One of the most difficult allegations to prove during discipline is regarding conduct that is only misconduct if it is done cumulatively. For example, being rude on one occasion rarely deserves sanction. However, a pattern of rude conduct may demonstrate a lack of professionalism particularly where the practitioner knows that there have been concerns and they have been warned about it. The conduct then moves from the category of inadvertence or a slip into the classification of deliberate or, at least, indifference to professional duties.
In MacLeod v Alberta College of Social Workers, 2018 ABCA 13, a social worker was alleged to have engaged in a pattern of rudeness towards clients, their families and colleagues along with a specific example on a specific day. The Court was concerned that the allegations were not sufficiently particularized to enable the practitioner to know the case he had to meet. In addition, even though the pattern of behaviour had been confined to a two-year window, evidence relating to his entire 25-year career was introduced without consideration as how the non-specified events should be used during the hearing. In fact, the Court was concerned that the finding made by the panel appeared to relate to conduct that was not contained in the notice of hearing, as broad as it was. The Court said:
Those findings might be supported by inferences drawn from evidence of related events, but those related events could not independently support a finding of professional misconduct, or expand the scope of the charges.
While the Court does not appear to require that a pattern of behaviour list every incident with specificity, regulators should be careful not to make general allegations of a pattern of vague conduct (i.e., “rudeness”) without ensuring that the practitioner is in a position to have a fair sense of the case they have to meet. And disciplinary tribunals should clearly identify how they have used unalleged or unspecified conduct in assessing the alleged events.