2017

REGULATION PRO – 2017

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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.

Suing a Regulator for an Interim Suspension

Maciura_Julie_5038by Julie Maciura
December 28, 2017

Can a regulator be liable for damages for imposing an interim suspension in good faith where the concerns/allegations are later withdrawn? In Gillis v Law Society of NB et al, 2017 NBQB 212 the Court said no. Mr. Gillis was found guilty of a criminal offence. Despite his intention to appeal the criminal conviction, the regulator referred him to discipline and ordered an interim suspension pending the hearing. Afterwards the criminal conviction was set aside and a new trial was ordered. The regulator then withdrew the interim suspension as well as the referral to discipline. Mr. Gillis sued the Law Society for damages.

The Court dismissed the action for two reasons. First, Mr. Gillis did not commence the action within the two-year limitation period. Second, Mr. Gillis did not establish that the actions of the regulator were taken in bad faith (there being statutory immunity for actions taken in good faith). The Court said:

I find there was no evidence to support the argument that either Ms. MacLean or Mr. Richard [representatives of the regulator] acted in anything but good faith. There was no evidence before this Court that would support a conclusion that they had ulterior motives, or that their conduct was unlawful, or that their conduct was willful. There was no evidence that either Ms. MacLean or Mr. Richard were either careless or reckless in their behaviour. In fact, they approached this with an abundance of caution. Counsel for the defendants argued that the Law Society acted as the regulator and moved to sanction as the Act required it to do so. I agree.

Can a Party Ferret Out Dissenters?

ERichler_Webby Erica Richler
December 20, 2017

Can a party insist that individual panel members tell the party that they agree with the panel’s decision? That issue arose in Aylward v. Law Society of Newfoundland, 2017 NLCA 67. The complainant was disappointed that no action was taken on his complaint. The decision was not signed by the panel members. The complainant sought an order that the public member on the panel confirm directly to him that the public member participated in and fully supported the decision of the panel. The Court rejected the request and stated:

There is nothing either in the legislation or [sic] provided to this Court to indicate that the decision of the committee must be unanimous or, alternatively, that the lay bencher must be part of the majority. In the absence of a provision stating otherwise, it may be inferred that a majority of members on the committee could determine the disposition. Further, there is no reason to require the lay bencher to be part of the majority if the decision is not unanimous.

The decision confirms that panels act through majority decisions (unless the governing legislation says otherwise). While it may be fairer for dissenting panel members to indicate their dissent, in this context, at least, they are not required to do so.

Disclosure During Investigations

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by Rebecca Durcan
December 14, 2017

It is common for practitioners under investigation to seek full particulars and disclosure before providing their response. It is also common for investigators to not provide detailed particulars (as the investigator does not yet know the facts) and to hold back what other witnesses have said (so that the practitioner responds with their actual recollection of the events). In Kuny v College of Registered Nurses of Manitoba, 2017 MBCA 111, this “game of chicken” went all the way to the Manitoba Court of Appeal. Nurse Kuny was disciplined at work. The College investigated the concerns. Mr. Kuny attended a first interview but refused to participate in a second interview until given full particulars of the incidents and signed witness statements from the other participants in the events. Mr. Kuny was disciplined for failure to cooperate and, among other sanctions, was suspended for four months. His appeal was made on the basis that he did not have a duty to cooperate before being given the disclosure.

The Court dismissed the appeal. It concluded that “the duty of fairness at the investigation stage requires the disclosure of the substance of the individual allegations such that the member will be able to respond reasonably” and that this had been provided. The Court expressly determined that there was no obligation to provide the witness statements (which may not even have existed). Whether that degree of disclosure had been provided depends on the facts and circumstances of each case. One Justice expressed concern at the investigator’s proposal to provide additional particulars of each allegation during the interview itself (giving Mr. Kuny and his lawyer no time to prepare to answer the resulting questions), but concluded that no unfairness resulted because Mr. Kuny was well aware of the concerns from his own employer’s disciplinary process.

Interim Order Stayed

BLeBlanc_Webby Bernie LeBlanc
December 11, 2017

Courts tend to be quite deferential to regulators when reviewing interim orders made to protect the public pending discipline. However, such an order was set aside in Rohringer v. Royal College of Dental Surgeons of Ontario, 2017 ONSC 6656. Dr. Rohringer acknowledged performing a sexual act in front of under-aged women while in Florida. He was charged with a crime. The regulator subsequently learned of the charges and conducted an investigation. While it appeared that Dr. Rohringer’s colleagues were quite supportive of him, some employees identified some lesser concerns: (e.g., inappropriate sexual jokes, kissing an employee). There was also an old complaint of an inappropriate sexual relationship with another employee that had been dealt with informally. Dr. Rohringer had practised for 32 years without discipline.

The panel for the regulator suspended Dr. Rohringer’s registration pending investigation and discipline expressing concern that he lacked control and judgment to practise safely.

After the initial decision was made, Dr. Rohringer submitted an expert report expressing the opinion that he did not pose a risk to patients. Dr. Rohringer also offered to be subject to a term, condition and limitation that he have a registered dental hygienist present for all patient interactions. The panel did not vary its order. No reasons were given for this decision.

The Court concluded that the panel had not been fair when it failed to give reasons on the request to vary its earlier decision. The Court was also concerned that some of the language used by the panel in the initial decision suggested that the wrong criteria may have been applied. The panel used some language suggesting that a mere risk or possibility of harm was sufficient, rather than consistently stating that an order should be made only if there was a likelihood of harm to patients. The Court also said that there needed to be evidence (not speculation) to support the making of an interim order. The Court also felt that the old complaint, referred to by the panel, was irrelevant. The Court was concerned that the panel had not indicated that it had considered a less restrictive order (i.e., monitoring by another regulated professional) rather than a suspension.

It is too early to tell whether this decision reflects the particular facts of this case or the start of a trend for courts to offer less deference to interim orders made by regulators.

Regulators Cannot Easily Resolve Personal Conflicts between Colleagues

Maciura_Julie_5038by Julie Maciura
December 8, 2017

Dr. Al-Ghamdi, a physician, had difficulties with some of the nurses with whom he worked. He made complaints against four of them to their regulatory body, the College and Association of Registered Nurses of Alberta (CARNA). The Court summarized the concerns as follows:

Dr. Al-Ghamdi’s affidavit affirms that he complained to CARNA about the actions of two nurses. In the affidavit, he alleges that one of these nurses acted outside her scope of practice, blackmailed him “by informing that [he] had reported her to CARNA, and that her staff created a hostile workplace for him.” He accuses a second nurse of blocking his patient from access to surgery, of being evasive and abusive, of being a difficult person and a friend of the first nurse he had reported to CARNA. He further alleges that this nurse hid equipment so that there was a delay in his patient’s surgery. He then alleges that these two nurses accused him of falsely threatening the second nurse, and then used their connections and authority to influence other staff to write a petition saying they would not work with him.

Dr. Al-Ghamdi’s affidavit then names a third nurse, a close friend of the first nurse and “a notorious person,” as the person who was behind the petition. He then accuses a fourth nurse of telling the mother of a child patient that the child’s surgery would not happen unless she changed surgeons.

The complaints were all investigated and dismissed. Dr. Al-Ghamdi sought judicial review on numerous grounds related to procedure. In Al-Ghamdi v College and Association of Registered Nurses of Alberta, 2017 ABQB 685, the Court dismissed all of his concerns. It found that the regulator did not have to interview all of the witnesses proposed by a complainant. It also was puzzled by Dr. Al-Ghamdi’s assertions that the regulator should not rely on information provided by third parties. The Court did not accept that complainants have a right to access the complete investigator’s report of the investigation. It also rejected bald allegations of bias against College staff. The Court went on to accept the regulator’s request that Dr. Al-Ghamdi be declared a vexatious litigant. The decision also dealt with a number of additional claims against other parties as well.

Avoiding Judicial Review Application Delays

ERichler_Webby Erica Richler
December 5, 2017

Regulators have seen this scenario many times. A practitioner is referred to discipline. The practitioner brings an application for judicial review to challenge the referral and requests that the hearing be delayed until the application is determined. The resulting delay is usually years rather than months. In Foulds v. Justice of the Peace Review Council, 2017 ONSC 5807, Justice of the Peace Foulds was referred to a misconduct hearing for allegedly trying to interfere with a criminal proceeding involving the former boyfriend of Mr. Foulds’ then girlfriend. Mr. Foulds filed an application for judicial review.

Rather than awaiting its outcome, the tribunal scheduled the misconduct hearing. Mr. Foulds brought a motion to stay the hearing until the judicial review application was heard. The regulator brought a cross-motion to dismiss the judicial review application as premature. Mr. Foulds disputed the ability of a single motions judge to dismiss the application for prematurity.

The Court held that there is now a line of cases permitting the dismissal by a single motions judge of an application for judicial review on the basis of prematurity in clear cases. The Court held that this was a clear case where all of Mr. Foulds’ concerns could be brought to the tribunal hearing the misconduct case. The Court also noted that Mr. Foulds would have an opportunity to challenge the final decision of the tribunal by way of judicial review. The Court dismissed the application for judicial review.

Many regulators are hesitant to proceed with their hearings in the face of a judicial review application for fear of demonstrating disrespect to the Court. In this case the Court took no offence.

Summarizing Disciplinary Decisions

BLeBlanc_Webby Bernie LeBlanc
November 28, 2017

As regulators summarize complaints and discipline decisions for publication, practitioners often dispute the synopsis. This issue arose in an earlier version of Bill 87 where the practitioner’s right to correct errors in such summaries was greatly reduced in the final version of the Bill. In Faminoff v. The Law Society of British Columbia, 2017 BCCA 373 the practitioner tried to do something about it. At his discipline hearing, he was found to have backdated documents in an attempt to mislead the regulator and received a two-month suspension. On an appeal of the sanction he tendered fresh evidence on the wording of the regulator’s published summary of the decision. The practitioner argued it was unbalanced. While technically accurate and while the entire decision was linked to the summary, the summary “did not state that his actions did not harm his clients or that he had not personally gained from his misconduct”. In fact, when requested, the regulator published an addendum to the summary stating this. The practitioner indicated that he was the subject of significant adverse internet comment. As a result, he argued, his suspension should be reduced because of what he had already suffered.

The Court upheld the appeal decision that the proffered fresh evidence would not have altered the order. In fact, the practitioner’s argument reflected a lack of appreciation of the seriousness of the finding made against him.

The Court also rejected the practitioner’s argument that the hearing panel had acted improperly by summarizing the practitioner’s prior history which included details of a matter that the regulator had chosen not to publish at the time.

This decision provides support for regulators wishing to be transparent in their processes by providing accessible and complete information to the public. However, practitioner complaints about the fairness of decision summaries are likely not going to go away.

Judicial Review of Procedural Fairness

Maciura_Julie_5038by Julie Maciura
November 21, 2017

For a number of years now the Courts have asserted that it will review most decisions of regulators on the basis of the reasonableness, rather than the correctness, of the decision. One exception is that no deference is given to the issue of whether the regulator acted with procedural fairness. Either the procedure was fair or it was not. In Brooks v. Ontario Racing Commission, 2017 ONCA 833, Ontario’s highest court held that the adequacy of the reasons for decision of a regulator was not a matter of procedural fairness and should be evaluated on a reasonableness basis. The Court re-affirmed that the adequacy of the reasons is not a “stand alone” ground of judicial review. In this case the Court found that the reasons provided adequately explained the conclusion that Mr. Brooks had permitted his brother to be involved in his practice despite the brother’s suspension by the regulator. The Court specifically held that “reasons need not reference every piece of contradictory evidence”.

The Court also held that the notice provided by the regulator was adequate. At least where the allegations relate to ongoing conduct, alleging that the conduct occurred over a period of time was sufficient. Similarly, an allegation that the practitioner “surreptitiously permitted [his brother] to participate in their racing enterprise when he was not authorized to do so” permitted a finding of “fraud”.

The Court also held that the tribunal member was permitted to rely on s. 4.3 of the Statutory Powers Procedure Act to continue to act when their term of office ended on the basis that the hearing “commenced” with preliminary motions.

