Complaints & Discipline
The Ontario Professional Foresters Association is accountable to the public for governing the conduct of professional foresters in Ontario. Its main objective is to regulate the practice of professional forestry in order that the public interest may be served and protected. One of the ways the Association fulfills this objective is to develop and enforce professional ethics and standards of practice. Individuals must be members of the Association in order to engage in the practice of professional forestry. As licensed professionals, members can be disciplined under the Professional Foresters Act, 2000 for violating standards of conduct prescribed by the Act, the regulations and by-laws.
When the Association receives a complaint against a member, the Association has a duty to investigate the validity of the complaint. A protocol has been developed for this and that protocol is available to all members of the Association. The affected member is notified when a formal complaint has been received and is given the opportunity to speak to the complaint and to provide such material that may be necessary, in order to dispute the complaint. The Association works with the member to ensure any material received is complete and that all of the identified components of the complaint are covered in the member’s response.
In the complaints process and the discipline process, the Association determines if the complaint is valid and if so, acts as prosecutor through the complaints investigation and disciplinary process. This is consistent with the Associations role of “regulating the practice of professional forestry.” It will be necessary for the member who is the subject of a complaint to obtain advice elsewhere regarding the substance of the complaint. However, OPFA can provide support and information regarding procedural matters and ensures material supplied by both the member and the complainant is complete.
The complaints process allow the Association to acquire the necessary technical expertise to be able to determine the validity of complaints. The discipline process allows, via the public hearing process, for the calling of expert witnesses, so there is the opportunity to acquire special technical expertise as part of both processes when required.
If you have a concern about a member of the association, you should first try to speak to the member unless there are reasons why this would be inappropriate. You should explain why you are not satisfied and discuss with the member what could be done to resolve matters. If you need help to do this, Association staff may be able to provide assistance. Many cases can be easily resolved in this manner.
If you cannot resolve concerns this way, you have the right to make a formal complaint to the Association. This must be done by filling out a form available for this purpose and sending it to the Registrar. Only complaints filed using the Associations ‘complaint form’ can be acted upon by OPFA. If you need help filling out the form, contact Association staff for assistance. The form can be found by using the following link:
Please answer as many of the questions as you can, and return the Complaint Form to The Registrar at the OPFA Office.
Your complaint will be investigated unless it is outside the responsibility of the Association, or the complaint is minor and is resolved informally by association staff with your consent. If your complaint is more complicated it will be referred to the Complaints Committee. However, the Committee shall refuse to consider and investigate complaints if, in its opinion, (a) the complaint does not relate to professional misconduct, unskilled practice or incapacity on the part of a member, or (b) the complaint is frivolous, vexatious or an abuse of process. Otherwise, the Committee will then write to the member providing the member with the particulars of the complaint. The member must provide a response which will be shared with you. If the response does not lead to a resolution, the Committee will investigate your complaint.
The Committee, in accordance with the information it receives, may dismiss the complaint, take action it considers appropriate in the circumstances (which could include offering advice or a warning to the member, or referring the matter to another committee of the association for education or skills upgrading) or refer the matter to the Discipline Committee for a hearing. Generally, only the most serious cases will be referred to the Discipline Committee.
Proceedings before the Complaints Committee are not open to the public, and are usually conducted based solely on written submissions.
The Association will keep you informed of the progress of your complaint. In order to protect the rights of complainants and members, and to avoid possible prejudice to the process, the Association will not comment publicly or otherwise provide information on a complaint or an investigation unless it is referred to the Discipline Committee for a public hearing.
For further information on the complaints and discipline process, please contact the Registrar.
The Discipline Committee hears and determines allegations of incapacity, professional misconduct or unskilled practice of forestry made against members. The parties to the hearing, which is open to the public, are the Association and the member who is the subject of the complaint. If the Committee finds the member guilty, it may impose a range of penalties which could include a reprimand, a fine up to $10,000, a suspension, or a revocation of the member’s certificate of registration.
Approved by Council, March 7, 2002
Note to reader: This document is a condensed version of Chapter 6 of “A Complete Guide to the Regulated Health Professions Act”, Canada Law Book, Toronto, 2000 by Richard Steinecke, modified in accordance with the Professional Foresters Act, 2000.
The Discipline Committee represents the ultimate authority of a self-regulating profession in that it has the power to revoke or seriously constrain the right of a member to earn a livelihood by practicing the profession. As a result, its powers and procedures are tightly regulated and controlled both by the governing statute and the courts. Under the Professional Foresters Act, 2000, the Committee must operate independently of Council and other committees of the Association. It is a statutory decision making body and relies heavily on legal procedure and precedents. The parties in a disciplinary hearing are the Association as prosecutor and the accused member, each of whom are normally represented by legal counsel. The Committee itself will normally have an independent legal advisor present.
2. The Discipline Committee
The Discipline Committee (the Committee) must be composed of six persons, at least one of whom must be a public appointee1. Three members of the Committee constitute a quorum2 , and the Committee can sit in two panels simultaneously so long as a quorum is present in each panel3.
3. The Role of the Discipline Committee
The role of the committee is to hold a hearing in order to determine allegations of incapacity, professional misconduct or unskilled practice of forestry on the part of a member4.
