When is a Breach of the Law in One’s Private Life Misconduct?

For most professions, the reach of the regulator extends to one’s private life in some circumstances. Typically, dishonesty or breach of trust outside of one’s practice constitutes professional misconduct. How about honest mistakes? This issue arose in College of Physicians & Surgeons Alberta v Ali, 2017 ABCA 442, where the practitioner inaccurately completed forms and failed to fulfill other disclosure obligations in the course of his bankruptcy proceedings. The disciplinary tribunal found that he had not done so deliberately. However, it found that he had failed to exercise the thoroughness and take the care expected of a physician in the circumstances. The majority of the appellate Court said:

… the issue was not whether the off-duty conduct reflected on the individual’s competence as a professional but whether it could affect the public’s confidence in the profession or the reputation of the profession when the individual’s private behaviour fails to meet the standards of conduct expected of a member of that profession….

In the view of the Hearing Tribunal, the public would expect members of the medical profession to act with the highest professional and personal integrity. A member in financial difficulty would be expected to take appropriate steps to comply with bankruptcy obligations and be honest and thorough in dealing with the Trustee in Bankruptcy. The public would be unlikely to support a physician who had gone into bankruptcy and continued to earn a very substantial income from the profession, while disregarding his obligations to his creditors.

The majority of the Court found this explanation to be reasonable. A dissenting Justice, however, felt that the making of honest mistakes in these circumstances should not amount to professional misconduct.

It probably did not help the practitioner’s case that he had failed to promptly pay the regulator fees and had failed to cooperate in setting up a meeting with a representative of the regulator when asked to do so.

The Court also gave short shrift to the practitioner’s argument that there was an appearance of bias because other lawyers in the large firm of the independent legal counsel had acted against the practitioner in a small, unrelated matter some years before. The Court also upheld the sanction of a reprimand and payment of $65,000 in costs.

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