Liability of Independent Legal Counsel

ERichler_Webby Erica Richler
November 17, 2017

The Alberta Court of Appeal indicates that it is almost impossible to find independent legal counsel (ILC) in discipline matters liable for malicious prosecution. In Clark v Hunka, 2017 ABCA 346, an accountant facing discipline objected to ILC because she was not truly independent. She prosecuted other cases at discipline before the same tribunal. The tribunal accepted that there was an appearance of bias created and directed a new hearing before a different panel with different ILC. Eventually, on appeal, the accountant had the proceedings stayed. The accountant sued ILC for malicious prosecution.

The Court dismissed the action as having no chance of success on two bases. First, an essential element of the tort of malicious prosecution is that the person initiated (or continued) the initial legal proceedings. ILC, as an advisor to the tribunal, does not have that role. This element could not be met.

Second, no particulars of malice against ILC were alleged. The Court held that “malice requires a willful and intentional effort on behalf of prosecutors to abuse or distort their proper role within the disciplinary system”. The Court said that “malice requires more than incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence or even gross negligence”. A failure to appreciate an appearance of bias until it was raised does not constitute malice. In addition, malice would require actual bias, not an appearance of bias.

This second basis for the Court’s findings should be of assistance to prosecutors and tribunal members as well.

Regulating Dishonesty

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by Rebecca Durcan
November 14, 2017

The fascinating case of Registrar, Real Estate and Business Brokers Act v. Stolberg, 2017 ONSC 5904 provides guidance on the challenges of regulating dishonesty by practitioners. Mr. Stolberg was a real estate salesperson who was caught on camera stealing small objects and money from a piggy bank when inspecting a home by himself. The regulator proposed to revoke his registration, however, the Licence Appeal Tribunal replaced the revocation with terms and conditions (e.g., only visiting a property in the presence of a client or colleague, keeping a written log of all of his visits to properties). The Divisional Court found the Tribunal’s decision to be unreasonable and returned the matter to the appeal Tribunal for a new hearing. The Court had three concerns about how the Tribunal dealt with the issue of dishonesty.

The Court was concerned that the Tribunal relied on the expert opinion of Mr. Stolberg’s social worker as to the reasons for the conduct (related to depression and cognitive distortions) and his prognosis for future similar behaviour. The Court indicated that the Tribunal should not have done so after holding that the social worker was not qualified to provide the opinion. The Court held that even though there was no objection to the consideration of the expert report, the Tribunal had an ongoing gatekeeper role to consider and rely only on expert opinions that the person was qualified to give. The Tribunal also had a duty to critically evaluate the opinion (e.g., accepting that there had been no further thefts even though this statement could only be based on Mr. Stolberg’s own assertions).

Interestingly, the Court assumed that the distinction between the notice requirements for independent experts and provider experts, discussed in the civil case of Westerhof v. Gee Estate, 2015 ONCA 206, applied.

The Court was also concerned that the Tribunal did not view the video of the theft. The Court found that watching the fifteen minute video provided valuable insights into the nature, extent and intrusiveness of the dishonesty.

The Court was also troubled by the proposed terms and conditions and found them to be unreasonable. They imposed a monitoring duty on persons who would be unaware of their role (i.e., clients and colleagues) and who would not be present with the practitioner throughout the entire property visit. In addition, the terms and conditions depended on the honesty of the practitioner for their effectiveness, which is the very thing that required monitoring.

Legislating Professional Conduct

BLeBlanc_Webby Bernie LeBlanc
November 10, 2017

In recent weeks there have been three separate initiatives by Ontario’s politicians to address conflicts of interest. Bill 160 would require drug manufacturers and makers of drug devices to disclose for publication all benefits conferred to health providers, such as physicians. Bill 165 would prohibit lawyers from referring a client to another lawyer for a fee (something that many other professions do not permit). Bill 166 would severely limit the ability for a real estate professional to act on both sides of a real estate transaction.

Two of those initiatives are government Bills (Bill 160 and Bill 166) which begs the question as to why the government is addressing these issues through legislation rather than working with the regulator of the respective professions? In all likelihood the regulators of the medical and real estate professions would have cooperated with the change of their professional misconduct / code of ethics provisions if requested by the government. Regardless of whether the reasons relates to a desire for publicity or a lack of confidence in the regulators, this recent trend is not good news for regulators.

The Rationale for Calling Expert Evidence in Standards Cases

ERichler_Webby Erica Richler
November 7, 2017

Courts have said for some time that in standards of practice cases the regulator generally needs to call expert evidence. In Hanif v College of Veterinarians of Ontario, 2017 ONSC 497 the Divisional Court explained why. The case involved the treatment of animals. Dr. Hanif objected to the College calling an expert witness on the very issue before the hearing panel of whether the standards of practice were met. The Court said that not only was such expert evidence admissible, it was expected for the following reasons:

Expert evidence is generally required in order to establish the relevant standard of practice of the profession and is important evidence helpful to the adjudicator in making findings in relation thereto. The Discipline Committee panel in most cases would be in error in finding a failure to maintain a standard of the profession in the absence of expert opinion as to that standard. In addition, just because an expert offers an opinion on whether the standard was breached does not require the Discipline Committee panel to accept it. It will make its own determination on that central issue.

Among the several reasons for this requirement is the fact that there may be lay persons on the panel who do not have the requisite intimate knowledge or understanding of the professional practice issues. In many cases even the professional members on a panel may lack deep understanding of the particular area of specialization involved and the standards that prevail within it.

Further, it is vital that the person who is the subject of a charge of having failed to maintain the standard of practice be afforded an opportunity to hear and challenge such expert opinion in an open form, rather than be made subject to discipline and sanction as a result of a closed-door discussion influenced only by members of the profession who sit on the discipline panel.

In the end, I agree that it is the function of the panel to decide whether the expert’s opinion will be assigned weight and whether the impugned conduct qualifies as professional misconduct. In my view, however, there is no support in this record for a conclusion that the Discipline Committee panel’s function in this regard was improperly usurped by the expert.

The Court also rejected a submission that the prosecutor had acted improperly by telling witnesses that they had a choice as to whether to speak with representatives of the member in advance of the hearing to discuss their possible evidence. It also dismissed concerns about an appearance of bias in having the President of the Council sit on the panel where a significant costs award was under consideration. The Court did reverse one aspect of the decision on the basis that it was unsafe to conclude that a cat had been abused where the complainant was the only witness, the complainant stated that she reported the incident to another veterinarian, that other veterinarian denied receiving such a report and the panel found the other veterinarian to be credible.

Caution and Criticisms Letter

Maciura_Julie_5038by Julie Maciura
October 31, 2017

In Maroofi v College of Physicians and Surgeons of B.C., 2017 BCSC 1558, a physician received a letter of caution from the Inquiry Committee of the College criticizing some of his conduct (including failing to carry professional liability protection and engaging in behaviour that some viewed as harassment). Dr. Maroofi sought judicial review of that decision. The Court concluded that judicial review was not available because no formal findings had been made, the decision had no impact on Dr. Maroofi’s legal rights and the decision was not publicly available. In addition the Court concluded, for similar reasons, that the decision was moot:

Even if the Inquiry Committee Disposition could be found to be amenable to judicial review, which I have determined it is not, the College submits that it is a decision that did not impact Dr. Maroofi’s right to practice medicine, did not make findings of fact binding on anyone, did not impose limits or conditions on Dr. Maroofi’s practice of medicine, did not impose formal disciplinary measures and did not affect his entry on the College’s register. As a result, this application for judicial review, no matter what its result, would not alter Dr. Maroofi’s right to practice medicine. In such circumstances, the College says his application is moot because any resolution to the controversy he raises will not affect his rights.

The Court also found that the decision was reasonable in the circumstances given the evidence that had been obtained even though Dr. Maroofi disputed most of it (other than the fact that he had not carried professional liability protection). Ontario Courts seem to be more open to reviewing complaints outcomes similar to the one in this case, perhaps because, among other things, some screening committee outcomes in Ontario now do get placed on the public register.

Intent Requirements for Professional Misconduct

ERichler_Webby Erica Richler
October 24, 2017

It is an oversimplification to say that intent is not required to prove professional misconduct. Sometimes it is. The recent case of Law Society of Upper Canada v. Nguyen, 2017 ONSC 5431 demonstrates that this can be a tricky issue. A lawyer was found to have engaged in professional misconduct by failing to advise his clients (mortgage lenders) of material facts (relating to credits the purchasers received on closing). There was no dispute about those findings. The information was material and it was not disclosed. The lawyer’s intent was irrelevant. However, there was a dispute as to whether the lawyer had also participated in mortgage fraud.

The hearing tribunal found that the lawyer had not participated in fraud because he had made inquiries and satisfied himself that there were legitimate reasons for the credits. However, the appeal panel found that the hearing tribunal made a number of errors. In particular, whether the lawyer believed he was being dishonest was irrelevant. The majority of the Divisional Court agreed and a new hearing was required. The hearing tribunal should have asked whether there was a fraudulent transaction and if so, whether the lawyer was aware, willfully blind or reckless.

In a strong dissent, one judge concluded that where the allegation is participating in mortgage fraud, the regulator had to prove that the lawyer subjectively believed he was putting his clients at risk. According to the dissenting judge, there was no evidence of this level of intent and therefore the hearing tribunal’s decision should be reinstated.

The wording of the applicable definition of professional misconduct and the specific allegations are important in assessing the intent requirements for making a finding.

[Since posting this article, the decision has been appealed and the result is found at The Law Society of Upper Canada v. Nguyen, 2018 ONCA 709, http://canlii.ca/t/htqbc.]

Need for Regulators to Obtain All of the Important Evidence

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by Rebecca Durcan
October 17, 2017

A regulator’s duty of disclosure applies only to the information it has. If a practitioner wishes to obtain evidence from a third party, it has to bring a motion for production. However, where the information is important to the case, the regulator takes a risk in not obtaining it themselves. In Kawula v Institute of Chartered Accountants of Saskatchewan, 2017 SKCA 70, an accountant was disciplined for not commenting, in her capacity as an auditor, on materially misleading financial statements. Throughout the proceedings Ms. Kawula attempted to obtain a copy of a report from another accounting firm which had looked into the issue. A number of participants, including the complainant and the tribunal, had prevented her from gaining access to it until well after she had been found guilty of professional misconduct. In fact a summary of the report, which later turned out not to have been fair and complete, had been admitted into evidence.

Ms. Kawula’s diligence paid off. She eventually obtained the report and persuaded the Court to receive it as fresh evidence. The Court found that it was relevant to the issues (primarily that Ms. Kawula had not been provided with all of the information when conducting her audit) and that it could have altered the outcome of the hearing. The Court directed a new hearing be held. The Court suggested that this result could have been avoided if the regulator had made more strenuous efforts to obtain the report earlier.

This is What Procedural Fairness for a Self-Represented Party Looks Like

BLeBlanc_Webby Bernie LeBlanc
October 10, 2017

In Challans v Timms-Fryer, 2017 ONSC 1300, the complainant was a party to the discipline hearing of a police officer. There already was a regulatory prosecutor and defence counsel for the officer. As such, the tribunal did not actively involve the complainant in the hearing. At the hearing the officer was found not guilty of the allegations. The Divisional Court found that the tribunal had failed to offer the complainant a fair hearing:

A minimum level of assistance, to ensure meaningful participation by the unrepresented public complainant, would have required the Hearing Officer to do the following, on the record:

  • Confirm whether the public complainant was aware that he was entitled to be represented by legal counsel at the proceedings and whether he was waiving the right to legal representation.
  • Explain the roles of the parties at the proceeding and the process that would be followed.  This would include the right of each party, including the public complainant, to call witnesses, introduce evidence, object to evidence adduced, cross-examine witnesses, and make submissions on all motions and at the end of the hearing.
  • Explain the role of the adjudicator in the proceedings, including his role in relation to the unrepresented public complainant.
  • Confirm that the public complainant understands the process and his role in it.
  • Ask the public complainant, at the appropriate time, if he would like to call any witnesses.
  • Ask the public complainant, at the appropriate time, if he would like to question each of the witnesses of the prosecution and the defence.
  • Ask the public complainant if he would like to make submissions on all motions and at the end of the hearing.

