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Grey Areas – Older Issues

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Please note that the information contained in Grey Areas 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.

November 2012/December 2012, Issue No. 171
Discrimination – Recognition, Accommodation and Remedies

Regulators know that they have to accommodate a disability or other protected human rights ground. However, the extent of the duty to accommodate, and the method of achieving it, is not always apparent. For example, is there a positive duty to maintain existing programs to address unequal access to services? For example, if a regulator establishes a program to assist international graduates is it then unable to discontinue the program? Some valuable guidance was provided by the Supreme Court of Canada in Moore v. British Columbia (Education), 2012 SCC 61.

October 2012, Issue No. 170 – The Efficiency Experts

Discipline hearings are getting lengthier. And despite the efficiency innovations contained in the 1990’s amendments to the Ontario Statutory Powers Procedure Act, the significant changes to the civil court procedures over the past decade have not left their mark on discipline hearings.

September 2012, Issue No. 169 – Accessible Websites

How far must regulators go to ensure that their websites are accessible to people with disabilities? A recent case indicates that internet access to government information and services is so fundamental to its mandate that providing non-internet alternatives is insufficient. As regulators make their websites an integral part of their regulatory activities, the question becomes whether the same expectations will apply to them.

Summer 2012, Issue No. 168 – Immediate Response Units

Should regulators have an “immediate response unit” of staff ready to intervene in a crisis situation? Many professional regulators view themselves as responding to concerns after-the-fact with a fair process that precludes immediate intervention. However, one wonders if an immediate regulatory response is sometimes appropriate.

June 2012, Issue No. 167 – Waiting for Godot

How can a regulator ensure that its tribunals deliver reasons for their decisions on a timely basis? Delayed reasons are the bane of adjudicative bodies everywhere, including full-time paid professionals (e.g., courts). Delivering prompt reasons is even more challenging for volunteer adjudicators, particularly those who are practising or otherwise working as well.

May 2012, Issue No. 166 – Names Will Never Hurt Me

One of the recent trends in professional regulation is the expectation of civility by practitioners. At some point incivility constitutes professional misconduct. The Supreme Court of Canada recently offered guidance as to when that point can be reached even where freedom of expression is protected by the Canadian Charter of Rights and Freedoms.

April 2012, Issue No. 165 – Records and Regulation

This week a group of pharmacists sought an injunction to prevent Zellers from selling their client records to two major grocery store chains for millions of dollars. The pharmacists claimed that they owned the records and that it was not in the best interests of their clients for the corporate owner to sell the records. Clients, they say, would likely prefer that the pharmacists keep the records, particularly if they open up a pharmacy close by their previous location.

March 2012, Issue No. 164 – More DAAs are Coming

Earlier this year, the Commission on the Reform of Ontario’s Public Services (known as the “Drummond Commission”) released its report. The Commission was chaired by Donald Drummond. Mr. Drummond was formerly the Associate Deputy Minister of Finance (Federal) and the Senior Vice President and Chief Economist of TD Bank. Mr. Drummond was asked to review and analyze all government services and spending to determine, amongst other things, if the government is getting value for money in its activities.

February 2012, Issue No. 163 – Investigating and Prosecuting Sexual Abuse Cases

Cases involving allegations of sexual abuse cases raise unique issues and challenges for investigators and prosecutors.

January 2012, Issue No. 162
Intrusion into Seclusion – Breach of Privacy Actions

Can you sue someone for invading your privacy? Until recently the answer was no. That has now changed and there may be implications, at least in the long term, for regulators.

2011

November / December 2011, Issue No. 161 – Economic Impact of of Professional Regulation

Last month the UK Commission for Employment and Skills issued a report entitled “A Review of Occupational Regulation and its Impact”. The Commission is a “social partnership, led by Commissioners from large and small employers, trade unions and the voluntary sector”. It focused on such considerations as the impact on the quality and availability of services of occupational or professional regulation and the resulting impact on the cost of services and employment.

October 2011, Issue No. 160 – No Contest

The concept of a “no contest plea” is quite American. It is not a part of the criminal justice system in Canada.

September 2011, Issue No. 159 – Competition Bureau – The Sequel

Most sequels don’t have the impact and novelty of the first episode. The same is true of the Competition Bureau’s Post-Study Assessment of its 2007 report on Self-Regulated Professions. The Post-Study Assessment was released earlier this month.

July 2011/August 2011, Issue No. 158 – Two Uncommon Decisions

Below is a discussion of two uncommon court decisions. They are uncommon in that they deal with matters rarely addressed by the courts.

June 2011, Issue No. 157 – Concurrent Regulatory and Criminal Investigations

Ever since the Supreme Court of Canada decision in R. v Colarusso, [1994] 1 SCR 20, joint criminal and regulatory investigations have been rare. In that case the Court held that a lawful search or seizure (in that case a Coroner’s obtaining of blood samples after an accident) could become unlawful if the police use the evidence in criminal proceedings.

May 2011, Issue No. 156 – Remedial Powers

Professional regulators act in the public interest and so do the tribunals that review their actions. However, this public interest duty does not, by itself, confer jurisdiction to make remedial orders. The public interest mandate dictates why a regulator does certain things, not what it can do.

April 25, 2011, Issue No. 155 – Investigative Summonses

There has been a stream of court decisions in recent years giving a broad and purposeful interpretation to the investigative powers of professional regulators. The courts have, at least in recent years, consistently taken the position that regulatory bodies protecting the public interest need to have the tools to do their job.

March 2011, Issue No. 154 – Accountability of Examination Bodies

Many professions have entry-to-practice examinations administered by external bodies (often national associations). Since successfully passing the examination is a legislative requirement for registration, are the associations subject to the judicial scrutiny afforded regulators? In Fawcett v. CCEB, 2010 ONSC 4903, the court said no.

February 2011, Issue No. 153 – Access to Hearings and Exhibits

Tribunals holding hearings are increasingly being asked to provide the public, including the media, with access to the exhibits and to permit the recording of the proceedings. Recently the Supreme Court of Canada affirmed that public access to hearings is protected by the freedom of expression provisions of the Canadian Charter of Rights and Freedoms. Any restriction to those rights need to be minimal in nature and justified by the requirements of the hearing process. While the two cases dealt with access to court hearings, the principles likely apply to tribunal hearings as well.

January 2011, Issue No. 152 – The Defence of Due Diligence

When can a practitioner defend a breach of standards on the basis that it was not done on purpose? Often this defence arises where a member’s support staff makes the error. The due diligence defence was explored in the Federal Court of Appeal decision in Office of Superintendant of Bankruptcy v. MacLeod, 2011 FCA 4.

