2020

REGULATION PRO

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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.

Criminal Search Warrants for a Regulator’s Files

by Erica Richler
August 25, 2020

It is generally accepted that the confidentiality provisions for provincial regulators are subject to federal criminal search warrant powers. Federal law is paramount over inconsistent provincial law. However, the case of Boisvert c. Brisson, 2020 QCCA 906, http://canlii.ca/t/j8m1r indicates that this is not necessarily the end of the matter.

In that case a nurse was disciplined for sexual abuse of vulnerable patients in a psychiatric facility. The patients communicated with the regulator confidentially. Two of the patients went to the police. Four did not. The police obtained a search warrant for the regulator’s files in order to conduct a criminal investigation. The regulator challenged the search warrant arguing that the protection afforded to the public in being able to remove the nurse from practice would be jeopardized if patients could not choose whether or not to participate in the criminal process. The patients might then not be willing to participate in the regulatory process.

The Court agreed that on a case by case basis, such warrants could be quashed because the privilege attached to the regulatory process outweighed the benefits to society of allowing the criminal process to proceed. Applying what lawyers call the “Wigmore test”, the Court protected the regulator’s files in this case.

Acknowledging the Apparent

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by Rebecca Durcan
August 18, 2020

Regulators always need to be, and appear to be, fair. Regulators need the confidence of registrants in order to discharge their mandate to serve and protect the public interest. When a regulator detects that a registrant has not been treated fairly, it needs to rectify that concern. This occurred in Shamess v College of Physicians and Surgeons of Ontario, 2020 ONSC 4108, http://canlii.ca/t/j8k2z. The practitioner was alleged to have “engaged in inappropriate sexual and physical contact with a patient and that he made inappropriate comments to the patient.” The discipline panel found the practitioner’s “evidence of what occurred during the examination at issue was credible, while the patient’s evidence was not credible.” So those allegations were not proved. However, the panel went on to make a finding that the practitioner “should have conducted the examination in a manner that had more regard for the patient’s privacy concerns. These allegations were neither set out in the Notice of Hearing nor raised at the hearing.”

The practitioner appealed on the basis that this outcome was procedurally unfair because he had not been given notice of this “theory of liability” and had no opportunity to present a defence to it. The regulator agreed. As did the Court. The finding and penalty was set aside. However, no costs were awarded against the regulator, on agreement, because of the regulator’s acknowledgment of the apparent.

A Rare Case of Excessive Delay

by Natasha Danson
August 11, 2020

While excessive delay applications in the criminal process succeed with some frequency, that is not the case in regulatory law. Likely this reflects the courts’ recognition that regulatory proceedings are intended to protect the public from harm. This hesitancy is supported by the decision of the Supreme Court of Canada in Blencoe v British Columbia (Human Rights Commission), [2000] 2 SCR 307, http://canlii.ca/t/525t which held that not only must the delay be inordinate, it must also offend the community’s sense of fairness.

In Financial and Consumer Services Commission v Emond et al., 2020 NBCA 42, http://canlii.ca/t/j8bl4, there had been a delay of ten years. At the six year mark the Court determined that the delay had not been excessive, in part because most of it had been generated by one of the individual respondents. However, the subsequent four year delay was another matter. A full year of the delay was caused by the tribunal’s inability to find a French-speaking tribunal member. Additional delay was caused by the tribunal’s erroneous self-initiated concern about its own loss of jurisdiction. The Court said:

While there was and likely remains public interest in having the allegations determined on the merits, that interest is now outweighed by the offence caused to the community’s sense of fairness in allowing the prejudice to be perpetuated because the Tribunal was unable to, for almost a year, constitute a panel of French-speaking members to hear the matter and because the Tribunal itself again raised an issue and determined it in a manner this Court finds to be in error.

Delays caused by a tribunal will weigh heavily in such cases of extensive delay.

No Pandemic Exceptions

by Julie Maciura
August 6, 2020

During the early months of the pandemic the New Brunswick regulator for pharmacists felt the urgent need to be able to waive some of its registration requirements to ensure that there were enough pharmacists to meet the province’s health care demands. However, their registration requirements were set out in mandatory language without the ability to exempt them. In New Brunswick College of Pharmacists v Province of New Brunswick, 2020 NBQB 92, <http://canlii.ca/t/j8hzz>, the regulator asked the Court to use its inherent jurisdiction to enable the regulator to register applicants who did not meet all of the compulsory requirements. The government consented to the application. However, the Court declined the request. The Court viewed its role as interpreting the law, including ensuring that laws comply with the Constitution of Canada. The Court did not see its role as creating law in a manner that was inconsistent with laws already enacted by the Legislature or created by the government (e.g., in a regulation). The Court suggested that the regulator approach the government to enact amending regulations on an urgent basis.

This case illustrates the importance of the Legislature and regulators considering exceptional circumstances when making legislation.

Warning Letters are Not Subject to Judicial Review

by Erica Richler
August 4, 2020

Regulators often warn unregistered persons that they appear to be practising illegally or using an illegal title. These are sometimes called “cease and desist” letters. Can the recipient of a cease and desist letter seek judicial review of such a warning letter? The case of Momentum Decisive Solutions Canada Inc. v. Travel Industry Council of Ontario, 2020 ONSC 3392, http://canlii.ca/t/j808h says no. Momentum disputed the regulator’s assertion in a warning letter that it was acting as a travel agent. However, the Divisional Court determined that such a warning letter was not a statutory power of decision and thus was not subject to judicial review. The regulator had to initiate court proceedings before any consequences would flow to Momentum.

The Court did not accept that judicial review was the appropriate route to obtain clarification as to whether Momentum was acting legally or not; the Divisional Court does not provide legal opinions in the abstract. In any event, even if the Divisional Court had that role, the information in the record was wholly inadequate for the Court to make a decision.

Thus cease and desist letters are not subject to judicial review, at least in these circumstances.

Intervention by a Party’s Former Lawyer

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by Rebecca Durcan
July 30, 2020

When should the former lawyer of a party be able to intervene in a legal proceeding in order to protect their financial and reputational interests? That issue arose in an interesting way in the case of Errol Massiah v. Justices of the Peace Review Council, 2020 ONSC 3644, http://canlii.ca/t/j8837. Mr. Massiah was removed from the office of Justice of the Peace for judicial misconduct. The remaining issue was whether Mr. Massiah should have his legal costs paid by the government. The tribunal had decided against such compensation, in part, on the basis that his lawyer had raised many frivolous and vexatious motions and objections delaying and extending the proceedings. Mr. Massiah’s lawyer sought to intervene in those proceedings to protect his financial and reputational interests.

The Court did not give permission for the lawyer to intervene. Any right to compensation from the government related to Mr. Massiah, not the lawyer. Mr. Massiah had fully addressed the issue and the lawyer would be repeating the same points. While there are some situations in which a lawyer who is being blamed for errors might be given standing to defend their reputation, this was not a case where no one was presenting that perspective. Mr. Massiah was fully defending the lawyer’s actions in presenting his claim for compensation. The Court was also concerned that the lawyer had brought this request to intervene very late in the process and was proposing to tender voluminous additional materials before the court. In some sense the lawyer was seeking to re-litigate issues that had already been determined.

This case illustrates that an intervenor must demonstrate how they would bring an important and different perspective to the matter which would assist the adjudicator.

“Invigorated” Undue Delay Scrutiny

by Bernie LeBlanc
July 20, 2020

Given the strict judicial scrutiny of delays in criminal cases, regulators have been wondering whether those principles would creep into the professional discipline arena. Saskatchewan’s highest court has said yes in Abrametz v Law Society of Saskatchewan, 2020 SKCA 81, http://canlii.ca/t/j8jf3. In that case the lawyer had been the subject of extensive, and hotly contested, investigation into his trust accounts. While there had been no misappropriation of funds, the lawyer was found to have disregarded the rules in a dishonest way, possibly to conceal income from the tax authorities. He also was found to have made loans to clients without full disclosure and charging excessive fees for the loans.

The Court engaged in a technical analysis as to when deference will be accorded to the decisions of a disciplinary tribunal. In applying the Vavilov[1] principles, the Court held that the standard of review on the interpretation of regulatory rules and codes of conduct (similar to the by-laws enacted by many regulators) should be reviewed according to the correctness standard where there is a statutory right of appeal. The previous deference given to regulators in the interpretation of their own regulatory rules no longer applies. Similarly, on the issue of whether a delay was excessive and amounts to an abuse of process, the Court said that this was a procedural fairness issue which should also be reviewed on a correctness standard. No deference should be afforded to the views of the discipline tribunal hearing the case.

On the issue of whether the delay was excessive, the Court discussed the criteria established by in the Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, http://canlii.ca/t/525t case:

For a court to intervene on this ground, it must be satisfied that there has been both inordinate delay caused by the administrative entity, and prejudice of a certain order attributable to that delay. The following principles identified in Blencoe reflect these requirements:

1.  The period of delay must be so inordinate as to be clearly unacceptable (at paras 115 and 121). Whether a delay is inordinate turns on contextual factors, including “the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, and whether the respondent contributed to the delay or waived the delay, and other circumstances of the case” (at para 122).

2.  The party claiming abuse of process must show that the inordinate delay “directly caused [them] a significant prejudice” that is related to the delay itself (at para 115, emphasis added). In order for there to be abuse of process, “the delay must have caused actual prejudice of such magnitude that the public’s sense of decency and fairness is affected” (at para 133).

3.  The analysis requires a weighing of competing interests. “In order to find an abuse of process, the court must be satisfied that ‘the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted’” (at para 120).

4.  A stay is not the only remedy available in administrative law proceedings. However, where a respondent asks for a stay, they will bear a heavy burden (at para 117). A finding of abuse of process is available only in the “clearest of cases” (at para 120).

