Considering Unproven Allegations When Imposing Sanction

When a disciplinary finding is made, hearing panels need to consider the relevant circumstances and not consider the irrelevant circumstances when imposing sanction. Are unproven allegations relevant to the issue of sanction?

In Yendamuri v. Immigration Consultants of Canada Regulatory Council, 2022 FC 888 (CanLII), https://canlii.ca/t/jpsd6 a registrant admitted to issuing a false letter. The conduct resulted in only two criminal convictions, despite the laying of 88 charges. In the discussion of sanction, the hearing panel said:

Although the [Applicant] was convicted on only 2 of the 88 charges, the panel is of the opinion that the charges seen in their totality suggest a pattern of unethical conduct, even though no previous complaints were made against the Respondent.

The panel had no information about the other 86 charges. The Court was concerned by this statement. It would be rare for charges that do not result in findings to be relevant to sanction on the two matters before them. The reasons of the panel did not explain what limited relevance those charges might have. In fact, the reasons suggest that the reference to the other charges may have been improperly considered.

However, in the end the Court determined that this flaw did not result in a reversible error. This one sentence needed to be read in context. The reasons indicate that the sanction was selected from appropriate and relevant reasons:

He was convicted of two criminal charges relating to fraud arising from the false letter he submitted; this was done in the course of his work as an Immigration Consultant; and it could have resulted in a person obtaining status in Canada based on deliberately falsified information. The Disciplinary Committee viewed the matter from its perspective as the profession’s regulator. It took into account the impact of such conduct on public faith and confidence in the profession. None of this reasoning rested on the finding that the Applicant had engaged in a “pattern” of unethical conduct. The discussion of the factors that guided the Committee in reaching its penalty decision do not reflect any aspect of increasing the severity of the punishment to reflect a long-standing or ongoing pattern of misconduct.

The overall decision remained reasonable.

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