2010

November 2010/December 2010, Issue No. 151
Regulating Technology

We like to say that technology does not affect one’s professional responsibilities. Most of the time that is correct. A record made on paper needs to contain the same information as electronic records. They need to be retained for the same period of time. They need to be edited in the same way (i.e., original entry is not destroyed, the change is clearly dated and identified as such). They need to be kept in a secure and confidential manner.

October 2010, Issue No. 150
Incapable Hearing Participants

What is the tribunal’s duty where a self-represented person does not appear to be capable (because of a disability) to participate in a hearing before a regulator? (This is to be distinguished from situations in which the participant is unskilled.)

August 2010, Issue No. 149
Expungement of Disciplinary Orders

Should a member who has had a clean record for ten or twenty years be able to put a discipline finding behind them? That was the issue discussed at the CLEAR[1] Conference in Nashville earlier this month. Sandra Johanson and Scott Majors of the Kentucky Board of Nursing would say yes.

[1]Council on Licensure, Enforcement and Regulation

July 2010, Issue No. 148
Effective Procurement Methods

In recent years, procurement of goods and services has become somewhat more confusing and technical. This is likely due to the fact that more organizations are now subject to formal procurement rules and unsuccessful bidders are suddenly, and vigorously, challenging the results.

June 2010, Issue No. 147
Charter Challenges Get More Challenging

In April’s edition of Grey Areas we discussed the handling of challenges under the Canadian Charter of Rights and Freedoms by administrative tribunals. A major theme of that article was that tribunals usually are required to rule on Charter issues that come before them. Earlier this month the Supreme Court of Canada expanded the role of tribunals inCharter cases even further.

May 2010, Issue No. 146
Quality not Quantity

The decision of the Ontario Court of Appeal in Law Society of Upper Canada v. Neinstein, 2010 ONCA 193 is relevant for regulators for a couple of reasons. It has already been the subject of comment.[1] Neinstein provides guidance on two recurring and difficult issues: adequacy of reasons for decision and the appearance of bias based on tribunal member misconduct outside of the hearing.

[1]Writing Reasons: A Difficult Task Attracting More and More Scrutiny, Bernard LeBlanc Professional Practice & Liability on the Net, 2010 – Vol 2 No 7.

April 2010, Issue No. 145
Charter Challenges: Grandstanding or Groundbreaking?

That was the title of the April 22, 2010 panel presentation hosted by the Federation of Health Regulatory Colleges of Ontario. Chaired by Brian Gover, the panel consisted of Janet Minor, from the Attorney General’s constitutional office, and two senior lawyers in private practice, Peter Griffin and Scott Hutchison.

March 2010, Issue No. 144
Lessons From Ontario’s New Rules

On January 1, 2010, the Rules of Civil Procedure of Ontario were significantly amended. Two of those amendments may be of interest to regulators.

February 2010, Issue No. 143
Zero Tolerance

Regulators sometimes like to say that they have “zero tolerance” for certain kinds of conduct. Part of the difficulty with this expression is that its meaning is unclear. Generally it suggests that every allegation is taken seriously. However, revocation only occurs for serious cases that are proved.

January 2010, Issue No. 142
Is ADR Illegal?

Many regulators use some form of Alternate Dispute Resolution (ADR) to address conduct concerns. These can take various forms, including negotiating Undertakings with members or presenting joint submissions in written form to a disciplinary tribunal. There has been general consensus that there is no need for explicit statutory authority to enter into or enforce consensual resolutions.

2009

November / December 2009, Issue No. 141
Malicious Prosecution

In deciding whether a regulatory body can be sued for its regulatory actions, the courts have to tread a fine line. If liability is readily established, there is a real risk that regulators will not do their jobs for fear of being sued. If regulators are immune from civil suit, they will have no incentive to ensure that they use their extraordinary powers reasonably.

October 2009, Issue No. 140
Human Rights Update for Regulators
“You’re soaking in it.” This retro throwback to Madge, of the Palmolive dish soap commercial fame, captured one of the main points made at a recent panel discussion for regulators.

September 2009, Issue No. 139
Piercing the Corporate Veil
With the increased prevalence of professional corporations, regulators are often concerned that their members may be able to avoid accountability by hiding behind their corporate structures. Sometimes the corporation may face consequences but the member may not. And sometimes even the corporation was not held accountable because no one could prove that a directing mind of the corporation authorized the misconduct

August 2009, Issue No. 138
Steering vs. Rowing
Perhaps the most debated aspect of governance is balancing the policy making and oversight role of the Board against the management and operational function of staff. Some of the debate is philosophical (e.g., how can the Board exercise effective monitoring and direction over an organization without entering into operations?). But most of the debate is about the characterization of an action as oversight vs. operational.

July 2009, Issue No. 137
The Fiduciary Duty of Board and Council Members
The Board or Council of a regulator acts in the capacity of the board of directors of a non-profit corporation. As such, each Board or Council member has a fiduciary duty to the organization and its public interest mandate.

June 2009, Issue No. 136
Governance 101
Governance is hot. Most scandals in the corporate or government world are characterized as examples of failed governance. Most reviews of regulatory bodies include numerous recommendations on improving governance. This article deals with just one aspect of governance: managing the key regulatory relationships.

May 2009, Issue No. 135
Self-Regulation Under Siege
Earlier articles of this newsletter have observed that Canada is one of the few remaining jurisdictions in the world still using the self-regulation model for professions and industries (see: www.sml-law.com, Grey Areas, issue No. 126). However, recent events in Ontario raise questions about the commitment to self-regulation in Ontario.

April 2009, Issue No. 134
The Accessibility for Ontarians with Disabilities Act
The Accessibility for Ontarians with Disabilities Act, 2005(AODA) received Royal Assent and became law in this province on June 13, 2005.[1] It has been almost four years since the AODA was enacted and, perhaps because of this, there has been little discussion in the regulatory community of the law’s impact since that time; at least until recently. There are, however, some pending deadlines and obligations that regulators should be aware of and may want to consider as part of their long-term operational planning.

[1]S.O. 2005, c. 11.

March 2009, Issue No. 133
Short Snappers
Set out below are brief summaries of a number of recent cases that will be of interest to professional regulators.

February 2009, Issue No. 132
Tribunal Participation in Hearings
Many members of regulatory hearing panels are quite cautious about actively participating in hearings. However, this is often done more out of the natural hesitation that comes from participating in an unfamiliar process than true appreciation of their limited role. Particularly where the issues relate to professional values or standards of practice, panel members may be tempted to intervene and ensure that counsel, who do not understand those issues, get it right.

January 2009, Issue No. 131
Disclosure of Discipline History
It is generally accepted that a regulator should disclose the “fruits of its investigation” in discipline matters. Disclosure can include information that is relevant only to the credibility of a witness. This raises the question of when regulators should disclose information about possible or actual misconduct by a potential witness at the discipline hearing. For example, if the investigator has been found to have acted inappropriately in another case, should that be disclosed? Or, what if a fact witness has a prior discipline history?