The Court conducted a detailed analysis of the 53-month delay from the initiation of the investigation and the commencement of the hearing (having found that the length of time to conduct the hearing itself was reasonable). It found that 18 of those months as being attributable to the reasonable process of investigation, screening and hearing preparation for a case of this nature. It attributed 2½ months of the delay to the practitioner. The remaining 32½ months was attributable to undue delay. This analysis relied heavily on the evidence provided by the regulator as to the steps taken in the investigation and screening of the concerns.

The Court found that the practitioner had experienced significant prejudice caused by the delay including practising under a cloud of suspicion, stress that took the form of a medical condition, and practising under intrusive restrictions (e.g., supervision) far longer than necessary.

In balancing the competing harms to the public interest, the Court noted that the allegations were serious, relating to honesty and trustworthiness, worthy of substantial disciplinary action. However, the Court found that prejudice to the practitioner was serious and that the practitioner had practised for years under significant restrictions without other concerns arising. The Court concluded:

It is my view, taking account of all of these contextual factors, that the undue delay in this case was inordinate, and caused actual prejudice of such a magnitude that the public’s sense of decency and fairness would be offended. In these circumstances, the delay would bring the LSS disciplinary process into disrepute. This was the clearest of cases.

For these reasons, there was an abuse of process.

If the Court’s “invigoration” of the principles of Blencoe is adopted by the courts of other provinces, one can expect more frequent and, possibly, more successful challenges based on abuse of process for undue delay in disciplinary matters.

[1] In the case of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, http://canlii.ca/t/j46kb the Supreme Court of Canada established a new approach to reviewing decisions by administrative tribunals. Lower courts are now applying those principles to various types of decisions by administrative tribunals.

Restraining Rogue Registrants

by Bernie LeBlanc
July 14, 2020

Regulators, by their public nature, have to be prepared to accept criticism; even unfair criticism. Indeed, Courts have the power to prevent regulatory authorities from trying to limit some forms of public discourse: Ontario College of Teachers v Bouragba, 2019 ONCA 1028, http://canlii.ca/t/j49mq. However, at some point, regulators can take legal action against defamatory statements or abusive conduct.

In The College of Pharmacists v Jorgenson, 2020 MBQB 88, http://canlii.ca/t/j897w a pharmacist believed that the action, or inaction, of the College had led to the death of indigenous people in the northern part of Manitoba. He made a complaint to his regulator. He then made a number of public statements claiming that the regulator had covered up the misconduct in part because of racist attitudes and racial profiling. He also communicated persistently with representatives of the regulator, particularly staff, such that they “expressed concerns about their safety, Mr. Jorgenson’s erratic conduct, and the anxiety and stress that they experienced”.

The Court found that the statements were defamatory and made without justification. The Court also held that the conduct towards regulatory representatives constituted legal nuisance. The Court awarded judgment in the amount of $150,000 plus legal costs and granted a detailed injunction protecting the staff and other representatives of the regulator from future contact or communications from the practitioner.

Regulators have recourse for practitioners who cross the line from criticism, even unfair criticism, to defamation and nuisance.

Alberta’s Regulatory Reform

by Julie Maciura
July 7, 2020

Yesterday Alberta introduced Bill 30 that will require public appointees (who are not members of the profession) to constitute 50% of the Council and core committees of its 29 health profession regulators. This simple change will have significant implications. One half of the government appointees of the governing Council for each health regulator will be appointed directly by the government. The Council establishes the priorities and policies of the regulator and has oversight of the effectiveness of the regulator in protecting the public interest. In addition, one half of the committee members and panels of the complaint review committee and hearing tribunal of each health regulator will have to be publicly appointed. Previously only 25% were publicly appointed. This change will end the decade-long established practice where elected members of the profession formed the majority of the Council and committees. Regulators will have to revise their by-laws to adjust the size of their Councils, deciding whether to simply make them larger or whether to reduce their size at the same time as the 50% requirement is achieved.

The Bill signals that, conceptually, health professional regulation in Alberta will no longer be self-regulation by the profession. Rather, it is shared regulation between the profession and the public to serve and protect the public interest.

The change follows much more comprehensive reform proposals for the regulation of health professions in British Columbia. The BC reforms have not yet been introduced in their Legislative Assembly. As significant as the Alberta proposal is, it falls short of the comprehensive reforms proposed by recent studies across Canada. For example, Bill 30 does not implement a skills and competency based selection process by an independent body. Professional members will still be elected and public appointees can be selected on any basis deemed fit by the government, including political connections. This revision still remains a perspective-based model of governance as opposed to a competency-based model. The Bill also does not require Councils to be reduced to a workable size (e.g., 8-12 people). In fact, the result might well be larger Councils. Bill 30 also does not address other proposed reforms under active discussion such as combining health regulatory Colleges into fewer bodies or the establishment of an oversight body.

However, Bill 30 reinforces the sense that the regulation of professions across Canada is in for a period of rapid change.

The Bill can be found at: https://www.assembly.ab.ca/net/index.aspx?p=bills_status&selectbill=030&legl=30&session=2

Duty of Regulators to Assist Struggling Practitioners

by Julie Maciura
June 30, 2020

In Jhanji v The Law Society of Manitoba, 2020 MBCA 48, http://canlii.ca/t/j7sqc, an internationally trained lawyer was the subject of multiple concerns. Both judges and colleagues had raised concerns about the practitioner’s competence, primarily in making incomprehensible written and oral submissions. The regulator conducted a practice review which found broad ranging concerns. It recommended a series of remedial steps including practising under the supervision of another lawyer. The practitioner declined to accept the remedial steps. The regulator then referred the concerns to discipline and imposed an interim order suspending the practitioner’s ability to practise. The regulator concluded that the concerns were so broad ranging and the practitioner’s unwillingness to pursue other measures left suspension as the only option that would protect the public.

The Court affirmed the decision. It found that the procedure followed was fair. The practitioner had no right to attend the meeting at which the allegations were referred to discipline. In addition, the regulator had provided disclosure and heard from the practitioner in person before ordering the suspension. The Court rejected the practitioner’s argument that the regulator had a duty to assist a struggling practitioner rather than order an interim suspension:

The applicant says that the CIC had an obligation to assist him through remedial measures rather than impose an interim suspension, particularly given that he was a foreign-trained lawyer.  Again, this argument is without foundation and is contrary to the mandate of the Law Society to “uphold and protect the public interest in the delivery of legal services with competence, integrity and independence” and the authority provided to the Law Society under the Act to do so (the Act at section 3; see also sections 6671 of the Act).

The CIC correctly identified the legal issue before it:  whether the interim suspension was necessary for the protection of the public, in accordance with section 68(c) of the Act.

The Court went on to discuss the standard of review for interim orders:

Having correctly identified the legal issue, the question became whether the interim suspension was necessary to protect the public in these circumstances.  The applicant has not identified any palpable and overriding error of fact by the CIC in its analysis.  The record demonstrates that the CIC reviewed the extensive information obtained during the investigations and the practice review.  It considered whether some action, other than the interim suspension, was sufficient to protect the public and concluded that it was not.  The CIC was entitled to make that finding on the record before it.

Whether or not to impose the interim suspension was a discretionary decision.  The CIC did not err in law or make any palpable and overriding error of fact.  Furthermore, based on the record, the interim suspension is not unjust.  The CIC’s decision to interim suspend the applicant is entitled to deference.

While regulators often attempt to deal with concerns remedially, at the end of the day, they are regulators, not coaches.

Reconsideration of Returned Decisions

by Natasha Danson
June 23, 2020

Sometimes when an appeal from a discipline decision is successful, the court returns the case to be reconsidered by a differently constituted panel. However, when a court is silent on the matter, can the same panel that made the earlier, incorrect decision, reconsider it? Generally the answer is yes because that panel has heard the evidence and argument, has detailed familiarity with the case, and is in the best position to consider the matter again. In Zuk v Alberta Dental Association and College, 2020 ABCA 162 (http://canlii.ca/t/j6tjc) the Court also found that, absent special circumstances, having the same panel members reconsider the matter does not create an appearance of bias.

In Zuk, there were 21 findings of misconduct. The appellate Court set aside two of the findings and stated that one finding had been overemphasized. The upheld findings were deemed by the Court to be serious and included grave attacks against the integrity of the regulator. The tribunal reconsidered the sanction and costs and imposed a significantly reduced period of suspension and costs. The practitioner appealed again.

The Court held that the standard of review remained deferential:

Pre-Vavilov, it was clear that deference was owed to professional disciplinary bodies on the fitness of sanctions and the fact findings underpinning them: Law Society of New Brunswick v Ryan2003 SCC 20 at para 42 [Ryan]; Groia v Law Society of Upper Canada2018 SCC 27 at paras 43, 57. As Vavilov does not directly address the question of standard of review for sanctions imposed by professional disciplinary bodies, this Court was asked to provide guidance on this point. In our view, the appropriate standard of review remains reasonableness. Vavilov provides a “revised framework that will continue to be guided by the principles underlying judicial review… articulated in Dunsmuir v New Brunswick2008 SCC 9” [Dunsmuir]: para 2. The longstanding principles articulated in Dunsmuir and Housen have not been displaced: Vavilov at para 37. As noted in para 13 above, the standards of review on statutory appeals are the same as those applied in other appeals. The focus is on the type of question in dispute. The question of what sanction Dr Zuk should face as a result of his misconduct is a question of mixed fact and law: Ryan at para 41. This calls for a deferential standard where the decision results from consideration of the evidence as a whole, but a correctness standard ought to be applied when the error arises from the statement of the legal test, or where there is an extricable question of law: Housen at paras 33, 36Constable A v Edmonton (Police Service)2017 ABCA 38 at para 41.

Similar considerations applied to the costs order.

