March 18, 2015

Blog: 2014 professional regulation round-up

Administrative Law
Health Professions Review Board
Inquiry and Investigations
Professional Regulation

While principles of administrative law continue to evolve – perhaps more in this last decade than in previous years – much of the developing law of professional regulation involves basic principles being used to flesh-out new, or at least previous-unexplored, situations.

The civil nature of professional regulatory processes: Similarities between criminal and professional regulatory proceedings seem to result in perennial assertions by registrants about the allegedly criminal or quasi-criminal nature of disciplinary hearings. But an Ontario court, following a long-line of cases characterizing disciplinary hearings as civil in nature (as summarized in Mussani v. College of Physicians and Surgeons of Ontario (2003), 226 D.L.R. (4th) 511 (Ont.Div.Ct.), affirmed (2004), 74 O.R. (3d) 1 (Ont.C.A.)), again affirmed the purely civil nature of professional regulatory proceedings in Hanif v. Her Majesty the Queen et al., 2014 ONSC 6613, where the court rejected a defence premised on professional discipline for patient sexual abuse being a federal matter given its criminal nature.

Limits of “reasonableness” on ethical and practice rules: Implied limits on the powers of professional regulatory bodies to superintend their professions was illustrated by the B.C. Supreme Court’s decision that a college unreasonably exercised its by-law making powers in Sobeys West Inc. v. College of Pharmacists of British Columbia, 2014 BCSC 1414 (under appeal). The court found that restrictions on registrants were unreasonably over-broad by preventing registrants from participating in incentive programs – restrictions that the court said infringed on the public’s interest in obtaining drugs at the lowest prices. Subject to the outcome of the pending appeal, this case may have far-ranging implications about how courts may scrutinize the purpose and effect of bylaws, including bylaws creating ethical and practice standards.

The unique position of inquiry (screening) committees: While discipline hearings represent the culmination of professional discipline processes, investigation and screening functions occupy a special position which courts do not often consider. In 2014, however, a Nova Scotia court confirmed that procedural fairness requirements are less at the screening stage than at the disciplinary stage, and that inquiry committees are entitled to deference when they decide to send a matter to a hearing, in Levesque v. Nova Scotia College of Optometrists, 2014 NSSC 22. Furthermore, a court may consider as premature any review of an inquiry committee decision before the conclusion of the entire matter, e.g., after a discipline hearing, as noted by the Alberta Court of Appeal in MK Engineering Inc. v The Association of Professional Engineers and Geoscientists of Alberta Appeal Board, 2014 ABCA 58.

Deference owed by the Health Professions Review Board: In British Columbia, decisions by health colleges disposing of complaints other than by citation face review by the HPRB. The BC Supreme Court has clarified, however, that the HPRB owes deference to inquiry committees. First, the HPRB must give deference to decisions by an Inquiry Committee about what constitutes an adequate investigation for any given complaint, as illustrated in Moore v. College of Physicians and Surgeons of British Columbia, 2014 BCCA 466, affirming 2013 BCSC 2081 ( involving an investigation and a summary dismissal by a registrar). Secondly, the HPRB must give deference to any Inquiry Committee interpretation of its “home” statute, i.e., the Health Professions Act, even though this means that different colleges may interpret the same provisions differently. This is illustrated in College of Dental Surgeons of British Columbia v. Health Professions Review Board, 2014 BCSC 1841 (appeal filed by the HPRB on October 27, 2014). Inquiry committees must receive deference from the HPRB, even though the HPRB must receive deference from the court concerning its own interpretations of the HPA, as established in JC v. Health Professions Review Board, 2013 BCSC 372.

Unauthorized practice: A number of notable unauthorized practice cases arose in 2014. Following the high-profile case of College of Dental Surgeons of British Columbia v. Wu, 2013 BCSC 1986, these cases illustrate unauthorized practice in different contexts. For example, a former registrant who gives up his registration (and stopped paying taxes) to protest the government’s spending on war, is as subject to measures against unauthorized practice (and unauthorized use of title) as anyone else: College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia v. Fischer, 2014 BCSC 985. Repeated unauthorized practice contrary to a court order may result in jail time, as shown in Wu and again illustrated in College of Dental Surgeons of British Columbia v. Shapoval, 2014 BCSC 505 (which involved a foreign-trained dentist). Finally, a court order restraining a person from providing particular services to the public does not necessarily extend to services the person provides to persons outside the province; that will depend on the wording of the order: Law Society of British Columbia v. Carlisle, 2014 BCSC 2362, where a person, enjoined by a BC court from drawing up documents for legal proceedings or from giving legal advice, advertised his services on the Internet for people throughout Canada seeking to apply for access to medical marihuana. Although he violated the court order in various ways, the court declined to find the consultant in contempt of the court order based on his providing services to clients in Ontario. [53-54]

Search and seizure: Where a college has obtained evidence of unprofessional conduct, e.g., a copy of a professional’s electronic files from his home, but that evidence comes from the police having carrying out an unreasonable search and seizure, a court may decline to remove it from the College’s hands by ordering its destruction, so that the college may use it in a civil (disciplinary) proceeding, where it might be admissible despite being inadmissible in any criminal proceeding. The discipline committee, rather than the court, must decide if the college may, at a discipline hearing, rely on such evidence – evidence procured through an unreasonable search and seizure, but not one in which the college participated: Kelly v. Ontario, 2014 ONSC 3824.

Matters to watch in 2015:

On December 18, 2014 Trinity Western University commenced proceedings seeking a judicial review of the Law Society’s decision not to approve its proposed law school. TWU is a private Christian university that maintains a “Community Covenant” that requires students to abstain from sexual intimacy outside of marriage between one man and one woman. Following a special general meeting where members of the Law Society resolved to direct the Benchers to not approve TWU’s law school, the Law Society held a referendum in September 2014 where more than two-thirds of voting members voted again, but in a binding fashion, against approving TWU’s law school.

The College of Pharmacists is appealing the decision in Sobeys West, concerning the reasonableness of rules that prevented pharmacists from participating in incentive programs.

Lisa Fong and Michael Ng