2008

December 2008, Issue No. 130
Public Reprimands
In late October the Federation of Health Regulatory Colleges of Ontario hosted a panel discussion entitled: “Reprimands: Private Peer Process or Public Spectacle” that considered the move by some regulators to conduct their reprimands in public.

November 2008, Issue No. 129
Interprofessional Collaboration
Professions can be competitive. We all know stories of disputes between professions that have had to be refereed by government. Sometimes they have even gone to court.

October 2008, Issue No. 128
Moving Back to Simplicity
For the past three decades, at least, there has been significant debate as to how compelling the evidence must be to make a finding of serious professional misconduct. While there has generally been consensus in Ontario, at least, that the criminal standard of proof (beyond a reasonable doubt) did not apply; that is about where the agreement ended.

September 2008, Issue No. 127
Investigative Powers
Can an investigator compel a practitioner to undergo an interview? Can the investigator require a practitioner to allow the investigator to watch the practitioner in action? On September 26, 2008, the Divisional Court of Ontario said yes in Gore v. College of Physicians and Surgeons of Ontario.

August 2008, Issue No. 126
The End of Self-Regulation of the Legal Profession in England
As of September 1, 2008, the Legal Services Board will be appointed for England and Wales. The Board will be the single independent oversight regulator of legal services in England . What is unique about the Board is that it is not wholly or even substantially selected by the legal profession. It is entirely appointed by the government.

July 2008, Issue No. 125
More Frequent Human Rights Challenges for Regulators
As of July 1, 2008, the human rights regime has been significantly altered. The changes will make it easier for practitioners and others to challenge regulators in human rights matters.

June 2008, Issue No. 124
Reasons Relief
If there has been one dominant trend in the judicial review of tribunal decisions over the past five years, it has been about the need for tribunals to give adequate reasons. This trend has been obvious to even casual readers of this newsletter.

May 2008, Issue No. 123
Freedom of Expression
Perhaps one of the most talked about discipline cases in recent memory is not going to the Supreme Court of Canada. This January’s Saskatchewan Court of Appeal decision in Whatcott v. Saskatchewan Association of Licensed Practical Nurses, 2008 SKCA 6 has generated widespread discussion across the country. At a recent meeting of regulators in Newfoundland, many were already familiar with the case and discussed its possible appeal to the Supreme Court of Canada. However, on May 29, 2008, that Court declined to hear the appeal.

April 2008, Issue No. 122
Deference in Judicial Review
A necessary component of effective professional regulation is appreciating that courts will scrutinize one’s actions. Regulators need to know on what basis a court will review its decisions. This will enable the regulator to make appropriate choices and to explain them appropriately.

March 2008, Issue No. 121
Privacy vs. Accountability
Practitioners often wonder why it seems that the rest of the world is receiving increased privacy of their personal information while their privacy is being reduced. The tendency is for regulators to retain information about their members for longer periods of time and to put increasing amounts of those details in the public register. Most public registers are now finding their way to the websites of regulators.

February 2008, Issue No. 120
The Role of Complainants
What is the role of the complainant in the complaints and discipline process? Regulators have been increasingly enhancing the complainant’s role ensuring that they understand the process so that they can participate effectively. More and more regulators have been providing disclosure of some of the materials arising from the investigation in order to obtain information from the complainant and to involve them.

January 2008, Issue No. 119
The Fairness Commissioner
If one had to choose the area of professional self-regulation that attracts the strongest feelings among the general public, it is probably the registration of international graduates. This subject garners significant ongoing media attention and regularly becomes an issue during elections.

2007

December 2007, Issue No. 118
Rumours
Regulators know the need to rely upon facts and evidence rather than rumours and gossip. However, a compelling “good story” is hard to resist. Recently there has been a tall tale circulating that a court required a regulator to register a convicted murderer on the basis that the applicant’s private life was irrelevant to the applicant’s registration.

November 2007, Issue No. 117
The Four C’s
Orientating new Council, Board or committee members is a crucial function for regulators. The task is complicated by the fact that these “volunteers” turn over regularly and not always at the same time of year. Orientation often involves a combination of in-person instruction, providing manuals and written materials, mentoring and offering a period of observation before the volunteer assumes his or her duties.

October 2007, Issue No. 116
Negligent Investigation
The Supreme Court of Canada is sending mixed signals about the liability of professional regulators. In 2001 it released a pair of decisions indicating that professional regulators would rarely if ever be held liable for negligence: Cooper v. Hobart, 2001 SCC 79, Edwards v. Law Society of Upper Canada, 2001 SCC 80. The court reasoned that imposing liability for negligence upon regulators would create a “chill” that might render regulators unable or unwilling to perform their mandate effectively for fear of being sued. The court was also concerned about second guessing policy and discretionary decisions.

September 2007, Issue No. 115
Corporate Reform
The Ontario government is in the process of reforming the Corporations Act. The Corporations Act applies to non-profit corporations in Ontario. Some regulators are incorporated under that statute. Even those that are not often look to that Act for guidance in corporate law and governance matters. The Corporations Act (CA) has not seen major reform for decades.

August 2007, Issue No. 114
Concerning Complaints
One frequent difficulty for complaints committees is dealing appropriately with complaints that raise concerns that are troubling but do not appear to warrant a referral to discipline. Indeed, many regulators try to avoid using the discipline process for minor behavioural (e.g., rudeness) or practice concerns (e.g., questionable exercises of professional judgment). Discipline tends to be reserved for serious matters of dishonesty, breach of trust or intractable incompetence.

July 2007, Issue No. 113
Informed Consent
Informed consent might be one of those principles that is honoured more in its breach than in its practice. A fundamental concept for all professions, client consent is essential to the professional relationship. Without it the trust necessary for the professional relationship to work is missing.

June 2007, Issue No. 112
Requirement to Release Reasons Rapidly
Professional tribunals are often notorious for taking a long time to give reasons for their decisions. There are a number of explanations for this including:

May 2007, Issue No. 111
Expert Evidence Part 2 – Hearing Process
“Expert Witness: Friend of the Court or Hired Gun” was the title of presentation put on last month for professional regulators by the Federation of Health Regulatory Colleges of Ontario. Previously Grey Areas reviewed the duty of neutrality for expert witnesses. In this issue we discuss how expert evidence is managed at a hearing.

April 2007. Issue No. 110
Expert Evidence Part I – The Expert’s Role
“Expert Witness: Friend of the Court or Hired Gun” was the title of presentation put on for professional regulators on April 26, 2007. The title reflected the main theme of the evening. To be effective, expert witnesses must be neutral, objective and fair.

