June 24, 2014

Regulatory blackjack: 21 cases in professional regulation

Administrative Law
Health Professions Review Board
Human Rights
Inquiry and Investigations
Professional Regulation
Registration and Fitness

Use of titles: Ontario’s Regulated Health Professions Act, 1991 prohibits traditional Chinese medical practitioners from using the title “doctor” until a regulation enacted under the Traditional Chinese Medicine Act prescribes its use. A Registration Regulation of the College that did not allow TCM registrants to use “doctor” was challenged by a professional association, but found constitutional, in Yuan v. Transitional Council of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, 2014 ONSC 351 (Divisional Court) [Jan. 31, 2014]

Registration – Reviews: Subpoenas issued by an applicant before the Ontario HPARB (the Health Professions Appeal and Review Board) against members of the registration committee of the College of Physicians and Surgeons of Ontario, were quashed  on the basis of deliberative secrecy, even in respect of committee members who did not decide the particular matter, in Popsor v. College of Physicians and Surgeons of Ontario, 2013 CanLII 61807 (ON HPARB).

Discipline – joint submissions:A discipline committee rejected joint submissions by a college and a respondent, based on agreed facts and providing for undertakings but no sanctions, and substituted a reprimand, but the committee’s order was set aside in Nanson v Saskatchewan College of Psychologists, 2013 SKQB 191. The committee’s misapprehension that the statute required a consequence, meaning a reprimand at minimum, was unreasonable. [39] Furthermore, the committee should not have rejected a joint submission “unless it is unfit or unreasonable.” [48] The court noted that, “The certainty that is required to induce accused persons to waive their rights to a trial or hearing can only be achieved in an atmosphere where judges and tribunals do not lightly interfere with a negotiated disposition that falls within, or at least is very close to, the appropriate range for a given offence.”

Inquiry – investigation reports: An investigative report prepared by outside legal council to the Chairperson of the Judicial Conduct Committee of the Canadian Judicial Council, following a complaint about the conduct of a judge (and to assist the Chairperson to decide about referring the matter to a hearing panel), was protected by solicitor-client privilege in Slansky v. Canada (Attorney-General), 2013 FCA 199. The court found that the investigation at issue, which involved a judge’s legal rulings and conduct of a trial, required factual and legal analysis within a lawyer’s expertise. [104] Accordingly, counsel was engaged in his capacity as a lawyer. [105]

Inquiry – concurrent criminal proceedings: A medical doctor criminally charged with sexual assault against nine former patients obtained a temporary injunction against his College requiring that he provide responses relating to nineteen complaints, pending the conclusion of his criminal proceedings, in Cockeram v. College of Physicians and Surgeons of New Brunswick, 2013 NBQB 197.

Inquiry – procedural fairness: A decision of the Complaints Committee of the Nova Scotia College of Optometrists to refer a complaint to the Hearing Committee was found procedurally fair, even though the College did not disclose an opinion from an outside optometrist about applicable practice standards to the registrant, in Levesque v. Nova Scotia College of Optometrists, 2014 NSSC 22. The court noted, however, that a different level of procedural fairness might apply to any decision of the committee to impose an interim restriction or suspension. [21] Notably, the court found the committee’s interpretation that a single incident of negligence could fall within unprofessional conduct was reasonable. [31]

Review – prematurity: A discipline committee found an inquiry committee’s decision to refer a matter to hearing tainted by an apprehension of bias, but the discipline committee’s finding was reversed by an internal appeal board, in MK Engineering Inc. v. Association of Professional Engineers and Geoscientists of Alberta, 2014 ABCA 58. The respondent appealed the reversal, but the court adjourned the appeal as premature.

Human rights: Where alleged discrimination by the Law Society of Upper Canada was expressly addressed by a discipline hearing panel, which found no discrimination, a separate complaint to the Ontario Human Rights Tribunal was dismissed, on the basis that any challenge to that decision had to proceed by way of an appeal process, in Sawnhey v. Law Society of Upper Canada, 2014 HRTO 129 (OntHRT).

Registration – criteria for reinstatement: The specific criteria that a registration committee, for example, may use to decide about reinstating an applicant’s registration or licensure, previously lost due to competence issues, is illustrated in the Manitoba case of Sowemimo v. College of Physicians and Surgeons of Manitoba, 2014 MBQB 4, where an executive committee refused an applicant’s fourth request for reinstatement. The applicant had previously been charged with 56 counts of professional misconduct, and agreed to have his registration and licence cancelled. The executive committee refused reinstatement, and the court found that the committee’s determination that reinstatement would not protect the public was reasonable. [62]

Discipline – Incivility: A registrant being fined and suspended for one week for a third instance of “his unfounded allegations and disparaging remarks against other members of the Association” is revealed in Pankiw v. Chiropractors’ Association of Saskatchewan, 2014 SKQB 21.