4. Referral to Discipline
A matter can come before the Discipline Committee either through a referral from the Complaints Committee after a formal complaint has been filed, or a referral from the Executive Committee when information regarding allegations of incapacity, professional misconduct or unskilled practice of forestry has come to its attention5. The Executive Committee could also refer allegations in a formal complaint, which has not yet been considered by the Complaints Committee6.
Referrals to the Discipline Committee must include some description of the conduct being referred, and the scope of the discipline hearing must be confined to those allegations of concern to the referring committee in order to prevent allegations being added by the prosecutor without the consent of the referring committee7.
It is common for the referring committees to send the matter to the prosecutor before sending it to the Discipline Committee, in order to prepare a statement of the allegations. The referring committee would then approve this statement in the referring motion. The purpose of this procedure is to ensure the allegations are suitable for prosecution and to reduce the possibility of technical errors or omissions8.
5. Pre-Hearing Procedures
(1) Notice of Hearing
The notice of hearing contains information to ensure that the member can participate effectively in the hearing. It should include:
- The time and place of the hearing;
- A statement that the purpose of the hearing is for a discipline proceeding, and not merely a preliminary or investigative meeting;
- The possible orders that can be made by the Discipline Committee;
Reference to the statutory authority under which the hearing will be held; and,
- A statement that, if the member does not attend at the hearing, the Discipline Committee may proceed in his or her absence, and he or she will not be entitled to any further notice in the proceedings9.
The Discipline Committee is confined to matters raised in the notice of hearing, and may not make findings or receive evidence regarding matters that were not alleged10. The notice of hearing should be served personally on the member in a reasonable amount of time before the hearing, normally at least a month11.
In order to ensure the member knows the case he or she has to meet and defend, the member is entitled to reasonable information regarding the allegations. This is normally provided with the notice of hearing, in the form of a statement of allegations containing an outline of the material facts, and the legal conclusion to be drawn from the facts (i.e. unskilled practice of forestry)12.
(2) Disclosure Requirements
Disclosure provides more detail than that contained in the notice of hearing, and enables the member to prepare the best possible defence. Subsection 34(1) of the Act states that a party to a hearing shall be afforded an opportunity to examine before the hearing any written or documentary evidence that will be produced or any report the contents of which will be given in evidence at the hearing. Although no time limit is specified, 10 days is a common requirement. Subsection 34(2) enables the Discipline Committee to make rules respecting the disclosure of evidence at the hearing. Section 35 requires disclosure of expert witness reports 10 days before the hearing. These sections apply to parties to a hearing, and not just the prosecutor, such that all parties will have the opportunity to examine evidence before the hearing begins. However, there is a greater onus on the prosecutor to ensure the relevant material is made available to the member.
Without proper disclosure, the evidence is not admissible without the consent of the other parties. However, the Committee does have the discretion to admit evidence if it is necessary to rebut evidence previously presented at the hearing, or if the Committee believes the evidence is necessary to make a fair decision13. It is common for discipline committees to admit late evidence provided it was not deliberately withheld, and the committee can give directions to ensure the member is not prejudiced. For example, the hearing can be adjourned to enable the member to respond to the evidence14.
Disclosure applies only to information in the possession or control of the prosecutor or the investigator15 (they have no control over information held by third parties), and only to information that is relevant16. The duty of disclosure continues even after the hearing and any appeals are completed, in the event subsequent information shows innocence or raises doubt as to guilt17. The prosecutor should inform the person receiving disclosure, normally defence counsel, that they have a duty to ensure disclosure materials are not improperly disseminated18. In some circumstances, it may be necessary to take steps to protect the privacy of complainants and witnesses19. Material that is privileged does not have to be disclosed unless it is essential for the defence20.
(3) Appointment of Panel
When allegations are referred to the Discipline Committee for a hearing, the chair of the committee will assign a panel of three from among the committee members. Committee members may only take part in a hearing if they have not taken part in any investigation or consideration of the subject matter of the hearing beforehand (unless it was at a previous hearing of the committee).21 If the term of office of a panel member ceases after evidence has been heard and before the matter is disposed of, the person remains a member of the panel until the final disposition of the matter.22 If a panel member becomes unable to continue to act, the remaining members may continue the hearing and render a decision despite the lack of a quorum.23
(4) Appearance of Bias
Panel members, as decision-makers, must remain disinterested and unbiased. Even an appearance of bias could be sufficient to nullify a hearing. An appearance of bias can occur through pre-judgement by the committee,24 the conduct of the committee during the hearing,25 the relationship of a panel member to a participant in the hearing,26 or a monetary or other interest in the outcome of the hearing.27 A practitioner may be able to waive an apprehension of bias, but must be aware of its existence and expressly or by conduct waive the concern.28
(5) Parties to the Hearing
The Association is the prosecutor, and the member is the defendant to a hearing. However, the Discipline Committee has the discretion as to whether and to what extent other persons should be able to participate.29 Examples of who else might be added include a person whose conduct or competence is in question at the hearing, and a public interest group in a case that raises broad issues of general interest. The degree of participation could range from receiving written submissions to full participation in the entire hearing. Participants are subject to the disclosure and other procedural requirements of the Act, and have the right to be represented by a lawyer or agent at their own expense.30
(6) Scheduling and Adjourning the Hearing
There are no requirements set out in the Act regarding how the hearing should be scheduled. A staff member should be appointed to manage the logistics of communicating with the parties, panel members, lawyers, witnesses, court reporter and other staff. A date could be set unilaterally, or attempts made to reach agreement before sending out the notice of hearing. Alternatively, the parties and others could meet to agree on a date and other procedural matters. The Committee can determine the location of the hearing.31
Adjournments should normally be granted for matters such as providing the member with the opportunity to obtain legal counsel or prepare for some of the allegations or evidence, or where the member cannot be present for a reason such as illness. If it is not clear whether the request is legitimate, the committee must balance the right of the parties to a fair hearing and the need for an expeditious hearing. If the panel grants the adjournment, it has the authority to request a party to agree to reasonable conditions. For example, in a serious case, it may be reasonable to impose the condition that the member cease practice pending the hearing.32
