General Legal Information for professionals regarding professional regulation.

General Legal Information

The College of Registered Psychiatric Nurses of British Columbia accepts no responsibility for the accuracy of this material. It is provided for general information purposes only and should not be considered as "legal advice".

Disclosure Obligations At The Complaints/investigative Stage

Generally, all administrative tribunals must ensure that they follow proper procedures when making decisions. In each situation, what is considered “proper” depends on a number of things, including the particular facts and surrounding circumstances of each case. Usually, a statute(s), regulation(s), by-law(s) and/or rules will establish the basic procedures that control the process for making decisions by an administrative tribunal. These basic procedures include: adequate notice, disclosure, the right to counsel and the right to present evidence and to cross-examine witnesses. These basic procedures are commonly found in the administrative tribunal’s governing legislation or general procedural statutes (i.e., the Statutory Powers Procedure Act, the Administrative Procedures and Jurisdiction Act, and the Administrative Tribunals Act). When the relevant legislation does not establish basic procedures, the common law procedural principles of fairness are applied to ensure that all individuals who are affected by the decisions of administrative tribunals are treated fairly.

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Governance 101

Governance is hot. Most scandals in the corporate or government world are characterized as examples of failed governance. Most reviews of regulatory bodies include numerous recommendations on improving governance. This article deals with just one aspect of governance: managing the key regulatory relationships.

The overarching theme here is that good governance, like a Jane Austen novel, requires everyone to know his or her place. Appreciating one’s role, both externally and internally is essential.

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Can You be Guilty of Misconduct if Nothing Happens?

In order to find that a practitioner has engaged in some form of professional misconduct, they generally need to either do something wrong or fail to do something that they should. For example, charging an excessive fee, releasing confidential information without consent or engaging in any form of billing fraud are obvious acts of professional misconduct. But what if a practitioner suggests an inappropriate course of action and it is never acted upon? This is one of the issues in a recent Ontario case, Yar v. College of Physicians and Surgeons of Ontario, [2009] O.J. No. 1017. It was alleged that Dr. Yar engaged in professional misconduct simply because she intended to administer a thrombolytic drug with respect to two cardiac patients when the requisite criteria for ordering the drug were absent. The interesting part about the case is that in both cases, a nurse and another physician stepped in to stop the drug from being administered. The issue really was whether a simple intent to administer the drug was sufficient for a finding that the physician breached the standards of practice of the profession.

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Conducting Investigations in Discipline and Employment Cases

One of the most challenging problems for both regulators and employers is investigating allegations of misconduct or wrongdoing. Both regulators and employers want to ensure that they conduct a thorough and fair investigation because if someone should be disciplined, all relevant evidence should be obtained before proceeding with any action. On the other hand, the investigation may show that discipline would not be appropriate.

While courts do not require that all investigations be conducted perfectly, they do require that they be conducted fairly. For example, an investigator is allowed to believe that the subject of their investigation did something inappropriate, but unless the investigator has a “closed mind”, the courts will typically not find that the investigation was conducted unfairly.

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Tribunal Participation in Hearings

Many members of regulatory hearing panels are quite cautious about actively participating in hearings. However, this is often done more out of the natural hesitation that comes from participating in an unfamiliar process than true appreciation of their limited role. Particularly where the issues relate to professional values or standards of practice, panel members may be tempted to intervene and ensure that counsel, who do not understand those issues, get it right.

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Moving Back to Simplicity

For the past three decades, at least, there has been significant debate as to how compelling the evidence must be to make a finding of serious professional misconduct. While there has generally been consensus in Ontario, at least, that the criminal standard of proof (beyond a reasonable doubt) did not apply; that is about where the agreement ended.

The debate was started in the 1977 sexual abuse case of Bernstein v. College of Physicians and Surgeons of Ontario (1977), 15 O.R. (2d) 447 (Div.Ct.). In that case, the Discipline Committee found Dr. Bernstein guilty of sexual impropriety with a patient despite a number of inconsistencies and implausibilities in the patient’s evidence. The Court reversed the finding on the basis that the Discipline Committee must have applied the wrong standard of proof in believing the patient over the physician.

