2016

REGULATION PRO – 2016

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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.

Searching a Member’s Home for Private Dishonesty

Durcan_Rebecca_5583

by Rebecca Durcan
December 19, 2016

It is rare for regulators to search a member’s home. However, in Law Society of Saskatchewan v Abrametz, 2016 SKQB 320 the Court held that a practitioner’s home is not sacrosanct. The Court said that “if [the member’s] argument were to prevail, it could lead to a perverse result. A member could simply insulate himself or herself from regulatory scrutiny by moving documents from the office to the home.”

In that case, the lawyer was being investigated for arranging partial payment of services outside of his firm’s accounting system as an apparent tax-avoidance scheme. The lawyer argued that the regulator had no business looking at his private financial affairs. The Court said: “the principle that regulatory jurisdiction does not stop at the office doors of the professional person in question and that a narrow view of jurisdiction is inconsistent with the broad purposive scope and mandate of the applicable self-governance legislation.”

The Court did identify two areas of possible caution for regulators. First, the Court commended the regulator in this case for giving prior notice of its intent to execute the search so that the member could challenge it first in court. Regulators may not always conclude that affording prior notice is prudent as this might provide opportunity for the tampering with evidence. Second, the Court deferred dealing with the constitutional issue of a provincial regulator enforcing a breach of a federal statute. The Court said that the disciplinary allegations, which had not yet been drafted, might involve issues of dishonesty and a lack of integrity that were different from a bare allegation of breaching a federal statute. For example, the allegations might relate to misleading the regulator or involving clients in a scheme to not declare income, which are different from an allegation of breaching the Income Tax Act.

Bill 87 Gives Government Much More Power over Health Regulators

ERichler_Webby Erica Richler
December 12, 2016

The changes contained in Bill 87 to the Regulated Health Professions Act, 1991 have been presented as relating primarily to addressing sexual abuse by health practitioners. And the Bill does contain some important provisions doing just that. For example, if passed:

  • The sexual abuse provisions will apply to former patients for at least one year.
  • Interim orders could be imposed immediately upon receipt of a complaint or report (previously they could not be imposed until after the investigation had been completed).
  • Gender-based restrictions (e.g., not allowing a practitioner to treat female clients) will not be permitted.
  • The criteria for mandatory revocations will be expanded to include most forms of sexual touching.
  • Eligibility for funding for counselling and therapy and related expenses will be expanded.
  • The penalties for failing to report sexual abuse will be increased.

Significantly, Bill 87 also contains a number of provisions that would increase the powers of the Minister over the regulatory Colleges. The Minister would be able to require Colleges to provide information to the Minster about individual cases (including personal information and personal health information). The Minister would also be able to set the composition, quorum, eligibility and disqualification requirements for all College committees. There would not necessarily have to be a majority, or even any, professional members on the committees. In addition, the Minister would be able to require additional information about practitioners to be placed on the public register. The Minister could also expand the mandate of the patient relations program. Overall, the Minister will have a much larger say in the day-to-day operations of the regulatory bodies.

Bill 87 has only passed first reading and still has to go through the entire legislative process. This Bill may be viewed online: http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=4477

Mandatory Reporting Duty and Making False Allegations

BLeBlanc_Webby Bernie LeBlanc
December 6, 2016

Everyone is required to make a report to the Children’s Aid Society about any reasonable suspicion that a child is in need of protection. A person making a report has immunity for any such report unless it is made in bad faith. In order to facilitate the making of such reports, courts provide a strong immunity to those who make them. Otherwise, a chill might arise discouraging the making of such reports. However, in Grogan v Ontario College of Teachers, 2016 ONSC 6545 the Ontario Divisional Court has upheld that where the report is false, the regulator can and should take action.

In Grogan, the teacher made multiple reports about a colleague to the Children’s Aid Society, the police and the colleague’s employer about the colleague’s “involvement with a non-verbal, developmentally delayed female student”. The complaint was referred to discipline on the basis that the report was false. The Discipline Committee was troubled by not only the apparent falsity of the reports, but their persistent and repetitive nature. The panel held that the false reports amounted to professional misconduct and the practitioner’s registration was revoked. The Divisional Court upheld both the finding and the sanction on the basis that the Discipline Committee had provided detailed reasons explaining both determinations. The Court was impressed that the panel had explicitly addressed the potentially chilling effect of its findings.

Given this outcome, regulators can expect more complaints about allegedly false mandatory reports. However, only in those complaints where there is a preponderance of evidence that the report was falsely made will result in disciplinary action.

 Cooperation, Bias and Costs

Maciura_Julie_5038by Julie Maciura
November 29, 2016

The Ontario Court of Appeal has supported one of the more significant disciplinary decisions of 2016. In Reid v. College of Chiropractors of Ontario, 2016 ONCA 779 the Court found that there was no arguable case on the grounds of appeal challenging the Divisional Court’s decision upholding the discipline findings and suspension and costs orders of the Discipline Committee. Dr. Reid had been found to have engaged in professional misconduct for threatening and harassing a colleague and failing to cooperate with the College’s investigation of that complaint. Among other things, Dr. Reid was suspended for twelve months and ordered to pay costs in the amount of $166,194.50.

The Court found that there was evidence to support the findings; indeed the finding of failing to cooperate was unassailable. The Court also indicated that an appellate court’s role in reviewing a cost order was to determine whether it was reasonable in the circumstances and an appellate court should not conduct its own evaluation of what the costs should have been.

The Court also rejected the notion that a panel member sitting on a previous case against the practitioner has an appearance of bias, at least where there were no adverse credibility findings made.

Plump up that Résumé with Caution

Durcan_Rebecca_5583by Rebecca Durcan
November 22, 2016

Practitioners have a status that many organizations like to use. However, lending that status to an organization creates a duty on the practitioner to ensure that the organization is acting appropriately. In Wong v Health Professionals Appeal and Review Board, 2016 ONSC 6413 (Div.Ct.), a physician permitted a clinic to list him as its Associate Medical Director. The clinic then advertised services he did not provide and made Groupon offers. The practitioner was unaware of these advertisements. The ICRC screening committee gave educational advice to the practitioner. He objected to the advice because he was not aware of the advertisements. The Appeal and Review Board and the Court upheld the advice, finding that he had a responsibility to exercise due diligence into how his status would be used by the clinic.

Another physician who had not loaned their status to the clinic and who had not known about the advertisements ultimately received no educational advice.

Enforcing Unauthorized Practice Provisions through Contempt of Court

ERichler_Webby Erica Richler
November 16, 2016

Regulators are increasingly obtaining restraining orders against illegal practitioners (particularly former members). As a result of these cases, the law of civil contempt has actually become clearer. Recently, in The Law Society of Upper Canada v Fingold, 2016 ONSC 5684, the Ontario Superior Court of Justice clarified the process for finding a person in contempt. Quoting the recent Court of Appeal case, Chirico, the Court said: “The test for civil contempt is well established. The order must be clear and unequivocal, the failure or refusal to comply with the order must be deliberate, and the failure or refusal to comply with the order must be proved beyond a reasonable doubt….” The Court emphasized: “Most importantly, the Court of Appeal in Chirico reaffirmed the principle that the party subject to the court order must comply with ‘both the letter and spirit of the order’….” and “the days are long gone when someone subject to a court order can get away with circumventing it by relying on a benign technicality. To allow that to happen would be disrespectful of the order and of the administration of justice.” In this case, the Court rejected a circumvention scheme in which Mr. Fingold, a disbarred lawyer, hired paralegals to file the paperwork on his behalf.

