March 5, 2014

2013 professional regulatory round-up

Administrative Law
Health Professions Review Board
Inquiry and Investigations
Professional Regulation
Registration and Fitness

Here are some key Canadian cases and trends from 2013  relating to professional regulation.

1. Adequacy of reasons: In 2013, courts continued to look at how decision-makers must show in their written reasons that they remain impartial, and have grappled with the key issues in dispute to decide a matter – thus making fair and reasonable decisions. Notably, the Supreme Court of Canada made clear that a decision-maker extensively copying and adopting the submissions of one party does not show improper partiality, as long as the decision-maker’s reasons disclose that he has impartially put his mind to the arguments and the issues: Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30. However, impartiality is not enough if a decision-maker fails to address and resolve key conflicts in the evidence; a decision-maker may be unable to make a decision reasonably without having expressly considered the implications of conflicts in the evidence on critical points: Whyte v. British Columbia (Superintendent of Motor Vehicles), 2013 BCCA 454.

2. “Conduct unbecoming” cases: 2013 displayed an increase in disciplinary proceedings relating to “off-duty” conduct by professionals – or at least ones getting before a court. The courts have confirmed that not all “off-duty” conduct will give rise to discipline; rather, a finding of unprofessional conduct (or conduct unbecoming) requires that the impugned conduct impair the professional’s ability to function in a professional capacity, or impact the professional as a whole (such as where the conduct lowers the reputation of the profession). For example:

(a) In Rathe, a court upheld a disciplinary finding that a physician committed conduct unbecoming by engaging in a loud, verbal exchange with other parents at a school concert, in the presence of children. The case demonstrates the need for a Discipline Committee to discern, and clearly articulate, how “off-duty” conduct impacts the profession or the professional’s ability to carry out professional duties: Rathe v. College of Physicians and Surgeons of Ontario, 2013 ONSC 821. (To read a summary of Rathe, click here.)

(b) In Erdmann, a court upheld a disciplinary finding of unprofessional conduct where a chartered accountant sent emails threatening to frivolously report the builder of her residential condominium and the property management company to various government agencies. The chartered accountant’s conduct brought disgrace on the profession: Erdmann v. Institute of Chartered Accountants of Alberta, 2013 ABCA 147. (For a summary of Erdmann, click here.)

(c) Similarly, a recent BC case demonstrates that a court may intercede where a hearing panel has unreasonably concluded that a member’s conduct impacts his ability to perform, or impacts the profession itself.

In Fountain, a discipline hearing panel found a teacher guilty of “conduct unbecoming” for his careless and reckless use of a firearm, which he had fired it over the heads of his sons during an altercation. The member successfully appealed the Panel’s decision to a court, which remitted the matter to the Panel for reconsideration. The Panel confirmed its previous finding, but the court decided the evidence could not support the Panel’s findings about the professional impact of his conduct. The teacher had been acting out of fear; there was no harm to the public, and no evidence the matter had been made public; and if the public did learn of his conduct, they were also likely to learn of the teacher’s acquittal on criminal charges: Fountain v. British Columbia College of Teachers, 2013 BCSC 773. (See the full case here.)

3. Health Professions Review Board deference: In the first significant judicial review of a decision of the BC Health Professions Review Board (the “HPRB”), the BC Supreme Court decided a registrar investigating a complaint, and exercising a summary dismissal power under s. 32(3) of the Health Professions Act (the “Act”), was entitled to deference as to the adequacy of the investigation: Moore v. College of Physicians and Surgeons of British Columbia, 2013 BCSC 2081. (For a summary of Moore, click here.)

4. Board governance and procedural fairness: In 2013, a BC court addressed board governance issues arising from the strong dissent of a board member in Wang v BCMA. Although Wang involved discipline of a board member for a voluntary association, rather than a public regulator, it demonstrates the need for boards generally to follow their established governance policies and procedures, in accordance with rules of procedural fairness.

