the [the enabling statute] from seeking compensation from the College for either time or mental distress.

Given the above and given the delay in the matter reaching the College, the Court concluded that as between the physician and the College the balance of convenience favoured the physician.

The outcome might have been different if there had not been an initial decision by the regulator that the complaint was not worth investigating.

Some Protected Titles May be Unconstitutional

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by Rebecca Durcan
November 18, 2019

Many regulators have two types of title protection provisions. The first reserves a title associated with a profession for use only by those registered with the regulator. No unregistered person can use the title in any context. The second prohibits the use of any title that can confuse the public as to whether the individual is qualified or competent to practise the profession.

In a case that played prominently in the media, the first provision has been found to be an unconstitutional infringement of the freedom of expression protections contained in the Canadian Charter of Rights and Freedoms: College of Midwives of British Columbia v MaryMoon, 2019 BCSC 1670, http://canlii.ca/t/j2nn8. Ms. MaryMoon, who assisted individuals and families through the dying process, called herself a “death midwife”. The regulator for midwives sought an injunction to prevent her from using the title “midwife”. She opposed the restraining order on the basis that her use of the term had nothing to do with the practice of midwifery. She argued that no member of the public would be confused by her use of the title.

The Court concluded that the provision did infringe on Ms. MaryMoon’s freedom of expression. The Court also found that there was insufficient evidence justifying the necessity for the provision that did not mislead the public. In its reasoning the Court found that the public was adequately protected by the other provision prohibiting anyone from using a title or designation suggesting the person was qualified or competent to practice the profession while unregistered. The Court not only declined to issue the injunction, but also declared the provision to be unconstitutional.

The College has appealed.

Curing Procedural Deficiencies

by Bernie LeBlanc
November 15, 2019

Procedural missteps by a regulator can often be cured. In Volochay v College of Massage Therapist, 2019 ONSC 5718, http://canlii.ca/t/j2np8, serious allegations of sexual abuse had been set aside in 2011 by the Divisional Court because the regulator did not follow the specified complaints procedure. However, on further appeal in 2012, the Court of Appeal found that the practitioner had an adequate alternative remedy and the matter was permitted to proceed. The matter was subsequently investigated, resulting in a referral to discipline. The practitioner was found to have engaged in professional misconduct. On appeal from the discipline decision, the Court held that the initial procedural defects had been cured by the subsequent investigation and hearing process where the practitioner was given notice and an opportunity to participate.

The Court also declined to receive “fresh evidence” that was available at the time of the hearing, the authenticity and relevance of which was questionable. The Court further held that the alleged delay taken to investigate the matter did not amount to procedural unfairness or an abuse of process, particularly since the practitioner was able to practise in the interim and no specific prejudice was established.

The Court also found that the credibility findings were adequately explained in the reasons for the panel’s decision, when read as a whole. The reasons included the basis for finding that the practitioner’s evidence was not credible.

Accessing Files When Responding to a Complaint is not a Privacy Breach

by Julie Maciura
November 12, 2019

Prior to the enactment of private sector privacy legislation over the past couple of decades it was generally accepted that the filing of a complaint provided implied consent for the practitioner to review their files and make a response. This was true even if the access and response involved confidential client information. In JK v Gowrishankar, 2019 ABCA 316, http://canlii.ca/t/j26r6 the issue was whether privacy legislation altered this approach. In that case a patient made complaints against two practitioners about their treatment: one to the health facility and one to the regulatory body. For the complaint to the regulatory body the patient provided consent for the regulatory body to have access to the patient’s personal health information. However, the practitioners themselves accessed the patient’s files to respond to the complaint.

The patient then made a complaint to the Information and Privacy Commissioner about the practitioners accessing the patient’s personal health information to respond to the complaints. The designated delegate of the Commissioner found in favour of the patient. However, on judicial review both levels of the Court reversed the finding and held that the practitioners had not breached the privacy legislation. They relied on the statutory exception permitting use for “conducting investigations, discipline proceedings, practice reviews or inspections relating to the members of a health profession or health discipline”.

The Court of Appeal concluded that the practitioners were covered by the exception because the use of the information was related to the investigation and was not for their personal use:

Any investigation requires the gathering of relevant information. An investigation is also contextual in that the information gathered will depend on the nature of the matter being investigated. At a minimum, it requires information surrounding the matter under investigation. It also assists the investigation if the person being investigated provides their response to the matter at issue. The response of the person being investigated is not for their personal benefit but for the benefit of the investigation as a whole.

The Court warned that the access and use of the information would have to relate to the scope of the investigation and not go beyond that.

The Court also held that the consent signed by the patient for the regulator to have access to the patient’s personal health information also authorized the actions of the practitioners.

The Court concluded:

A reasonable interpretation of the [privacy statute] requires a balancing of the competing values identified in s 2 of the Act. The adjudicator’s interpretation gives prominence to the privacy of the individual over appropriate sharing and access of health information to manage the health system. A complaint to a professional governing body, like the College, engages potentially serious consequences to a physician including the loss of his or her license to practice. While the jeopardy faced by the physician is not that of a criminal proceeding, the physician must be able to respond to the complaint… An interpretation that fails to balance competing values is unreasonable…

While the pathway of legal reasoning is different from what existed before private sector privacy legislation, the outcome seems quite similar. In fact, the approach taken in this case might even support practitioners accessing and using personal client information where the complaint is made by someone other than the client.

Fishing Expeditions and Frustrated Investigations

by Erica Richler
November 5, 2019

Regulators do not have a duty to ensure that practitioners under investigation are satisfied that the investigation is well supported before the practitioner provides information to the regulator. In Cusack v Law Society of Ontario, 2019 ONSC 5015, http://canlii.ca/t/j284r the practitioner was under investigation for allegations that he permitted the unauthorized practice of law. The practitioner refused to provide the files requested by the regulator unless he first had disclosure of the basis of the investigation and had an opportunity to make submissions on the scope of the disclosure requested. The practitioner questioned whether the investigation might be a fishing expedition. In upholding the resulting discipline finding for non-cooperation the Divisional Court said:

The Law Society is one of many self-governing professions in the Province of Ontario. It is fundamental to the ability of a self-governing profession to properly regulate itself. Part of self-governance is the ability to discipline its members where professional misconduct occurs. The ability to discipline can only occur where the professional body has the ability to investigate its members when confronted with a complaint. A full and complete investigation provides confidence to the general public that it can rely on a self-governing profession. … [T]he failure of someone under investigation to co-operate in an investigation results in delay that can jeopardize the collection of evidence, including the obtaining of statements from witnesses.  Ultimately, this can result in the backlog of investigations, which can lead to an erosion of confidence in the ability of the Law Society to self-regulate itself.

The Court said there was no disclosure obligation on the part of the regulator unless the matter was referred to discipline.

Proving Plagiarism

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by Rebecca Durcan
October 29, 2019

Imagine being the Chair of the Examination Committee of a professional regulator and receiving a report for review that is copied from one you have written. That occurred in Young v Alberta Assessors’ Association Practice Review Committee, 2019 ABQB 740, http://canlii.ca/t/j2jpb. An investigation ensued and ten practitioners were disciplined for copying the reports of others. On appeal by two of the practitioners, one of the points argued was that plagiarism was speculative and had not been proved. The Court upheld the discipline finding. The Court concluded that the process of identifying potential plagiarism through a computer program and then individually assessing the similarities for those that were unexpected (e.g., in the discussion portion of the reports rather than in the portions summarizing legislation and setting out definitions) was appropriate. The Court said:

They rightly concluded that the identical or highly similar wording contained in those sections of the Reports where analysis and application of concepts were required, coupled with common typographical errors and common mistakes, could only be reasonably accounted for by copying or plagiarism. Given where the similarities and identical wording were contained, and given that the typographical errors and obvious mistakes would be unlikely to be found in a textbook or other student resource, the overwhelming inference is that plagiarism/copying had occurred in relation to the Reports of Ms. Young and Ms. Skolney.

The Court concluded that the findings were based on reasonable inference and not speculation.

In response to the argument that the conduct did not constitute a breach of the Code of Ethics, the Court said:

Not only was copying or plagiarising prohibited under the terms of the course that was required as a condition of membership, copying another’s work and holding it out to be one’s own would generally be considered an act of dishonesty and a lack of integrity. Permitting this type of conduct – specifically permitting students to pass off other’s work as their own in the context of obtaining accreditation/membership in a professional organisation – might well result in a diminishing of public confidence in that professional group.

False Factual Findings

by Bernie LeBlanc
October 22, 2019

When a tribunal makes an erroneous factual finding a court will review the significance of the error in determining whether to set aside the decision. In Berger v Saskatchewan (Financial and Consumer Affairs Authority), 2019 SKCA 89, http://canlii.ca/t/j2fgr, a hearing panel found that Mr. Berger had traded in securities in Saskatchewan even though at all times he was in Costa Rica. One of the issues was Mr. Berger’s relationship with another player in the transactions, Latin Clearing. The hearing panel found that Mr. Berger had, at first, denied knowing who Latin Clearing was but there was no evidence to support that finding. The hearing panel’s conclusion that Mr. Berger was not credible was based in large part on that finding. The Court concluded that the error had a potentially significant impact on the finding and set aside the panel’s decision.

The Court also made the following additional findings:

  • There had been no procedural error in denying an adjournment where the request was made late, the basis for the adjournment request was inconsistent (i.e., need to obtain legal counsel, a major family event) and where Mr. Berger indicated at the hearing that he could not afford legal counsel and offered no plan on how to retain legal counsel.
  • There was also no procedural error by the hearing panel for providing allegedly insufficient support during the hearing as to the scope of the allegations as the allegations were sufficiently clear from the notice and disclosure and the discussions during the hearing itself.
  • The Court was concerned that the hearing panel did not squarely address the issue of whether there was a sufficient connection between Mr. Berger and the allegations to Saskatchewan. The Court indicated that the new hearing panel should properly address that issue.

This case shows that even findings of credibility will be set aside when they are not based on facts led in evidence.

Forward Looking vs. Backward Looking Sanctions

by Julie Maciura
October 17, 2019

Most professional discipline statutes allow the imposition of a sanction upon a finding of misconduct. Sometimes called a “penalty”, the order imposes a consequence for the conduct. While consideration is given to the reform of the practitioner and deterring and guiding their future behaviour, there is a retrospective component to the order.

In many licensing statutes a Notice of Proposal model is used. A regulator proposes to terminate (or otherwise limit) the licence of the practitioner on the basis that their prior conduct “affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty”. This approach tends to be forward looking to the prospective conduct of the practitioner.

In Niagara Funeral Alternatives Inc. v Registrar, Funeral, Burial and Cremation Services Act, 2002, 2019 ONSC 4966, http://canlii.ca/t/j240k the Divisional Court considered this distinction. The Court recognized that for many cases, including that one, the difference in approach has no practical effect. However, the Court indicated the distinction was real and encouraged regulators to avoid “loose language”. It gave one example of where the difference in approach might be material. The failure of the practitioner in that case to acknowledge their errors supported a disposition that terminated the licence.

Claim Against Regulator is an Abuse of Process

by Erica Richler
October 15, 2019

A relatively recent amendment to the Court’s Rules of Civil Procedure allows a court to dismiss an action that “appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court”. That provision was recently used to dismiss an action against a regulator and those involved in the discipline of practitioner.

In Khan v Law Society of Ontario, 2019 ONSC 4974, <http://canlii.ca/t/j262p> a practitioner had been revoked after a discipline hearing on allegations of billing irregularities and alleged forged documents. While appealing the decision he also brought a civil claim for damages against the regulator on various grounds. The Court said: “you do not sue an adjudicative tribunal and its members because you disagree with the procedure and the result, especially when you are already appealing”.

This new rule of procedure permits the dismissal of a civil action in obvious cases through a streamlined process.

Disclosing the Names of Panel Members

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by Rebecca Durcan
October 9, 2019

In Gouniavyi v Yukon (Government of), 2019 YKSC 40, http://canlii.ca/t/j1zzn the discipline finding against a pharmacist was set aside because of a series of procedural errors. The main error resulting in the reversal was a failure to particularize the alleged dispensing errors. The allegation of a pattern of errors was insufficient to alert the pharmacist of the case that had to be met.

One error of interest was characterized as being insufficient to set aside the decision on its own. The Court indicated that the names of the panel members considering the matter should have been disclosed, at least in the final decision and reasons, so that the practitioner could raise any concerns about the existence of an appearance of bias. Disclosure of the names was part of the transparency and accountability of the process. It is unclear whether the disclosure of the names of panel members needs to be given in advance of the decision or whether this principle applies to panels in non-disciplinary matters. Would posting the names of all of the committee members on the regulator’s website suffice? It is also unclear whether there could be exceptions (for example, where there are safety concerns).

A number of other procedural errors were identified including the failure to offer the practitioner an opportunity to make submissions as to penalty.

What Constitutes Malice?

by Bernie LeBlanc
October 7, 2019

To establish a cause of action against a regulator for malicious prosecution, the plaintiff has to, obviously, plead and establish malice. In Bahadar v Real Estate Council of Alberta, 2019 ABQB 633, http://canlii.ca/t/j1z2v the practitioner alleged that the regulator, members of their staff, the disciplinary tribunal and the regulator’s lawyers had been malicious in pursuing a discipline matter against him. The particulars of malice included such things as proceeding with the investigation and prosecution knowing they did not have a case, proffering evidence they knew to be false and concealing relevant information from the practitioner.

