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The issue of whether a regulated professional’s “off-duty” conduct can amount to unprofessional conduct for the purposes of a disciplinary proceeding is one that arises often. Professionals are generally held to a high standard of conduct, and legislation often includes in the category of what constitutes unprofessional conduct a general reference to conduct that “harms the integrity of the profession”. The line between personal and professional conduct is often difficult to determine.
The Saskatchewan Court of King’s Bench recently grappled with this issue in Leontowicz v College of Physicians and Surgeons of Saskatchewan, 2022 SKQB 98. There, a medical student who had not yet fully qualified as a medical doctor engaged in “off-duty” behavior which lead a Discipline Hearing Committee find him guilty of professional misconduct, suspending him indefinitely from the practice of medicine, and ordering him to pay nearly $100,000 in costs. Specifically, the Hearing Committee found that he had engaged in sexual intercourse with a complainant without her consent. The two met on an online dating app, had dinner, and then engaged in sexual contact at the member’s home. There were no criminal charges laid, but the College proceeded with a charge against the member for that conduct. A contested two-day hearing resulted in the finding of professional misconduct noted above.
The Court reviewed the decision and dismissed most of the grounds of appeal raised by the member. The Court found that the Hearing Committee had properly considered the evidence and the credibility of the witnesses, and that the conclusions reached in relation to what transpired on a balance of probabilities was not subject to any reviewable error.
However, the Court found that the Hearing Committee erred in finding the proven “off-duty” conduct was professional misconduct for the purpose of the legislation. The Court noted that nothing in the regulatory bylaws of the College specifically prohibited this conduct because it was not in the context of a physician-patient relationship. The Court stated that while the conduct would certainly harm the member’s reputation, it does not follow that the reputation and integrity of the professional would also be harmed. The Court also rejected the Hearing Committee’s suggestion that the nature of the proven conduct would impact whether the member could be trusted in his interactions with patients, finding that such a conclusion was based on mere speculation.
Ultimately, after apply the “panoply of factors” that needed to be considered (following the decision of the Supreme Court of Canada in Groia v Law Society of Upper Canada, 2018 SCC 27) the Court concluded that the Hearing Committee erred in principle in finding that there was a sufficient nexus between his off-duty conduct and his ability to carry-out his duties as a member of the profession.
It is unclear whether this decision will be appealed, but it another example of the challenges that arise when a discipline panel grapples with the circumstances in which off-duty conduct will amount to a breach of a professional’s regulatory duties.
Our Two Cents for Free
An adjournment of a professional disciplinary hearing is a common request faced by members of the tribunal. Although some circumstances clearly warrant an adjournment, other situations are unclear—particularly where the matter has been adjourned before. Remember that a decision on a contested adjournment application requires the same general process as a decision on the merits of the case: be sure to reflect the parties submissions on the adjournment issue, and provide clear reasons as to why the adjournment was granted or refused. Adjournment decisions can be challenged on appeal or judicial review, and the transparency and intelligibility required for a final decision must be reflected in interim ones.
Sitting as one member of a decision-making tribunal requires a healthy degree of cooperation between members. What are your strategies in dealing with behavior by other members of the tribunal which, in your view, could impact the fairness of a hearing (including asking aggressive questions, “closed” body language, or dismissive comments)?
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