In Wang, a family physician serving as an elected board member of the British Columbia Medical Association (the “BCMA”) voiced her dissenting views to the board, but also publicly, e.g., on a professional Internet list-serv. When the board formed a special committee to investigate her conduct for breaching confidentiality, under the auspices of the BCMA Code of Conduct, she petitioned the court to dissolve the special committee. The B.C. Supreme Court allowed Dr. Wang’s petition (2008 BCSC 1559), but the Court of Appeal overturned that decision, which should have proceeded by a court action and not by petition (2010 BCCA 43). (For a summary of these decisions, click here.)

Dr. Wang brought a court action for defamation and for declaratory relief against BCMA based on the same events. The court dismissed the defamation claim, but did grant Dr. Wang declaratory relief.

The court considered the procedural fairness requirements that apply to disciplinary proceedings of voluntary organizations. It decided the case fell towards the higher end of the procedural fairness spectrum. [362] The court further noted that the disciplinary process against Dr. Wang changed; it evolved from a code of conduct committee investigating a particular complaint relating to specific confidentiality issues to a special committee generally investigating, without a complaint, the conduct of Dr. Wang in her capacity as director and officer. [363-364]. The change violated natural justice: Dr. Wang had not been provided with adequate notice of the allegations against her. [365] Dr. Wang was also denied procedural fairness because two members of the special committee had previously expressed negative views about her conduct as a board member.

Ultimately, the court declared the BCMA in breach of contract by its failing to provide Dr. Wang with full procedural fairness in the composition and mandate of the Special Committee that reviewing her conduct as a director and officer, in place of the Code of Conduct Committee that the Board had originally authorized: Wang v. British Columbia Medical Association, 2013 BCSC 394. (For the full case, click here).

5. Assessment of evidence by a complaint-screening committee: One important issue for regulators of prominence this last year was the ability of a screening committee, such as the Inquiry Committee of a College under the Health Professions Act (the “Act”), to assess the factual evidence before it when making a disposition.

A recent Ontario case confirms that, while a screening committee cannot make findings of fact or of credibility, it can, in a limited fashion, assess and weigh the evidence before it. In Reyhanian, the Inquiries, Complaints and Reports Committee (the “Committee”) of the College of Physicians and Surgeons of Ontario decided to take no further action against a psychiatrist. The Health Professions Appeal and Review Board (the “HPARB”) confirmed that decision. The complainant sought judicial review of the HPARB decision, submitting that the Committee had made an improper finding of fact, straying from its proper function as a mere screening body. [13]

The court held that the role of a screening committee is to conduct an investigation and determine if there are reasonable grounds to believe that misconduct has occurred, and that some limited weighing of facts is required in such an analysis. [16] The court expressly rejected the complainant’s argument that the Committee had no power to weigh the evidence before it in deciding on an appropriate disposition. While the Committee is not an adjudicative body, and does not make findings of credibility, it was entitled to take a “critical look at the facts underlying the complaint and the evidence that does and does not support it”, as well as other factors. [20] It was appropriate for the Committee to assess the material before it: Reyhanian v. Health Professions Appeal and Review Board, 2013 ONSC 297.

A screen committee cannot make findings of fact, however, and this makes Reyhanian consistent with established case law in British Columbia, such as Farbeh, where a court distinguished the role of a discipline committee from the role of a screening committee. While a discipline committee has detailed procedural and evidentiary requirements under the Act, the Act says relatively little about the Inquiry Committee’s process: Farbeh v. College of Pharmacists of B.C., 2009 BCSC 1120. (For the full case, click here).

6. Regulation of business practices: In our 2012 Regulatory Round-up, we noted the case of Takhar et al. v. Zellers Inc. et al., 2012 ONSC 2546, which raised interesting policy issues relating to the regulation of business arrangements of professionals. Takhar involved several pharmacists working in Zellers stores in Ontario who sought injunctive relief to prevent Zellers from transferring patients’ health records to Loblaw and Target upon their agreement to purchase the Zellers pharmacies. The court found no basis for injunctive relief, as Zellers was within its rights in transferring the patient records. (For a summary of Takhar by guest blogger Lonny J. Rosen, C.S., click here.) 2013 yielded interesting developments in the regulation of business practices, including both business arrangements between professionals, and businesses operated by non-professionals but falling within a regulator’s jurisdiction.

