Progressive Discipline is Not Arithmetic

When it comes to imposing a sanction at discipline, one of the oft-cited principles is that discipline should be progressive to enable a practitioner the opportunity to learn from their mistakes and to change their behaviour. In Peet v Law Society of Saskatchewan, 2019 SKCA 49,, Saskatchewan’s highest court indicated that this principle, while valuable, has limitations. In that case the practitioner failed to respond to his regulatory body’s request for information about his trust accounts over a period of more than five months despite frequent reminders. The practitioner had been the subject of six prior discipline hearings with about ten similar findings of misconduct. In the most recent previous matter involving an almost identical allegation, he received a three-month suspension and a fine. That penalty was imposed around the same time he finally complied with the request in issue in the current matter. In the current matter he was suspended for twice as long (i.e., six months) and was subject to a much larger fine.

The practitioner argued that the principles of progressive discipline suggested that since the previous penalty was imposed after his conduct in this case, it should not be seen as a prior discipline sanction. He had no chance to correct his behaviour after having the penalty imposed. He suggested that the penalty in the current matter should be the same three-month suspension and a lower fine. The Court disagreed. Progressive discipline was not a mathematical exercise. The fact that the practitioner “was blithely ignoring requests for a response from the Law Society at the same time his penalty was being considered for the earlier similar offence” indicated his disregard for his professional obligations. The Court said:

… a hearing committee is not bound to apply the principle of progressive discipline. All that is required is consideration of progressive discipline as one of many sentencing factors. The Committee in the within case did that. I am of the view this is as it should be. A hearing committee should not be unnecessarily restricted in performing its duties.

The Court made a number of other interesting points including the following:

  • The practitioner’s “attempt to trivialize his conduct as a mere compliance issue” fails to recognize the importance of cooperation in enabling a regulator to protect the public.
  • Progressive discipline may have less of a role in cases of very serious misconduct, where revocation may be appropriate in a first instance.
  • The principles of mitigation (e.g., admitting the allegations) have less weight in professional misconduct matters than in criminal matters because another party is affected by the conduct (i.e., credibility and reputation of the regulator and the “collective reputation of an accused’s peer group”).
  • When identifying the range of sanctions one must look to the facts of each case. In this case the “penalty is not directly comparable to other penalties because the circumstances here are worse than any available comparators.”
  • When considering the expertise of a tribunal, one looks to the specialized knowledge and experience of the tribunal as a whole and not of the individual members sitting on a particular case.

Ultimately this decision reinforces yet again the degree to which the sanction imposed in a discipline case depends so much upon its particular circumstances.

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