The Agenda for the conference is online and the course is open for registration. The course topics have been selected to highlight current key issues in the law of self-governing professions.

Added: MAY 25, 2017

Regulating Professional Businesses

The course will open with a presentation on regulating professional businesses. The presenters are Deborah Armour, Chief Legal Officer of the Law Society of British Columbia in Vancouver and Geoff Thiele, Director of Legal Services of the Real Estate Council of BC in Vancouver.

To begin, Deborah will discuss the interim report published by the Law Society’s Law Firm Regulation Task Force, which was mandated with recommending a framework for regulating law firms in BC. She will provide an overview of the interim report, which includes ten recommendations pertaining to the various aspects of the regulatory design.

Specific elements in the report that will be discussed include:

1. defining regulatory goals and objectives;
2. the nature and scope of law firm regulation;
3. the adoption of a set of “professional infrastructure elements”;
4. the development of several ancillary aspects of the framework, including firm contacts and registration processes; and
5. a number of compliance and enforcement related issues, including self-assessment, compliance reviews and potential disciplinary action.

Deborah will also discuss the Task Force’s proposed next steps in developing a model of regulation that will improve the quality and effectiveness of the provision and regulation of legal services and enhance the protection of the public interest in the administration of justice.

Next, Geoff will discuss oversight of businesses that deliver professional services in the real estate context. He will provide an overview of how businesses are regulated by the Real Estate Council of BC and the challenges the Council has faced, and provide recommendations for regulators who are considering regulating businesses.

Throughout his presentation, Geoff will discuss the benefits of regulating professional businesses, which include the creation of an additional “point of contact” for the regulator that can enhance both proactive identification of potential issues and risks of harm and opportunities to use business regulation to screen out high-risk applicants. He will also discuss the costs of regulating professional businesses, which include the added time, cost and complexity for both the regulator and the regulated, and how the additional regulation can result in unintended consequences. Geoff will discuss weighing the costs and benefits in assessing whether to undertake this regulatory initiative. 

Labour Mobility

The presenter is Jason Herbert of DLA Piper (Canada) LLP in Vancouver. Jason offers an abundance of experience as he has practiced in regulatory and administrative law for the past 18 years and regularly advises professional regulatory bodies on various matters, including labour mobility.

The topics that will be discussed include:

1. interprovincial labour mobility agreements that affect BC regulators;
2. enforcement mechanisms of those interprovincial labour mobility agreements; and
3. important labour mobility issues and key cases.

Jason will provide a high-level overview of the labour mobility agreements affecting BC regulators. He will discuss how interprovincial labour mobility agreements have become an integral part of the regulatory landscape for the regulated professions in Canada and the inherent tension between labour mobility requirements and the role of regulators to ensure public protection. Next, he will discuss the enforcement mechanisms of the applicable labour mobility agreements.

Jason will also outline important labour mobility issues that have arisen as regulators grapple with the tension between meeting the labour mobility requirements and their obligation to protect the public, involving issues of equivalent occupation, character, competency, currency of practice and “legitimate objectives”. Some of the specific issues that he will discuss are the complications arising from the differences between provinces in registration, licensure and required competencies and challenges when a regulator has individualized concerns about particular applicants (e.g., when an applicant’s good character may be in issue).

Throughout the presentation, Jason will identify and comment on some key cases for regulators and their legal advisors, including a variety of decisions of dispute panels, the Ontario Health Professions Appeal and Review Board (HPARB) and the courts, which interpret and apply various aspects of the labour mobility regime.

Difficult Issues: Views from Both Sides

The panelists are Natasha Dookie, Deputy Registrar/Chief Officer Registration, Inquiry & Discipline of the College of Registered Nurses of British Columbia in Vancouver, Jennifer Strate, Senior Manager (Acting), Inquiry & Discipline of the College of Registered Nurses of British Columbia in Vancouver, and Lara C. H. Zee of Harper Grey LLP in Vancouver.

They will be discussing:

1. meeting the duty to respond;
2. informal and formal resolutions of professional regulatory complaints;
3. transparency and publication; and
4. charging standards for discipline hearings.

Through a moderated group discussion, the panelists will discuss the duty of registrants to respond to their regulators. As part of this discussion, the panelists will outline what the duty to respond entails, and the rationale underlying the duty. The panel will explore the difficult issues that arise when registrants fail to respond or do not respond adequately.

Informal and formal resolutions are important tools for regulators and registrants to resolve professional regulatory complaints under the Health Professions Act.  The panelists will discuss the challenges that arise in negotiating resolutions, and the tension between resolving complaints and publication requirements.

The panelists will examine the trend towards increased transparency in light of the proposed Bill 87 in Ontario, which requires the publication of notices of caution or voluntary resignations. In B.C., public notices of caution or voluntary resignations during the inquiry or discipline process are not required.

Finally, the panel will discuss the use of charging standards to guide committee decision-making on whether to send a matter to a discipline hearing.  The panel will review various charging standards used by regulators, and discuss approaches for developing a charging standard.

Unauthorized Practice and Contempt (or Shutting Down the Charlatan)

The presenter is Brent Olthuis of Hunter Litigation Chambers in Vancouver. Brent will share his first-hand experience in bringing injunctions to cease unauthorized practice, obtaining contempt orders, and appearing before courts to seek orders to search and seize evidence.  In recent years, he has acted for several regulators in high-profile cases halting charlatans from performing regulated health services, including cosmetic medical surgery and dental services.

