January 22, 2018

2017 regulatory round-up

Administrative Law
Inquiry and Investigations
Professional Regulation
Registration and Fitness

In June, Lisa C. Fong and Angie Westmacott, Q.C., co-chaired a CLE session on self-regulating professions, where they, as well as Rebecca Durcan and Katrina Haymond, identified a number of ongoing, general trends in professional regulation:

  • public skepticism about self-regulation;
  • a willingness of government to eliminate self-regulation;
  • increasing government regulation of regulators (i.e., meta-regulation) such as (in Ontario) mandatory measures relating to transparency and sexual misconduct; and
  • increasing litigation against regulators.

For a description of the entire conference, see here.

In May 2017, Ontario introduced and passed Bill 87, the Protecting Patients Act, 2017 (the “PPA”),  which amended the Health Professions Procedural Code under Ontario’s RHPA. The PPA requires transparency of disciplinary measures. The PPA also implements measures relating to sexual abuse, including the definition of “patient” in a sexual abuse context; a power of the ICRC to make an interim order after receiving a complaint or report; and added types of sexual abuse acts that will result in automatic revocation (e.g., touching a patient’s genitals, anus, breasts or buttocks).

Indeed, concerns that institutions have not been dealing with sexual misconduct adequately or at all, was a societal focus in 2017. For example, 2017 saw a rise in concerns about how and whether sexual misconduct was being addressed by post-graduate learning institutions. The BC government introduced the Sexual Violence and Misconduct Policy Act which required every public post-secondary learning institution in BC to develop and implement a sexual misconduct policy by May 19, 2017.

In terms of specific court matters,however, and unlike some previous years where courts made pronouncements that changed the landscape of administrative law, 2017 was a relatively quiet year – a “business as usual” year where regulators and courts went forth to apply established legal principles. A closer look, however, reveals some decisions where courts have addressed some rather unusual or atypical regulatory questions.

1. Lack of clarity concerning under-represented registrants: 2017 opened with the question of what a tribunal may do when a registrant loses his or her opportunity to present a case, not due to any failure on the part of a tribunal but instead due to ineffective legal counsel. This scenario came before the BC courts in Jalloh v. Insurance Council of British Columbia, 2016 BCCA 501 (Dec. 20, 2016).

An insurance sales licensee allegedly accessed database information about his former girlfriend, B, for an improper purpose. The accounts of the licensee and B conflicted, however, rather markedly. The licensee had previously asserted that he had accessed B’s electronic file to address queries she had made of him during various calls about her car insurance. She denied any such calls. But the licensee did not give his version of events at a hearing, as the lawyer he hired appointed inexperienced junior counsel, who advanced meritless arguments, and did not call the licensee as a witness. As a result, no evidence supported the licensee’s version of events. During the hearing, the licensee called his lawyer to demand his presence at the hearing, but his lawyer told the licensee it was better to “let them go wrong” because what happened at the Council did not matter; it would be fixed in court. Ultimately, the Council found against the licensee, due to a lack of evidence, and the Council cancelled his licence. During an appeal to the Financial Services Tribunal (FST), the licensee’s lawyer provided a one-page legal argument, and did not raise any issue of ineffective counsel at the first hearing. The FST nonetheless reduced the discipline order from cancellation to a four-year suspension.

The licensee filed his own application for judicial review. More than a year later, he hired a new lawyer, who challenged the fairness of the discipline decision and the FST appeal, based on ineffective counsel. The chambers judge declined, however, to grant relief, based on the licensee’s delay by not raising ineffective counsel with the FST, or for many months after filing for judicial review. The Court of Appeal decided the chambers judge did not err by refusing relief based on delay.

This case involves some troubling reasoning, and many unresolved legal issues. As matters stand, however, the case arguably implies that in a professional regulation context – in contrast to a criminal context, or a federal immigration context, or a child custody context – a registrant’s lack of opportunity to present a defence due to ineffective counsel is a matter between the registrant and the lawyer, with no impact on the fairness of any process the tribunal provides.

2. Registration and “mobility” applicants: Many regulators have, for many years, struggled with demands of labour mobility under Chapter 7 of the Agreement on Internal Trade (AIT) which is now the Canadian Free Trade Agreement (CFTA) as of July 1, 2017, due to disparate entry standards for professions across the country. Dissatisfaction amongst regulators who may not apply their standards to “mobility” applicants registered in provinces with less onerous standards has increased due to “forum-shopping” by internationally-educated professionals. Such forum-shopping involves such applicants registering first in provinces with less onerous requirements, and then applying as “mobility” applicants to their province of choice.

