In a number of recent cases, regulators have found that practitioners have a professional relationship with people to whom they provide intermittent services unless the relationship is clearly terminated. This approach is necessary to protect the public from exploitative behaviour where there remains in the client a trust in the practitioner. Examples of exploitative conduct include lawyers borrowing money and health practitioners engaging in sexual behaviour. An example of the former is found in Weir v. Law Society of New Brunswick, 2017 NBCA 18. In assessing whether there was a professional relationship, the Court provides the following criteria:
I agree the central question to be answered is based on a reasonable person test: whether a reasonable person in the position of a party with knowledge of all the facts would reasonably form the belief that the lawyer was acting for a particular party. In addition, in Trillium [Trillium Motor World Ltd. v General Motors of Canada Limited, 2015 ONSC 3824], the judge held that it is not only the client’s knowledge of a relationship that matters; it is also relevant what the lawyer knew or ought to have known about the client’s expectations or thoughts about the existence of a relationship. There is also a burden on lawyers to show that their characterization of the relationship is correct, particularly where the retainer has not been reduced to writing.
A similar result occurred in Clokie v The Royal College of Dental Surgeons of Ontario, 2017 ONSC 2773. The Court upheld as reasonable the finding that a person receiving episodic care from the dentist was a patient even though no further appointments had been made and even though she had moved to Sweden for part of the time. The finding was supported by certain chart entries including references to future planned procedures and correspondence from the dentist to another practitioner referring to the person as a patient. The finding was critical in that case as it made the difference between no finding of sexual abuse and a finding of sexual abuse resulting in mandatory revocation.
Regulators would be wise to communicate these principles to their members.