In terms of bias, the Court held that the legislative provision precluding individuals involved in the investigation and referral of matters to discipline had no application to the reconsideration of the matter returned by the Court. After reviewing the reasons of the panel reconsidering the matter the Court also found no appearance of bias:

We are not persuaded the Appeal Panel was permanently “invested” in its earlier reasons, to the degree that it was incapable of fairly reconsidering the matters directed by this Court. “Where a matter is remitted back, the law presumes that a tribunal will give full weight to the decision of the reviewing court”: Walton at para 9. As noted above, there is nothing on the record to rebut this presumption; quite the opposite. Further, whether the issue “on which a reconsideration has been directed would raise considerations of impartiality in the mind of a reasonable person is a matter of degree”: Walton at para 9. In light of the cogent, even-handed, transparent and considered approach of the Appeal Panel’s reconsiderations reasons, this case does not raise any considerations of impartiality.

In sum, there is no reason to believe that the Appeal Panel did not reconsider sanction and costs having full regard to the decision of this Court. Moreover, the Appeal Panel had the advantage of a detailed knowledge of the evidence behind the affirmed charges, and considerations of efficiency supported its continuing involvement.

The appeal failed.

Using a Practitioner’s Status and Prestige

by Erica Richler
June 16, 2020

Practitioners have a status in society that can be misused. In addition, engaging in certain activities outside of the profession can affect one’s ability to practise the profession objectively or even bring disrepute to the profession. It is for those reasons that some professions have ethical rules related to these concerns. For example, some health professions in Canada do not condone practitioners appearing in advertisements promoting health products to consumers.

Misusing one’s status and prestige is a concern for judges who must be, and be seen to be, impartial. A recent decision, that had a high profile in the legal community, addresses the boundaries of this concern. In Smith v Canada (Attorney General), 2020 FC 629, http://canlii.ca/t/j7v4k a Judge accepted an unpaid appointment of Interim Dean (Academic) to a law school that was undergoing a crisis. Justice Smith obtained the approval of both the Chief Justice in his province and, impliedly, the Minister of Justice. Nevertheless, the regulator for federally appointed judges, the Canadian Judicial Council initiated an inquiry and rendered a letter of concern. Justice Smith sought judicial review.

Much of the case dealt with the scope of a statutory provision preventing judges from having an occupation outside of their judicial duties. The Federal Court found no violation of that section.

On the ethical issue of misusing the judge’s judicial status or risking the compromising of his judicial duties, the Court held that the concerns were not justified. The Court said:

The association of a judge with any extra-judicial organization will, to some degree, bolster its reputation, status and public confidence. It is for precisely that reason that law schools seek to have judges teach. …. If that were the test, then no judge could ever join or participate in any extra-judicial civic, religious, or charitable organization.

The Court was also concerned that the initiation of the investigation, in the absence of a complaint and given the approval of the Chief Justice and Minister of Justice, was procedurally unfair to the point of being an abuse of process. The Court concluded that the regulator failed to disclose to the Judge the true nature of the concern and the matter did not warrant consideration because it could not have resulted in the Judge’s removal.

Judicial Scrutiny of Disciplinary Penalties

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by Rebecca Durcan
June 9, 2020

Ever since the Supreme Court of Canada in Vavilov changed the way that courts review regulatory decisions (at least where there is a statutory right of appeal), regulators and courts have been determining how the new test applies to different types of decisions. In Mitelman v College of Veterinarians of Ontario, 2020 ONSC 3039, http://canlii.ca/t/j883c, the Divisional Court of Ontario put some effort into applying Vavilov to appeals of disciplinary penalties. Dr. Mitelman was found guilty of professional misconduct for a number of standard of practice and ethical issues. It was his second finding. The appeal was limited to the penalty order of a twelve month suspension of his licence and various terms, conditions and limitations for periods of up to five years.

The Court stated that the standard of review involved considerable deference:

It is well established that in order to overturn a penalty imposed by a regulatory tribunal, it must be shown that the decision-maker made an error in principle or that the penalty was “clearly unfit.” The courts in the criminal context have used a variety of expressions to describe a sentence that reaches this threshold, including “demonstrably unfit”, “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate” or representing a “substantial and marked departure” from penalties in similar cases. This high threshold applies equally in the administrative law context. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances. A fit penalty is guided by an assessment of the facts of the particular case and the penalties imposed in other cases involving similar infractions and circumstances, College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420 at para. 56.

The Court went on to say that when looking at the “reasonableness” of a penalty decision, the Court is really referring to the proportionality of the decision compared to other similar cases. Thus the word “reasonableness” is not describing the standard of review generally.

The appeal raised concerns about the adequacy of the reasons on penalty. The Court noted that the reasons on finding were detailed and provided an important context to the penalty decision, including concerns about impairment of public safety. Though brief, the reasons on penalty identified the factors taken into account. The Court said:

The basis for the Committee’s conclusions on penalty is readily apparent to anyone with even a passing familiarity with the background to this case. I am not prepared to conclude that the reasons on penalty are so deficient as to amount to an error of law.

Because context is everything, the decision on penalty was upheld.

Close Review of Credibility Findings

by Bernie LeBlanc
June 2, 2020

Under the new standard of review of tribunal decisions, findings of fact are reviewed on the basis of whether there was a palpable and overriding error (unless there is a question of mixed fact and law where there is an extractible legal error). In Miller v College of Optometrists of Ontario, 2020 ONSC 2573, http://canlii.ca/t/j6sbk the Court was reluctant to compare the palpable and overriding error test with the reasonableness review test. However, it did closely review the credibility findings where a finding of historical sexual abuse was made.

While showing deference to the tribunal, the Court concluded that the practitioner’s evidence was scrutinized more closely than that of the patient for a number of reasons including:

  • The tribunal used the assertion of a weak submission by the self-represented practitioner that the touching could not have taken place as undermining the practitioner’s credibility. Such an inference would not have been made if the argument was made by the practitioner’s legal counsel.
  • The tribunal used the demeanour of the practitioner when the patient testified (e.g., the practitioner did not look at her) as supporting an adverse finding of credibility. Demeanour generally applies to how a witness acts when testifying, not to how a party behaves when others testify, and, in any event, such a conclusion based on a lack of eye contact was particularly fragile.
  • The tribunal appeared to treat the lack of responsiveness to questions by the practitioner more negatively than a similar lack of responsiveness by the patient. In particular, the hesitancy of the practitioner to acknowledge that he had been in practice for almost fifty years was given undue weight. So was the request by the practitioner to cross-examine counsel on the meaning of the word “close”.
  • The tribunal appeared to be overly suspicious about the inability of the practitioner to produce a portion of the chart that was unlikely to contain relevant information and was not required to be retained by the practice’s retention policy.
  • Mischaracterizing the practitioner’s position as that the patient was fabricating the allegations when it was more accurate to say that the practitioner’s position was that the patient’s evidence was mistaken.

The Court concluded as follows:

The Merits Decision and the record disclose a sufficient unevenness of approach to the evidence adduced by the two sides for me to conclude that the appellant’s defence was subjected to a higher level of scrutiny than the case against him.  That is an error of law.  It, combined with the other errors I have identified, resulted in an unfair proceeding.

Regulators are closely watching to see if the new standard of review of credibility findings is markedly different than the deference shown in pre-Vavilov decisions.

The Whistleblower Defence

by Erica Richler
May 28, 2020

In some circumstances, a practitioner is permitted to disclose otherwise confidential information and publicly criticize their employer, where there is a compelling public right for the public to know. Generally for the whistleblower defence to succeed, four criteria must be met:

  1. The concerns must be significant, for example, jeopardizing life, health or safety;
  2. The issue must be more than a difference of opinion;
  3. The practitioner must have taken all reasonable steps to address the matter internally before “going public”; and
  4. The concerns must be accurate.

In Mulligan v Ontario Civilian Police Commission, 2020 ONSC 2031, <http://canlii.ca/t/j6fm9>, an OPP police Sergeant submitted a letter to the editor of the Sudbury Star criticizing the move of an OPP helicopter from Sudbury to Orillia saying it would jeopardize public safety. He was disciplined for breach of confidence and discreditable conduct. On judicial review the Divisional Court upheld the finding that the whistleblower defence was not available to Sergeant Mulligan because he had not first raised his concerns within his chain of command. The Court said:

There may be a situation where the issues raised are so pressing and urgent and the chain of command so obviously dysfunctional or corrupt that going public first is the only reasonable option. However, Sergeant Mulligan never argued that the urgency of the situation made it impractical for him to raise the matter internally first. Furthermore, the evidence he presented did not meet the threshold required to demonstrate the type of dysfunctionality or corruption that would be required for this type of exception to the usual rule.

The whistleblower defence is not easily established.

Using Every Regulatory Tool (During a Pandemic)

by Julie Maciura
May 27, 2020

When there needs to be a significant change in how a profession is practised, what are one’s options? Typically there are three options: enact a law, provide a guideline, or direct practitioners to exercise professional judgment towards an identified goal. All three options are being exercised by the Chief Medical Officer of Health of Ontario (CMOH) in restarting non-essential services.

On March 19, 2020, the CMOH updated a Directive to health care providers that largely limited the provision of health care services to essential services. However, on May 26, 2020, the CMOH updated that Directive for the purpose of enabling a gradual restart of deferred, non-essential and elective services. Practitioners are required to comply with an accompanying Operational Requirements document. That document includes such requirements as performing both an organization-wide and individualized patient point of care risk assessment. Hazard controls must be implemented including using remote service techniques where possible, installing engineering and system control measures where feasible (e.g., plexiglass barriers), administrative control measures (e.g., screening staff, patients and essential visitors for symptoms of COVID-19), and using appropriate personal protective equipment (PPE).

The Directive is made under s. 77.7 of the Health Protection and Promotion Act and thus has the force of law. It is an offence to breach the Directive.