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Interprofessional Collaboration

Professions can be competitive. We all know stories of disputes between professions that have had to be refereed by government. Sometimes they have even gone to court.

Some disputes are at the practitioner level. Because of differences in philosophy, gender, education or status, the practitioners rarely work together unless forced to do so. Interestingly, in those situations, the regulators of the two professions often have an excellent working relationship.

In other cases, the practitioners work together fine in the real world but the regulatory bodies have a challenge dealing with one another other productively.

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Public Reprimands

In late October the Federation of Health Regulatory Colleges of Ontario hosted a panel discussion entitled: “Reprimands: Private Peer Process or Public Spectacle” that considered the move by some regulators to conduct their reprimands in public.

Reprimands are a disciplinary sanction. They are not purely educational action administered by many complaints and investigation programs, like cautions, advice or even admonishments. Rather, they occur only after a disciplinary hearing has concluded that the member has engaged in professional misconduct.

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Duty Of Fairness At Complaints/investigative Stage

Generally, all administrative tribunals must ensure that they follow proper procedures when making decisions. Usually, a statute(s), regulation(s), by-law(s) and/or rule(s) will establish the basic procedures that control the process for making decisions by an administrative tribunal. When the governing legislation does not establish basic procedures, the common law procedural principles of natural justice and, more recently, fairness are applied to ensure that all individuals who are affected by the decisions of administrative tribunals are treated fairly.

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Interprofessional Collaboration

Professions can be competitive. We all know stories of disputes between professions that have had to be refereed by government. Sometimes they have even gone to court.

In other cases, the practitioners work together fine in the real world but the regulatory bodies have a challenge dealing with one another other productively.

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Moving Back to Simplicity

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Investigative Powers

Can an investigator compel a practitioner to undergo an interview? Can the investigator require a practitioner to allow the investigator to watch the practitioner in action? On September 26, 2008, the Divisional Court of Ontario said yes in Gore v. College of Physicians and Surgeons of Ontario.

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Role Of Independent Legal Counsel

Contested discipline hearings are less common today than they were in the past as more discipline hearings are being resolved by way of settlement through an agreed statement of facts and joint submission on penalty. Nevertheless, when contested discipline hearings take place, Discipline Committees of administrative tribunals often face complicated legal issues dealing with matters of procedure or evidence and these Committees often do not contain legally trained members with litigation experience. As a result, Discipline Committees, with increasing frequency, are retaining independent legal counsel to provide them with assistance to deal with legal issues as they arise.

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Tribunals Have A Duty To Provide Reasons

Traditionally, the principles of fairness did not impose a general duty on an administrative tribunal to provide reasons for its decision. However, in the last decade or two, the Courts have shown an increasing willingness to require tribunals to provide reasons for their decisions on the basis of the principles of fairness. In 1999, the Supreme Court of Canada gave a landmark decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.J. No. 39 when it recognized that tribunals have a duty to provide written reasons in certain circumstances. The Court stated:

In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required…

Since Baker, the Courts have continued to find a duty to provide reasons. In particular, in four very recent cases, the Divisional Court imposed a duty to provide reasons on four very different tribunals.

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More Frequent Human Rights Challenges for Regulators

As of July 1, 2008, the human rights regime has been significantly altered. The changes will make it easier for practitioners and others to challenge regulators in human rights matters.

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Reasons Relief

If there has been one dominant trend in the judicial review of tribunal decisions over the past five years, it has been about the need for tribunals to give adequate reasons. This trend has been obvious to even casual readers of this newsletter.

Intelligible reasons are not only a legal requirement, they also:

are fair to the parties who are entitled to know why the tribunal decided as it did;
foster just decisions (as decisions can only be made if the tribunal can articulate a rationale for it); and
enable a meaningful right of appeal.

