M. Statutory Regulation of Professional Persons

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

Page 241

Most providers of professional services are subject to some form of regulation pursuant to a statutory instrument. Some professions are self-governing and some are governed by public bodies. Generally speaking, the task of the regulator is to set licensing qualifications, develop codes of professional and ethical conduct, monitor compliance, resolve disputes, and, where necessary, penalize delinquent conduct by fines or the suspension or revocation of licences. These regulatory systems are designed to maintain the integrity of the profession and protect the public from unprofessional conduct. Occasionally, a regulator who has detected or has some suspicion of professional wrongdoing fails to act in a timely, effective, and appropriate manner. This may permit the wrongdoer to continue to cause harm to clients or members of the public. These victims may claim that the regulator is liable for not preventing the loss by warning the public of the risk or suspending or revoking the licence of the impugned professional.

The issue of a regulator’s liability was considered by the Supreme Court in Cooper v. Hobart239and Edwards v. Law Society of Upper Canada.240In each case a regulator, the Registrar of Mortgage Brokers in British Columbia in Cooper and the Law Society of Upper Canada in Edwards, was sued on the grounds that it failed to act in a timely and responsible manner after receiving information that a member of the regulated profession had acted improperly. As a consequence of this negligence, the plaintiff investors had relied on these professionals and had suffered financial losses. The Supreme Court held that the defendants did not owe a private duty of care to the plaintiffs. Although the plaintiffs fell within the scope of reasonable foresight as likely to suffer harm in the advent of negligence on the part of the defendants, there was no proximity of relationship between the parties. In both cases a close reading of the enabling legislation led the Court to the conclusion that the regulators owed a general duty to the public to ensure the integrity and efficiency of the regulated activities, but there was no prima facie duty of care owed to members of the public or to individual clients of the regulated service providers. In any event, the Court held that there were compelling residual policy reasons to negate any private duty. They included problems of indeterminacy, difficulties in rendering the policy and quasi-judicial...

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