March 2007, Issue No. 109
How Safe is Safe?
Consider the organization you work for. Does it do all of the following:
1. have a written policy setting out specific mandatory safeguards for ensuring privacy in all contexts where personal information is used;
2. leave no discretion to individuals as to the specific minimum safeguards needed to protect information on all mobile computing devices (like laptops, blackberries, flash drives);
3. require that personal information in all such devices be encrypted; and
4. have a monitoring program to ensure that there is compliance with the organization’s privacy policy?

February 2007, Issue No. 108
Investigative Discretion
There was a time when some regulators believed that if there were reasonable grounds to believe that a member had engaged in professional misconduct, the allegations had to be fully investigated and referred to a discipline hearing. Few regulators still hold that view today, but many are uncomfortable with the concept of how to exercise its discretion not to investigate or refer allegations of professional misconduct.

January 2007, Issue No. 107
Registration and Accommodation
Every so often a case comes along that fundamentally alters one’s approach to regulation. Siadat v. Ontario College of Teachers, 2007 CanLII 253 (ON S.C.D.C.) is probably such a case. As a result, many regulators will probably think of their registration requirements (and their human rights obligations) differently.

2006

December 2006, Issue No. 106
Self-Represented Members
Most regulators have experienced situations where a member facing inquiry or discipline has no lawyer. As ironic as it may sound, dealing with an unrepresented member often makes the regulator’s position more challenging. The member often does not fully understand the process. Great effort is needed to educate him or her about what will happen and the expectations of the member. The duty of fairness to the member is heightened.

November 2006, Issue No. 105
Investigation Powers
One of the more intrusive powers regulators have is to conduct investigations. Investigations result in the disruption of professional practices as documents are requested and witnesses interviewed. Investigations can become known to clients and the wider community as those asked to assist learn about the official inquiry. Those who are the subject of investigations often find it to be a stressful experience.

October 2006, Issue No. 104
Public Interest Mandate of Discipline: A Quaint Notion or the Real Deal?
The above topic was discussed at an evening presentation sponsored by the Federation of Health Regulatory Colleges of Ontario on October 18, 2006. The presenters were The Honourable Justice John Evans, (of the Federal Court of Appeal) and Professor Joan Gilmour (of Osgoode Hall Law School). Lawyer Brian Gover moderated the discussion.

September 2006, Issue No. 103
Litigation Privilege: Are Regulators At Increased Risk?
Earlier this month the Supreme Court of Canada released an important decision about the limits of the “litigation privilege”. The decision has raised concern that regulators will be at increased risk of civil liability. However, a close reading of the case indicates that it will have minimal impact on regulators.

August 2006, Issue No. 102
Competition Bureau Flexes Muscles Over Provincial Professional Regulators
For many years professional regulators felt that they were immune from review of their actions by the federal Competition Bureau. In two leading cases the courts had indicated that professional regulators had protection for their actions under the Regulated Conduct Doctrine (RCD).

July 2006, Issue No. 101
Implications of Disclosure Obligations for Investigators
Perhaps the most significant development for professional discipline in the past 15 years has been the disclosure revolution. Regulators generally have to disclose all potential evidence it possesses related to a discipline matter regardless of whether the evidence would help or hurt in the prosecution of the case and regardless of whether the regulator believes the evidence is accurate or not. Disclosure duties include information contained in files other than the investigation file itself. Disclosure should also be made of information that relates only to the credibility of witnesses (e.g., prior acts of dishonesty by the witness).

June 2006, Issue No. 100
Registering Applicants with Disabilities
It is well recognized that employers and regulators cannot discriminate on the basis of disability. Many employers and regulators even choose not to ask any questions about disabilities in the hiring or registration process for fear of appearing to discriminate on that basis.

May 2006, Issue No. 99
New Directions for Health Regulation
On May 19, 2006, the Minister of Health and Long Term Care released the report entitled New Directions written by his advisory Council. The Health Professions Regulatory Advisory Council (HPRAC) report recommends comprehensive changes to the statute that governs the 21 health regulatory Colleges.

April 2006, Issue No. 98
Formulating Sanctions
Coming up with the appropriate penalty (often called orders or sanctions to avoid the language from criminal proceedings) at a discipline hearing is challenging. Tribunals are told that a sanction is not a punishment and is not designed to exact revenge. Rather, such orders are intended to be protective and corrective.

March 2006, Issue No. 97
Discipline Penalties
One of the more difficult decisions made by professional regulators is imposing a penalty in discipline cases. (Many regulators use the word “sanction” or “order” to distance discipline from the criminal process.) It is very difficult for discipline committees to assess what sanction is appropriate in a particular case. Two recent decisions of the Ontario Divisional Court have demonstrated a deference to discipline orders imposed by tribunals, at least where the tribunal gives good reasons.

February 2006, Issue No. 96
The Adversarial System
The concept of the adversarial system of justice is easy to understand but difficult to apply. It is an idea that originated in roughly the same era as the ideology of capitalism. The theory is that if everyone is permitted to act in their own self-interest, the resulting energy released will advance the whole process so that everyone benefits. Other philosophies, or so it is argued, that rely on people acting for the good of others, is so contrary to human nature that they are bound to involve short cuts that result in a stifling of initiative. No one benefits.

January 2006, Issue No. 95
Mandatory Reporting Obligations
Due to a recent decision of the Supreme Court of Canada, regulators may have to educate practitioners about their legal protections when making a mandatory report.

2005

December 2005, Issue No. 94
Zenner – Continuing Education and Jurisprudence Exam Requirements
Last week the Supreme Court of Canada issued a rare decision dealing with professional regulation matters that were not related to discipline: Zenner v. Prince Edward Island College of Optometrists, 2005 SCC 77. The case provides important guidance on registration and quality assurance processes.

November 2005, Issue No. 93
Registration Appeals Processes Review
In September of 2004 Mr. Justice George M. Thomson was commissioned to review and make recommendations on the registration appeals process for self-regulating professions in Ontario. His final report was delivered earlier this month. The report did not confine itself to registration appeals matters and looked at a number of pre-appeal registration matters as well. While the report is too long to summarize in this article, the following are some of the more interesting recommendations.

October 2005, Issue No. 92
Canadian Judicial Council Access to Information
The Canadian Judicial Council (CJC) consists of the leaders of the superior courts across Canada. It is best known for dealing with complaints about the conduct of judges. However, it also engages in policy development “to promote efficiency and uniformity, and to improve the quality of judicial service” across Canada.

