What Every Professional Needs to Know About Professional Conduct Implications of a Criminal Charge

While none of us plans to ever be charged with a criminal offence at any point in our lives, things happen. Being subject to criminal investigation and charge, even if we didn't do it, is a price we all pay for living in a society under the rule of law. 

If you're a regulated professional, you risk a double whammy from a criminal charge. You could be prosecuted and convicted or acquitted first by the criminal justice system, on a standard of proof beyond a reasonable doubt, and then possibly hit again with professional misconduct charges on identical facts from your professional regulator, where the much lower standard of proof is on a balance of probabilities. So what should you do as a professional facing criminal charges? 

1. Consider if you have a positive obligation to report the charge(s) to your regulator

You may or may not have to report a charge to your regulator. Or you may only need to report it during your annual report filing. Law enforcement professionals likely have the highest duty of immediately informing their superior officer of a charge. For other professionals, if a charge is very serious the police or prosecution might directly inform your professional regulator, or there might be a complaint by a member of the public lodged with the regulator at the same time as a criminal complaint is filed with the police. 

2. Attempt to convince your regulator to place professional misconduct proceedings on hold pending outcome of the criminal proceedings

Professionals have much more limited rights before their professional regulators than they do before the criminal courts. They may not have a right to remain silent. Therefore you don't want to be put in the position of having to admit or deny certain things to your regulator, and risk those statements being used against you in criminal proceedings. 

Regulators might be open to putting their administrative proceedings on hold, as a criminal acquittal or conviction could be highly influential on the outcome of discipline proceedings. But if criminal proceedings drag for possibly many years through a preliminary inquiry, a trial, and even appeals, regulators may lose their patience. Or may have had no patience to start with. 

Unfortunately the caselaw does not support an absolute right of professionals to stall administrative proceedings in favour of criminal proceeding. So if a regulator insists on pushing forward against you, you might be left with insisting on procedural protections being put in place to limit the risk of the regulatory proceedings having an adverse impact on the criminal proceedings. 

3. Ask for an in camera proceeding and sealing order on results

If your professional regulator won't put its proceedings on hold, ask that the regulatory misconduct proceedings be held in camera (behind closed doors) and that the results be sealed until the criminal charges have been dealt. with. While regulators are increasingly keen on public discipline proceedings and publication of results, so that they appear to be transparent in their regulation of professionals, they may need to be convinced that being completely transparent at the same time criminal proceedings are pending on similar facts could prejudice your fair criminal fair trial rights, especially if you have the right to a jury trial.

So regulators should make a choice: (a) put off administrative proceedings until after the completion of criminal proceedings, (b) or protect the results of the administrative proceedings pending the outcome of the criminal process. Doing neither risks the regulator's reputation itself being brought into disrepute for potentially wrecking criminal proceedings that are being pursued at great public expense. 

4. Retain a lawyer(s) to deal with both your criminal charge(s) and professional misconduct proceedings

You might be able to find a lawyer to represent you on both your criminal charges and misconduct proceedings. Or you might need different lawyers. But do make sure you have representation on both.

I've seen many professionals retain competent criminal defence counsel to assist with criminal charges, and secure a good outcome in criminal proceedings, but then try to tough out related professional discipline proceedings by themselves, leading to very poor outcomes. Some believe that if they beat the criminal charges, they'll be in the clear on the professional discipline allegations. Being wrong on that point could cost you your professional right to practice. You need legal counsel to help you with your discipline proceedings just as much as you do for any criminal charge. 

While finding one lawyer to help you with both the criminal and professional conduct process might be ideal, having two lawyers won't necessarily double your costs, as the processes being following - one very formal before a criminal court with criminal judges, and the other somewhat informal before an administrative tribunal staffed by peers - are quite different, even if they are based on similar facts. You need counsel who best understand the respective processes, and who can get the best results possible for you out of those processes. 