The regulatory defendants brought a motion to dismiss the action on the basis that no malice had been pleaded. For the purposes of the motion, the Court had to accept the pleadings as true. The Court indicated that what constitutes malice “is a difficult and murky issue”. The Court held that while it was not certain that these facts, if true, constituted malice, the Court was not in a position to say that the facts do not constitute malice. The case was allowed to proceed.

Banning Publication

by Julie Maciura
October 2, 2019

Courts and tribunals operate from the default position that their proceedings are open to the public and the information revealed during the hearing is also public. Restrictions on access to that information require evidence that they are necessary to prevent a serious risk to an important public interest.

Rhyno v Nova Scotia Barristers’ Society, 2019 NSCA 67, http://canlii.ca/t/j1r3b gave guidance as to when this test is likely to be met:

  1. The identities of clients of the practitioner will often be protected because the professional confidentiality requirements create an expectation of privacy of that information and because disclosure may discourage clients from coming forward to the regulator.
  2. The identities of third parties involved in the events will ordinarily not be protected because there is no expectation of privacy.
  3. The medical information of the practitioner may be protected from disclosure because it is inherently personal and private.

This decision provides some guidance to regulators as well.

Stay Granted Where Public Not At Risk

by Erica Richler
September 30, 2019

In the ongoing saga of Fitzpatrick v College of Physical Therapists of Alberta, 2019 ABCA 306 http://canlii.ca/t/j1zgj, the practitioner is seeking leave to appeal to the Supreme Court of Canada of an appellate court decision upholding her discipline findings. The practitioner sought to stay the discipline order until after the Supreme Court of Canada makes its decision. The Court granted the stay, indicating:

The balance of convenience favours the granting of a stay for a short period until the Supreme Court of Canada makes a determination on the leave application. The underlying allegations lean more towards administrative issues and the overall compliance or lack thereof, with the court orders. While the finding of unprofessional conduct and sanctions relate to professional disrespect, the public is not at risk during this brief interim period.

Adding Parties to a Proceeding

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by Rebecca Durcan
September 25, 2019

One reason for adding a party to a proceeding is to ensure that both sides are present to provide arguments to the panel as part of the adjudicative process. In HE v APEGA Appeal Board, 2019 ABCA 298, http://canlii.ca/t/j1w4d, a professional engineer appealed a discipline finding to court. The legislation made the tribunal, as opposed to the prosecutor, the respondent to the appeal. Generally the tribunal is limited in what submissions it can make of its own decision. The tribunal requested that the prosecuting entity at the discipline hearing be made a party to present the other side of the argument to the Court. The Court agreed indicating that this was appropriate and added the prosecuting entity as a party.

There are other circumstances in which a third entity can be added as a party to the proceedings. But the starting point for the analysis is to ensure that both sides at the original proceeding have standing.

What Do we Do Now?

by Bernie LeBlanc
September 23, 2019

Administrative mistakes happen. The challenge then is to figure out an appropriate response. In Hilson v 1336365 Alberta Ltd., 2019 ONCA 653, <http://canlii.ca/t/j1x45>, three members of the Ontario Court of Appeal heard a case. Two members participated in drafting reasons for decision. By accident the draft decision and reasons was sent to a different member of the court, who had not participated in the appeal, who signed it. The decision and reasons was sent out. When the error was discovered the Court determined as follows:

  • The issued decision was not valid.
  • It would now be unfair to have the third member of the Court review the decision and reasons to decide whether or not to agree with it, or to dissent from it.
  • A different panel of the Court needed to deal with the matter and issue a fresh decision.

This outcome reinforces the importance of ensuring that every member of the panel participate in both making the decision and in drafting the reasons before the decision is released.

The Right of a Practitioner to Defend Themselves

by Julie Maciura
September 18, 2019

In an interesting pharmacy case, a practitioner was found to have engaged in professional misconduct by inducing vulnerable patients to transfer to his practice, including by offering gift cards and reduced dispensing fees. Some of the activity involved using confidential information to contact patients from other pharmacies where the practitioner provided relief services.

In Ghobrial v Ontario College of Pharmacists, 2019 ONSC 4776, http://canlii.ca/t/j1z8m, the Court upheld the findings of misconduct including the findings of credibility. The panel had adequately explained its credibility finding. It also found that there had been no reversal of the onus of proof when the panel commented negatively on the credibility of the practitioner tendering evidence as exculpatory that had no logical relevance to the issues.

On the issue of sanction, the panel imposed a twelve month suspension even though the practitioner submitted that a four month suspension was adequate and the regulator asked for a six month suspension. The Court held that this was acceptable and that, unlike a joint submission, there was no obligation to notify the parties that it was exceeding the maximum requested to hear additional submissions.

However, the Court found that it was an error of law for the panel to consider as an aggravating factor impact on vulnerable patients by requiring them to travel to the hearing and testify. “The Committee made an error of law in describing the Appellant’s exercise of his right to a hearing as an aggravating factor.” The Court reduced the suspension to ten months.

Challenging the Constitutional Validity of Admission Requirements

by Erica Richler
September 16, 2019

Non-government agencies who administer examinations required for registration with a regulator are often subject to judicial review: Kabiri v The National Dental Examining Board of Canada, 2018 BCSC 1938, http://canlii.ca/t/hvxxd. This can include challenges for failing to comply with the Canadian Charter of Rights and Freedoms. However, in a recent case in the Saskatchewan Court of Appeal, limits were imposed on those challenges.

In Yashcheshen v University of Saskatchewan, 2019 SKCA 67, http://canlii.ca/t/j1qkw an individual wished to enter law school. The law school required applicants to complete a law school admission test (LSAT). The applicant asked to be excused from the LSAT requirement because of her disability. The school refused. She also asked for accommodation:

She requested a large print test booklet, seating close to a washroom and “stop the clock” testing, i.e., testing wherein the time allotted for writing the LSAT would be extended by the amount of time she spent away from the testing room. It appears that she also asked for permission to use marijuana during testing and breaks. The Admission Council seems to have granted Ms. Yashcheshen some accommodations in the form of extended times to write each test section and extended break times between test sections. It declined to offer her stop the clock testing or permission to use marijuana.

The Court of Appeal upheld the determination that the school was not subject to the Charter even though the LSAT was an admission requirement. The Court held that the law school was not a part of the government (even though it received significant government funding), it was not engaging in government activity and it was not implementing a specific government policy or program.

Unfortunately, for the purposes of future guidance, the Court did not comment on the appropriateness of the school refusing some of the accommodation requests.

The Court also upheld the lower court finding that there was no appearance of bias on the school’s part because the Dean may have been involved in a Law Society registration matter in which the applicant “supported” another applicant. The bias argument was “unreasonable and suspicious at best”.

Procedural Fairness for Registration Assessments

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by Rebecca Durcan
September 12, 2019

An Alberta court has provided valuable guidance to regulators in ensuring that their registration assessments are fair. In Mohamed v College of Physicians and Surgeons of Alberta, 2019 ABQB 657, http://canlii.ca/t/j22sb an internationally trained anesthesiologist was required to successfully complete a three month Practice Review Assessment in order to become registered. Within weeks his assessor concluded that the applicant would not be successful and the assessment was terminated.

The Court found that the assessment process was procedurally unfair for a number of reasons:

  • The Manual for applicants was out of date and inaccurate. The Court was scathing in its comments about the need for regulators to ensure that the documents on its website are up to date. Even though the applicant had not relied on the Manual, even the letter of understanding that he did rely upon was not followed.
  • The applicant was given no orientation in advance of the assessment despite twice requesting it. Even the assessor noted that the applicant “with no identification, access cards or parking, in short, no orientation to this working environment at all”.
  • The applicant was advised to carefully review two assessment tools that were going to be used. Instead another tool was used. The Court rejected the argument that the tool used was similar and “would not have changed the outcome but that cannot be known since [the applicant] was told to carefully prepare for an assessment involving tools that were, without his knowledge, replaced with others.”
  • The applicant was given no feedback in advance of the assessor’s recommendation to terminate the assessment. Also the assessor proceeded “without consulting with several other physicians who had had an opportunity to observe [the applicant] and without sharing his own observations with [the applicant] before providing them to” the regulator.

The Court set aside the decision to require the applicant to undertake additional training before again attempting an assessment. The Court directed that the next assessment be deemed to be the applicant’s first attempt.

These procedure expectations are valuable for all registration assessment processes, including examinations.

Proving Contempt of Court on Circumstantial Evidence

by Bernie LeBlanc
September 9, 2019

Establishing unauthorized practice can be difficult as many clients are happy to receive the service or, at the very least, are reluctant to testify about it. Sometimes only circumstantial evidence is available.

In College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia v Chik, 2019 BCSC 1135, <http://canlii.ca/t/j1gcp> an unregistered person was subject to a restraining order prohibiting them from practising traditional Chinese medicine (TCM) or acupuncture. The regulator placed the person under surveillance. He was observed going into a number of private residences with a black bag and leaving after a period of time consistent with providing treatment. Five months later a search warrant was obtained and a significant quantity of acupuncture and TCM supplies were found in the black bag and at the person’s residence. While the Court concluded that the person was probably practising TCM and acupuncture contrary to the restraining order, this had not been proved beyond a reasonable doubt (as required to prove even a civil contempt of court).

The challenges of obtaining evidence for unauthorized practice are not to be underestimated.

The Precautionary Principle

by Julie Maciura
September 5, 2019

How should regulators deal with new technologies where the risks of harm are uncertain? One Ontario regulator has had to face this challenging issue. A new form of chemical cremation was adopted by a funeral home. After liquefying the remains, the fluid is released into the municipal waste water system. Studies have shown that a high temperature version of this process neutralizes potential harmful agents. However, studies have not established the safety of a low temperature version of the process. The funeral home in issue used the low temperature version. The regulator suspended the funeral home’s licence. Part of the basis for doing so was to apply the precautionary principle that the public should not be exposed to a potentially fatal risk until the safety of the process was established. The appeal tribunal concluded that the risk of harm was so low that the licence should be reinstated.

The Court restored the interim suspension until an appeal could be heard of the tribunal’s decision. The balance of convenience favoured the protection of the public over the financial implications to the funeral home. See: Registrar, Funeral, Burial and Cremation Services Act, 2019 ONSC 4298, <http://canlii.ca/t/j1hj9>.

Lack of Insight Justifies Revocation

by Erica Richler
September 4, 2019

Regulators generally prefer a remedial approach to practice concerns in the absence of deliberate misconduct. However, where even a skilled practitioner lacks the insight to practise safely, revocation can be justified.

In Doyle v Discipline Committee of the College of Physicians and Surgeons of Ontario, 2019 ONSC 3905, http://canlii.ca/t/j15sr the practitioner had been found to have crossed boundaries and exercised poor judgment. The practitioner was receiving ongoing therapy and had undertaken scores of educational courses since the current concerns arose. However, the discipline panel expressed concern about the feasibility of changing the practitioner’s behaviour: “given numerous chances at remediation with many years of psychotherapy, supervision, monitoring and practice restrictions. Despite this, he is still struggling with professionalism, boundary issues, and clinical care…” that put his patients at serious risk. The Court upheld that revocation was reasonable given this lack of insight.

On a side note, there was discussion as to what use could be made of the practitioner’s failure to testify. The Court said: “I should note that, in the civil context of this proceeding, there would be nothing objectionable had the Discipline Committee drawn an inference that Dr. Doyle’s failure to testify signified his view that his testimony would not be helpful to his case.” While the discipline tribunal did not make that inference, it was entitled to note that his lack of testimony prevented it from evaluating his level of insight from his own words.

Nova Scotia Independent Review of Sexual Abuse Processes

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by Rebecca Durcan
August 28, 2019

The College of Physicians and Surgeons of Nova Scotia released a report of an independent review of the regulator’s processes for dealing with sexual abuse matters. The report made a number of recommendations that will be familiar for those monitoring such reviews in other provinces. Recommendations include making the process of filing complaints more accessible, providing supports to those making complaints of sexual abuse, and ensuring that the hearing process is sensitive to the needs of those who have experienced trauma (e.g., publication bans, testifying out of sight from the practitioner).

Unlike the Ontario legislation, the reviewers were supportive of informal resolution of such complaints so long as they were complainant-initiated and led. In addition, the reviewers promoted that serious consideration should be given to closing all or part of the hearings to protect the privacy of the patients (and not rely solely on publication bans).

Also somewhat novel, the reviewers recommended that the discipline tribunal develop written guidelines for assessing the relevance of questions that could be asked of complainants, including identifying impermissible myths and stereotypes that would be deemed not relevant. Those guidelines would be based on the experience developed in criminal law relating to sexual assault.

The report can be found at: https://cpsns.ns.ca/wp-content/uploads/2019/07/CCLISAR-CPSNS-Final-Report.pdf.

Another Interim Order in a Sexual Abuse Case is Reduced

by Bernie LeBlanc
August 26, 2019

In Kumar v College of Physicians and Surgeons of Alberta, 2019 ABQB 514, http://canlii.ca/t/j1cqs a pediatrician was charged criminally with sexual assault and sexual interference with a minor. The charges were unrelated to his professional practice. As is often the case, the regulator was unable to obtain much evidence about the allegations pending the completion of the criminal process. The practitioner undertook to practise with a chaperone and post a sign in his clinic notifying patients of the requirement. Yet the regulator still imposed an interim suspension. The Court set aside the interim suspension (but maintained the terms of the undertaking) on the basis that the balance of convenience favoured the practitioner. The harm to his practise of a suspension was so significant that the public interest in protecting patients from harm did not justify such an intrusive step on the basis of the evidence then available to the regulator.