6. Hearing Procedures
(1) Order of Proceedings
A discipline hearing is similar to a court proceeding. It is adversarial in nature with two competing parties, the association and the member, presenting their cases to the Discipline Committee. The Committee ensures that both sides present their cases fairly, listens impartially to the evidence and arguments, and decides the issues after the parties have completed their presentation. The initiating party, normally the prosecutor, leads evidence first and is then followed by the member who leads his or her evidence. The prosecutor may then call reply witnesses. In calling witnesses, the party calling the witness leads that witness’s evidence, the other party cross examines, and the party calling the witness re-examines. In closing argument, the prosecutor goes first, the member second, and the prosecutor may reply. In re-examination or reply, the party should confine himself or herself to points raised by the other party and not repeat points he or she has already covered. If the panel intervenes at any point by, for example, asking questions of a witness or a party, each party is allowed to respond once and the party whose stage of proceeding is interrupted responds last. Panels have the flexibility to vary these guidelines where appropriate. A finding of misconduct or unskilled practice of forestry should be made before evidence or submissions are heard regarding an appropriate penalty or order. If the panel wishes to impose a greater penalty than that asked for, it must tell the parties what it is considering and hear further submissions on the matter. The parties should not be permitted to leave the hearing until the panel knows it no longer needs to speak to them.33
(2) Public Hearings
Discipline hearings are open to the public unless the Discipline Committee makes an order that the public be excluded from all or part of a hearing if it is satisfied that (a) matters of public security may be disclosed, (b) avoiding disclosure of personal or financial information outweighs the desirability of a public hearing or, (c) the safety of a person may be jeopardized.34 The request to exclude the public is made by motion and can be made at any time, by any party or person, or by the Committee. The Committee may order the public to be excluded while it receives evidence or submissions on the motion or while it deliberates on the matter.35 If the circumstances apply, the Committee still must balance whether the competing interest outweighs the public interest in an open hearing. In some cases concerns can be alleviated by, for example, using code names instead of client names. A member’s embarrassment is not normally sufficient reason to close a hearing to the public.36
In addition to or instead of excluding the public from all or part of a hearing, the Committee may make orders preventing the public disclosure of information disclosed at the hearing, and banning the publication or broadcasting of that information.37
(3) Multiple Allegations
Multiple allegations are generally heard together unless doing so would cause manifest prejudice or injustice to the member. Obviously, a single hearing is more efficient. However, severing the allegations may make sense in some cases where, for example, the allegations are very different in nature and it would be inconvenient to intermix the evidence on them. Even then, separate hearings may not be necessary if the evidence can be managed in a way that does not seriously prejudice the member. In deciding whether to sever the allegations, the Committee can consider the interests of the public, the Association, the witnesses and the parties. If different allegations based on different facts are heard together, the Committee must be careful to consider the evidence of each allegation separately, and its reasons should reflect this. The allegations could also be heard sequentially, although deliberation on all of them could take place at one time.38
(4) Objections and Motions
Objections and motions commonly occur in hearings, including motions for disclosure or adjournment, and objections to questions asked by parties. A motion is a request for the Committee to make a certain order. An objection is a request for the Committee to prevent a party or the Committee from doing something. The moving or objecting party, having the onus of persuasion, goes first, the other party responds, and the moving or objecting party replies. Other procedural matters, such as whether motions need be in writing, are at the discretion of the Committee. Evidence, if needed, can be in the form of affidavit evidence or hearing witnesses on the motion. If the facts are not disputed, the Committee can rely on the statements of counsel. Evidence used on the motion should not be used in deciding the matters in issue at the hearing, unless the parties agree. The Committee is entitled receive legal advice on the motion if needed. The Committee can decide the motion right away or reserve its decision until later. Normally, the hearing can proceed in the meantime. The Committee is entitled to make a ruling on a constitutional challenge if a ruling is necessary to allow the hearing to proceed.39
(5) Independent Legal Advice
On issues of law, procedure and evidence, it is normal for the Committee to obtain independent legal advice. Any legal advice received, even if in private, must be made known to the parties, and the parties are entitled to make submissions before the Committee makes a decision on the advice. Independent counsel normally sits apart from the Committee, and gives advice only when requested by the chair. He or she does not act as the chair of the hearing, does not interfere with the examination of witnesses, addresses advice only to the Committee, and must not appear to make rulings. The Committee can make exceptions to these guidelines in appropriate circumstances. Independent counsel must be impartial and should not have any connections with the parties or have acted in any other proceedings against one of the parties. Although the Committee can obtain assistance in writing its reasons, the reasons must be those of the Committee and the Committee is responsible for them. Any assistance given should not pressure the Committee to change its decision on the facts but should relate to policy issues and prior decisions. Any changes should be written by the Committee.40
(6) Questioning Witnesses
The Discipline Committee can question any witness who testifies but must take care not to display any hostility or lack of impartiality, and must ensure that it does not appear to advocate a position. Questions should be limited to those intended to clarify an area of evidence, and should not be directed to new areas not covered by either party. The chair should intervene if a panel member asks an improper question or asks too many questions. The chair should ask questions last, and as the impartial moderator, should ask the least number of questions. After the Committee has asked all its questions, the chair should invite the parties to re-examine the witness on evidence elicited by the questions.41
(7) Hearing Transcripts
The hearing must be recorded, either electronically or through a court reporter. Transcripts must be available at the request of parties or any member of the public (at their own expense) unless a publication ban applies.42
7. Evidence at the Hearing
(1) Evidence and Exhibits
Section 33 of the Professional Foresters Act, 2000, requires that findings of fact by the Discipline Committee be based exclusively on evidence admissible or matters that may be noticed under sections 15, 15.1, 15.2 and 16 of the Statutory Powers Procedure Act. These sections mean that rules of evidence for Discipline hearings under the Professional Foresters Act, 2000, are more relaxed than rules of evidence for civil trials or for discipline hearings for some other professions including the health professions. For example, s. 16 of the Statutory Powers Procedure Act enables the Committee to take notice of facts and opinions (without receiving evidence) including any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge.