There was no obligation on the complainant to prove that this unfairness would have altered the outcome of the hearing. The Court also did not support the filing of affidavit evidence on what the complainant had been told off the record. The Court said:

There is a reason why hearings, such as the one here, are conducted “on the record”. It is to avoid disputes, later on, regarding what occurred before the tribunal or court, including when the proceeding is the subject of an appeal. It is to avoid the spectacle of warring affidavits being filed, as to what occurred outside of the formal proceedings, of the type that both Mr. Timms-Fryer, and the Amherstburg Police Service, attempted to file in this case. If any of the discussions occurred involving Mr. Timms-Fryer, as are alleged in these affidavits, then the contents of those discussions ought to have been repeated by counsel on the record, so that everyone had the opportunity to confirm, or refute, the contents of those discussions. None of that occurred in this case.

Alberta Affirms Ability of Regulators to Make Rules

ERichler_Webby Erica Richler
October 2, 2017

Sobeys challenged the validity of the rules restricting the ability of pharmacies to offer inducements (i.e., loyalty points) to patients purchasing drugs. After Sobeys had an initial success in British Columbia, the B.C. Court of Appeal upheld the validity of the regulator’s rules. Sobeys persisted in Alberta and again had initial success in the lower courts. However, the Court of Appeal reversed that decision and upheld the authority of the regulator to make these rules: Alberta College of Pharmacists v Sobeys West Inc., 2017 ABCA 306.

Citing Green v Law Society of Manitoba, 2017 SCC 20, the Court of Appeal held that the standard of review for the validity of such rules was reasonableness, not correctness. The Court also said that applications for judicial review of the validity of a rule should generally be confined to the materials that were before the regulator when it made its decision.

The Court held that a rule by a regulator will rarely be seen to be outside of its authority to make. Only where the rule is “irrelevant”, “extraneous” or “completely unrelated” to the statutory purpose of the regulator would it be unauthorized. The Court also held that a rule will only be viewed as unreasonable if it is one that no reasonable regulator would make. This rule did not fall into that category.

Not Ungovernable

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by Rebecca Durcan
September 26, 2017

An occupational therapist was ordered by the Discipline Committee to successfully complete an ethics course; the requirement was made a term, condition and limitation on her certificate. As an incentive, her suspension would be reduced by one month if she successfully completed the course by a certain date. However, she failed the course “because her final essay contained a verbatim passage from a website without attribution….” She refused to re-take the course and was referred to discipline again (this was now her third time at discipline). At the subsequent hearing her conduct was found to be both relevant to the practice of the profession and disgraceful, dishonourable and unprofessional despite her assertion that the failure to attribute was inadvertent and her inability to take the course again was due to challenging personal circumstances. On appeal, the Divisional Court held that the Discipline Committee had made a reasonable finding: Arora v College of Occupational Therapists of Ontario, 2017 ONSC 1535. The Court also upheld a four month suspension finding that the possible reduction of the original suspension was indeed an incentive rather than a prior determination of the penalty she should serve for failing to successfully complete the course, (i.e., a future Discipline panel would still have discretion to determine what penalty she would serve for the failure). The Court gave deference to the costs order of $26,000 even though the College had not been successful at discipline in arguing that she should be revoked for ungovernability.

Significant Penalty for Borrowing Money from Clients

Maciura_Julie_5038by Julie Maciura
September 21, 2017

In College of Physicians and Surgeons of Ontario v. Virani, 2017 ONSC 3445 a physician borrowed over $600,000 from two patients to make an investment. The investment turned out to be fraudulent and Dr. Virani lost the money borrowed from his patients and much of his own money. Dr. Virani became insolvent and the patients are still out most of their funds. Misconduct was admitted. The issue on appeal was whether an eight month suspension was excessive in the circumstances particularly given that other cases involving physicians borrowing money from patients resulted in a lesser sanction.

The Divisional Court upheld the order finding that there were numerous factors supporting a lengthy suspension including:

  • The amount of funds borrowed from the patients was significant both in absolute terms and in terms of the impact upon their financial resources.
  • The patients were vulnerable and Dr. Virani “manipulated for his personal gain” his ethnic and linguistic connection with the patients and the status that he enjoyed as a physician in the Iranian community.
  • Virani was not candid with the patients or the College about the matter. For example, he issued NSF cheques to the patients and did not disclose the matter, initially, on his annual renewal forms with the College.
  • Virani showed little remorse and made very little effort to offer restitution, instead relying on the insolvency laws to extinguish the debt.

The Divisional Court did not accept Dr. Virani’s arguments that there was little need for specific deterrence (as he had not been honest and his financial circumstances were even more limited now than before), that undue emphasis was placed on Dr. Virani’s ethnic background (as that had been considered only in terms of the degree of trust placed in him by the patients when asking for the loan) and of the proportionality of the order compared to other cases (as those other cases had fewer aggravating and more mitigating factors). The eight-month suspension was upheld.

Investigative Access to a Practitioner’s Electronic Devices

BLeBlanc_Webby Bernie LeBlanc
September 14, 2017

The Alberta Court of Appeal has reinforced a lower court ruling that, where relevant, a regulator can have access to a practitioner’s electronic devices even when they are partially used for personal purposes. In Law Society of Alberta v Sidhu, 2017 ABCA 224, the regulator began investigating Mr. Sidhu when media reported his arrest for allegedly bringing drugs to a client in jail. He was eventually convicted. Mr. Sidhu resisted attempts by the regulator to obtain full access to his telephone, laptop and other electronic devices on the basis that this amounted to an unreasonable, and quite intrusive, search and seizure. While the Court did not formally declare the enabling provision as being consistent with section 8 of the Canadian Charter of Rights and Freedoms (protecting against unreasonable search and seizure), it did state that the privacy expectations of members of regulated professions is significantly reduced. Ready access to information relevant to an investigation is necessary to protect the public. In addition, regulators often do have the authority to investigate a practitioner’s conduct in their private life where it reflects on their professional practice. Mr. Sidhu was found to have contributed to the problem by his own choices:

Moreover, it is important to emphasize that the appellant’s concern is of his own making. He has admittedly blended his business and personal life by using his cellphone and computers for both business and personal reasons, and by his further suggestion that he has allowed his friends to use those devices without regard for privilege and confidentiality concerns in doing so. That he now asserts an all-encompassing expectation of privacy when faced with a Law Society investigation is unreasonable and defeats the very objectives of the Act.

The Court found on the facts of the case that the regulator reasonably required access to the devices. The information appeared to be relevant even if the investigator had not formally stated that they had reasonable and probable grounds or a reasonable suspicion.

Mobility Provisions and Unauthorized Practice

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by Rebecca Durcan
September 12, 2017

When obtaining a restraining order against the unauthorized practice of a profession, do mobility rights have to be taken into account? The answer is yes according to Law Society of British Columbia v Pyper, 2017 BCSC 1197. In that case, a former lawyer continued to practise law by becoming a paid director of two of his former corporate clients and appearing in court on behalf of those companies. The Court rejected the argument that the regulator’s alleged delay in processing Mr. Pyper’s application for reinstatement means it did not come to court with “clean hands”. Only in exceptional circumstances would a restraining order not be granted where the breach of the law was established.

However, the Court declined to grant a blanket order prohibiting Mr. Pyper from practising in British Columbia until his licence was reinstated. The Court said that if Mr. Pyper were to become a lawyer in another province and have the right to practise in British Columbia under the mobility provisions, he should be permitted to do so.

Practical Examination Appeals

Maciura_Julie_5038by Julie Maciura
September 8, 2017

Appeals of practical (i.e., OSCE) examination results are always challenging. Invariably there are disputes as to the candidate’s right of access to examination materials and criteria for grading. The examination body must be fair, but also needs to preserve the integrity of the examination (which is expensive to develop) for future candidates. In addition, the procedural fairness requirements may be challenging to articulate as, at the end of the day, the decision is based on expert professional judgment.

While the brief reasons in Alizadeh v National Dental Examining Board of Canada, 2017 ONSC 3947 leave one wishing for more, they are still helpful. The Divisional Court indicated the following:

  • Courts will show deference to the standards, established by the expert examination organization, for passing the examination.
  • Courts will also show deference to the appeals process developed by the organization and held that:
    • At least where credibility is not an issue, a paper hearing is fine; and
    • Providing access to the examination materials with restrictions is sufficient. (Unfortunately, the restrictions in this case were not identified.)
  • Reasons for the decision on appeal must be given, but they can be brief.

In this case, the Court found that “there is no basis for this Court to interfere with the clinical evaluation”.

Outside Reading by Tribunal Members

ERichler_Webby Erica Richler
September 5, 2017

Tribunal members are frequently admonished not to conduct independent research related to cases they hear. They are to obtain all of their information from the hearing itself. In Harris v. Royal Newfoundland Constabulary Public Complaints Commission, 2017 CanLII 46340 (NL SCTD), the issue related to the police interactions with a young man with Asperger’s Syndrome. During the hearing, the adjudicator made statements indicating that he had done some reading on the condition. At one point, on cross-examination, the young man responded to a question by saying “Can I throw that microphone at your head?” The adjudicator declined to view the comment as a threat of violence towards counsel and appeared to ascribe it to the young man’s disability. On appeal, the officers asserted that the adjudicator had demonstrated an appearance of bias. The Court did not accept that argument. The Court indicated that bias arguments must be raised before the adjudicator and should not be raised for the first time on the appeal. Doing so respects the process, is more efficient and permits the adjudicator to put any relevant facts on the record. In addition, the Court did not find that any outside reading materially affected the conduct of the hearing or the findings of credibility. The detailed reasons of the adjudicator assisted the Court in making this determination.

Ongoing Duty to Ensure Expert Evidence is Impartial and Fair

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by Rebecca Durcan
August 18, 2017

An adjudicator’s duty to ensure that expert witnesses give neutral and impartial testimony just got a bit more challenging. In Bruff-Murphy v. Gunawardena, 2017 ONCA 502, a civil case involving damages from an automobile accident, Ontario’s highest Court has given detailed guidance on the role of adjudicators. In that case, the defence expert interviewed the accident victim for approximately one hour and then spent ten to twelve hours reviewing her medical records and identifying a number of inconsistencies between those records and what the expert had been told. The accident victim was not given an opportunity to explain those apparent inconsistencies. The expert witness then provided a report that seemed to focus on the credibility of the accident victim much more than on her condition. There were also concerns that the expert witness was unfair in many of his comments about both the accident victim and the other practitioners who had seen her.

The Court indicated that, before allowing an expert to testify, the adjudicator should consider not only the technical admissibility (e.g., relevance of the opinion and expertise of the expert), but also whether the expert is neutral and impartial and whether the benefits of the expert opinion outweigh the possible damage to the hearing process. The Court found that the trial judge was incorrect in balancing these other threshold factors given the expert’s approach to the matter and that this was a jury trial where undue weight could be given to the expert’s opinion.

The most significant aspect of the case was the finding by the Court that the adjudicator had an ongoing duty to ensure that the above threshold criteria continued to be met. When the trial judge’s concerns about the impartiality and fairness of the expert witness were realized, the trial judge should have intervened by hearing submissions, giving direction to the witness during his testimony and / or by giving a clear warning to the jury on how to assess the expert’s evidence. Even though legal counsel did not raise the concern, the adjudicator had a duty to the integrity of the hearing process to intervene.

Presumably, courts will give more deference to regulatory committees who are not made up of lawyers or judges. However, the need to ensure that expert witnesses provide impartial and fair testimony is a consideration such tribunals must take into account.

Limits to the Good Faith Immunity for Regulators

BLeBlanc_Webby Bernie LeBlanc
August 14, 2017

Many lawsuits against regulators never make it to trial because the practitioner cannot demonstrate any basis to challenge the good faith of the regulator. In Fitzpatrick v Physiotherapy Alberta College, 2017 ABQB 453, a practitioner was able to pass this hurdle by asserting details of three types of alleged bad faith.

