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the case
The overarching obligation of professional regulators is to protect the public. Unprofessional conduct is regulated in order to ensure that the public is not subject to harm or risk of harm in the course of a party carrying out their profession duties. Therefore, it is unsurprising that professional regulators often have a statutory power to impose an interim suspension of a party’s right to practice before a finding of unprofessional conduct has occurred. For instance, this right appears in s. 65(1)(b) of the Health Professions Act, s. 55 of the Engineering and Geoscience Professions Act, s. 107 of the Chartered Professional Accountants Act, or s. 63 of the Legal Professions Act.
As well, in matters of discipline and where a party’s right to practice their profession is at risk, professional regulators must conduct such proceedings in conformity with the high standards of procedural fairness. These two obligations, to project public safety and to be procedurally fair to members, are the subject of a recent case in the Court of Kings Bench in Alberta.
The case involved an interim suspension that was imposed on a member of a profession that had been accused of inappropriate sexual conduct. Initially, the Complaints Director had requested an interim suspension but Committee instead imposed a supervision requirement but allowed the professional to keep practicing. Subsequently the Complaints Director received additional information about the professional’s adherence to the supervision order and criminal charges arising from the professional’s conduct prior to the imposition of the supervision order. The Complaints Director made a second request for an interim suspension, in part on the basis that the professional had breached the supervision order. However, particulars regarding those breaches were not provided to the professional before they had to respond to the Complaints Directors submissions. The Complaints Director argued that these were not provided because it related to an ongoing investigation into the professional’s conduct.
Ultimately, the Court set aside the interim suspension on the basis that the process had deprived the professional of procedural fairness. It did indicate that the Complaints Director was at liberty to submit another request for an interim suspension to a differently constituted Committee.
our two cents for free
Sufficient particulars mean that a party has sufficient knowledge of the facts alleged to constitute misconduct to know the case they have to meet. If in any given circumstance, the allegations are too vague, or lack sufficient specificity for a party to understand the nature of the allegations against them, they will be deprived of procedural fairness. Generally speaking, an absence of procedural fairness, even where there are important public safety considerations at stake, can result in a reviewable error, as it did in this case. Only in rare cases will it be necessary to withhold such particulars. Such reasons might be evidence that a party will destroy evidence or actively attempt to frustrate or interfere with an investigation.
question
Where a finding or decision is sought against a party, it is always important to ask whether sufficient particulars and an opportunity to respond has been provided to the other side – even if an investigation is ongoing and there are important public interests at stake. If deciding not to provide detailed particulars, ask why and whether such reasons are truly sufficient to justify not according procedural fairness to a party.
Eye on Regulation is RMRF’s monthly newsletter for the professional regulatory community. Each month we offer:
- A Case: a 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.