Attendance to administrative detail is important in receiving exhibits into evidence, and in compiling a record of the hearing. Documents must be marked as exhibits, and an accurate list of exhibits maintained. The record consists of all the official documents related to the hearing and all the documentary evidence. The record should be brought to the hearing each day. In an appeal or judicial review, the record will have to be sent to the court hearing the matter.43
(2) Onus and Standard of Proof
“Onus of proof” refers to which party must prove the case. In discipline cases, the regulator, in this case the Association has the onus of proof. “Standard of proof refers to how persuasively the Association must prove its case. In civil cases, a court decides based on a “balance of probabilities”. In criminal cases, since much more is at stake, charges must be proved “beyond a reasonable doubt”. Although discipline cases are civil in nature, allegations have serious implications and can result in a loss of livelihood and career. The standard of proof should therefore be greater than a simple balance of probabilities. The proof must be “clear and convincing” and based upon cogent evidence which is accepted by the Committee. This is not as strict a test as beyond a reasonable doubt, but it does mean the evidence must be carefully considered and that the Committee must write persuasive reasons for its decision.44
8. Professional Misconduct
The Discipline Committee first decides what it is the member has done, and then decides whether it constitutes professional misconduct or the unskilled practice of forestry. Findings of professional misconduct are often challenged or defended on the basis that the provision defining the misconduct is invalid or does not apply to the facts of the case, the member did not have the required intent to perform the misconduct, or there is a legal impediment preventing the committee from making a finding in the case. Challenges to the validity of provisions defining misconduct are often constitutional and involve complex legal arguments increasing the likelihood that the committee’s decision will be reviewed by the courts. Other challenges may also be made based on principles of common law and legislative interpretation which could either render the provision invalid or result in a narrow interpretation.45
Challenges that the definition of professional misconduct does not apply to the facts of the case are common. Issues that may considered are whether the definition applies to conduct that occurred before the member joined the Association (for example, criminal convictions), or whether it applies to conduct outside Ontario or outside the practice of professional forestry. Professional misconduct is defined by regulation46 and includes provisions relating to conduct, failing to maintain standards of practice, record keeping, confidentiality, conflict of interest, fees, advertising and so on. The Committee must interpret the meaning of the definition and courts will normally defer to the Committee as long as the interpretation is reasonable.47
Other defences to charges of professional misconduct can include mental illness on the part of the practitioner, abuse of process or delay on the part of the Committee, the issue has already been decided by the Association, the hearing is held while the person is not a member, the member has legal immunity, and the breach is too trivial to prosecute.48
9. Unskilled Practice of Forestry
Where misconduct involves unethical or dishonest conduct, unskilled practice of forestry involves the status or condition of the member and is assessed based on the quality of a member’s advice or services performed for clients or employers. The unskilled practice must relate to the member’s professional advice and services rather than managerial or other errors. It must also relate to a deficiency in knowledge, skill or judgement, or a disregard for the forest. Finally, it must be of a nature or to an extent that demonstrates that the member is unfit to engage in the practice of professional forestry or that the member’s practice should be restricted.49
A mere failure to maintain the standards of practice of the profession or an instance of malpractice does not necessarily constitute unskilled practice. Rather, it involves a fundamental or basic error suggesting that the member cannot be trusted with the practice of professional forestry in at least some circumstances.50
While unskilled practice proceedings can be brought against a member who is suspended, they cannot be brought against a member whose registration was revoked or who has resigned. The Committee should be able to make a finding of professional misconduct and unskilled practice in respect of the same acts since the former relates to past conduct while the latter relates to current status. Legal defences to allegations of unskilled practice are similar to those available for allegations of professional misconduct. To place evidence of unskilled practice in perspective, the Committee can consider evidence that the member generally acts in a competent manner, or evidence as to the context in which the alleged unskilled practice occurred.51
The Act states that a member shall be found to be incapacitated if the member is suffering from a physical or mental condition or disorder that makes it desirable in the interest of the public that the member no longer be permitted to practice or that the member’s practice be restricted.53 The member must not only be found to have a physical or mental condition or disorder, but that condition must also warrant some restrictions on the member’s practice. The member must demonstrate a lack of insight into his or her illness to the extent that there is a valid concern that he or she will practice inappropriately. For example, many mental or substance abuse illnesses would meet this definition, and most incapacity cases involve those situations. Members with other disabilities or illnesses will not normally be considered incapacitated even if the condition has the potential to affect their practice.54
The purpose of the incapacity provision is not to punish or blame a member for his or her illness, but to protect the public from members whose illnesses are interfering with their ability to practice and to ensure that the member receives treatment and is supervised and monitored in such a way that he or she can continue to practice if possible.55
11. Decisions and Orders56
(1) Possible Orders