In applying the balance of convenience test, the Court indicated that some deference should be accorded to the regulator, but that the Court was not limited to assessing only whether the regulator’s decision was unreasonable. The Court did note that the facts of each case would determine the degree of risk to the public when assessing the balance of convenience.

Formulating a Penalty Order in Discipline in Sexual Abuse Cases

by Julie Maciura
August 22, 2019

There seem to be fewer areas in which courts have been giving confusing guidance to discipline panels than in the ordering of sanctions in sexual abuse cases. A major issue has been whether the range of sanctions should evolve to become more stringent in recognition of societal expectations or whether consistency with past decisions should be given priority. In Ontario (College of Physicians and Surgeons of Ontario) v Lee, 2019 ONSC 4294, http://canlii.ca/t/j1j5g the latter consideration seemed to prevail.

In that case the practitioner was found to have engaged in sexual misconduct (mostly language and gestures, but one instance of touching with his groin) with two patients. The discipline panel revoked his registration. The Divisional Court set that order aside and returned it for a new sanctioning hearing (where revocation was off the table) for a number of reasons including:

  1. Revocation was not consistent with prior decisions involving more serious conduct;
  2. Revocation was not proportional to the nature of the conduct that occurred;
  3. Excessive consideration was given to specific deterrence despite the evidence that suggested the practitioner was previously compliant with restrictions on his practice.
  4. The panel’s reliance on an earlier court decision that encouraged the increasing of sanctions for sexual abuse findings to reflect contemporary societal expectations, which court decision was later reversed on appeal.
  5. The panel’s failure to consider that the impact of the conduct on one of the patients was minimal.

This latter point is puzzling as many would say that the sanction should not depend on how much the “victim” was impacted by the conduct, as that is a matter of sheer luck. Rather, one would think that the potential (or even usual) impact of the conduct is a much more objective and relevant consideration. In any event, it is thought by many working in the area of sexual abuse that some impacts of sexual abuse may not be apparent in the short term.

Other points of interest in the case include:

  1. While it is preferable for the discipline panel to expressly discuss the lack of credibility of the practitioner when a finding is made against them, it is not always necessary. For example, in this case the testimony of the two patients was so diametrically opposite to that of the practitioner, that the discussion of their credibility implicitly addressed the lack of credibility of the practitioner.
  2. The rule in Browne v Dunn does not require the practitioner to be cross-examined directly on the specifics of the allegations where the practitioner is aware of them when testifying. There is no unfairness in failing to give the practitioner another opportunity to explain their response to the allegations.
  3. Ordering security for potential funding by the regulator should only be ordered where there is some evidence that the client will be making a claim for the funding.

Compelling a Reluctant Witness to Testify in a Sexual Abuse Matter

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by Rebecca Durcan
August 20, 2019

This issue has again come up, this time in the context of an investigatory summons. In College of Physicians and Surgeons of Ontario v Dr. Kayilasanathan, 2019 ONSC 4350, <http://canlii.ca/t/j1hq9>, a mandatory report was filed by another physician that an unnamed patient had been sexually abused by the practitioner. The patient had refused to consent to her name being included in the mandatory report (as was her right). The regulator, upon receiving the mandatory report used its investigative powers to summons the reporting physician’s chart to learn of the identity of the patient. It then summonsed the patient to give a statement.  She complied. At the discipline hearing the regulator again summonsed the patient to testify, as she was reluctant to do so voluntarily. The patient attempted to quash the summons on the basis that she had never consented to being part of the investigation. However, the discipline panel upheld it because the patient had highly relevant evidence and that there had been no abuse of process in the manner of the College’s investigation of the matter.

The Divisional Court held that the practitioner had no standing to challenge the discipline panel’s ruling on the validity of the summons. That challenge only affected the patient’s legal rights. Even if the practitioner had standing, there was no abuse of process. The right of the patient to refuse the inclusion of her name in the mandatory report did not prevent the College from using its investigative summons to obtain her identity and question her. So long as the College considered her reluctance at the time, it was open to the College to conclude that the public interest outweighed the patient’s privacy interests.

The Divisional Court made short shrift of the practitioner’s argument that the person was not really his patient. The practitioner had made clinical notes for the visits, had billed for the services and had issued a medical report excusing her from an examination.

The Court also upheld the discipline panel’s right to make an adverse inference from the failure of the practitioner to testify once a prima facie case had been established.

The Most Complex Discipline Case in Recent Memory

by Bernie LeBlanc
August 15, 2019

The Divisional Court described the case of Ontario (College of Physicians and Surgeons of Ontario) v Kunynetz, 2019 ONSC 4300, <http://canlii.ca/t/j1m2m> as one of the most complex discipline cases it has ever reviewed. The Court also observed that with the 2017 expansion of the scope of mandatory revocation for sexual abuse, motions and challenges to evidence are likely to become more frequent in such cases. The Court suggested that regulators should develop policies and procedures for hearing panel selection and scheduling of hearings to ensure that they do not extend unduly over a period of years, like this case did.

The Court undertook a detailed review of the credibility findings of the discipline panel on the main finding of sexual abuse. The Court held that the credibility findings of the discipline panel did not provide “an intelligible and reasonable line of analysis as to the credibility and reliability of the evidence” because of a number of omissions including:

  1. Failing to explain why the practitioner’s evidence of what he would have done was rejected (the practitioner acknowledged he had no individual recollection of the incident).
  2. Treating the practitioner and complainant differently regarding the way they refreshed their memories from previous statements without explaining why.
  3. Being inconsistent in its consideration of discrepancies and inconsistencies of the practitioner and the complainant in discrepancies of comparable significance.
  4. Failing to give sufficient weight to the credibility of the practitioner even though his evidence coincided in relevant ways with that of the complainant.
  5. Failing to explain why the panel accepted some of the practitioner’s evidence but rejected other aspects of it.
  6. Focussing on one example where the practitioner changed his testimony without placing that in the context of his days of testimony on other matters without panel comment.

The Divisional Court also found that the regulator had reversed the burden of proof by failing to establish (by expert evidence, it was suggested) that there was no clinical justification for the touching of the patient’s breasts.

The Court also found that “the decision to find that the Appellant engaged in disgraceful, dishonourable or unprofessional conduct by allowing his fat pad to come into contact with the body of a patient, not accompanied by a warning, apology or excuse, is not reasonable” because he was caught by surprise by that allegation. It had not been part of the notice of hearing, particulars, cross-examination at the hearing or even closing argument.

The Court provided its non-binding view on the retrospectivity of new grounds for the mandatory revocation of a certificate of registration. In particular, prior to the May 30, 2017 amendments, touching a patient’s breasts without a clinical basis had no mandatory minimum penalty. On or after May 30, 2017, revocation was mandatory for such touching. The discipline panel concluded that given the public interest purposes of the amendment, the mandatory penalty applied to such touching that occurred before the amendments. The Court held that this issue was one of general law, and that deference should not be awarded to the interpretation of the amendments by the discipline panel. If the Court had not set aside the finding in respect of the practitioner’s touching of the patient’s breasts, it would have held that the mandatory revocation amendments did not apply to this case.

The Court substituted the decision on penalty for the two less serious allegations that were upheld by ordering a retroactive suspension, which the practitioner served from the date of an earlier interim order up to the date of the Court’s order.

In a footnote the Divisional Court also raised concerns about some of the rulings not being signed by all of the panel members. The Court suggested that this could create an issue in future cases as a decision is not final until signed by all participating panel members.

Revocation Stayed but Publication Continues Pending Appeal

by Erica Richler
August 12, 2019

Where a discipline finding is made and a sanction is imposed, it is common for the practitioner to seek a stay of the sanction until the appeal is concluded. The usual three part test is generally applied (i.e., serious issue to be tried, irreparable harm, balance of convenience). However, such an application is not always an all or nothing proposition. In Houghton v Association of Ontario Land Surveyors, 2019 ONSC 3909 <http://canlii.ca/t/j14tb> a land surveyor was revoked for integrity concerns. It was his third discipline finding. His motion to stay the sanction succeeded because of the harm that would result to his practice. However, the regulator was permitted to proceed with the publication of the finding both because the practitioner had already communicated it to some people and to respect the open court principles that underlie both the discipline hearing itself and the appeal.

Protecting Regulators from Defamation and Harassment

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by Rebecca Durcan
August 8, 2019

Regulators have to put up with a fair bit of criticism. In a free and democratic society, public interest bodies need to be open to scrutiny and disparagement. However, at some point such criticisms can cross a line such that the courts will intervene. That line was crossed in College of Pharmacists of Manitoba v Jorgenson, 2019 MBQB 87, <http://canlii.ca/t/j14jv>. A critic of the regulator accused it of being complicit in crimes by its inaction in preventing opioid drug overdoses of 24 indigenous people in northern Manitoba. The critic also accused the regulator of covering up its crimes. The accusations were broadly distributed and amounted to allegations of criminal behaviour. The critic attended at the regulator’s offices to pursue the matter and sent messages that were perceived as threatening (e.g., mentioning of home addresses) to family members of representatives of the regulator.

The regulator sued for defamation. It also sought an interim order preventing the critic from communicating with the regulator’s representatives and members of their families or from attending at the offices or at public meetings of the regulator. It also sought an order preventing the repetition of accusations against the regulator and its representatives. The Court indicated that such orders limiting free speech are rare. However, the order was granted in this case because the critic offered no evidence to substantiate the allegations, because no effective defence was raised and because the critic’s behaviour was, on an objective basis, emotionally distressing.

Factual Errors by a Complaints Screening Body

by Bernie LeBlanc
August 6, 2019

Complaints screening bodies do not make findings of fact. They also do not make findings of wrongdoing. And they can make remedial orders (e.g., issuing a caution) without a finding of wrongdoing in order to help a practitioner avoid similar situations in the future. However, this does not mean that a reviewing tribunal or court cannot address misstatements of the evidence: Montour v Health Professions Appeal and Review Board, 2019 ONSC 3451, http://canlii.ca/t/j0wzp.

In this case the screening committee ordered that a practitioner be cautioned because she did not personally assess a patient despite six calls from nursing staff. The screening committee concluded that a personal assessment was required where the patient was “decompensating” and experiencing progressive neurological changes. However, the Court reviewed the medical charts and found no evidence that this is actually what the practitioner was told by the nursing staff at the time. The Court was even prepared to interpret some of the medical language in the medical file in concluding that the screening committee had misunderstood the file.

While it is rare for a reviewing court to scrutinize the factual findings of a specialist tribunal in the area of practice of the profession, regulators need to ensure that they fairly and accurately summarize the critical portions of its investigation file when making screening decisions.

The Wettlaufer Inquiry Report: Implications for Regulators

by Erica Richler
August 1, 2019

Finding no individual misconduct, Commissioner Eileen E. Gillese’s report in the Public Inquiry into the Safety and Security of Residents in the Long-Term Care Homes System made 91 recommendations to prevent similar tragedies from occurring in the future (https://longtermcareinquiry.ca/en/final-report/). Most of the recommendations were directed towards the operation and oversight of long-term care homes, including their handling of access to drugs, and the Coroner’s office.

However, some of the recommendations were directed at how regulators could better address intentional harm to clients by practitioners. These recommendations included the following:

  1. Regulators should use their position and influence to educate practitioners, and students becoming practitioners, about the possibility of their colleagues intentionally harming clients, something that was almost unthinkable in Ontario before Ms. Wettlaufer’s confession.
  2. Regulators need to incorporate “the healthcare serial killer phenomenon” into how it investigates and screens complaints and reports about the conduct of practitioners.
  3. For example, regulators need to raise awareness of mandatory reporting requirements by employers and colleagues and revise the forms used for such reports to include the following:
    1. A clear explanation of the mandatory reporting requirements including the content of the information that must be contained in the report;
    2. A declaration section by the reporter that they understand and have complied with those requirements;
    3. A request for all of the details and relevant supporting documents, a request for the disciplinary history of the practitioner, and the ability to expand the section in the form for providing details of the incident so as to encourage (and not deter) a full reporting of them; and
    4. The ability to submit such reports conveniently, such as by email.
  4. Indeed, all policies and procedures of the regulator should be reviewed to take into account the possibility of intentional harm to clients.
  5. The College of Nurses of Ontario was encouraged to share the research it has undertaken with other regulators on the issue of “how to prevent, deter, and detect healthcare professionals who may seek to intentionally harm those in their care.”

In respect of the last point, earlier this year representatives of the College of Nurses of Ontario (CNO) published an article on some of its learnings to date: Erin Tilley et al., “A Regulatory Response to Healthcare Serial Killing,” (2019) 10:1 Journal of Nursing Regulation 4. While the CNO found no algorithm for identifying healthcare serial killers, it did identify some warning signs “such as frequent changes in employment settings, patterns of poor conduct, access to high-risk intravenous medications, and concerns from colleagues”. The article also discussed strategies for preventing and detecting such conduct. The CNO has recently amended its public register to include more information about the work history of its registrants.