September 2005, Issue No. 91
Sixty Six Days and Nights
Can you imagine sitting through a hearing that lasts 66 days? The Discipline Committee in the case of Sigesmund v. Royal College of Dental Surgeons of Ontario, 2005 CanLII 27325 (ON S.C.D.C.) did just that. The 66 days were spread over a period of four years. Of the hearing days, 44 were devoted to hearing the evidence of the regulator’s expert witness and 16 days were spent hearing the defence expert.

August 2005, Issue No. 90
Law Society Tribunals Task Force
The May 2005 Report of the Tribunals Task Force of the Law Society of Upper Canada is important reading for regulators. It provides a current consideration of the policy issues involved in self-regulating professions in an age of heightened accountability. Others have already discussed the major recommendations of that Report (See Administrative Law and Practice Points at: www.sml-law.com/publications/newsletters-detail.asp?DocID=5320.) This article will examine some of the less prominent recommendations that deserve debate.

July 2005, Issue No. 89
Remedial Orders
Professional regulators often make orders or enter in agreements to resolve concerns about a member’s conduct. Sometimes these are called sanctions and sometimes even penalties (although this is discouraged because this language reinforces the misconception that professional regulation is quasi-criminal in nature). These orders or agreements can arise during the screening phase of an investigation (e.g., a complaints or investigation committee disposition), discipline or professional conduct hearings, notices of proposals to restrict registration or even in quality assurance processes.

June 2005, Issue No. 88
Crown Policy Manual – Part 2
Last month we noted that earlier this spring the Attorney General of Ontario put its Crown Policy Manual on its website. The Manual is the overriding guiding document used by Crown Attorneys in their prosecution of criminal cases. While professional regulation is not criminal in nature, some aspects of the Crown Policy Manual may provide useful ideas for regulators of professions.

May 2005, Issue No. 87
Crown Policy Manual
Earlier this spring the Attorney General of Ontario put its Crown Policy Manual on its website. The Manual is the overriding guiding document used by Crown Attorneys in their prosecution of criminal cases. While regulators steadfastly resist the notion that its enforcement proceedings are criminal in nature, the courts have frequently made analogies to the criminal process in considering the principles that apply to some aspects of enforcement proceedings. Reviewing this document can identify some of the similarities and differences between professional regulators and our criminal justice system.

April 2005, Issue No. 86
Police Regulation Proposals
On April 25, 2005 the Honourable Mr. Justice LeSage, Q.C., former Chief Justice of the Superior Court of Ontario released his report on the regulation of police in Ontario. The media focused on the politically sensitive matter of whether Ontario should return to the civilian regulation of police (he said yes). However, there are a number of other proposals he made that may be of interest to other regulators.

March 2005, Issue No. 85
What’s In a Name
Does it matter how your enabling statute labels your process of looking into the conduct of a practitioner? Does anything flow from the use of “investigation” rather “inspection”? What about “inquiry” or “assessment”? How about “review”, “examination”, “inquest” or “inquisition”? What does it say about our society that there are almost as many words for this legal process as the Inuit have for “snow”?

February 2005, Issue No. 84
Retrospectivity
The enabling legislation of regulators is constantly being amended. Often questions arise over whether members can be held accountable for their conduct prior to the legislation being amended. This question is particularly relevant where it is not practical to use the old legislation to take action.

January 2005, Issue No. 83
Stop the Interruptions!
It is tempting for a practitioner facing a proceeding to challenge the legitimacy or fairness of it in court beforehand. Such a challenge can avoid a long hearing and the publicity that might accompany it. It can help preserve the practitioner’s reputation that he or she believes might be damaged if the hearing proceeds to its conclusion. It is not uncommon for a practitioner facing a regulatory proceeding to feel that he or she was not treated with complete fairness. In some cases there may be some tactical reasons for trying to put the regulator on trial first: the best defence is a good offence.

2004

December 2004, Issue No. 82
Privacy of Business E-mail Addresses
The most fundamental concept in privacy is “personal information”. Only personal information is protected. The definition of personal information is key to applying the legislation. That is why definitions of that term in privacy statutes tend to be fairly broad. In the Personal Information Protection and Electronic Documents Act (PIPEDA), personal information is defined as follows:
“personal information” means information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization.

November 2004, Issue No. 81
Too Much Transparency?
Since regulators act in the public interest there is an expectation that there be a certain degree of openness and transparency in their processes. For example, for many years now most Discipline Committees have held their hearings in public even though this would reveal allegations of wrongdoing against a practitioner before any finding has been made. The rationale is that these very serious proceedings require public scrutiny to help ensure that they serve the public interest. In addition, before a case is referred to discipline there has been a screening of the allegations to ensure that they warrant a hearing and that there is evidence in support of them.

October 2004, Issue No. 80
When Council / Board Members Misbehave
Occasionally one reads a court case and wonders about the full story. Manitoba Chiropractors Assn. v. Alevizos, 2003 MBCA 80 is such a case. Ostensibly the case was decided on the point that a regulator cannot seek judicial review against itself without statutory authority. However, the really interesting issue is the underlying conduct leading to the hearing.

September 2004, Issue No. 79
Using Court Injunctions
Regulators want to achieve compliance. To do so regulators have a number of tools at their disposal. One of the more underutilized tools possessed by many regulators is to ask the courts for an injunction (also called a mandatory compliance order or a restraining order). Given the power of this tool and some of its procedural advantages, one would think that it would be used more often.

August 2004, Issue No. 78
Giving Reasoned Reasons
Tribunals generally give reasons for their decisions. Sometimes this is required by their enabling statute. On other occasions tribunals give reasons automatically out of a sense of fairness to the parties. Regulatory decisions that, in the past, did not usually involve the giving of reasons are now often accompanied by reasons (e.g., registration decisions, quality assurance rulings). In addition, new privacy obligations often require the giving of reasons for many decisions, such as refusing access to a record or refusing to make a “correction” requested by an individual.

July 2004, Issue No. 77
Confidentiality of Legal Advice to Regulators
Regulators often receive legal advice. Like most clients, they frequently want to receive their legal advice in private. If the legal advice were disclosed, regulators might be hesitant to ask the question for fear that simply asking it might be misinterpreted or make the regulator look bad. For example, how do you ask the question “Can we be sued for this mistake?” publicly?

June 2004, Issue No. 76
The Price of Delay and Ignoring a Member’s Prior History
A common criticism of regulators is that they take too long to act. The June 10, 2004 Supreme Court of Canada decision of Finney v. Barreau du Québec, 2004 SCC 36 indicates that regulators might be held liable for damages when they take too long to act in an urgent case. A delay of just one year might attract liability in some circumstances.