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Freedom of Expression

Perhaps one of the most talked about discipline cases in recent memory is not going to the Supreme Court of Canada. This January’s Saskatchewan Court of Appeal decision in Whatcott v. Saskatchewan Association of Licensed Practical Nurses, 2008 SKCA 6 has generated widespread discussion across the country. At a recent meeting of regulators in Newfoundland, many were already familiar with the case and discussed its possible appeal to the Supreme Court of Canada. However, on May 29, 2008, that Court declined to hear the appeal.

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Deference in Judicial Review

A necessary component of effective professional regulation is appreciating that courts will scrutinize one’s actions. Regulators need to know on what basis a court will review its decisions. This will enable the regulator to make appropriate choices and to explain them appropriately.

Last month, in Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada released a major decision expressly reconsidering the approach the courts should take on judicial review. The Court acknowledged that the issue of judicial review (which, in this context, includes appeals) has been a troubling one. In fact the Court has made major modifications to its approach to the issue every decade since at least the 1960’s.

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Privacy vs. Accountability

Practitioners often wonder why it seems that the rest of the world is receiving increased privacy of their personal information while their privacy is being reduced. The tendency is for regulators to retain information about their members for longer periods of time and to put increasing amounts of those details in the public register. Most public registers are now finding their way to the websites of regulators.

For example, by June 2009, all 21 health regulators will have to put their entire register on their websites. In addition, the content of what is in the public register is being expanded to include summaries of most disciplinary and incapacity decisions and any findings of professional negligence against a member. There are a few narrow exceptions including where contact information may jeopardize the safety of an individual.

This increased transparency is somewhat at odds with what is happening in the workplace. For example, there are numerous restrictions as to what employers can collect or record about their employees. Under privacy legislation, many commercial enterprises have to be able to justify the collection of personal information about clients and, sometimes, employees. Consent is often required. In many unionized work settings, disciplinary records are automatically deleted after a brief period of time unless there is a recurrence of the activity.

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The Role of Complainants

What is the role of the complainant in the complaints and discipline process? Regulators have been increasingly enhancing the complainant’s role ensuring that they understand the process so that they can participate effectively. More and more regulators have been providing disclosure of some of the materials arising from the investigation in order to obtain information from the complainant and to involve them.

Frequently regulators attempt to include complainants in alternate dispute resolution initiatives. Some regulators even go so far as to consult with complainants when the regulator and the member are negotiating an educational resolution to a complaint (e.g., an undertaking).

These measures, to be inclusive towards complainants, are generally a good thing. Not only does this ensure that the regulator has the best possible information upon which to base its decisions, these measures also foster a more sensitive and fair complaints process. There is nothing like an aloof complaints process to create a negative public reputation for a regulator and, sometimes to act as a catalyst for legislative reform.

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Procedural Fairness in Discipline Hearings – When to “Speak to Sentence”

While discipline hearings are civil proceedings, there are many features of discipline hearings that more closely resemble criminal trials than civil trials. For example, the “prosecution” tries to prove allegations of professional misconduct against a practitioner and, from the practitioner’s point of view, these proceedings are often more like criminal trials.

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Role Of Previous Decisions In Penalty Orders

Administrative tribunals are often considered to be the same as courts even though they are very different from one another and have been created to fulfill distinct functions. The Supreme Court of Canada in Ocean Port Hotel Ltd. v. British Columbia (Liquor Control, General Manager) acknowledged that there is a fundamental distinction between administrative tribunals and courts. One of the differences between courts and tribunals is that courts are bound by precedent while tribunals are not. Even though tribunals are not bound to follow previous decisions or precedents they have an interest in considering and following previous decisions to promote fairness, certainty and consistency.

In particular, in determining the penalty to be ordered after findings of professional misconduct have been made, courts have emphasized that it is important for tribunals to consider and review the range of penalty orders made in cases with similar facts. In fact, in a recent case, the Ontario Divisional Court went as far as setting aside portions of a penalty order for failing to fully consider prior penalty decisions.

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Role Of Independent Legal Counsel

Credibility Revisited

Like judges and juries, tribunals are often asked to make findings of credibility. For regulators, credibility issues usually arise most often in the context of disciplinary hearings. In fact, the reason for having an oral hearing resembling a trial is usually because there is a disagreement between witnesses as to important events.

