Eye On Regulation


A Case

Occasionally, a regulator will have a member who is not abiding by the authority of his or her governing association.  Generally this takes the form of repeated non-responses to a professional regulatory organization, failing to show up at hearings, failing to abide by conditions, orders or sanctions, and overall a sense, over a period of time, that the individual is not willing to be governed.  It may be that the regulator begins to consider the concept of “ungovernability” in respect of that member.

Ungovernability is a concept where a tribunal or Court comes to the conclusion that a regulated member will not abide by the authority of his or her regulator, and thereby the regulator cannot fulfil its mandate.  If someone cannot be regulated and is found to be ungovernable, it really narrows the sanctions available to a tribunal – in most cases, cancellation is the only sanction that makes sense.

In Law Society of Upper Canada v. Thomas Michel Hicks, 2005 ONLSHP 2, the lawyer engaged in professional misconduct by “failing to serve clients in a conscientious, diligent and efficient manner; failing to meet the financial obligations of his practice; failing to comply with judicial orders; and failing to co-operate with the Society.”  After considering the particulars of each allegation before it and the member’s prior disciplinary history, the Panel concluded that this lawyer was ungovernable.  As the Panel wrote in that case,

[45] There is no fixed definition of ungovernability. The cases which deal with ungovernability make little attempt to define or delineate this aspect of professional misconduct. There is no case that says: “This is where you cross the line into ungovernability”. Instead, a factual analysis is needed on a case-by-case basis.

[46] The Law Society exists to govern the profession in the public interest. If lawyers will not abide by the authority of the Law Society, and demonstrate that they abide by that authority, the Law Society cannot fulfill its mandate. That is the essence of what governability means.

The Court of Appeal emphasized that “in matters of professional discipline, the profession’s internal disciplinary tribunals can apply their expertise to the issues, and they are well positioned to assess the seriousness of the professional’s misconduct, as well

Although this decision was heard in 2005, the law remains the same to this day – there is no “bright line” test as to when someone becomes ungovernable, but the Hicks decision is a good start.  In Alberta, the most recent statement comes from the 2021 decision of Alsaadi v Alberta College of Pharmacy 2021 ABCA 313, where the Court of Appeal of Alberta wrote that “a professional can be said to be ungovernable if he or she fails to accept the authority of the professional organization or intimates that he or she is not bound by rules and standards of the profession” (para. 68).

If you are concerned that a member is becoming ungovernable, these cases and the guidance therein are good places to start, and we also suggest you seek legal advice on how to proceed with an ungovernable member.

Canadian pennies

Our Two Cents for Free

In the recent Alberta case of College of Physicians v Dr Ghassan Al-Naami, 2022 ABQB 438, the College was seeking to obtain the disclosure brief from the Crown related to a physician’s child pornography charges.  There was a dispute over whether the College could receive this information, but the Court sided with the College, allowing the College to compel the member to provide the Crown disclosure brief.  If you have a member with pending criminal allegations, consider seeking this information, as it can provide a detailed summary of the Crown’s case which may be useful in the regulator’s own investigation.

A Question

What is the range of reasonable inferences that could be drawn from the expert evidence being cFor many tribunals, the number of public members have increased due to recent changes in the legislation.  In many cases, it has gone from 1 public member to 2.  How has the addition of more public members, and a new ratio vis a vis the regulated members, changed the dynamic on your body’s hearing tribunals or panels?

Eye on Regulation is RMRF’s monthly newsletter for the professional regulatory community. Each month we offer:

  • A Case: a (very) brief summary of a recent and relevant case;
  • Our Two Cents for Free: practical insight inspired by the files on our desks right now; and
  • A Question: something to get you thinking about ways to enhance your work.

This newsletter is for information only and does not constitute legal advice.

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