Discipline

• Author: Rebecca Durcan/Robin McKechney
• Pages: 113-158

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Discipline

7

I. Dening Professional Misconduct ........................... 

II. Notice of Hearing ......................................... 

III. Onus and Standard of Proof ................................ 

IV. Pre-Hearing Conferences ................................... 

V. Disclosure ............................................... 

VI. Conducting the Hearing ................................... 

VII. Motions ................................................ 

VIII. Evidentiary Issues ......................................... 

IX. Application of the Charter .................................. 

X. Delay ................................................... 

XI. Kienapple Principle ....................................... 

XII. Penalty ................................................. 

XIII. Appeals ................................................. 

Takeaways ............................................... 

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 Prosecuting and Defending Professional Regulation Cases

I. Dening Professional Misconduct

“Professional misconduct” is both a generic term that refers generally to conduct that

is deemed to be inappropriate or improper in the professional regulatory context and

a statutorily defined term that sets out the specific heads of professional misconduct

for the profession. The heads of professional misconduct are akin to “charges” or

“oences” in the criminal law context and are often referred to that way. Only profes-

sional misconduct that is statutorily defined can be the subject of a discipline hearing.

As discussed further below, the notice of hearing will set out the specific “charges”

or “oences” ( i.e., the specific heads of professional misconduct) as well as a summary

of the conduct that is alleged to constitute the specific “charges” or “oences” in the

notice of hearing.

The specific heads of professional misconduct for a particular profession can usually

be found in a regulation made pursuant to the particular regulatory body’s governing

statute. The governing statute itself may also define professional misconduct. For ex-

ample, section 51 of the Health Professions Procedural Code1 stipulates that the following

conduct constitutes professional misconduct for all regulated health professionals in

Ontario:

• the member has been found guilty of an oence that is relevant to the member’s

suitability to practice;

• the governing body of another health profession in Ontario [or another jurisdiction]

has found that the member committed an act of professional misconduct that

would… be an act of professional misconduct as defined in the regulations;

• the member has failed to cooperate with the Quality Assurance Committee;

• the member has sexually abused a patient; or

• the member has committed an act of professional misconduct as defined in the

regulations.

As seen in the last bullet point above, each of the regulated health professions will

define professional misconduct (in addition to what is set out in the Code) in a regula-

tion made pursuant to its governing statute. Generally speaking, most professions will

follow the same pattern.

Although there are many commonalities across professions in terms of the various

heads of professional misconduct, there will also be several profession-specific areas

of professional misconduct. For many of the “charges” or “oences” listed in a

professional misconduct regulation, the elements of the “oence” will be obvious

from the head of professional misconduct itself. Other “charges” or “oences” will

require further specifics of the conduct involved for the member to even have an initial

1 Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c 18.

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Chapter  Discipline 

understanding of the conduct at issue. This applies particularly to allegations of breach

of standards and allegations of disgraceful, dishonourable, or unprofessional conduct

and conduct unbecoming, which are discussed further below.

A. Mens Rea in Professional Discipline Cases

In professional discipline cases, unlike criminal cases, proof of mental intent, or mens

rea, is not necessarily required to prove the professional misconduct alleged. The de-

termination of whether intent is an element of the “oence” will depend on the pro-

vision itself and the context in which it is applied.

Regulators have the ability to set parameters and frame the wording on what con-

stitutes professional misconduct, including whether, for a particular “charge” or

“oence,” proof of the requisite mental intent is required. Where the provision contains

words such as “wilfully” or “intentionally,” proof of intent is more likely to be required

to prove the professional misconduct alleged. The absence of such words, however, is

not necessarily indicative that proof of intent is not required if the circumstances as a

whole lead to the conclusion that intent is a necessary element of the professional

misconduct alleged.2

As indicated by the Federal Court of Canada, professional misconduct claims are

unique and must be analyzed based on the specific context, wording, and profession:

the sui generis nature of professional misconduct proceedings has been recognized by

the Federal Court of Appeal within the context of proceedings involving bankruptcy

trustees in Canada (Attorney General) v Roy,3 referring to the decision of the Quebec

Court of Appeal in Béliveau v Comité de discipline du Barreau du Québec.4 Consequently,

principles of criminal law do not necessarily apply to professional conduct proceedings.

However, though professional conduct proceedings are sui generis, “there are similar-

ities and overlapping elements in terms of the fault required for a finding of guilt.”5

A sui generis approach to professional misconduct cases appears to be appropriate

in determining if a particular allegation of professional misconduct is subject or not to

a defence of due diligence or reasonable care. The availability of such a defence in a

particular case will depend on the nature of the alleged misconduct and on the terms

of the legislative or regulatory provisions that are claimed to have been breached.6

The general presumption is that regulated professionals are responsible for knowing

and ensuring they are in compliance with their particular professional standards and

obligations. The fact that a member acted in good faith, notwithstanding that the conduct

2 Merchant v Law Society of Saskatchewan, 2014 SKCA 56.

3 2007 FCA 410 at para 11.

4 1992 CanLII 3299, [1992] RJQ 1822 (CA).

5 Canada (Attorney General) v Roy, supra note 3 at para 11.

6 Laperriere v Macleod, 2010 FC 97.

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