PROSECUTING CASES BEFORE PROFESSIONAL BODIES DARCIA G. SCHIRR, Q.C. Presentation October 11 and 12, 2011

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1 PROSECUTING CASES BEFORE PROFESSIONAL BODIES DARCIA G. SCHIRR, Q.C. Presentation October 11 and 12, 2011 INTRODUCTION Prosecuting cases before professional regulatory bodies can be challenging for all of the reasons set out in Mr. Salte s paper. It is however a fascinating area to practice in because it is an opportunity to learn all about drug dispensing practices, inappropriate boundaries between social workers and their clients and breaches of confidence by registered psychiatric nurses to name only a few examples of professional misdemeanours and felonies. Prosecuting discipline cases is an odd and perhaps uneasy mix between civil and criminal proceedings and that also makes this area of the law interesting and challenging. Further and with the exception of a select group (such as lawyers doings CMPA work), many lawyers do not make it a regular part of their practice to appear on behalf of members before disciplinary bodies. To that extent, my portion of the presentation will focus on some topics that should be of interest and application to lawyers who may occasionally appear before disciplinary bodies on behalf of the professional from the point of view of the prosecutor. For both the dabbler and for the lawyer whose exclusive practice is in professional regulation, there are some essential reference materials: 1. Casey, The Regulation of Professionals in Canada (Carswell) 2. Manuel and Donszelmann, Law of Administrative Investigations and Prosecutions (Canada Law Book) 3. Braverman, Administrative Tribunals: A Legal Handbook (Canada Law Book)

2 Page 2 4. Hamilton, Self-Govering Professions: Digest of Court Decisions (Canada Law Book) 5. MacKenzie, Lawyers and Ethics: Professional Responsibility and Discpline (Carswell) 6. Ombudsman Saskatchewan, Practice Essentials for Administrative Tribunals. Many discipline committees of professional regulatory bodies publish their decisions on CanLII. Further, you will find discipline decisions available on the websites of some professional organizations in Saskatchewan and across Canada. It is also relevant to point out that a number of the professions legislation in Saskatchewan follows a template and with the exception of the medical profession, most of the health professions legislation follows a template. This said, there are differences even between the template legislation and a careful review of the governing legislation is always necessary. Unlike other jurisdictions, Saskatchewan does not have omnibus or umbrella legislation dealing with professional discipline. For example British Columbia, Alberta, Manitoba and Ontario have regulated health professions legislation. The Ontario legislation, for example, contains a procedural code for discipline hearings involving certain regulated health professions. Ontario also has a Statutory Powers Procedure Act which appears to set out a code for statutory tribunals. Saskatchewan has none of that. As such, you must fully review the relevant sections of the governing legislation, any bylaws, rules or policy statements on investigation, prosecution and discipline. (For a thorough review of the history of template legislation and an argument for umbrella legislation, see the article by Merrilee Rasmussen, Q.C. Umbrella Professions Legislation: A Made in Saskatchewan Approach, Saskatchewan Law Review 2010, Volume 73, page 285). Given the limited time available, I will focus on the following: 1. Disclosure obligations;

3 Page 3 2. Pre-hearing conferences; 3. Costs. DISCLOSURE OBLIGATIONS Any lawyer with even a passing involvement in criminal law is aware of the Supreme Court of Canada decision in R. v Stinchcombe. Simply put, Stinchcombe imposes an obligation on the prosecution to disclose all material in its possession that has a reasonable possibility of being relevant, whether inculpatory or exculpatory. This would include material and documents that may rebut the prosecution s case, information that could be used to advance a defence and information and documents that may be used in making tactical decisions. Stinchcombe set a high standard for disclosure in criminal cases. standard and duty apply to discipline proceedings before a Discipline Committee? Does that As James Casey notes at page 8-27 and 8-28 of The Regulation of Professions in Canada, there seems to be some debate in the case law as to whether the Stinchcombe level of disclosure applies to discipline proceedings. In the Ontario decision of Markandey v Board of Ophthalmic Dispensers Ontario [1994] OJ No 484, the standard of disclosure is described: The importance of full disclosure to the fairness of the disciplinary proceedings before the Board cannot be overstated. Although the standards of pre-trial disclosure in criminal maters would generally be higher than in administrative matters (See Biscontti et al v. Ontario Securities Commission, supra), tribunals should disclose all information relevant to the conduct of the case, whether it be damaging to or supportive of a respondent s position, in a timely manner unless it is privileged as a matter of law. Minimally, this should include copies of all witness statements and notes of the investigators. The disclosure should be made by counsel to the Board after a diligent review of the course of the investigation. Where information is withheld on the basis of