The Court rejected any concern that the enforcement proceedings were initiated by the regulator and not the client in the transaction. The Court also approved the practice of separating the finding phase of the hearing from the penalty phase, to prevent the evidence that is relevant to one phase improperly tainting the other phase.

Regulating by Referendum

Maciura_Julie_5038by Julie Maciura
November 8, 2016

The latest in the series of Trinity Western University (TWU) cases indicates that statutory bodies cannot regulate by referendum. TWU is a Christian university that has a code of conduct students must sign agreeing to only engage in sexual relations with one’s spouse of the opposite (it assumes there are only two) gender. Law Societies have been struggling to determine whether to recognize graduates of the school. Last week’s decision by the British Columbia Court of Appeal struck down the Law Society of British Columbia’s refusal to recognize the school: Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423.

The major concern of the Court was that the Law Society decided to be bound by the results of a referendum by its members on the issue. The profession voted 74% to deny recognition of the school and the Law Society accepted those referendum results. The Court concluded that the regulator had to balance the competing interests and not fetter its authority by way of the referendum results. The Court said: “the adoption of a resolution not to approve TWU’s faculty of law would limit the engaged rights to freedom of religion in a significantly disproportionate way — significantly more than is reasonably necessary to meet the Law Society’s public interest objectives.”

The Court concluded:

A society that does not admit of and accommodate differences cannot be a free and democratic society — one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal. This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.

Forcing Finney Farther from Fault Finding

Durcan_Rebecca_5583by Rebecca Durcan
October 31, 2016

The case of Finney v. Barreau du Quebec, 2004 SCC 36 has puzzled regulators for more than a decade as it appeared to suggest that regulators could be ordered to pay damages in a civil suit for negligence. Finney appeared to be at odds with cases both before and after Finney that appeared to say that regulators are immune from a civil suit for damages unless they acted in bad faith. The case of Robson v Law Society of Upper Canada, 2016 ONSC 5579 provides yet a further distancing of the courts from Finney. Robson was found by the hearing panel of the Law Society to have engaged in professional misconduct and his licence was revoked. Robson succeeded before the appeal panel, which reversed the finding. The appeal panel declined to award him costs, however, finding that the prosecution had not been unwarranted. Robson sued both the Law Society and its individual representatives for negligence, malicious prosecution, and malfeasance (abuse of) public office.

In a motion to strike the pleadings, the Law Society succeeded on the basis that it and its representatives were immune from negligence claims and that there had been no particulars of how the defendants had acted in bad faith or for an ulterior purpose. The Court held that the Finney case turned on the concepts found in the Quebec Civil Code that did not apply to the common law concepts of malicious prosecution and malfeasance (abuse) of public office. However, the Court gave leave to amend the pleadings to enable Robson to try to plead the missing particulars. The Court rejected the notion that Robson was not in a position to plead those particulars until later in the proceedings; the regulator was entitled to know the case it had to meet. On the other hand, the Court also rejected the proposition that the appeal panel’s determination that the prosecution had not been unwarranted made the current proceeding an abuse of process or an inappropriate re-litigation of issues.

Joint Submissions

BLeBlanc_Webby Bernie LeBlanc
October 24, 2016

The Supreme Court of Canada has provided detailed guidance on how adjudicators should approach joint submissions. While the case deals with a criminal case (a manslaughter finding where the victim hit his head on the ground following a punch), it will likely have significant application to discipline cases as well. Past discipline cases have taken a similar approach to criminal cases when dealing with joint submissions: Rault v. Law Society of Saskatchewan, 2009 SKCA 81.

In R. v. Anthony Cook, 2016 SCC 43, the Court examined the reasons why joint submissions should usually be accepted, including that the defendant is giving up their right to a hearing and that both sides and the public often gain a significant benefit by having such agreements generally accepted. For example, witnesses are spared being put through a trial and both the “victim” and the defendant can benefit from the acknowledgement of responsibility and more quickly putting the blame part of the process behind them. The Court concluded that the most stringent of tests for rejecting a joint submission should be applied, namely, only where it would bring the administration of justice into disrepute or is otherwise not in the public interest. In particular, adjudicators should not analyze whether the joint submission is “unfit” in the circumstances.

The Court, in a bit of an unusual step, offered practical guidance to adjudicators who have concerns with a joint submission. One suggestion was to ask the parties about the circumstances of the agreement including any benefits obtained by the prosecution and any concessions offered by the defendant. These circumstances could include things like reluctant witnesses, evidence of uncertain admissibility and any undertakings offered by the defendant. The Court also suggested that if an adjudicator is seriously considering not accepting the joint submission, it should notify the parties not only to permit additional submissions, but also to enable the defendant the opportunity to withdraw from the agreement. It is not obvious whether this aspect of the Court’s advice would apply to professional misconduct proceedings.

Investigative Powers Not to be Restrained in Advance

BLeBlanc_Webby Bernie LeBlanc
October 17, 2016

Can a regulator have access to the member’s personal cell phone and residence? In McLean v. Law Society of British Columbia, 2016 BCCA 368 the Court said “it depends”. In that case the lower court issued an injunction against the regulator from doing either. The British Columbia Court of Appeal quashed that injunction, but did not say that the regulator could do those things. The Court of Appeal observed that there had been no evidence that the Law Society intended to do either of those things. It found that injunctions should not be granted to prohibit any prospective action that was not in actual contemplation. For example, the Court of Appeal was concerned that there was no evidence as to what documents were located in the residence of the member or for what use the personal cell phone had been used. The implication was that if there was a reasonable basis for the regulator to believe that important and relevant information was to be found in either place, the investigation might “go there”. However, the implication was also that a regulator could not enter a member’s private resident or take possession of the member’s private cell phone on speculative grounds.

You Can Reap Only What You Sow

Maciura_Julie_5038by Julie Maciura
October 12, 2016

In a professional misconduct case, the prosecution decides what seed to plant in the wording of the allegations. The prosecution is then restricted to reaping findings only from those allegations. It cannot try to reap a different harvest after the seed has sprouted. That is the lesson gleaned from Meier v Saskatchewan Institute of Agrologists, 2016 SKCA 116. The allegation there was that Mr. Meier had made false and misleading statements about a seed planting experiment he had conducted. The “particular” (i.e., the specific facts supporting the allegation) that was alleged against him was that Mr. Meier had failed to disclose that the difference in growth was the result of different seed planting depths and not the manner in which the fertilizer had been administered. However, at the hearing the prosecution had difficulty establishing that “particular” because its key witness could not establish with certainty which field of crops he had examined. The Discipline Committee made a finding against Mr. Meier on the basis that he had not followed a proper scientific method in making his claims. The Court of Appeal found that this shift of focus was unfair to Mr. Meier because he had prepared his entire defence based on the seed-depth issue. He had not been properly notified of the particular upon which the Committee had based its finding. The hearing was thus unfair and the result reversed. Wording of the statement of allegations, particularly (no pun intended) in standards of practice cases, is extremely important.

