Prosecuting and Defending Professional Discipline Cases 2023

Jaan Lilles
Lenczner Slaght LLP

Ahmad Mozaffari
Steinecke Maciura LeBlanc

The opening segment will provide a succinct review of the duties and investigative powers of professional regulatory bodies, along with the common legal tools for challenging them.

• Challenging use of the power to summons
• Challenging ex parte investigation orders
• Duties of investigators and regulatory college staff
  • Duty of good faith, neutrality and reasonableness
  • Duty to provide notice of complaint or investigation
• The professional’s duty to co-operate and its limits
  • Availability of protections against compelled testimony
  • Co-operating with a power to inquire into and examine

Fredrick Schumann
Stockwoods LLP

Janice Wright
Wright Temelini LLP

As is so often the case in contested matters, competence in managing the production/requests for documentary evidence is a must in professional regulatory hearings. Delve into the vital issues, including:

• Demands for production
  • Preservation and protection of electronic records
  • Results of internal investigations and privilege
  • PIPEDA obligations and privacy issues
  • Limits on the power to inspect
  • How production demands might affect disclosure obligations
• Anticipating the use of search and seizure powers
  • What to do when an investigator arrives with a warrant
• Charter considerations at the production stage
• Solicitor-client privilege
  • What can be claimed; challenging claims

10:35 a.m.
Break

Dana Carson
Crawley MacKewn Brush LLP

Colin Johnston
Lenczner Slaght LLP

Professional regulators must follow detailed procedures outlined by their own enabling statutes, as well as laws and rules of more general application, when looking into the impugned conduct of their members. Delve into essential facets of the investigative process:

• Best practices for preparing the client
• Entitlement to pre-examination disclosure
• Prudent practices and planning for the conduct of investigations
• The privilege against self-incrimination
• The impact of parallel investigations by police or other agencies on examinations

Nisha Dhanoa
Hunter Liberatore Law LLP

Cait Sainsbury
Borden Ladner Gervais LLP

Once a case has advanced to the hearing stage, a whole set of important considerations come into play. This session will provide a thorough overview of the process and necessary steps:

• Familiarizing yourself with the tribunal practices
• Pre-hearing conferences
• Anticipating the other side’s positions
• Severing allegations or respondents: strategic considerations
• Witness preparation
  • Interviewing witnesses preliminary to hearing
  • Vulnerable witnesses
• Materials preparation
  • Assessing expert reports: do you need a reply report?
  • Conduct of hearing: in writing/electronic/oral presentation
• Disclosure, including:
  • How to determine if disclosure is complete
  • Procedures for challenging adequacy of disclosure
  • Obtaining access to third-party documents
• Getting information about staff conduct
• Applying the implied undertaking rule
• Initial fairness issues:
  • The right to counsel and adjournments
  • Alleging bias
  • Validity and interpretation of the definition of misconduct

12:35 p.m.
Lunch Break

Glynnis Hawe
Paliare Roland Rosenberg Rothstein LLP

Interim proceedings are often overlooked. However, these are a crucial phase of professional discipline matters. Gain a critical understanding of this process and recent developments:

• Interim order powers under the Regulated Health Professions Act
• A review of key case law
• The consequences of interim orders on future prosecutions and penalties

David A. Hausman
Fasken Martineau DuMoulin LLP

Sylvia Samuel
Senior Enforcement Counsel, IIROC

Addressing best practices, this session will examine the crucial issues that advocates should always consider at the hearing stage of a case.

• Pitfalls of settlement: avoiding or addressing them
• Using admissions made in other proceedings
• Is it possible to negotiate too good a deal?
• Penalty guidelines and the use of prior decisions
• Effective evidence and its presentation
• Assessment of costs in disciplinary proceedings
• Challenging the tribunal staff’s claim for costs

2:30 p.m.
Break

John Fabello
Torys LLP

Jane Waechter
Legal and Regulatory/Adjudicator/Director

Using realistic fact situations that illustrate how to effectively address practice quandaries that you will face sooner or later in professional discipline work, you will analyze:

• Best practices for representation
• How to be a respectful, yet effective, advocate
• Understanding and managing ethical dilemmas.

Given the complexity of the issues, and evolving obligations, there will be ample time for questions and discussion.

Brookelyn Kirkham
Polley Faith LLP

Elisabeth Widner
Legal Office, College of Physicians and Surgeons of Ontario

What is the process for challenging a decision rendered by the disciplinary panel? Evaluate the evidentiary hurdles and legal standards involved, as well important factors that influence decision making. The session will cover:

• The level of deference afforded to disciplinary bodies on questions of law upon judicial review
• Interpreting originating statutes
• Changing societal values and behavioral expectations reflected in disciplinary hearing decisions

Tim Moseley
Chief Adjudicator, Capital Markets Tribunal

Effective advocacy before regulatory tribunals is critical to success. This session will provide:

• Guidance on what does and doesn’t work before tribunals
• The impact of government policy on tribunals
• An overview of the challenges for counsel in matters involving unrepresented parties

4:45 p.m.
Program Ends