January 25, 2016

2015 professional regulation roundup

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

Human rights: In October 2015, the B.C. Human Rights Tribunal found discriminatory conduct by the B.C. Veterinary Medical Association (the “BCVMA”), which is now the College of Veterinarians of B.C. (the “College”). The tribunal held that the BCVMA discriminated against Indo-Canadian applicants and registrants through, for example, an English-language proficiency requirement greater than what other regulatory bodies imposed, and its predominantly selecting facilities run by Indo-Canadians for unscheduled inspections, based on rumours and anecdotal complaints. The tribunal ordered remedies including a reassessment of discipline penalties against the complainants, an anti-discrimination policy, and compensation totaling $209,500 (with sums of lost wages to be determined). We originally wrote about the decision here. We wrote about later developments, including further alleged discrimination, and the College applying for judicial review of the tribunal decision, here.

Interpreting the public interest: Recent court decisions have addressed the content of the public interest that regulatory bodies must serve. Recent cases have illustrated disagreements between courts about what constitutes the public interest, and the extent to which regulatory bodies can decide about the public interest. Three such matters have been, or will be, heard by the B.C. Court of Appeal.

First, the Sobeys West case, involving the College of Pharmacists of B.C., relates to the power of professional regulatory bodies that pass bylaws prohibiting registrants from participating in incentive programs that may affect the ability of registrants to deliver professional services. We wrote about the original decision that found bylaws unreasonable here. The B.C. Court of Appeal heard the appeal of the College of Pharmacists of B.C. on December 9 and 10, 2015. The Court’s decision is pending.

Second, the Trinity Western cases, involving law societies in three provinces (B.C., Ontario and Nova Scotia), address the public interest, from the perspective of professional regulatory bodies accrediting schools that teach applicants. These cases address the power to address the discriminatory aspects of a requirement by a school students sign a “community covenant” requiring that they abstain from sexual intimacy outside of marriage between one man and one woman. A Nova Scotia decision (currently under appeal) reversed a refusal of the Nova Scotia Barristers’ Society to recognize TWU’s law school (2015 NSSC 25, available here). Based on a different approach, an Ontario court affirmed a refusal by the Law Society of Upper Canada to accredit the same program (2015 ONSC 4250, available here). Most recently, the B.C. Supreme Court reversed a decision of the Law Society of B.C. that refused to recognize the same program, but based on a failure of the society to exercise its own judgment, and a failure to provide procedural fairness (2015 BCSC 2326, available here). The Law Society of B.C. has announced an appeal of the decision.

Third, the Scott case addresses when a professional regulatory body may take “extraordinary” action to protect the public during an investigation and pending the outcome of a discipline hearing. In the Scott matter, a female patient of a massage therapist received a massage while facedown on a treatment table. The complainant alleged she heard the massage therapist twice unzip his pants, masturbate while massaging her with one hand, and twice placed his penis on her wrist (which was covered by thin draping material). She did not look due to fright, but based her conclusions on what she perceived from her senses other than her sight. The inquiry committee imposed a chaperone requirement while the investigation continued, but the B.C. Supreme Court reversed the order (April 4, 2015, with our blog summary here, as the complainant did not see the massage therapist commit sexual misconduct, and could have “easily” looked. The B.C. Court of Appeal heard the appeal of the College of Massage Therapists of B.C. on January 4, 2016. The court also heard from interveners (i.e., the College of Physicians and Surgeons of B.C., West Coast LEAF (Women’s Legal Education & Action Fund), and the Registered Massage Therapists’ Association of B.C.).

Registration, mobility and good character: The manner in which a professional regulatory body may assess the “good character” of mobility applicants was addressed by the Alberta Queen’s Bench in the Lum case (2015 ABQB 12, which we wrote about here. When a B.C. dentist applied for registration in Alberta, the Council of the Alberta Dental Association refused him registration, based on his complaint history, even though all (but two, which were being investigated) had been resolved without any findings or admissions of misconduct or breaches of standards.

The Lum case is notable because it touches on an area ripe for development, since “good character” remains an area that a regulator may still assess a mobility applicant. It may raise more questions than it answers, however, as courts may demand more than mere complaints (especially if they pertain only to competence issues), and any voluntary participation by an applicant in course-work, to show a lack of good character. See, for example, the September 28, 2012 Report of an Article 27 Panel under TILMA (concerning a measure by the B.C. College of Social Workers), where a B.C. College rejected an Alberta applicant for bad character, and a majority of a panel held that the burden lay on the College to show evidence of lack of good character.

Professional business names: As a notable aside, Dr. Lum was also engaged in trademark litigation that may be of interest to many professionals who use business names that include geographic names, in the matter of Dr. Lum v. Dr. Coby Cragg Inc. (2015 FCA 293, available here). In that case, Dr. Lum started a practice in the Ocean Park neighbourhood of Surrey, British Columbia, initially under the name “Ocean Park Dental Group” when he was confronted and eventually sued by Dr. Cragg, who carried on business through a company under the name “Ocean Park Dental Centre”. Dr. Cragg registered the name “Ocean Park” as a trade-mark, but Dr. Lum successfully challenged this registration, on the basis that Dr. Cragg’s company could not register and thereby obtain exclusive use of “Ocean Park”, which is the name of a geographic area where other dentists also provide dental services.

Mandatory penalties for sexual abuse: The Ontario Court of Appeal upheld the constitutionality of mandatory licence revocation, and a restriction against reinstatement for five years, in relation to “sexual abuse” in the Hanif case (2015 ONCA 640). That case involved a pharmacist who engaged in a romantic relationship (and consensual sex) with someone for whom he filled prescriptions. We wrote about that case here.

Mandatory continuing professional development (CPD) coursework: In the Green case, the Manitoba Court of Appeal upheld the suspension of a member, without a hearing, for his failing to meet continuing professional development requirements (2015 MBCA 67). The member had been a professional for over 60 years, since 1955. This case is notable because the Supreme Court of Canada has granted the member leave to appeal (December 10, 2015, Case No. 36583), which indicates a serious issue about the validity of “administrative” suspensions for breaches of CPD rules.

Lisa C. Fong and Michael Ng