Gordon S. Campbell practices both professional conduct defence and criminal defence law for professionals throughout Canada. Learn more about his respective practices at proconductlaw.com and defenceeast.com

Harassment: Six Things You Can Do To Address It At Work

The #MeToo movement has sparked conversations on and off social media about gender equality, violence against women, consent and bullying. Power imbalance has existed since the dawn of time. But as our societies become more modern and complex, the issues of power and inequality are far from being resolved. It seems that power is being exercised unfairly in every possible setting: in romantic relationships, in social functions, but also in the workplace. This begs the questions: what can employees do to address and prevent harassment in the office? Before this question can be answered, it is necessary to understand what actually constitutes harassment.

What is harassment?

Ontario legislation defines workplace harassment as vexatious comments or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. This includes offensive, embarrassing, humiliating and demeaning words or actions against a worker or a group of workers. Common examples of harassment are:

  • making remarks, jokes or innuendos that are meant to ridicule or intimidate;
  • circulating digital or hard copies of inappropriate material; or
  • calling someone or sending e-mails excessively.

Some behaviours, while frowned upon by some, do not necessarily fall under the definition of harassment. For instance, reprimand by a manager towards employees, heated discussions and debates or conveying indifference about someone or something would typically not be viewed as harassment. Most occurrences of harassment involve repetition of wrongful actions over some time. However, it is possible that a single event rise up to the status of harassment, especially if it quite egregious and damaging to the person targeted by the wrongful conduct. There is a fine line between being harassed and just being overly sensitive. When in doubt, get some legal advice to know whether or not your issues at work need to be addressed in a more formal manner.

What Can Employees Do To Address Workplace Harassment?

1. Learn and Follow Internal Workplace Policies

Employers have a duty to create and implement workplace harassment policies, and to review them annually. Employers must also have procedures in place allowing employees to place complaints and report incidents about harassment instances without fear of reprisal.

As an employee, it is important to take the time to review these policies and abide by them. If you have experienced harassment, do not wait for things to get better on their own – you should address the problem right away. Go talk to your direct supervisor and any human resource person about the incident in question. If you are a unionized employee, discuss with your union representative as soon as possible.

2. Keep Records of the Incident

Take notes of the words that were said to you or the behaviour geared towards you. If there were other individuals present during the harassment, write their names down. Make sure you keep track of the location and time where the incident took place and whether it actually occurred at work. If disturbing material was sent to you, make sure you keep a copy to support your allegations. These records will be of vital importance to discuss and support your allegations of harassment.

3. Attend Any Programs Available To You

Most workplaces will have certain programs to help employees who have been harassed. Find out whether there is a possibility for you to receive any assistance in a confidential manner. Do not be shy to be accommodated. For instance, it can be beneficial for a worker who experiences harassment by a manager to work in another department or at different hours if possible.

4. Call the Police

In some cases, instances of harassment amount to criminal behaviour. This can be the case where the unwelcomed behaviour comes from a person in a position of power. Generally, it is crucial to have the police involved in cases of bodily harm, unwelcomed touching and stalking. If a criminal investigation ensues, make sure the person being investigated is not allowed to contact you directly or indirectly.

5. Place a Complaint Before the Human Rights Tribunal

The Ontario Human Rights’ Tribunal deals with complaints based on discrimination and harassment. If internal remedies have been unsuccessful, employees may try to resolve their issues by having their dispute handled by an administrative tribunal.

The process involves making a written complaint, reviewing a response, attending a mediation session and finally having the matter heard before an impartial decision maker. Employees who believe they are being subject to harassment should not delay in bringing their claim forward. The Tribunal may refuse to hear matters where the events occurred over a year before the claim was brought before it.

6. Be Willing to Walk Away

As difficult as it is to say, not all matters can be resolved amicably. While employees can certainly take measures to prevent and address harassment, unfortunately, there are times where the harasser refuses to stop engaging in vexatious conduct. If an employee has exhausted all his or her avenues and is still being harassed, sometimes, the best thing to do is to walk away from the situation altogether and seek employment elsewhere. In that case, it can be helpful for the employee to obtain legal advice to negotiate a fair severance package prior to his or her departure.

