January 4, 2012

2011 Professional Regulatory Round-up

Administrative Law
Human Rights
Inquiry and Investigations
Professional Regulation
Registration and Fitness

Looking back, the professional regulatory cases in 2011 reveal some major themes: applicant character and fitness; regulatory processes and human rights; impartiality of adjudicators and regulatory staff; and decision-making, including adequacy of reasons. The cases in these areas remained relatively consistent with previous decisions, but with some expansion, or at least clarification, of some human rights issues such as concurrency of proceedings, consent to discrimination, and costs against regulators.

Here are our top picks for key professional regulatory cases in 2011.

1. Fitness and good character

This year saw an increase in fitness cases, with the question at the forefront of these cases being this: What does it mean to be of sufficient good character to be a professional? The precise meaning of good character will always be an elusive concept, and will depend on the facts of each case. Vincent is a helpful case for regulators, however, because it signals that courts are willing to uphold bylaws that equate particular behaviour with a lack of good character: Vincent v. Law Society of Upper Canada, 2011 ONSC 476. The takeaway: consider bylaws that deem specific behaviour to be evidence of bad character that may bar entry to the profession. This may save a regulator from a protracted and expensive legal battle on what constitutes bad character. To read a summary of Vincent, click here. To read more about good character, click here.

2. Human rights and regulatory bodies

2011 also saw a good deal of activity relating to human rights intersecting with professional regulation. For example, the Human Rights Tribunal confirmed that regulators can discriminate against applicants and registrants by imposing limits, conditions or other discipline, even where those measures are achieved through consensual agreements. The Tribunal may treat a discriminatory agreement as less than consensual based on a power imbalance or a mistake of fact, or discriminatory in any event, as suggested in Duvall v. College of Dental Surgeons of British Columbia, 2011 BCHRT 236, and in Fossum v. Society of Notaries Public of British Columbia, 2011 BCHRT 310, as well as Gichuru v. Law Society of British Columbia, 2009 BCHRT 360.  To read a summary of Duvall, click here. For a summary of Fossum, click here. For a summary of Gichuru (2009), click here.

A number of cases also addressed when a matter of discrimination should be addressed before a discipline tribunal, a review or appeal body, or a human rights tribunal. For example, the BC Court of Appeal found that while a disciplinary panel of the BC Veterinary Medical Association (now the College of Veterinarians of BC) had jurisdiction to address asserted racial discrimination by the panel as a matter of bias, the tribunal could decline to address that issue as it was already before the Human Rights Tribunal. In the circumstances, the existing complaint before the Human Rights Tribunal was the place where the member should raise the issue of bias: Bajwa v. British Columbia Veterinary Medical Association, 2011 BCCA 265 (June 13, 2011).  To read a summary of Bajwa, click here.

In a first appeal decision in Trozzi, an Ontario court found that the Ontario Human Rights Tribunal could address a complaint of discrimination even though that discrimination had been raised and rejected as a review matter before the Ontario Health Profession Appeal and Review Board. In a further decision, however, the Ontario Divisional Court found that the Ontario Human Rights Tribunal should have declined to consider a matter already addressed by a review body with jurisdiction to consider whether a regulator has complied with human rights requirements: College of Nurses of Ontario v. Trozzi, 2011 ONSC 4614 (full case here), reversing 2010 HRTO 1892 (summarized here) and also 2011 ONSC 3659. The Supreme Court of Canada took the same approach to a “collateral appeal” to the B.C. Human Rights Tribunal in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (full case here).

When a review or appeal body has not already addressed a matter of discrimination by a regulator on a prohibited ground, that discrimination may be addressed by a human rights tribunal, exposing the regulator to a potentially significant compensation award. This exposure to a compensation award was illustrated in Gichuru v. The Law Society of British Columbia, 2011 BCHRT 185, where the B.C. Human Rights Tribunal quantified the impact of discrimination on a complainant which delayed his membership in the profession. To read a summary of Gichuru, click here.

3. Impartiality of adjudicators and regulatory staff

Discipline committees are adjudicators that must maintain impartiality, which includes staying uninfluenced by regulatory staff. 2011 saw a discipline proceeding being permanently quashed by an Ontario court in Lim v. Assn. of Professional Engineers of Ontario, 2011 ONSC 106 (Divisional Court), where the regulator’s Manager was acrimonious and hostile to a respondent, and where the Chair of the Discipline Committee improperly adopted the Manager’s views on an issue as his own, thereby bringing the Committee’s impartiality into question. To read a summary of Lim, click here.

