Recent Cases of Interest to Regulators

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Off Duty Conduct

 Fountain v. British Columbia College of Teachers, 2013 BCSC 773 (British Columbia Supreme Court)

Fountain, a teacher, fired a shot from a rifle over the heads of his sons in the aftermath of a domestic dispute.  He was found guilty by the College of conduct unbecoming a member of the profession.  Fountain appealed the College's finding on the basis that the evidence was not reasonably capable of supporting the panel’s findings, that the panel had considered irrelevant or inappropriate considerations not founded in the evidence and that it failed to articulate a line of analysis within its reasons that reasonably led from the evidence to the conclusion drawn.

In reviewing the College’s Decision, the Court found that Fountain’s reaction in firing the shot resulted from fear following an assault upon him and in these circumstances, it was not reasonable to draw an inference that he was impaired in his ability to perform in his profession. It was also not reasonable to draw an inference that this is the manner in which the teacher would endeavor to send messages and he was, as a consequence, an unsuitable role model. There was no evidence that this private matter was made public and therefore it was unreasonable for the panel to draw the inference that harm to the school system had occurred.   This act was not one where harm could be established from the conduct by its very nature (when compared to other acts such as indecency or anti-Semitic rhetoric). Finally, the Court found that the reasons of the panel did not demonstrate a line of analysis and pass the test for reasonableness as to how they arrived at their decision.  The Appeal was allowed and verdict of not guilty was substituted for the original finding of unprofessional conduct.

Comment:
Some, but not all, off-duty conduct can give rise to a finding of unprofessional conduct. When drawing inferences based on the facts, discipline tribunals must ensure that that there is evidence to support the inference, and that they are considering relevant and appropriate factors.

Assessing Good Character

Chauhan v. Health Professions Appeal and Review Board and the College of Physicians and Surgeons of Ontario, 2013 ONSC 1621

The Appellant Physician was in his first year of residency in a plastic surgery program, when he was charged with a number of criminal offences arising out of allegations that he had drugged and sexually assaulted a woman. While the charges were pending, he applied for a new certificate authorizing post-graduate education. The doctor wrote a letter denying the allegations and indicating he would be defending the charges, but offered no other evidence to defend the charges against him.

The College of Physicians and Surgeons Registration Committee denied the application and refused to issue the certificate, noting that the Doctor’s past and present conduct did not “afford reasonable grounds to believe that he would practice medicine with decency, integrity and honesty and in accordance with the law”, (a requirement set out under the governing legislation in Ontario). This decision was appealed to the Health Professions Appeal and Review Board, which upheld the denial.

On appeal to the Ontario Superior Court, the Doctor argued that the Board was both unreasonable and wrong in basing its refusal to renew his certification on unproven criminal charges, because (among other things) it violated the fundamental principle of the presumption of innocence. The Court reviewed the Board’s Decision, confirming that under the legislative scheme, the applicant bore the burden of establishing that his “past and present conduct afforded reasonable grounds for the belief that they would practice medicine with decency, integrity and honesty and in accordance with the law” and that there is no presumption of “good character”. The Court noted that given the College’s public interest mandate, the Registration Committee must consider all the information it has before it, which can include unproven complaints, because they may be relevant to the protection of the public interest.

Comment: 
While the requirement to establish “good character” will differ based on the legislative requirements for registration in each profession, since a professional regulator’s mandate includes protection of the public interest, a regulator may consider outstanding criminal charges when assessing good character.  Considering such information will not violate the “presumption of innocence.”