May 2004, Issue No. 75
Chipping Away at Privacy Rights?
It has long been suspected that the courts would “interpret” the federal privacy statute to reduce the impact of its broad language. Indeed, if some of the provisions of the Personal Information Protection and Electronic Documents Act (PIPEDA) were interpreted literally a number of absurdities would result. With the application of PIPEDA to the provincial private sector this year, it was only a matter of time until the judicial interpretations began.

April 2004, Issue No. 74
Types of Standards and Guidelines
Most regulators publish various forms of standards and guidelines for their members. In the March 2004 issue of Grey Areas we reviewed the legal status of such documents. In this issue we identify the various categories of such publications. The categorization is significant because it affects the content of the publication and the types of language that should be used.

March 2004, Issue No. 73
The Legal Effect of Standards and Guideline
Most regulators publish informal documents for their members. These documents can be called standards of practice, guidelines, codes, practice parameters, or position statements. Typically, these informal documents provide assistance to members in areas of practice, ethics, regulator expectations or even legal developments.

February 2004, Issue No. 72
Registering Applicants With Prior Bad Conduct
For most regulators it is relatively easy to assess whether an applicant for registration meets the educational, examination and experience requirements. Even where those issues are complex, such as for some non-Canadian trained applicants, the regulator generally has the expertise to do the analysis. More difficult for regulators is where an applicant has previously engaged in unprofessional or dishonest behaviour but now wishes registration. How does the regulator assess such issues?

January 2004, Issue No. 71
Regulators In The Media
In the past week two major papers ran editorials about the regulation of professions. These editorials illustrate the awkward relationship between the media and professional regulators. Both purport to act in the public interest. Both have a “watch dog” function (even if the media’s is self-appointed). Both the media and regulators have valuable roles to play in safeguarding and protecting our complex modern society.

2003

December 2003, Issue No. 70
Duty To Warn
The duty of a practitioner to warn clients and third parties of risks has evolved over the past three decades. It may soon evolve, at least in some professions, to a duty to warn clients, affected third parties and the regulator of any significant errors made by the practitioner.

November 2003, Issue No. 69
Federal Government Involvement in Professional Regulation
Ordinarily, professional regulation and industry self-management is a provincial responsibility. It is rare for the federal government to have direct involvement in these matters. However, in recent weeks, the feds have become involved in two initiatives that will have significance, directly or indirectly, for many regulators. The first relates to the impact of the Personal Information Protection and Electronic Documents Act on investigations by regulators. The second relates to the setting of entry-to-practice standards by regulatory bodies.

November 2003, Issue No. 69
Participation du gouvernement fédéral à la réglementation des professions
Habituellement, la réglementation des professions et l’autogestion de l’industrie sont de responsabilité provinciale. Il est rare que le gouvernement fédéral participe directement à ces questions. Toutefois, au cours des dernières semaines, des représentants fédéraux ont pris part à deux initiatives qui auront d’importantes répercussions, directes ou indirectes, sur bon nombre d’organismes de réglementation. La première a trait à la Loi sur la protection des renseignements personnels et les documents électroniques et à son incidence sur les enquêtes menées par les organismes de réglementation. La deuxième porte sur l’établissement de critères d’accès à la profession par les organismes de réglementation.

October 2003, Issue No. 68
Becoming Friends of the Court
Sometimes when a court feels it is not hearing representations from an important perspective on an issue, it will invite others to participate in the hearing. When this request is formally made, the person is often said to act as a “friend” of the court. This friend will make submissions from the perspective that is missing from the case. In light of two recent cases, regulators can be expected to be invited to become friends of the court more often in the future. In the first case, this participation makes sense. However, in the second case, the request raises questions as to whether the involvement is part of the proper role of the regulator.

September 2003, Issue No. 67
Essential Websites for Regulators
One of the greatest resources for information for regulators is the internet. A number of websites are so useful that they should be bookmarked by everyone involved in the regulation of a profession or an industry. While the websites discussed in this article are directed towards Ontario regulators, many will be useful for regulators outside of Ontario or will point to corresponding websites within their own jurisdiction.

August 2003, Issue No. 66
Safeguarding Personal Information
One of the more significant requirements of the new privacy legislation is the need to safeguard personal information. The Personal Information Protection and Electronic Documents Act(PIPEDA), which takes effect on January 1, 2004, requires organizations to secure personal information from unauthorized access, disclosure, use or tampering.

July 2003
Le vrai intérêt public peut-il se lever?
C’est un truisme de dire que les organismes de réglementation protègent l’intérêt public. Habituellement, un organisme de réglementation professionnel a pour mandat de réglementer la qualité et l’aspect éthique de la pratique de la profession afin de servir et de protéger l’intérêt public. La difficulté réside dans l’application de ce concept général aux décisions quotidiennes de l’organisme.

July 2003, Issue No. 65
Will The Real Public Interest Stand Up
It is a motherhood statement that regulators protect the public interest. A typical mandate for a professional regulator is that it regulates the quality and ethical aspects of the practice of the profession so that the public interest is served and protected. The difficulty is in applying that general concept to the everyday decisions of the organization.

July 2003, Issue No. 65 (en francais)
Où se situe le véritable intérêt public
C’est bien connu, les autorités de réglementation protègent l’intérêt public. Un mandat typique pour un organisme professionnel de réglementation consiste à régir les aspects qualitatifs et déontologiques de l’exercice de la profession afin d’assurer et de protéger l’intérêt public. La difficulté réside dans l’application de ce concept aux décisions courantes de l’organisation.

June 2003, Issue No. 64
Mandatory Revocation for Sexual Abuse Found to be Constitutional
One of the most controversial aspects of the sexual abuse provisions for health professionals in Ontario is the mandatory revocation of registration for those who engage in frank sexual acts with patients. In fact, at least one Discipline Committee declined to order revocation on the basis that it was “constitutionally inoperative” on the facts of that case. Also, in A.B. v. College of Physicians and Surgeons of Prince Edward Island (2001), 204 D.L.R. (4th) 750, the P.E.I. Supreme Court found that the mandatory revocation provision was constitutionally over-inclusive.

May 2003, Issue No. 63
What Every Practitioner Needs to Know About Privacy Legislation
Over the past few years, there has been a lot of confusion about privacy legislation. Who does it apply to? When is it really coming? How much impact will it have? Busy practitioners need to know what privacy legislation means for them. While there remains a fair degree of uncertainty, the outlines of what is going to happen are now becoming clearer.

April 2003, Issue No. 62
The Importance of Reasons for Decision
It is not very often that professional regulators have decisions from the Supreme Court of Canada to guide them. Earlier this month, the Supreme Court issued two companion decisions dealing with the amount of deference that appellate courts ought to give to decisions of discipline committees. While regulators will take comfort from the Supreme Court’s general approach of deference to disciplinary decisions, the most significant point is the importance of the reasons for decision of tribunals.