  1. The investigator allegedly told the practitioner that she was being investigated for paying kickbacks when this was not the basis of the complaint. The implication of the pleading is that the investigator was unduly suspicious and was trying to broaden the scope of the investigation.
  2. The Registrar allegedly gave consideration to the insurance industry’s concerns about improper billing by practitioners to take an aggressive approach to disciplining her, and then expanded the allegations to lesser, but more provable allegations, to justify the allegedly hasty initial referral to discipline.
  3. A member of the discipline panel allegedly had previously expressed an interest in purchasing the practitioner’s practice and then prior to the discipline decision being released, allegedly told a banker that the practitioner may now be ready to sell her practice.

The Court was clear that these assertions of bad faith were not established. The Court merely held that sufficient details were provided to permit the issues to go to trial for determination. The claims against many of the other participants in the discipline process were dismissed as there were no particulars suggesting they did anything but perform their duties.

‘Jordan’ Approach to Delay Not Applied to Delay in Discipline Cases

Maciura_Julie_5038by Julie Maciura
August 9, 2017

In Law Society of Upper Canada v. Abbott, 2017 ONCA 525, the Ontario Court of Appeal has provided guidance on a number of important issues for regulators of professions.

The first issue addressed by the Court was how much deference administrative appeal tribunals should show to the first level tribunals making the original discipline decision. The Court said that administrative appeal tribunals, when reviewing lower level decisions, should show the same level of deference as the Courts do. For penalty decisions at least, the administrative appeal tribunal must find the lower tribunal’s decision to be unreasonable before it is entitled to interfere with it. In this particular scenario, past precedents had established that revocation was the presumptive penalty for knowingly participating in mortgage fraud, absent exceptional mitigating circumstances.

The appeal tribunal in this case had found exceptional mitigating circumstances existed in the delay of seven years between the initiation of the investigation and the beginning of the discipline hearing such as to allow them to overturn the first level decision. The Court disagreed, holding that the first level tribunal had fully considered: the delay; that mortgage fraud cases are difficult to investigate; that the misconduct was quite serious going to the very character of the practitioner; the risk to the public; and that there was no substantial prejudice shown to the practitioner by the delay. The Court found that the appeal tribunal did not establish the unreasonableness of the decision of the hearing tribunal and as a result the appeal tribunal had wrongly interfered with the hearing level decision.

The Court made an interesting comment about the fact that the practitioner had good character references and had not engaged in any misconduct since the original events:

With respect, these mitigating circumstances are quite generic, and in the context of an active prosecution, one would expect the member to be on his best behaviour or risk making things worse. As for the supportive reference letters, it is well to keep in mind the observations of Sir Thomas Bingham M.R. in Bolton, at para. 16:

It often happens that a solicitor appearing before the Tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. [Emphasis added.]

The Court of Appeal also said that in administrative law matters, the Court of Appeal does not show deference to the decisions of the Divisional Court.

Failing to ‘Speak with One Voice’ is Grounds for Removal

ERichler_Webby Erica Richler
August 2, 2017

A fundamental governance principle is that governing Boards or Councils should speak with one voice. When a decision has been made, individual Board or Council members should not speak against it publicly. Rather, they should simply explain the decision and reasons why it was reached and not get into their personal disagreement with the decision. Otherwise the credibility of the organization and its effectiveness in implementing initiatives is compromised. Board or Council members with significant concerns about the decision should either resign or, in some circumstances, bring the matter back for reconsideration based on new information through proper channels.

This principle received judicial support in Béliveau v. Town of Sackville, 2017 NBCA 26. In that case, a member of a heritage Board disagreed with the permission to demolish an older church in the downtown core. He then advocated against the Board’s decision before a separate appeal tribunal, going so far as to file an affidavit. He was removed from the Board. His challenge to the removal on the basis that he was a whistle-blower acting in his personal capacity was not accepted by the courts.

No Need to Inquire into Language Proficiency of Legal Representatives

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by Rebecca Durcan
July 25, 2017

After a discipline hearing imposing sanctions on a veterinarian, he appealed on the basis that he did not have a fair hearing because his paralegal representative was not proficient in English. In Aziz v College of Veterinarians of Ontario, 2017 ONSC 2746, the Divisional Court rejected the argument saying:

The Appellant has provided no jurisprudence to suggest that where counsel appears before a Tribunal or Court lacking in proficiency in one of the two official languages, that the Court or Tribunal has an obligation to enquire as to whether counsel requires the assistance of an interpreter. This, frankly, is a matter of common sense, as the Court and/or Tribunal is entitled to take judicial notice of the fact that a lawyer and/or paralegal licensee is obliged, pursuant to their governing statutes, to be proficient in one or other of the official languages.

The Court also dismissed the argument that the member was prejudiced by not having a formal witness list provided. There was no statutory requirement to provide a witness list and it was obvious from the notice of hearing that the person was a key College witness. Disclosure of what the witness would say had been provided. In any event, the panel accommodated the member by giving him time after the examination in chief to prepare for the cross-examination of the witness.

The Court also rejected the argument that findings under multiple heads of professional misconduct constituted double jeopardy. Each heading of misconduct had a separate basis for a finding.

The Court also upheld a four month suspension and terms and conditions for obstructing the investigation and for being convicted criminally for assaulting two of his female staff. The Court upheld this as reasonable as follows:

The findings of fact made by the Committee go directly to his suitability to practise veterinary medicine. They also call into question the public interest in ensuring that women, whether they be employees or members of the public, are adequately protected. The various issues that came before the Committee called into question the Appellant’s honesty, integrity, as well as his governability.

The Court also upheld a costs order at discipline of $94,000 in part because prosecuting counsel kept the member aware of the costs as they escalated, much of the length of the legal proceeding was attributed to the conduct of member’s counsel and because no persuasive evidence was tendered as to the inability of the member to pay the costs.

Penalty Precedents and Assignment of Panels

BLeBlanc_Webby Bernie LeBlanc
July 21, 2017

To use diplomatic language, the case of R. v. Gashikanyi, 2017 ABCA 194 is an example of frank and vigorous debate within an appeal panel. The issue was whether the sentence for sexual assault in a criminal case was appropriate. Each of the three Justices issued separate reasons.

One Justice made an impassioned case that precedents and established “starting points” constituted an unfair constraint on individual trial judges to establish the sentence that they think is fair. The Justice said: “A “precedent” may be nothing more than the product of the assignment of a like-minded three or five person panel to hear an appeal. Judges of a particular “doctrinal disposition” will set the precedent simply because the panel was “first at bat”.” The second Justice was supportive of this approach, but couched that support in terms of permitting Judges at sentencing hearings to distinguish precedents on the facts of their case. The third Justice, however, took exception to this approach to precedents, indicating that they provide useful guidance to subsequent courts. That Justice said: “that consistency, certainty, predictability and sound judicial administration are achieved with the adherence to precedent”.

While not an issue in this case, there was also spirited debate by the three Justices on whether assignments to appeal panels should be random. The first Justice raised the issue, stating:

The presence of individual discretion in a system of assignment poses a risk that some may think that panelists will be selected based on their perceived predispositions. [Citing: Robert Brown Jr. and Allison Herren Lee, “Neutral Assignment of Judges at the Court of Appeals” (2000) 78: 5 Tex. L. Rev. 1037 at 1103.] An appellate court that utilizes discretionary non-random methods to assign (or to replace an assigned judge) leaves open the potential for manipulation.

Neither of the other Justices agreed with this comment. The second Justice cited such considerations as expertise, workload, illness and appearance of bias would warrant the exercise of discretion by the Chief Justice, although random selection should still be the general rule. The third Justice interpreted the first Justice’s comments as being an attack on the impartiality of Judges generally and a baseless suggestion against the open-mindedness of the current assignment system in particular. This discussion has obvious implications for the assignment of panels by the chairs of committees of regulators.

Trying to Taint a Hearing Panel by Your Own Motion

Maciura_Julie_5038by Julie Maciura
July 17, 2017

Can you bring a motion to a disciplinary tribunal and then later argue that they are biased because they presided over the motion? That strategy failed in Campkin v College of Social Workers of Alberta, 2017 ABQB 358. The College there alleged that Mr. Campkin ‎should be disciplined for misleading his previous regulators in other jurisdictions. Mr. Campkin’s argument that the College had no jurisdiction to hear the allegations was unsuccessful before the hearing panel. He then brought an application asking a Court to set aside the hearing panel’s preliminary ruling. The Court declined to hear his application and sent the matter back to the panel for a hearing on the merits. The Court also declined to direct that a differently constituted panel hear the case on the merits, finding that there was no reasonable apprehension of bias caused simply because the panel had ruled against Mr. Campkin on his preliminary motion.

Role of the Complainant

ERichler_Webby Erica Richler
July 13, 2017

What role should the complainant play in a regulator’s complaints and discipline process? One view is that the complainant merely provides information to the regulator and has no ongoing role. This view is expressed in the case of Tran v College of Physicians and Surgeons of Alberta, 2017 ABQB 337 where the Court said:

A person who complains to a professional regulatory body has the same interest as any member of the public: an interest in ensuring that members of the profession meet the standards set by the governing body. It is the role and the obligation of the professional regulator, not the complainant, to ensure that standard is met.

However, Ontario’s Regulated Health Professions Act, 1991 provides a more enhanced role. Under that Act as of May 30, 2017, complainants ‎have the right to request the withdrawal of their complaint, participate in resolutions and appeal unsatisfactory decisions by the regulator. The Ontario Sexual Abuse Task Force recommended an even larger role for complainants including full party status at discipline hearings.

It is rare for there to be such divergent views on such a fundamental issue.

The Tran case also provides some guidance on the role of the screening committee in serious complaints with significant credibility issues. The Court said:

In my view, the record in this case demonstrates that the Applicant’s complaint was taken seriously and was subject to a proper investigation. The Committee was not required to refer the matter to a full hearing, notwithstanding a conflict between the Applicant’s statement and other evidence (the physician’s response and hospital records). The Committee was entitled to consider the information before it and determine that there was “insufficient or no evidence of unprofessional conduct.”

Practitioners Who Wear Two Hats

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by Rebecca Durcan
July 10, 2017

Are practitioners subject to a regulator when they are acting in another capacity? This issue arose in A.C. Waring and Associates Inc v Institute of Chartered Accountants of Alberta, 2017 ABCA 152, where an accountant was facing an investigation for his actions when acting as a trustee in bankruptcy. Mr. Waring sought a declaration that the Institute could not investigate his conduct because he was not acting as an accountant and because of the protections in the federal Bankruptcy Act protecting trustees in bankruptcy. The Court dismissed this argument. It applied the case of Law Society of Alberta v Krieger, 2002 SCC 65 (dealing with the discipline of a lawyer acting as Crown Attorney) to hold that regulators could investigate and discipline members acting in another capacity, at least for bad faith conduct. The immunity in bankruptcy legislation was not intended to interfere with this regulatory role.

Reasons by a Complaints Screening Committee

BLeBlanc_Webby Bernie LeBlanc
July 6, 2017

It is not enough for a complaints screening committee to say that the complaint does not raise a significant concern of professional misconduct. The committee also needs to explain why this is so when choosing to give advice rather than refer the matter to discipline. In Harrison v Association of Professional Engineers of Ontario, 2017 ONSC 2569 the complaint was by a supplier whose shop drawings were rejected by the practitioner resulting in the assignment of the contract for a public project to another supplier. The complainant was concerned that the practitioner and the other supplier had a personal relationship that may have influenced the rejection of the shop drawings. While the Court found the committee’s reasons inadequate, it found a sufficient basis in the file to support its conclusion, particularly in the well-articulated letter from the respondent to the complainant. The Court warned the committee to ensure that, in future, its reasons provide justification of its decisions in an intelligible and transparent manner. The Court suggested that it obtain advice on its reasons in a legally appropriate manner from its legal counsel.

Is a Person Who Receives Episodic Services a Client?