However, the Directive and the Operational Requirements refer to guidelines provided by the regulatory body for each profession. Typically those guidelines will provide more detail about the hazard controls mentioned above, but tailored to the usual practice settings of each profession. For example, a regulator’s guidelines will often provide criteria for screening patients, obtaining informed consent, staff training, how to perform specific activities like receiving payment for services directly by the patient, and specific PPE expectations in various circumstances (e.g., in what circumstances PPE must be replaced during the day). While guidelines are typically the expression of expectations, in this case there appears to be some additional teeth to the guidelines since both the Directive and the Operational Requirements use mandatory language requiring practitioners to adhere to them.

However, despite the use of mandatory language throughout the Directive, Operational Requirements and guidelines, these documents place a heavy emphasis on the exercise of professional judgment by practitioners. For example, on the core issue of which patients should receive services, the Directive provides “principles” to guide practitioners including proportionality (i.e., the capacity of individual practitioners, offices and clinics to offer services); minimizing harm to patients (i.e., prioritizing procedures that can result in more significant harm if delayed too long); equity (i.e., clinical urgency, considering disadvantaged or vulnerable individuals); and reciprocity (i.e., monitoring the health care status of individuals who do not yet appear to require services immediately).

Similarly the Operational Requirements indicate numerous situations in which practitioners should exercise professional judgment. These include the suggestion that restarting services should be gradual, identifying which patients require in-person as opposed to remote services, which patients to prioritize, and ensuring that consideration be given to “inter-dependencies and collaboration” (e.g., that there are homecare and rehabilitation services available for any procedures performed).

The CMOH is attempting to use all available tools in the reopening of health care services to non-essential services. The Directive and Operational Requirements can be found at:
https://www.sml-law.com/wp-content/uploads/2020/05/Directive-2-May-26-2020.pdf ; and https://www.sml-law.com/wp-content/uploads/2020/05/Operational-Requirements-for-Health-Sector-Restart-May-26-2020.pdf

Off Duty Conduct

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by Rebecca Durcan
May 26, 2020

It is likely that there is variability as to when off-duty conduct can be the subject of discipline. For example, the degree of circumspection expected of teachers and police officers may be higher than for some other professions where practitioners are not as widely seen as esteemed role models.

This issue came up in the case of Mulligan v Ontario Civilian Police Commission, 2020 ONSC 2030, http://canlii.ca/t/j6fm8. In that case:

While off duty, Sergeant Mulligan attended and spoke at a conference where the theme was cannabis legalisation. The conference took place in September 2015, while the decriminalization of marijuana was under discussion, but had not yet been passed into law. In his remarks at the conference, where Sergeant Mulligan was identified as a twenty-nine-year veteran of the Ontario Provincial Police, Sergeant Mulligan made it clear that he was in favour of the legalisation of marijuana, but that he was not representing the views of his employer.

The problem was that Sergeant Mulligan had been ordered not to attend or speak at the conference. He was disciplined on two charges. On one charge, for bringing the force into disrepute, he was found not guilty because at the time he spoke there was widespread public support for decriminalizing the possession of cannabis and his views would not be viewed as shocking. On judicial review of the finding of disregarding an order, the Court held that this finding should also be set aside because the tribunal had failed to consider a provision in the legislation that was on point and because the tribunal had found that the audience would not perceive his remarks as meaning he would refuse to enforce the law.

The significance of the case is that it reinforces the principle that all of the circumstances must be taken into account when determining whether off duty conduct is worthy of discipline.

Demonstrating Bias by Questioning a Witness

by Bernie LeBlanc
May 19, 2020

Tribunal members are given some leeway to question witnesses. Questions clarifying the evidence of a witness or even asking for additional explanation on a point that is puzzling are acceptable. However, where the questioning of a witness, particularly the practitioner, appears to indicate that the tribunal has made up its mind, the questions can create an appearance of bias. That is particularly true when the “questions” contain statements.

Yee v Chartered Professional Accountants of Alberta, 2020 ABCA 98, <http://canlii.ca/t/j5q8v is one of those rare cases where a disciplinary decision was reversed solely on the basis of the questioning of the practitioner by tribunal members. That case arose from some business dealings the practitioner’s company had with the complainant. Disagreements between them led to a civil action in court. The practitioner’s pleadings (formal position) in the civil action denied the complainant’s allegations and put the complainant to the strict proof of them. The tribunal members at the resulting discipline hearings took exception to those denials, interpreting them as false statements. The tribunal members also persisted in forcefully challenging the practitioner’s position that he was acting in a business capacity in the matter rather than as a member of the profession.

The Court said:

A tribunal is entitled to challenge and question a witness vigorously, provided that the tribunal is open minded, that is, open to consideration of the answer to what might be a leading question. The issue before us is whether the questioning in this case and the statements made in the context of questioning give rise to a reasonable apprehension of bias.

The Court concluded that the cumulative effect of the questions by multiple tribunal members created an appearance of bias. The discipline findings were set aside and the matter was returned for a new hearing.

Finality of Referrals to Discipline

by Julie Maciura
May 14, 2020

What are the options where significant new information is received after a screening committee renders its decision? Where the screening committee determined to take no action, it might not be viewed as a final determination. Either through a fresh complaint or a Registrar’s investigation, the matter can likely be reviewed again: Ferrari v College of Physicians and Surgeons of the Province of Alberta, 2008 ABQB 158, http://canlii.ca/t/1w3fh; Houghton v Association of Ontario Land Surveyors, 2020 ONSC 863, http://canlii.ca/t/j54tk.

However, can a screening committee reconsider its decision after referring a complaint to discipline? In Stanley v Office of the Independent Police Review Director, 2020 ONCA 252, http://canlii.ca/t/j6f8f, Ontario’s highest court said this was not permitted. The principle of finality required that the screening committee not, in effect, withdraw its referral in order to look at new information. That was true even if the new information could have altered the original decision. The matter was now within the hands of the discipline tribunal.

Exceptions are permitted where the legislation creates a route for reconsideration of screening committee referrals to discipline. In fact, amendments to the formal rules relating to police complaints in the Stanley case now permit such reconsideration. However, such a legislative right of reconsideration is rare in most regulatory statutes.

Another Aspect of Electronic Hearings

by Natasha Danson
May 12, 2020

Some courts have issued special directions restricting the ability to record online proceedings. Many tribunals have the authority to make rules of procedure on conduct at hearings or to at least make specific orders in individual cases. These sorts of prohibitions are particularly important where the subject matter of the hearings is sensitive, as in sexual abuse cases.

Regulators will have difficulty enforcing restrictions related to recording online proceedings because it is even more difficult to know if a recording is being made at an online versus in-person hearings.

While the concern about disrupting the proceeding by recording it is minimal, the concern about the later misuse of such recordings to embarrass or harass witnesses or other hearing participants increases. Perhaps the threat of after-the-fact enforcement can provide some reassurance.

Some other options for tribunals might include:

  1. Ordering restrictions limiting or prohibiting the recording of the proceedings with limited exceptions (e.g., non-visual note taking).
  2. Limiting the ability to see some of the hearing participants. However, that may be difficult if the parties need to see those participants for the purpose of cross-examining witnesses.
  3. Closing off parts of the hearing to the public where the risk is extreme (e.g., the examination of a vulnerable witness in a sexual abuse matter). Tribunals could also use technology that requires access to be granted by a moderator in order to prevent unauthorized participants joining the phone/video call.
  4. Requiring those attending the hearing remotely to identify themselves (normally observers should not be asked to do this, but this sort of request might be reasonable in some highly-sensitive cases, or for the testimony of some highly-sensitive witnesses). Where technology permits, the participant names could be checked against call-in details to ensure that all callers have been identified.

There may be other technological options as well (e.g., allowing parties full visual access to witnesses during cross-examination while observers see only an obscured face, or even distorting a witness’s voice slightly so that it is not identifiable).

Appointing an Administrator

by Erica Richler
May 7, 2020

Many regulators are subject to the appointment of an Administrator or Supervisor to take over some or all of their operations. This extraordinary step is reserved for circumstances in which there has been a significant loss of confidence in the regulator or other organization.

In Martin v Ontario Civilian Police Commission, 2020 ONSC 1116, http://canlii.ca/t/j6cdp the Ontario Civilian Police Commission, while conducting an investigation into allegations of misconduct by senior members of the Durham Regional Police Service, made an interim order appointing an Administrator. The appointment was limited to overseeing three discrete areas: disciplinary proceedings, promotions, and secondary employment. The Chief of Police and the Police Services Board sought judicial review.

Some of the points raised were specific to the enabling statute. However, some were of general application. For example, most provisions authorizing the appointment of an administrator have very broad criteria, such as where the relevant Minister believes such an appointment is “appropriate or necessary”. In this case the test for the interim appointment related to whether an emergency existed and whether an interim order is necessary in the public interest. In reviewing these criteria the Court afforded significant deference to the Commission. The Court indicated that there need not be a formal finding related to the presence of an emergency. An apparent existence of concerns, in this case based on seven complaints and polling data from the members of the force indicating a lack of confidence in its leadership, was sufficient to base such a conclusion. The existence of an emergency depended on the context of the legislation. Here, a crisis of confidence in the leadership of the police force was an apparent emergency.

In terms of public interest, the Court said:

I agree with the Board’s submission that there must be a proper factual foundation for any determination that a prescribed action is in the public interest.  The grounds for acting in the public interest obviously requires more that reliance on the decision-maker’s whim.  The public interest is, nonetheless, a broad term that allows the Commission to take a variety of considerations into account in its decision-making process.  The determination of the public interest is a matter of public policy in the true sense of the word and demands a high degree of deference….

The Court was also of the view that fear of interference or reprisal by members of the force in the Commission’s investigation was relevant to whether there was a public interest in the interim appointment.

The Court also held that under this legislation there was no need for procedural fairness in advance of the interim order appointing the administrator. Procedural safeguards after the appointment (e.g., written decision and reasons, access to the materials upon which the decision was based and a right of judicial review) was sufficient.