In January 2017, a Saskatchewan court decided that a regulator could reject an applicant who had had failed to establish competence in three previous applications, despite registration in another province (where she did not actually work) and labour mobility provisions, in Risseeuw v. Saskatchewan College of Psychologists, 2017 SKQB 8. The court actually dismissed the application for review based on undue delay [77], but it went on to hold that the applicant could not do “an end-run around the core competency requirement by claiming she is entitled to admission… on a virtually automatic basis.” [126] Ultimately, the court relied on statutory language giving the regulator discretion over grants of registration to mobility applicants, i.e., “…the council may register a member… who produces evidence… that the person… (d) is registered as the equivalent of a psychologist in good standing pursuant to the legislation of another jurisdiction in Canada….” [126]

The Risseeuw decision does not answer how a discretion relating to mobility applicants complies with Chapter 7 of the AIT/CFTA. Chapter 7 does, however, provide for limited but express exceptions to labour mobility, and regulators may resort to exercises of discretion consistent with these exceptions, the most notable being an exception for where a person “has not practiced the occupation within a specified period of time.” We expect to see some concrete developments on this issue in 2018.

3. Investigations and duties to cooperate: The duty of registrants to cooperate with a regulator during an investigation – often codified, but also a common law principle articulated in Artinian v. College of Physicians and Surgeons (1990) 73 O.R. (2d) 704 (Div.Ct.) – was illustrated in a Manitoba case where a nurse under investigation refused to participate in a second interview until he received full particulars of the incidents at issue, and signed witness statements. His college disciplined him for failing to cooperate by suspending his registration for four months. The Manitoba Court of Appeal addressed both the limited requirements of procedural fairness during investigations, and upheld discipline for the registrant’s failure to cooperate, in Kuny v. College of Registered Nurses of Manitoba, 2017 MBCA 111 (Nov. 21, 2017).

A number of BC regulator tribunals also had to address refusals to cooperate in 2017, including the College of Physicians and Surgeons (here), the College of Dental Hygienists (here), and the College of Registered Nurses (here).

An earlier 2017 Manitoba case concerning registrant conduct during an investigation is notable. That case involved a physician who lied to his college during investigation. For example, he stated that he had presented an audit report for review by a peer group that was critical of the report, when in fact he was the sole author of the peer analysis. His college found him ungovernable and cancelled his licence. That discipline was upheld by the Manitoba Court of Appeal in Ahluwalia v. College of Physicians and Surgeons of Manitoba, 2017 MBCA 15. See our blog entry on the case here.

4. Investigations and letters of criticism: In 2017, a BC court confirmed a letter of criticism or caution issued by a health regulator under BC’s Health Professions Act, based on provisional conclusions of fact after an investigation. This is notable because, unlike Ontario’s RHPA, BC’s HPA does not expressly refer to a “caution” power. The inquiry committee criticized the registrant for “unprofessional conduct, substandard clinical skills, and contravention of College bylaws regarding liability insurance.” More significantly, the court also held that since the letter of criticism did not impact the registrant’s rights or privileges, the letter was not open to judicial review. Alternatively, since any judicial review could have no impact on his right to practice medicine, the issue was also a “moot” issue. Finally, he decision was reasonable: Maroofi v. College of Physicians and Surgeons of British Columbia,2017 BCSC 1558. See our blog entry on the case here.

5. Quality assurance and automatic suspensions: The Supreme Court of Canada upheld the legality of an automatic suspension for a lawyer (who had been practicing for over sixty years) based on his failing to comply with rules requiring continuing professional development (CPD) credits. Apart from confirming that regulators like law societies have a broad discretion to regulate based on their interpretations of the public interest, the court held that the CPD rules at issue reasonably provided for an automatic suspension without a hearing. The automatic suspension was a form of “administrative” suspension unlike a disciplinary suspension, since members are solely in control of complying with the rules relating to CPD credits: Green v. Law Society of Manitoba, 2017 SCC 20. See our blog entry on the case here.

Finally, early last year we blogged here about the various appellate decisions relating to the refusal of law societies to accredit the law school of Trinity Western University. On November 30, 2017, the Supreme Court of Canada heard appeals in the BC case (find the arguments here) and the Ontario case on November 30, 2017 (find the arguments here). We look forward to the SCC deciding the appeals in 2018.

Lisa C. Fong and Michael Ng