Maciura_Julie_5038by Julie Maciura
June 29, 2017

In a number of recent cases, regulators have found that practitioners have a professional relationship with people to whom they provide intermittent services ‎unless the relationship is clearly terminated. This approach is necessary to protect the public from exploitative behaviour where there remains in the client a trust in the practitioner. Examples of exploitative conduct include lawyers borrowing money and health practitioners engaging in sexual behaviour. An example of the former is found in Weir v. Law Society of New Brunswick, 2017 NBCA 18. In assessing whether there was a professional relationship, the Court provides the following criteria:

I agree the central question to be answered is based on a reasonable person test: whether a reasonable person in the position of a party with knowledge of all the facts would reasonably form the belief that the lawyer was acting for a particular party. In addition, in Trillium [Trillium Motor World Ltd. v General Motors of Canada Limited, 2015 ONSC 3824], the judge held that it is not only the client’s knowledge of a relationship that matters; it is also relevant what the lawyer knew or ought to have known about the client’s expectations or thoughts about the existence of a relationship. There is also a burden on lawyers to show that their characterization of the relationship is correct, particularly where the retainer has not been reduced to writing.

A similar result occurred in Clokie v The Royal College of Dental Surgeons of Ontario, 2017 ONSC 2773. The Court upheld as reasonable the finding that a person receiving episodic care from the dentist was a patient even though no further appointments had been made and even though she had moved to Sweden for part of the time. The finding was supported by certain chart entries including references to future planned procedures and correspondence from the dentist to another practitioner referring to the person as a patient. The finding was critical in that case as it made the difference between no finding of sexual abuse and a finding of sexual abuse resulting in mandatory revocation.

Regulators would be wise to communicate these principles to their members.

Testimonial Trespasses

ERichler_Webby Erica Richler
June 26, 2017

Many regulators prohibit the use of testimonials because they may be inherently unverifiable and, thus, misleading. In addition, the process of gathering testimonials tests the propriety of the practitioner-client relationship. In Edmison v Health Professions Appeal and Review Board, 2017 ONSC 3664, a physician challenged a caution imposed for his clinic’s advertising that contained testimonials. He argued that the postings were not really testimonials because they did not say positive things about him personally, just about the procedure that the clinic performed. He argued that the provision had to be the interpreted as it was understood by the profession. He also argued that the complainant’s motivation in making the complaint should be taken into account. The Divisional Court rejected both arguments and upheld the reasonableness of the Committee’s conclusion. The Court said:

The testimonials in Focus’ advertising were not rendered in a vacuum. They were inextricably linked to Focus [the clinic co-owned by the physician] and its services.  Viewed through the eyes of the public, a common sense inference would link the testimonials to Focus, and not merely laser eye surgery procedure in general.

The Court reinforced the point made recently in Green v. Law Society of Manitoba, 2017 SCC 20 that deference will be given to regulators when interpreting their own legislation.

Can the Sanctions Panel be Differently Constituted from the Findings Panel?

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by Rebecca Durcan
June 19, 2017

Can the sanction (or order) in a discipline hearing be determined by a panel that is different from the panel that made the finding of misconduct? The Ontario Court of Appeal has concluded that this is a reasonable interpretation of the securities legislation and the Statutory Powers Procedure Act (“SPPA”). While acknowledging that there was certainly another reasonable interpretation, the Court concluded that this interpretation was open to the tribunal. The sanctions hearing could be viewed as a separate proceeding under the SPPA such that the composition of the panel could be different. In addition, there was no procedural unfairness in adopting this procedure as both parties could introduce all relevant evidence on the sanctioning hearing, including relevant transcripts, from the proceeding on the merits. The Court also acknowledged that this approach was helpful to tribunals with a small pool of panel members to draw from: Ontario Securities Commission v. MRS Sciences Inc., 2017 ONCA 279. It will be interesting to see if other regulators take a similar interpretation and whether the courts see this concept as applying to other regulatory statutes.

Charging Fees to Non-Members

BLeBlanc_Webby Bernie LeBlanc
June 15, 2017

In BSA Diagnostics Imaging Inc. v The College of Physicians and Surgeons of Ontario, 2017 ONSC 1950, the Divisional Court upheld the legal authority of a regulator to charge fees to non-members. In most situations (e.g., a fee for accessing information) the regulator can simply insist on payment of the fee before providing the service. However, in BSA, the College was, at the request of the provincial government, conducting an assessment of an independent health facility governed under a different statute. The Court determined that the two pieces of legislation worked together and that the by-law imposing the fee to the non-member for the assessment was valid. As a result the regulator was entitled to sue for the recovery of the fee in court. This decision may have turned on the wording of the particular legislative provisions.

A National Examination Board is Legal

Maciura_Julie_5038by Julie Maciura
June 11, 2017

The brief reasons in Aljawhiri v Pharmacy Examining Board of Canada, 2017 ONSC 2609 belie its significance. A candidate failed four times for the national pharmacy examination. The rules did not permit a fifth sitting. The Divisional Court rejected the argument that a federal Act permitting a body to administer an entry-to-practice examination infringed on provincial legislative authority:

We do not agree that the Act creating the Pharmacy Examining Board of Canada was ultra vires Parliament because it does not purport to regulate the profession. The Act merely authorizes the Board to create and administer an examination for qualification of pharmacists across Canada which provincial licensing bodies may use if they wish to but are not obliged to.

The Court also dismissed the submission that the rule limiting additional attempts was a reviewable statutory decision:

We find that limiting the number of times a person can write the examination is nothing more than establishing the terms and conditions of the examination as s. 11(c) of the Act permits. It does not result in any regulation of the profession by restricting entry into the profession. It is the provincial licensing bodies that make those decisions. Accordingly the creation of the attempt limit is not ultra vires the statute.

Of course, it is not that such limits can never be challenged. Rather, they would have to be challenged within the registration process for the particular profession.

Collateral Attacks at the Human Rights Tribunal Disallowed

ERichler_Webby Erica Richler
June 9, 2017

In Toronto Police Services Board v Briggs, 2017 ONSC 1591, the Divisional Court dealt with whether the Ontario Human Rights Tribunal could hear an allegation of racial profiling by the Toronto police. The police officer had stopped a young black man driving a vehicle and charged him for driving while suspended, for providing a forged document and for driving while not having insurance. The driver brought a motion under the Canadian Charter of Rights and Freedoms to exclude evidence on the basis that the traffic stop was based on racial profiling. The driver did not testify at that motion. The criminal court dismissed the application and the driver was convicted of two of the charges. The driver did not appeal, but he made a complaint to the Human Rights Tribunal about the police officer. The police officer challenged the human rights proceeding on the basis that it was a collateral attack on the court findings. The Tribunal concluded that there were different aspects to the racial profiling allegation that had not been addressed by the court and that it was appropriate for the human rights application to proceed.

In a detailed review of the criteria for determining whether the Tribunal can determine issues addressed in previous proceedings, the Divisional Court concluded that the human rights complaint was indeed a collateral attack on the court findings. The Court concluded that the Tribunal had not properly considered all of the relevant factors in determining whether it was appropriate to proceed with the human rights application. For example, the Court held that the Tribunal relied on policy considerations without an adequate evidentiary basis (e.g., that accused may feel pressure to testify), instead of focusing on the particular situation of the driver and the fairness of applying finality in this case.

There was also a preliminary issue as to whether the application to the Divisional Court was premature because it related to a preliminary ruling by the Tribunal before the actual hearing had been held. The Court indicated that an abuse of process argument of this sort fell within the rare exception where the Court would intervene in the midst of a pending hearing. Failing to do so would defeat the whole purpose of the abuse of process protection in that the police officer would be put through the very hearing that was, arguably, abusive. In addition, the court process would not cause delay to the Tribunal process because the Tribunal hearing was not scheduled for many months.

Bias by Association

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by Rebecca Durcan
June 7, 2017

When is a panel member disqualified from hearing a matter because a colleague is affiliated with the practitioner facing discipline? This issue arose in Institute of Chartered Accountants of Newfoundland and Labrador v. Cole, 2017 CanLII 20403 (NL SCTD). The panel was hearing two complaints against a practitioner. The complainant in one matter was a colleague from the same large accounting firm as a panel member. The panel (as opposed to the panel member only) decided to disqualify itself from the one complaint – but not both. The Court upheld the tribunal’s decision. It concluded that the panel properly disqualified itself from hearing the first complaint because of the connection. The Court also concluded that the panel member was not disqualified on the second complaint simply because she was now aware that her colleague had made a complaint against the practitioner. This would not create a reasonable apprehension of bias.

The case also provides guidance on transitioning pending cases when the enabling legislation is replaced by a new statute.

Enough is Enough

BLeBlanc_Webby Bernie LeBlanc
May 30, 2017

Tribunals are cautious about refusing adjournment requests, particularly where there is no public risk in waiting to proceed later. In Broda v. Law Society of Alberta, 2017 ABCA 118, the practitioner had been removed from practice. He was appealing. However, he repeatedly failed to provide the required documents to the appeal tribunal. He was given a further adjournment that was peremptory (absolute) on him. After missing that deadline his appeal was dismissed. The Court upheld that decision, saying:

It seems to us that every courtesy was extended to the appellant. He had ample opportunity to make full answer and defence to the allegations that brought him before the Law Society of Alberta. The record is replete with cogent evidence of foot dragging on his part which was met with patient regard by the Appeal Panel to afford to the appellant multiple opportunities to put forward his evidence and submissions. Procedural unfairness is not made out. The principle of audi alteram partem was adhered to throughout the proceedings. The principles of fundamental justice were not infringed.

It is Professional Misconduct to Say: “I should shoot you”

Maciura_Julie_5038by Julie Maciura
May 30, 2017

It is professional misconduct for a lawyer to say to a social worker that he should shoot her because she “takes away too many kids”. In Foo v. Law Society of British Columbia, 2017 BCCA 151, the lawyer, Mr. Foo, said that the comment was meant in jest and amounted to a flubbed joke. The tribunal disagreed and the Court upheld the finding and the resulting two-week suspension. The Court also rejected the argument that the finding encroached excessively into the lawyer’s freedom of speech, which does not protect threats of violence. The Court also rejected the view that the legislative provision authorizing discipline for a “marked departure” from that conduct the Law Society expects of lawyers was too vague. The Court found that a specialist tribunal was able to give meaning to this language.

An interesting collateral issue was whether the lawyer’s evidence that the comments were made in jest was in evidence before the tribunal. The Agreed Statement of Facts attached statements from Mr. Foo on the point, but offered them only as his statements and not for the truth of their contents. Mr. Foo did not testify or offer formal evidence. The Court held that Mr. Foo had not placed that evidence before the tribunal. It is helpful when an Agreed Statements of Facts is prepared to ensure that the evidentiary status of the information contained in them is clear.

Going Solo During Investigative Interviews

ERichler_Webby Erica Richler
May 9, 2017

Can a person who is under investigation insist upon having someone with them during an interview? That was the issue raised in British Columbia (Securities Commission) v. Clozza, 2017 BCSC 419. Mr. Clozza wanted a director from his company present with him during his investigative interview. It just so happened that the director was a former employee of the regulator. The regulator declined to proceed with the colleague present and insisted that Mr. Clozza answer the questions on his own. Mr. Clozza refused, arguing that his colleague would act as his “counsel”.

The Court held that Mr. Clozza could not insist on having his colleague present. His colleague was not a lawyer and thus did not fit within the exception for having “counsel” present. Having the colleague present could compromise the confidentiality of the investigation. In addition, in the circumstances of this case, the colleague might be a potential witness or perhaps even a party in any subsequent proceedings. The Court ordered Mr. Clozza to attend the interview and answer questions without his colleague present.

This case does not address the issue of whether the regulator could permit a witness or subject of the investigation to have a “support person” present in the interview in appropriate circumstances.

