June 19, 2011

The power to discipline former registrants

Administrative Law
Professional Regulation
Registration and Fitness

In 1987, BC courts found that a regulatory body could not discipline a former member where its enabling statute (there the Psychologists Act, R.S.B.C. 1979, c.342) did not provide for an express power over former members: “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.” Ross v. BC Psychological Association (1987), 19 B.C.L.R. (2d) 145 (C.A.).

Since Ross, statutes have increasingly conferred express disciplinary powers over former members. For example, Part 3 of the Health Professions Act defines a “registrant” to include “a former registrant”, and s. 22(2) of the Teaching Profession Act applies certain provisions to former members as if they were members. These provisions do not empower bodies to forever regulate former members for post-membership conduct, but they prevent persons from escaping inquiry for misconduct while a member by giving up membership.

The fact of a change in the statute or the regulator, and a consequent change in the power over former members may, however, complicate the question of jurisdiction, where for example a registrant commits an act under a former statute where the former body cannot discipline former members, but a new body has such a power under a new statute. This situation arose in Anthony v. British Columbia College of Social Workers, 2011 BCSC 729.

In Anthony, a registrant with the Board of Registration of Social Workers in BC (the “Board”) acted in May 2008 to provide notes to a judge in a family case conference outside his expertise. Four months later, the registrar of the Board received a complaint under the Social Workers Act, R.S.B.C. 1996, c. 432 (the “Old Act”). Before the registrant could respond, the new Social Workers Act, S.B.C. 2008, c. 31 (the “New Act”) replaced the Board with the College of Social Workers (the “College”).

The registrant resigned from the College in July 2009, prompting the College to advise him of its intention to conduct a hearing, and in September 2009, the College issued a formal citation (13). The registrant commenced court proceedings to challenge the College’s ability to issue a citation against a former registrant. The Old Act did not empower the Board to discipline former members (33), but the New Act empowered the College to discipline former registrants (34).

The registrant argued his right to resign to avoid disciplinary proceedings was an accrued right relating to conduct when the Old Act was in force, (36) and a grant by the New Act providing the College with jurisdiction over a former member committing conduct under the Old Act would give retroactive effect to the legislation. (37)

The court found the New Act was intended to prohibit registrants from resigning from the College to avoid disciplinary hearings (44). Furthermore, the New Act was intended to address conduct occurring prior to its coming into force, as any complaint made after the coming into force of the New Act that related to conduct occurring before the coming into force of the Act “must be dealt with under this Act.” (52) Even if the registrant had acquired an accrued right, “the presumption against retroactivity does not apply to statutes aimed at protecting the public. The presumption against retroactivity applies to penal statutes. Professional disciplinary proceedings are not penal in nature but, rather, are for the purpose of protecting the public….” (61)

Anthony v. British Columbia College of Social Workers, [2011] BCSC 729

Post script: One can usefully distinguish between conduct by someone while a member of a regulated profession under a former statute, and conduct by someone while not a professional at all. See the teaching profession case described here, where a Discipline Hearing Panel of the BC College of Teachers (the “Panel”) found that where conduct occurred prior to an applicant becoming a member, the College had no jurisdiction to discipline the member, as the issue was one of registration fitness and not discipline. Based on this finding, the Panel referred the matter to the College of Teachers’ Registration Fitness Investigation Sub-Committee.