Revocation: Revoking the member’s certificate of registration removes the member from the profession for at least a year (unless the Committee specifies an earlier date), after which the onus is on him or her to apply to be permitted back into the profession.57 It is the harshest possible punishment for a member, but is intended primarily to protect the public interest. It should be reserved for repeat offenders and the most serious cases of misconduct or unskilled practice involving, for example, premeditation, exploitation, dishonesty or lack of integrity.58
Suspension: Suspension is a temporary removal of a member from the profession, and a suspended member should not be considered a member of the Association. It is normally for a fixed period of time (except for cases of unskilled practice where suspensions could be indefinite) and could be conditional by, for example, becoming suspended or lifted if the suspended member permits an inspection of his or her practice. A suspension could also be imposed that will end upon the occurrence of an event, but it must be clear exactly what will end the suspension (for example, completing a specified course with a mark of 75% or higher). Suspensions of six months or longer are considered quite severe, while those of two months or less might be viewed as ineffective or even as a welcome break.59
Terms, Conditions and Limitations: The power to impose terms, conditions and limitations provides the Committee with considerable flexibility in addressing discipline issues. Terms, conditions and limitations can be for specified or indefinite periods. A “term” involves a continuing restriction and can imply that some positive action must be done. A “condition” refers to a requirement needed in order to practice (e.g. completing a course). A “limitation” is a restriction that implies avoiding certain actions. These words are usually used together since their meanings overlap.60
A term, condition or limitation must relate to the finding made by the discipline committee, must be reasonable, and must not be excessive in relation to the finding or impossible to fulfil. Examples include requirements to obtain retraining, cooperate with an investigation, restrict his or her scope of practice, and apologize in writing. They must be clearly stated, and must describe the scope of the restriction, consequences of breaching it, and what must be done to remove it.61
Reprimands: A reprimand is an expression of disapproval by the practitioner’s peers and the public. It involves the committee verbally conveying its views to the practitioner regarding his or her conduct and how to correct the problems. Normally only the practitioner is present. The committee can direct that the fact of the reprimand be recorded on the register, but the content of the reprimand is not recorded in the register. Including a notation of the reprimand on the register means it is available to the public and results in the practitioner’s name being included in the publication of the decision.62
Fines: The discipline committee can impose a fine in an amount up to $10,000 payable to the Minister of Finance. If a fine is imposed, the committee should require the member to notify the association of payment, and outline the consequences of failure to pay by a specified date (e.g. a period of suspension). The committee can require the fine to be noted in the register, with the same consequences as above.63
Postponed Imposition of Penalty: The committee may direct that the imposition of a penalty be postponed for a specified period and not be imposed on a member if specified terms are met within that period (for example permitting the inspection of his or her practice).64 A postponed or suspended order acts as an incentive to encourage the member to behave in a certain manner in future. It also allows the committee to take into account mitigating factors in a serious case that would otherwise have resulted in the full order. The period for which the order is suspended should be clearly stated. The committee can delegate the power to decide whether the conditions to lift the suspension have been met (for example, the quality assurance committee could decide when the member’s records have been brought up to an acceptable standard). The committee should also decide whether to note the postponed order in the register.65
(2) Factors to Consider in Making Decisions and Orders
In exercising its broad discretion in making orders, the discipline committee should begin by considering the impacts on the parties affected, namely the public, the profession and the practitioner. Will the order be sufficient to protect the public, including the complainant, bearing in mind that the primary purpose of the association is to protect the public interest? Will the order act as a general deterrent to the profession and reflect how seriously the association views the conduct? Will the order both deter the member and assist in his or her rehabilitation? The committee should next consider the seriousness of the conduct, any factors which aggravated or mitigated the conduct, and any prior orders it has made concerning the conduct.66
- Nature of the Misconduct or Incompetence
The order should reflect the seriousness of the conduct. Court rulings have indicated that conduct that is intentional is more serious than that which is inadvertent; conduct carried on over a period of time is more serious than an isolated incident; and immoral, dishonest or criminal behaviour, or behaviour which involves a breach of trust is considered serious. Conduct motivated by personal gain is considered an aggravating factor. Conduct caused in part by a psychiatric condition or a substance abuse problem, however, is considered less serious perhaps because the motivation of the member is different.67
- Prior Decisions
The committee should review its prior decisions in similar cases or, if none exist, look to decisions in similar cases from other professions or provinces. Decisions should not stray too far from precedents without good reason in order to survive court scrutiny.68
- Prior Conduct by Practitioner
Prior conduct can both aggravate and mitigate an order, but the rules for considering past conduct must be followed carefully. Steinecke outlines these rules as follows:
“The general rule is that the discipline committee can only consider the conduct alleged in the notice of hearing because it is unfair for the committee to receive evidence of other instances of such conduct or evidence of other forms of misconduct, given that the practitioner has not come prepared to defend him or herself against such allegations. However, this general rule has some exceptions. The first exception is that if the practitioner places his or her good character in issue, then the college can introduce evidence of other instances of misconduct to show that the practitioner’s character is not as good as he or she suggests. Also, if the practitioner suggests that the conduct in issue was an isolated instance, the college can lead evidence of other instances. Another exception is that the discipline committee can consider a prior finding of misconduct against the practitioner as an aggravating factor. The prior finding has already been proved and demonstrates that the practitioner may not have learned from the first order. Prior findings refer to findings by the discipline committee. In some circumstances, such as where the allegation is a breach of the criminal law, prior findings of the criminal court might be relied upon as well. Undue weight should not be put on a prior finding, particularly if it did not constitute similar misconduct or was made long before the proceeding at hand. Also, if the other finding was made after the conduct alleged in the current case, then it is not truly a prior finding because the practitioner has not had an opportunity to learn from the first order. It is, however, still relevant to show that the conduct was not an isolated incident.”69
- Subsequent Conduct of Practitioner
Although subsequent bad conduct cannot usually be used against the member, subsequent good conduct can often be a mitigating factor in deciding which order to make regarding the member. For example, the member may have made restitution for damage caused or took other steps to remedy his or her deficiencies or conduct. The passage of time without a repetition of the misconduct can also be a mitigating factor.70
- Conduct of Practitioner’s Defense
Opinion is mixed as to whether or how the discipline committee should consider this factor. On one hand, the member has the right to conduct a vigorous defense and the committee’s order should not be more severe if the member requires the association to prove all of its allegations. On the other hand, a plea of guilty could be considered as a mitigating factor since it represents an admission of wrongdoing and makes rehabilitation more likely.71
- Character of Practitioner
Good character should be considered by the committee as a mitigating factor. Factors such as a member’s abilities, length of practice, devotion to his or her work, academic achievement and reputation can result in a less severe order, unless the misconduct is so serious that this would be out of the question. Evidence of bad character should not be introduced by the association unless the member puts his or her character into issue first.72
- Effect of Order on Practitioner
The discipline committee should consider the effects of its order on the member’s practice, family life, reputation and emotional state. Evidence regarding these factors and the member’s financial circumstances are therefore relevant. Sometimes, however, the member’s misconduct may be so serious that an order with adverse consequences must be made in any event.73
(3) Cost Orders
The discipline committee can order either the association or the member to pay costs to the other74, although the criteria are different for each party.
- Costs Payable by Association to Practitioner
Where the discipline committee is of the opinion that the commencement of the proceeding was unwarranted, the committee shall order that the association reimburse the member for his or her costs or such portion thereof as the committee fixes.75 This provision enables the member to recover some or all of his or her legal fees if the committee feels the discipline process was being abused. The committee should consider the reasonableness of the decision to refer the matter to the committee. Even if the allegations turn out to be unfounded, that does not mean that costs will necessarily be avoided, particularly if the investigation raised valid concerns about the member’s practice. Reasons should be given for the decision to grant or refuse costs.76
- Costs Payable by Practitioner to Association
The discipline committee has the power to make an order “fixing costs and expenses to be paid by the member.”77 Factors that the committee may take into account in making such an order include the nature of the misconduct found to have been committed, the conduct of the member during the hearing and the relative degree of success of the parties. The provision enabling the committee to make a decision on costs seems to be broad enough to cover more that just legal costs.78
- Procedure for Ordering Payment of Costs
The issue of costs should be argued after the penalty has been decided, in order to avoid potential conflicts regarding the impact of the member’s conduct during the hearing. The amount of costs should be based on records, not conjecture and the committee’s power to award costs must be exercised reasonably. A cost award can be enforced by filing it with the court and using the court’s enforcement methods.79
(4) Decision and Reasons
The discipline committee is required to serve its decision, with reasons, on the parties and the complainant. If the hearing was closed, the decision can be served on the complainant without reasons, at the discretion of the committee.80 Where privacy rights of witnesses is a concern, pseudonyms may be used in the reasons. The decision and reasons can be combined in one document. One advantage to providing them separately is that the decision can be delivered before the reasons have been finalized.81
Reasons must both state the conclusions and why those conclusions were reached. Normally this would include responding to the evidence or defences raised by the unsuccessful party. Adequate reasons should demonstrate that a party’s case has been heard and understood, explain the basis for the decision, and negate perceptions of arbitrariness or unfairness. In reviewing a decision for adequacy, a court will consider the statutory context, the nature of the case, the issue involved and the nature of the tribunal.82
Witness credibility is often the basis of the committee’s decision. Credibility involves the honesty of the witness and his or ability to give accurate testimony. Phrased as a formula:
Credibility = Honesty + Ability (to tell the truth)
The committee, which an appellate body will consider as being in the best position to determine credibility, must explain why it found a witness to be credible or not. A finding of credibility can be made on one or more of the following:
- Appearance or demeanour. The tone and body language of a witness may affect his or her credibility. For example, confusion, partisanship, sarcasm or arrogance can indicate much as to a witness’s credibility.