Restricting the Activities of Suspended Members

ERichler_Webby Erica Richler
October 4, 2016

There has been a lot of litigation over the years regarding the authority of regulators to restrict the activities of suspended members. One of the reasons is that different statutes take different approaches to whether a suspended member is still a member of the profession. The Alberta Court of Appeal recently addressed this issue in Law Society of Alberta v Beaver, 2016 ABCA 290. Mr. Beaver was suspended by the Law Society. He continued to perform activities within the practice of law, including acting as an agent. The Law Society sought an injunction to prevent him from doing so. Mr. Beaver argued that suspended lawyers could act as agents because there was no explicit prohibition in the Act.

The Court rejected this argument. It held that such an interpretation would defeat the public protection purpose of the Act. An important factor was that suspended members remain members under this Act and the Act prevents members from acting as agents due to the risk of public confusion.

The Court also concluded that the regulator had the implied authority to restrict the activities of suspended members in this case, even if it was not expressly stated in the Act. The Court also stated that a regulator had standing to bring applications for injunctions to protect the public from unregistered practitioners and that Courts had the inherent power to grant such injunctions even if the enabling legislation did not have a restraining order provision. This case should assist regulators who have outdated enabling statutes.

Production Orders in Investigations Upheld

BLeBlanc_Webby Bernie LeBlanc
September 26, 2016

Are journalists’ notes exempt from regulatory investigators? The Court in Mulgrew v. The Law Society of British Columbia, 2016 BCSC 1279 says no. In an interview with the Vancouver Sun, a lawyer made comments critical of an expert witness in one of the lawyer’s cases. The expert witness sued for defamation and made a complaint to the Law Society. The Law Society appointed an investigator who issued an order to the Vancouver Sun to produce its notes of the interview with the lawyer. The Vancouver Sun challenged the order on various grounds.

The Court held that the authority of regulatory investigators to compel third parties, including journalists, to produce information to assist in an investigation of a complaint resulted in little protection under the Canadian Charter of Rights and Freedoms. The expectation of privacy in these circumstances was minimal, the public interest in regulating lawyers was significant and the procedure permitted the third party to challenge the order before it was enforced. In addition, there was no real restriction on the ability of the journalist to write what they wanted. Thus the legislative provisions appeared to be consistent with the freedom against unreasonable search and seizure, the right to life, liberty and security of the person and the freedom of expression protections of the Charter.

The Court also held that the discretion of the investigator to seek relevant documents for an investigation ought to be given considerable deference, even if there was parallel civil litigation for defamation. However, in this case at least, the investigator had to file evidence justifying the investigatory decisions.

This case does not address fully concerns that might arise if the investigator sought production of confidential sources of the journalist.

Preventing Sexual Abuse

Durcan_Rebecca_5583by Rebecca Durcan
September 19, 2016

Most of the attention on the Sexual Abuse Task Force (SATF) report in Ontario has been focused on the proposed changes to the complaints, investigation and discipline system. However, chapter 4 of the report provides excellent resources on preventing sexual abuse in the first place.

The SATF suggests that there are three key ways of preventing sexual abuse of patients:

  1. Severe consequences to practitioners who abuse patients.
  2. Specifying clear boundaries to both practitioners and the public.
  3. Adequate education, especially for students, but also ongoing once registered.

The education of practitioners (and others) should cover nine components:

  1. The concept of zero tolerance (e.g., no excuses).
  2. Boundaries such as the time, location and duration of treatment, language used, reasons and method of touching, self-disclosure and socializing and dual relationships.
  3. Why sexual abuse occurs, including the vulnerability of patients and motivations of practitioners who abuse them (e.g., falling in love).
  4. The various forms, extent and timing of the harm from sexual abuse.
  5. That consent is not valid for sexual abuse and an understanding as to why apparent consent may occur.
  6. Post-termination involvements with patients and why they are always troublesome and when they are never appropriate.
  7. Mandatory reporting rules and how to manage ambivalence about doing it and why it is so important.
  8. Knowledge of the legislation, rules and standards that exist for every profession.
  9. How to critically evaluate potential boundary violations so that the practitioner has the tools to manage unexpected or challenging situations.

This chapter provides useful information for all regulators, not just those associated with health professions.

Fundamentally Reshaping Sexual Abuse Investigations and Prosecutions

Maciura_Julie_5038by Julie Maciura
September 9, 2016

Transfer the handling of all sexual abuse complaints from self-regulatory bodies to a central, independent, public agency and separate hearing tribunal. That is a key recommendation of the long-awaited Sexual Abuse Task Force (SATF) report in Ontario. Interestingly, the central agency would have multiple roles including educating the profession and the public, supporting complainants and investigating and screening sexual abuse complaints. The central agency would provide free legal support and also pay for a support person for the complainant. Compensation for therapy and counselling would be available from the time that a complaint was made and would cover related expenses (e.g., medication, child care, travel).

The discipline hearings themselves would also be significantly altered. Hearings would be held before a single, specially trained tribunal. The complainant would automatically become a full party at the discipline hearing with the right to call their own witnesses and make arguments, much like hearings now before the Human Rights Tribunal. Complainants would be able to testify behind a screen. The complainant could choose to adopt a video statement of their investigative interview rather than have to repeat their testimony. In no circumstances would the practitioner being disciplined personally cross-examine the complainant; it would be done by the practitioner’s representative. Strict court rules of evidence would not apply, so hearsay and most relevant documents could be admitted. Expert witnesses on the dynamics and impact of sexual abuse selected by the central, public agency would replace experts called by the parties.

If a finding is made, the complainant could make a victim impact statement without being cross-examined. The mandatory revocation provisions would be expanded to include more types of frank sexual acts (e.g., touching a patient’s breasts for no clinical reason). For sexual abuse findings that do not require revocation, gender-based restrictions (not being able to see female patients) are not permitted. Gender-based restrictions assume a level of trust that a practitioner would comply with them even though the practitioner has already demonstrated a fundamental lack of trustworthiness.

The SATF is also concerned about unregistered practitioners, including formerly regulated practitioners who have been revoked, sometimes even for sexual abuse. To address this risk of sexual abuse, the report recommends that unregulated practitioners be brought under the auspices of existing Colleges. In addition, practitioners would be responsible for the sexual abuse of the people they oversee. Further, other regulators in Canada should be notified of all sexual abuse findings and a national and international database be maintained of all sexual abuse findings.

The SATF also recommends that the new central, public agency and tribunal would be subject to oversight by an independent Council, similar to the Professional Standards Authority in the UK. The oversight Council would have representatives of government, the health sector, survivors of sexual abuse and advocates in the field. The Council would require detailed data from both the central public agency and the tribunal about how they handled individual cases, conduct surveys of participants in the process and evaluate the effectiveness of the new system.