Head in the Sand Strategy Fails Again

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by Rebecca Durcan
May 3, 2017

In Morgan v Institute of Chartered Accountants of Ontario, 2017 ONSC 1466, the practitioner failed to attend a discipline hearing because he felt the process was “stacked against him”. When a finding and order were imposed, he did not appeal. He waited more than two years. Then, when the regulator eventually began to enforce the order he finally commenced an application for judicial review. The Divisional Court declined to hear the application because he waited so long and because he should have appealed the decision when it was made. It was unfair to the process for him to raise his defences for the first time on the application for judicial review.

Assistance in Writing Discipline Reasons

BLeBlanc_Webby Bernie LeBlanc
April 27, 2017

Some regulators are experimenting with using administrative staff to sit in on the deliberations of a discipline panel, to make notes and help prepare the reasons of the panel. This approach has not been fully considered by the courts yet. However, the acceptability of that practice has received some support in Redekop v. Okanagan Mainline Real Estate Board, 2017 BCSC 417. There, a real estate professional was disciplined for directly communicating with a party to a transaction who was represented by another agent. During both the initial hearing and the appeal, the tribunal was supported by a staff member who assisted with the preparing of the reasons and, in at least one case, sat with the tribunal during deliberations. The Court found that this did not breach the rules of natural justice so long as the staff person was neutral and did not participate in the deliberations.

This case should be read with some caution by Ontario regulators, however, not only because it was decided in another province, but because the disciplinary tribunal was part of a voluntary rather than a statutory regulator. The Court indicated that the degree of scrutiny was less for voluntary associations; for example, the Court condoned the practice of not disclosing the entire investigation results to the practitioner for the purpose of making submissions about what action the regulator should or should not take.

Holding Out and Title Protection

Maciura_Julie_5038by Julie Maciura
April 24, 2017

It seems that many people try to skirt the rules about protected titles and holding out in the accounting field. This may be because it is often acceptable to practise accounting, so long as one does not misrepresent one’s status or qualifications. In Organization of Chartered Professional Accountants of British Columbia v. Nordine, 2017 BCCA 103, the regulator tried to obtain an injunction against accountants who called themselves “Professional Business Accountants” and use the designation “PBA”. The title “Professional Accountant” and designation “PA” were protected. Before the lower court the regulator was unsuccessful because the provision did not explicitly protect against the use of variations of the protected title and designation. However, the Court of Appeal reversed that decision and imposed the injunction on the basis that this variation of the protected title amounted to “holding out” as a regulated practitioner. The Court also held that it would be rare for there to be unfairness in a court requiring compliance with a public interest statute.

Expanding the Scope of Interim Orders

ERichler_Webby Erica Richler
April 18, 2017

In Morzaria v. College of Physicians and Surgeons of Ontario, 2017 ONSC 1940, a pediatrician faced serious allegations of isolating and sexually abusing a 13 year-old patient. While criminal charges were pending, the College negotiated an undertaking with Dr. Morzaria to ensure that a monitor was present when patients under the age of 16 were seen. The criminal charges were later stayed on the basis of delay and the Inquiries, Complaints and Reports Committee (ICRC) completed its investigation, referred the matter to discipline and imposed an interim order. The interim order went further than the original undertaking in two material respects: the monitor could not have other duties while Dr. Morzaria was seeing a patient, and patients had to be expressly informed in advance of the monitoring requirement. Dr. Morzaria challenged the increased measures, indicating that nothing had changed since the undertaking was in place. The evidence was that he fully complied with the undertaking for years. The majority of the Divisional Court gave deference to the ICRC, holding that the undertaking did not prevent the ICRC from re-evaluating the degree of risk particularly since there had been an earlier allegation of a similar nature.

However, one judge issued a strong dissent expressing concern that there was no evidence (let alone no new evidence) to justify the increased, intrusive requirements. The dissenting judge also expressed concerns that Dr. Morzaria was not really told why the ICRC was more concerned now than in the past, that there was a material delay by the College in investigating and referring the case, and that the previous allegation was quite old and never established.

Even though the interim order was upheld by the majority, regulators should be mindful of the concerns raised by the dissenting judge when crafting interim orders and managing investigations and referrals in which interim orders are made.

It should be noted that a recent Newfoundland and Labrador case dealt with a similar issue. In Wentzell v. Law Society of Newfoundland and Labrador, 2017 CanLII 15042 (NL SCTD), a lawyer had given a number of undertakings to address concerns about alcohol impairment. However, a screening committee then imposed a more onerous interim suspension of his ability to practise on the basis of new concerns about his conduct. The Court set that suspension aside on the basis that the practitioner had not been alerted to the new concerns and had not been given an opportunity to respond to them before the decision was made.

Getting the Last Word

BLeBlanc_Webby Bernie LeBlanc
April 11, 2017

Even when ordering remediation, a committee has to provide procedural fairness. In Zaki v Ontario College of Physicians and Surgeons, 2017 ONSC 1613, the Inquiries, Complaints and Reports Committee (ICRC) ordered a Specified Continuing Education and Remediation Program (SCERP) to enhance record keeping (particularly legibility) followed by an assessment. The assessment identified continuing gaps in record keeping, but also noted a number of concerns about the actual treatment provided. The ICRC provided the assessment report to Dr. Zaki, who made a full response. Dr. Zaki’s response was forwarded to the assessor, who replied. The reply accepted the validity of some of Dr. Zaki’s submissions, but disagreed with his other points. Dr. Zaki was not given a copy of the assessor’s reply and another SCERP relating to both record keeping and substantive practice was ordered. The Divisional Court found the failure to provide the reply to Dr. Zaki for comments to be procedurally unfair:

First, procedural fairness must not only be accorded to a party, in fact, it must also be seen to have been accorded to the party. Providing information to the ICRC, upon which it relied in reaching its decision, that was not provided to the applicant, is neither procedurally fair in fact nor in appearance. The adage “no harm, no foul” is not a principle upon which the respondent can rely to overcome a fundamental failure to ensure that the applicant knew the case that he had to meet. The suggestion, that the second report was of no consequence, is a conclusion based on [sheer] speculation as to what the applicant might have done, including what submissions the applicant might have advanced, if the second report had been disclosed.

The Court went on to comment on the SCERP process. The Court said that requiring an assessment as part of the SCERP was not only permissible, but also necessary to ensure that the remediation was effective. However, the assessment should be carefully tailored so that it is rationally connected to the original concern. Where that assessment identified new concerns, it was appropriate for the College to consider them and, in appropriate cases, order a second SCERP with another assessment. However, judicial review remained available should the process descend into an apparently endless cycle of remediation and assessments.

Creative Defences to Sexual Abuse Allegations Fail

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by Rebecca Durcan
April 5, 2017

After numerous decisions by the Ontario Court of Appeal holding that the mandatory revocation provisions for sexual abuse are valid, one has to credit defence counsel with ingenuity in raising interesting new arguments in Sliwin v College of Physicians and Surgeons, 2017 ONSC 1947. Dr. Sliwin was a plastic surgeon. From time to time over the course of many years, he employed and had a sexual relationship with a woman. During this period the surgeon performed numerous cosmetic procedures on her without charge. He also provided other medical services. Dr. Sliwin appealed the finding of sexual abuse and the mandatory revocation on a number of grounds.

Dr. Sliwin argued that he should be excused from sexual abuse (although not a boundary violation) on the ground of officially induced error. He argued that his misinterpretation of various College publications on the topic of sexual abuse (e.g., statements permitting episodic minor procedures) lead him to believe that his conduct did not constitute sexual abuse. The Divisional Court held it was reasonable for the Discipline Committee to reject that argument on the basis that Dr. Sliwin “knew that what he was doing was wrong, that the advice from the College was not erroneous, and that he did not reasonably rely on erroneous advice”.

Dr. Sliwin also submitted that there was an abuse of process because the College had, in various communications with his defence counsel, tried to dissuade them from raising Charter of Rights issues or to represent him. While the Court was concerned about some of those interventions, it found that they did not compromise Dr. Sliwin’s ability to have a fair hearing before an impartial tribunal as the Committee was not involved. Dr. Sliwin also argued that the failure of the College to record and disclose, at least initially, that the complainant was concerned that a “sexual abuse” allegation had been made and that she wanted to withdraw her complaint was also an abuse of process. The Court did not find that this information was relevant to the case as it was the College that framed the prosecution once the complaint was made.

Dr. Sliwin also argued that the complainant was not his patient when they had sex. While all agreed that the sexual activity had to be concurrent with the Doctor-patient relationship, the Court deferred to the tribunal’s findings that the ongoing nature of the services resulted in the professional relationship encompassing at least some of the sexual activity.

The Divisional Court also rejected Dr. Sliwin’s argument that the prior Court of Appeal decisions could be disregarded because of subsequent spousal exemption amendments to the enabling statute, the Regulated Health Professions Act. The Court found that these narrow amendments did not significantly change the law and that, in any event, this sexual relationship was clearly not a spousal relationship. The Court also held that it was bound by the prior Court of Appeal decisions that the right to liberty protections found in section 7 of the Charter of Rights did not apply to Dr. Sliwin’s sexual freedom or his “right” to practise his profession.

The Court did, however, set aside the part of the tribunal’s order requiring Dr. Sliwin to post security for costs for therapy and counselling for the complainant. The Court concluded that on the facts of this case there was no reasonable prospect that the complainant would request such counselling and therapy.

Parity is not Dead

Maciura_Julie_5038by Julie Maciura
March 27, 2017

In College of Physicians and Surgeons of Ontario v Peirovy, 2017 ONSC 136, the Divisional Court refused to apply the “parity principle” where the range of sanctions from previous cases that counsel relied on was found by the Court to be clearly “unfit” such that those cases ought not to be followed. However, even in that decision the Court said that consistency in decision-making was important. A recent Alberta Court of Appeal case (which, by the way, did not cite Peirovy) reinforces that consistency in sanctioning is generally desirable.

In Constable A v Edmonton (Police Service), 2017 ABCA 38, a fifteen-year constable working for the Edmonton police had an unblemished record. During an investigation, she recruited a confidential informant for the first time in her career, but did not follow her employer’s protocol. To protect her informant’s identity she swore a false Information to obtain a search warrant and then maintained the falsehoods throughout the process. Eventually she told the Crown Attorney the truth, which resulted in her discipline. The discipline tribunals focused on the falsehoods and dismissed her. On judicial review the main issue was whether the dismissal was justified.

The Court held that, while dismissal was an option, it was not the only reasonable outcome for persistent deceit. It summarized the considerations that should be taken into account as follows:

…fitness of sanction depends on numerous factors, including: the seriousness of the misconduct; the moral culpability of the constable; the existence of remorse and recognition of responsibility; the resulting consequences for the public and the administration of law; the need for deterrence, denunciation or rehabilitation; and the overall fitness of the constable for police service. A fit sanction is also proportional; it reflects the moral blameworthiness of the person being sanctioned and the gravity of the misconduct.

The Court found that the tribunal had erred by not considering the parity principle especially where there were a number of decisions involving persistent deceit that did not result in dismissal. The Court said:

At issue here is the application of parity – one of the fundamental normative values that must inform every just sanctioning exercise. Those who are similarly situated should be treated similarly. No system of discipline can be fair in the absence of consideration of parity. A system that accepts that sentencing is completely individualized overlooks the importance of confidence and respect in the system that is fostered by a consistent rather than an arbitrary approach to sanction. In other words, precedents matter. Previous decisions, particularly well-reasoned decisions from the same tribunal, provide important guide posts when determining the gravity of conduct and the degree of responsibility of the officer, and in ensuring that the disciplinary system is applied fairly and not arbitrarily.

Given some of the mitigating factors in the case (e.g., exemplary record, motivation was to protect the confidential informant, not protect herself), the Court returned the matter for further consideration of an appropriate order. So the parity principle is still alive, however, it is important to remember that the Court in Peirovy recognized that the type of misconduct at issue there (sexual assault) has come to be viewed differently now by society and so what might have been a fitting precedent in the past was now in fact “unfit”. It is not clear that society’s view of false testimony by a police officer has really changed over time.

