Reasons for Decision

Transcription

1 DISCIPLINE COMMITTEE OF THE Panel: Georges Boiseé, Public Representative, Chairperson James Kwaateng, Member Brian Gushulak, Public Representative Between: Immigration Consultants of Canada Regulatory Council And Patricia Harper for Immigration Consultants of Canada Regulatory Council Muhammad Watto, R ICCRC File No. CD ; CD ; Andrew Roman for the Panel of the Discipline Committee Date of Hearing: December 10, 2015 Date of the Reasons for the Decision: February 16, 2016 Introduction Reasons for Decision The complaint was heard by conference call of a panel of the Discipline Committee of the three members listed above, on December 10, The panel reviewed and discussed the written submissions of the parties provided to the panel before the hearing. Page 1 of 8

2 Also attending the conference call were Lawrence Barker, ICCRC Registrar and Corporate Secretary for ICCRC; Carla Gelbloom, who recorded the minutes and the panel s independent legal counsel, Andrew Roman. Neither of the parties was present at the December 10, 2015 hearing. Recommendation to Abandon Prosecution Regulation of ICCRC Members ICCRC regulates the conduct of its members, Regulated Canadian Immigration Consultants ("RCIC"). ICCRC s Code of Professional Ethics (the "Code"), sets out rules for the conduct of members and students. The primary purpose of the Code is to protect the public from unprofessional, unethical and/or incompetent practice by ICCRC members. ICCRC's Investigation Team investigates complaints against members and submits a report for review by the Complaints Committee. The Complaints Committee decides whether the complaint should be referred to the Discipline Committee. Abandonment of Prosecution A complaint referred to the Discipline Committee may require a hearing of the evidence, but in rare cases, Counsel for the Applicant ICCRC ("Applicant's Counsel") may consider that there is little to no chance of success in prosecuting the Member and will recommend that the Discipline Committee proceeding should be abandoned rather than proceeding to a hearing, or recommends abandonment for reasons of fairness. The Discipline Committee has the discretion to accept or reject this recommendation. For the reasons set out below, the Applicant's Counsel recommended that the Complaints against Muhammad Watto ("Mr. Watto" or the "Member") in ICCRC Files CD , CD , CD , and CD be abandoned and therefore, that no Notices of Referral be issued. The Complaints Background Information Four Complaints were made against Mr. Watto in 2013 as set out in ICCRC Files CD , CD , CD , and CD Of the 4 Complaints, 1 was initiated by RCIC, Complainant #1; by RCIC Complainant #2, and by ICCRC itself, Complainant #3. Page 2 of 8

3 All of the Complaints against Mr. Watto alleged breaches of Article 4 of the Code -Professionalism. All of the Complaints were about postings allegedly made by Mr. Watto on his own website and/or the website of RCICVOICE during the course of an ICCRC election. At or around the same time as these Complaints against Mr. Watto, Mr. Watto made similar, electionrelated Complaints against 4 RCICs, also alleging breaches of Article 4 of the Code. Mr. Watto s Complaints included Member #1 and Member #2. The Complaints by and against Mr. Watto were substantially similar in that they all alleged unprofessional comments made during the 2013 election campaign about candidates for ICCRC s Board of Directors. Both Mr. Watto and the other RCIC Complainants were running for positions on the Board. All the RCIC Complaints alleged that the subject of the complaint had posted or otherwise disseminated inaccurate, misleading, or defamatory comments about one or more RCICs. In responding to all of the Complaints Mr. Watto acknowledged authoring postings made to his own website. He also acknowledged supporting RCICVOICE, but denied that he was the author of postings on the RCICVOICE website. Summary of Complaints (a) CD Complainant #1, alleged that Mr. Watto breached the Code in the postings to the Member's website and the website of RCICVOICE. In his allegations against Mr. Watto, Complainant #1 relied heavily on an essay called "The Drummer Boy", written by Member #2. Member #2's "Drummer Boy" essay is highly critical of Mr. Watto and resulted in Mr. Watto s Complaint against Member #2. Member #2's essay makes a number of allegations and insinuations against Mr. Watto, without providing supporting evidence. (b) CD and CD In both of these cases the Complainant is Complainant #2. Although Complainant #2 made 2 Complaints, both pertain to postings allegedly made by Mr. Watto critical of the ICCRC generally and of Complainant #2 in particular. Mr. Watto and Complainant #2 were both running for election to the ICCRC Board of Directors at or around the time the postings were made. Page 3 of 8