Disciplining Contentious Practitioners

by Julie Maciura
July 30, 2019

Where there is a history of contentious proceedings between a regulator and a practitioner, additional challenges arise. As the Court pointed out in Fitzpatrick v College of Physical Therapists of Alberta, 2019 ABCA 254, http://canlii.ca/t/j13wn, actions by one party are more likely to be interpreted less generously by the other. Allegations of bias are more likely to arise as many staff and committee members of the regulator will have had prior involvement with the practitioner. However, it is still possible for a regulator to navigate these shoals.

In the Fitzpatrick case the practitioner had been disciplined previously. While some of the findings were set aside, others were upheld and sanctions involving certain remedial steps (e.g., courses, inspections) and payment of costs were ordered. Discussions ensued to arrange the inspection but the practitioner stopped responding to correspondence and it was never scheduled. In one case an extension and substitution for a course was requested the day before the deadline; the request was refused. The practitioner brought a civil suit against the regulator and some of its employees. The Registrar initiated a complaint for non-compliance that was referred to discipline. Findings were again made and a three-month suspension was ordered. The suspension would continue (or be re-instituted) if the remediation steps were not completed in accordance with an updated schedule. The practitioner was also required to provide payment plans for the outstanding costs.

The Court dismissed appearance of bias concerns:

While we can appreciate that the legislative framework established by the HPA can create the impression of a unitary College, in fact the legislation separates the disciplinary process from the regulatory process. When a party is exercising their authority as explicitly contemplated in the governing legislation, the mere exercise of that authority cannot give rise to a reasonable apprehension of bias ….

The Court was not troubled by the Complaints Director appointing herself as the investigator in the circumstances. The Court noted that the regulator had made the effort to ensure that those sitting on tribunals hearing the practitioner’s case had not been previously involved with her matters. Any procedural unfairness that may have occurred during the investigation was cured during the discipline hearing and internal appeal hearing.

The Court also upheld the findings of non-cooperation based on such conduct as ceasing to respond to communications attempting to schedule inspections, failing to complete a course on time, and declining to provide responsive answers to questions in the subsequent investigation (rather just challenging the investigation itself). Based on the fact that the practitioner was actively practising at the time, the tribunals were entitled to reject the argument that she was too emotionally drained to complete the course on time.

The Court also accepted as reasonable in the circumstances the indefinite length of the suspension and the requirement to provide information about payment of the costs.

Timely Access to Discipline Hearing Exhibits

by Julie Maciura
July 26, 2019

Last year, in upholding the constitutional right of the public, including the media, to obtain copies of exhibits filed in hearings, Justice Morgan said:

Generally speaking, it is essential in a system that protects free expression and the press that “the media…should not have their right to report on proceedings…delayed for any greater period of time than a court believes is absolutely necessary”. Just as justice delayed can be justice denied, so reportage delayed can be reportage denied. [citations omitted]

In that case, Toronto Star v AG Ontario, 2018 ONSC 2586, <http://canlii.ca/t/hrq6s>, the Court did not prescribe a minimum period for providing access, assuming that once the right of access (with rare exceptions) was entrenched, delays should be significantly reduced.

However, in a recent article in Toronto Life magazine, the author objected to a process of having to make a request in writing that resulted in an eight week wait for access to the exhibits: https://torontolife.com/city/greed-betrayal-medical-misconduct-north-york-general/. The writer contrasted that experience with obtaining exhibits from a court hearing, which was generally automatic and prompt.

Since discipline hearings often involve marking confidential client files as exhibits, including health charts, many discipline panels require a motion in writing, with an opportunity for both parties at the hearing to make submissions, sometimes followed by advice from independent legal counsel, before exhibits are released. [The exception may be if the request is made at the hearing itself when everyone is present to speak to the matter.] Given Justice Morgan’s comments, what is a reasonable time frame for access to be granted?

There are at least two options for speeding up the process:

  1. Expedite the request, submissions and decision process. However, this option would likely still take about 30 days even in routine cases with very short turnaround times for submissions and advice.
  2. Change the assumptions. The discipline panel could require parties to assert any concerns about public access to the exhibit at the time that they were filed at the hearing. In the absence of a request, the exhibit is presumed to be public. This is similar to how courts often operate.

The second option would impose an obligation that could take up time in many discipline hearings when the reality is that very few requests for access to exhibits are made. In addition, one can foresee oversights occurring resulting in very sensitive exhibits being made public automatically.

With increasing expectations of prompt access to hearing exhibits and with more tribunals considering online hearing documents, regulators and discipline panels will have to grapple with this issue more frequently.

Duty to Cooperate with a Regulator’s Quality Assurance Program Upheld

by Erica Richler
July 23, 2019

In Vey v Newfoundland and Labrador (Pharmacy Board), 2019 NLSC 111, http://canlii.ca/t/j0qfx a pharmacist was disciplined for refusing to cooperate with a practice assessment conducted as a part of the regulator’s quality assurance program. The Court concluded cooperation was required by the practitioner.

  • The fact that no quality assurance committee had been established to appoint the assessor was irrelevant as the regulator had an independent duty (and authority) to conduct a quality assurance program. A committee was only one option for doing so.
  • The legislation protecting the privacy of patient information in the province had an exception for regulators. That legislation therefore permitted the practitioner to provide the requested patient information.
  • The practitioner could not rely on her lawyer’s inaccurate legal advice as a basis for refusing to cooperate. The regulator had done nothing to support her lawyer’s opinion. A mistake of law is not a recognized defence.
  • There was no arbitrariness in the regulator conducting a full assessment sooner than expected because the practitioner was moving her premises. This was consistent with the regulator’s usual policy.
  • There was no obligation on the regulator to attempt informal resolution rather than a referral to discipline. Alternate dispute resolution was optional, not mandatory.

This case reinforces the recent trend by the courts to give a liberal and purposive interpretation to legislation authorizing quality assurance initiatives by regulators.

Costs Against a Regulator Not Confined to Bad Faith Prosecutions

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by Rebecca Durcan
July 18, 2019

It is rare for a disciplinary tribunal to award costs to the practitioner where the regulator has not established the allegations of misconduct. At the time that the regulator makes the referral to discipline it is not in a position to assess the credibility of the witnesses. In addition, its public interest mandate may require the regulator to refer matters to discipline even though it is uncertain as to the outcome after a full hearing. However, where legislation entitles a practitioner to seek costs against a regulator, the discipline tribunal must apply the proper criteria.

It should be noted that different legislation applies different tests to when such costs will be awarded. For example, a frequent test is whether the referral to discipline was unwarranted. The legislation applicable to the Alberta real estate regulator has a more general test related to the circumstances of the case. In Pethick v Real Estate Council (Alberta), 2019 ABQB 431, http://canlii.ca/t/j0xmj an appeal tribunal set aside a misconduct finding against the practitioner due to serious procedural defects in the original discipline hearing. However, it indicated that the practitioner would generally only receive an order for costs where the practitioner demonstrated that the regulator had acted in bad faith or for an improper motive. The Court concluded that this test was too stringent and referred the matter back to a hearing. The Court said:

Focusing on a party (or counsel’s) conduct and its effects, rather than on the party’s motives or intentions, makes sense in the context of costs. Costs awards are not primarily punitive; rather, they allocate the costs of legal proceedings fairly, and in light of who caused the costs to be incurred. They are “a tool in the furtherance of the efficient and orderly administration of justice”…. The efficient and orderly administration of justice requires that improper conduct be discouraged, not merely improper motives.

The Court returned the matter for reconsideration with the following guidance:

  • The tribunal may properly consider the public mandate function of the regulator in deciding whether or not costs ought to be awarded.
  • The tribunal cannot require the practitioner to demonstrate that the regulator or lower tribunal acted with an improper purpose or otherwise in bad faith in order to receive an award of costs.
  • The tribunal can take into account whether the conduct of the proceedings against the practitioner constituted a marked departure from the standards to be expected in a regulatory proceeding of that type.
  • The tribunal must consider the totality of the circumstances of a practitioner’s hearing and appeal, including other factors set out in the enabling statute.

While different statutes do set out different criteria, few require the demonstration of bad faith in order for the practitioner to receive a costs award.

Progressive Discipline is Not Arithmetic

by Bernie LeBlanc
July 15, 2019

When it comes to imposing a sanction at discipline, one of the oft-cited principles is that discipline should be progressive to enable a practitioner the opportunity to learn from their mistakes and to change their behaviour. In Peet v Law Society of Saskatchewan, 2019 SKCA 49, http://canlii.ca/t/j0tkc, Saskatchewan’s highest court indicated that this principle, while valuable, has limitations. In that case the practitioner failed to respond to his regulatory body’s request for information about his trust accounts over a period of more than five months despite frequent reminders. The practitioner had been the subject of six prior discipline hearings with about ten similar findings of misconduct. In the most recent previous matter involving an almost identical allegation, he received a three-month suspension and a fine. That penalty was imposed around the same time he finally complied with the request in issue in the current matter. In the current matter he was suspended for twice as long (i.e., six months) and was subject to a much larger fine.

The practitioner argued that the principles of progressive discipline suggested that since the previous penalty was imposed after his conduct in this case, it should not be seen as a prior discipline sanction. He had no chance to correct his behaviour after having the penalty imposed. He suggested that the penalty in the current matter should be the same three-month suspension and a lower fine. The Court disagreed. Progressive discipline was not a mathematical exercise. The fact that the practitioner “was blithely ignoring requests for a response from the Law Society at the same time his penalty was being considered for the earlier similar offence” indicated his disregard for his professional obligations. The Court said:

… a hearing committee is not bound to apply the principle of progressive discipline. All that is required is consideration of progressive discipline as one of many sentencing factors. The Committee in the within case did that. I am of the view this is as it should be. A hearing committee should not be unnecessarily restricted in performing its duties.

The Court made a number of other interesting points including the following:

  • The practitioner’s “attempt to trivialize his conduct as a mere compliance issue” fails to recognize the importance of cooperation in enabling a regulator to protect the public.
  • Progressive discipline may have less of a role in cases of very serious misconduct, where revocation may be appropriate in a first instance.
  • The principles of mitigation (e.g., admitting the allegations) have less weight in professional misconduct matters than in criminal matters because another party is affected by the conduct (i.e., credibility and reputation of the regulator and the “collective reputation of an accused’s peer group”).
  • When identifying the range of sanctions one must look to the facts of each case. In this case the “penalty is not directly comparable to other penalties because the circumstances here are worse than any available comparators.”
  • When considering the expertise of a tribunal, one looks to the specialized knowledge and experience of the tribunal as a whole and not of the individual members sitting on a particular case.

Ultimately this decision reinforces yet again the degree to which the sanction imposed in a discipline case depends so much upon its particular circumstances.

Following Your Own Policies and Procedures

by Erica Richler
July 11, 2019

Regulators, like many organizations, develop numerous written policies and procedures to guide their staff and committees. Some are borrowed and adapted from those of other organizations. Of course, human nature being what it is, sometimes the actual day-to-day practices vary from the written document. The impact of such a departure arose in the case of Berge v College of Audiologists and Speech-Language Pathologists of Ontario, 2019 ONSC 3351 (http://canlii.ca/t/j0vqs). The practitioner in that case was disciplined for using the title “Doctor” when doing so was prohibited by legislation. She acknowledged her use of the title. Her discipline finding was upheld upon appeal. Afterwards the practitioner again challenged the outcome and obtained a copy of the regulator’s policy and procedures manual which suggested a formal written motion for referrals to discipline. The regulator had not made such a formal motion.

The Court held that a policy and procedure was not the same as a statutory condition precedent. Failure to follow the suggested process in the manual did not affect the referral to discipline. It would have only affected the validity of the legal proceedings if the action actually taken amounted to procedural unfairness. There was no such unfairness or loss of jurisdiction here because it was obvious that a referral to discipline had been made (despite the absence of a formal written motion) and the practitioner knew at all times the content of the allegations. The Court also found that the later discovery of the full manual did not meet the test for fresh evidence and its non-disclosure did not amount to a fraud on the disciplinary tribunal or the Court.

Of course, it is always preferable to ensure that current practices and written policies and procedures remain consistent over time.

Scope of Terms, Conditions and Limitations

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by Rebecca Durcan
July 8, 2019

Disciplinary and other committees often have the authority to impose terms, conditions and limitations (TCLs) on the practice of a practitioner. Little guidance is given as to what sorts of TCLs are appropriate and which would over-reach the regulator’s authority. The case of Khalil v Ontario College of Pharmacists, 2019 ONSC 3738, <http://canlii.ca/t/j11kg> demonstrates that the scope of TCLs are broad.

In that case a pharmacist was found to have participated in significant false billing of the publicly funded drug program. Patient records had also been falsified to support the claims. The finding and most of the sanctions were agreed to including a lengthy suspension of the practitioner’s registration and ongoing monitoring upon reinstatement. However, the practitioner challenged the jurisdiction of the discipline panel to impose TCLs prohibiting him from owning or being a director of a corporation that owned a pharmacy. He argued that the regulation of pharmacies, including ownership and control rules, were addressed in a different statute that “covered the field”. The Court found that the discipline panel’s interpretation of the broad authority to impose TCLs was reasonable and that the other statute did not preclude the TCLs. The Court also accepted the strong public interest purpose of the TCLs on the facts of the case.

So long as any TCLs flow from and are relevant to the findings made by the discipline panel and the public interest is being served by the regulator, the power to impose them is quite broad.