In upholding the appointment, the Court relied on case law dealing with interim suspension of practitioners in discipline matters.

Some Implications of Online Hearings

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by Rebecca Durcan
May 5, 2020

Few doubt that online proceedings will continue after the pandemic is over. In an insightful article, law professor Amy Salyzyn considers how this format will alter the hearing process. While supportive of the development, Professor Salyzyn discusses the privacy implications and the impact online hearings may have on hearing participants.

Public Access Implications

  • As a practical matter, it is very difficult for members of the public to attend hearings. Online access to hearings, especially if they are recorded, eliminates many of those practical barriers.
  • However, in order to ensure public access to hearings, upcoming hearings with links to join them have to be listed online at an accessible location. In addition, protocols need to be established for obtaining access to exhibits.
  • At the present time, members of the public need to travel to the hearing and arrive at a set time in order to view the hearing and observe witness testimony. Practically, these burdens result in obscurity for witnesses and other participants. With online hearings, intimate and personal details will become more readily accessible and may result in voyeuristic, rather than educational, access. There may even be examples where the information can be mined for financial gain.

Impact on Hearing Participants

  • Where some participants attend in person, there is an imbalance in the extent of participation. Those who attend online can be dehumanized (especially in criminal matters) and are often perceived as less credible or less worthy of clemency.
  • There is often less formality when the hearing is held online, including background noises, disruption by pets and children, and seeing the backdrop from a person’s home. This informality can affect the clarity of the information provided as well as the perception of the participant.
  • Portions of the hearing process, such as a reduced ability to hold sidebar conversations or being able to hear whispered comments by adjudicators, will be different from in-person hearings in a way that could affect the process.

These variances arising from the process platforms should be considered and, in some cases, compensated for, as online hearings become more common. The article can be found at: http://www.slaw.ca/2020/04/17/trial-by-zoom-what-virtual-hearings-might-mean-for-open-courts-participant-privacy-and-the-integrity-of-court-proceedings/.

Another Monster Case

by Bernie LeBlanc
April 30, 2020

There are some cases in which many issues are raised and dealt with. Multiple points of learning on a diversity of topics can arise. Houghton v Association of Ontario Land Surveyors, 2020 ONSC 863, http://canlii.ca/t/j54tk is one such case. Mr. Houghton’s licence was revoked after a 21 day hearing. The allegations are summarized by the Court as follows:

One allegation was that Mr. Houghton had counselled a client to make a complaint against a fellow surveyor for malicious reasons. The other complaints essentially related to Mr. Houghton’s alleged practice of:

  1. failing to quote a fee before signing the clients to an unlimited time and disbursements retainer agreement;
  2. taking a modest monetary retainer at the outset of an assignment that the clients believed to be the full fee;
  3. then claiming to have performed research resulting in additional fee charges incurred without the client’s prior approval; and finally
  4. charging the clients’ credit cards with the unapproved fees pursuant to credit card authorizations that Mr. Houghton had obtained previously from each of the clients.

A summary of the more interesting points for other regulators are as follows:

  1. The Complaints Committee dismissal of individual complaints related to billing disputes does not prevent the regulator from later investigating those same concerns through the alternative Registrar’s investigation route, particularly where that investigation is focussed on a pattern of financially abusing clients. This outcome is not dissimilar to the decision in Abdul v Ontario College of Pharmacists, 2018 ONCA 699, http://canlii.ca/t/htpdg.
  2. The Court acknowledged the concerns that the scope of the investigation was not clearly set out and that the investigator may have looked at some issues that were not part of the original reasonable and probable grounds. However, the investigation focussed primarily on the reasonable and probable grounds concerns and the Discipline Committee was careful not to adjudicate on any additional issues.
  3. In respect of the allegation of counselling a client to complain against a competitor, the Court agreed that this is professional misconduct where done maliciously. “Here it is perfectly obvious that where one surveyor is found to have acted expressly to injure another surveyor’s reputation by having a client file a groundless complaint and the client did as he was urged to do, injury is self-evident.”
  4. In upholding the order of revocation the Court held that the following were relevant considerations:
    1. A history and attitude indicating a likelihood of reoffending;
    2. The emotional harm inflicted on clients and the damage caused to the reputation to the profession by such dishonest conduct;
    3. The attempt to try to silence witnesses by imposing non-disclosure agreements in respect of the regulator through civil settlement agreements.
  5. On the likelihood of re-offending the Court discussed the principle that a practitioner’s vigorous defence of allegations should not be considered an aggravating factor. However, a discipline tribunal is able to take into account that the practitioner “demonstrated a profound lack of understanding of ethical expectations and conduct, which continued during the penalty phase of the hearing”. The Court said that the tribunal: “was entitled to include in its consideration Mr. Houghton’s lack of recognition and lack of accountability for his actions as factors that weighed on the risk of repetition, the need to protect the public, and deterrence.”
  6. The Court also upheld the order that the practitioner pay costs of $250,000, which were only a fraction of the actual legal costs, where “the length of the hearing was largely driven by Mr. Houghton’s approach to challenge the proceedings with multiple days of motions and allegations against Association personnel.”

Regulators will benefit from this guidance by the Court on so many issues.

Imposing Electronic Hearings without Consent

by Natasha Danson
April 29, 2020

The Divisional Court of Ontario recently ordered that an appeal of a discipline hearing proceed remotely over the objections of counsel for the practitioner. The practitioner expressed concern that there might be disadvantages to a hearing held on Zoom, such as not being able to watch the pens of the Judges during argument. The appeal had the potential to affect the practitioner’s livelihood. On this point the Court noted:

However, the materials and arguments presented by Mr Schwisberg do no more than suggest that something may be lost in a video conferenced hearing.  Something will be lost if court business does not continue, as best as can be managed, during the COVID-19 crisis, and I am not persuaded that any of the concerns raised by Mr Schwisberg justify departing from the processes established under the Directions to the Profession for the continuation of court operations.

The Court rejected the practitioner’s arguments. The Court held that the consent of the parties to proceed remotely was not required. It concluded that the hearing, especially one without witnesses, was conducive to being heard in an electronic format. The Court had already had successful experience in conducting important hearings remotely. The Court was also concerned that the proceeding had already been delayed significantly (assigning no blame for the delay).

The Court went on to provide specific directions on how the hearing would be conducted, outlining several guidelines, including those related to decorum and the formatting of documents, with the required use of hyperlinks. See Association of Professional Engineers v Rew, 2020 ONSC 2589, http://canlii.ca/t/j6mpg for more details.

While hearings by regulators may be different than Court proceedings, particularly where witnesses testify, many of the principles identified in this case likely apply to some degree in the regulatory context as well.

Sentencing Considerations for Contempt of Court for Holding Out and Use of Title

by Julie Maciura
April 28, 2020

In College of Physicians and Surgeons of British Columbia v Ezzati, 2020 BCSC 339, http://canlii.ca/t/j5s7k the Court had to decide what sentence to impose on an unregistered person who held themselves out as able to practise medicine and used protected titles such as “physician” and “Doctor”. The Court identified the following factors as relevant to that decision:

  1. the gravity of the offence (in this case disregarding a court order);
  2. the need to deter the offender;
  3. the past record and character of the offender (e.g., is this a first finding);
  4. the need to protect the public from the offender’s conduct;
  5. the ability of the offender to pay a fine; and
  6. the “extent to which the breach was flagrant and wilful and intended to defy the court’s authority”.

In applying those considerations to the conduct of this individual, the Court imposed a fine of $5,000.

Anonymizing Investigations

by Natasha Danson
April 21, 2020

Generally the fact that a practitioner is under investigation is not made public. Only if a referral to discipline is made or significant remedial action is taken does the matter become public. This places the practitioner in a bit of bind if the practitioner seeks to challenge an investigation in court, because court proceedings are almost always public.

In Party A v British Columbia (Securities Commission), 2020 BCCA 88 (http://canlii.ca/t/j5srk) a party was appealing an aspect of the investigation conducted by the regulator. At the request of the party, the Court restricted public access to the court file and anonymized the publicly-available documents. In doing, so the Court said:

There is always concern on the part of this court when orders are sought that would seal a file. The principle of the open court is important and we do not lightly seal a file, the act of which has the effect of foreclosing public knowledge of the contents of the file.

However, the Court was satisfied by the evidence that there would be significant harm to the party and, indeed, to the public, if the fact that the investigation was occurring became known. It noted:

I am satisfied that there is potential harm to the appellants, who are the applicants today, should the fact of the investigation become broadly known. I am also satisfied that there is potential harm to the public at large from knowledge of the fact of the investigation without information as to the content of the investigation or where it is likely to lead. For example, the public at large may respond in the capital markets to information that turns out to have little impact.

Despite this finding, the Court insisted that an anonymous version of the key documents, including the decision, be made public so that the matter was not completely out of public view.

This case suggests that while it will be rare for courts to restrict public access to court files relating to regulatory investigations, courts may do so to avoid significant harm.

Limits to the Doctrine of Necessity

by Erica Richler
April 14, 2020

Some appearances of bias can be caused by the structure of the legislation. For example, where a complaint is made about a member of the complaints committee, it is awkward for the other members of the complaints committee to consider the matter. In such situations, a regulator will attempt to reduce the concerns as much as possible, perhaps by appointing additional, short-term, members to the committee to consider the matter. In addition, the doctrine of necessity can apply. The doctrine of necessity refers to when an adjudicator who would otherwise be disqualified is permitted to hear a case (usually because no one else is available to hear the case).