April 2003, Issue No. 62
L’importance des motifs d’une décision
Il n’arrive pas souvent que des organismes de réglementation de professions disposent de décisions de la Cour suprême du Canada pour les guider. Plus tôt ce mois-ci, la Cour suprême a rendu deux décisions connexes portant sur la déférence que les cours d’appel devraient accorder aux décisions de comités de discipline. Bien que les organismes de réglementation apprécieront l’opinion de la Cour suprême concernant la déférence générale qui devrait être accordée aux décisions de comités de discipline, le point crucial ici est l’importance des motifs de la décision des tribunaux.

March 2003, Issue No. 61
Adjournments
Having to adjourn hearings at the last minute is disruptive and costly for regulators. The tribunal members have booked time from their busy practices or other involvements, often at significant personal expense. Witnesses have often prepared themselves mentally and emotionally for testifying; it may be difficult for them to abruptly discontinue the process and then gear up again. Travel expenses, per diems, space rental fees, court reporter cancellation fees, and wasted legal preparation time expenses can add up to significant amounts. All of this creates an organizational bias against consenting to last minute adjournments.

February 2003, Issue No. 60
Get Ready for Privacy Legislation in 2004
In a true story reported in the media in late February, a patient had a mammogram and pelvic examination. The laboratory in Ottawa forwarded the reports to the treating practitioner. A few weeks later, a copy of the reports showed up on the back of flyers distributed in Toronto for a real estate company. How did it happen? The investigation to date suggests that the hospital forwarded the results to a law firm in Toronto at the request of the patient. Paper picked up from an office building in Toronto was sold to a printer who used the scrap paper for a test run of the flyers. The test run was shipped with the rest of the flyers and distributed to the public. The Ontario Information and Privacy Commissioner said an investigation could not be initiated because the federal Privacy Act does not yet apply. However, the situation would be very different in 2004.

February 2003, Issue No. 60
Législation relative à la protection de la vie privée en 2004
Voici une histoire vraie qui a paru dans les médias à la fin de février. Une patiente a subi une mammographie et un examen pelvien. Le laboratoire à Ottawa a envoyé le rapport des tests au praticien traitant. Quelques semaines plus tard, on a retrouvé un exemplaire du rapport imprimé à l’endos de circulaires distribuées à Toronto pour une société immobilière. Comment cela s’est-il produit? L’enquête réalisée jusqu’à date suggère que l’hôpital a envoyé les résultats à un cabinet d’avocats de Toronto à la demande de la patiente. Ensuite, du papier a été ramassé dans un édifice à bureaux de Toronto pour être vendu à un imprimeur qui l’a utilisé comme brouillon pour réaliser un essai d’impression des circulaires. Les brouillons ont été envoyés avec le reste des circulaires et distribués à la population. Le commissaire à l’information et à la protection de la vie privée de l’Ontario[1]a déclaré qu’une enquête ne pouvait pas être réalisée parce que la loi fédérale sur la vie privée n’était pas encore en vigueur. Cette situation serait toutefois très différente en 2004.

January 2003, Issue No. 59
Privacy of Personal Information – Part 1: Implications for Regulators
Perhaps one of the most significant legal changes affecting the regulation of professions and industries is the imminent arrival of privacy of personal information legislation. It has been known for some time that a new law regulating the collection, use and disclosure of personal information would take effect on January 1, 2004. What is not known is which law it would be and what exactly it would require.

2002

December 2002, Issue No. 58
Performance Audit of the Public Complaints Process of Toronto Police Services – Part 2
The Toronto Police Services Board requested an independent audit of the public complaints process of the Toronto Police Services by the City Auditor for Toronto. The auditor’s report was released in August of 2002. In this article, we examine the findings and recommendations on the actual investigations of public complaints.

November 2002, Issue No. 57
Performance Audit of the Public Complaints Process of Toronto Police Services – Part 1
There are few areas of professional regulation as difficult and controversial as that of police services. The pressure to set aside self-regulation for the handling of complaints is probably greatest for the police profession. Perhaps in recognition of that reality, the Toronto Police Services Board requested an independent audit of the public complaints process of the Toronto Police Services by the City Auditor for Toronto. The auditor’s report was released in August of 2002, although it received the greatest media notice when discussed at the Police Services Board meeting in November.

October 2002, Issue No. 56
Discrimination Against Foreign-Trained Applicants
Most regulators have great difficulty in balancing the need to ensure that all applicants for registration or licensure demonstrate entry-level competence and facilitating equitable access to foreign trained applicants. There is the practical problem that regulators usually understand the local educational programs but are unfamiliar with most foreign training programs. Most accreditation bodies are only national or North American in scope. More difficult is the fact that the educational approach taken in some foreign training programs is completely different than that taken in Canada, making comparisons difficult.

September 2002, Issue No. 55
Technical Defences Don’t Work in Discipline Cases
Discipline cases have often been compared to criminal prosecutions where technical defences often seem to be successful, at least if the media reports are to be believed. While courts do scrutinize discipline proceedings carefully and will reverse a decision where it appears an injustice has occurred, there still remains a high degree of deference for the self-regulatory process. The decision in Krop v. College of Physicians and Surgeons of Ontario (unreported, Jan. 30, 2002, Ont.Div.Ct.) illustrates this point.

August 2002, Issue No. 54
Reforms to the Regulation of Chartered Accountants – Part 2
The last issue of Grey Areas reviewed reforms by the Institute of Chartered Accountants of Ontario (ICAO) to its definition of professional responsibility and the structure of its discipline process. This issue reviews the reforms of the ICAO as to how complaints are investigated and prosecuted.

July 2002, Issue No. 53
Reforms to the Regulation of Chartered Accountants – Part 1
Almost a year and a half before the Enron scandal erupted, the Institute of Chartered Accountants of Ontario (ICAO) initiated a major review of its disciplinary process. It released the results of that review in May of this year.

June 2002, Issue No. 52
Commencing Hearings and Quality Assurance Processes
Two quite recent decisions deal with the initiation of proceedings. It is not surprising that members often challenge the initiation of proceedings because, if the commencement of the proceedings was faulty, everything that occurs afterwards is invalid. In both cases, the member was unsuccessful.

May 2002, Issue No. 51
Regulating Telepractice
Since developments in technology are ongoing, regulators must ensure they are aware of these developments, determine whether they have an impact on regulation and, if they do have an impact, how should they be addressed. This will often require providing information and guidance to their members and possibly also to the public. Telepractice or telehealth, defined by Industry Canada as “the use of communications and information technology to deliver health and health care services and information over large and small distances”, is not a new development as it has occurred in a variety of forms for over 30 years. Telepractice has a lot of benefits and advantages associated with it for professionals and members of the public but it also poses many legal challenges which must be addressed by regulators.