If the SATF report is fully implemented, all participants in the complaints and discipline system would have to rethink how they do things.

Independent Task Force Report on Sexual Abuse and the RHPA Released

RKM2by Robin McKechney
September 9, 2016

Today the Ontario Ministry of Health and Long Term Care released the much anticipated Independent Task Force report “To Zero: Independent Report of the Minister’s Task Force on the Prevention of Sexual Abuse of Patients and the Regulated Health Professions Act.”  The report recommends broad-based and sweeping reform to the treatment of sexual abuse complaints against regulated health professionals. The key recommendations include the following:

The creation of the Ontario Safety and Patient Protection Authority (OSAPPA) which would have responsibility for the investigation of sexual abuse complaints against all regulated health professionals.

  • The creation of an independent tribunal for the adjudication of OSAPPA cases either through the Ontario Human Rights Tribunal or through a restructuring of the Health Professions Appeal and Review Board (HPARB).
  • The expansion of the sexual acts that would result in mandatory revocation.
  • Removal of the ability to place gender based patient restrictions on a health professional’s practice in response to an allegation or finding of sexual abuse.
  • Funding for patient therapy throughout the complaint process commencing at the investigation stage.
  • A pilot project through Legal Aid Ontario to give complainants access to legal information and options.
  • Full standing for complainants as parties at disciplinary hearings.
  • Enhanced transparency on college registers regarding disciplinary decisions involving sexual abuse, misconduct or impropriety.
  • The funding and development of a public education and legal information program regarding patients’ legal rights and options for recourse when they have been sexually abused by a regulated health professional.
  • Enhanced protection from sexual abuse by unregulated health practitioners by assigning unregulated health practitioners to an existing college.
  • Where an unregulated health practitioner is contracted to or employed by a regulated health professional, the regulated health professional should be held responsible for acts of sexual abuse or harassment by those employees/subcontractors.
  • A research study to track and analyze the rates, responses and dispositions of sexual abuse cases of patients by regulated health professionals retrospectively and going forward.

The Ministry has stated that it intends to move forward on some of the above initiatives over the coming months. Notably, this does not include the creation of OSAPPA or an independent tribunal to adjudicate its cases, both of which require further review. The initiatives identified by the Ministry for which legislative amendments will be brought forward this year include the following:

  • Expanding access to counselling and therapy by allowing the funding for these services to begin when a complaint of sexual abuse is made.
  • Expanding the list of acts of sexual abuse that will result in a mandatory revocation of a regulated health professional’s certificate of registration.
  • Removing the ability of a college to impose ‘gender-based restrictions’ on a regulated health professional’s practice in response to disciplinary findings involving sexual abuse of a patient.
  • Increasing fines for regulated health professionals and facilities that fail to report to a college suspected cases of patient sexual abuse.
  • Enhancing transparency by adding to what colleges must report on their public register and websites.
  • Clarifying the boundaries of the patient-provider relationship.

SML will be providing ongoing analysis on the Recommendations and the Report.

Permission to Appeal Late Refused in Two Cases

ERichler_Webby Erica Richler
September 6, 2016

In two recent cases the courts have refused to extend the time a practitioner could appeal a disciplinary decision. In the first case, the practitioner had agreed to the facts, a finding of professional misconduct and a six month suspension: Khahra v College of Veterinarians of Ontario, 2016 ONSC 4692. There was no notice of an intention to appeal until the start date of the suspension became an issue. The Court described the test to extend the time to appeal as follows:

  1. Whether the moving party formed an intention to appeal in the relevant appeal period
  2. The length of the delay and the explanation for the delay
  3. Any prejudice to the responding party
  4. The merits of the appeal
  5. Whether the “justice of the case” requires an extension

The Court refused to extend the time to appeal on all of the grounds, but appeared to be significantly persuaded by the fact that the communications suggested that an appeal was considered only after the practitioner could not obtain a deferral of the suspension.

The case is also interesting in its discussion of the issue of when a practitioner can challenge their agreement to a joint submission. The Court was not persuaded that the agreement was involuntary even though the practitioner indicated that his lawyer had stated he would not represent the practitioner if the practitioner did not proceed with a joint submission. The Court also relied on the fact that the practitioner provided no medical evidence to establish that the stress he was undergoing at the time made his decision to proceed with the joint submission involuntary.

In the second case the Court found that the pattern of delay by the practitioner, including one year to file materials, undermined any basis to grant an extension of time: Abi-Mansour v. Ontario College of Teachers, 2016 ONCA 602.

Articulating Credibility Findings

RDurcan_Webby Rebecca Durcan
August 29, 2016

Courts have said that in credibility cases adjudicators should say more than just that they believed one witness over another. There should be some explanation of those findings. However, articulating why one witness is more credible than another witness is difficult. In one recent discipline case, the highest court of British Columbia gave an example of what might be acceptable reasons. In The Law Society of British Columbia v. Sas, 2016 BCCA 341 the tribunal in that case used language such as evidence that was “argumentative, imperious, self-serving and evasive” or that was “argumentative, evasive in answering some questions, and non-responsive in answering others”. The tribunal gave examples in its reasons to illustrate these conclusions. The tribunal also did a close analysis of the substantive series of events describing what it viewed as actually having occurred. The Court said that the tribunal had not used “empty descriptions to characterize the evidence of” the witnesses it did not believe. The “reasons were “meaningful, and describe proper bases for assessing evidence”.

The Court also gave the tribunal a pass on not addressing a discrepancy between a witness’ original statement and her testimony at the hearing as to whether she issued one or three cheques on a particular account. The Court said: “While [the practitioner’s] counsel undertook an extended cross-examination on the discrepancies between Ms. Clarke’s original statement and her testimony at trial, the discrepancies were not of any particular moment. They went only to minor details surrounding the August 31, 2011 transactions. At most, the discrepancies might have cast some doubt on Ms. Clarke’s ability to recall minute details of the August 31 transactions. The discrepancies did not go to the nature of the transactions, themselves. In my view, given the limited importance of the discrepancies, it was not incumbent on the hearing panel to mention them in its reasons.”

Thus discipline panels need to articulate in some reasonable fashion why it believed one witness over another and should discuss any significant discrepancies in the evidence of a witness whose evidence it accepts. However, perfection is not required.

Wilful Blindness and Recklessness

BLeBlanc_Webby Bernie LeBlanc
August 22, 2016

In professional misconduct hearings the regulator generally does not have to prove that the practitioner deliberately engaged in the conduct. Proving the act or omission is generally sufficient. There are some exceptions where the wording of the definition of misconduct inserts a mental element. In addition, for some matters, a defence of due diligence may be available (e.g., that the practitioner took all reasonable steps to avoid the result occurring). One situation that recurs often is where an employee of the practitioner engaged in the conduct without the practitioner’s knowledge. In The Law Society of British Columbia v. Sas, 2016 BCCA 341 the practitioner argued that the billing irregularities were made by staff without her knowledge. However, the Court upheld the finding saying that the practitioner was wilfully blind. There were suspicious circumstances such that the practitioner “ought to have recognized that something was amiss”. In the case, there was a blitz to close old files and none of the scores of clients who had prepaid a deposit had any funds returned to them. All the prepaid funds were being transferred to the practitioner’s bank account. The Court said: “In the circumstances, the … [practitioner] had a duty to look at the backup documents, and to make inquiries.”