Deference to Discretion in Interim Suspensions

ERichler_Webby Erica Richler
March 20, 2017

Interim orders have become increasingly important for protecting the public when dealing with disciplinary matters. Bill 87 is poised to permit Ontario health regulators to impose them during the investigative stage (rather than only after allegations have been referred to discipline). That is already the case for lawyers in Ontario, which presented three distinct issues in the interesting case of Marusic v Law Society of Upper Canada, 2017 ONSC 663. Ms. Marusic was a professional and romantic partner with another lawyer who was suspended for serious misconduct including misappropriating trust funds. When her involvement in the transactions was brought under scrutiny, the Law Society issued an interim order restricting her access to trust funds. A stricter order was possibly avoided because she had broken off her personal relationship with the suspended partner. Subsequently new concerns were raised about Ms. Marusic allowing her former partner to participate in the practice of law and charge an unreasonable fee to a client. Apparently the romantic relationship had also been re-established. The Law Society varied the interim order to suspend her entirely from the practice of law. In rejecting her challenge to that suspension, the Divisional Court made the following points:

  1. The Law Society properly considered her personal relationship with the suspended lawyer because the first interim order, restricting her access to trust funds, was made in part on the basis of her submission that “she was a victim of [her partner’s] deceitful ways, but had ended her personal relationship with him”.
  2. The Law Society properly imposed a total suspension, rather than just imposing restrictions, given that the misconduct concerns under investigation now stretched beyond one discrete area of practice (i.e., more than mishandling trust funds was now in issue).
  3. The Law Society gave adequate consideration to the concern that an interim order might be unfair because the investigation would be long and protracted. The tribunal gave reasons addressing that concern and provided a mechanism to revisit the order if the investigation was not completed in a timely manner.

The Use of Precedents when Imposing Disciplinary Orders (Part 2)

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by Rebecca Durcan
March 13, 2017

In another rare example of a College successfully appealing a decision of its own Discipline Committee, the College of Physicians and Surgeons of Ontario has had a sexual abuse matter returned for re-consideration. In College of Physicians and Surgeons of Ontario v Peirovy, 2017 ONSC 136, the physician was found to have inappropriately touched the breasts of four patients under the “pretense” of a medical examination. The Court agreed with the College that a six month suspension was not fit and proper. The discussion ought to be whether the sanction should be revocation or a suspension for years, not months.

The Court said this about the use of past disciplinary precedents (portions of which have been quoted frequently by the media):

The main justification given by the Committee and the Respondent for the penalty imposed is that it is in line with similar penalties that have been imposed in similar cases…. The facts of these cases are base. It is depressing to review them. They do little to encourage confidence in the Committee’s approach to eradicating sexual abuse in the profession. Consistency in the imposition of sentence is a proper consideration, but a litany of clearly unfit penalties does not justify the penalty imposed in the present case. The penalty imposed in the present case was clearly unfit. It was inadequate to protect the public and vindicate the integrity of the profession.

Public confidence in the profession is not a “shifting standard.” Rather I think that community tolerance for sexual abuse by doctors has lessened. The public’s confidence in the medical profession demands more from the disciplinary process than recent sexual abuse discipline cases suggest.

The Use of Precedents when Imposing Disciplinary Orders (Part 1)

BLeBlanc_Webby Bernie LeBlanc
March 7, 2017

The Divisional Court upheld a finding of sexual abuse and a resulting revocation of registration in College of Physicians and Surgeons of Ontario v. McIntyre, 2017 ONSC 116. While there were acknowledged serious concerns about the disrespect of patients and serious boundary crossings in respect of two patients, the only actual sexual abuse finding related to a single extended and passionate kiss.

The kiss occurred two months after the last billed patient visit. The Court upheld the finding that the person was still the patient of Dr. McIntrye because of the pattern of periodic visits and the absence of actual evidence that the professional relationship had been terminated. The Divisional Court stated that an adverse inference could have been made on whether the physician-patient relationship had been terminated before the kiss on the basis that Dr. McIntyre did not testify. There is no right to silence in discipline proceedings and in these circumstances applying the adverse inference principle would not have amounted to reversing the onus of proof.

The Court also rejected the propositions that there existed a principle that the sanction should be the least intrusive one in the circumstances or that revocation is reserved for the most serious misconduct by the most serious offender. This is consistent with another recent decision, Chen v. College of Denturists of Ontario, 2017 ONSC 530, where the Divisional Court rejected the proposition that revocation was ordinarily reserved for repeat offenders. The Chen case involved a denturist who systematically practised dentistry over a 2 ½ period and then falsely billed for the services in the names of actual dentists.

The Court also accepted that the Discipline Committee could depart from older precedents that may no longer reflect its (and society’s) understanding of the seriousness of the conduct:

The applicability of precedent and the general principle of maintaining consistency in the penalties imposed for similar situations are difficult issues for discipline committees, particularly on issues where public mores may be evolving…. The Committee also was guided by the importance of deterrence, protection of the public and ensuring that the public continued to have confidence in the College to protect the interests of patients…. In reaching its decision, the Committee was cognizant of the particular circumstances of this particular doctor and these particular patients. However, the Committee also took a broad policy-based view of its own mandate: to protect the public; to recognize the devastating impact on patients when the trust they place in doctors has been violated, particularly through sexual abuse; and to maintain public confidence in the ability of the medical profession to regulate itself in the public interest…. In our view, the Committee’s penalty decision is reasonable, defensible, and supported by cogent reasons.

Reviewing the Registration Process

Maciura_Julie_5038by Julie Maciura
March 2, 2017

The registration process is different from most other activities of a regulator. For example, the onus is on the applicant to establish meeting the requirements, yet the regulator should give some notice of the concerns. The balancing of these issues occurred in Risseeuw v Saskatchewan College of Psychologists, 2017 SKQB 8. The applicant was registered in Alberta and had tried for years to become registered in Saskatchewan; it was a mobility case. The Court concluded that, in the circumstances of the case, the application for judicial review should be dismissed for undue delay. The applicant was aware from previous litigation that judicial review applications needed to be brought promptly, but had waited for two years from the decision to initiate the application. The regulator had a right to some finality of its decision.

The Court went on to consider the merits of the judicial review and found the application lacking. The Court held that the regulator was not required to give the applicant the same notice and particulars as is required in the disciplinary process. The applicant is taken to know the registration requirements and should not be surprised if the regulator applies those requirements to the application. Similarly, the applicant should know that incomplete or inconsistent information provided on the application will be considered by the regulator. Similarly, the applicant should not be surprised that the regulator will want information as to her current competency if her previous application was rejected because of concerns about her competence.

Perhaps most interesting is the Court’s approach to the mobility issue. The Court suggested that, where an applicant applied previously and there were competency concerns at that time, the regulator can now (again) consider the applicant’s competency:

“The applicant’s position takes the narrowest possible view. It presupposes that the mobility provisions will be applied almost as a rubber stamp. It presumes that the respondent must purge itself of past knowledge of incompetency. The applicant’s position takes this narrow, literal view without adopting a purposive approach to legislative interpretation. The suggestion that the respondent is obligated by s. 20(2) of the Act in a robotic fashion does not comport with the overall legislative scheme and intention.”

The Court’s approach may be based on the specific legislative context rather than a pure analysis of most mobility provisions for professions and may not have broad application to other cases.

The Court also indicated that the regulator can engage in a certain amount of inquiry into the accuracy of the applicant’s information. However, the Court did not clarify how extensive those inquiries could be.

Reasonable Rejection of Reinstatement Request

ERichler_Webby Erica Richler
February 24, 2017

In Manoukian v Ontario College of Pharmacists, 2017 ONSC 589, the former pharmacist had a significant discipline and criminal history. After being revoked for trafficking narcotics he was reinstated only to be revoked again for fraudulent billing. However, those findings were decades old and he was now a licensed paralegal. In support of his application for reinstatement to the College he had letters of reference from respected sources, including judges; expert reports from both a psychologist and a psychiatrist stating that his risk of re-offending was low; and he successfully completed various educational courses including one on professional ethics. In upholding the refusal of the Discipline Committee to reinstate the applicant the Court made the following points:

  1. The standard of review by the Court was reasonableness.
  2. The Discipline Committee applied the balance of probabilities standard to the evidence at the reinstatement hearing.
  3. The Discipline Committee was entitled to consider the reputation of the profession and the impact of the decision on the public.
  4. The Discipline Committee was entitled to reject the option of reinstatement upon terms, conditions and limitations in the circumstances of the case.
  5. The Discipline Committee could discount the significance of successfully completing the educational courses given what was required to complete those courses.
  6. The Discipline Committee did not have to accept the expert reports put before them (even though they were not contradicted).
  7. The Court would not re-weigh the evidence where the Discipline Committee found the applicant’s evidence to be “self-serving and not forthright” and where the Committee explained why it reached that conclusion.

The Court said: “The panel concluded that to reinstate the applicant, a second time, would not only pose a risk to the public, but it would also not reflect well on the profession. That was a reasonable conclusion for the panel to reach. It was certainly a decision that ‘falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’ ….”

Asking Good Character and Capacity Questions on Annual Renewal Form

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by Rebecca Durcan
February 21, 2017

In Health Sciences Association of Alberta v Alberta College of Paramedics, 2016 ABQB 723, the content of the annual renewal form was prescribed by subordinate legislation. The regulatory body added to the form three broadly worded questions relating to police or criminal interactions, to treatment for mental or physical conditions that could affect a practitioner’s capacity to practice, and to substance abuse. On a challenge to the questions, the Court held that there was no authority for the regulatory body to add the questions to the form. The Court rejected the regulator’s argument that the questions were not substantive because the questions did affect the human rights and the privacy rights of practitioners. However, the Court declined to make a general statement as to whether the College had the authority to ask practitioners about these matters in contexts other than annual renewal of registration. Because of the narrow focus of the decision of the Court in this case, it is difficult to extrapolate the ruling to other contexts, including annual renewal forms used under other legislation. However, the Court did view the asking of these questions as a serious matter.

Context is Important in Assessing whether there is an Appearance of Bias

BLeBlanc_Webby Bernie LeBlanc
February 15, 2017

At day 39 of what would turn into a 60 day registration hearing, the applicant raised an appearance of bias concern. The concern was that the applicant for a paralegal licence was giving advice to an individual in a human rights case where the chair of the hearing panel represented the respondent. The individual was also going to become a character witness for the applicant. The chair of the panel immediately transferred the case (her involvement had only been brief at this point) to another lawyer in the firm and separated herself entirely from the human rights case.

In Kopyto v. The Law Society of Upper Canada, 2016 ONSC 7545 the Divisional Court held that there was no appearance of bias. The Court found that the appeal tribunal’s conclusion on the bias issue was reasonable, when the appeal tribunal said: “A reasonably informed person would not form the view that Ms. Blight’s brief representation of the respondent to G’s human rights application would impair her ability to fairly adjudicate the appellant’s licensing proceeding.” Undoubtedly, the raising of this concern so late in the protracted hearing process was a significant consideration.

The Court also said that the appointment process for the hearing panel in registration matters did not require a degree of independence of an appointment of a Judge to the courts. Allowing the chair of the tribunal to freely appoint panel members demonstrated an adequate degree of independence.

No Stay Pending Appeal in Ungovernability Case

Maciura_Julie_5038by Julie Maciura
February 10, 2017

In Kuny v College of Registered Nurses of Manitoba, 2016 MBCA 122, two findings of professional misconduct were made against nurse Kuny. The first was for failing to cooperate in an investigation and the second was for failing to abide by a remediation agreement (and misleading the College about failing to do so). The second finding resulted in an order of cancellation / revocation. The Court in considering the stay application said: “The law relating to the granting of a stay pending appeal is clear. It is a matter of judicial discretion and there is a heavy onus on the applicant since the presumption is in favour of the correctness of the decision of the tribunal.” The Court also applied the test for injunctions (i.e., there must be an arguable case, irreparable harm and the balance of convenience must favour the injunction).

The Court declined to stay the disciplinary order of revocation and appeared to be most influenced by the nurse’s apparent ungovernability. The Court did, however, stay the order to pay the College money as the Court felt that might prevent the nurse from exercising his legal rights since he was not working and had the expenses of the appeal.