Broad and Flexible Injunction Powers

by Bernie LeBlanc
July 4, 2019

Many regulators have the authority to seek a court order to compel people to comply with the law. Recent decisions by the Courts have upheld the breadth and flexibility of these provisions. For example, in the very recent case of Retirement Homes Regulatory Authority v In Touch Retirement Living for Vegetarians/Vegans Inc., 2019 ONSC 3401, http://canlii.ca/t/j0rm4 the regulator obtained an order against an individual who had been operating a retirement home for years without a licence and in contravention of a number of health and safety orders.

In making the order, the Court affirmed that where a public authority brings an application to enforce its legislation and there has been a clear breach of the legislation “only in exceptional circumstances will the court refuse an injunction to restrain the continued breach”. It is no defence to argue that one is as competent or capable as a person who is registered. The Court concluded that assertions of racial discrimination and of religious convictions amounted to “unconvincing, after-the-fact excuses to justify a history of non-compliance and disregard of the applicable law”. Similarly the Court held that the perspective of a family member of one of the residents, that the regulator should assist the person to comply with the rules rather than shutting down the retirement home, did not amount to an exceptional circumstance.

The Court demonstrated the flexibility of the provision by ordering the person to provide all information it had about the residents to the regulator so that it could make arrangements for their continued care and orderly transfer. Clearly such an ancillary order was required as simply closing the facility abruptly was not a realistic option.

Cooperation with One’s Regulator Must be Prompt

by Julie Maciura
July 3, 2019

All practitioners have an obligation to cooperate with their regulator. At what point does a delay in providing information to the regulator demonstrate a lack of good faith cooperation? In Law Society of Ontario v Diamond, 2019 ONSC 3228, http://canlii.ca/t/j0l82 the Court said that it depends on the circumstances of the case. However, a failure to provide clearly requested documents for a period of four to six months (despite cooperation in providing other documents quickly), where the documents are required to be readily available, could constitute a failure to cooperate in good faith. The Court said:

It is consistent with the purpose of the Rule respecting that duty and the positive obligation it imposes on lawyers, that it is not sufficient for a lawyer to have genuine or honest belief that they are fulfilling their duty to co-operate. The efforts to co-operate must be measured against the objective standard of reasonableness….

To find otherwise would allow a lawyer who has not taken the time or made reasonable efforts to understand and comply with their obligations to be immunized from regulation by the Law Society. This would be contrary to the public interest. As noted in Ghobrial, supra, at para. 9, when it comes to the licensee’s duty to respond to Law Society requests for information completely and promptly “it is essential that the licensee treat the response as a priority….

Similarly, in the duty to co-operate context, a lawyer cannot be found to have acted in good faith to provide a complete and prompt response when the basis for their delay is their ignorance of their professional obligations or their negligence in making the efforts they are required to make to provide the requested information promptly….

There is nothing unreasonable about the Appeal Division’s analysis of the concept of “good faith”. It does not hold lawyers to a standard of perfection. It imposes a duty on them to make every reasonable effort to comply with their obligations. This is consistent with the purpose of the Rule….

This decision reinforces that a practitioner’s duty to cooperate with their regulator means a prompt and complete response to each request.

Can a Practitioner’s Privacy be Protected by the Terms of an Adjournment?

by Erica Richler
June 24, 2019

Mr. Colpitts, a lawyer, was convicted of a serious criminal offence. He appealed the conviction. In the meantime a resulting interim discipline process was adjourned, pending the outcome of the appeal, on the basis that he undertook not to practise the profession. The agreement was confidential. After further investigation the regulator referred Mr. Colpitts to a hearing under another provision. Mr. Colpitts sought judicial review of that decision arguing that the terms of the earlier adjournment precluded any further discipline action until the criminal appeal was heard. Mr. Colpitts asked the court to protect his privacy in the judicial review proceedings on the basis of the assurance of confidentiality he had received in the earlier adjournment matter.

The Nova Scotia Court of Appeal upheld the lower court ruling that regardless of how one interpreted the terms of his adjournment before the Law Society, he had not established the need to have the court proceedings held anonymously: Colpitts v Nova Scotia Barristers’ Society, 2019 NSCA 45, <http://canlii.ca/t/j0pmz>. The Court said:

Courts operate in the public domain, not behind closed doors, unless it is necessary to prevent a serious risk to an important public interest and the salutary effects outweigh the deleterious effects of the requested confidentiality order.

The privacy interests of a practitioner of a profession would not normally meet these criteria.

This case also illustrates how the wording of agreements with practitioners should contemplate other proceedings and not just the one proceeding currently in mind.

Reviewing a Draft of an Adjudicator’s Decision and Reasons

by Julie Maciura
June 21, 2019

Hearing panels have the responsibility to independently make decisions and draft their own reasons. However, courts have permitted some degree of peer review of decisions and reasons by other members of the committee, who were not on the actual hearing panel, so long as safeguards are employed. The strictness of those safeguards was discussed in the decision of Shuttleworth v Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518: http://www.ontariocourts.ca/decisions. In that case the tribunal’s Executive Chair reviewed a draft decision. The issue of deliberative secrecy in the review process did not arise on the facts of the case. However, the review process was described in the evidence and the court had three concerns about it:

  1. The review by the Chair of the tribunal did not appear to be at the option of the adjudicator as legal staff sent it to the Chair without the prior knowledge and consent of the adjudicator.
  2. The Chair had significant power over the reappointment of the adjudicator to the position and thus was in a position of influence.
  3. There were not clear policies and procedures establishing safeguards for the review process including its voluntariness and affirming the adjudicator’s independence.

The decision of the tribunal was set aside.

In light of this ruling, tribunals that permit persons other than the hearing panel members themselves to review draft decisions and reasons should consider reviewing (and applying) policies and procedures that ensure the independence of the tribunal. The Court of Appeal distinguished the role of independent legal counsel (ILC) from that of the Chair of the tribunal as ILC was the servant of the hearing panel. However, even ILC cannot encroach on the independence of the hearing panel.

US Debate About De-Regulation Just Got More Nuanced

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by Rebecca Durcan
June 17, 2019

There has been a noticeable push in the US to de-regulate professions on the basis that regulation restricts access to workers, drives up prices, and is largely unnecessary. In a thoughtful paper, the oversimplification of these arguments is effectively dismantled. The authors acknowledge that some regulatory models may be overly restrictive yet warns against full repeal of many smaller professions where the risk they pose warrants oversight. Further, the authors argue that more effective and directed regulation is required of the professions where the risk of harm to the public is highest. See: Scheffler, Gabriel and Nunn, Ryan, “Occupational Licensing and the Limits of Public Choice Theory”(2019) Faculty Scholarship at Penn Law 2072: https://scholarship.law.upenn.edu/faculty_scholarship/2072.

The conclusion to the paper sums up the arguments nicely:

In sum, the standard public choice narrative about occupational licensing is simultaneously overinclusive and underinclusive. On one hand, it is overinclusive as it suggests that licensing laws are rarely justified, even in the face of plausible alternative explanatory accounts. If policymakers and judges were to take this narrative at face value, they might strike down many licensing laws that benefit the public. Of course, there is a strong case for subjecting licensing laws to greater scrutiny, and there are professions for which the costs of licensure clearly outweigh the benefits. Yet in other cases—perhaps in many cases—the cost-benefit calculus will be less clear.

At the same time, however, the standard public choice narrative is underinclusive as it tends to focus less on dominant professional organizations, such as physicians and lawyers, and more on smaller, lower-wage professions. This is unfortunate, since the former licensing regimes have particularly detrimental consequences for workers and consumers. In addition, the public choice narrative is underinclusive because it has little to say about professions for which there are credible public safety risks of unregulated activity. We argue that there is a strong basis for licensure reform in these professions that, while less radical than complete deregulation, would nonetheless enhance labor market access and benefit consumers.

Federal Trade Marks and Provincially Protected Terms

by Bernie LeBlanc
June 13, 2019

A common method of regulation is to restrict the use of a term or designation to those who have met certain requirements. There has been some uncertainty as to whether federal trade mark rules could be used to circumvent provincial restrictions on the use of terms and designation. The case of Royal Demaria Wines Co. Ltd. v Lieutenant Governor in Council, 2018 ONSC 7525, http://canlii.ca/t/hwn9n goes a long way to dispelling those concerns.

In that case the winery could not obtain approval for its wines, particularly its icewine, because it did not pass the taste test requirements of the provincial regulator. Under the provincial legislation, the term “icewine” was restricted to wines approved by the regulator. The winery obtained a federal trademark as “Canada’s Icewine Specialist” and sought a declaration that it could use that term to describe its products. The Court noted that the principle that federal law is paramount over inconsistent provincial law should be applied with restraint in the spirit of cooperative federalism. The fact that a federal law addressed a topic does not imply that a valid provincial law is excluded from the field. Obtaining a trade mark does not imply a right to use the term or designation when its use was prohibited by provincial law. The Court said:

Both the Act and the Trade-Marks Act have consumer protection purposes that are consistent and compatible with each other. The Act furthers the consumer protection purpose of the Trade-Marks Act by ensuring that when wine manufacturers use certain terms that are also subject to provincial regulation, they are meeting quality standards. This complements, rather than frustrates, the purpose of the federal legislation.

The laws were not inconsistent in the sense that the winery could comply with both of them at the same time.

The case also contains an interesting discussion of the validity of taste tests as a regulatory tool authorized by the enabling statute. The Court also upheld the termination of the winery’s membership with the regulator if it had no wine approved within an 18-month period.

Legal Status of a Regulator’s Policies

by Julie Maciura
June 10, 2019 

The Ontario Court of Appeal has re-affirmed the authority of regulators to make policies setting out the expectations of practitioners in the course of their practice. This is so even where the enabling statute authorized the enactment of standards through regulation. The difference is that a regulation is “law” that is directly enforceable at discipline whereas a policy is only a statement of expectations that may form some evidence of the existing standard of practice but is not automatically enforceable at discipline. Despite it not being formal law, it still needs to be consistent with the Canadian Charter of Rights and Freedoms because, at least in this case, it was implementing a specific government objective.

In the case of Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393, <http://canlii.ca/t/j08wq> the Ontario Court of Appeal accepted the reasoning of the Divisional Court and concluded that the policies appropriately balanced the competing interests of access to health care (especially abortion services and medical assistance in dying) and the religious beliefs of certain physicians. The Court also gave deference to the view of the regulator that simply providing generic information to vulnerable patients of their options was an insufficient balancing of the rights; the regulator was entitled to apply its expertise to require an effective referral to a person or facility that would provide the service.

This case is consistent with other recent cases where the courts give deference to regulators when enacting policies. However, the thorough nature of the Court’s analysis indicates that it is prudent for regulators to conduct a full workup of their policies, especially when rights under the Charter might be affected.

Reviewing the Prior History of a Practitioner in Complaints Matters

by Erica Richler
June 6, 2019

In complaints matters it is common, but not universal, that the prior complaints and discipline history of the practitioner will be reviewed. However, the weight to be placed on that prior history will vary. In College of Physicians and Surgeons of British Columbia v The Health Professions Review Board, 2019 BCSC 539, <http://canlii.ca/t/hzpm3>, the practitioner had been disciplined for sexual misconduct a dozen years previously. The current complaint related to a failure to recognize a clinical condition. The screening committee did not consider the practitioner’s prior history. The Review Board found this failure to be unreasonable and returned the matter for a new decision. The Court disagreed and noted that the screening committee had discretion to consider prior decisions (the governing legislation did not mandate that prior decisions be reviewed):

The College had the discretion to make a finding on the degree of similarity, if any, between Dr. Fletcher’s sexual misconduct in 2003 and clinical conduct matters in 2015. The 2003 Admonition was regarding Dr. Fletcher’s personal relationship with a patient, which is substantially different than the clinical performance issues involved with the Complaint, except in the broadest sense that both events are breaches of professional standards.  The two are not similar in time, type of conduct, context, or the standards breached.

The Court concluded that the Review Board had not assessed whether the screening committee acted reasonably in the circumstances. Rather, the Review Board inappropriately substituted its views for those of the regulator. The Court sent the matter back to the Review Board for a new decision.

New Approach to Vexatious Litigants

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by Rebecca Durcan
May 27, 2019

Litigants who abuse the legal system have been a challenge for many decades. Recently the approach of the courts to dealing with abusive litigants has evolved. A lengthy and fascinating decision on the topic, on a case that relates to professional regulation, is found in Unrau v National Dental Examining Board, 2019 ABQB 283, http://canlii.ca/t/hzztc. In that matter an unsuccessful examination candidate sued many individuals and entities but provided no specifics of what they had done wrong and requested “impossible remedies”. The action was struck out. However, the Court, on its own motion, initiated a “show cause” process as to whether restrictions should be imposed on Mr. Unrau’s ability to litigate generally. After considering the litigation history of Mr. Unrau the Court imposed an order that Mr. Unrau had to obtain permission before continuing or initiating legal actions in Alberta.

The Court noted that the modern approach to abusive litigants was proactive, rather than reactive, including being initiated by the Court itself rather than by frustrated parties. In addition, the Court had an inherent authority to act and was not constrained by the existing vexatious litigant’s legislation. Ongoing restrictions could be imposed where future abusive litigation is anticipated. The restriction, of requiring permission to continue or initiate legal proceedings, was seen as minimally impairing Mr. Unrau’s access to the courts.

