Professional Discipline Matters

If you are a professional facing professional discipline please give us a call. The lawyers at Zeilikman Law ensure that professionals facing complaints or allegations of misconduct or incompetence are aware of their rights and that these rights are vigorously defended.

What makes certain work a “profession”? Broadly speaking, a regulated job would fall within the definition of being a “professional” job. Each “professional” whether they are architects, lawyers, veterinaries, dentists, etc., are licensed by a regulatory body that oversees the practice of that profession. These regulatory bodies have differing names depending on the type of profession at hand, but they all have the same role – to protect the interest of the public by administering and enforcing minimal norms of competence and conduct of that profession. For instance, lawyers are regulated by the Law Society of Ontario. Doctors are regulated by the Ontario College of Physicians and Surgeons. Whether it is a college, committee, organization, body or society, they all “regulate the profession.” And to regulate the profession these bodies control who can be licensed to practice in that profession through the application of rules and regulations.

Professions are regulated by governing bodies because they generally necessitate a high level of skillsets and norms of behaviour due to the vital role they play in our society. When a member of a particular profession engages in misconduct or is incompetent the results can be catastrophic. We need to look no further than what heinous fallout can result from unscrupulous members of these occupations to see why these professions are heavily regulated. A simple Google search can lead to many examples of the above.

However, it also must be acknowledged that not every accusation of misconduct or incompetence is right, justifiable or is made in good faith. Professionals who are facing a complaint or possible discipline by their regulatory body are often emotionally taxed and extremely worried. This is because they are generally unfamiliar with the complaints and disciplinary processes of their own regulatory bodies and the consequences of any associated proceedings. We are often surprised to find out that professionals “go at it alone” at the initial stages of a complaint without legal representation. We strongly encourage any professional facing regulatory sanction to seek out legal advice or representation as soon as they are aware that they may be facing a complaint or disciplinary proceeding in order to protect their rights.

Because legal disputes are inherently complex it is recommended to retain a qualified counsel who will be able to see the material issues and angles in the case and represent you strategically and intelligently. Over the years we have successfully litigated or have been involved in countless legal matters and disputes and our body of work, of which we are proud, speaks for itself.

What we can guarantee is that we will provide you with confident, competent, honest and reliable advocacy. We will stand by your side and be your ally throughout your matter up to and including its conclusion. Moreover, we will always advise you of the risks and benefits you might reasonably expect in your case, and we will not recommend that you proceed with a lawsuit if it is plain and obvious that your case will have no chance of success.

The starting point in any disciplinary process is usually the complaint. The compliant can come from anywhere – former clients, other professionals or members of the public. Generally, the complaint is in written form, and it may or may not have other documents enclosed in the complaint. This will depend on the particular governing body and their own internal rules and regulations with respect to how an initial complaint is dealt with.

After the complaint is made, there is generally some sort of screening system in place to determine if the complaint should be dealt with in the first place. All regulatory bodies have their own rules and internal procedures on how to deal with initial complaints. These rules and internal procedures are usually informed or guided by a code of conduct or ethics that their own membership must abide by. Regulatory bodies do not humour outrageous or outright impossible claims in a complaint for the most part when the complaint is obviously not in breach of a particular ethical code or regulatory norm.

If the complaint is not palpably unreasonable, the member of a particular profession will be formally advised that a complaint has been made. The professional may then expect to face two differing but interrelated processes when it comes to their potential discipline. The first one deals with the initial complaint in written form to which the member will be able to respond in writing. These responses can be quite extensive depending on the complaint at hand. At this stage, if the regulatory body is satisfied with the member’s response, the complaint will be closed subject to the complainant’s right of review or appeal of the regulatory body’s decision. Following written submissions, if the regulatory body is of the view that further evidence is necessary to make a determination, it will refer the matter to further investigation up to and including a hearing of the matter as further discussed below.