Karen Kernisant is a lawyer at Aubry Campbell MacLean practicing in the areas of Employment and Family Law as well as Civil Litigation.

Source: www.acmlawfirm.ca

What Every Police Officer (& Other Professional) Needs to Know About Surviving a Conduct Board

While this article is written especially for those working in the law enforcement field, its principles are equally helpful to all professionals like physicians, engineers or teachers facing professional misconduct allegations. Our firms defends a wide variety of professions, and we consistently find that the similarities among professional discipline processes far outweigh the differences. 

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If you’ve been involved in policing for a while, you’ve probably come to expect the unexpected. Both externally, and internally. 

One of the unexpecteds can be the decision to convene a conduct board into your conduct. You know that others sometimes do outrageous things that no one in senior command learns about, or does anything about, or that at most result in informal proceedings. But then something that is just you doing your duty blows up into a full fledged conduct board. Maybe because of a public complaint, or a third party investigation, or a CO’s decision, or just internal politics. One minute, you’re doing your best to do your job, and the next minute your CO is asking for your badge and service pistol, and assigning you to admin duties, or sending you home with pay, or even seeking to suspend you without pay, because a conduct board is being convened out of formal misconduct charges brought against you. 

While I’ve never defended a client charged with criminal offences based on no evidence whatsoever (though sometimes the evidence can be weak), I’ve seen that happen on more than one occasion to my law enforcement clients facing misconduct allegations. Subjective command views of what should or shouldn’t be done in a complex and evolving policing situation transform into formal allegations and fighting to keep your job. All because you were doing your job. 

What are you to do? I have eight prime principles for you to follow, developed from what I’ve seen go right or wrong during my years of involvement in law enforcement professional conduct investigations and proceedings. 

1. Say Nothing Initially

Easier said than done in a policing environment, I know. And sometimes even capable of being overridden by a direct order from a superior officer, because in administrative disciplinary proceedings you don’t have the same rights to remain silent as you do in criminal proceedings. But if anyone asks you to say anything, do your best to respectfully decline to do so. They can and will hold any unintentional inaccuracies against you later. 

If they insist, demand their statutory authority and force them to give you an order. It may offer you some legal protection against self-incrimination. And if you do feel compelled to explain yourself, at least get some legal advice before doing so. I’ve seen many officers have charges of lying to a superior officer in the course of an investigation added to their already weighty allegations, because they weren’t believed when they provided a statement; refusing to provide a statement means at least they can’t add on that extra charge.

2. Get Legal Help

This advice is less obvious than it sounds, as police officers may have a complex web to navigate in order to get the help they need. In my experience there may be inconsistent rules on who gets free help and who does not. And that help might be from a lawyer or non-lawyer representative.

Ideally, you want you own independent lawyer of your own choice. If you are willing to pay out of your own pocket, this is always possible. No police service bans private lawyers from participation in its processes, though the trick will be to find a lawyer with police conduct board experience as conduct boards tend to be a unique hybrid of civil, criminal and administrative proceedings. Each of the civil, criminal and admin legal categories have their own kinds of lawyers, but you really need a lawyer who understands all of them, which means someone with police conduct board experience because it’s one of the few places where those three subjects intersect all the time.

3. Plan for a Long Process

How long? Maybe at least a year or two. The record I’ve seen is thirteen years! Seriously. Some police services are working to shorten those timelines, but timing is largely dependant on whether there is going to be a contested hearing or not. A consent hearing can likely be sorted out in a few months, because often only the sanction is in much debate, and probably one day of hearings will be sufficient. Whereas a fully contested hearing could take up weeks of board time, and resultingly take years to finish if there are multiple breaks in the evidence.

