Regulatory Disciplinary Proceedings – Being Disciplined

Canadians identify closely with their jobs. Our careers direct our lives. We must trust our clients. For this reason, being complained about to your professional regulatory colleges can feel like a slap in the face. Throughout school we learn horror stories of client relationships or of business management going terribly wrong. We’re instilled with the unforgiving nature of professional ethics.

Members of the public complain to regulatory colleges for a variety of reasons. Often, clients don’t know what to expect of and from us, the service provider. Sometimes clients complain when they receive an unfavourable result.

If you are being complained about, here are some tips:

Understand the Disciplinary Process:

If you have received official disciplinary correspondence from your professional regulator, you will have received at least one of three documents:

1. Notice that an investigation occurred, has concluded and no further action is required
2. Notice of an Investigation into your conduct is underway and that you are required to write a letter responding to the facts provided
3. Notice that an Investigation has concluded and a disciplinary hearing reviewing is scheduled

Take care to refer to these documents by their official names. Take care to respond by the deadline ordered by your professional regulator.

Being investigated is a separate process from the disciplinary hearing.

An investigation does not always proceed to a hearing.

Responding to the Notice of Investigation:

During an investigation or disciplinary matter, you are owed procedural fairness. The extent of procedural fairness owed to you depends on your progress within the College’s administrative process.

Additionally, the college owes you limited disclosure. The regulatory college will ask you to write a response to the allegations listed in your Notice of Investigation. An investigator must examine all complaints about your conduct reasonably impartially.

While the college must provide you with enough information for you to respond, this does not mean that you will receive the transcript of the complaint about you. While you might ask your investigators for clarification of some allegations, the regulatory college does not owe you comprehensive evidence at this stage in the process.

The Complainant will read your statement to the regulatory college:

The response you provide to the investigators will be seen by the person who complained about you. The Complainant then has the opportunity to comment upon your response. The investigation may conclude at this juncture because it is baseless or erroneous.

Ideally, we are able to satisfy the regulatory college’s investigators that further investigation or pursuit of the complaint is unnecessary. Concluding a file here will save you expense and time.

Five Tips for Assembling Your Response to a Notice of Investigation:

If you are a professional who has been complained about, here are five tips for beginning to assemble your official response:

Tip One:

The Notice of Investigation documents firmly set the parameters for what conduct is being investigated, and the rule that governs this component of professional conduct. The prosecutor has the benefit of arguing theories in the alternative. Arguments in the alternative can be challenging to respond to. These arguments require interpreting evidence for competing or complementing theories. This requires skillful written advocacy. You are strongly encouraged to receive legal assistance for writing your responding arguments.

Tip Two:

Understand the scope of the investigation: the investigation must be focused on the specific complaints about you. The objectives for the investigation cannot be overly broad. The prosecution is hunting for evidence that confirms their concerns: it cannot file new complaints about you. The transcripts of this investigation cannot be used in other potential legal proceedings against you.

Tip Three:

You must be provided with more substantial disclosure than included in the Notice of Investigation documents. While it differs among colleges, you must be provided with this substantial disclosure with a witness list and witness statements. You must be provided these documents no less than ten days before the hearing.

In disciplinary matters, issues of disclosure are heard and decided by the Disciplinary Committee. If specific and necessary documents are not included in the Notice of Hearing, we may need to file a motion asking for them. Representatives for the College may assert that specific documents are privileged or irrelevant. These issues vary widely from case to case: you are encouraged to discuss your concerns about evidence with your legal representative.

Tip Four:

Limitation periods can be a defense to regulatory college allegations.

Depending on:

1. When the alleged misconduct occurred
2. When the Complaint was filed
3. How long the investigation took to complete
4. How long between the professional member’s response and the Notice of Hearing
5. How many extensions were provided to the prosecution and the professional
6. Whether adjournments were requested or provided and why they were provided
7. Whether efforts to rectify challenges of disclosure were ordered by the disciplinary committee

The delay within each of these phases can prejudice your defence and undermine the College’s procedural fairness duties and obligations.

Tip Four:

Each case must be heard on its own merits and its own parameters. There cannot be a perception that the disciplinary committee has made their decision before hearing submissions and evidence. A disciplinary committee must be careful when assigning which adjudicators will hear a complaint. If an adjudicator recently heard and decided upon a similar matter to your own case this may be cause for concern.

Tip Five:

When drafting your professional response, take care to read the legislation that the prosecution is using to discipline you. Read the Regulatory College’s definitions of the words that appear in the Disciplinary Rules. By understanding precisely what constitutes their accusations, the better prepared you can be to respond to them. The definitions also give you an idea of what documents you will rely upon to illustrate your due diligence and non-blameworthiness.

Disciplinary proceedings can result in license restrictions, cost awards and revocation of a professional’s license.

Precision Paralegals can help you mount a formidable defence. Call us today! Precision Paralegal Services can help you craft an excellent response.

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Fallon Burns Legal Researcher | Licensed Paralegal Precision Paralegal Services Professional Corporation