4 Page 4 its irrelevance or a claim of legal privilege, counsel should facilitate of review of these decisions, if necessary. The absence of a request for disclosure, whether it be for additional disclosure otherwise, is of no significance. The obligation to make disclosure is a continuing one. The Board has a positive obligation to ensure the fairness of its own processes. The failure to make proper disclosure impacts significantly on the appearances of justice and the fairness of the hearing itself. Seldom will relief not be granted for a failure to make proper disclosure. This passage from Markandey has been accepted and adopted by the Saskatchewan courts: Thompson v Chiropractors Association Saskatchewan (1996) Bailey v Saskatchewan Registered Nurses Association (1998) I would suggest that in Saskatchewan the standard is Stinchcombe disclosure with the same consequences for non-disclosure or inadequate disclosure. Some professional regulatory bodies in Saskatchewan codify the disclosure obligation. For example, the Law Society of Saskatchewan Rules contain this provision which appears consistent with Stinchcombe: 432.(1) Counsel to the Conduct Investigation Committee shall fully disclose to the member the evidence which counsel to the Conduct Investigation Committee intends to introduce at the hearing, and: (a) a copy of all relevant documents in the possession of the Society or under its control or power, except to the extent that the documents are privileged; (b) the names of all persons counsel to the Investigation Committee intends to call as witnesses as well as copies of any written statements, or where no written statements exist, a summary of the witnesses anticipated evidence.

5 Page 5 Similarly the Regulatory Bylaws of the Saskatchewan College of Physicians and Surgeons have provisions dealing with disclosure (see section 11.2). Interestingly the College of Physicians Bylaws provides that disclosure is a two way obligation in that both the physician and the College must provide disclosure to each other. Section 11.2(b) provides: 11.2(b) Not less than two weeks prior to the date set for the commencement of a hearing before the Discipline Hearing Committee, the physician who has been charged and the College will provide to each other the following information and documents: (i) the names of each of the witnesses which that party intends to call to give evidence at the hearing; (ii) A summary of the evidence which that party expects will be given by that witness; (iii) If a witness will be called to give expert evidence, a summary of the qualifications of that witness; (iv) A list of all documents which the party intends to introduce into evidence at the hearing. Such party shall permit the other party to examine such documents and to obtain copies of all such documents, at the cost of the party requesting the documents. The Law Society Rules by comparison do not have similar provisions for reciprocal disclosure. None of the regulated health professions that I work with have specific provisions for disclosure and certainly none of them have reciprocal disclosure obligations. In the absence of rules, the practice has been that disclosure is a one way street namely an obligation imposed on the investigatory body. Presumably the rationale for one-way disclosure in the disciplinary context is rooted in the quasi-criminal nature of the proceedings. However and even in the criminal law context, there is some obligation for disclosure by the defence when the defence intends to call expert testimony (see section of the Criminal Code).

6 Page 6 In the absence of disclosure rules, my experience with counsel representing professionals has been a positive one, particularly insofar as expert testimony is concerned. It is always my suggestion that if counsel for the professional is calling an expert, the Rules of Court should be used as a guide as the point of those Rules is efficiency and fairness. It is in no one s interest to have the proceedings adjourned because the defence is calling an expert and the substance of that testimony has not been disclosed in advance. PRE-HEARING CONFERENCES Some regulatory bodies in Saskatchewan have implemented a pre-hearing process which is intended to sort out management issues related to the hearing. The SRNA for example has been utilizing pre-hearing conferences in cases where the hearing is expected to be lengthy and/or will not proceed on the basis of an Agreed Statement of Facts. Like a management pre-trial in Court of Queen s Bench or the pre-trial process in Provincial Court, the purpose of a pre-hearing conference in the disciplinary context is to streamline the process. Pre-hearing conferences can accomplish a number of goals including: discussing and obtaining agreement on procedural matters discussing and obtaining agreement on technical matters such as special needs accommodations, interpreters a discussion of any preliminary applications and providing some time lines as to when the applications might be brought. The Law Society of Saskatchewan has just implemented a pre-hearing conference process. Attached is a copy of the form that is being used. A formal model for pre-hearing conferences is likely to be in place with larger well resourced professional regulatory bodies such as the SRNA and the Law Society.

7 Page 7 COSTS All of the template legislation includes a provision on costs and the provisions are essentially the same. Section 27(2)(a)(ii) and (b) of the Registered Psychiatric Nurses Act is an example: 27(2) In addition to any order made pursuant to subsection (1), the discipline committee may order: (a) that the member pay to the association within a fixed period: (ii) the costs of the investigation and hearing into the member s conduct and related costs, including the expenses of the professional conduct committee and the discipline committee and the costs of legal services and witnesses; and (b) where a member fails to make payment in accordance with an order pursuant to clause (a), that the member be suspended from the association. The scope of costs under the Medical Profession Act may be even broader. Section 54(1)(i) provides: 54(1) Upon receipt of a report pursuant to section 52, in the case of a person found by the discipline hearing committee to be guilty of unbecoming, improper, unprofessional or discreditable conduct, the council may: (i) direct the person to pay the costs of and incidental to the investigation and hearing, including the costs of solicitors, members of the preliminary inquiry committee, members of the discipline hearing committee, members of the council, assessors, court reporters and witnesses, and all other costs related to the investigation and hearing, or any part of those costs.