Challenging an Undertaking Never to Re-Apply

ERichler_Webby Erica Richler
February 6, 2017

Colleges often agree not to proceed with a discipline hearing if the practitioner undertakes to resign and never to re-apply for registration. This type of resolution is often appropriate where the allegations do not require denunciation and where there are mitigating factors such as illness or the practitioner is ending a long and distinguished career. Dr. Stelmaschuk, a dentist in British Columbia, entered into such an undertaking. He suffered from bi-polar disorder. Later he sued his regulatory body to set aside the undertaking on the basis that he did not have capacity to understand the agreement he was signing because he was in an acute stage of his illness at the time. The agreement confirmed that he had legal advice at the time of signing.

In Stelmaschuk v. The College of Dental Surgeons of British Columbia, 2016 BCSC 2196, the regulator sought access to information from the dentist’s lawyers to challenge whether the dentist had capacity to enter the undertaking. The dentist resisted on the basis of solicitor and client privilege. The Court concluded that the dentist had waived this privilege when he asserted his lack of capacity and ordered access of the information to the regulatory College.

The fact that this litigation is ongoing may serve as a warning to regulators to be cautious when entering into such undertakings where there is evidence of an illness that might affect the capacity of the practitioner.

Use of Evidence of Disability in Discipline Hearings

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by Rebecca Durcan
February 1, 2017

Regulators continue to face the difficult task as to how to balance evidence of some degree of disability (e.g., mental or cognitive impairment, substance abuse disorders) when dealing with allegations of professional misconduct. Further guidance was provided by the Manitoba Court of Appeal in The Law Society of Manitoba v Cherrett, 2016 MBCA 119. In that case a lawyer had misappropriated $20,000. He argued that he was in a “cognitive fog” and was confusing different files when he transferred the funds into various accounts controlled by him. On the issue of finding, the Court upheld the findings of the tribunal that “found that the appellant’s methodical actions were inconsistent with that argument, and that his actions were done “purposefully” and were “deliberate and considered conduct.”” The Court later said, on the issue of penalty: “While the panel acknowledged that the appellant’s ill health affected his ability to practice law, it found that the appellant’s diminished capacity argument was inconsistent with what he did, and explained why.” Thus, even where incapacity is present, that does not necessarily mean that the tribunal must conclude that the conduct resulted from the disability where the facts suggest otherwise.

Raising the Ineffective Assistance of Defence Counsel as a Ground of Review

BLeBlanc_Webby Bernie LeBlanc
January 27, 2017

Occasionally, practitioners raise the issue of the ineffective assistance of defence counsel as a ground for reviewing an adverse disciplinary decision. This sort of issue is not uncommon before the criminal courts. The British Columbia Court of Appeal gave some guidance on when such arguments might be accepted in the disciplinary context in Jalloh v. Insurance Council of British Columbia, 2016 BCCA 501. In that case, an insurance sales licensee faced a four year suspension for violating the privacy of a former romantic partner. He claimed that his lawyer unexpectedly sent a junior lawyer to represent him at his discipline hearing and that he was prevented from testifying at the hearing. The practitioner kept his senior lawyer for the appeal hearing before an independent tribunal. The practitioner then sought judicial review, but only at the last minute added the concern about ineffective representation.

Both the reviewing court and the Court of Appeal declined to accept this argument. They based their decisions on a number of considerations including the apparent strength of the case against the licensee, the fact that the hearing was otherwise procedurally fair, that such concerns are rarely accepted and that he raised the issue very late in the process. While the multitude of considerations makes it difficult to apply this case to others, the outcome does indicate that it will be a rare and strong case that will persuade a court that ineffective representation would make a discipline hearing so unfair as to nullify the results.

R v. Jordan Makes its First Appearance at Discipline

Maciura_Julie_5038by Julie Maciura
January 23, 2017

Earlier this year the Supreme Court of Canada imposed strict time limits for criminal proceedings in R. v. Jordan, 2016 SCC 27. Absent special circumstances, a matter in provincial court must be completed within 18 months and a matter in superior court must be completed within 30 months. The media reports that, as a result of this decision, many cases have already been stayed in the criminal court system. The Jordan decision is based on s. 11 of the Canadian Charter of Rights and Freedoms which does not apply to discipline hearings. However, it was only a matter of time before the principles of that case were raised in a discipline hearing context.

In Coady v Law Society of Upper Canada, 2016 ONSC 7543, a lawyer had her licence revoked some years ago for various forms of misconduct suggesting ungovernability. She brought a motion asking the court to reconsider its earlier decision based on delays at her discipline hearing citing the Jordan case. The Court dismissed her motion as frivolous and vexatious and because it did not have jurisdiction to reconsider its decision. This case indicates a reluctance by the courts to apply the Jordan case to past discipline proceedings, at least.

Far Reaching Interim Order in Unauthorized Practice Case

ERichler_Webby Erica Richler
January 17, 2017

In Ontario College of Pharmacists v Thi Kim Tien Nguyen, 2016 ONSC 7639, a pharmacist undertook to resign, cease practising and transfer ownership or close down her pharmacy in exchange for a stay of discipline proceedings. She did not do so. College witnesses provided evidence that she continued to operate the pharmacy and to dispense medications, including a narcotic.

The College brought an application under s. 87 of the Regulated Health Professions Act to require the former pharmacist to comply with the Act and cease practising. The College asked for an interim order to be made in the meantime (before the application was heard on the merits), which the Court granted. The Court applied the usual test for an interlocutory injunction (i.e., there must be an arguable case, irreparable harm and the balance of convenience must favour the injunction) but accepted that there was a presumption of irreparable harm where an individual was willfully breaching the law. The Court also declined to order the College to undertake to pay damages should the interim order later prove to have been unwarranted.

Perhaps most interestingly, the Court granted the College’s request that it be permitted to enter the pharmacy and remove all of the drugs to store in a secure location until such time as the issues could be resolved. Since this was just an interim order that, officially, was made without prior notice (although actual notice had been given and the former pharmacist’s spouse was present and made submissions), a date was set to hear further arguments on the matter.

When is being Transparent Defamatory?

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by Rebecca Durcan
January 13, 2017

At times there is tremendous pressure on the government and a regulator to be transparent about possible incompetence or misconduct that undermines confidence in the health care system. Awaiting the end of the disciplinary process to comment may not be feasible. However, issuing public statements, particularly where an individual practitioner is identified, can have a devastating impact on the practitioner. In Tsatsi v College of Physicians and Surgeons, 2016 SKQB 389 the decision by the regulator, the Minister and the hospital to inform the public of apparent radiological misinterpretations and to reassure the public of the steps being taken to protect them resulted in a defamation lawsuit.

In that case the Court summarily dismissed the action on the grounds that there was a basis for the public statements (i.e., a peer review report) and that, even if the statements were not justified, the entities were protected by “qualified privilege” which protected them in the absence of malice. On the qualified privilege point the Court said:

In so deciding I am cognizant that Sunrise [the hospital] and McMorris in his capacity as Minister of Health owe their primary duties to the public. Even the College does not exist merely for the purpose of protecting members of the medical profession. Each of the defendants owed a duty to the public, and in particular, an obligation to safeguard the health and welfare of the people of this province and inform them when a potentially serious risk of misdiagnosis has been discovered. The court must therefore exercise caution in second guessing the manner in which this public duty was discharged. This is especially so where, as in this case, there was a factual basis for the impugned communications and each of the defendants was careful to relay only the facts as they understood them and the measures that they were implementing in response.

This case should not only provide assurance to regulators who feel that they must make a public statement (confidentiality provision permitting) on a troubling case, but can also provide guidance on how to do so in a way that minimizes the regulator’s risk of liability.

Serving Documents, Technically

BLeBlanc_Webby Bernie LeBlanc
January 10, 2017

Technical arguments do not usually succeed in professional regulation unless there is some actual unfairness. Two recent cases confirm this principle.

In Institute of Chartered Accountants of Alberta (Complaints Inquiry Committee) v Barry, 2016 ABCA 354, the main issue was whether the notice of hearing in a discipline matter was served in accordance with the legislation. The provision permitted service by courier. The practitioner argued that XpressPost did not meet the requirements of the provision. The Court disagreed, saying that this was a type of courier service. Even if it were not, the Court said the fact that the practitioner actually received the notice of hearing meant that any non-compliance with the provision was inconsequential.

In Nobody v Ontario Civilian Police Commission, 2016 ONSC 7261, a complainant filed an appeal electronically upon the Ontario Civilian Police Commission. There was a 30-day time period to file the appeal. The appeal was filed on the last day of the time limit and was received by the Commission on the same day. However, the legislation deemed electronic documents to be filed the day after it was sent, which was after the 30-day time limit. The Commission dismissed the appeal as being late. The Divisional Court said:

The decision of the Commission is undoubtedly unfortunate. To deprive a citizen of his or her statutory right of appeal where he has actually served his notice of appeal within the statutory time limit on the basis of a deeming provision is, if not unfair, certainly undesirable. That is particularly so in a legislated police complaints system intended to be transparent and accessible, in order to promote public confidence in police and policing. However, in my view, in addition to being unfortunate the decision is wrong in law….

Deeming provisions like this are intended to be of benefit to a party serving a document. They provide certainty to the serving party. They are not intended to be traps for the unwary.

Regulators should generally take a purposeful and beneficial view of technical requirements.

It’s All Circumstantial

Maciura_Julie_5038by Julie Maciura
January 5, 2017

Insider trading cases are often circumstantial in nature. Fiorillo v Ontario Securities Commission, 2016 ONSC 6559 is no different. In a very lengthy decision, the findings of the Commission were upheld. The circumstantial evidence included a pattern of telephone calls between a person with access to material non-public information and those that bought the securities shortly after the calls. There were other factors that supported the inference, such as attempts to conceal the true person behind the trades. The Court upheld that findings can be based on circumstantial evidence where it is sufficiently compelling.

The Court commented on a number of other issues. For example, it said that there is a low threshold of fairness for beginning an investigation or in compelling a practitioner to undergo an interview both in terms of grounds to initiate the process and in terms of disclosure given in advance of the examination.

The Court also said that hearsay evidence is admissible in regulatory proceedings (unless the statute says otherwise) and the reading in of the transcript of the mandatory interview of a witness was upheld even though that meant the other practitioners could not cross-examine the witness. In that case, both parties appeared to have equal access to the witness to summons them to the hearing for questioning, if wanted. Each side wanted the other to call the witness so that they could cross-examine her. However, it appeared that the witness was, in fact, adverse to the prosecution and not adverse to the practitioners in that she denied participating in the alleged wrongdoing. So the Court did not see any duty on the prosecution to call the witness in person.

The Court also upheld an order to pay about 11% of the total costs even though the costs included concerns that had not been established and even though the $300,000 ordered was more than the prosecution had requested. The Court indicated that significant deference should be given to costs orders.

Another recent securities commission case that discusses and applies the concepts of circumstantial evidence and making inferences is: Finkelstein v Ontario (Securities Commission), 2016 ONSC 7508.

Establishing Holding Out Through Facebook and LinkedIn

ERichler_Webby Erica Richler
January 3, 2017

It can be challenging for regulators to prove holding out based primarily on social media postings. The case of Law Society of Saskatchewan v Siekawitch, 2016 SKQB 345 may make it easier for them to do so. In that case, the regulator sought an injunction against Mr. Siekawitch for holding himself out as a lawyer based on a telephone call in which he called himself an attorney, as well as his Facebook and LinkedIn posts. There was no direct evidence that Mr. Siekawitch was the person on the telephone beyond his identifying himself at the beginning of the call. The Court held that such self-identification was a recognized exception to the hearsay rule.

In terms of the social media postings, the Court was willing to infer that they had been posted by Mr. Siekawitch based on their content. The Court took judicial notice of the nature of the social media sites and analyzed the detailed content of those sites as making it unlikely that they belonged to anyone else. The Court also noted similarities between the claims made on the sites and the language used in the telephone conversation. Mr. Siekawitch’s uncommon name and the fact that he did not appear to dispute the evidence against him gave the Court confidence that the sites represented holding out and the Court issued an injunction against him.

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