Wilful Blindness and Recklessness

In professional misconduct hearings the regulator generally does not have to prove that the practitioner deliberately engaged in the conduct. Proving the act or omission is generally sufficient. There are some exceptions where the wording of the definition of misconduct inserts a mental element. In addition, for some matters, a defence of due diligence may be available (e.g., that the practitioner took all reasonable steps to avoid the result occurring). One situation that recurs often is where an employee of the practitioner engaged in the conduct without the practitioner’s knowledge. In The Law Society of British Columbia v. Sas, 2016 BCCA 341 the practitioner argued that the billing irregularities were made by staff without her knowledge. However, the Court upheld the finding saying that the practitioner was wilfully blind. There were suspicious circumstances such that the practitioner “ought to have recognized that something was amiss”. In the case, there was a blitz to close old files and none of the scores of clients who had prepaid a deposit had any funds returned to them. All the prepaid funds were being transferred to the practitioner’s bank account. The Court said: “In the circumstances, the … [practitioner] had a duty to look at the backup documents, and to make inquiries.”

In describing the difference between willful blindness and recklessness, the Court cited a Supreme Court of Canada discussion in a criminal case:

Willful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, willful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in willful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.

In most cases, even if some intent is desired in order to make a finding of professional misconduct, it does not have to be deliberateness. It can be willful blindness or recklessness.

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