Ready, Set, Charge!

by Field Law
Contact

Professional discipline allegations are more art than science. Regulatory statutes usually provide little or no guidance for writing them. But whether you call them allegations, charges, citations, complaints or something else, observing a few simple rules can make your discipline process smoother, fairer and faster.

Why do we need allegations anyway? Can’t we just use the complaint letter?

Professional discipline proceedings often start with a complaint letter. Complaint letters sometimes suggest specific misconduct by the member, but more often they are too short and vague or too long and voluminous for the reader to determine the specific issues. In other cases there may not be a complaint letter at all. Many regulatory statutes permit the Regulator to commence proceedings if they have grounds to believe a member has committed unprofessional conduct. Regulators generally have broad discretion to investigate any aspect of the member’s conduct, including new issues discovered during the investigation. Professional discipline allegations distill all of the available information and provide the member with fair notice of the case they have to meet. A discipline allegation enables the member to:

  • Know what is being alleged;
  • Avoid being taken by surprise at the hearing;
  • Effectively participate in the hearing; and
  • Fully and adequately defend him or herself.

What should the allegation say?

A well-written professional discipline allegation has two key elements:

  1. A statement of the material facts that are alleged to have occurred;1
  2. A statement of the legal conclusion to be drawn from those facts, i.e. that the conduct amounts to unprofessional conduct,2 as defined by the governing statute.

Although professional discipline allegations are very important, it is not necessary to write them with the same level of precision as a charge under the Criminal Code. Professional discipline allegations are judged by a standard of adequacy, not perfection. Their primary purpose is to give adequate notice to permit affected persons to know how they might be affected and to prepare adequately to respond.3

The facts must enable the member to appreciate the true nature of the alleged wrongdoing and to compare the alleged facts with his or her own conduct. For example, an allegation cannot simply allege incompetence in the provision of professional services. Such a bald assertion of wrongdoing would be impossible to defend and unfair to the member. On the other hand putting too many facts into an allegation can be risky. The regulator generally needs to prove all of the facts stated in an allegation. If the evidence only proves some of the facts stated in an allegation then the allegation could be dismissed.

The legal conclusion, i.e. that the alleged facts constitute unprofessional conduct under the governing statute can be stated as part of each allegation, or stated generally in reference to all of the allegations together. In some cases, where a member is alleged to have breached a specific statutory or professional requirement, it may be necessary to give “particulars” by referring to that requirement in the allegation. In other cases where the member’s conduct has not breached a specific requirement it is usually sufficient to state the material facts and that the conduct was unprofessional conduct under the governing statute.

Do professional discipline allegations have any other purposes?

In addition to giving the member notice of the case they have to meet, professional discipline allegations have several other important purposes. Professional discipline allegations:

  • Delineate the scope of the required disclosure to the member;
  • Define the issues and the relevance of evidence that should be admitted at the hearing; and
  • Limit the findings that can be made by the Discipline Tribunal at the hearing. 

Professional Regulators are generally required to disclose all evidence that may be used to prove the discipline allegations and all evidence that may assist the member in his or her defence of those allegations, even if the Regulator does not intend to use it. The allegations are therefore an important guide in determining what should be disclosed.

Professional discipline allegations also define the scope of admissible evidence. Only evidence that is related to the allegations should be admitted at the hearing. Evidence that relates only to other issues may be treated as inadmissible. Such evidence is likely to have an unfair prejudicial effect on the Discipline Tribunal’s perception of the member.

Lastly, allegations limit the findings that the Discipline Tribunal can make. Discipline Tribunals exercise authority delegated to them by the governing statute. A Discipline Tribunal cannot find the member guilty of an allegation that has not been referred to a hearing on proper notice to the member. That would be unfair. For example, a Discipline Tribunal that dismisses a charge of professional misconduct cannot find the member guilty of incompetence instead.Regulatory statutes have different ways to address new issues that arise at the hearing, but they always require time and proper notice to the member before he or she will be required to respond.

The statute says I have to give particulars of the alleged wrongdoing. Can I get help drafting the allegations?

Some regulatory statutes require an official such as a Complaints Director, Hearings Director, Registrar, Investigative Committee or some other official to refer matters to a hearing and give particulars of the conduct in respect of which the hearing will be held. This permits the official to obtain legal assistance to draft the charges.5

It is a good idea to have legal counsel review the results of the investigation and draft or provide comments on the allegations. Legal counsel can identify potential challenges in prosecuting the allegations and they can suggest revisions likely to make the hearing smoother and more efficient.

Tips for Drafting Allegations

  • Review the investigation report and define each aspect of the member’s conduct for which an allegation of unprofessional conduct could be made;
  • Prepare the allegations based on the key conduct that is a concern, distilling the allegation to the key elements you intend to prove at the hearing;
  • Consider whether you need to provide further detail by listing “particulars”;
  • Be sure the allegations or the notice generally states that the conduct was unprofessional conduct under the governing statute;6
  • Consider seeking legal advice about the wording of the allegations, the need for any particulars and the sufficiency of the evidence to prove unprofessional conduct as defined by the governing statute.

Violette v. New Brunswick Dental Society (2004), 267 N.B.R. (2d) 205 (C.A.)
2 Or professional or occupational misconduct, unskilled practice, conduct deserving of sanction, etc.
3 Del Bianco v. Alberta Securities Commission (2004), 334 W.A.C. 361 (Alta C.A.) at para 11.
4 Sheddy v. Law Society of British Columbia (2007), 392 W.A.C. 121 (B.C.C.A.)
5 Reddy v. APEGBC, 2001 BCCA 237
Or whatever term is used in the governing statute: professional or occupational misconduct, unskilled practice, conduct deserving of sanction, etc.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Field Law | Attorney Advertising

Written by:

Field Law
Contact
more
less

Field Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!