4. Be Prepared for Collateral Consequences

Police misconduct allegations can carry with them potential criminal or civil liability. In theory the order of proceedings should be criminal case first, then conduct board, then civil case. Be aware that what you admit to at your conduct board could be used against you in criminal or civil proceedings, even if it shouldn’t be. Even if superiors don’t directly use your testimony, they still may wind up with derivative use evidence learned only as a result of a further investigation based on what you testified to.

5. Be Prepared for a Lower Standard of Proof

Most police officers are used to dealing with the beyond a reasonable doubt standard of criminal courts, and understand the truly compelling wall of evidence that’s required to discharge a burden of proof upon that standard. Not so with a conduct board that only requires proof on a balance of probabilities. It’s true that the Ontario Police Services Act introduces the standard of “clear and convincing evidence,” and there’s been much debate over whether that's a higher standard than balance of probabilities, but the trend in the jurisprudence seems to say that it’s not.

6. Be Prepared for a Dump Truck of Hearsay Evidence

Unlike courts, administrative tribunals commonly admit hearsay evidence (evidence without a live witness to testify to its authenticity), claiming that it's only a question of weight, not admissibility. RCMP conduct proceedings are now even evolving towards mostly paper cases, where the conduct authority receives complete disclosure of all "evidence" in a file at the same time as the defence, and can then decide a case upon that disclosure. The defence challenging the reliability of paper without a witness to cross-examine can be very difficult.

7. Be Prepared to Testify

Police conduct boards seem to expect to hear the officer’s side of things. Even though you have the right to remain silent, if you don’t at least give your side of the story a board might find there is no contrary evidence, and thus accept everything the CO is presenting against you, especially because the standard of proof is so low. 

8. Be Prepared with Sanction Evidence

No matter how confident you might feel about your case, its always prudent to plan for the worst case scenario, which is that a board convicts you of something. You don’t want to be putting all your efforts into proving your innocence, and have no backup evidence like letters of reference, character witnesses or performance reports for a sanction phase which might proceed immediately after a finding of guilt. Because conduct boards are sometimes able to impose the capital punishment of the law enforcement employment world - discharge from the police service - the sanction phase can be even more important than the allegations phase. There is a world of difference between a reprimand and minor pay forfeiture, and losing a career. 

Gordon S. Campbell has served as a Member Representative with the RCMP, counsel to the Military Police Complaints Commission, and represents law enforcement officers and other professionals throughout Canada. Find out more at proconductlaw.com.

5 Things to Never Do in a Workplace Investigation

While employment law in Canada may be becoming an increasingly complex morass with each passing year, it can still all ultimately be distilled down to one very important word (which isn’t the case with most areas of the law): FAIRNESS.

This is not an oversimplification. Fairness is where it’s at in employment law, regardless of whether one is talking about “natural justice” or “procedural fairness” or “duty to accommodate” or “health and safety” or “workplace harassment” or “job performance." Cases will often be decided in favour of the party who acted with “fairness,” though employers should understand that because of perceived employer-employee power imbalances, courts and tribunals may impose a much higher duty of fairness on employers than is imposed on employees. 

When an employer needs to launch an investigation in the workplace, perhaps because of allegations for harassment, or because of a worker injury, or because of production problems, or because of financial irregularities, fairness is the word to watch for. Although the form an acceptable workplace investigation takes is far more flexible and contextual than for an investigation undertaken by a government regulator or law enforcement, there are a few big things NEVER to do in such a workplace investigation if you want to avoid being accused of breaching fairness. 

1. Pre-Judge the Outcome

You wouldn’t be investigating if you didn’t have suspicions. Suspicion does not prejudge an outcome. But a mind closed to other explanations, people or sources does equate to pre-judging. So do everything in your power to make your investigation sufficiently broad and thoughtful so as to consider different possible outcomes, document those possibilities, and justify how you came to your one conclusion. 

The key here is not only having an open mind, but being able to later prove that openness to others through the process, evidence collected, and results. 

