Consultation Requirements

Most regulators consult with the public and the profession when making or amending its rules or policies. However, is this a legal requirement? And should any consultation be similar to the kind of notice given in discipline matters.

In Covant v. College of Veterinarians of Ontario, 2021 ONSC 8193 (CanLII), the Court said no to both questions. In that case a veterinarian was disciplined for selling large quantities of drugs to pharmacies. The regulator had long restricted the ability of veterinarians to sell drugs for resale. However, it further limited the exception for resale to pharmacies so that it could only be done for reasonably limited quantities to address a temporary shortage. The practitioner challenged the validity of the amended provision on a number of grounds.

The Court held that the provision was within the mandate of the regulator to enact given the authority to make regulations in respect of standards of practice and drugs. The Court noted that the authority of a regulator to enact provisions is given significant deference. It stated:

The purpose of the amendment was to diminish the risk associated with veterinarians buying and selling drugs, with an exception when required to ensure that patients have access to the medications they need. The amended language of s. 33(2)(d) addresses a veterinarian’s ability to dispense drugs and thus falls squarely within Council’s regulation-making authority under s. 7(1)(9). Because s. 33(2)(d) relates directly to its statutory purpose, it is not ultra vires.

The Court also found that the phrases “reasonably limited quantities” and “temporary shortage” did not render the provision unintelligible or without a basis for coherent judicial interpretation. The Court identified the context of the provision as allowing practitioners to understand their obligations. The Court also found that the provision was not overbroad; it did not capture obviously appropriate conduct within its net.

The Court also found that the regulator had followed the required process for enacting the regulation. There was no duty of procedural fairness similar to what was owed in a disciplinary proceeding. This point, that procedural fairness is not required for legislative-type decisions by regulators was made in another recent case: Ontario Teacher Candidates’ Council v. The Queen, 2021 ONSC 7386 (CanLII), Consultation can, of course, be required by the provisions of the enabling statute: Leavitt v Association of Professional Engineers and Geoscientists of Alberta, 2021 ABQB 983 (CanLII),

In the Covant case the evidence was that the amendments were circulated in advance to all practitioners for comment (which was not strictly required) and the regulator had distributed the amendments to the profession after they were made. There was also evidence that the practitioner in this case was specifically made aware of the provision by a number of individuals.

The Court also found that there was extensive evidence to support a finding of breaching the provision. The Court also upheld the rejection of expert evidence on the duty to consult that was, in essence, a legal opinion.

The Court also upheld the sanction ordered (which included a one-month suspension) and payment of costs that amounted to one-third of the actual hearing costs. In doing so that Court explained that the “error in principle” and “clearly unfit” test for review includes the following considerations:

While determining the appropriate penalty is inherently discretionary, in the regulated health profession context, the penalty must be proportionate to the findings made and guided by penalties imposed in other cases…. Other relevant factors include ensuring public protection and confidence in the College’s ability to govern the profession, denunciation of the conduct at issue, specific and general deterrence and rehabilitation of the member. The Supreme Court of Canada has found that discipline committees have “greater expertise than courts in the choice of sanction for breaches of professional standards” …. “Deference is owed to discipline committees because they are tribunals composed of members of the profession and of the public with the expertise to assess the level of threat to the public and the… profession posed by certain forms of behaviour…. [citations omitted]

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