In describing the difference between willful blindness and recklessness, the Court cited a Supreme Court of Canada discussion in a criminal case:

Willful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, willful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in willful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.

In most cases, even if some intent is desired in order to make a finding of professional misconduct, it does not have to be deliberateness. It can be willful blindness or recklessness.

Sunshine Handbook

Maciura_Julie_5038by Julie Maciura
August 15, 2016

Most municipalities in Ontario are required to hold open Council and Committee meetings. The public can be excluded only in limited circumstances where there is a compelling countervailing interest that outweighs the benefits of openness (e.g., safety concerns, formulating litigation or contractual negotiation strategies, obtaining legal advice). Transparency helps ensure that good decisions are made, that self-dealing and other conflicts of interest are avoided, and enhances accountability and public trust in the organization. A decade ago, the Supreme Court of Canada upheld a broad interpretation of this duty because of its importance: London (City) v. RSJ Holdings Inc., [2007] 2 SCR 588. Many regulators have similar provisions that apply to their Board or Council meetings. Even if there are no such provisions, many regulators have voluntarily adopted a similar approach in order to foster public confidence.

Recently the Ontario Ombudsman’s office has released its third edition of the Sunshine Law Handbook guiding organizations in applying transparency principles. Their top ten tips are as follows:

  1. Know and follow the Municipal Act, 2001 and your procedure by-law’s open meeting requirements.
  2. Make sure you have a procedure by-law that complies with the Municipal Act.
  3. Give adequate advance public notice of all meetings, closed sessions and agenda items.
  4. Do not add last-minute agenda items to closed sessions, except in truly urgent situations.
  5. Open the meeting unless closure is specifically authorized under the Municipal Act and there is a real need to exclude the public.
  6. Pick the right s. 239 exception before closing a meeting.
  7. Pass a resolution in public that includes meaningful information about the issue to be considered – before closing the doors.
  8. Record the meeting, including all resolutions and decisions, preferably using digital audio or video.
  9. Do not hold a vote in closed session unless it is for a procedural matter or for giving directions to staff.
  10. Report back publicly in open session about what occurred in closed session.

These tips, with appropriate modifications, may assist regulators in achieving maximum openness in their processes.

What’s Going on with those Trinity Western University Cases?

RDurcan_WebAugust 10, 2016
Rebecca Durcan

It may be difficult to follow the numerous cases dealing with Trinity Western University. Just last week we reported that Ontario’s highest court upheld the refusal of the Law Society of Upper Canada to accredit the school: Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518.

However, late last month, in The Nova Scotia Barristers’ Society v Trinity Western University, 2016 NSCA 59, the highest court in Nova Scotia appeared to reach the opposite conclusion. To be fair, the two decisions are different. In Nova Scotia the regulator enacted provisions that allowed it to adjudicate whether the school breached the Nova Scotia Human Rights Act. The Court was concerned with this approach as only courts should make formal declarations of this sort. Also, the wording of the provision appeared to give the regulator powers to give directions to the out-of-province educational program rather than to simply assess the suitability of the applicants for registration. Interestingly, the court in Nova Scotia did not even address the Canadian Charter of Rights and Freedoms that played such a significant role in the Ontario Court of Appeal decision.

Thus, the two decisions may not even be inconsistent. However, it is likely that the broader issue will go to the Supreme Court of Canada which will be interesting, not only for the legal and societal values in issue, but also because in 1998 that Court sided with Trinity Western University when a similar issue arose in respect of its teaching program.

Will the Member Do it Again?

ERichler_Webby Erica Richler
August 8, 2016

One of the most common arguments against revocation in serious cases of misconduct is that the member has learned his or her lesson and will not repeat the conduct. In Doolan v Law Society of Manitoba, 2016 MBCA 57, Manitoba’s highest court gave guidance as to when such an argument can be rejected even for first findings against members with a long and clean record and extensive good character references. Doolan had been found guilty of misappropriating about $10,000 of client money. The Court upheld that a misappropriation finding could be made even in cases where a deliberate attempt to steal the money was not proved. Unauthorized use of clients’ funds was sufficient.

On the issue of revocation, the Court noted that the fact the member tried to conceal the misappropriation was a significant aggravating factor that indicated the member might do it again. In addition, letters of reference could be discounted where the authors were not aware of the finding (or even the initial allegations) at the time they wrote the letters.

Trinity Western University Again

RDurcan_Webby Rebecca Durcan
August 2, 2016

In Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518 the Ontario Court of Appeal upheld the refusal of the Law Society of Upper Canada to accredit the law school program.

Six Canadian law regulators have accredited the program. Three, including Ontario’s, have not. Their refusal is due to the mandatory code of conduct “covenant” which prohibits sexual activity except between a married man and woman and is arguably inconsistent with fundamental Canadian values and human rights.

The Court held that the decision of the Law Society discriminated against the freedom of religion of some students at Trinity Western. However, that discrimination was outbalanced by the discriminatory impact of the covenant on other groups including the LGBTQ community. The Court said: “My conclusion is a simple one: the part of TWU’s Community Covenant in issue in this appeal is deeply discriminatory to the LGBTQ community, and it hurts.” The Court held that the Law Society was acting reasonably in denying a public benefit (i.e., accreditation) to a program from a school that was acting in a profoundly discriminatory fashion. In making that decision the regulator was entitled to consider public interest factors beyond the quality of the education provided by the school.

Incivility Finding Upheld by Court of Appeal

BLeBlanc_Webby Bernie LeBlanc
July 25, 2016

In Groia v. The Law Society of Upper Canada, 2016 ONCA 471 the issue was balancing the duty of lawyers to be civil against the duty of lawyers to be fearless advocates: During a hotly contested hearing related to the Bre-X mining scandal, a lawyer made repeated comments that were characterized as “rude, unnecessarily abrasive, sarcastic, demeaning, abusive or … that attacks the personal integrity of opponents, parties, witnesses or of the court, where there is an absence of a good faith basis for the attack”. The Court of Appeal upheld the finding of professional misconduct in this case. It stated that such a hearing “is a contextual and fact-specific inquiry [such] that a precise definition of incivility is elusive and undesirable”. The Court also held that there is no conflict between the duty to be a zealous advocate and to be civil. The Court also saw no breach of the freedom of expression protections contained in the Canadian Charter of Rights and Freedoms given this fact-specific approach to the allegations.

The Court of Appeal sidestepped the issue of how a discipline panel can use the reasons for decision of a court in making a finding of professional misconduct. The Court of Appeal indicated that it was clear not much weight was put on those reasons so nothing much turned on the hearing panel considering the Bre-X judge’s reasons.