2. Use a Witness as the Investigator

Not every workplace investigation will justify bringing in an external investigator. But if you are using someone internal, you can’t be both a witness and conduct the investigation at the same time. So a line manager who supervises subject workers is usually not best placed to conduct an investigation into those same workers, and a human resources officer who has already been dealing with issues from workers likewise might no be ideally situated to investigate them. Someone with no inside knowledge or preconceived notions is most likely to later be considered to be most impartial investigators, even if assigning someone fresh to a workplace might seem initially to be an inefficient way to learn about a situation. 

The degree of “space” you can provide between your investigator and the subjects of investigation may be a direct function of the size of your organization. With some small businesses, it may be very difficult to pick an investigator who has no prior knowledge of a matter. But you should still pick someone who is not a key witness, especially if credibility of parties is an issue. 

3. Use a Decision Maker as an Investigator

Every workplace investigation should bear the hallmarks of independence and objectivity. Both independence and objectivity are relative, in the sense that employees are entitled to a duty of fairness, but the extreme procedural safeguards that are in place for those accused of criminal or regulatory offences need not be replicated for workplace investigations that only have civil consequences. However, the decision maker’s views of the outcome of an investigation could become coloured by being the one gathering the evidence. So it’s best to split the investigation and the decision making functions, where the investigator will present a written report on the results of the fact finding and copies of the evidence to the decision maker who will then decide what action is justified by those findings based on that evidence.

4. Leak the Contents of the Investigation Within the Organization

Ask everyone you speak with as an investigator to keep your questions confidential. While you should put the statements of some witnesses to other witnesses for confirmation or refutation, do not provide those witnesses with written summaries of the evidence of others, as that could then circulate within the organization.

Targets or subjects of investigations have a right to be told about the nature of the investigation in some detail prior to giving a statement. Non-target witnesses are entitled to a much lesser degree of disclosure, but should still be told that an investigation is underway, and be informed of the general parameters of the investigation. No one reviewing laters results of an investigation will look fondly on trick or surprise questions as a way to unfairly pry information out of people. However, an employer can demand reasonable cooperation from employees concerning an on the job conduct investigation.  

5. Rely on Only One Kind of Evidence

A great workplace investigation goes beyond just witness statements. People’s memories can be surprisingly poor - even shortly after events - and some witnesses may be very forthright, while others may be evasive about the truth. Thus corroborating evidence that doesn’t take the form of witness statements is key, wherever possible. Documents and electronic communications will be the main corroborating evidence to look for, though other types of evidence like video surveillance, business records of financial transactions, travel records, and timekeeping could all be helpful. 

Devoting some of your IT department's time, or retaining an external IT consultant, could be the best move to make in a workplace investigation, as contemporaneous records of workplace electronic communications, websites visited, keywords searched, and documents worked on, may create a far more reliable record of what happened than any witnesses statements. There will be workplace cases, especially involving workers or industries that don't create masses of information, where electronic communication records may be of limited help, but even electronic entry pass timestamps could be helpful. Keep your mind open to all possible information sources, and act quickly to secure those sources before periodic data deletion schedules are triggered. 

Gordon S. Campbell is a lawyer who assists public and private employers with conducting and employees with responding to workplace investigations. He is the author of The Investigator's Legal Handbook (Carswell, 2006; 2nd ed 2014) and Le manuel jurisdique de l'enquêteur (Yvon Blais, 2010). He has served up to the Executive level with the Government of Canada, as a Member Representative at the RCMP, and regularly appears before professional conduct tribunals and courts. 

 

FOUR THINGS NOT TO DO AFTER TERMINATING AN EMPLOYEE

Small and larger business owners need to make difficult decisions everyday: acquire new clients, build relationships with interested stakeholders, pay invoices, redefine their brand and ensure staff are completing all assigned tasks. Given that an employer-employee relationship evolves over time, managers sometimes must make the difficult decision of terminating a person’s employment. There is no perfect way to dismiss an employee but there are some things managers should simply not do when letting an employee go.

