Limits of «reasonableness» on ethical and practice rules: Implied limits on the powers
of professional regulatory bodies to superintend their professions was illustrated by the B.C. Supreme Court's decision that a college unreasonably exercised its by - law making powers in Sobeys West Inc. v. College of Pharmacists of British Columbia, 2014 BCSC 1414 (under appeal).
While enabling statutes
of professional regulatory bodies may not require that respondents respond to complaints, particular regulators may enact standards that require their registrants to cooperate during investigations.
The BC decision in Sobeys upholds a broad discretion
of professional regulatory bodies to pass bylaws that, in their view, establish professional standards in the public interest.
The BC decision, if left in place, limits the jurisdiction
of professional regulatory bodies (in BC) to decline accrediting educational programs that discriminate, but do so on religious grounds.
The primary mandate
of these professional regulatory bodies is to protect the public.
In 1989, the organization, which changed its name in 1969 to better reflect the scope of its work, spearheaded the establishment of a Legislative Recognition committee to advocate for the creation
of a professional regulatory body for ECEs in Ontario.
Not exact matches
But despite frequent federal government discussion
of the matter, Ottawa lacks any real authority to make progress —
professional regulatory bodies are a provincial matter.
The PPA will help represent the state pediatric dentistry association in promoting children's oral health issues with the state legislature and other elected
bodies, state
regulatory agencies (including Medicaid and health departments), licensing bureaus,
professional health and child welfare organizations, oral health coalitions, foundations, institutions
of dental education, publicly - funded safety net programs, and the private sector benefits industry.
Also peruse the Web sites
of professional associations, such as ISPE or PDA, and
regulatory bodies such as FDA, EMEA, or HSA.
ASIC is one
of the few financial
regulatory bodies in the world that is highly regarded in the financial industry as being strict, as well as
professional.
There is also a self -
regulatory body, the National Futures Association (NFA), to further monitor the activity
of all market
professionals.
This ruling would have the effect
of relegating BC lawyers to a pre-cloud technological backwater, which does not serve the public's interest nor the LSBC's own principal strategic goal
of becoming a «more innovative and effective
professional regulatory body.»
Professional bodies are fundamentally about relationships, in terms
of its membership networks,
regulatory stakeholders and international networks.
In our 2015
regulatory round - up (here), we described the ongoing dispute arising in the Trinity Western cases, where three
professional regulatory bodies — law societies in three provinces (B.C., Ontario and Nova Scotia)-- refused to accredit a religious university which required that students sign a «community covenant» requiring that they abstain from sexual intimacy outside
of marriage between one man and one woman.
The presentation also included a practical discussion
of common confidentiality and privacy scenarios encountered by
professional regulatory bodies with respect to information produced, collected or used during the registration, inquiry and discipline processes.
Registration, mobility and good character: The manner in which a
professional regulatory body may assess the «good character»
of mobility applicants was addressed by the Alberta Queen's Bench in the Lum case (2015 ABQB 12, which we wrote about here.
Third, the Scott case addresses when a
professional regulatory body may take «extraordinary» action to protect the public during an investigation and pending the outcome
of a discipline hearing.
One
of the difficulties faced by
professional regulatory bodies is how to deal with
professionals they have disciplined who then also face sanctions following criminal proceedings on the same facts.
He specialises in the analysis and solution
of complex
regulatory problems, advising regulators, government departments, law enforcement agencies, statutory and
professional bodies.
Our lawyers have acted for architects, engineers, lawyers, dentists, and accountants in
professional errors and omissions claims, advised clients before
professional regulatory bodies, acted for
professional administrative
bodies, provided advice regarding investigations conducted by administrative authorities, and have acted in judicial reviews
of decisions made by
professional regulatory bodies.
On the one hand,
professional rules
of conduct are designed to preserve the traditional vision, but, on the other hand, those rules are created by
regulatory bodies dominated by corporate practitioners.
Perhaps the home for a
body of tools, to a greater extent than commentary and source materials, is in compliance and
regulatory markets, that include those qualified
professionals who work as in - house counsel and the like.
Doctors and their
professional regulatory bodies must grapple with challenging questions
of when and how a physician may legally assist their patients in dying.
Professional regulatory bodies in British Columbia must preserve personal privacy, and treat matters as confidential, as and to the extent they must under their enabling statutes, and under BC's Freedom
of Information and Protection
of Privacy Act («FIPPA»).