The Court of Appeal also found the penalty (a one month suspension) and the costs award ($200,000) as being reasonable in the circumstances and warranting deference by the courts.

There was a dissenting judgment based primarily on an assessment of whether, in the context of this case, including the trial judge’s rulings, the conduct of Mr. Groia was really unprofessional.

Disclosure of Regulator’s Files

Maciura_Julie_5038by Julie Maciura
July 18, 2016

One of the duties of a regulator in disciplinary matters is to disclose all relevant information it possesses unless the information is privileged. This duty was discussed in detail in Law Society of Upper Canada v Savone, 2016 CanLII 33941 (ON SCDC). It was alleged that Savone had participated in mortgage fraud by flipping properties at inflated prices in “no money down” transactions. Savone sought access to the client files of the lawyers for the other parties in those transactions but the Law Society refused to make that disclosure. In upholding the duty to disclose those files, the Divisional Court held that the confidentiality provisions of the Law Society Act did not create a special privilege; instead the usual test of relevance and privilege remained in place. The fact that the files were obtained by the regulator in other investigations (not the investigation of Savone) was irrelevant; the Law Society possessed them. Once the issue of disclosure of the files was raised by Savone, the prosecution had a duty to review the files and disclose all relevant information unless it was asserting a privilege. Both decisions (i.e., relevance and privilege) were reviewable by the hearing panel. The Court held that a broad view should be taken on the issue of relevance to any issue in the proceeding. Disclosure was not limited to information that would exculpate the member. That the files were held by another department of the regulator did not make them “third-party” files requiring a special procedure to determine whether they should be produced (i.e., an O’Connor motion).

Case Deals with Hot Topics in Discipline – Part 2

ERichler_Webby Erica Richler
July 14, 2016

The case of Reid v College of Chiropractors of Ontario, 2016 ONSC 1041 (CanLII), http://canlii.ca/t/gs27k involved a chiropractor who made inappropriate and harassing comments to the complainant (another chiropractor) and failed to adequately cooperate with the College’s investigation of the complaints. The case is notable because it touches on a number of “hot topics” in discipline. While some questions are clarified by this decision, others remain unsettled:

Confusion regarding standard of proof: The Divisional Court stated that the College was required to prove the allegations of professional misconduct “on the basis of evidence that is clear, convincing and cogent and that supports a finding that there has been a significant departure from acceptable professional standards” (relying on Re Bernstein and College of Physicians and Surgeons of Ontario and Barrington v. The Institute of Chartered Accountants of Ontario). The Court made no mention of the balance of probabilities standard as set out in F.H. v. McDougall. Nor did the Court refer to the recent Jacobs v. Ottawa (Police Service) decision, where the Court of Appeal held that “clear and convincing evidence” (as required under the Police Services Act) is a higher standard of proof than the balance of probabilities. Despite the relative certainty over the last several years that discipline committees were required to make findings on the balance of probabilities in all cases, this case raises the question of whether the old notion of a sliding scale (the more serious the conduct, the higher the standard of proof) is creeping back into judicial thinking.

Controversy over costs: The discipline panel had ordered costs against the member in the amount of $166,194.50, representing 51% of the total costs (the hearing was five and a half days and involved some agreed facts). The majority of the Divisional Court upheld this decision as reasonable. However, in a strong dissent, one judge found that the costs award was “unfair and abusive” and would have ordered costs of $60,000 instead. Although it was a dissent, regulators should expect members to raise many of the points made by the dissenting judge in future cases, including the need for a discipline panel to consider the reasonable expectations of the member (he paid his lawyer $32,000 compared to the College’s legal fees of over $260,000) and that costs awards must not be punitive.

Case Deals with Hot Topics in Discipline – Part 1

ERichler_Webby Erica Richler
July 12, 2016

The case of Reid v College of Chiropractors of Ontario, 2016 ONSC 1041 (CanLII), http://canlii.ca/t/gs27k involved a chiropractor who made inappropriate and harassing comments to the complainant (another chiropractor) and failed to adequately cooperate with the College’s investigation of the complaints. The case is notable because it touches on a number of “hot topics” in discipline. While some questions are clarified by this decision, others remain unsettled:

No bias on the part of discipline panel member who sat on previous panel involving the same member: Many regulators (particularly in smaller professions) face challenges when appointing discipline panels: quorum and composition have to be met and a reasonable apprehension of bias must be avoided. In this case, the member argued that a panel member’s participation in an earlier hearing involving the same member gave rise to a reasonable apprehension of bias. The Court disagreed and confirmed that “past participation by a Panel member in a matter does not amount to a valid concern about bias when the earlier hearing involved an Agreed Statement of Facts and no findings of credibility.”

College has authority to compel member’s cooperation in investigations: The Court noted that the Health Professions Procedural Code does not require a member to respond to a complaint; the language is permissive. However, the College in this case also had a written standard of practice setting out an expectation that members must cooperate with the College and its committees when reasonable requests for information are made. The letters written to the member in this case had also specifically requested a response to the complaints. In these circumstances, the Court held that the College had the authority to require a response from the member and the member’s failure to cooperate amounted to professional misconduct.

Number of Exam Re-Writes

RDurcan_Webby Rebecca Durcan
July 4, 2016

Regulators who require applicants to pass an examination before registration grapple with how often the applicant should be able to attempt the exam. There is a concern about fairness to the applicant (the rationale being that few people who fail an exam three or four times ever pass it). Repeated retakes are expensive for both applicants and regulators alike and arguably “block” the number of seats available for new applicants. Other concerns include applicants “learning the exam” rather than the underlying competencies that are being tested and the deterioration of applicants’ competencies over the months and years as they focus on the exam.

For the College of Nurses of Ontario (CNO) the most frequent ground of appeal in registration matters to the Appeal Board are from applicants who have been unsuccessful in the examination more than three times. The CNO is currently consulting on a proposed registration regulation change that would give its Council the ability to expand the number of examination attempts and could even make them unlimited. The CNO has advised the National Council Licensure Examination – Registered Nurse that its review of all of the information, including psychometric evidence, suggests that it is appropriate to permit unlimited attempts. This step by a major regulatory body may spark a reconsideration of the issue by other regulators. See: http://www.cno.org/en/trending-topics/registration-regulation-tell-us-what-you-think/ for more details.

Voluntary Associations Governed by Procedural Fairness Too

BLeBlanc_Webby Bernie LeBlanc
June 27, 2016

It is a popular misconception that an organization has to be exercising a statutory power to be subject to judicial review. The courts have held that voluntary associations serving a significant public purpose are also subject to the administrative law rules of procedural fairness. This principle was demonstrated recently in Gymnopoulos v. Ontario Assn. of Basketball Officials, 2016 ONSC 1525 where coaches of a school basketball team became irate at the officials after losing a lead in the last 90 seconds of a playoff game as a result of six fouls called against them. The resulting disciplinary suspension of the coaches from basketball was set aside by the court because of a cumulative series of procedural errors including lack of formal notice of the allegations, incomplete disclosure of evidence, limited participation in the hearing process and an absence of reasons to explain the disparate sanctions imposed. The Court heard the case even though the suspensions were largely over. Voluntary associations need to follow a fair procedure when dealing with disciplinary issues.