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Requirement to Release Reasons Rapidly

Professional tribunals are often notorious for taking a long time to give reasons for their decisions. There are a number of explanations for this including:

tribunal members are often not used to writing reasons and find it an extremely difficult task at the best of times,
tribunals usually sit in panels requiring a number of people to participate and approve the reasons,
tribunal counsel often review and comment on the reasons, further delaying the process,
tribunal members often have demanding careers which means that reasons are drafted in rare moments of spare time, and
some tribunals have administrative requirements before reasons can be released (e.g., translation, privacy reviews to remove identifying information of innocent participants, preparing to post them on the tribunal’s website, etc.).

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Expert Evidence Part I – The Expert’s Role

“Expert Witness: Friend of the Court of Hired Gun” was the title of presentation put on for professional regulators on April 26, 2007. The title reflected the main theme of the evening. To be effective, expert witnesses must be neutral, objective and fair. Three perspectives were reflected on the panel at this event sponsored by the Federation of Health Regulatory Colleges of Ontario:

Dr. Scott Woodside, a forensic psychiatrist with the Centre for Addiction and Mental Health, frequently acts as an expert witness.

Linda Rothstein, a litigator with Paliare Roland, prosecutes discipline matters for various regulators.

Jonathan Lisus from McCarthy Tétrault often defends physicians facing discipline.

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Testifying As A Witness: Immunity Revisited

In the August 2006 issue of Professional Practice and Liability on the Net, we examined the question of whether experts could be held liable for evidence that they give during the course of trials or hearings. The leading cases at the time suggested that all witnesses, including experts, are immune from lawsuits on the basis of evidence that they give in court. However, the Ontario Court of Appeal recently reversed one of those cases, which involved a physician who has recently attracted considerable media attention.

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Investigative Discretion

There was a time when some regulators believed that if there were reasonable grounds to believe that a member had engaged in professional misconduct, the allegations had to be fully investigated and referred to a discipline hearing. Few regulators still hold that view today, but many are uncomfortable with the concept of how to exercise its discretion not to investigate or refer allegations of professional misconduct.

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Potential Liability for Records in a Group Practice: What You Should Know

As most people are aware, privacy legislation has become an increasingly important part of the life of a professional. Privacy legislation first became a concern for most with the passage of the federal Personal Information Protection and Electronic Documents Act. However, provinces have also been active in this area, particularly in connection with health information. For example, in Ontario, the Personal Health Information Protection Act now governs the collection, use and disclosure of all personal health information in the province. As this is relatively new legislation, many practitioners are unaware of the full extent of their obligations under the Act. A very recent decision of the Information and Privacy Commissioner of Ontario helps to clarify the obligations of practitioners when they are in a group practice.

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Traveling With Your Laptop? Be Careful Crossing the Border

In today’s world it is, perhaps unfortunately, common that vacations are not entirely work free. Many people often take their laptops, BlackBerries and other electronic devices with them when they travel, even on holidays. However, a recent decision in the United States should make everyone consider carefully what they are bringing with them when they cross the border. In United States v. Romm, the issue was the extent to which security officials at the Canada/U.S. border can search a traveler’s laptop.

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Looking for New Work and Your Duty to Your Employer: Where Do you Draw the Line?

One of the most obvious employment trends in recent years has been increasing mobility. Whereas in the 20th century it was not uncommon to work for one employer for an employee’s entire working life, it is now much more common to switch work places more frequently. In many cases, this leads to disputes between former employers and former employees, particularly if the employee jumps to a competitor. While many of these issues are often litigated in the context of either non-competition or non-solicitation agreements, the enforceability of these provisions are sometimes called into question. However, an even more basic question is whether an employee should be negotiating a new position while that employee is still employed with their soon-to-be former employer.

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Registration and Accommodation

Every so often a case comes along that fundamentally alters one’s approach to regulation. Siadat v. Ontario College of Teachers, 2007 CanLII 253 (ON S.C.D.C.) is probably such a case. As a result, many regulators will probably think of their registration requirements (and their human rights obligations) differently.

