September 18, 2011

Disciplining a former member when the enabling act only refers to members

Administrative Law
Inquiry and Investigations
Professional Regulation

Today, most self-regulating profession legislation expressly provide that former members can be disciplined for alleged misconduct which occurred while they were a member.  Nonetheless, some remaining enabling statutes do not expressly address this issue, creating the problem of how these regulators can meet the public interest in preventing members from escaping potential discipline by merely cancelling their membership or letting their memberships lapse after a complaint is made.

In British Columbia, the Court of Appeal rejected an implied jurisdiction of regulators over former members in Ross v. British Columbia Psychological Association (1987), 19 B.C.L.R. (2d) 145 (C.A.): “If this extraordinary power over former members is to exist, it is obviously preferable that that come about by clear words and not by reading in an extension of power on the basis of policy considerations.” However, in the recent case of Abouabdallah v. College of Dental Surgeons of Saskatchewan, 2011 SKCA 99, the question arose whether a “member” subject to discipline under the provisions of Saskatchewan’s Dental Disciplines Act, S.S. 1997, c. D-4.1, included a member whose registration has been allowed to lapse since the time of the initial complaint. Although rendered moot for future cases by a timely amendment to the Act, which explicitly defines “member” as including former members, this case provides a different application of principles of statutory interpretation to one regulator’s disciplinary jurisdiction under Saskatchewan law.

The registrant, a dental surgeon, was the subject of a complaint alleging overcharging and a failure to provide competent medical care. [6] The complaint was filed on September 10, 2008, while the registrant was still a member in good standing. The registrant was designated as a non-practicing member on January 16, 2009, by reason ofhaving moved out of the province and having failed to pay his membership dues for that year. [12] The Court noted that this designation was made even though the registrant would not appear to qualify as a non-practicing member under the terms of the Act. [13]

A Formal Complaint was eventually issued on August 14, 2009, and the registrant wrote to confirm receipt of the Formal Complaint on October 12, 2009. [11] During the intervening time, the registrant had participated in the investigation process on at least eight occasions, [10] and, on December 8, 2009, the registrant participated in a pre-hearing management telephone conference call. [11] However, in a preliminary motion, the registrant elected to challenge the jurisdiction of the Discipline Committee, on the grounds that he was no longer a member and not residing in Saskatchewan. [15] This motion was dismissed, and the dismissal was upheld on judicial review. [16]

On appeal of the judicial review hearing, the Court of Appeal relied on the currently accepted principle of statutory interpretation first articulated by Elmer Driedger in Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87, and subsequently adopted by the Supreme Court of Canada in Rizzo & RizzoShoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [28]

This approach is also applicable to regulations or bylaws passed pursuant to a specific Act. The Court quoted Ruth Sullivan, in Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008) at p. 368, as follows:

… regulations must be read in the context of their enabling Act, having regard to the language and purpose of the Act in general and more particularly the language and purpose of the relevant enabling provisions. Regulations are normally made to complete and implement the statutory scheme and that scheme therefore constitutes a necessary context in which regulations must be read. [30]

Applying these principles to the facts of the case, the Court noted that the Act did not include any provision describing how one ceases to be a member; in particular, “[t]he Act does not provide that ceasing to be a practising member results in the termination of membership in the College.” [32] In addition, the Court considered the question of when the “disciplinary process” should be considered to have begun. Notwithstanding the registrant’s arguments, the Court ruled that “to find that the discipline proceedings do not commence until the filing of a Formal Complaint by the Discipline Committee is inconsistent with the structure and objective of the Act.” [43] The Court found that, by the language of the Act, the disciplinary process is triggered when the professional conduct committee is requested by “its council” to investigate a complaint, or when the committee is in receipt of a complaint that a “member” is guilty of professional misconduct of professional incompetence. [38]

The Court characterized the primary issue in this case as being whether a member of a professional body can evade ongoing disciplinary proceedings by terminating his membership. [21] The Court answered this question in the negative, relying on Samuels v. College of Physicians and Surgeons of Saskatchewan (1966), 58 D.L.R. (2d) 622 (Sask. Q.B.), and Knutson v. Saskatchewan Registered Nurses’ Association (1990), 87 Sask. R. 86 (Q.B.). [48]. As the Court observed, “[t]o permit Dr. Abouabdallah tooust an ongoing investigation by causing his membership in the College to lapse while continuing to practise as a dentist in another Canadian jurisdiction would clearly undermine the public’s confidence in the ability of the College to self-regulate.” [51] Accordingly, the dismissal of the registrant’s preliminary motion was again upheld. [53]

Abouabdallah v. College of Dental Surgeons of Saskatchewan, 2011 SKCA 99

UPDATE: Application for leave to appeal to the Supreme Court of Canada was dismissed by that court on April 12, 2012.