March 24, 2011

Our round-up of top 2010 professional regulatory cases

Administrative Law
Professional Regulation
Registration and Fitness
Regulator Liability

1. On deference to a professional regulatory body on findings of unprofessional conduct: Salway v. Assn. of Professional Engineers and Geoscientists of British Columbia, 2010 BCCA 94, 3 B.C.L.R. (5th) 213 (B.C.C.A.), leave to appeal denied [2010] S.C.C.A. No. 122.

Facts and history: On January 31, 2008, the Discipline Committee of APEGBC found unprofessional misconduct by a member. The B.C. Supreme Court allowed the member’s appeal and set aside the decision and penalty (2009 BCSC 262). The court found the panel erred in law, as the authorities required omissions to go beyond mere negligence in order to amount to unprofessional conduct: “[F]or conduct to be characterized as unprofessional it must be flagrant and not merely ‘a failure to respond as the Panel would expect of a fellow [M]ember in the circumstances” (at paragraph 33). The member was negligent or deficient in failing to respond to his clients in relation to a matter of significant importance that was time-sensitive, but his conduct did not go beyond mere negligence

Appeal decision: The Court of Appeal allowed APEGBC’s appeal and reinstated the finding of the Discipline Committee. The Supreme Court erred in law by failing to employ the two-step standard of review analysis enumerated in Dunsmuir to accord appropriate deference to the Panel’s finding of unprofessional conduct.

In addressing the standard of review, the court noted the Administrative Tribunals Act, S.B.C. 2004, c. 45 did not apply, as APEG’s governing statute did not refer to it. Additionally, the matter involved “a highly fact-drive inquiry.” (paragraph 31) Accordingly, the reasonableness standard of review applied. That standard “requires courts to give deference to a professional body’s interpretation of its own professional standards,” (paragraph 32) whether written or unwritten, so long as it is justified, transparent and intelligible, within the range of reasonable outcomes, and defensible in respect of the facts and law. It is not necessary for conduct to be “dishonourable, disgraceful, blatant or cavalier” (paragraph 32) in order to make a finding of professional misconduct or unprofessional conduct.

2. On deference to a professional regulatory body’s “zero tolerance” standard for sexual relations between members and clients or former clients (even if the client is the member’s common-law spouse): Leering v. College of Chiropractors of Ontario, 2010 ONCA 87.

Facts and history: A chiropractor began giving chiropractic treatments to his common-law spouse. When the personal relationship ended, his former common-law spouse complained to the College regarding Dr. Leering’s attempts to collect unpaid fees for his chiropractic services. The College determined Dr. Leering should be charged with sexual abuse. The Discipline Committee Panel found Dr. Leering guilty of professional misconduct for sexual abuse and revoked his certificate of registration.

Dr. Leering appealed the decision. The Ontario Divisional Court overturned the Panel’s decision. The Court found the College’s code relating to sexual abuse was not meant to apply to situations where the sexual relationship began before the professional relationship, and therefore the Panel failed to ask itself the right questions in considering Dr. Leering’s conduct. It also found no evidence the consent to sexual activity was tainted by, or suspect because of, a power imbalance. The Court set aside the Panel’s decision and its penalty, and remitted the matter back to the College for a new hearing.

Appeal decision: The Ontario Court of Appeal restored the Panel’s decision, holding the Panel was correct in following the zero-tolerance mandatory revocation provision under the College Code in situations where a member had sexual intercourse with a patient, and therefore made a reasonable decision. The Divisional Court erred in law by not according deference to the Panel’s expertise by finding that it should have inquired into whether the sexual relationship of the parties arose out of their spousal or professional relationship to determine if sexual abuse had occurred.

3. Immunity of regulatory bodies, adjudicators, and witnesses involved in disciplinary hearings: Deep v. College of Physicians and Surgeons of Ontario, 2010 ONSC 5248 (September 23, 2010), appeal dismissed 2011 ONCA 196.

The Health Professions Act insulates college personnel from personal law suits which allege misconduct while carrying out duties. The function of a parallel Ontario provision (as well as the limits of such immunity where a plaintiff alleges bad faith conduct) is illustrated in the Ontario case of Deep.

Facts and history: A College revoked the claimant’s certificate of registration based on findings of professional misconduct and incompetence. The claimant sought special damages of approximately 2.3 million and general damages of 20 million dollars, alleging the defendants were grossly negligent, reckless, and lacked good faith. The action was the third of its kind making “essentially the same foundational claim” [45].