It is also here at the initial complaints stage that many professionals do not seek out legal counsel. This is a mistake. It is always useful and sometimes crucial to seek out legal counsel at the complaint stage of the process. In fact, we have been successful in dismissing complaints and / or resolving many of our clients’ regulatory matters at this stage. This has resulted in a considerable reduction in stress and legal costs for the professional.

If the matter has not be resolved at the initial complaint stage the governing body may still attempt to avoid a full hearing of the matter at hand. They do this because it is expensive and takes a lot of resources to accomplish a full hearing just like in any other area of law. The process here also unfolds in a similar way to the court system in certain crucial respects, especially when it comes to robust quasi-judicial bodies such as those regulating doctors. At this stage a regulatory body will typical be represented by legal counsel who is either directly employed by the regulatory body or is a member of a private firm contracted to do their work.

The process usually starts off by an exchange of materials. The various governing bodies may have differing terms for this process, but it is usually called something like service or exchange of materials or documents. It can also be called disclosure. The purpose of this is so that the governing body may indicate to the professional as to what documentary evidence they will rely upon to show whether the professional has engaged in misconduct or incompetence. The professional will also need to provide any evidence they intend to rely upon in any subsequent hearing here as well.

Once this is completed the next step is to undergo a pre-hearing conference. The purpose of this pre-hearing conference is to set dates of the hearing, engage in possible resolution discussions, simplify various issues, make agreements as to certain facts or evidence, etc. Subject to any orders or directions, these conferences are always made “without prejudice” which means that whatever is discussed with respect to possibly resolving the matter cannot be subsequently used in a full hearing of this matter to establish misconduct or incompetence. Finally, whoever is present as a decision-maker of the governing body at the pre-hearing conference will not be the same person at the hearing. This is meant to ensure that the decision-maker will not have a biased frame of mind at the actual hearing of the matter.

How a hearing is conducted is usually set out in the governing body’s own internal rules of practice or procedure. These hearings are generally opened to the public but not always.

At the hearing, witnesses are examined by the parties and evidence is led. There may be an opening statement at the beginning of the hearing. Then, after the witnesses and evidence are presented, there may be closing statements made by the parties. After all this has occurred, the governing body considers all the above and makes a decision.

The governing body can order a number of different things based on the decision they make and the circumstances of the matter at hand. For instance, they may order the suspension of a licensee’s license to practice for a particular duration, impose limits to the licensee’s rights to practice, issue fines or revoke the licensee’s license.

Finally, typically there may be an internal way to appeal or challenge the decision. This sometimes occurs depending on the internal rules and regulations of the governing body.

The Divisional Court in Ontario is branch of the Superior Court of Justice. It serves as an appeal and judicial review court of many regulatory tribunals. This means that it hears appeals and judicial reviews of administrative decision-makers. Many statutes relating to professional discipline provide in their legislation some mechanism that allows for the challenging of a decision that was made with respect to a licensee. Ontario courts also have inherent jurisdiction to deal with matters concerning procedural fairness and natural justice.

Where a professional is employed in their professional capacity and issues of misconduct or competence arise, the professional will need representation before their governing body and perhaps with their employer as well. This is because it is often the case that the employer will investigate any claims of misconduct leading to the professional defending accusations on multiple fronts. It is a common scenario that such investigations will lead to employment terminations with cause and a reporting of the professional to their regulatory body. We see this quite often in our practice involving professionals.

In such a case, we will see to it that our client’s rights are vigorously defended on both fronts: employment and professional discipline. We will commence the necessary proceeding against the employer to seek compensation. We will also act for the client before the regulatory body. We will ensure that the regulatory body meets its obligations of procedural fairness towards our client and defend our client’s right to practice in their profession of choice.

When professionals face possible discipline both from their employer and governing body, it is imperative that they contact a lawyer qualified to represent them in both areas of law. Having one lawyer in a matter involving professionals facing workplace and regulatory misconduct is advantageous because the circumstances leading to the professional’s dismissal are often intertwined and outcome in the regulatory proceeding may have a serious impact on the outcome of their workplace law matter.