Jurisdiction Over Conduct Before Registration

For over a century and a half there has been debate and inconsistent court decisions about whether regulators have jurisdiction over members for their unprofessional conduct before they were registered. On the one hand, it seems odd for a person to be accountable for their behaviour when the rules they are said to have breached did not apply to them at the time. On the other hand, the conduct could well reflect on their suitability to be a member of the profession. The Divisional Court has attempted to reconcile the case law in Association of Professional Engineers of Ontario v. Leung, 2018 ONSC 4527, http://canlii.ca/t/htl3k. In that case the allegations included conduct by a certificate holder relating to what amounted to illegal practice of the profession prior to obtaining the certificate. The Discipline Committee concluded it had no jurisdiction over the conduct. The regulator appealed.

The Divisional Court said that the issue was one of interpreting the intent of the legislation. Thus the answer could well be different under different statutes. Under the Professional Engineers Act, which was silent on the issue, there seemed to be a distinction between the disciplinary enforcement mechanism, which applies only to members and certificate holders, and certain offence provisions that applies to others as well. In fact there was a specific offence for offering services to the public without a certificate. The Court concluded that it was both reasonable and correct to view the discipline process to be available for pre-registration conduct only where the conduct continued to when the person was registered or where there was “conduct that resulted in the fraudulent procurement of a licence which negatively affected the individual’s fitness to practice”.

This approach to the jurisdiction over conduct that occurs before registration might become the starting point of the analysis for other regulators whose statutes are silent on the issue.

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