Ms. Siadat is a teacher from Iran. She wanted to become a teacher in Ontario. The College of Teachers required satisfactory evidence of her teacher education, experience and good standing. Normally this evidence is required to be provided through the institutions providing the documents directly to the College (although, in exceptional circumstances the College will accept copies and try to verify them).

The problem was that Ms. Siadat could not provide the original documents nor would she authorize the College to verify them.

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Fairness: In the Eye of the Beholder

Administrative proceedings are increasingly being challenged on the basis of suggestions that the process wasn’t fair or the person(s) involved in investigating or deciding the matter was either actually biased or demonstrated what is called a “reasonable apprehension of bias”. For example, practitioners facing allegations of professional misconduct sometimes argue that the investigator conduced a flawed investigation or that the panel hearing the matter did not decide the matter fairly. While these sorts of allegations are occasionally made in the course of judicial proceedings as well, they are sometimes more likely to succeed before lay tribunals because they are often staffed by less experienced and, frequently, non-legally trained persons.

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Self-Represented Members

Most regulators have experienced situations where a member facing inquiry or discipline has no lawyer. As ironic as it may sound, dealing with an unrepresented member often makes the regulator’s position more challenging. The member often does not fully understand the process. Great effort is needed to educate him or her about what will happen and the expectations of the member. The duty of fairness to the member is heightened.

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Investigation Powers

One of the more intrusive powers regulators have is to conduct investigations. Investigations result in the disruption of professional practices as documents are requested and witnesses interviewed. Investigations can become known to clients and the wider community as those asked to assist learn about the official inquiry. Those who are the subject of investigations often find it to be a stressful experience.

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Criminal Disclosure Requirements Apply To Tribunals

Disclosure of potential evidence is an important aspect of the duty of fairness of an administrative tribunal. But, the extent of disclosure that is required has been discussed repeatedly in the caselaw. In particular, it is not clear whether the disclosure requirements in criminal cases apply to administrative tribunal proceedings. For a long time, there was no duty to provide additional disclosure other than what was specifically required by statute including the administrative tribunal’s governing statute. More recent cases suggest that the general principles of disclosure from criminal cases also apply to administrative tribunal proceedings that are disciplinary in nature. One such recent case is the decision of the Divisional Court in Waxman v. Ontario (Racing Commission).

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“Public Interest Mandate of Discipline: A Quaint Notion or the Real Deal?

The above topic was discussed at an evening presentation sponsored by the Federation of Health Regulatory Colleges of Ontario on October 18, 2006. The presenters were The Honourable Justice John Evans, (of the Federal Court of Appeal) and Professor Joan Gilmour (of Osgoode Hall Law School). Lawyer Brian Gover moderated the discussion.

Both speakers concurred that the only reason for professional self-regulation was as a means to achieve the public interest. Professor Gilmour stated that public interest discipline processes “better be the real deal”. Justice Evans asserted that it had to be “the only deal”. The public interest should permeate every aspect of professional self-regulation. As the discipline process was often the most visible face of professional regulation, it had to explicitly demonstrate the public interest was being served.

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Professional Freedom of Expression Revisited

While most expect that professionals can be disciplined for what they say in the course of practicing, a recurring question is whether there are limits to what professionals can say outside of the workplace. A pair of cases affirms the principle that there are indeed limitations.

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Competition Bureau Flexes Muscles Over Provincial Professional Regulators

For many years professional regulators felt that they were immune from review of their actions by the federal Competition Bureau. In two leading cases the courts had indicated that professional regulators had protection for their actions under the Regulated Conduct Doctrine (RCD).

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Implications of Disclosure Obligations for Investigators

Perhaps the most significant development for professional discipline in the past 15 years has been the disclosure revolution. Regulators generally have to disclose all potential evidence it possesses related to a discipline matter regardless of whether the evidence would help or hurt in the prosecution of the case and regardless of whether the regulator believes the evidence is accurate or not. Disclosure duties include information contained in files other than the investigation file itself. Disclosure should also be made of information that relates only to the credibility of witnesses (e.g., prior acts of dishonesty by the witness).