Decision on statutory immunity: The court noted that under s.38 of the Ontario Regulated Health Professions Act, the defendants were statutorily immune from suit, absent bad faith. As the plaintiff failed to plead any particular facts to support bald allegations of bad faith, statutory immunity applied.

Decision on adjudicator Immunity: The court also found, with respect to allegations against the statutory tribunal members, that judicial or adjudicator immunity, which applies to both judges and tribunal members, “prohibits lawsuits against courts and tribunals based on their actions as adjudicators” [61]. Stemming from the concept of judicial independence, chairs of Committees enjoy judicial immunity with respect to their decisions (but not their decision processes) to allow them to conduct their roles “freely and impartially, without fear of suit” [61].

Decision on witness Immunity: Furthermore, with respect to the law suits against witnesses, the also noted that witnesses are immune, under the common law, from any action based on the premise that “witnesses should be free to make their statements and give their opinions or observations truthfully, without fear of being sued” [57] and to ensure judicial resources are used efficiently by making “sure the courts will not be clogged with the re-litigation of issues that have already been decided in a trial” [58].

Vexatious Litigants: Where claims have already been adjudicated, litigants are barred from re-litigating, based on the doctrine of res judicata. where a litigant makes essentially the same foundational claim in subsequent actions, it can also be seen as a collateral attack on previous court findings and constitute an abuse of process, making the claim frivolous and vexatious in nature. “In deciding whether a litigant is vexatious, the court must look at the whole history of the matter, and not just whether there was originally a good cause of action” [67] based on factors set out in Lang Michener Lash Johnston v. Fabian, [1987] O.J. No. 355 (H.C.).

The court declared the claimant a vexatious litigant, granted the defendants’ motion to strike the claim, and granted the College’s application that the claimant be prohibited from commencing further litigation without leave of a judge of the Superior Court of Justice.

4. Adequacy of Reasons and the need to set out the professional standard violated:  Walsh v. Council for Licensed Practical Nurses, 2010 NLCA 11, February 18, 2010.

A professional disciplinary panel that finds a professional guilty of violating a professional standard must, in its reasons for decision, identify the standard breached or otherwise explain why conduct has fallen below a professional standard of practice. Failure to provide sufficient reasons may render the decision unreasonable.

Facts and history: A Discipline Committee found a licensed practical nurse violated applicable Standards of Practice and Code of Ethics by failing to report a patient’s concern, based on her being required to report “any circumstances that are out of the ordinary.”

Appeal decision: The Nova Scotia Court of Appeal overturned the finding. The reasons for guilt were insufficient, as they did not link the nurse’s failure to report to any specific standards or code provisions, and did not explain why her conduct fell below an acceptable standard of practice. The reasons were not reasonable as they would not guide a licensed practical nurse in determining when a report is required, and when a failure to report an incident will result in a charge of professional misconduct.

5. Making disciplinary decisions beyond what is charged: Visconti v. College of Physicians and Surgeons of Alberta, 2010 ABCA 250.

Facts and history: A Discipline Committee found a physician guilty of professional misconduct for failing to chart medication dosages of certain patients.

Appeal decision: Certain findings were dismissed by the Alberta Court of Appeal as being unreasonable, where the findings were based in part on unrelated evidence of incompetence that the physician was administering certain drug doses at one-tenth the accepted standard dose. The Investigating Committee voiced concerns about this practice in their reasons for convicting the physician, but incompetence was not part of the citation.

In order for incompetence to be used in support of the charge, the court found the proper course would have been for the College to adjourn, declare its intention to investigate, and permit the physician opportunity to prepare an answer: “However alarming, the nature of the new evidence did not justify stripping Dr. Visconti of his right to know the substance of the allegations against him and to prepare to meet them.”

The court rejected the idea that allegations of incompetence could be inferred from particulars supporting the charge, which were in the form of a report. Particulars could not substitute a proper charge, and an accused “must not be tried on a charge of which he has not been notified”. Furthermore, the physician was entitled to assume that the portions of the report which did not address the allegations set out in the Notice to Practitioner “would not be addressed at his hearing”.

As a result of some convictions being unreasonable, both penalty and costs should be revisited. “The sentence must fit the crime, rather than include redress for unindicted misconduct.”

6. Implied powers (and duties) of registration committees to hold oral fitness hearings: Joshi v. British Columbia Veterinary Medical Association, 2010 BCCA 129, 3 B.C.L.R. (5th) 269 (C.A.)