The limits to the doctrine of necessity were illustrated in the case of Canada (Director of Military Prosecutions) v Canada (Office of the Chief Military Judge), 2020 FC 330, http://canlii.ca/t/j5p93. In that matter, the Chief Military Judge was the subject of allegations of making a false travel expense claim and having an inappropriate personal relationship with a person under his command (a court reporter). The Deputy Chief refused to hear the case because of an appearance of bias and refused to appoint any of the other military judges because everyone in that small pool would also be biased or unable to conduct the hearing in French.

Prosecutors sought judicial review for an order compelling the Deputy Chief to appoint an eligible military judge relying, in part, on the doctrine of necessity. The Court refused to make such an order, finding that the appearance of bias concerns were, on the facts of this case, quite strong. For example, in addition to adjudicating a well-publicized case involving a close colleague, many of the witnesses would be colleagues as well. The Court indicated that the doctrine of necessity:

will not apply in circumstances where its application would involve positive and substantial injustice since it cannot be presumed that the policy of either the legislature or the law is that the rule of necessity should represent an instrument of such injustice. Secondly, when the rule does apply, it applies only to the extent that necessity justifies. These two limitations make clear that the doctrine should not be applied mechanically. To do so would gravely undermine the guarantee of an impartial and independent tribunal provided by section 11(d) of the Charter [of Rights and Freedoms]. In this case, the doctrine of necessity would not apply in a context of criminal or military justice where the fundamental rights of the accused may be irreparably compromised by the absence of an impartial and independent tribunal or by the language deficiency of the trial judge.

The Court noted that this situation was caused by the structure of the legislative scheme which had not contemplated this rather unique set of events. The Court identified some less than ideal options for proceeding with the hearing including amending the legislation or asking a superior court to appoint one of its Judges to hear the matter.

While military discipline matters are quasi-criminal in nature and have some differences from most other professional discipline matters, this case illustrates that the doctrine of necessity may have some limits.

Access by a Regulator to Highly Confidential Client Files

by Julie Maciura
April 9, 2020

Should there ever be limits to a regulator’s access to a practitioner’s client files when the files are relevant to an investigation? Almost never is the answer provided in College of Physicians and Surgeons v SJO, 2020 ONSC 1047, http://canlii.ca/t/j59mv. During the course of an employment matter, the regulator became aware of inappropriate communications between the former employee and her psychiatrist. As a result of these concerns, including possible boundary crossings with the client, the regulator sought to obtain the psychiatrist’s files for the employee / client. The psychiatrist asserted that disclosing the file, especially to the client’s former employer, would put the client’s health at risk.

The Court upheld the right of the regulator to have access to the file. Its investigative powers are broad and override any other statutory confidentiality and privacy laws. In addition, the case law “privilege” that applies to special relationships of confidence (such that communications within that relationship will remain secret) would not apply to a regulator protecting the public. The practitioner’s position would, in effect, create “an almost perfect avoidance of regulatory scrutiny”. There was no reason to believe that the investigation was being conducted in bad faith or for a collateral purpose related to the employment issues. The scope of the investigation, even though it might include the review of other files for comparison purposes, was appropriate.

Because the client was a former employee of the regulator, certain safeguards were put in place. The investigator was external to the regulator and the file would be kept and reviewed offsite from the regulator’s office. To the extent feasible, information would not be shared with the staff at the regulator. The Court directed that the practitioner cooperate fully with the investigation.

This case is also interesting in that the regulator used the provision allowing for an order directing compliance with the statute (a form of injunction) to compel cooperation by the practitioner. That provision is usually used by regulators to compel unregistered persons to cease holding themselves out as being registered or from performing dangerous acts.

It is difficult to contemplate circumstances in with the client file could be more sensitive than in this case but regulators will almost always have access to the client files of the practitioners it regulates.

Credibility is Not an Either / Or Proposition

by Bernie LeBlanc
April 7, 2020

A recent decision of the Ontario Court of Appeal has provided additional guidance about making findings on credibility.

In R. v Esquivel-Benitez, 2020 ONCA 160, http://canlii.ca/t/j5nrt the Court set aside a conviction for sexual assault on the basis of three errors made by the trial Judge on her findings of credibility. The sole issue in the case was whether the sexual intercourse was consensual.

The first and primary error was that the trial Judge analyzed credibility on the basis of whether to believe the reporting witness or the defendant. The Court of Appeal indicated that there was a third possibility (which in fact the trial Judge had acknowledged). The trial Judge could disbelieve the defendant, as compared to the witness, but still conclude that the burden of proof had not been met. The trial Judge should have specifically addressed that third possibility in her reasons.

A second error related to not addressing a possible motivation on the part of the witness. At the conclusion of the incident, the witness’ spouse entered the room and “flew into a violent rage”. The witness’ spouse persisted in questioning the witness about the incident afterwards. The Court said that the trial Judge should have addressed in her reasons this possible motivation for the report.

The third error was that the trial Judge commented more than once that the defendant was present when the witness testified as a part of her finding that the defendant had tailored his evidence to hers in his own testimony. The Court found these comments to be inappropriate since the defendant had the absolute right to be present in the courtroom during the trial.

It is interesting to note that two of these errors could have been avoided if the trial Judge addressed the issues appropriately in her reasons for decision. While criminal proceedings are different from professional discipline hearings, including having a different burden of proof, these points may still have some relevance for regulators.

Reasons for Examination Failure Need to Cover All Grounds of Appeal

by Julie Maciura
March 31, 2020

Few regulatory decisions have as significant an impact on individuals as clinical examinations, especially for an examinee’s final attempt. In Mattar v The National Dental Examining Board of Canada, 2020 ONSC 403, http://canlii.ca/t/j5dbh an internationally trained dentist appealed the failure of their third and final attempt of the national dental skills examination. The candidate appealed on three grounds: the standardized patient’s condition created a problem for the requested procedure; the examiners had not followed procedure; and as a result of the unfair treatment the applicant suffered a “nervous breakdown” or panic attack that raised compassionate grounds worthy of setting aside the failure. The Court held that the reasons for decision for the first two grounds were quite brief but were adequate.

However, the Court ruled that the complete absence of reasons for the third ground of appeal made the decision procedurally unfair. The Court was unwilling to infer that the committee concluded that, having failed to establish the first two grounds of appeal, it “must have found that whatever stress and panic [the examinee] experienced following the Provisional Crown Restoration test did not arise from circumstances beyond [their] control”. Other conclusions were possible including that the examinee “was simply being disruptive after not getting the extra time [they] wanted to complete the task”. Reasons were required to make the decision fair and reviewable. The matter was returned to the committee for reconsideration on the entire record (including new information issued since its original conclusion) and to issue a new decision with reasons on the appeal grounds related to the applicant’s medical condition.

While courts have often said that a tribunal’s reasons for decision do not have to cover every point raised, they do have to cover the main issues.

Gross Carelessness by Regulators Must Be Extreme for There to Be Liability

by Natasha Danson
March 25, 2020

For almost two decades the case of Finney v Barreau du Québec, 2004 SCC 36, http://canlii.ca/t/1h87m has caused regulators to wonder in what circumstances a regulator could be held liable for faulty regulation. The cases before and after Finney are fairly consistent in saying that a regulator will only be held liable for harm caused by a failure to regulate where the regulator acted in bad faith, which is generally thought to require more than carelessness and negligence. However, in Finney, Canada’s highest court found the regulator liable for acts of “gross carelessness and serious negligence”, which, in the circumstances, amounted to a form of bad faith.

A recent case from the Alberta Court of Appeal spoke at some length about the exceptional circumstances of Finney that would not frequently apply to mistakes or omissions by regulators:

The lawyer in Finney had been subject to four disciplinary complaints between 1980 and 1985 and found guilty on at least three occasions. After a lengthy investigation, in 1990 the professional inspection committee determined he was incompetent and recommended his suspension. But instead of suspending the lawyer, in 1992 the Barreau ordered continuing education and supervision.

McCullock-Finney’s difficulties with the lawyer began in 1990, first as a client, and then as an adverse party. What followed was an escalating dispute between the lawyer and McCullock-Finney where the lawyer engaged in egregious conduct referred to as “guerilla war” and harassment of McCullock-Finney. The Barreau failed to intervene or exercise its statutory oversight even though McCullock-Finney and her lawyer filed numerous complaints against the lawyer, McCullock-Finney complained about the Barreau’s inaction, the courts alerted the Barreau to the lawyer’s troubling behavior and the lawyer’s supervisor withdrew. It was not until 1994 that the Barreau provisionally struck the lawyer off the rolls.

Both the lawyer’s behavior and the Barreau’s inaction in Finney were extreme; nothing akin to what has happened here.

See: Swaleh v Lloyd, 2020 ABCA 18, http://canlii.ca/t/j4rnl.

When described in this fashion, the limited circumstances in which gross careless and serious negligence would apply to a regulator becomes clearer.

Emergency Suspension of Limitation Periods and Procedural Timelines

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by Rebecca Durcan
March 23, 2020

The Ontario government has just issued an emergency order, retroactive to March 16, 2020, suspending all limitation periods and timelines in proceedings. Regulators generally deal with few true limitation periods. Very few regulators have true limitation periods relating to the filing of complaints or the initiation of disciplinary proceedings. There are limitation periods related to the initiation of provincial offences prosecutions, which many regulators can do, and those will likely be suspended for the duration of the order.

It is the part of the order that suspends the period of time within which any step must be taken in any proceeding, including any intended proceeding, that will have a greater impact on Ontario regulators. For example, timelines for regulators to notify a practitioner of a complaint within so many days is likely suspended. What is less clear is whether regulators can proceed with an investigation, referral to discipline or a discipline hearing where the practitioner is given a specified amount of time to respond before the step is taken. Is the regulator prevented from proceeding in those circumstances? Even if the regulator is presumptively so prevented, the suspension of the timeline is “subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding”. This exception contained in the emergency order would appear to provide a method for a regulator to require compliance with the timeline in appropriate circumstances, such as where the public is at risk.