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Registering Applicants with Disabilities

It is well recognized that employers and regulators cannot discriminate on the basis of disability. Many employers and regulators even choose not to ask any questions about disabilities in the hiring or registration process for fear of appearing to discriminate on that basis.

However, regulators can consider the health status of applicants for registration where they relate to a bona fide requirement for practising the profession. Where the illness or other disability of the applicant prevents the applicant from performing an essential element of the profession, the regulator can refuse to register the applicant.

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“But You Said It Was OK”: The Defence of Officially Induced Error

Most would agree that there seem to be more and more rules and regulations everywhere. This is as true for self-regulating professions as for any other field of endeavour. Practitioners therefore can't be blamed if they ask their regulator for advice from time to time, particularly about “tricky issues”.

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New Directions for Health Regulation

On May 19, 2006, the Minister of Health and Long Term Care (Ontario) released the report entitled New Directions written by his advisory Council. The Health Professions Regulatory Advisory Council (HPRAC) report recommends comprehensive changes to the statute that governs the 21 health regulatory Colleges.
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Formulating Sanctions

Coming up with the appropriate penalty (often called orders or sanctions to avoid the language from criminal proceedings) at a discipline hearing is challenging. Tribunals are told that a sanction is not a punishment and is not designed to exact revenge. Rather, such orders are intended to be protective and corrective.
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Discipline Penalties

One of the more difficult decisions made by professional regulators is imposing a penalty in discipline cases. (Many regulators use the word “sanction” or “order” to distance discipline from the criminal process.) It is very difficult for discipline committees to assess what sanction is appropriate in a particular case. Two recent decisions of the Ontario Divisional Court have demonstrated a deference to discipline orders imposed by tribunals, at least where the tribunal gives good reasons.

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Duty To Warn

The duty of a practitioner to warn clients and third parties of risks has evolved over the past three decades. It may soon evolve, at least in some professions, to a duty to warn clients, affected third parties and the regulator of any significant errors made by the practitioner.

There probably has always been a duty to warn clients of any material fact that poses a significant risk of harm to them. For example, an engineer who learns that a material used in construction of a safety sensitive structure (e.g., bridge, dam) is well below specifications and poses a risk of catastrophe would warn clients of past projects of this development. However, there has been an expansion in recent years as to whom such warnings ought to be given and at what level of risk of harm such a warning should be given.

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The Legal Effect of Standards and Guidelines

Most regulators publish informal documents for their members. These documents can be called standards of practice, guidelines, codes, practice parameters, or position statements. Typically, these informal documents provide assistance to members in areas of practice, ethics, regulator expectations or even legal developments.

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Mandatory Reporting Obligations

Due to a recent decision of the Supreme Court of Canada, regulators may have to educate practitioners about their legal protections when making a mandatory report.

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Remedial Orders

Professional regulators often make orders or enter in agreements to resolve concerns about a member’s conduct. Sometimes these are called sanctions and sometimes even penalties (although this is discouraged because this language reinforces the misconception that professional regulation is quasi-criminal in nature). These orders or agreements can arise during the screening phase of an investigation (e.g., a complaints or investigation committee disposition), discipline or professional conduct hearings, notices of proposals to restrict registration or even in quality assurance processes.

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Does One Error Constitute Professional Misconduct?

As professionals well know, the phrase “nobody’s perfect” applies to them as much as it applies to anyone else in the work force. Regardless of a person’s calling, everyone makes an occasional mistake during the course of their work. However, professionals are typically held to a much higher standard than “non-professionals”, or non-regulated employees. A question often arises as to whether what may variously be described as an error, mistake or breach of the standard of practice of a profession always constitutes professional misconduct, meriting some form of discipline. This issue was considered in a very recent case involving a pharmacist.