1. Mislead Employees About their Rights

The Ontario Employment Standards Act, 2000, S.O. 2000, c. 41, is meant to protect both employers and employees alike. While management can certainly put an end to the employer-employee relationship, it has a duty to remain honest to the employee. Employers should never misinform employees about the amount of money they are entitled to under the Act.

An employee is entitled to notice of termination if he or she has been continuously employed for at least three months. Rather than giving an employee notice, employers can also pay termination pay. The amount of notice to give to an employee depends on the period of employment of that person. More information on this point can be found here.

If an employee has specific questions about their rights and amount of notice they are entitled to, it is good practice for employers to encourage employees to seek independent legal advice on the matter.

2. Force the Employee to Sign a Release the Day of Termination

Whether employees choose to exercise their right to get legal advice, employers should always make sure employees have had reasonable time to review their termination package. Particularly because managers are in a position of power, in order for any signed release to remain binding and enforceable, it is beneficial not to rush the process of termination. There will always be time to sign a release at a later date. Releases signed under pressure may be set aside in certain circumstances by courts.

3. Prevent an Employee From Retrieving Personal Belongings

When an employee finds out they have just been fired, they generally feel very vulnerable. Expect them to be emotional, argumentative and sometimes even irrational. Whatever you do, do not add fuel to the fire. Keep the meeting short and brief. Know exactly what you are going to say, invite only those who need to be present and always make sure you have done the necessary steps to protect sensitive information.

This may entail coordinating with your IT department to disconnect any digital access the employee has to certain databases, store files away and changing certain codes or passwords. While it is important to make sure that any client or third-party file be kept safe, it is bad practice to give the employee the walk of shame by having a security guard escort them out of the building in front of other employees. The employee is already hurting from the employer’s decision, let them keep their dignity. Allow them to retrieve their personal belongings after work hours when most staff have left them office.

It is however reasonable to ask for them to return any keys, cards or parking pass to reduce access to the building. If the employee was provided with a business credit card, make the necessary arrangements to have the card returned and contact your financial institution right away to inform them the employee in question no longer has authorization to make any transactions on the business’ behalf.

4. Discuss the Termination With Others

Many people in businesses, especially larger ones, enjoy gossiping – that includes those in management positions too! As tempting as it is to discuss an employee’s termination with others, resist the urge. As an employer, if you decide to dismiss an employee, it is safer to send a brief general e-mail letting others know that the terminated employee will no longer be with your business. Leave any other details out. If employees ask questions, respectfully decline to comment. Also avoid discussing these matters outside the workplace. It generally makes the employer look worse than the employee. In the worst of scenarios, this may entice a disgruntled employee to commence a lawsuit for defamation against you.

Karen Kernisant is a lawyer at Aubry Campbell MacLean who practices in the areas of employment and family law as well as civil litigation. For more information, please visit our website: www.acmlawfirm.ca  

WHAT EMPLOYERS AND EMPLOYEES NEED TO KNOW REGARDING OVERTIME PAY

In Ontario, under the Ontario Employment Standards Act, 2000 an employee is entitled to receive one and a half time their hourly wage for every additional hour he or she works over a regular forty-four hour work week. Employers and employees should be mindful of their rights and obligations when it comes to overtime pay.

Which employees are entitled to overtime pay?

Not all employees can claim overtime pay even if they work more than 44 hours in a single week. Generally, overtime pay is reserved for part-time and full-time employees who do not fall under the following positions:

  • managers and supervisors;
  • superintendents providing services in the building where they live; and
  • duly qualified or registered professionals[1].

Where there is doubt about a person’s status as an employee, it should be noted that courts are not bound by that employee’s title. Rather, courts focus on the employee’s actual daily tasks to determine whether or not a statutory exclusion applies.

Do overtime hours need to be approved?

Many sources of conflicts between employers and employees come from a lack of information and awareness with regards to overtime pay. Policies should be developed by management and made accessible to employees to inform them about procedures for overtime hours to be approved and paid. While these policies are not fully determinative in establishing the right to receive overtime pay, they may help in protecting both the employers and employees’ interests.