Members
of a profession have an ethical obligation to cooperate with their
regulatory body, failing which may constitute
professional misconduct.
2 - 23.2 (1) A lawyer must not practise law in an MDP unless (a) the lawyer and all members
of the MDP are in compliance with Rules 2 - 23.1 to 2 - 23.12 and the
Professional Conduct Handbook, (b) all lawyers who are members of the MDP have obtained express permission under this Division to practise law in the MDP, (c) all non-lawyer members of the MDP are of good character and repute, (d) all members of the MDP agree in writing (i) that practising lawyers who are members of the MDP will have actual control over the delivery of legal services by the MDP, (ii) that non-lawyer members of the MDP will not interfere, directly or indirectly with the lawyer's (A) obligation to comply with the Act, these Rules and the Professional Conduct Handbook, and (B) exercise of independent professional judgement, (iii) to comply with the Act, these Rules and the Professional Conduct Handbook, and (iv) to cooperate with and assist the Society or its agents in the conduct of a practice review, examination or investigation, and (e) all members of the MDP who are governed by the regulatory body of another profession agree to report to the MDP any proceedings concerning their conduct or
Professional Conduct Handbook, (b) all lawyers who are members
of the MDP have obtained express permission under this Division to practise law in the MDP, (c) all non-lawyer members
of the MDP are
of good character and repute, (d) all members
of the MDP agree in writing (i) that practising lawyers who are members
of the MDP will have actual control over the delivery
of legal services by the MDP, (ii) that non-lawyer members
of the MDP will not interfere, directly or indirectly with the lawyer's (A) obligation to comply with the Act, these Rules and the
Professional Conduct Handbook, and (B) exercise of independent professional judgement, (iii) to comply with the Act, these Rules and the Professional Conduct Handbook, and (iv) to cooperate with and assist the Society or its agents in the conduct of a practice review, examination or investigation, and (e) all members of the MDP who are governed by the regulatory body of another profession agree to report to the MDP any proceedings concerning their conduct or
Professional Conduct Handbook, and (B) exercise
of independent
professional judgement, (iii) to comply with the Act, these Rules and the Professional Conduct Handbook, and (iv) to cooperate with and assist the Society or its agents in the conduct of a practice review, examination or investigation, and (e) all members of the MDP who are governed by the regulatory body of another profession agree to report to the MDP any proceedings concerning their conduct or
professional judgement, (iii) to comply with the Act, these Rules and the
Professional Conduct Handbook, and (iv) to cooperate with and assist the Society or its agents in the conduct of a practice review, examination or investigation, and (e) all members of the MDP who are governed by the regulatory body of another profession agree to report to the MDP any proceedings concerning their conduct or
Professional Conduct Handbook, and (iv) to cooperate with and assist the Society or its agents in the conduct
of a practice review, examination or investigation, and (e) all members
of the MDP who are governed by the
regulatory body of another profession agree to report to the MDP any proceedings concerning their conduct or competence.
The purpose
of the relevant part
of IAA 1999 was to ensure that any person wishing to provide immigration advice or services had either to be registered with the immigration services commissioner (who had statutory power under IAA 1999 to regulate the activities
of persons so registered) or be a person subject to the
regulatory control
of one
of the designated
professional bodies.
It was difficult to see how a responsible
professional body would wish to authorise a person to perform services for which being a practising barrister provided legal eligibility while at the same time abdicating any
regulatory control over the performance
of such services.
To this end, the Bill provides for the creation
of a bureau
of disciplinary council chairs within the Office des professions du Quebec (an independent government agency under the authority
of the Minister
of Justice responsible for the enforcement
of laws that regulate
professionals and their
regulatory bodies).
But
professional regulatory hearings also bear some similarity to criminal proceedings as well:
regulatory bodies are statutory
bodies that perform a governmental function and are subject to the Charter
of Rights and Freedoms; they operate in the public interest; and they owe the same disclosure obligations
of the Crown under Stinchcombe.
Alysha represents a broad range
of clients, including multi-national corporations,
professional regulatory bodies, individuals and small business owners.
Lawyers should have an independent
professional association that represents the interests
of lawyers, which is separate from the
regulatory body.