This “modern” approach should provide some relief to regulators who experience such challenges. Obviously, this relief is limited as it does not necessarily apply to regulatory proceedings themselves. In addition, regulators often have to initiate legal proceedings on their own to protect the public and a vexatious litigant will have a right to respond.

Proving Inadequate Supervision of Unregistered Persons

BLeBlanc_Webby Bernie LeBlanc
May 21, 2019

Most professions have standards of practice (written or unwritten) about what tasks a practitioner can and cannot delegate to an unregistered assistant. However, it is always difficult to prove whether there was a pattern of inadequate supervision since the amount of supervision not provided is difficult to articulate. In Farkas v The Law Society of Ontario, 2019 ONSC 2028 (CanLII), <http://canlii.ca/t/hzgk2> the issue was whether the lawyer provided sufficient supervision to his unregistered staff in the filling out of refugee claim forms. The practitioner and some of the staff who worked for him testified as to his training of the staff, his personal involvement in meeting with the clients and his reviewing of the forms. However, the forms themselves were generally inadequate according to expert testimony inferring that there must have been minimal practitioner involvement. A former staff person and two clients testified as to almost complete lack of involvement of the practitioner in their cases and that the forms were signed while blank (or almost blank) and were filled in by staff who made up the contents. The Court upheld the credibility findings of the tribunal based on this combination of lay and expert opinion evidence, and because the tribunal provided good reasons for its decision.

On the issue of costs, the Court upheld a large award ($200,000) because the tribunal’s reasons took into account the following factors: “the length of the hearing, the costs requested, the time necessary for preparation, the extensive cross-examination of the appellant, the lack of evidence of financial hardship, and comparable cases that had come before the [regulator].”

Geographical Jurisdiction over a Practitioner’s Conduct

Maciura_Julie_5038by Julie Maciura
May 16, 2019 

Regulators often say that they have jurisdiction over a practitioner for their misconduct regardless of where it occurred. That proposition makes sense. The public is at risk if a practitioner is unethical or incompetent even if in the past that behaviour has only been demonstrated elsewhere. But how far does this proposition extend? Pretty far according to Saplys v Ontario Association of Architects, 2019 ONSC 1679, http://canlii.ca/t/hzs49.

In that case a practitioner was alleged to have, among other things, engaged in work with a client of a former architectural firm on the same building project for a similar purpose. Under the rules in Ontario, practitioners are required to give notice of this retainer to the former architectural firm. He had not done so in this case. One of the projects was in Saskatchewan, where that rule about giving notice to the previous firm did not exist. The Divisional Court of Ontario upheld the finding by the Ontario regulator for breaching the Ontario rule. The Court held that the rule could apply to out-of-province work. It rejected the argument that the jurisdiction over the person should be limited to conduct that involves moral turpitude or that engages a concern about the protection of the public in Ontario.

The Court also held that the discipline tribunal properly excluded expert opinion evidence on the interpretation of the language in the legislation related to the scope of practice of the profession. Expert evidence regarding the usual practice of the profession or an alleged common understanding was not relevant to this issue and would not assist the panel members including those who were not architects. The Court said the expert evidence did not relate to the standard of care of an architect nor did it involve any technical or scientific knowledge that could only be understood by the Committee with the assistance of an expert.

Failing to Comply with a Remedial Order

ERichler_Webby Erica Richler
May 13, 2019

Some regulators have the ability to impose mandatory remediation (e.g., attend for a caution, complete a course) when disposing of a complaint or investigation without first conducting a hearing or making a finding of wrongdoing. In Cartier v College of Nurses of Ontario, 2019 ONSC 2289 (CanLII), <http://canlii.ca/t/hzmhl> the practitioner refused to complete mandatory remediation because she believed that the allegations in the investigation were unfounded. When the regulator disciplined her for not complying with the remedial order, her defence was that there was no basis for the order to have been made in the first place. The tribunal concluded she was obliged to comply with the order.

The Divisional Court agreed. It said that neither the discipline tribunal nor the Court had the jurisdiction to assess whether the screening committee’s mandatory remediation order was well founded. That would be a collateral attack on the decision of the screening committee. If the practitioner disagreed with the mandatory remediation order, she should have sought a review or appeal through the proper channels.

Interestingly, the regulator cross-appealed the discipline decision on the basis that the tribunal did not find that the refusal to comply was dishonourable (it was only unprofessional). The tribunal found that to be dishonourable the conduct had to include “deceit, dishonesty or moral failing”. The regulator argued that conduct could be dishonourable if it “brings shame upon the profession and the Member”. The regulator argued conduct that was “deliberate, knowing or reckless disregard for professional obligations” was also dishonourable. The Divisional Court declined to formulate a definition of the words “dishonourable, disgraceful and unprofessional” and simply found that it was open to the tribunal (having heard the practitioner explain why she did not comply with the order) to conclude that her misguided views were only unprofessional and were not also dishonourable.

Protecting Quality Assurance Information

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by Rebecca Durcan
May 6, 2019

Professional regulators in British Columbia are subject to freedom of information legislation. As a result, individuals can apply to the Information and Privacy Commissioner to review a regulator’s refusal to provide such access. This regime led to a showdown in College of Physicians and Surgeons of British Columbia v British Columbia (Information and Privacy Commissioner), 2019 BCSC 354, <http://canlii.ca/t/hz4n1>.

A component of the quality assurance program for physicians in British Columbia involves multi-source feedback (MSF). Colleagues, coworkers and patients are asked to submit a confidential survey to a third party firm. The third party compiles the survey results in aggregate form and provides a report to both the practitioner and the regulator. This information is scored against results of the practitioners’ peers and, along with information gathered by other components of the quality assurance program (e.g., an analysis of patient charts, a review of office procedures), results in feedback to the practitioner and potentially remedial action.

In this case the practitioner sought access to copies of the actual survey forms. The regulator refused. Recourse was sought before the Information and Privacy Commissioner whose representative ordered that the surveys be provided to the practitioner. The regulator sought judicial review. The Court concluded that a purposeful interpretation of the legislation required that the public interest in the effective quality assurance program took priority. This necessitated that the confidentiality interests of the individuals answering the survey took precedence over the access interests of the practitioner. Otherwise the MSF component of the quality assurance program would be placed in jeopardy by a lack of candid (or any) participation.

The order of the Information and Privacy Commissioner was quashed.

Duty of Candour Exists in Canada

Maciura_Julie_5038by Julie Maciura
May 2, 2019 

One of the more significant developments in the regulation of health professions in the UK is the codification of the duty of candour when an error is discovered: https://www.sml-law.com/wp-content/uploads/2019/03/Greyar234.pdf. Some professions in Canada have similar obligations. In Law Society of Alberta v Schuster, 2019 ABCA 111, <http://canlii.ca/t/hzbjj> the Court upheld as reasonable the discipline finding against a lawyer who failed to inform his client of an error where $300,000 was deposited into the wrong trust account and was not immediately retrievable. The Court agreed that this error was material and that, even though the client expressed the desire not to be kept informed of all the operational details of the project, this error should have been disclosed.

The Court also found that there was no unfairness in the discipline tribunal taking a different view of the nature of the conduct than that expressed in the original complaint and investigation report.

Complaints Against Adjudicators

ERichler_Webby Erica Richler
April 29, 2019

Some practitioners act as adjudicators. What is the role of regulatory bodies when dealing with complaints about practitioners acting in their capacity as an adjudicator? This issue was touched upon, but not fully addressed, in Cuhaci v College of Social Workers (Ontario), 2019 ONSC 1801, <http://canlii.ca/t/hz74q>. Ms. Cuhaci, a social worker, arbitrated a custody dispute. Afterwards, a complaint was made about her conduct. While the screening committee initially indicated it had no role in respect of the actual adjudication, it went on to make some comments suggesting that it may have considered her actions in that capacity. Ultimately the screening committee issued advice about the clarity of the practitioner’s communications, which advice was not confined to the adjudication decision. The practitioner sought judicial review.

The Court held that the application was moot:

The applicant still has a license to practice as a social worker, and there are no conditions or restrictions on her license. She faces no professional jeopardy as a result of the outcome of this complaint.

The Court almost exercised its discretion to hear the matter anyway to clarify the jurisdictional issue, but declined to do so, in part because:

… counsel for the College conceded that the Complaints Committee may have overstepped in this case, and that the College does not have jurisdiction to investigate the decision making process of a social worker engaged in the functions of an arbitrator in the context of family law proceedings.  She argued that there may be circumstances that would warrant the College’s intervention, if for example the member had an intimate relationship with one of the parties, but she agreed that the decision making process and the decision itself do not fall within the College’s jurisdiction.

Interestingly, there was also a procedural issue in that the screening committee made its decision without disclosing all of the complainant’s submissions to the practitioner. However, the Court was satisfied that the regulator cured the concern, on the facts of this case at least, by providing the materials after reaching its decision, receiving further submissions from the practitioner, and then rendering an addendum to its decision. In any event, the Court also found this issue to be moot.

Time Might Eventually Be Enough

BLeBlanc_Webby Bernie LeBlanc
April 23, 2019

How long should a major breach of trust of a sexual nature with a minor exclude someone from practising in a different profession with little exposure to minors? That was the issue in CS v Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONSC 1652, <http://canlii.ca/t/hz16c>. The practitioner applied for registration as a real estate salesperson. However, she had been a teacher and had participated in a long-term sexual relationship with a former student (who became her foster child) for which she was found criminally responsible. In addition, her status as teacher was revoked. The Registrar (and the appeal tribunal) found that this breach of trust was so serious that it was reasonable to assume she might not practise the real estate profession with honesty and integrity.

The Divisional Court upheld the finding:

The appellant committed a serious set of criminal acts involving violations of trust in the fairly recent past. She was not dissuaded by the school principal, her CAS training, or her own moral compass, from abusing someone to whom she was duty-bound and who she undertook to protect.

However, the Court indicated that it was unreasonable to expect the applicant to have self-reported her criminal conduct at the time; concealment was a natural aspect of the criminal conduct itself. In addition, the Court indicated that the passage of time may eventually be sufficient to permit registration as a real estate salesperson:

Almost nine years have now passed since the victim terminated his relationship with the appellant. I agree with the LAT [Licence Appeal Tribunal] that the reasonableness of relying upon past breaches of trust to ground an inference concerning future risks to the public may well be affected by the passage of time.

Arguably, this contrasts with the perspective that the passage of time is not, in itself, sufficient in the case (albeit with different facts) of: Chen v Alcohol and Gaming Commission of Ontario, 2019 ONSC 1680 (CanLII), <http://canlii.ca/t/hz16b>.

Time and Stability Is Not Enough

BLeBlanc_Webby Bernie LeBlanc
April 23, 2019

Seven years ago Ms. Chen was excluded from all gaming sites by the Alcohol and Gaming Commission for engaging in loan sharking: Chen v Alcohol and Gaming Commission of Ontario, 2019 ONSC 1680, <http://canlii.ca/t/hz16b>. The Registrar declined to lift the exclusion order despite the passage of time and a stable employment and family history during the past seven years. The Divisional Court upheld the Registrar’s decision concluding that it was “was reasonable, given the gravity of the past conduct and the applicant’s failure to provide adequate information showing she appreciated the gravity of the past conduct and demonstrated there was not a risk of reoccurrence”. The Court also found that the paper reinstatement process was procedurally fair given that Ms. Chen had a full opportunity to present her case and that meaningful reasons had been given.

Time and stability were insufficient on their own to warrant reinstatement, on these facts at least. However, in other cases the courts hold out the promise that eventually the passage of time might be sufficient: CS v Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONSC 1652 (CanLII), <http://canlii.ca/t/hz16c>.

The Cayton Report

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by Rebecca Durcan
April 15, 2019

The Cayton report released on April 11th contains a detailed review of the performance of the College of Dental Surgeons of British Columbia. It identified serious deficiencies in the governance of the regulator. It also concluded that there were gaps in the regulatory performance of the regulator in eleven areas. It commented on a number of areas for improvement in its external relationships with various groups. It concluded that the regulator was not focussed exclusively on its public interest mandate, particularly in the area of public safety.

The report makes a number of sweeping short term and long term proposals for regulatory reform for all health professional regulators. These include: a completely appointed Board of twelve people, half of whom are public members; merging regulators; separating out the adjudication of discipline matters and the operation of a single public register; and the creation of an oversight agency that would review and report on the regulatory performance of the regulators.

This report is broadly consistent with recent developments in British Columbia, and other provinces including Ontario and Nova Scotia and the regulatory regime that has existed in Quebec for many years. More to come.

The Cayton report can be found at: https://www2.gov.bc.ca/assets/gov/health/practitioner-pro/professional-regulation/cayton-report-college-of-dental-surgeons-2018.pdf.

Incapacity Incongruity

Maciura_Julie_5038by Julie Maciura
April 8, 2019 

Regulators encourage practitioners with a disability to participate in assessment and treatment with the hope that the practitioner can remain in practice. Correspondingly, practitioners with health issues often cooperate with their regulator in their assessment and treatment in the anticipation that they will remain in practice. However, what happens when the assessment and treatment indicates to the regulator that the practitioner may not be able to practise safely and the practitioner disagrees? While regulators try to be as accommodating as possible (not only because it is a human rights obligation, but also to encourage participation in remedial programs), client safety has to come first.