Participant Expert Witnesses

Maciura_Julie_5038by Julie Maciura
June 24, 2016

Generally expert witnesses must be neutral and they must provide a written report of their opinion well in advance of any hearing. Last year the Ontario Court of Appeal stated that these rules did not necessarily apply to “participant experts”: Westerhof v. Gee Estate, 2015 ONCA 206. For example, a health care practitioner involved in the treatment of a patient could express opinions within the practitioner’s expertise about the matter (e.g., the nature, cause and likely prognosis about the patient’s condition). Further guidance on this principle was provided in the civil case of XPG, A Partnership v Royal Bank of Canada, 2016 ONSC 3508. The issues in the case involved grain futures contracts. A participant in the events, who was employed by one of the parties, was an expert on the issues. The Court permitted the witness to express opinions about the events in issue but not to provide broader expert opinions on the larger issues in the case. The Court held that permitting wide ranging opinions on broader issues was unfair because no expert report had been provided in advance of the hearing. The Court also indicated that the lack of independence of the expert evidence could be considered when determining how much weight to put on the opinion. It is unclear to what extent the “participant expert” exceptions to disclosure apply in regulatory hearings. In order to avoid “surprise” participant expert opinions at hearings, regulators may wish to make rules of procedure to require disclosure of participant expert opinions.

Absolute Liability Findings

ERichler_Webby Erica Richler
June 20, 2016

While most professional misconduct does not require the proof of intent to do something wrong, generally evidence of taking all proper precautions will result in no finding being made. However, there are some types of professional misconduct that prohibit certain conduct, regardless of any precautions taken. In horse racing, for example, there is an absolute rule that the horse not test positive for certain substances on race day. In Director, Ontario Racing Commission v Ontario Racing Commission, 2016 ONSC 3312, a horse tested positive for a pain killer administered well before the recommended cut-off time for that drug. The Divisional Court held that the wording of the provision made it clear that ensuring no amount of the substance was in the horse’s blood stream was an absolute liability “offence” and as such the trainer could not rely on a defence that he had taken all reasonable precautions.

Therefore, the wording of the definition of misconduct is important.

However, on the issue of penalty, the sanction imposed was quite modest (i.e., only removal of first place standing on the race and the resulting purse) because of the circumstances. This result of imposing a lower than expected sanction in an absolute liability matter where there was evidence of some due diligence was expressly upheld in a Divisional Court decision released a few days earlier: Ontario (Racing Commission) v Durham, 2016 ONSC 2490.

Basis for Exemptions of Registration Requirements

RDurcan_Webby Rebecca Durcan
June 16, 2016

A recurring theme in registration cases is the consideration of special circumstances for exempting registration requirements. An Alberta court upheld the reasonableness of the refusal to grant an exemption in Muti v Law Society of Alberta, 2016 ABQB 276. The applicant was an immigration consultant practising in Calgary who had taken on-line courses to obtain a law degree from a school based in England. To establish equivalence of education, the tribunal directed him to complete eight upper year in-person courses in an accredited law school. The applicant objected on the basis that his distance learning should be given more weight because of his related Canadian experience as an immigration consultant. He also stated that due to his age and family and financial responsibilities he needed to keep working. The Court found that it was reasonable for the tribunal to not consider the applicant’s immigration consulting work as the practice of law (in terms of experience) and that one’s personal situation is not a special circumstance that can be substituted for educational qualifications.

Another View of the Role of Screening Committees

BLeBlanc_Webby Bernie LeBlanc
June 13, 2016

In Ontario the law is pretty well settled that complaints screening committees do not make findings of wrongdoing and do not impose sanctions when directing educational and remedial measures. As such, screening committees have a low threshold for directing remedial measures, such as caution. There simply needs to be a reasonable basis for taking the remedial step. However, that does not seem to be the case everywhere. In Peddle v. The Newfoundland and Labrador Pharmacy Board, 2016 CanLII 29648 (NL SCTD), the court said:

In my view, it is impossible for the Committee to issue a “caution” without a finding of conduct deserving of sanction, even if the conduct is not sufficiently egregious to warrant sending the complaint to a discipline hearing. The fact that the consequences are less than a finding of guilt by a discipline panel does not change the fact that the Committee’s decision would be a negative incident on Peddle’s file. This finding did have consequences adverse to the Applicant, which would make the decision subject to scrutiny by this Court.

The caution relating to a verbal disagreement was removed because there was “no evidence” that it was the pharmacist’s fault.

In Peddle, the Court also held that there was no appearance of bias caused by staff attending at complaints screening committee meetings or by attempting to resolve the complaint.

Giving More than is Asked

Maciura_Julie_5038by Julie Maciura
June 9, 2016

Just as Discipline Committees should accept a joint submission unless it would bring the administration of justice into disrepute, so they should not impose a sanction well beyond what the prosecutor has sought unless first seeking further input. In Becker v. College of Pharmacists of Manitoba, 2016 MBQB 105, a pharmacist was found to have engaged in unskilled practice. While there was agreement on many aspects of the sanction, there was disagreement as to how long the pharmacist should practice under supervision and for how long he should not be permitted to be a pharmacy manager. The Discipline Committee imposed a period for both restrictions that fell between what the prosecutor sought and what the defence requested. On an internal appeal to the Council of the College, the Council, without warning, imposed significantly longer periods for both restrictions, well beyond what the prosecutor had originally requested. The Court held that before there could be a significant departure from what was requested, the tribunal should have given notice of its concerns and allowed the parties to make submissions. There have been a number of previous cases saying similar things over the years and tribunals should be reminded regularly of this expectation.

Guidance on Definition of Bad Faith

RDurcan_Webby Rebecca Durcan
June 6, 2016

Ever since the Supreme Court of Canada in Finney v. Barreau du Québec, [2004] 2 S.C.R. 17 suggested that some forms of negligence could constitute bad faith, regulators have struggled with the concept. The scope of “bad faith” is important as that is the hurdle that must be established before one can successfully sue a regulator for damages. In Salehi v. Association of Professional Engineers of Ontario, 2016 ONCA 438, Ontario’s highest court clarified how the Finney case fits in with the rest of jurisprudence. The context was an action for damages by a professional engineer who went through a fifteen-year registration process to demonstrate his competency to practise. In dismissing the claim, the Court described the criteria for suing a regulator as follows:

We agree with the motion judge that none of the acts the appellant complains of can be said to constitute bad faith. There was no evidence of malice or intent to harm on the part of the APEO, nor was there a fundamental breakdown in the orderly exercise of its authority or any abuse of power.