He will discuss the following topics:

1. unauthorized practice;
2. remedies (i.e., offence and injunctive relief);
3. search and seizure orders; and
4. contempt of court applications.

Self-governing professions, in addition to maintaining and protecting the public interest through the regulation of their own members, must also police non-members who perform unauthorized practice and, as a result, pose a health and financial risk to the public.

Brent will explore the options and procedures available to the professions for investigating and prosecuting unlicensed practice, including where a non-member engaging in services that only members of self-governing professions may provide amounts to an offence, and where a profession’s governing body may seek injunctive relief in order to restrain the non-member. He will discuss the use of a search and seizure order as an investigative tool, as well as the “checklist items” that a self-governing profession should be aware of when seeking injunctive relief.

Lastly, Brent will discuss the unique features of a contempt of court application available to regulators, if a non-member repeats the unauthorized practice, including incarceration as a penalty, and special costs.

Key Recent Regulatory Cases

The presenters are Sarah A. Hellman of the College of Physicians and Surgeons of British Columbia in Vancouver, Graeme Keirstead, Chief Legal Counsel of the College of Physicians and Surgeons of British Columbia in Vancouver, and Jaia Rai of Beach Avenue Barristers in Vancouver.

They will discuss the main cases in four current regulatory topics:

1. defining the “public interest”;
2. regulating civility;
3. tribunal review of tribunal decisions; and
4. undue delay and losing jurisdiction.

In recent years, a number of important cases have wound their way through our court systems defining the public interest and considering the level of deference that courts should give to regulators making these polycentric decisions.  Graeme will discuss how three law societies and the courts in the trio of Trinity Western University cases have defined the public interest (where law societies refused to accredit a law school that would require its students to refrain from sexual relations outside of marriage and with the same gender), and the issues that have now culminated before the Supreme Court of Canada.  He will also discuss the duo of Sobeys West cases and how the B.C. Court of Appeal and the Alberta Queen's Bench have differently treated the public interest (when assessing the reasonableness of bylaws restricting pharmacists from engaging in incentive programs). Graeme will also address the Supreme Court of Canada's recent decision of Green v Law Society of Manitoba, which dealt with a challenge to an automatic suspension of a registrant who declined to meet his continuing education requirements.  Finally, he will talk about defining the public interest in the context of extraordinary action in Scott v College of Massage Therapists.

Sarah will discuss the notion that the public interest has come to include curtailing incivility by professionals in the context of the legal profession. A discussion of recent cases on this matter will illustrate that the goal of curtailing incivility is challenging due to many factors such as differing concepts of civility and varying standards of civil conduct in the legal system, the value of free speech and the fluid nature of standards relating to acceptable conduct.  Her discussion will include a discussion on Groia v Law Society of Upper Canada which is anticipated to be heard by the Supreme Court of Canada later this year.

The complexities of the standard of review when one tribunal reviews another tribunal's decision has recently received the guidance of the B.C. Court of Appeal in two important B.C. Law Society cases.  Jaia will address the cases of Harding v LSBC and Vlug v LSBC, and discuss the tricky issue of identifying the different standards of review that apply to different review issues.

Jaia will also discuss undue delay and loss of jurisdiction – the result of too much time elapsing before prosecution of an accused takes place. The panel will examine the recent criminal case on this issue, R v Jordan, and how it raises the question of whether such a time limitation may come to apply to professional disciplinary cases. 

Trends in Professional Regulation

The course will close with a panel presentation on the trends in professional regulation. The panelists are Lisa C. Fong of Ng Ariss Fong in Vancouver, Angela R. Westmacott, QC of Lovett Westmacott in Victoria, Rebecca Durcan of Steinecke Maciura LeBlanc in Toronto, and Katrina Haymond of Field Law in Edmonton. The panelists will offer rationale underlying the trends, examples of the trends in practice, governmental action taken in response to the trends, and tips for regulating these trends.

The trends in professional regulation that will be discussed include:

1. ongoing skepticism of self-regulation leading to increased “regulating of regulators”;
2. increased willingness of government to eliminate self-regulation when ineffective;
3. increased controls of the regulatory processes relating to transparency and discipline; and
4. increased litigation against regulators.

Lisa will discuss the ongoing skepticism of self-regulation resulting in increased regulation of regulators. Key discussion points will include the inherent conflict of interest in self-regulation and the consequential public concerns. She will discuss the forms of governmental action taken resulting in increased harmonization and regulation of regulators and offer tips for regulators in addressing the trend of public concerns.  

Next, Angela will discuss the increased willingness of government to eliminate self-regulation when regulators are unwilling or unable to fulfill their public interest mandate. She will discuss various forms of this trend, such as government’s complete elimination of self-regulation, its assumption of control of a regulator, and its appointing a supervisor or trustee. She will discuss these steps in the context of examples involving the BC College of Teachers, College of Denturists of Ontario, Real Estate Council of BC and Ordre des ingénieurs du Quebec.

Rebecca will then discuss the trend towards mandatory transparency and discipline mandates in professional regulation. She will engage in a detailed discussion of Ontario’s Bill 87 (Protecting Patients Act, 2017) and its relevant measures in relation to transparency and outcomes of sexual abuse. She will offer her views on the impact to regulators across Canada.

Lastly, Katrina will review the shift towards increased litigation against regulators and their staff and the impact that the increased litigation has had on the regulatory process and the regulatory bodies. She will engage in a discussion of the past and recent case law and end her presentation with her views on how regulators should respond to this trend.

This panel has designed their session to allow for a 30-minute discussion period with the audience following the presentation and looks forward to a dynamic engagement.