8 Page 8 Liability for Costs: The Registered Psychiatric Nurses Act does not contain any provision that makes the Association or its statutory committees liable for costs. Only the registered psychiatric nurse who has been found guilty is liable for costs. This is a consistent approach in most of the professions legislation in Saskatchewan. The Law Society has recently taken a new approach to costs. Part of the recent amendments to the Legal Professions Act, 1990 includes a provision that the Law Society may be liable for costs. Section 53(8) of the Act states: 53(8) The hearing committee may order the society to pay the costs of the hearing to the member whose conduct was the subject of the hearing if: (a) the hearing committee finds that the formal complaint is not well founded; and (b) it is established, to the satisfaction of the hearing committee, that the formal complaint was made without reasonable grounds. I am not aware of other professions legislation in Saskatchewan that includes a similar provision making the regulatory body liable for costs. Of course, the absence of any specific provision in legislation or the rules is not an impediment to an action for malicious prosecution or negligent investigation. That is a topic beyond the scope of this discussion. General Principles as to Costs: As a general statement, the courts on judicial review give considerable deference to the decisions of disciplinary committees. I would submit that one area in which the court may show greater scrutiny is cost provisions of discipline committee orders. At pages through of his text, Casey sets out examples of some very high costs awards that were reviewed and reduced by the courts.

9 Page 9 In a written presentation by my colleague, Bryan Salte entitled Recent Developments in the Law of Professional Regulation, he concisely sets out the considerations a court will consider in reviewing a cost award and those are as follows: 1. Whether the costs are so large that they are punitive; 2. Whether the costs are so large that they are likely to deter a member from raising a legitimate defence; 3. The professional s financial status; 4. The regulatory body should have provided full supporting material for the amount of costs claimed; 5. The regulatory body should have provided the professional with an opportunity to respond to the information and respond to the total quantum of costs sought; 6. The regulatory body should provide reasons for the decision it made regarding costs. In a Newfoundland case called Jaswal v. Newfoundland Medical Board (1996) NJ No. 50, the court set out a non exhaustive list of factors for a tribunal in making a cost order : 1. the degree of success, if any, of the physician in resisting any or all of the charges 2. the necessity for calling all of the witnesses who gave evidence or for incurring other expenses associated with the hearing 3. whether the persons presenting the case against the doctor could reasonably have anticipated the result based upon what they knew prior to the hearing 4. whether those presenting the case against the doctor could reasonably have anticipated the lack of need for certain witnesses or incurring certain expenses in light of what they knew prior to the hearing

10 Page whether the doctor cooperated with respect to the investigation and offered to facilitate proof by admissions, etc. 6. the financial circumstances of the doctor and the degree to which his financial position has already been affected by other aspects of any penalty that has been imposed. At least one regulatory body that I work with has a specific policy regarding costs. The Saskatchewan Registered Nurses Association has a Council policy that gives guidelines to the Investigation Committee in making a recommendation to the Discipline Committee as to costs. The recommendation is 50% of the costs to a maximum amount of $5, The policy goes on to indicate that the Discipline Committee is not bound by that recommendation. Collection and Recovery of Costs: The usual remedy set out in professions legislation is that a member is suspended until the costs are paid. An example is seen in section 29(2)(d) of the Social Workers Act: 29(2) In addition to any order made pursuant to subsection (1), the discipline committee may order: (a) that the member pay to the association within a fixed period: (ii) the costs of the investigation and hearing into the member s conduct and related costs, including the expenses of the professional conduct committee and the discipline committee and costs of legal services and witnesses; and (b) where the member fails to make payment in accordance with an order pursuant to clause (a), that the member be suspended from the association. The Social Workers Act has no specific provision regarding the enforcement and collection of unpaid costs. The absence of such a provision is consistent with the majority of professions legislation in Saskatchewan.

