Steinecke Maciura LeBlanc

Divisional Court reinforces the finality principle. A rule permitting the varying of ongoing restrictions does not authorize a review of the original decision. More to come. https://lnkd.in/gj8HX4Nu CanLII #professionalregulation

Canadian privacy authorities reminds registrants to be aware of their ability to release confidential information where imminent harm from intimate partner violence exists: https://lnkd.in/g8vhpBU9 Information and Privacy Commissioner of Ontario #professionalregulation

Of interest for Canadian regulators is that the UK regulator for physicians has the authority to impose restrictions on a work setting through its education program approval role: https://lnkd.in/gaBs4MBK? BBCWorld News Today #professionalregulation

Read the Fine Print by Erica Richler is the latest Regulation Pro blog entry: https://lnkd.in/gdAHKHFP #professionalregulation Courts are increasingly interpreting regulatory legislation with its public interest purpose and intent in mind. However, the language of the provisions still matters, as was demonstrated in Nova Scotia (Embalmers and Funeral Directors) v. Curry, 2024 NSCA 93 (CanLII). In that case, an establishment cremated the wrong body based on a mistaken identification by a morgue. The regulator disciplined the responsible funeral director for failing to adequately ensure the identification of the body. A lower court set aside the finding on the basis that the funeral director had acted reasonably by relying on the morgue’s identification of the body in a sealed container. The Nova Scotia Court of Appeal upheld the lower court’s decision. In doing so, the following points of interest were made: • The provision relied upon by the regulator did not explicitly impose a duty to verify the identity of the body if it was clearly identified at the point of pick up. • In any event, if there was a duty to confirm the identity of the body, the provision placed that obligation on the funeral home, not the funeral director. Funeral homes are regulated separately from funeral directors. The Court said: The Board’s reliance on s. 32C(1) as a means of anchoring a finding that Mr. Curry had breached his statutory obligations as a funeral director, was misplaced. The intent of that section is to articulate the obligations of funeral homes. It has no application to holders of funeral director licences. The Board erred in law in finding Mr. Curry breached a provision that did not apply to him. This analysis of the Court is particularly relevant for regulators who regulate both facilities and individuals. • The published guideline by the regulator was consistent with the distinction between facilities and individuals. In any event, the guideline does not “serve as an independent source of such a duty”. Regulators need to review the actual language of the provisions they rely upon when determining their application.

Regulatory Potpourri: Interesting Updates in Professional Regulation by Anastasia-Maria Hountalas and Ahmad Mozaffari will be the topic of today’s webinar, 12:15-1:00 pm. To view the webinar, please email info@sml-law.com

To better understand when the UK duty of candour is triggered (and its evolving nature) see this UK blog post: https://lnkd.in/g82G7cSB #professionalregulation

UK proposing to regulate health care managers who will have a duty of candour and a duty to protect whistleblowers: https://lnkd.in/ewGj7dvP #professionalregulation

Tribunal finds that there is no conflict of interest, in the specific circumstances, for counsel who routinely prosecuted cases before it five years ago to now defend other registrants appearing there now. https://lnkd.in/gSC775dC CanLII #professionalregulation

Discipline Committee denied licensee’s abuse of process motion. Licensee sought judicial review to stay discipline hearing. Court says that application is premature and that discipline proceeding needs to “run its course.”.: https://lnkd.in/gZZbMXVR CanLII #professionalregulation

The Residual Category by Rebecca Durcan is the latest Regulation Pro blog entry: https://lnkd.in/g-Dd37g7 #professionalregulation In discipline matters, abuse of process claims are generally premised on excessive delay and require prejudice to the registrant to result in a stay of proceedings: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 (CanLII). However, there is a residual category of abuse of process that applies where the regulator’s conduct is so offensive to society’s notions of fair play and decency that proceeding would be harmful to the integrity of the justice system. The concept of abuse of process is closely aligned with the principles of procedural fairness. Typically, in the residual category, the regulator’s conduct involves more than just delay and the concept of prejudice is broader than just the interests of the registrant. The residual category was illustrated in Morabito v. British Columbia (Securities Commission), 2024 BCCA 377 (CanLII). The investigation related to concerns of insider trading by an airline executive. The executive asserted that the investigation amounted to an abuse of process. For example, there was an unannounced visit to the executive’s home at a time when it was likely the executive would be absent resulting in the questioning of his spouse. The investigation was intrusive including a demand for documents from the executive’s 80-year-old father and production of the family’s personal email accounts, including that of his teenage daughter. In addition, the executive’s assets were subject to a broad “freeze” order. The executive also expressed concern that during the investigation the regulator did not inform him that an important witness was terminally ill. The Court found that the Panel created a flawed procedure for the hearing of the abuse of process motion. The process resulted in the regulator providing only one investigator witness who had not been involved in the investigation at the time. The Court found that the regulator was, in effect, shielding those involved in the impugned investigation. While parties generally have the choice of what witnesses to call, and while the burden of proving an abuse of process rested on the executive, in this case sufficient concerns had been raised by the executive about the investigation that the evidentiary burden shifted to the regulator to explain the investigative choices through witnesses who were actually involved in the events. The process also involved rulings that prevented the executive from asking questions about the investigative choices by the regulator that supported his abuse of process claim. The Panel’s decision focussed on delay and prejudice to the executive and did not engage adequately with the residual category of abuse of process. [see link for the entire blog]