Registration — good character: A high water mark for deference to
regulatory bodies assessing the «good character»
of applicants was set by Alberta courts, which confirmed an Alberta
regulatory body's refusal to register a BC
professional (Lum v. Council
of Alberta Dental Association and College, 2016 ABCA 154, summarized here, and also 2015 ABQB 12, summarized here).
A small number
of our lawyers are regulated by other
professional legal
bodies including The Bar Standards Board, the Institute
of Trade Mark Attorneys, and in the case
of lawyers admitted in other jurisdictions, the relevant
regulatory body of their place
of admission.
Professional regulatory bodies require applicants to be
of good character or morally fit before admitting them into membership.
Our
professionals bring decades
of collective experience to these complex matters, gleaned from working in the trenches with federal and state legislative
bodies, key
regulatory agencies and independent commissions.
In cases where confidentiality
of sensitive information is a concern, erring on the side
of caution is important since, unlike superior courts, which can prevent misuse
of confidential information through court order,
professional regulatory bodies have no express power to control what complainants do with information once in their possession.
She advises
professional regulatory bodies on all areas
of their responsibilities including quality assurance, registration, inquiry, discipline, reviews and appeals.
These include the representation
of professionals before licensing boards and other
regulatory bodies.
Our
professional practices team can advise you if you are facing, or are at risk
of facing, a disciplinary or fitness - to - practise investigation by your
regulatory body.
The recent Ontario Court
of Appeal decision in Laffin v. Association
of Professional Geoscientists of Ontario, 2012 ONCA 846 provides a sober reminder to professional regulatory bodies that in assessing applicants for registration, they are confined to assessing applications against the particular requirements set out in their enabling statutes
Professional Geoscientists
of Ontario, 2012 ONCA 846 provides a sober reminder to
professional regulatory bodies that in assessing applicants for registration, they are confined to assessing applications against the particular requirements set out in their enabling statutes
professional regulatory bodies that in assessing applicants for registration, they are confined to assessing applications against the particular requirements set out in their enabling statutes and bylaws.
As corporations increasingly look to offer
professional services in novel settings such as supermarkets, department stores, gyms, spas and hotels,
regulatory bodies will need to continue to grapple with issues such as who owns patients» medical information and what are the unique obligations
of professions working in these settings.
Similarly, the BC Court
of Appeal has stated a
regulatory body's interpretation
of its own
professional standards (e.g., whether such standards extend to singular instances of substandard care) deserve deference, as long as a decision is justified, transparent and intelligible: Salway v. Association of Professional Engineers and Geoscientists of BC, 2010 BCCA 94
professional standards (e.g., whether such standards extend to singular instances
of substandard care) deserve deference, as long as a decision is justified, transparent and intelligible: Salway v. Association
of Professional Engineers and Geoscientists of BC, 2010 BCCA 94
Professional Engineers and Geoscientists
of BC, 2010 BCCA 94 at para. 32.
Tribunals and Charter values: For example, the decision in Doré makes clear that
professional regulatory bodies making decisions or exercising powers that collide with Charter values, such as freedom
of expression, are responsible for understanding those Charter values, respecting them, and balancing them with statutory objectives.
On its face, the HPRB's decision defines a «matter» which must be investigated and disposed
of by an inquiry committee expansively enough to capture not only isolated incidents
of negligence or incompetent provision
of professional services, but also issues such as overbilling that many
professional regulatory bodies treat as outside their jurisdiction.
He also assists clients responding to complaints to
professional bodies,
regulatory authorities and ombudsman services and advises a range
of insurers on policy coverage, includ8ing issues as to notification, minimum terms and fraud.
Professional regulatory bodies routinely review applicants» educational backgrounds as part
of their registration assessments.
Founded in 1992, the Toronto - based firm has a diverse roster
of clients that ranges from individuals and small businesses, to large and multinational companies, to
professional associations and
regulatory bodies.
Although some respondents may question the need for a
regulatory body to put «expert» witnesses in front
of a panel that may itself consist
of professional members with «expert» knowledge, many cases establish expert witnesses as necessary for a proper evidentiary record, even though the entire panel may possess the same knowledge, e.g., to allow expertise to be tested by cross-examination, and to permit a review or appeal
body to carry out its function.
The year 2016 involved outcomes to many
of the outstanding
regulatory issues that we flagged in our 2015
professional regulatory law roundup, especially those which addressed what constitutes the «public interest» that
regulatory bodies serve.