- Ability to perceive. Was the witness in a position to make a certain observation? Was the witness concentrating on the event when it was observed? Is the witness an observant person?
- Ability to recall. Does the witness have a good memory? How much time has passed since the observation? Has the witness had reason to review the memory since it was registered? Is the witness able to refresh his or her memory from notes?
- Motivation. Witnesses sometimes have a reason to remember a matter in a particular way. Having something to gain or lose from the hearing or liking or disliking a party to the hearing can influence a witness’s recollection or testimony.
- Probability or plausibility. A powerful indicator of the truth of a fact is its probability or plausibility. A discipline committee should apply its collective common sense to the evidence of a witness when assessing probability. Plausibility is particularly important when a witness is giving an explanation or excuse for his or her questionable behaviour.
- Internal consistency. A common attack on the testimony of a witness is whether it is consistent throughout. Sometimes a statement made on cross-examination is inconsistent with that made in chief. Sometimes the witness is inconsistent with a prior statement which he or she has made. Where there is inconsistency, the discipline committee should look at the reason for the inconsistency when deciding its significance.
- External consistency. The testimony of the witness should also be compared with externally proven facts. For example, does the testimony contradict what was said by another witness who was found to be credible by the discipline committee? Does the evidence contradict a document filed as an exhibit? Of course, one always has to accept the possibility that the other witness or the document is in error.
The committee should explain why any of these factors are applicable and must ensure its reasons are supported by the evidence.83
Committee members should take careful and detailed notes during the hearing to ensure facts and evidence are accurate. Care should also be exercised in making inferences against witnesses where the issue was not put to the witness in cross examination. The committee need not review all aspects of the evidence in its reasons, so long as the reasons make it clear that the important aspects were considered.84
(5) Publication and Public Access to Discipline Decisions
Upon the request of a member against whom an allegation was made, the discipline committee is required to publish, in the official publication of the association, the fact that an allegation of incapacity, professional misconduct or unskilled practice was unproved.85 There are no other publication requirements in the Act. However, the committee might consider reporting its decisions and at least a summary of its reasons to help educate the profession and the public regarding the types of conduct considered appropriate by the association.86
An important issue the committee should consider is whether to publish the member’s name. The name may be published if the member requests it, but in other situations it is not as clear and the committee should seek legal advice. It is also unclear whether the member can obtain a court injunction to prevent publication.87
12. Appeals and Reinstatement Applications
Any party to a hearing before the discipline committee may appeal the committee’s decision to the Divisional Court. Appeals may only be made on questions of law, not on questions of fact. The court may affirm or may rescind the decision of the committee and may refer the matter back to the committee for rehearing in whole or in part in accordance with such directions as the court considers appropriate.88
Where the discipline committee revokes or suspends a certificate of registration, withdraws or suspends a recognition of specialist status or imposes terms, conditions or limitations on a certificate on the ground of incapacity, unskilled practice of forestry or professional misconduct, the decision takes effect immediately even if an appeal is taken from the decision, unless the court to which the appeal is taken orders otherwise.89
(2) Reinstatement Applications
A member whose certificate of registration or designation as a specialist has been revoked or suspended for cause, or who has had terms, conditions or limitations imposed, may apply to have the certificate or designation reinstated or the terms, conditions or limitations removed. The application must be writing to the Registrar, who must refer it to the discipline committee. The application cannot be brought sooner than one year from the initial order of the committee. The discipline committee, after a hearing on the application (which follows the same procedures as normal hearings), may refuse or grant the application, or impose terms, conditions or limitations.90 Although it is not specified, the committee should give its decision and reasons in writing since decisions regarding reinstatement applications are subject to appeal.91
Procedurally, since in this case the member brings the application and has the burden to prove its merits, the member presents his or her case first followed by the association. The member then has the opportunity to reply. Either party can rely on the record and proceedings from the prior hearing. Normally, the member will not be permitted to argue that the previous decision was wrongly made, but must establish that there has been a change in circumstances in order to obtain reinstatement.92
The council or executive committee has the power to order reinstatement without a hearing. This provision applies to members who have had a certificate of registration or a designation as a specialist suspended or revoked for any reason under the Act.93 In this case, a member would likely apply directly to the executive committee or council, and such an order would likely only be made in obvious cases where a hearing is clearly unnecessary.94
- Professional Foresters Act, 2000, subsection 27(1).
- Ibid, subsection 27(2).
- Ibid, subsection 30(1).
- Ibid, subsection 28(1).
- Ibid, subsection 28(2).
- Steinecke, Richard,“A Complete Guide to the Regulated Health Professions Act”, Canada Law Book, Toronto, 2000, paragraph 6.20.
- Ibid, paragraph 6.30.
- Ibid, paragraph 6.40.
- Ibid, paragraph 6.160, p. 6-7
- Ibid, paragraph 6.180, p. 6-8.
- Ibid, paragraph 6.200, p. 6-9.
- Ibid, paragraph 6.170, p. 6-8.
- Professional Foresters Act, 2000, subsection 36(1).
- Steinecke, Richard, supra note 6, p. 6-10, paragraph 6.220.
- Ibid, p. 6-12, paragraph 6.270.
- Ibid, p. 6-13, paragraph 6.300.
- Ibid, p. 6-16, paragraph 6.360.
- Ibid, p. 6-12, paragraph 6.290.
- Ibid, p. 6-16, paragraph 6.370.