11 Page 11 The legislation governing the medical profession is different as it provides that the costs order made by the discipline hearing committee has the force and effect of a Queen s Bench Judgment. Section 54.1 of the Medical Profession Act, 1981 is as follows: 54.1 Where a person defaults in the payment of any: (a) costs directed or imposed pursuant to subsection 45(12) or subsection 54(1) or (2) to be paid by the person; (b) fine imposed on the person pursuant to clause 54(1)(f); or (c) penalty imposed on the person pursuant to subsection 54.01(2); the registrar may file a statement certifying the amount of the costs or fine in the office of the local registrar of Her Majesty s Court of Queen s Bench for Saskatchewan at any judicial centre, and when so filed payment of the amount set out in the statement may be enforced as a judgment of the court. I believe the Medical Professions Act is unique in this regard as a quick review of the approximately 30 pieces of legislation governing professions does not show a similar provision. As an aside, some professions legislation allows discipline committees to make restitution orders and those restitution orders have the force and effect of a court judgment. For example, section 56(1)(e) and (2) of the Funeral and Cremation Services Act provides: 56(1) Where the discipline committee finds a licensee guilty of professional incompetence or professional misconduct, it may make one or more of the following orders: (e) an order requiring the licensee to pay restitution to any person as compensation for a financial loss suffered

12 Page 12 by that person as a result of the licensee s professional incompetence or professional misconduct; (2) Where a licensee does not comply with an order pursuant to clause (1)(e) within 15 business days after the day on which a copy of the order is sent to the licensee, the person named in the order may file a certified copy of the order with the Court of Queen s Bench and enforce the order as if it were a judgment of that court. There is a similar provision in the Real Estate Act (Section 38(1)(e) and (g). In the absence of a provision that makes a costs order a Queen s Bench judgment, the question is what steps the regulatory body can take to collect the costs other than suspension. More specifically, can the regulatory body sue to recover the unpaid costs? The case law is in conflict on this and there are three cases that I am aware of: 1. Saskatchewan Veterinary Medical Association v Hashimoto (1991) 184 SaskR 130 (ProvCt); 2. New Brunswick Association of Real Estate Appraisers v Poitras [2005] NBJ No. 545 (CA) 3. Telecommunications Workers Union Local 202 v Macmillan [2008] ABQB 657 In the Hashimoto case, the Veterinary Association brought small claims proceedings against a member for payment of outstanding fines and costs ordered by a discipline committee. The Veterinarians Act, 1987 contained a provision that the member would be suspended for non-payment of fines and/or costs but no other sections dealing with collection and enforcement. The court concluded that unpaid fines and costs did not constitute a debt to the Association and that the Association s remedy was through the suspension route only. At page 134 Judge Whelan stated: As this is a statutory process and obligation, I am loathe to read more into the statute than it provides. I am not

13 Page 13 prepared to augment the remedy provided for enforcement of the obligation without specific wording to that effect. Although Judge Whelan did not specifically indicate this, the Small Claims Act has provisions outlining the jurisdiction of the court. Section 3 of the Small Claims Act, 1997 provides: 3(1) Subject to subsection 7, this Act applies, whether or not the Crown is a party to the action, to any claim or counterclaim for: (a) debt or damages. In the Poitras case, the Real Estate Appraisers Association sued Poitras in Small Claims Court seeking collection of a fine and costs ordered by a discipline committee. The Small Claims court held it did not have jurisdiction but the reasons were very limited. On appeal to the Court of Queen s Bench, the Association s claim was dismissed. The matter ended up in the Court of Appeal. The New Brunswick Court of Appeal allowed the appeal. Robinson, J.A. stated: There is no legal basis for denying the Association the right to resort to the courts to compel payment of monies that are owing unconditionally. To hold otherwise would mean that the only practical means for compelling payment is for the Association to refuse to reinstate a member until such time as all fines and costs are paid. However, this remedial option is displaced in those cases where the disciplined member has no intention to seek reinstatement. Consequently, it would be the Association and its members that would have to bear the financial burden of unpaid costs incurred as a result of the need to pursue disciplinary hearings that are undertaking in the public s interest.

14 Page 14 The court found that an unpaid fine and costs qualified as a debt at common law. To use the language of the judgment... all interpretive roads lead to the conclusion that the term debt as found in the Small Claims Act is not to be given a restricted meaning. In the Macmillan case, the union, in accordance with its constitution, had levied fines against union members for crossing the picket line. The union constitution contained a provision that if the fine was not paid, the member would be suspended. The constitution did not include any other provisions as to collection of the fine. The union sought to sue a member in Provincial Court for an unpaid fine. The Alberta Provincial Court declined jurisdiction, finding that a fine was neither a debt nor damages within the meaning of the jurisdiction sections of the Provincial Court Act. The union appealed to the Court of Queen s Bench. The Alberta Court of Queen s Bench dismissed the union s appeal and upheld the Provincial Court decision. The application of the Macmillan case may be arguable as it deals with a union constitution as opposed to a statutory regime and further, its focus was a fine as opposed to costs. From the view of the regulatory body, a strong argument can be made that the approach in the New Brunswick Association of Real Estate Appraisers v Poitras case is the correct one.