Many regulators have recurring issues that some practitioners seem to ignore. Often, they involve a failure to comply with a routine obligation. For example, many regulators have issues with practitioners completing their annual renewal documentation or complying with professional development requirements. Sometimes these issues can be dealt with through administrative suspensions. However, where judgment is required to assess the nature and degree of non-compliance, discipline hearings may be the only effective remedy.
For the Law Society of Ontario, this recurring issue is, surprisingly, a failure to cooperate with the regulator during complaints or investigations. There are approximately 40 to 50 such discipline hearings each year. Frequently the practitioner complies by the time the hearing is held. This process causes delays in investigations and consumes unnecessary resources.
Recently the disciplinary tribunal changed its processes to address this concern. The initiative includes the following components:
- Scheduling such cases through an expedited stream.
- Using a presumptive written hearing process to consider the matter (leaving the possibility of an oral hearing for exceptional cases, such as where the fact of non-cooperation is genuinely disputed).
- Setting out a grid of usual dispositions, as follows:
- a one-time non-disciplinary invitation to attend without costs where all outstanding answers are provided within 14 days of filing of the Notice of Application
- no costs, if failure to co-operate is found by a written hearing but all outstanding answers have been provided prior to the hearing
- reduced costs of $1,500, if failure to co-operate is found by a written hearing and there continue to be outstanding answers
- standardized penalty orders where the application proceeds by written hearing
- no change to penalty, or costs, principles if the application proceeds to an oral hearing
4. Providing for paid “duty counsel” to assist practitioners in non-cooperation cases.
Aspects of this approach might be a model for other regulators. For more information see: https://sml-law.com/wp-content/uploads/2022/03/convocation-february-2022-tribunal-committee-report.pdf.