Cross-Border Internet Practice Permitted

ERichler_Webby Erica Richler
June 2, 2016

The Quebec Court of Appeal has limited the authority of a regulator to prevent the treatment of patients within the province by out-of-province practitioners. A Quebec patient obtained a prescription for corrective lenses from a Quebec practitioner and then ordered glasses and contact lenses from Coastal Contacts, a British Columbia internet-based company. The Quebec regulator then brought legal action against Coastal Contacts for illegally practising in Quebec. The Court held that there was no breach of the law as the “sale” occurred in British Columbia, not Quebec. Unlike some recent cases in other provinces, this Court took a narrow interpretation of the Quebec legislation, taking the approach that it preserved a monopoly and should therefore be given a restrictive and technical meaning. For example, because the legislation prohibited the sale of lenses, not their delivery, it did not capture the conduct of Coastal Contacts in Quebec. In addition, the Court held that the regulator has no jurisdiction over the public that purchases glasses/lenses. In other words, the act of placing the order, paying and receiving confirmation were all acts done, not by Coastal, but by a member of the public over whom the regulator had no jurisdiction. There will likely be a request for leave to appeal this decision to the Supreme Court of Canada. The case may be found at: Ordre des optometrists du Québec c. Coastal Contacts Inc., 2016 QCCA 837 (CanLII), http://canlii.ca/t/grqsf.

Mobility and Good Character

BLeBlanc_Webby Bernie LeBlanc
May 25, 2016

Dr. Lum is a dentist in British Columbia with a long history of complaints, some of which resulted in remediation. However, he was in good standing as none of the complaints had been referred to discipline and he had no discipline findings. He applied for registration in Alberta. The Alberta regulatory College refused to register him because Dr. Lum had not demonstrated that he was of good character given his complaints and remediation history. In Lum v Alberta Dental Association and College (Review Panel), 2016 ABCA 154, Alberta’s highest court upheld the decision. The Court held that regulators deserve significant deference in exercising its public interest discretion in this area. The Court said:

The requirement of good character and reputation is fundamental to that profession’s ability to self-regulate. It must be able to accept or reject members and discipline its own members. Of necessity, that determination is to some extent subjective. The considerations include but are not limited to whether the person has fulfilled all educational requirements, whether the person is of integrity and respects the professional guidelines, rules and ethics that are an essential part of the profession. This includes competence, responsibility to patients and to the public at large, respect for other members of the profession, comporting oneself as befitting a professional and conducting oneself at all times within those parameters.

The Court also found that mobility trade agreements were not directly enforceable against regulatory bodies and it was up to the government to change any laws necessary to implement such agreements.

Collateral Consequences of Guilty Pleas

Maciura_Julie_5038by Julie Maciura
May 20, 2016

Guilty Pleas must be voluntary, unequivocal and informed. The Ontario Court of Appeal allowed a person to withdraw his guilty plea for dangerous driving because he did not realize (because his lawyer did not tell him) that the conviction would result in an indefinite suspension of his driver’s licence. In R. v. Quick, 2016 ONCA 95 the Court found that the “collateral consequence” of the guilty plea was legally relevant and made the plea of guilty uninformed. The Court did not precisely identify what sorts of collateral consequences would usually nullify a guilty plea, but rather said it depended on the facts. The Court applied the following test: “is there a realistic likelihood that an accused, informed of the collateral consequence of a plea, would not have pleaded guilty and gone to trial? In short, would information have mattered to the accused?

There are two significant consequences for regulators. The first is when a regulator prosecutes an individual in criminal or provincial offences court. The regulator should ensure that the accused is aware of the regulatory consequences (e.g., possible loss of registration) of pleading guilty. The second possible consequence for regulators is to consider whether this principle might apply to pleas in regulatory proceedings like discipline hearings. Generally criminal concepts are not imported directly to discipline hearings, but sometimes the underlying principles are loosely applied.

Drawing the Line Between Privacy and Transparency

ERichler_Webby Erica Richler
May 16, 2016

Public bodies struggle to draw the line between respecting the privacy of individuals and being transparent, and the line keeps moving. Take the example of where a concern of harassment has been raised against a public office holder (e.g., a Registrar or a member of a Council/Board of Directors of a Regulator). Such investigations and resolutions are almost always done with a promise of confidentiality to the person raising the concern, at least to the greatest extent possible. However, should the matter become public in some way, the organization can easily be accused of “censoring” the information or protecting itself unless it discloses the information. Political columnist Martin Regg Cohn argues that in the recent controversy involving Premier Kathleen Wynne, silence was the right response. Any regulators faced with a similar situation should think seriously about how to strike the right balance between public accountability and protecting the privacy of the individuals involved. https://www.thestar.com/news/queenspark/2016/05/12/how-to-deal-with-mpps-accused-of-sexual-assault-cohn.html

Ontario Launches Red Tape Challenge

RDurcan_Webby Rebecca Durcan
May 12, 2016

The Ontario government is attempting a new form of consultation. It is online. It permits anonymous submissions. And it looks at one sector of activity at a time (rather than at a specific program or regulator). The stated goal of the initiative is to develop: “modern, outcome-focused and evidence-based regulations…By reducing the burden to business while protecting consumers, workers and the environment, Ontario is helping to create the right climate to create jobs and grow the economy.” Six sectors have been selected for sequential review over the next two years. Two of those sectors, financial services and forestry, involve professional regulators. While one tends to be cynical of any government activity that uses the words “red tape” and while one wonders what will happen to any proposals for reform as they make their way through the affected Ministries and stakeholders, this may still be worth watching. For more information, see: https://www.ontario.ca/page/red-tape-challenge?_ga=1.34876449.1445893852.1456780114

How Strong Must the Evidence be Before Making an Interim Order?

BLeBlanc_Webby Bernie LeBlanc
May 10, 2016

“Not very”, says the British Columbia Court of Appeal. When a screening committee decides whether there should be restrictions on the practitioner until the discipline hearing can be held, the primary issue is whether in all of the circumstances the public needs immediate protection. In Scott v. College of Massage Therapists of British Columbia, 2016 BCCA 180, the screening committee imposed an interim order requiring the massage therapist to post signs about and use a chaperone for treatments. The complaint was about sexual abuse. There were no witnesses or other evidence. The massage therapist argued that the allegations were unsubstantiated.

The court said that the role of the screening committee, in reviewing the strength of the case, is to make “a provisional assessment of the facts” to consider “the reliability of the evidence, its internal and external consistency, the plausibility of the complaint, and motivation. This is in aid of determining whether the complaint is manifestly unfounded or manifestly exaggerated (Perry). The inquiry committee’s mandate is not…to test the sufficiency of the evidence to establish his sexual misconduct”.

Regulatory Rule-Making Still Under Increased Scrutiny

Maciura_Julie_5038by Julie Maciura
May 3, 2016

A lower Alberta court disagrees with the British Columbia Court of Appeal and says regulators need empirical evidence that their rules protect the public interest. “Anecdotal” evidence (i.e., the views of Council members) is not enough. This Court held that rules making it a conflict of interest for pharmacists to offer inducements (e.g., reward points) to patients to buy drugs are invalid. In Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 232, the Court characterized the rules as relating to the cost of drugs and competition between pharmacists, finding the rules unrelated to the professionalism or ethics of the individual pharmacists. Interestingly, the Court also ascertained the mandate of the College’s powers to make rules by referring to Hansard debates of the legislature when the statute was being enacted, rather than focusing primarily on the legislative scheme itself.

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