In Taylor v. the Law Society of British Columbia 2010 BCSC 1098, the B.C. Supreme Court held that the decision of the Discipline Committee not to hold a discipline hearing with respect to a particular matter, is not subject to judicial review. The LSBC's Conduct Review Committee (CRC) had made a finding that there had been professional misconduct on Mr. Taylor's part and that a citation should be issued, but for reasons that were not set out in the judgment, the Discipline Committee decided not to proceed. Mr. Taylor applied to quash the decision of the Discipline Committee because it had accepted the CRC's conclusions and this information formed part of his record at the Law Society. The Court found that the decision not to proceed was an administrative one and as such was not subject to the Judicial Review Procedure Act. In the course of giving its reasons the Court noted that the LSBC was obliged to maintain the documents in Mr. Taylor's file as part of its duties to the regulate the practice of law and to protect the interests of its members and its duties to the public.
I think that the reasoning in this decision would apply to decisions of Inquiry Committees under the Health Professions Act - in other words their decisions are not subject to judicial review.
Friday, August 20, 2010
LACK OF BOARD OVERSIGHT MAY HAVE CAUSED PROBLEMS FOR THE COSTMETOLOGISTS
The decision in Cosmetology Industry Association of British Columbia v. Nguyen, 2010 BCSC 1051, may serve as a warning to regulatory boards, that they must pay attention to the activities of their employees and carefully consider how much authority ought to be delegated to their registrars or executive directors.
The province decided to deregulate cosmetologists in December 2003, at which point the cosmetologists incorporated pursuant to the Society Act. Therefore, a cosmetologist does not have to be a member of a professional organisation in order to work and use titles associated with the industry, but practically, most salon owners require certification from the Society before hiring. Unfortunately in this case, the Association's CEO and a former board member "ran amok" causing serious financial loss for the Association which it was unable to recover.
In an effort to make it easier for BC cosmetologists to work in the USA an examination process was developed. The Association contracted to an organisation known as "NIC" to administer NIC's examinations. It would charge candidates a fee to take the exams. The idea was that candidates who passed these exams would be qualified to work in most US states. The project was viewed as beneficial financially to the Association. It is important to note that the CEO was not required to obtain approval for this contract from the Board of Directors. It appears from the decision that the Board knew nothing about it.
The CEO and former director Nguyen produced a questionable list of candidates to NIC, obtained the first examination and answer sheet and completed the exams with the assistance of another employee. The candidates did not complete the exams at all! However, it was not long before NIC concluded that there had been cheating and who was responsible for it.
NIC sued the Association for its expenses to ($254,000.00) to develop a new examination. A compromise was reached and the Association paid NIC nearly $200,000.00 Canadian funds to settle the claim.
The Association fired the CEO and unsuccessfully sued the former director, Nguyen in fraud to seek to recover its losses. It tried to put the blame all on the shoulders of the former director despite the fact that its CEO was heavily involved in the scheme from the beginning. Since she was found to be the Association's directing mind and was authorized to enter into the contract without reference to the Board of Directors, it could not be said that she was acting on her own and no fraud occurred because the Association, through its directing mind, did not rely on Nguyen and was not deceived by him.
This decision is a reminder that boards must be careful about the extent of authority granted to employees. Further, a board is responsible to oversee its operations and act responsibly in doing so. It appears that the board of this Association, at least in respect of this matter, was not fulfilling its duties.
The province decided to deregulate cosmetologists in December 2003, at which point the cosmetologists incorporated pursuant to the Society Act. Therefore, a cosmetologist does not have to be a member of a professional organisation in order to work and use titles associated with the industry, but practically, most salon owners require certification from the Society before hiring. Unfortunately in this case, the Association's CEO and a former board member "ran amok" causing serious financial loss for the Association which it was unable to recover.
In an effort to make it easier for BC cosmetologists to work in the USA an examination process was developed. The Association contracted to an organisation known as "NIC" to administer NIC's examinations. It would charge candidates a fee to take the exams. The idea was that candidates who passed these exams would be qualified to work in most US states. The project was viewed as beneficial financially to the Association. It is important to note that the CEO was not required to obtain approval for this contract from the Board of Directors. It appears from the decision that the Board knew nothing about it.
The CEO and former director Nguyen produced a questionable list of candidates to NIC, obtained the first examination and answer sheet and completed the exams with the assistance of another employee. The candidates did not complete the exams at all! However, it was not long before NIC concluded that there had been cheating and who was responsible for it.
NIC sued the Association for its expenses to ($254,000.00) to develop a new examination. A compromise was reached and the Association paid NIC nearly $200,000.00 Canadian funds to settle the claim.