4 (c) CD Complainant, ICCRC #3, alleged Mr. Watto breached the Code in his website criticism of the ICCRC and certain RCICs and ICCRC staff. ICCRC s Investigators Handling of the Complaints At the time these complaints were made, ICCRC s investigators were given the discretion to decide whether a complaint they had investigated should be referred to the Complaints Committee or whether ICCRC should simply close the file with no further action. That is no longer the case. The investigators no longer have the discretion to make any decisions about further action on a complaint file. The Complaints Committee now decides whether to close a file or to refer it to the Discipline Committee. The Investigations Team referred all the Complaints against Mr. Watto to the Complaints Committee. The Complaints Committee then referred these Complaints to the Discipline Committee. On the other hand, the Investigations Team closed the files of all the Complaints by Mr. Watto, so none were forwarded to the Complaints Committee. On their face, the Complaints by and against Mr. Watto were similar in nature. There is no clear reason why the investigators referred the Complaints against Mr. Watto to the Complaints Committee, while not doing the same with his Complaints. In the circumstances, Mr. Watto would not be unreasonable in further complaining that ICCRC s closing the Complaints made by him, or referring the Complaints against him to the Complaints Committee was unreasonably discriminatory. Evidentiary Issues Each of the Complaints against Mr. Watto alleges that the organization RCICVOICE and its website are controlled by Mr. Watto. The majority of the allegations by the Complainants against Mr. Watto stem from postings to the RCICVOICE website. In his response to each of the Complaints, Mr. Watto acknowledges supporting RCICVOICE, but denies that he was its creator or that it was he that made the postings to the RCICVOICE website. Although the Complainants allege that Mr. Watto controls RCICVOICE and was responsible for the postings to its website, there is no documentary evidence in the file that would support this allegation. Page 4 of 8

5 Article 4 of the Code of Professional Ethics- Upcoming Changes to the Code Article 4 of the Code of Professional Ethics is currently undergoing revision. Those revisions will be put before the Board of Directors in early Article 4 of the Code, as it currently stands, may be seen by a court of law as attempting to silence legitimate criticisms of ICCRC and/or RCICs by prohibiting all offensive communications. The current version of Article 4 is overly broad and therefore, overly broad disciplinary decisions made under this Article are vulnerable to legal challenge. Such a challenge would very likely lead a court to rule that such an application of Article 4 is unreasonable, and exceeds the legal authority of ICCRC. The impending changes to Article 4 are necessary to ensure that the Professionalism requirements of the Code are not applied to impede the legitimate freedom of expression of members, based on the subjective decision of someone to respond to such expression by choosing to be offended. Applying Article 4 of the Code as it is currently drafted to the Complaints against Mr. Watto but not to his complaints against others raises a very real possibility that any finding by the Discipline Committee against Mr. Watto would amount to ICCRC having applied Article 4 in an unfairly discriminatory manner. Although this could lead to a successful legal challenge in the Federal Court, even if there is no such judicial review, ICCRC should not knowingly apply its Code of Professional Ethics in such a manner. ICCRC must at all times be, and be seen to be, a fair and reasonable regulator. Disputes Between Members- Role of the ICCRC As set out in the Code, its primary purpose is to protect the public from unprofessional, unethical or incompetent practice by RCICs and students. It is not a purpose of the Code to referee disputes between RCICs about who finds someone s comments offensive. If the comments are defamatory there is a private law of defamation that may provide a forum for resolving such disputes. The Code is not a substitute for the civil suit for defamation. ICCRC should not conduct what is in substance a defamation trial at the expense of its members. The Complaints by and against Mr. Watto arose in the context of elections to the ICCRC Board of Directors. The Complaints are essentially the manifestation of disputes among certain RCICs about who should run the ICCRC and how it should be run. In any ICCRC election campaign it is likely that candidates will be critical of one another and may also be critical of ICCRC itself. Although Mr. Watto may have made statements that were critical and even unkind about ICCRC and certain members, equally negative comments were made against him by other RCICs. As noted above, the ICCRC should not attempt, or be seen to be attempting, to silence the expression of its members, even when that expression is critical. Page 5 of 8