In Collett v College of Physicians & Surgeons of Alberta, 2019 ABCA 86 (CanLII), <http://canlii.ca/t/hxvvm> a physician, on his own volition, attended a neuropsychological assessment that identified some cognitive concerns. The physician declined to pursue further investigation into the concerns and refused repeated requests to cease practising until the cognitive concerns could be addressed. The regulator suspended the physician’s ability to practise until he could demonstrate that the cognitive concerns would not interfere with it. The physician applied to the courts to lift his suspension. The Court refused both on the basis that no error appeared to have been made in the process leading up to the suspension and because the public interest in allowing the regulator to fulfill its mandate outweighed the harm to the physician.

Referencing Absolute and Conditional Discharges in the Public Register

ERichler_Webby Erica Richler
April 4, 2019

Some regulators publish information about criminal findings against their members in a public register so that the public has access to this information. In fact, this is now mandatory for the regulated health professions in Ontario.

A recent Ontario Court of Appeal case raises questions about whether the Criminal Records Act imposes any restrictions on a regulator in publishing absolute or conditional discharges in their public register (a discharge is an outcome in a criminal proceeding where the court finds the defendant guilty of a criminal offence, but there is no resulting conviction). The Criminal Records Act sets out special rules that apply to absolute and conditional discharges. One year after receiving an absolute discharge and three years after a conditional discharge, the matters are excluded from the person’s criminal record.

In the recent case of R v Montesano, 2019 ONCA 194, <http://canlii.ca/t/hxzc3>, the Court of Appeal concluded that the Criminal Records Act prevented the Crown in a spousal assault case from advising the sentencing judge that the defendant had previously received an absolute discharge for an earlier finding of spousal assault. The Court held that the Criminal Records Act prevented any disclosure of that absolute discharge (without prior approval by the Minister). The Court went on to say that the Crown could refer to the fact of the previous assault, but not the fact of the discharge.

This decision does not apply directly to the question of whether provincial regulators can publish absolute discharges on their registers. The brief Court of Appeal reasons suggest broad application of the Criminal Records Act. However, posting information on a regulator’s public register about a regulated professional in the public interest is arguably a very different context than a sentencing hearing in the criminal justice system. And it would seem puzzling if a regulator could post the more prejudicial information (i.e., the criminal finding) in a public register but could not include the more mitigating information (i.e., that a court felt the circumstances did not require a punishment and ordered a discharge). Following this case, regulators may face challenges from their members about the proper use of information about absolute and conditional discharges.

Regulators Have No Vicarious Liability for Actions of Practitioners

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by Rebecca Durcan
April 1, 2019

The Courts have affirmed yet again that regulators are not vicariously liable for the conduct of the people they regulate. Vicarious liability is legal responsibility for the damage caused by a third party. An example would be that an employer might be vicariously liable for the harm done by its employee arising from the employee’s performance of work duties. Vicarious liability is often accompanied by a claim that the third party breached a duty to properly supervise the person causing the harm.

In Yashcheshen v College of Physicians and Surgeons of Saskatchewan, 2019 SKQB 43, <http://canlii.ca/t/hxq6r> a self-represented litigant sued both a physician (Dr. Bowen) and the physician’s regulator for the denial of insurance benefits because of an unsupportive medical report. In respect of the regulator, Ms. Yashcheshen claimed that the regulator’s handling of her complaint against the physician amounted to “systematic negligence, which occurs within their complaints process to purposefully evade responsibility for their member”.

On the issue of vicarious liability, the Court said:

There must be some sort of nexus or relationship between Dr. Bowen and the College in order to meet the test for vicarious liability and such a relationship simply does not exist. Dr. Bowen is not an employee of the College. He is a member of the College, as a statutory body, by virtue of being a physician in Saskatchewan. The College is Dr. Bowen’s governing professional body but that relationship does not create vicarious liability on the part of the College in the circumstances of this case.

This decision is consistent with past decisions on the issue.

Removing Information from the Public Register

BLeBlanc_Webby Bernie LeBlanc
March 26, 2019

There is increasing pressure on regulators to provide more information about practitioners who have engaged in behaviour of concern. As a result there is increasing reluctance by regulators to remove information from the public register once it is posted. Practitioners, however, often feel it is unfair that public register information remains public permanently. Those issues came to a head in De Santis v Ontario College of Teachers, 2019 ONSC 1344, http://canlii.ca/t/hxqb8.

In 2014 Ms. De Santis was disciplined and, following a joint submission, was reprimanded and required to engage in remedial activities. She completed the remedial activities at which point the details of that term, condition and limitation was removed from the public register. She asked for the reference to the reprimand be removed as well. The Registrar declined the request because the by-laws indicated removal would only occur if a reprimand was the only sanction ordered. Ms. De Santis sought judicial review.

The Court upheld the Registrar’s decision. The wording of the by-law was clear. More than a reprimand had been ordered. The removal of the specifics of the remedial program from the public register did not alter the nature of the original order. The Court declined to evaluate the public policy rationale (or reasonableness) of the by-law.

Criteria for Measuring a Successful Regulator

Maciura_Julie_5038by Julie Maciura
March 18, 2019 

Last month the Professional Standards Authority of the UK published an update of the criteria it uses to assess the performance of the regulators it oversees. There are eighteen specific standards listed. Most of the standards are what one would expect including:

  • Complete transparency about the regulator’s activities and processes
  • Professional standards are published and regularly reviewed
  • Regular guidance provided to the profession including on emerging risks
  • Up to date educational requirement for registration
  • An accurate and current public register
  • Fair, efficient and proportional registration process
  • Ensuring that practitioners continue to be fit to practise (i.e., quality assurance)
  • Anyone must be able to raise a concern with the regulator about a practitioner
  • Fair and proportionate disciplinary investigations, screening and hearings that prioritize client service and safety, and
  • Prioritizing cases involving serious risk to safety including use of interim orders.

Some of the standards reflect values that may be of more recent origin or may be seen as innovative compared to views about successful professional regulation in previous decades:

  • Clear purposes and continuous learning applied to every regulatory activity
  • Recognizing the diversity of practitioners and clients and ensuring there are no inappropriate or discriminatory barriers
  • Reporting on the regulator’s performance and demonstrated learning from any public findings related to the regulator
  • Enforcement against unauthorized practice and use of titles is proportional and risk-based (i.e., not protective of the profession) and
  • Supporting all participants in a complaint to participate effectively.

The points listed above are only a summary. Each standard is loaded with meaning. The full document may be seen at: https://www.professionalstandards.org.uk/docs/default-source/publications/standards/standards-of-good-regulation-2018-revised.pdf?sfvrsn=ce597520_4

Staying Discipline Orders During an Appeal

ERichler_Webby Erica Richler
March 11, 2019

The question of whether a discipline order is stayed (or halted) when there is an appeal to court depends on the applicable statute. In Abrametz v The Law Society of Saskatchewan, 2019 SKCA 21, <http://canlii.ca/t/hxp2j> the legislation provided that the disbarment of the practitioner took effect immediately unless the court ordered a stay. Mr. Abrametz was disbarred for conduct related to his management of trust accounts. Mr. Abrametz requested a stay of the order until the appeal was heard, with conditions of ongoing supervision. The Law Society opposed the request and argued that the Court had no jurisdiction to impose conditions (it could only impose a stay or not).

The Court granted a stay and found that the authority to impose a stay included the authority to impose terms and conditions.

The usual three-part test applied to the motion: (1) whether the appeal raised serious issues; (2) whether the practitioner would suffer irreparable harm if the stay was not granted; and (3) whether the balance of convenience favoured granting a stay. Mr. Abrametz raised some arguable issues. The Court indicated that common sense indicated that he would suffer irreparable harm by way of significant economic hardship in having to close his practice and then rebuild it up again if he was successful on the appeal. In addition, his clients would experience delays and additional costs in having to locate another lawyer mid-way through their cases. The Court considered the public interest in commencing the sanction now that a finding was made and maintaining public confidence in the profession. However, those considerations were outweighed by the harm to the practitioner on the facts of this case. On this balance of convenience assessment, the Court was particularly influenced by the fact that the public would be protected by the supervision terms and conditions. They were similar to those imposed on the practitioner for the almost six years while the investigation and hearing took place. Also, the hearing of the appeal was scheduled on an extremely timely basis.

The Court indicated that stay decisions would depend very much on the facts of the case.

Limits to Accommodating Self-Represented Practitioners

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by Rebecca Durcan
March 4, 2019

Courts are, justifiably, quite concerned about the plight of litigants appearing at hearings without legal assistance. Courts have imposed a number of duties on tribunals including an ongoing duty to explain the process and ensure that the party is able to fully participate. Tribunals even have some obligation to raise legal concerns that a party may not appreciate. However, Courts do not view these accommodations as unlimited.

For example, in Hill v College of Physicians and Surgeons of Ontario, 2018 ONSC 5833, <http://canlii.ca/t/hvd70> the physician was without legal counsel for the hearing itself. The Court upheld the decision of the hearing panel to exclude expert evidence tendered by the physician where the expert witness was not available for cross-examination. The Court also supported the panel’s decision to exclude irrelevant good character evidence of the physician at the hearing of finding. Additionally, the Court found that there was no duty of the panel to then consider the previously excluded (but perhaps now relevant) evidence on the issue of penalty when the physician did not attend the penalty portion of the hearing. The panel was commended for providing many procedural accommodations (including multiple adjournments), but was not required to accommodate the physician on substantive law.

Public Interest Litigation Against Investigators

BLeBlanc_Webby Bernie LeBlanc
February 25, 2019

Can the courts be used to effect change in the way that investigators conduct their inquiries? That issue is squarely raised in Williams v London Police Services Board, 2019 ONSC 227, <http://canlii.ca/t/hwxbr>. Representative plaintiffs and a well-known legal aid clinic that focusses on addressing violence against women sued a municipal police service for systematically declaring complaints of sexual assault as unfounded “based on sexual stereotypes and myths about sexual assault and sexual assault complainants”. The plaintiffs sought a declaration that the rights of sexual assault complaints under s. 15 of the Canadian Charter of Rights and Freedom were infringed, implementing a “Court appointed external review panel to review all LPS sexual assault cases that have been closed as “unfounded”” and damages. The police service moved to strike out the claim on various grounds including that claims were frivolous, that the legal aid clinic did not have standing to be a party and that the relief sought was not available in law.

The Court rejected those arguments and allowed the claim to continue. The Court held that it was not clear and certain the claim would fail and that it should be allowed to proceed. The Court did require some changes to the pleadings, but nothing that altered the ability of the action to proceed.

Regulators should be aware that claims for systemic discrimination against investigators are possible in Canada.

Evidence in Judicial Review of Examination Appeals

Maciura_Julie_5038by Julie Maciura
February 19, 2019 

Wan v The National Dental Examining Board of Canada, 2019 BCSC 32 (CanLII), <http://canlii.ca/t/hwz7b> the Examining Board was permitted to file an affidavit from an expert explaining the process. The applicant objected arguing that the evidence offended the fresh evidence rule but the Court admitted the evidence finding that it really was appropriate to the context:

In contrast to the objectionable fresh evidence in Air Canada [2018 BCCA 387], I find that the evidence the petitioner identifies as objectionable in the Gerrow Affidavit is not fresh evidence. It does not seek to adduce evidence of facts that were not before the tribunal, nor does it somehow reconstruct or step outside of the bounds of the Decision. Rather, in general, it is evidence that relates to the policies and procedures employed by this specialized tribunal and which would have been known to the Appeals Committee members. It permissibly summarizes, explains and consolidates some of the more technical information contained in the documents that make up the record; provides general background information that assists me in understanding the history and nature of the case; contains a written description of the physical evidence that is not before me but that forms part of the record before the Appeals Committee; and provides information on matters that are of common understanding to those in the dentistry field and the foundation from which the Appeals Committee approaches an appeal. Overall, the evidence contained within the Gerrow Affidavit helps educate me on matters that are within the specialized expertise of the Appeals Committee and which form the common understanding of those who operate in this highly particular field.

Examining appeal bodies can rely on this decision to provide guidance as to what should and should not be included in their affidavits on judicial review. Prudent examination bodies might include much of this information as part of their record when processing the examination in the first place (e.g., by notifying applicants of the background documents) so no affidavit is necessary in a future proceeding.

Holding Out

ERichler_Webby Erica Richler
February 11, 2019

Unregistered persons can be creative in the use of language to describe themselves and their services. When there is a risk that members of the public might confuse those unregistered persons with regulated practitioners, the courts’ powers can be invoked. That occurred in the case of the College of Physicians and Surgeons Of New Brunswick v Anhorn, 2018 NBQB 246 (CanLII), <http://canlii.ca/t/hww05>. In New Brunswick, the naturopathy profession is not regulated. The issue in the case was whether naturopaths using phrases like “medically trained” and “practice of family medicine” to describe themselves or their naturopathy practice could reasonably be viewed as holding themselves out as physicians. The Court was of the view that they were illegally holding out and that the phrases they used “are misleading because that assumes that people understand what exactly is naturopathy”.

This case should be read with some caution, at least in the five jurisdictions in Canada (including Ontario) where naturopaths are regulated and are subject to various requirements when describing themselves and their practice. The Anhorn case is a lower court decision from another province where naturopathy is not regulated. However, the case suggests that whether there is “holding out” should be assessed from the perspective of a consumer who is not familiar with the professions in issue.