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Conflicts Between Employer and Regulator: Resolving Inconsistent Demands

A recurring problem for many professionals is what to do when they are asked by employers or colleagues to engage in conduct or practices that the professional believes conflict with their obligations to their profession and, in particular, to their regulator. Professionals are sometimes concerned about engaging in professional misconduct, such as falling below the standards of their profession, if they follow directions from their employer. On the other hand, if they refuse to follow their employer’s instructions, they are concerned that they will be disciplined, or that their employment will be terminated.

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Does The Duty to Disclose Include Personal Disclosure by Professionals?

Much has been written about the duty to disclose material risks of advice or procedures that professionals suggest to their patients or clients. These cases usually turn on what risks ought to be disclosed and whether the patient or client would have proceeded with the advice or procedure had these risks been disclosed. However, the Alberta Court of Appeal recently considered a rather unique situation where the suggestion was that a physician ought to have disclosed information about his own physical status.

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Responding to Your Regulator: Dos and Don'ts

As most professionals know, regulators have considerable authority to regulate their members. Professionals often wonder what rights they have when their regulator makes inquiries, inspects their practices, or investigates allegations of misconduct, incompetence or incapacity.

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Responding to Complaints: Don’t Make Matters Worse

One of the most stressful experiences for anyone, particularly professionals, is responding to a complaint. Virtually all regulators report that the numbers of complaints that are being registered against professionals in all areas are increasing. While previous issues of this newsletter have provided general advice on how to respond to complaints, there are two particular, recurring areas that can make matters worse when responding to a complaint.

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Fairness in the Investigation Process: What Are Your Rights?

In recent years, regulators have been facing increased scrutiny over how they investigate their members, particularly when the regulator investigates serious allegations of misconduct. Professionals (and their counsel) are making more and more demands during the investigative process and regulators are responding to these demands in a number of ways.

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Liability of Regulators, Revisited

The Supreme Court of Canada recently decided that, generally speaking, regulators cannot be held responsible for losses caused by professionals regulated by them. However, a recent case in Quebec suggests that regulators may not have as much protection as the Supreme Court cases suggest. In Finney v. Barreau du Quebec, the Quebec Court of Appeal ordered the Quebec Law Society to pay $25,000 in damages to a Montreal schoolteacher for failing to adequately regulate a lawyer.

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The Locality Rule: Do Standards of Practice Change Depending on Where You Live

For many years, practitioners in different disciplines assumed that they were protected from liability if they merely lived up to the standard of practice in their own community or similar localities. This has historically been known as “the locality rule”. It was derived from an early Supreme Court of Canada decision in which the court set out the following test to determine whether a practitioner falls below the standard of practice:

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Investigating Misconduct: Practitioners' Rights and Obligations?

As reported in the March 2002 issue of this newsletter, the Divisional Court in Ontario recently affirmed a regulator’s right to investigate its members for, among other things, professional misconduct. In Butterworth v. College of Veterinarians of Ontario, [2002] O.J. No. 1136, the Divisional Court held that regulators are not obliged to provide the same procedural protections to their members during the investigative phase as they must provide during the adjudicative (i.e. Discipline Committee) phase. The basis for this principle is that investigators typically do not decide whether a member has engaged in professional misconduct but simply report the results of the investigation to the Registrar. Therefore, some regulators have taken the position that they are under no obligation to disclose information to members during the course of an investigation, particularly when the investigation is just commencing, although many regulators disclose information to the member at some point before the conclusion of the investigation.

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Saying “I’m Sorry” Shouldn’t Be So Hard

Practitioners in virtually every profession often wonder whether there is anything that they can do to reduce the odds of their clients or patients complaining about them or suing them. A recent piece in the Wall Street Journal demonstrates that one of the most effective ways of avoiding complaints and lawsuits is simply to say “I’m sorry”.

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Obtaining Disclosure During an Investigation: How Much Can You Get?

Whenever a regulator begins to investigate allegations of misconduct against one of its members, the practitioner is often anxious to obtain as much information from the regulator as possible. In fact, practitioners often retain counsel at the early stages of an investigation, and ask that the regulator disclose everything in the regulator’s possession about an investigation before responding to the allegations.

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Employee or Independent Contractor: What is the Test?