The Association fired the CEO and unsuccessfully sued the former director, Nguyen in fraud to seek to recover its losses. It tried to put the blame all on the shoulders of the former director despite the fact that its CEO was heavily involved in the scheme from the beginning. Since she was found to be the Association's directing mind and was authorized to enter into the contract without reference to the Board of Directors, it could not be said that she was acting on her own and no fraud occurred because the Association, through its directing mind, did not rely on Nguyen and was not deceived by him.
This decision is a reminder that boards must be careful about the extent of authority granted to employees. Further, a board is responsible to oversee its operations and act responsibly in doing so. It appears that the board of this Association, at least in respect of this matter, was not fulfilling its duties.
Wednesday, August 18, 2010
BCCA CONFIRMS AUTHORITY OF DISCIPLINE COMMITTEES TO SET STANDARD FOR PROFESSIONAL MISCONDUCT
In Salway v. Association of Professional Engineers and Geoscientists, 2010 BCCA 94, the B.C. Courth of Appeal had to consider the degree of deference owed to a discipline committee's assessment of whether certain behaviour constituted professional misconduct.
The member had been found guilty of professional misconduct for failing to respond to correspondence from clients in a timely manner. His clients had retained him to prepare a report in connection with a subdivision plan. They wanted to be exempted from the application of a city bylaw and required the report to support this application. The member was required to have his report peer reviewed before the city would accept it. The clients wrote or emailed him on 3 occasions regarding the peer review in a 3 month period, but the member did not respond. The discipline committee found that the behaviour constituted professional misconduct and imposed a reprimand and an order to pay for the costs of the hearing.
The member appealed on the basis that his behaviour was not severe enough to be characterized as professional misconduct. The Judge hearing the appeal in Supreme Court agreed and found that while the conduct was negligent, it was not "flagrant" and therefore was not professional misconduct.
The Association appealed to the Court of Appeal, which allowed the appeal. It found that the reviewing Judge had not given appropriate deference to the Discipline Committee's views following the decision in Dunsmuir v. New Brunswick [2008] 1 S.C.R. 190.
The Court of Appeal's reasons are of interest to lawyers in that they include a good review and analysis of the Dunsmuir decision.
The decision is very important to Colleges given that it clearly stated that the reviewing Judge had not paid sufficient deference to the tribunal's views and expertise. From a practical point of view, it confirms that as long as the conduct can be reasonably characterized as professional misconduct, that is all that is required: It clearly stated that the conduct did not need to be "dishonourable, disgraceful, blatant or cavalier" to be characterized as unprofessional. It said at paragraph 32:
.....it is the disciplinary body of the professional organization that sets the professional standards for that organization. So long as its decision is within the range of reasonable outcomes - ie., it is justified, transparent and intelligible - it is not for courts to substitute their view of whether a member's conduct amounts to professional misconduct.
The member had been found guilty of professional misconduct for failing to respond to correspondence from clients in a timely manner. His clients had retained him to prepare a report in connection with a subdivision plan. They wanted to be exempted from the application of a city bylaw and required the report to support this application. The member was required to have his report peer reviewed before the city would accept it. The clients wrote or emailed him on 3 occasions regarding the peer review in a 3 month period, but the member did not respond. The discipline committee found that the behaviour constituted professional misconduct and imposed a reprimand and an order to pay for the costs of the hearing.
The member appealed on the basis that his behaviour was not severe enough to be characterized as professional misconduct. The Judge hearing the appeal in Supreme Court agreed and found that while the conduct was negligent, it was not "flagrant" and therefore was not professional misconduct.
The Association appealed to the Court of Appeal, which allowed the appeal. It found that the reviewing Judge had not given appropriate deference to the Discipline Committee's views following the decision in Dunsmuir v. New Brunswick [2008] 1 S.C.R. 190.
The Court of Appeal's reasons are of interest to lawyers in that they include a good review and analysis of the Dunsmuir decision.
The decision is very important to Colleges given that it clearly stated that the reviewing Judge had not paid sufficient deference to the tribunal's views and expertise. From a practical point of view, it confirms that as long as the conduct can be reasonably characterized as professional misconduct, that is all that is required: It clearly stated that the conduct did not need to be "dishonourable, disgraceful, blatant or cavalier" to be characterized as unprofessional. It said at paragraph 32:
.....it is the disciplinary body of the professional organization that sets the professional standards for that organization. So long as its decision is within the range of reasonable outcomes - ie., it is justified, transparent and intelligible - it is not for courts to substitute their view of whether a member's conduct amounts to professional misconduct.
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