Forward Looking vs. Backward Looking Sanctions

Most professional discipline statutes allow the imposition of a sanction upon a finding of misconduct. Sometimes called a “penalty”, the order imposes a consequence for the conduct. While consideration is given to the reform of the practitioner and deterring and guiding their future behaviour, there is a retrospective component to the order.

In many licensing statutes a Notice of Proposal model is used. A regulator proposes to terminate (or otherwise limit) the licence of the practitioner on the basis that their prior conduct “affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty”. This approach tends to be forward looking to the prospective conduct of the practitioner.

In Niagara Funeral Alternatives Inc. v Registrar, Funeral, Burial and Cremation Services Act, 2002, 2019 ONSC 4966, the Divisional Court considered this distinction. The Court recognized that for many cases, including that one, the difference in approach has no practical effect. However, the Court indicated the distinction was real and encouraged regulators to avoid “loose language”. It gave one example of where the difference in approach might be material. The failure of the practitioner in that case to acknowledge their errors supported a disposition that terminated the licence.

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