The emergency order only applies to proceedings. Other obligations that are not in the nature of intended or actual proceedings, such as the requirement to hold Council meetings within certain timeframes, are likely not suspended by the order. The order also only applies to proceedings under the jurisdiction of the Ontario government; it would not apply to federal proceedings such as under the Criminal Code of Canada.

Given the variety of legislative provisions affected and the general language of the emergency order, regulators need to obtain legal advice for any specific situations.

Read the order here: https://lawsocietyontario.azureedge.net/media/lso/media/news-events/emcpa-order-eng.pdf

Breach of Confidentiality

by Erica Richler
March 18, 2020

Breaches of client confidentiality rarely are the sole subject of a discipline hearing. There are many possible explanations for this including that practitioners are respectful of this professional obligation or that breaches tend to be unintentional and, therefore, are addressed by educational means rather than discipline. However, in a recent Quebec case a nurse’s registration was suspended for two months for breaching client confidentiality: Dagenais c. Nurses (Professional Order of), 2020 QCTP 11, http://canlii.ca/t/j54cs.

A nurse conducting a post-natal visit learned that the mother had come to Quebec for the child’s delivery in order to obtain Canadian citizenship for the baby. The nurse also learned that the mother appeared to be engaging in fraud in order to receive government benefits. The nurse contacted a journalist, who posed as a volunteer delivering baby supplies, in order to conduct a hidden camera interview of the mother. The interview was broadcast. The nurse faced allegations of having disclosed confidential information about the location of her client to the journalist.

The nurse was found to have disclosed confidential information and the two-month suspension was imposed. The nurse’s appeal, on the basis that it had not been proved that she had breached confidentiality, was unsuccessful as the Tribunal concluded there was an adequate basis for the Disciplinary Council to make that finding.

Despite the paucity of precedents, this case illustrates that a deliberate breach of confidentiality can result in serious sanctions.

Deference Continues for Policy Decisions by Regulators

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by Rebecca Durcan
March 11, 2020

Regulators continue to monitor how judicial review of its actions will change in light of the landmark decision of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, http://canlii.ca/t/j46kb. A recent Alberta case suggests that policy decisions made by regulators will continue to be reviewed with deference. In Morris v Law Society of Alberta (Trust Safety Committee), 2020 ABQB 137, http://canlii.ca/t/j5d8l, a lawyer challenged a requirement to provide privileged client information to the regulator in his annual reports on his trust accounts.

He argued that the requirement involved a general principle of law (i.e., solicitor-client confidentiality) or, at least the interpretation of the regulator’s home statute, and thus should be reviewed by the court on a strict, correctness standard. He also argued that since the enabling statute explicitly overrode solicitor and client confidentiality in other contexts, such as conduct proceedings, but was silent about overriding the privilege for trust account reports, this implied the exclusion of the regulator’s authority require disclosure of client information in trust account reports.

The Court disagreed. The Court was of the view that Vavilov supported the more deferential standard of review of reasonableness when interpreting a broad authorizing provision for a regulator of professions. The Court said:

Given the breadth of the statutory authority, the Act must be construed such that the powers it confers “include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime created by the legislature …”.

Taking a purposive view of the legislation and the legitimate concerns about trust accounts being used to further fraudulent activity or money laundering, the regulator’s requirement to provide otherwise privileged client information as part of the annual reports was reasonable.

Should this approach to judicial review stand, regulators should take comfort in making policy decisions based on relevant considerations and on an articulated rationale.

Does Bankruptcy Extinguish an Administrative Penalty?

by Julie Maciura
February 25, 2020

Regulators are, with increasing frequency, authorized to impose administrative penalties. Administrative penalties are similar to fines but often imposed through a less formal process than that usually associated with fines. In Alberta Securities Commission v Hennig, 2020 ABQB 48, http://canlii.ca/t/j4rnk, Mr. Hennig had a $400,000 administrative penalty imposed for, among other things, “improper financial disclosure and misrepresentations”. The order was filed with the court. Mr. Hennig declared bankruptcy and the regulator received less than $1000 from the estate.

The regulator asserted that the administrative penalty was not extinguished by Mr. Hennig’s bankruptcy as it fell into the exceptions related to debts incurred through fraud, dishonesty or other reprehensible conduct. The Court agreed:

A purposive interpretation of the subsection in view of the intention of section 178 – to preclude dishonest debtors from benefitting from their dishonesty – would surely extend to a decision of a securities commission, charged with enforcing securities laws in order to protect the interesting public and promoting the integrity of the capital markets, in circumstances that would otherwise fit within the subsection.

The decision turned somewhat on the particular conduct underlying the payment order which may not apply to every administrative penalty. But the case does clarify that bankruptcy does not extinguish all administrative penalties.

Expanded Remedies in Judicial Review

by Natasha Danson
February 18, 2020

Judicial review has traditionally been narrower than an appeal. This is so particularly when it comes to the remedies that can be granted by the court. Generally when an order is made by a court on judicial review quashing a tribunal decision, the court sends the matter back for a new decision. However, recently courts have indicated that where “a particular outcome is inevitable and… remitting the case would therefore serve no useful purpose” a court can exercise broader remedies.

An example of this newer approach is found in Gogek v Real Estate Council of Ontario, 2020 ONSC 486, http://canlii.ca/t/j4wt6. In that case an internal appeal tribunal for the regulator refused to extend the time for initiating an appeal. However, the chairperson of the appeal panel making that decision had presided over the pre-hearing conference in the matter. It is generally accepted that, in order to promote candid resolution discussions, a person presiding over a pre-hearing conference will not later hear the case. The regulator acknowledged the error and not only agreed that the decision refusing the extension of time should be set aside, but that an extension of time was reasonable in the circumstances. The Court directly ordered that permission to initiate the appeal late be granted rather than sending the matter back to the appeal tribunal to make that order.

Using the Competition Act to Engage in Unauthorized Practice

by Erica Richler
February 11, 2020

Can someone engaging in the unauthorized practice of a profession rely on the Competition Act to continue their conduct? The answer is “no” according to the case of Maddock v Law Society of British Columbia, 2020 BCSC 71, http://canlii.ca/t/j4sjv. The Court held that it was the Competition Bureau and not the courts acting in an individual case that determined whether a regulator of a profession, or its restrictive enabling legislation, was breaching the Competition Act. It was no defence to an injunction application by the regulator for the unauthorized practice of the profession.

The Court also interpreted the exception for individuals practising in the employment of and under the supervision of another registered practitioner as referring to an intense level of control over the unregistered person. For example, just because the client of the unregistered person happened to be a lawyer did not provide the intended level of oversight to engage the exception for the unregistered person to practise law.

The Court also looked at all of the circumstances of the case to ascertain whether it was likely that the unregistered person would continue their conduct if no injunction was granted. Prominent in that analysis was the fact that the regulator had issued many warnings, and the manner in which the unregistered person resisted the application for the injunction by raising unconvincing arguments. The Court concluded that in the absence of the injunction, the unregistered person would find additional justifications to continue his conduct

Restraining Illegal Practice

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by Rebecca Durcan
February 4, 2020

One of the most notorious disbarred lawyers is Harry Kopyto. Despite being disbarred more than 30 years ago, he continues to practise. The regulator sought a permanent injunction against his continuing practise of law or holding himself out as a legal representative. The Court had little difficulty concluding that Mr. Kopyto was acting illegally and would continue to do so. The injunction was granted: Law Society of Ontario v Harry Kopyto, 2020 ONSC 35, http://canlii.ca/t/j4f8s.

In doing so the Court affirmed that where a regulator’s statute authorizes the granting of a restraining order, the usual requirements for obtaining such an order are relaxed. The regulator does not have to demonstrate that there would be irreparable harm. The regulator also does not have to prove that any harm could not be compensated for in damages. In addition: “Hardship from the imposition and enforcement of an injunction will generally not outweigh the public interest in having the law obeyed.”

However, there remains discretion to refuse to grant an injunction where granting it “would be of questionable utility or inequitable”.

Uncertainty Continues for Regulators Defending their Reputations

by Bernie LeBlanc
January 28, 2020

How should a regulator respond to a practitioner making repeated public accusations that it is acting with dishonesty and bad faith and was abusing its authority? While such statements might, in some circumstances, constitute professional misconduct, disciplining such practitioners can sometimes create an unsatisfactory appearance. Doing nothing or responding publicly to such communications can give the allegations more credence than they deserve. In Ontario College of Teachers v Bouragba, 2019 ONCA 1028, http://canlii.ca/t/j49mq the regulator opted to sue the practitioner for defamation.

However, there is protection from defamation suits by individuals who comment on a matter of public interest. This protection, called anti-Strategic Lawsuits Against Public Participation (SLAPP) legislation is intended to prevent well-resourced entities from using the courts to stifle criticism. Anti-SLAPP protections have three criteria:

  1. The comments were on a matter of public interest.
  2. The defamation suit can still proceed where it has substantial merit and there is no defence.
  3. The public interest in permitting the proceeding to continue outweighs the public interest in protecting the comment.

The regulator argued that the practitioner’s comments were private grievances about proceedings that had not gone the practitioner’s way. The Court held that while there was some truth to this, the comments also contained a public interest element about whether the regulator was acting appropriately. For example, some of the communications were to relevant Ministers in the government calling for a public inquiry. On this portion of the SLAPP criteria, the motives of the practitioners were irrelevant (although those motives were relevant to the third part of the test).

As such the Court held that the first portion of the test should be resolved in favour of the practitioner. The Court returned the matter to the lower court to evaluate the second and third parts of the test. Thus uncertainty continues for regulators as to how best to respond to unfair criticism that undermines its reputation for integrity.

