Eye On Regulation

• Emma
  Banfield

  Emma
  Banfield

  view bio

the case

Regulators may on occasion encounter individuals who represent themselves as regulated members, when in fact they are not. This can present a challenge to regulators who must protect the public from unregulated practice, but do not have the same jurisdiction over non-members as regulated members. The first step will be to get an order preventing them from representing themselves as regulated members or practicing the profession. Where the Court has granted such an order, regulators who suspect a breach will need to show beyond a reasonable doubt that the individual is in contempt of the order. This is the criminal standard of proof, and goes beyond the usual standard in civil proceedings. Further, regulators will need to be aware of the high degree of procedural fairness owed to respondents in these matters.    

The case involved an individual who acquired the training, including graduate degrees, required to apply to the admission program for a regulated profession. The individual enrolled in the regulator’s admission program on several occasions, although he never completed the program. The individual acknowledged that his struggles with substance use presented an impediment to his completion of the admission program. He continued to maintain his interest in becoming a regulated member, although he had no pending application.

In 2016, the regulator filed a petition alleging the individual had engaged in the practice of the profession. Although the allegations were not adjudicated, the individual did admit that he had represented himself to be a regulated member on at least one occasion. In March 2017, the individual signed a consent order agreeing that he would not engage in the practice of the profession until he was a member in good standing with the regulator.

The current matter before the Court was whether the individual had breached the terms of the consent order such that he had represented he was a regulated member of the profession and had engaged in the practice of the profession. The Court determined that the regulator not proved beyond a reasonable doubt that the individual had intentionally done the acts alleged by the regulator.

The Court considered the elements of civil contempt, beginning with a determination that the consent order clearly laid out what was prohibited. The Court also found that the individual was aware of the terms of the consent order. However, the Court was not willing to find that the regulator had proved beyond a reasonable doubt that the individual intentionally contravened the consent order. The Court did note “a casualness” in the individual’s communications about the facts when it comes to his status in relation to the regulator.

The regulator also pointed to evidence the individual had included in affidavit materials filed in the matter which the regulator stated showed evidence of practicing the profession. The Court held that if the regulator “wished to pursue these allegations, it ought to have brought an application that gave clear notice of that.” The individual was entitled to a high degree of procedural fairness on a contempt application, and the Court found that if the regulator had provided proper notice of its intent to pursue further allegations, the individual might have advanced further evidence. As a result, the Court determined it would be procedurally unfair to adjudicate the additional issues without formal notice that the regulator intended to pursue them.

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

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