- Ibid, p. 6-17, paragraph 6.380.
- Professional Foresters Act, 2000, subsection 30(3).
- Ibid, subsection 30(4).
- Ibid, subsection 30(5).
- Steinecke, Richard, supra note 6, p. 6-21, paragraph 6.470.
- Ibid, p. 6-24, paragraph 6.490.
- Ibid, p. 6-25, paragraph 6.500.
- Ibid, p. 6-27, paragraph 6.520.
- Ibid, p. 6-27, paragraph 6.530.
- Ibid, p. 6-27, paragraph 6.540.
- Ibid, p. 6-28, paragraphs 6.550 to 6.590.
- Ibid, p. 6-29, paragraphs 6.600 to 6.615.
- Ibid, p. 6-30, paragraphs 6.620 to 6.640.
- Ibid, p.6-32, paragraphs 6.650 to 6.710.
- Professional Foresters Act, 2000, subsections 32(1) and (2).
- Ibid, subsection 32(3).
- Steinecke, Richard, supra note 6, p. 6-36, paragraph 6.750.
- Professional Foresters Act, 2000, subsection 32(4).
- Steinecke, Richard, supra note 6, p. 6-38, paragraphs 6.810 to 6.860.
- Ibid, p. 6-40, paragraphs 6.870 to 6.940.
- Ibid, p. 6-42, paragraphs 6.950 to 6.990.
- Ibid, p. 6-44, paragraphs 6.1000 and 6.1010.
- Ibid, p. 6-44.1, paragraph 6.1020.
- Ibid, p. 6-45, paragraphs 6.1100 to 6.1160.
- Ibid, p. 6-46, paragraphs 6.1170 to 6.1210.
- Ibid, p. 6-48, paragraphs 6.1220 to 6.1240.
- Part II, Regulation made under Professional Foresters Act, 2000.
- Steinecke, Richard, Supra note 6, p. 6-54, paragraphs 6.1250 to 6.1700.
- Ibid, p. 6-74.1, paragraphs 6.1750 to 6.1930.
- Professional Foresters Act, 2000, subsection 42(2).
- Steinecke, Richard, Supra note 6, p. 6-78.4, paragraph 6.1950.
- Ibid, p. 6-78.5, paragraphs 6.1970 to 6.2000.
- For a detailed review of special considerations for an incapacity hearing, see Steinecke, Richard, Supra note 6, chapter 7.
- Professional Foresters Act, 2000, subsection 42(3).
- Steinecke, Richard, Supra note 6, p. 7-2, paragraph 7.30 and 7.40.
- Ibid, p. 7-2, paragraph 7.50
- Professional Foresters Act, 2000, subsection 42(4).
- Ibid, subsection 42(6).
- Steinecke, Richard, Supra note 6, p. 6-78.6, paragraph 6.2030.
- Ibid, p. 6-78.6, paragraphs 6.2040 and 6.2050.
- Ibid, P. 6-78.8, paragraph 6.2060.
- Ibid, p. 6-78.8, paragraphs 6.2070 to 6.2090.
- Ibid, p. 6-79, paragraphs 6.2100 and 6.2110.
- Ibid, p. 6-80, paragraph 6.2120.
- Professional Foresters Act, 2000, subsection 42(4) paragraph 5.
- Steinecke, Richard, Supra note 6, p. 6-81, paragraphs 6.2150 to 6.2190.
- Ibid, p. 6-84, paragraphs 6.2280 to 6.2310.
- Ibid, p. 6-85, paragraph 6.2320.
- Ibid, p. 6-86, paragraph 6.2330.
- Ibid, p. 6-86, paragraph 6.2350.
- Ibid, p. 6-87, paragraph 6.2370
- Ibid, p. 6-88, paragraphs 6.2380 to 6.2410.
- Ibid, p. 6-89, paragraphs 6.2420 and 6.2430.
- Ibid, p. 6-90, paragraph 6.2440.
- Professional Foresters Act 2000, ss. 42(4) paragraph 9, and ss. 42(8).
- Ibid, ss. 42(8).
- Steinecke, Richard, Supra note 6, p. 6-90, paragraphs 6.2450 to 6.2475.
- Professional Foresters Act 2000, ss. 42(4) paragraph 9.
- Steinecke, Richard, Supra note 6, p. 6-91, paragraphs 6.2480 and 6.2490.
- Ibid, p. 6-92, paragraphs 6.2500 to 6.2520.
- Professional Foresters Act 2000, s.43.
- Steinecke, Richard, Supra note 6, p. 6-93, paragraphs 6.2530 and 6.2540.
- Ibid, p. 6-93, paragraph 6.2550.
- Ibid, p. 6-94, paragraph 6.2560.
- Ibid, p. 6-95, paragraphs 6.2570 to 6.2577.
- Professional Foresters Act 2000, ss. 42(7).
- Steinecke, Richard, Supra note 6, p. 6-96, paragraph 6.2580.
- Ibid, p. 6-96, paragraphs 6.2590 and 6.2600.
- Professional Foresters Act 2000, s. 47.
- Ibid, s. 44.
- Ibid, s. 45.
- Ibid, s. 47.
- Steinecke, Richard, Supra note 6, p. 6-97, paragraph 6.2640.
- Professional Foresters Act 2000, s. 46.
- Steinecke, Richard, Supra note 6, p. 6-97, paragraph 6.2650.