For example, the Ontario Court of Appeal addressed when an individual or a business operating in multiple jurisdictions will be subject to a regulator’s jurisdiction in 1724665 Ontario Inc. Global Pharmacy Canada (“Global”), which used the Internet to market and sell generic prescription drugs to Americans, marketed itself as a Canadian company and had a call centre which took customer orders and processed payments in Mississauga, Ontario, within the jurisdiction of the Ontario College of Pharmacists. But the drugs were sourced in India and never entered Canada; the customers of Global were American; and the individuals and corporations involved in the running of the business were located in Belize, the United States and Ontario.

The application judge found that Global was selling prescription drugs, by retail, in Ontario, which constituted conduct over which the College has power to regulate. The Ontario Court of Appeal upheld that finding. The College’s jurisdiction depended on a sufficient connection between Global and Ontario. The Court of Appeal held that “if a company trades on Ontario’s reputation for quality and strong regulatory standards, and sites a critical part of the sales process in Ontario, it will be subject to Ontario’s regulation”: Ontario College of Pharmacists v. 1724665 Ontario Inc. (c.o.b. Global Pharmacy Canada), 2013 ONCA 381 (For the full case, click here).

7. Rise of discipline for fraud: 2013 saw a rise of consensual resolutions and disciplinary proceedings relating to extensive billing fraud by professionals. This will be an issue for regulators to watch in 2014. As examples:

(a) The Inquiry Committee of the College of Massage Therapists of BC entered an undertaking and consent agreement with a registrant alleged to have fraudulently claimed reimbursements for extended health care benefits from an insurance company for services he had not performed. The agreement included a term that the registrant repay the insurance company $64,462.05 he allegedly received under false claims. (See the public notification summary here.)

(b) The Inquiry Committee of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of BC issued a citation against a registrant, alleging that he billing Medical Services Plan (“MSP”) and private insurers for services he did not provide; excessively billed MSP and private insurers; and failing to provide an adequate quality of care to individual patients in view of the excess volume of patients for whom he billed services. (See the public notification summary here.)

(c) A registrant of the College of Physicians and Surgeons resigned from the College, with a commitment to never re-apply, after the issuance of a citation, having admitted to altering medical records and creating fictitious entries in his electronic medical record database for patients he had not seen, and fraudulently billing MSP for patients he had not seen. (See the public notification summary here.)

8. Health care: We also think worth mentioning a case that, although not yet resolved, will likely bring interesting developments to the area of health care in 2014, and may impact services offered by health care professionals, and the regulation of health care professions. In 2009, Cambie Surgeries Corporation and other individuals and health clinics in BC challenged the constitutionality of certain provisions of the Medicare Protection Act. The clinics are private medical clinics that provide some medical services for which they bill patients privately, contrary to the Medicare Protection Act. They argue provisions of the statute violate the Charter by preventing access to medical care in a timely manner. This case is schedule for trial in the fall of 2014, and may change the law for private health clinics in BC. The case is currently at the document disclosure stage, as illustrated by a recent ruling in Cambie Surgeries Corporation v. Medical Services Commission of British Columbia, 2013 BCSC 2066. (For the full case, click here).

Matters to watch in 2014: Trinity Western University has proposed to open a law school at its Langley campus at 2016. TWU requires all students, however, to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman” – a requirement that appears to discriminate against students based on their sexual orientation. The Law Society of British Columbia, the Law Society of Upper Canada and the Nova Scotia Barrister’s Society are engaging in public consultations about accepting a law degree issued by TWU for admissions purposes.

Notably, the Supreme Court of Canada examined a similar controversy when the BC College of Teachers refused to allow TWU to assume full responsibility for its teacher education program, on the basis that the public interest was not served by its approving a teacher education program offered by a private institution that appeared to follow discriminatory practices. The college’s refusal was overturned, however, as nothing in TWU’s community standards, which only prescribed conduct of members while at TWU, indicated that graduates of TWU would not treat homosexuals fairly and respectfully: Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31.

For our 2012 Regulatory Round-up, click here.

For our 2011 Regulatory Round-up, click here.

For our 2010 Regulatory Round-up, click here.