In contrast, an assertion by a regulator of a reasonable apprehension of bias against an adjudicator of the Human Rights Tribunal, during a complaint by a group of Indo-Canadian veterinarians against the College of Veterinarians of BC, failed dramatically in Brar v. College of Veterinarians of British Columbia, [2011] B.C.J. No. 701 (B.C.S.C.).  To read a summary of Brar, click here.

Normally, regulatory personnel are immune from lawsuits. Additional protection arises from the BC Health Professions Act, and the Ontario Registered Health Professions Act, preventing personnel from being compelled to give evidence in judicial proceedings, and prevents related records from being compellable in judicial proceedings  (except proceedings under the HPA or RHPA). The inadmissibility of such documents operated to deprive a litigant of evidence to support a civil claim in Deep v. College of Physicians and Surgeons of Ontario, 2011 ONCA 196. To read a summary of Deep, click here.

4. Decision-making and reasons

In 2011, courts added to the law surrounding extraordinary action by regulators. For example, the courts have re-confirmed that requirements of procedural fairness extend to decisions of regulators to impose interim conditions or suspensions pending investigation or discipline hearing.

In Stelmaschuk, a court found extraordinary action under the BC Health Professions Act to be invalid where a regulator could not establish an urgency that would justify a lack of sufficient notice to a registrant as to the issues an Inquiry Committee would be considering, i.e., interim conditions versus an interim suspension, or a lack of opportunity for the registrant to make submissions: Stelmaschuk v. The College of Dental Surgeons of BC, 2011 BCSC 518 (S.C.). As the complainant in that case used materials obtained in a court case as part of the complaint, the court also opined that the regulator had to seek leave of the court to use documents that the complainant was restricted from using for non-court purposes pursuant to an implied undertaking to the court. The court referred the matter back to the Inquiry Committee, with the registrant to have an opportunity to make submissions on the need for interim conditions versus an interim suspension. To read a summary of Stelmaschuk, click here.

Furthermore, even if committees act fairly, they must also show themselves to be acting reasonably in their reasons for decision. Adequacy of reasons is itself a matter of procedural fairness. Fairness requires an explanation that allows a review court to scrutinize a decision to ensure it is reasonable: Aris v. Ontario College of Teachers, 2011 ONSC 1202 (Ont.Sup.Ct.). In that case, a primary school teacher was charged with possession of child pornography and released on bail conditions which prohibited him from attending any school or holding a position of trust for a child of less than 14 years. His teaching contract also prohibited him from taking a teaching position with an employer other than his school board. Although the Executive Committee of his college suspended the teacher’s certificate on an interim basis, its reasons did not support the suspension as being reasonable, as the reasons failed to show how the committee decided a suspension was required to protect students. In fact, no evidence supported exposure of students to actual or likely harm or injury given the bail conditions and the teacher’s employment conditions. To read a summary of Aris, click here.

The need for a panel to provide reasons that address the arguments advanced by a registrant in a transparent and comprehensible way, as well as to confine itself to the specific charges of misconduct before it, is illustrated in Nowoselsky v. Alberta College of Social Workers (Appeal Panel), 2011 ABCA 58. To read a summary of Nowoselsky, click here.

As illustrated in the Farbeh case, conclusions of professional misconduct must be supported by findings in reasons that support such conclusions: Farbeh v. College of Pharmacists of British Columbia, 2011 BCSC 1676. In that case, the court reversed two findings of guilt which were based on admissions that were not sufficiently precise to support the findings. While the College submitted that the Panel also relied on “ample evidence” to support its findings, the court found that the Panel did not provide reasons which allowed the court to assess the reasonableness of the Panel’s conclusion of ample evidence supporting its conclusions. The court also reversed a finding that the registrant had misrepresented herself as a pharmacist while suspended, due to a lack of evidence capable of supporting such a finding. To read a summary of Farbeh, click here.

Click here to read our 2010 Professional Regulatory Round-Up, click here.

Lisa C. Fong and Michael Ng