Professionals often consider themselves to be “independent contractors”, as opposed to “employees”. Two of the more common reasons for characterizing themselves this way is because they provide services to a range of different clients or organizations. There is also an obvious tax advantage to being an independent practitioner as opposed to an employee.

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Investigating Complaints: How Much Control Should the Complainant Have?

One of the most important functions of a regulator is investigating complaints and, where appropriate, disciplining its members. A question often arises as to how much influence a complainant should have over the complaints or investigation process.

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Frivolous Complaints: Is There Anything You Can Do?

Most statistics show that regulators are dealing with an increasing number of complaints against practitioners in virtually every profession. There are probably a number of reasons for this trend. In addition to the fact that more people are becoming increasingly aware of their right to complain, society, generally, has become increasingly litigious. Further, since it does not cost a complainant any money to launch a complaint, it only make sense that the number of complaints seems to be growing.

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Conducting Discipline Hearings: It’s Not as Easy as it Looks

One of the most important functions of any regulator is dealing with complaints and, in appropriate cases, disciplining its members. Discipline hearings in most cases are quite formal, and tend to resemble courtroom trials (although not trials as seen on television). To someone unfamiliar with the process, it may appear that it is easy to conduct a hearing into allegations of professional misconduct. However, the reality is that it is very difficult to do so.

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Discrimination in the Workplace: An Employer's Obligations

While this may surprise some, overt discrimination, including racial discrimination, still exists in many workplaces. Smith v. Ontario (Human Rights Commission), 2005 CanLII 2811 (Div. Ct.) is another case in which an employer was held liable for discrimination in the workplace as a result of a complaint made to the Ontario Human Rights Commission.

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Vicarious Liability: When You Should Worry About Your Colleagues

Professionals are often held responsible, both by their regulator and by the courts, not only for their own conduct but for the conduct of their employees. However, a more difficult issue arises when professionals enter into business relationships with each other and share facilities. Often, a question arises as to whether one professional is responsible for the acts or omissions of colleagues with whom they practice.

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Vicarious Liability in the Workplace: Focus on Health Care

Professionals often wonder whether they are responsible for negligent or even dishonest acts of other practitioners, including their employees. For example, while hospitals are typically “vicariously liable” (or strictly responsible) for their employees, such as nurses and technicians, regulated health practitioners are not usually responsible for the conduct of other practitioners. However, a recurring issue in recent years is whether employers are vicariously liable for the sexual misconduct of their employees when their employees are providing health care.

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Proving Professional Misconduct: What is the Test?

Discipline Committees have long struggled with the problem of trying to understand the level of certainty they must have before finding that a professional has engaged in professional misconduct. This problem is particularly difficult when it comes to credibility. For example, when a client or patient says one thing and a member says another, how does the Discipline Committee decide what happened and whether the professional is guilty of professional misconduct?

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Probation Periods and Reference Letters: Some Recurring Issues Clarified

Many employers believe that if an employee is on probation, their employment can be terminated summarily, that is, without any notice or pay in lieu of notice. However, a recent case in British Columbia is consistent with a number of other cases that establish that even if an employee is on probation, he or she will still be entitled to some degree of notice or pay in lieu of notice unless the employment contract clearly stipulates otherwise.

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College of Registered Psychiatric Nurses of B.C.

CRPNBC Office

Suite #307 - 2502 St. Johns Street
Port Moody,
British Columbia
Canada
V3H 2B4
Tel: 604-931-5200
Fax: 604-931-5277
BC Toll Free: 1-800-565-2505

Board of Directors

Dorothy Jennings - Chair
Ross Stewart - Vice-Chair
Michele Robson - Finance Officer
Paul Anderson - Director
Anna Helewka - Director
Bill MacDonald - Director
Judith Macrae - Director
Karen Rai - Director
Rosanne Rothenberg - Director

Staff

Dr Jacqollyne Keath
Executive Director / Registrar
Linda Syssoloff, Deputy Registrar/Practice Consultant
Charmaine Murray, Bookkeeper
Terry Roach, Secretary