Facts and history: A regulatory body denied registration to an applicant who passed all required examinations, where the body had received information the applicant had performed surgery at an animal hospital contrary to statute. The body decided to hold a full hearing. After some confusion concerning an agreement for admission in exchange for admissions, the applicant’s new lawyer took the position that the body had no jurisdiction to hold a full hearing, involving verbal evidence, on a registration matter. The hearing was adjourned, but the Council went on to deny the applicant registration.

Appeal decision: A regulatory body has, in registration matters, a necessarily implied power to accept witness testimony on oath or affirmation, and to provide for the cross-examination of witnesses, where evidence of good character conflicts and turns on credibility: “…an oral hearing is a necessary incidental power available to the Council in circumstances where evidence relevant to good character is in conflict, and credibility is in issue. […]The Council may also be required to grant those rights to an applicant in the interests of natural justice when credibility is in issue, and an applicant so requests.” The court below correctly concluded, however, the decision of the Council had to be set aside as not being in accord with the requirements of procedural fairness and natural justice, and a new hearing ordered.

7. An applicant’s lack of good character: Vincent v. Law Society of Upper Canada, 2011 ONSC 476, [2011] O.J. No. 397 (Ont.Sup.Ct.) (January 20, 2011); also see 2010 ONLSHP 51 (hearing panel, May 14, 2010) and 2010 ONLSAP 26 (appeal panel, October 6, 2010)

Facts and history: An applicant, V, applied for a paralegal licence, and filled out an application form requiring disclosure concerning such matters as previous criminal convictions, as well as findings involving fraud or dishonesty, dismissals from employment for cause, and the like. The currency, completeness and correctness of the information were declared by oath or solemn affirmation. The applicant provided a criminal record search that disclosed three criminal matters in 1969, and a criminal conviction in 2004. During the Law Society’s investigation of the events in 1969, V minimized the importance of the underlying events, characterizing it as a “small sexual incident” and a hearing panel found that V’s description during the application process was inaccurate and untruthful. In cross-examination, V admitted that he had deliberately misled the Law Society respecting the nature of the 1969 conviction.

Under Bylaw 4 (“Licensing”) of the Law Society of Upper Canada, an applicant for a licence “must be of good character” (s. 8(1)). The Bylaw stipulates, “An applicant who makes any false or misleading representation or declaration on or in connection with an application for a licence, by commission or omission, is deemed thereafter not to meet, and not to have met, the requirements for the issuance of any licence under the Act.” (s. 8(2)) (emphasis added)

The Hearing Panel found that s. 8(2) of Bylaw 4 was engaged by material and deliberate misrepresentations. Additionally, the Hearing Panel found that V had failed to establish his good character, applying that concept as previously addressed by the Law Society in Hyman Armstrong v. Law Society of Upper Canada, 2009 ONLSHP 29 [at paragraphs 22-29]. Good character means “qualities which might reasonably be considered in the eyes of reasonable men and women to be relevant to the practice of law,” including “an appreciation of the difference between right and wrong, and the “moral fibre to do that which is right… and not to do that which is wrong….” Good character could be assessed by considering such factors as (a) the nature and duration of the misconduct, (b) whether the applicant is remorseful, (c) what rehabilitative efforts, if any, have been taken, and the success of such efforts, (d) the applicant’s conduct since the proven misconduct; and (e) the passage of time since the misconduct.

The Hearing Panel found that the misleading of the Law Society was of recent origin. Additionally, V was convicted for fraud in 2004, and the Hearing Panel’s examination of the events showed “at least an inability to recognize the obviously fraudulent nature of the transactions in which he involved himself” [89]. Additionally, V engaged in deception to effect service of a small claims proceeding in 2008, which on its own might not be sufficient to deny V a licence, but did illustrate a tendency to “engage in conduct which exhibits a lack of appreciation for the ethical standards demanded of a licensed paralegal.” [94]

The Appeal Panel affirmed the decision of the Hearing Panel, on the basis the ruling as to good character was reasonable, and s. 8(2) of Bylaw 4 was engaged by deliberate and material misrepresentations on or in connection with an application.

Appeal decision (for stay of proceedings pending appeal): Although the court accepted V had a serious question to be decided, and he would suffer “irreparable harm” if the decision to refuse his application were not stayed (meaning harm that could neither be quantified in monetary terms nor cured), the “balance of convenience” did not favour a stay. Public interest concerns arose from evidence that V had been engaging in unauthorized practice, and a misleading (over) statement that he made in an affidavit supporting the stay application. The Law Society also argued that the public would question the regulation of paralegals if a stay were granted when two panel decisions had found against the appellant and he conceded that he had made serious misrepresentations in his registration application. Accordingly, the court denied V a stay of the decisions.