Staying out of Civil Proceedings

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by Rebecca Durcan
February 7, 2019

Most regulators have a statutory confidentiality provision. Some, but not all, of those provisions protect regulators from having to produce information or act as a witness in civil disputes: F. (M.) v Dr. Sutherland, 2000 CanLII 5761 (ON CA), <http://canlii.ca/t/1cwt9>. A recent decision addressed the right of a claimant to obtain a Norwich order providing access to information about security trades to ascertain whether other, unknown, persons had manipulated the market: Harrington Global Opportunities Fund S.A.R.L. v Investment Industry Regulatory Organization of Canada, 2018 ONSC 7739 (CanLII), <http://canlii.ca/t/hwqz7>. The regulator, IIROC, did not have a statutory provision protecting it from such involvement. However, even without such a provision, the court still refused to grant the disclosure order.  This decision articulates the rationale as to why such confidentiality provisions (or concepts) exist.

The Court refused to issue the disclosure order primarily on the basis that IIROC’s regulatory role required it to process complaints and, where appropriate, take regulatory action. Such a role did not create a “proximity” to the claimant such that it should be required to assist the claimant in their private claim. IIROC’s decision to maintain confidentiality about the evidence gathered in its investigations resulted from its regulatory role, respect of individuals’ privacy and desire to maintain access to sources of information for future investigations. In some respects, the claimant’s application was a collateral attack against the decision of IIROC to not proceed with the claimant’s complaint.

The Court also held that the regulator’s interest in preserving its investigative processes outweighed the claimant’s interest in pursuing its civil claims for damages.

Discretion to Refuse to Process Complaints

BLeBlanc_Webby Bernie LeBlanc
February 4, 2019

Policy makers are torn about how much discretion to give regulators to refuse to process complaints that are outside of the regulator’s jurisdiction or are otherwise without merit. The competing values, on the side of minimal discretion, include ensuring that the complaints process is available to all, that serious issues are not missed on a preliminary screening, and that the process be held accountable. On the other hand there is the value of ensuring that regulators are permitted to focus their resources on serious concerns and not waste them on matters that are unlikely to go anywhere.

Some statutes require all complaints to be formally investigated and determined. Others require any decision not to proceed with the matter to be handled by a statutory committee that has public representation. Some Acts permit staff to decline to process a complaint. Legislation also varies as to whether there is an external review of decisions not to process a complaint.

An example of a complaints process where maximum flexibility is given to the regulatory body is found at: Fabrikant v Law Society of Ontario, 2018 ONSC 7393, <http://canlii.ca/t/hwj6n>. Dr. Fabrikant made a complaint against a lawyer who advised a human rights commission. The basis of the complaint was that Dr. Fabrikant was not given access to the lawyer’s advice to the commission. The lawyer’s regulator took no action on the complaint because it related to a legal dispute and not the professionalism of the lawyer’s conduct and was, therefore, outside of the jurisdiction of the regulator to address.

The Divisional Court held that the enabling legislation gave the regulator discretion as to how the complaints were to be screened. Under the legislation it was open for a staff person at the regulatory body to decide not to proceed with a complaint that was outside of the mandate of the regulator. In addition, the complaints review process was only available for disposition of complaints on their merits and was not available for complaints screened out by staff on a preliminary basis for not being within the mandate of the regulator.

The facts of this case might illustrate why policy makers gave such a broad discretion to this regulator to decline to process complaints.

Not Vague and Unenforceable

Maciura_Julie_5038by Julie Maciura
January 28, 2019 

In Francis v Newfoundland and Labrador Pharmacy Board, 2018 NLSC 248, http://canlii.ca/t/hwgdr a group of pharmacists tried a second time to challenge the validity of provisions in the regulator’s standards of practice and by-laws. Their challenge was that the provisions dealing with the following were too vague and were unenforceable:

  • A requirement for pharmacies to be connected to a provincial database;
  • A requirement to have equipment to scan documents;
  • A requirement for pharmacists to have a patient consultation area;
  • The authority for the regulator to issue a conditional licence as one of its registration options;
  • Adding the charging of excessive fees to the definition of professional misconduct; and
  • Adding practising in a conflict of interest to the definition of professional misconduct.

In a previous application for an interim injunction to prevent the provisions from taking effect, a court had upheld each of these provisions either on their merits or because the issue was moot for the practitioners bringing the proceeding: Francis v Newfoundland and Labrador Pharmacy Board, 2016 CanLII 97222 (NL SC), <http://canlii.ca/t/gx7bn>. In the present case the Court held that the practitioners could not re-litigate the issues in a different proceeding.

Mistakes vs. Misconduct

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by Rebecca Durcan
January 22, 2019

It is generally accepted that not all mistakes by practitioners constitute professional misconduct. Sometimes drawing that line is difficult. In other cases it is relatively easy. In Strother v Law Society of British Columbia, 2018 BCCA 481, http://canlii.ca/t/hwqtx, a lawyer advised Client A that their business model was no longer possible under income tax law. Client A wound down the business as a result of the lawyer’s advice. Later Client B (a competitor of Client A) pointed out to the lawyer another approach that might make the business model feasible. The lawyer changed his opinion and went into business with Client B. Client A was not informed of either the change of opinion or of the lawyer’s participating in a competitor’s business.

The lawyer argued that he was honestly of the view that his fiduciary obligations to Client A had ended and that this mistake should not constitute professional misconduct. The lawyer suggested the line between mistakes and misconduct should be articulated as follows:

… professional misconduct is conduct that no reasonable and well-informed lawyer acting with care and deliberation would fail to recognize as wrong; that is, conduct on which there could be no serious dispute among reasonable and well-informed lawyers that it was a breach of professional obligations.

The Court indicated that this formulation was too restrictive. The Court described the actual test as follows:

However, in my view, it is important to state with clarity the accepted test for professional misconduct. The test is that articulated by the Law Society in Martin and Lawyer 12: a hearing panel will consider whether the lawyer’s conduct was a marked departure from the conduct expected of lawyers. Put another way, the lawyer’s conduct must display culpability of a gross or aggravated nature, rather than a mere failure to exercise ordinary care. While I agree with Mr. Strother that not every breach of professional obligations constitutes professional misconduct, the operationalized definition he proposes adds a different focus.

The Court also said that comments by judges in a civil case as to whether the conduct of the lawyer was unlawful were irrelevant to the issue of whether his conduct was unethical or unprofessional.

Given the finding of the hearing panel that the lawyer had failed to make disclosure to Client A because of his own financial interests, the finding that the lawyer had a conflict of interest was upheld. So was the five month suspension order.

Air of Reality

ERichler_Webby Erica Richler
January 17, 2019

A case that regulators have been following closely seems to have been resolved in favour of the regulator. In Fitzpatrick v College of Physical Therapists of Alberta, 2018 ABQB 989, <http://canlii.ca/t/hwghw> a practitioner who had been disciplined sued the regulator for, among other things, maliciously expanding the scope of the investigation beyond the original complaint and acting in a conflict of interest.

The Court held that the limitation period for such an action began to run when the initial finding of misconduct was made against the practitioner (and not when the sanctioning process or the appeals were completed). Thus the proceeding was initiated out of time.

More interesting for regulators was the Court’s conclusion that when an initial investigation identifies concerns beyond the original complaint, it is appropriate for the regulator to investigate those concerns as well (through proper channels). Doing so is not evidence of malice or bad faith. In addition, a poor choice of words (i.e., calling a suspicious referral system an investigation of “kickbacks”) does not found a claim of bad faith.

Finally the Court concluded that the fact that a tribunal member may have been interested in buying the practice of the practitioner years before the events in issue does not amount to a conflict of interest, at least where no objection on the basis of appearance of bias is made at the hearing.

The Court concluded that the claim had no air of reality and it was summarily dismissed.

Searching for Professionals on Google

Danson_Natasha_6123by Natasha Danson[1]
January 10, 2019

Health regulators have long faced criticism that they lack transparency and that they hide information about their members from the public. This criticism is often frustrating for regulators, particularly because a regulator’s governing statute often prevents them from disclosing the information.

However, every enabling statute allows regulators to share at least some information with the public, and one of the primary ways that regulators achieve transparency is through their public registers. As most readers of this newsletter know, a regulator’s public register is typically a searchable database found on the regulator’s website that contains the names of all members (and sometimes former members) along with specific information about each member, including whether the member has been subject to disciplinary or other regulatory action. The public register is a great tool that can be used to uncover information about regulated professionals, but, unfortunately, many members of the public do not know that such registers exist, let alone how to access them. Some regulators even require that users answer skill-testing questions to verify that they are not “bots”, which arguably makes the information contained on the registers less accessible.

In our experience, when the average computer-savvy person wants to screen a health care professional, they turn to a search engine such as Google. Because of that, we wanted to see if a professional’s register entry (or any information from the regulator) would appear in Google search results. We therefore conducted our own informal survey where we Googled the names of members of the 26 health care regulators in Ontario under the Regulated Health Professions Act, 1991 to see what information was coming up on the Google search engine.

Here is what we found:

  • No discipline: When we Googled the names of health care professionals who were not subject to discipline or another form of public regulatory action (such as a caution or a specified continuing education or remedial program), there were very few search results from regulators’ websites; 20 out of the 26 regulators (77%) did not appear in Google. This may help explain why many members of the public do not know about the existence of regulators’ public registers.
  • Current discipline: We next Googled the names of health care professionals who were currently subject to discipline proceedings. Note that two of the 26 regulators surveyed did not have any members who were currently subject to disciplinary proceedings at the time we conducted this search. Of the remaining 24 regulators, results from 19 regulators (79%) came up on Google when we searched for the names of members currently facing disciplinary action.
  • Past discipline: Results from 16 of the 26 health regulators (62%) appeared in Google for members who had been subject to discipline in the past. For five of the 26 regulators (19%), a member subject to past disciplinary proceedings did not consistently show up in Google, and there were no results that appeared from the remaining five health regulators when we searched their members who had previously been subject to disciplinary proceedings.
  • Other outcomes: We also Googled members who had been subject to other public regulatory outcomes (e.g. cautions, specified continuing education or remedial programs or undertakings). These outcomes were harder to search, and for eight of the 26 regulators we were unable to conduct the search because we did not know the names of members to Google. Of the 18 professions we did search, only four regulators showed those outcomes in Google (22%). No results showed up in Google for the other 14 regulators (78%).

These results suggest that potentially valuable information is not appearing on the platform that is often used by the public to choose health care professionals and to check if there are any red flags. Anecdotally, we understand that many regulators may not want public register results to be searchable on Google because of concerns related to member privacy and the resultant spam mail that members may receive. However, anything that is posted on a regulator’s public register is, by definition, public. Regulators may want to consider doing more to make sure that public information is accessible to the public in a meaningful and practical way, including by ensuring that the information is searchable on Google.

[1] Thank you to Laura Sumner for her tremendous assistance with the research supporting this article and with the article itself.

[This article was also featured in the December 2018 newsletter of the Canadian Network of Agencies for Regulation.]

Particulars of Bad Faith

BLeBlanc_Webby Bernie LeBlanc
January 8, 2019

As a general rule, regulators can only be sued for damages if they act in bad faith. When a person sues a regulator they must give particulars of the bad faith that they allege occurred. Many actions against regulators are dismissed where the bad faith is pleaded too baldly. In Robson v The Law Society of Upper Canada, 2018 ONCA 944, <http://canlii.ca/t/hw70d> the Ontario Court of Appeal allowed an action for malicious prosecution and misfeasance in public office to proceed against the regulator and some of its employees. In this case, the practitioner claimed the investigation and prosecution had been conducted in bad faith in that the regulator had deliberately cherry-picked comments made by a court that the regulator knew to be false, and had deliberately avoided interviewing witnesses during the investigation that would be favourable to the practitioner in order to retaliate against the practitioner who was a thorn in their side. The Court accepted that sufficient particulars had been alleged against the regulator. The proceeding was permitted to proceed to the discovery stage. The Court emphasized that it was making no evaluation of whether these allegations were true; that assessment would occur later in the process.

Refusal of an Adjournment Upheld

Maciura_Julie_5038by Julie Maciura
January 3, 2019 

Discipline tribunals often struggle when a practitioner requests an adjournment to obtain legal counsel. The right to have representation at a hearing affecting one’s livelihood is given significant weight. Also, courts review procedural fairness issues, such as refusing an adjournment request, on a correctness (not reasonableness) basis. However, in Spaetgens v Alberta (Securities Commission), 2018 ABCA 410, <http://canlii.ca/t/hwd8w> Alberta’s highest court upheld a refusal to grant an adjournment to obtain legal counsel (previous legal counsel withdrawing two months before the hearing) because:

  • There was insufficient evidence that the practitioner was diligently searching for new counsel;
  • There was no corroboration that a prospective lawyer would act for the practitioner if an adjournment was granted;
  • The practitioner raised financial problems in retaining a lawyer but provided no explanation as to how those issues would be resolved so that he would, in fact, be able to obtain legal counsel.

In the circumstances the Court concluded that the tribunal was correct in concluding that what was really being requested was an indefinite adjournment. The circumstances included the failure to propose alternative hearing dates, the failure to take steps to obtain the disclosure from a third party that the practitioner said he needed, and that the prosecution witnesses would be prejudiced by the late request for an adjournment, particularly since one of them was in poor health.

The Court did, however, reduce the administrative financial penalty by 75% because the amount was based on a comparison to one when the practitioner was working. A financial penalty for an unemployed person should be less than for an employed person. The length of the trading ban was also reduced to reflect the outcome in other similar cases.

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