In discipline matters, regulators generally do not have to prove that the practitioner had malicious or dishonest intent to engage in the conduct. Failing to fulfill one’s professional obligations is generally sufficient to constitute professional misconduct. One exception is where the definition of professional misconduct contains an intent requirement (e.g., “knowingly”). Another exception is where the regulator alleges a particular type of intent which is then not proved.
An example of the second exception is found in the peculiar case of The Law Society of British Columbia v. Cole, 2022 BCCA 55 (CanLII), https://canlii.ca/t/jm8bc. The matter related to whether the practitioner had advised a client to act contrary to securities requirements. In the first allegation the regulator alleged that the practitioner knew or ought to have known that their advice contravened the securities requirements. In the second and third allegations the regulator alleged that the practitioner failed to make reasonable inquiries as to whether the advice was contrary to securities requirements. The hearing panel found that in all three cases the practitioner intentionally advised the client contrary to the securities requirements. As such, the first allegation was established, but the second and third ones were not proved because the intention of the practitioner was worse than alleged (i.e., the evidence showed that the practitioner did much more than “fail to make reasonable inquiries”). The Court refused to grant leave to appeal saying that the regulator should have sought to amend its particulars at the hearing but should not be able to do so now.
This case highlights the importance of the wording of allegations, and the imperative to amend them, where that is possible, as soon as it becomes clear that the evidence is different from what was originally anticipated.