PROFESSION-BASED REGULATION
THE MAIL IS HERE!
By Richard Steinecke
will be regulated by the government,
consumer protection laws and the
Criminal Code of Canada.
Okay I will be honest. My heart rate
does go up when I receive a letter
from my regulator, the Law Society
of Ontario. Sometimes, when it is
sent by Canada Post rather than
email, it contains a complaint.
Then I start thinking like a lawyer who
advises regulators of professions.
What is the silliest reason for going to
discipline? Not responding to one’s
regulator. Most communications from
regulators are not complaints. Most deal
with other topics including seeking input
and opinions on future directions in the
regulation of the profession. It is to one’s
benefit to consider and respond to such
communications.
Within my own profession there
have been many, many practitioners
disciplined for not cooperating with their
regulator. Often, the underlying conduct
never made it to discipline. In fact, the
underlying conduct was not even that
concerning. However, the failure to
accept one’s professional obligation to
cooperate with the regulator is a serious
failure of a fundamental professional
obligation.
A recent case within my own profession
illustrates the question of: at what point
does this conduct constitute non-
cooperation? In Law Society of Ontario v
Diamond, 2019 ONSC 3228, http://canlii.
ca/t/j0l82 the Court said that it depends
on the circumstances of each case.
However, a failure to provide clearly
requested documents for a period of
four to six months (despite providing
some other documents quickly), where
the documents are required to be readily
available, supported a disciplinary finding
of failing to cooperate.
In the Diamond case, the practitioner
argued that he thought he had fulfilled
his duty of cooperation by what he had
provided. The Court held that subjectively
believing one had done enough was
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College Connection Fall 2019 cvo.org
Cooperation is not limited to complaints
investigations. Practitioners are expected
to assist in all of the public protection
activities of their regulatory body in other
ways as well. These include:
Richard Steinecke
– – Renewing licensure annually,
– – Providing changes in information
(e.g., contact information, work
setting) as they occur,
– – Assuming necessary supervision and
oversight responsibilities, such as for
a veterinary facility, and
– – Participating fully in continuing
education, inspection and quality
assurance activities including
providing timely reports.
Steinecke Maciura LeBlanc
irrelevant where objectively the
practitioner was incorrect.
Further, all communications with the
regulator should also be honest and as
accurate as possible. In my experience,
regulators begin with the assumption
that practitioners are forthcoming
and candid. However, nothing excites
suspicion in a regulator more quickly
than a demonstrably inaccurate
statement by a practitioner.
Examples of non-cooperation are not
restricted to lawyers. There have been
a number of veterinary discipline cases
recently where non-cooperation was at
least part of the allegations.
The rationale for the duty (and the
reason that Courts enforce it) is that self-
regulating professions cannot protect
the public without the active assistance
of the members of the profession. Part
of “the deal” when joining a regulated
profession is a willingness to assist in its
regulation. In fact, a criterion of whether
the government will enable a new
profession to become self-regulating is
the overall readiness of the profession
to think outside of its own self-interest
and to accept the obligations of being
regulated. Otherwise, the profession
Veterinarians should be aware of
their duty to cooperate, particularly in
circumstances that require immediate
attention (e.g., allowing a duly
appointed investigator – who always has
documented proof of their authority –
onto the premises and providing them
with access to the relevant records of
the practice). In addition, where in doubt
about a request to provide information,
veterinarians should immediately contact
their own legal advisors rather than
waiting until the last minute. Where an
extension of time is required for a valid
reason (e.g., extended absence, illness),
it should be requested as soon as the
need is known. Even where all of the
information cannot be provided right
away, veterinarians should respond
to the letter from the College with an
explanation. Don’t delay in responding
until after the deadline even if one is
gathering some additional data.
As tempting as it is to forget about that
anxiety-provoking envelope, don’t ignore
it. Doing so creates an unnecessary
problem that just doesn’t need to exist.
Who knows, it might even be good news.