Inquiry – concurrent labour proceedings: A decision of a discipline committee to go forward with its own proceedings, despite a concurrent labour grievance proceeding, was upheld in Saskatchewan Union of Nurses v. Saskatchewan Registered Nurses Association, 2014 SKQB 27 (Sask.Q.B.). The respondent’s employer terminated his employment for alleged sexual abuse or harassment of co-workers, and filed a complaint to the Association about the same conduct. The respondent filed a labour grievance for wrongful termination, and proceedings under the collective agreement were running concurrent with the professional discipline proceeding.

Review – Discipline:  A court dismissed an appeal of findings of professional misconduct against two accountants for, among other things, being “associated with financial statements which they knew or ought to have known were misleading” in Danyluik v. Alberta (Institute of Chartered Accountants, Complaints Inquiry Committee), 2014 ABCA 78.

Review – Prematurity: Where a statute provides an appeal from a disciplinary decision to a regulator’s board, and the board itself decides that the appeal is on the record rather than by way of a de novo or fresh hearing, a review of the board’s decision before the board could hear the appeal on the merits was premature, despite the regulator and the appellant asserting otherwise, in Dorn v. Association of Professional Engineers and Geoscientists of Manitoba, 2014 MBCA 25. The Saskatchewan Court of Appeal decided against its intervening in an administrative process prior to a final decision based on its considering factors set out in the Matsqui Indian Band case ([1995] 1 S.C.R. 3).

Review – BC Health Professions Review Board: Any review of the BC HPRB’s interpretation of its own governing legislation (the Health Professions Act) was to be based on reasonableness, according to the BC Supreme Court in JC v. Health Professions Review Board, 2014 BCSC 372 at [31]. However, the court also found the board acting to revisit a previous decision about documents without notice of that issue was procedurally unfair. [50] Notably, the court also addressed the use of pseudonyms before the court [13-26].

Abuse of process: A respondent who undergoes a disciplinary proceeding may be bound by those findings in subsequent civil proceedings, under the doctrine of abuse of process, as illustrated in Law Society of Manitoba v. Mackinnon, 2014 MBCA 28.

Review – Prematurity: A respondent’s application for judicial review may still be premature despite the application pertaining to a decision of a disciplinary panel about its own jurisdiction, as noted by  the Ontario Divisional Court in Hamalengwa v. Law Society of Upper Canada, 2014 ONSC 1759. The court was not persuaded by the prospect of the parties possibly avoiding a four-week hearing, as the “same argument could routinely be made in many cases.” [12]

Unauthorized practice – contempt of court order: A non-registered, foreign-trained dentist was committed to prison for 45 days for contempt of a 2006 court order that enjoining him from performing dentistry in BC, in College of Dental Surgeons of British Columbia v. Shapoval, 2014 BCSC 505.

Discipline – withdrawal of admissions: Where a hearing process deems a respondent to admit the truth of certain facts if he does not deliver a written dispute within a set time, the court will also imply a right of the respondent to seek permission to withdraw the deemed submissions, and apply a common law test for allowing withdrawal, as illustrated in Voudouris v. Certified General Accountants’ Association of Ontario, 2014 ONSC 1865. The discipline committee’s refusal to permit a respondent to withdraw admissions, e.g., based on a reasonable explanation for his failing to respond during the 20 day period, was unreasonable. [48] Furthermore, the committee failed to provide reasons for not allowing the respondent to withdraw his admissions, which was procedurally unfair. [56] The court quashed the “conviction” for professional misconduct based on the deemed admissions. [58]

Complaints to Colleges – Defamation: A medical doctor sued other doctors for allegedly persecuting and ostracizing him, the defendants asserted his incompetence, and all made complaints to their college, in Fouad v. Longman, 2014 BCSC 785. The court confirmed that statements made to administrative bodies fall within “absolute privilege” and cannot give rise to liability for defamation. [86-88] Similarly, the same policy applied to HPRB proceedings, that being “the right of the public to complain uninhibited, without fear of being found wrong, and being subject to actions in defamation.” [93]

Inquiry – non-disciplinary cautions: A court declined to set aside a caution issued by the Inquiries, Complaints and Reports Committee (“ICRC”), directing that a respondent ensure she advised patients that she was providing treatments to alleviate symptoms but not treat underlying conditions outside the scope of massage therapy, in Ren v. College of Massage Therapists of Ontario, 2014 ONSC 2758. Although the ICRC delivered its caution in firm language, it made no findings of misconduct, instead accepting that her statements were inadvertent: “…the panel was not authorized to issue a reprimand in the nature of discipline, but only to issue remedial guidance. We are not, however, persuaded that the panel crossed over the line in the circumstances of this case.” [15]

Discipline – reserved titles for non-practicing registrants: A non-practicing registrant committed professional misconduct by advertising herself as a psychologist in telephone directories when bylaws required that she only hold herself out as a “psychologist (non-practising)” in Sydiaha v. Saskatchewan College of Psychologists, 2014 SKQB 112. Although a statute allowed members to use the title “psychologist”, the bylaws regulated when members could use the title. The interpretation by the college’s council of its enabling statute and its own bylaws was reasonable, and therefore upheld.

Lisa C. Fong and Michael Ng