6 In enforcing the Code, ICCRC's primary responsibility is to protect the public. It does not, in general, add materially to public protection for ICCRC to devote considerable resources through the Complaints and Discipline process to settling essentially personal disputes between members about who said what about another when each said something about the other that could be held to be offensive. There may be specific cases where one RCIC maliciously or recklessly makes public statements about another that are not reciprocated, and where such statements are demonstrably false or misleading, that could be sanctioned under the Code or an electoral By-law or regulation. However, the complaints in the present 4 files do not fall under this category of cases. Complaints Initiated by the ICCRC Complaint File No. CD was initiated by ICCRC itself. ICCRC may initiate a complaint against a member when it has reasonably reliable information that the member has breached the Code. Because it is the role of the ICCRC to regulate RCICs is important that the ICCRC have the ability to initiate complaints in this fashion when it becomes aware of breaches or potential breaches of the Code by a member. In general, ICCRC should avoid initiating a complaint against a member when the central allegation is that the member has been critical of ICCRC or its employees. As noted above, ICCRC should not seek to silence the expression of its members, even when that expression is critical. If the alleged conduct of the member is such that it goes beyond fair criticism but was a maliciously or recklessly made public statement about ICCRC or its employees, and where such a statement is demonstrably false or misleading, ICCRC could use the Complaints and Discipline process. In the particular circumstances of File No. CD , the Complaint was initiated by ICCRC before the flaws and problems with Article 4 as drafted were identified. Given that the ICCRC has recognized the problems with Article 4 and is in the process of redrafting that section of the Code to remedy its flaws, the Complaints against the Member based on the originally drafted Article 4 should not go forward. Recommendation That the Files be Closed The Applicant's Counsel recommended that the 4 Complaints against Mr. Watto be closed and that no Notices of Referral for ICCRC Files No. CD , CD , CD , and CD be issued. The Discipline Committee accepts that if it had decided to issue Notices of Referral to begin disciplinary proceedings for any of the 4 Complaints, there is little to no chance that Applicant's Counsel would be Page 6 of 8

7 successful in proving the most serious allegations of misconduct against the Member for the evidentiary reasons set out above. In particular, there is no documentary evidence in the file to support the allegations that Mr. Watto controls the RCICVOICE website or authored any of the postings on the site. Furthermore, and of greater importance, is the fairness issue. Given that there has been a disparity in the treatment of the Complaints made by Mr. Watto and the substantially similar Complaints made against him, the pending revisions to Article 4 of the Code and the policy rationale against using the Code to settle such disputes among members, the Complaints against Mr. Watto should be closed. Finally, if the decision had been to proceed to a hearing with the Complaints against Mr. Watto, fairness would require that the Complaints by Mr. Watto, which were formerly closed, be reopened so that they may be given consideration at the same hearing. Reopening those Complaints after they have been closed for many months would lead to issues of procedural fairness with the overall handling of the Complaints. Abandoning the prosecution of these particular Complaints in no way prevents the ICCRC from hearing any new complaints that may arise by or against the Member. Publication Applicant's Counsel recommends that the Order and Reasons for Decision of the Discipline Committee not be published in this case. There is no benefit to the public interest or to RCIC members in publishing a decision not to proceed with Notices of Referral. Furthermore, the Complaints by and against Mr. Watto involve several RCIC members. Publication of the Order and Reasons for Decision of the Panel could have a negative impact on the reputations of those Members and would serve no benefit to the public, members, or the profession. Panel s Decision After carefully reviewing the written submission of the Applicant s Counsel, the panel unanimously agrees with, and approves, counsel s recommendations to abandon prosecution of these 4 Complaints and that no Notice of Referral be issued. The panel directs ICCRC s Complaints and Professional Standards Administrator to insert each of our electronic signatures in the signature lines at the end of these Reasons for Decision. Page 7 of 8

8 Discipline Committee Panel Members: George Boissé, Public Representative, Chairperson James Kwaateng, Member Brian Gushulak, Public Representative Page 8 of 8