Incarceration for Regulatory Offences

by Julie Maciura
January 22, 2020

Provincial offences for unauthorized practice or holding out usually result in fines, not jail. Especially for first offenders. However, that is not always the case. In Ontario (Travel Industry Council) v Robinson, 2019 ONCJ 888, http://canlii.ca/t/j45cz the defendant was sentenced to 75 days and 45 days, respectively, for two convictions for acting as a travel agent without registration.

In imposing these sentences the Court expressed concern about the dishonesty of the defendant in promoting two trips. She took money from over 100 people and did not keep the funds in trust. When difficulties arose she concealed them and continued to promote the trips. For one trip she provided only one-way tickets to Florida and the travellers only learned they had no flight back after arriving. The other trip never occurred. The victims were out a total of $65,000. The victims had no recourse to the regulator’s compensation fund because the defendant was not registered.

The Court held that, in these circumstances, a fine was insufficient to protect the public.

Discernment and Insight

by Erica Richler
January 16, 2020

Regulators can refuse registration to applicants who demonstrate a pattern of lacking “discernment and insight” even if individually the events might not be disqualifying.

In I.B. v College of Massage Therapists of Ontario, 2018 CanLII 142416 (ON HPARB), http://canlii.ca/t/j0vzz a former practitioner applied for re-registration. The regulator declined to register him because of a history that included:

  • Seven previous suspensions of registration for both administrative lapses (e.g., not carrying insurance, non-payment of fees) and discipline;
  • Revocation of registration for non-payment of fees;
  • A discipline finding for practising while suspended;
  • Failing to pay all of the costs ordered at that discipline hearing despite it being a joint submission; and
  • Inaccurately describing and minimizing the nature of four criminal convictions (most related to impaired driving) including minimizing his personal responsibility for the conduct.

The appeal Board upheld the refusal to register him. In doing so it noted the following:

  • The applicant required the regulator to “expend considerable resources to administer his membership”.
  • The applicant “has not meaningfully demonstrated that he appreciates the nature of professional expectations and governability standards”.
  • The applicant has not demonstrated that he “possesses insight into the seriousness of his previous conduct and how such conduct can have significance in regard to a health professional’s responsibilities to the public and to the College”. On this point the Board noted that patients, insurance companies and others rely on practitioners to accurately provide information including about their registration status.

Incapacity Restrictions

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by Rebecca Durcan
January 14, 2020

Incapacity cases ideally result in terms, conditions and limitations (TCLs) imposed on a certificate as opposed to suspension. This permits the practitioner to practise while still providing the necessary reassurance to the regulator.  However, regulators and practitioners regularly disagree as to the breadth of such TCLs. Obviously applicants for registration and members wish to have as few restrictions as possible as TCLs have a significant impact on a practitioner’s life. As such practitioners may view the restrictions proposed by a regulator as excessive and based on speculation, or even faulty assumptions, as opposed to being grounded in evidence.

In an older case, D.W.C. v College of Physicians and Surgeons of Ontario, 2017 CanLII 55551 (ON HPARB), http://canlii.ca/t/h5mvg, an independent Board provided a detailed review of numerous restrictions proposed for a former physician who was re-applying for registration after a period of substance abuse and related psychiatric symptoms. At the time of the hearing, the applicant had not used cocaine for seven years and reported moderate amounts of alcohol use. The primary, but not entire, dispute related to the monitoring restrictions proposed by the regulator. In upholding the proposed restrictions, the Board made the following determinations:

  • While the onus is on the applicant to demonstrate that they meet the requirements for registration, regulators must still “scrupulously exercise their mandate when determining whether an individual qualifies for registration”.
  • There is no appearance of bias on the part of experts who assessed the applicant because they came to a diagnosis that the applicant disputes through a fair process.
  • The constitutionally protected freedom of expression does not prevent medical experts from using the applicant’s statements, including some that appeared to be bizarre, in diagnosing the applicant’s condition.
  • The applicant’s human rights do not prevent the regulator or appeal Board from considering issues related to the applicant’s disability. Rather those human rights are required to be considered within the process.
  • On the evidence before them, the Board did not find evidence that the medical experts or the regulator had relied on assumptions based on the applicant’s Indigenous status, or had otherwise discriminated against the applicant on that ground.
  • The Board did not find it to be inappropriate for a regulator to require the applicant to participate in a support group whose philosophy was, in some aspects, contrary to the applicant’s personal beliefs.
  • While the Board accepted the proposition that the regulator had a duty to accommodate the applicant’s disability by only imposing restrictions necessary to protect public health and safety, the Board found on the evidence that the following restrictions were necessary to protect the public:
      • monitoring by a psychiatrist and an addictions medicine physician and compliance with their treatment recommendations;
      • unannounced biological testing for alcohol and any substance of abuse at an independent laboratory rather than at the applicant’s office;
      • total abstinence from drugs and alcohol despite the contested evidence as to whether complete abstinence from alcohol was necessary in the applicant’s case;
      • communication by the regulator with family members, workplace monitors and  support group leaders about the applicant’s behaviour;
      • the restrictions would be in place for at least five years; and
      • “it would generally be in accordance with the established principles of professional regulation for a registrant to bear the ongoing cost of conditions on his or her certificate of registration.”

These determinations were based on the evidence in the individual case and do not necessarily apply to all cases. However, this decision provides a precedent and gives guidance as to the kinds of evidence that might be necessary to support these sorts of restrictions.

A Non-Lawyer’s Guide to Change in Court Scrutiny of Administrative Decisions

by Bernie LeBlanc
January 9, 2020

The Supreme Court of Canada made an important decision changing the way courts will review the actions or decisions of administrative bodies, including regulators of professions. The phrase “standard of review” describes in words how closely courts will scrutinize regulatory action. Before the decision of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, http://canlii.ca/t/j46kb, courts would give a lot of deference to how regulators interpreted their own statutes and to the decisions regulators made. This is called the “reasonableness standard of review”. Only where the legal issues raised were of a general nature (e.g., interpreting the Canadian Constitution, applying to legal system as a whole), or where procedural unfairness occurred would the courts closely scrutinize regulatory action. This close scrutiny is called the “correctness standard of review”.

The above approach by the courts will remain much the same for actions by regulators where there is no formal right of appeal to the courts. For example, many regulators can make decisions on complaints and, often, on registration matters, without a formal right of appeal to the courts. Regulators will probably notice little change in those activities. However, where a regulator’s statute provides for a formal right of appeal to the courts, as is often the case in discipline matters, courts will now show little deference when it comes to all legal issues (e.g., how to interpret one’s enabling statute; the scope of the committee’s authority). For issues of fact (e.g., what the evidence proved) or mixed fact and law (e.g., whether the conduct amounts to professional misconduct), deference will likely still be provided by courts.

Of course there is much more to the Vavilov decision than this brief overview can cover. However, this summary should help regulators prepare for more frequent legal challenges, particularly where there is a formal right of appeal to the courts.

Mild Cognitive Impairment

by Julie Maciura
January 7, 2020

Regulators are likely to see increasing numbers of concerns about practitioners with mild cognitive impairment. When do these concerns call for an aggressive incapacity intervention?

In College of Physicians & Surgeons of Alberta v Collett, 2019 ABCA 461, http://canlii.ca/t/j3n6m an Alberta court stated that an interim suspension of a physician’s right to practice was invalid. The Court first held that the matter was not moot even though the practitioner’s registration had since been reinstated. The Court said that it “accepts that a professional’s reputation is a fragile thing and can easily be diminished.” The Court’s ruling might go some small way to repairing that damage.

The Court’s finding that the interim suspension was invalid was made on two grounds. First, there was an insufficient basis for finding that the practitioner’s condition impaired “his ability to provide professional services in a safe and competent manner”. None of the medical reports expressed that opinion but rather suggested further inquiries ought be made at a later time. The College representative expressed “concerns” about the practitioner’s cognitive status, but did not actually state a belief of impairment to the degree required by the legislation.

The second basis of the finding was that there had been procedural unfairness. A period of four months elapsed between the medical report raising the concerns and notification of an intention to suspend the practitioner’s registration. No medical updates were sought during that period. The notification then only provided two clear business days to retire or be suspended. Given the enormity of the impact of the decision on his life and the mild medical evidence, that period of notice was unreasonable. The Court suggested a notice period of some weeks, a month perhaps, was appropriate in the circumstances. The medical concerns were not such as to necessitate “a firehall-like response”.

This case suggests that regulators need to carefully examine the full circumstances of an individual with suspected cognitive impairment, obtain clear evidence of its likelihood to affect a practitioner’s practice, explicitly state the findings they are making, apply the legal test contained in the legislation, and provide a proportionate time for a response in light of the significance of the concerns.

Retirement Rather than Revocation

by Erica Richler
January 2, 2020

There have been a number of cases recently where regulators have been criticized for allowing practitioners to retire or resign rather than face a discipline hearing into serious allegations, such as sexual abuse or incompetence. In British Columbia, the government is consulting on a number of reforms to the health professions legislation, including a proposed reform to prohibit the College from negotiating agreements with practitioners late in the discipline process.

Legally speaking, it is appropriate for regulators to consider alternatives to a formal discipline hearing where the public will be protected. In fact, the public could be better protected by the retirement of a practitioner, especially if it is permanent, than by the uncertain outcome of a contested discipline hearing where even the most severe outcome is not permanent. Regulators often cannot articulate their concerns about the weaknesses of the evidence as a basis for accepting the retirement option.

However, in the court of public opinion, such dispositions may not be acceptable. In making these decisions regulators might wish to consider the following factors:

  • The degree to which the alleged conduct is disturbing.
  • The views of the complaint(s) even though they are not parties to the proceedings.
  • The transparency of the outcome (will it be both public and shown on the public register?).
  • The extent to which the alleged conduct requires condemnation as well as cessation.
  • The extent to which the regulator can publicly articulate the reasons for the resolution, for example, at a public hearing where the allegations are withdrawn or adjourned indefinitely.

The public interest in these matters is multi-layered.

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