April 2002, Issue No. 50
Expanded Immunity for Regulators from Civil Liability
In November of 2001, the Supreme Court of Canada indicated that regulators usually cannot be found liable for negligence in the conduct of their regulatory responsibilities: Cooper v. Hobart, 2001 SCC 79, and Edwards v. Law Society of Upper Canada, 2001 SCC 80. On April 22, 2002, the Ontario Court of Appeal has applied those decisions in a way that provides expanded protection for regulators from civil liability.

March 2002, Issue No. 49
Flexibility In Investigations
As the complaints and discipline processes become increasingly legalized (and in many cases criminalized), self-regulators have faced reduced flexibility in dealing with misconduct concerns. For example, must the investigation and screening process follow a set procedure in every case? A recent decision of the Ontario Divisional Court has restored confidence that courts will permit some leeway in the handling of such matters. On March 8, 2002, Ontario’s second highest court decided Butterworth and College of Veterinarians of Ontario.

February 2002, Issue No. 48
Complaints Cases That Have Withstood the Test of Time
What are the three most significant cases on how to handle a complaint? After pondering that question, it was interesting that in our selection two of the cases are more than 20 years old and the other is 10 years old. Also, none of these decisions come from the Supreme Court of Canada or from a Court of Appeal. All three cases are from the Ontario Divisional Court, which specializes in appeals and reviews from administrative tribunals.

January 2002, Issue No. 47
Media Relations and Crisis Management
One of the prime methods of public accountability for regulators is through the media. It is impractical for the public to be kept informed of regulatory issues through word of mouth. Regulatory publications and newsletters are normally sent only to their members. Websites require significant initiative by the public. Even the public interest as represented by the Legislature and the government respond to news media reports as often as they instigate their own scrutiny of regulatory action.

2001

December 2001, Issue No. 46
Freedom of Association
One of the fundamental freedoms under the Charter of Rights and Freedoms is the freedom of association. The implication of this freedom for professional and industry regulators has yet to be explored in any detail. Most of the cases dealing with this protection to date have reviewed restrictions on multi-provincial law firms (see for example: Black v. Law Society of Alberta (1989), 58 D.L.R. (4th) 317 (S.C.C.).

November 2001, Issue No. 45
Liability of Regulators for Negligence
Regulators are being sued with increasing regularity. In the last few years, there have been a number of cases that assailed the traditional protection offered to regulators. Some of the arguments distinguishing past immunity cases have been quite creative. However, on November 16, 2001, the Supreme Court of Canada released two decisions that will make it difficult for these new assaults on regulators to succeed unless bad faith is shown. In Cooper v. Hobart, 2001 SCC 79, and Edwards v. Law Society of Upper Canada, 2001 SCC 80, the Court rendered unanimous judgments dealing with the issue of the liability of professional and industry regulators.

October 2001, Issue No. 44
Transparency
“Transparency” is one of the leading buzzwords in regulation today. However, regulators who treat it as simply a meaningless term may be in for a surprise.

September 2001, Issue No. 43
Fighting Sexual Abuse Through Legislation
Ever since the Final Report of the Task Force on Sexual Abuse of Patients in November of 1991, governments have been trying to use legislation to prevent and more effectively prosecute sexual abuse within professions. That Task Force Report resulted in sweeping amendments to the Regulated Health Professions Act with the express goal of eradicating sexual abuse in the health professions. Three very recent developments demonstrate both the determination and difficulties of doing so.

August 2001, Issue No. 42
Regulation of Training Programs
The relationship between regulating the entry into a profession or industry and the regulation of the training programs leading to entry has always been a delicate one. The regulator controls which training programs will be accepted for new applicants to the profession or industry. However, it is the responsibility of the educational institution (usually a university or community college) to provide the program. (Very few examples remain where the regulator actually operates the training program.)

July 2001, Issue No. 41
Court Guidance on Quorum and Bias
In a recent Division Court decision, the courts have given guidance to regulators on some common issues arising at discipline hearings. This case will be of particular interest to tribunals that sit with their minimum number as a cost saving strategy but worry about the consequences of losing a tribunal member.

June 2001, Issue No. 40
Sex Offender Registry – Implications For Regulators
On April 23, 2001, Christopher’s Law (Sex Offender Registry), 2000, came into effect. This legislation created Canada’s first mandatory provincial registry of convicted sexual offenders. The words “offender” and “sex offence” are defined in the Act and they relate only to criminal convictions under the Criminal Code. Therefore, a person who was found guilty of professional misconduct by his or her regulator for sexual relations or touching with a patient or client would not be included in the sex offender registry, unless they were also convicted under the Criminal Code. In addition, the Act makes it clear that the public cannot have access to the sex offender registry; access is only granted to the municipal or provincial police.

May 2001, Issue No. 39
Complaints Against Regulators
Regulators are in the business of dealing with complaints. Usually this means dealing with complaints against members. However, occasionally complaints are made against the regulator itself. Regulators should have a process in place to deal with complaints against its conduct, practices or processes promptly or effectively. Otherwise, others (e.g., the media, government) may take it upon themselves to pick up the cause.

April 2001, Issue No. 38
Practice Advisory Services
Many regulators and professional associations have introduced or are considering expanding their practice advisory services. A practice advisory service is a system to answer questions by practitioners who call or email with a problem in their practice. The advice is usually practical. Except for the cost involved, such a system for assisting practitioners to avoid or remedy problems in their practice is a win-win situation. The public interest and the professional self-interest are identical.

March 2001, Issue No. 37
Improving the Complaints, Investigation and Discipline Process
With the increase in the number and complexity of complaints that regulators receive about its members, delay in investigating and prosecuting these complaints is a big concern for regulators. Regulators are concerned that their Discipline Committees or even the Courts will stay or dismiss complaints if there has been an excessive delay. For the Law Society of Upper Canada (“LSUC”), this concern became a reality when the Discipline Committee granted a stay of the complaints in the Baker case as a result of unreasonable delay in the investigation and prosecution of Mr. Baker. The Discipline Committee concluded that this delay resulted in serious prejudice to the solicitor’s ability to make full answer and defence.

February 2001, Issue No. 36
Regulator Decisions Upheld by Courts
Three recent cases by the Divisional Court have upheld the decisions of the Executive Committee, the Discipline Committee and the Registrar of the College of Physicians and Surgeons of Ontario pertaining to discipline. If these decisions are any indication, the courts may once again be giving greater deference to regulators administering the discipline process.

January 2001, Issue No. 35
Confidentiality and Conduct Agreements for Regulators
A recent trend among regulators is to require all appointees or elected members of Councils, Committees or Boards to sign confidentiality or conduct agreements. The advantage of such agreements include the following:…

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