Pre-emptive steps to protect both employers & employees’ interests

Where there are no policies in place, employees can take the following steps when working overtime hours:

  • ask their supervisor to work additional hours;
  • keep copies of receipts for services provided;
  • document work performed;
  • save e-mails sent to third parties;
  • take notes of phones calls made or received; and
  • docket all hours in software used by employers.

Employers can manage an employee’s overtime pay by:

  • having employees sign written agreements detailing the circumstances in which they can request overtime pay, including receiving prior written authorization by the employee’s supervisor;
  • requesting that the employees track their hours in a software set up by the employer; and
  • limiting the amount of work given to employees after work hours.

If you are an employee and aren’t sure if you are owed overtime pay, it can be helpful to consult a lawyer to know your rights under the Employment Standards Act, 2000 and applicable by-laws. Employers should also seek independent legal advice to avoid any potential liability for failing to pay employees who worked more than forty-four hours in a week.

[1] These professions include but are not limited to: architects, engineers, lawyers, accountants, surveyors, veterinarians, chiropractors, dentists, message therapists, physicians, pharmacists and psychologists.

Karen Kernisant is a lawyer at Aubry Campbell MacLean who practices in the areas of employment and family law as well as civil litigation. For more information, please visit our website: www.acmlawfirm.ca

How Rude is Too Rude for a Professional? The 18 Year Saga of Groia v. LSUC

How many lawyers does it take to argue a case about incivility in the courtroom? In the case of the Ontario Court of Appeal’s 2016 hearing of Groia v. Law Society of Upper Canada, the answer appears to be 20! The case was of such interest that many law-related organizations intervened to present their views on acceptable conduct, and after all that argument the appellate court split 2-1 against Mr. Groia. The Supreme Court of Canada has now granted him leave to appeal to the highest court in the land, with final judgment there not likely until perhaps 2018.

How can an incivility case consume 18 years of court time?

Really the Groia case has only been going on for a mere decade, but the roots of the saga harken back 18 years ago when Ontario Securities Commission legal proceedings were commenced against Mr. Groia’s then client John Felderhof. His trial took seven years and 160 days of court time to finally conclude. And no, this wasn't a murder trial. Or even a criminal fraud trial. This was about a professional regulatory offence.

For those who can remember the 1990’s (when I started practicing), Bre-X was the stock fraud of the decade, involving salted gold samples which astronomically inflated the value of a junior mining exploration company. The fall came hard, including one geologist who was said to have thrown himself out of a helicopter. Though others have suggested that same geologist is still hiding in the jungles somewhere.

The OSC went after Mr. Felderhof for his role in Bre-X. It was Mr. Groia’s advocacy at Federhof's regulatory trial that formed the basis for the Groia v. LSUC case, which then voyaged on through uncharted professional regulation waters for another ten years after the end of the prosecution against Felderhof.

I’ve never met Mr. Groia, and can’t comment on his legal activities in or out of the courtroom. During my lengthy service as a Federal Crown Prosecutor I dealt with some very courteous defence counsel, and a few very unpleasant ones. No incivility complaints ever wound up at the Law Society from one of my trials. But then again, I wasn’t involved in the Bre-X trial. 

Mr. Groia’s conduct was later described by the courts as “improper”, “appallingly unrestrained”, “unprofessional”, ”inappropriate” and “extreme.” It should be noted that he did secure the acquittal of his client on all charges. 

How even judges can disagree over civility

Mr. Groia lost three rounds of misconduct proceedings before the Law Society hearing and appeal tribunals and before the Ontario Divisional Court before finding a beacon of hope in the Court of Appeal for Ontario, where the dissenting judge’s reasons found at para. 417: “courtrooms are not populated by saints; they are populated by flawed human beings who enter them each day to argue and adjudicate cases.”  That judge believed the conduct did not undermine trial fairness and noted that Mr. Groia did eventually respond to trial judge directions concerning how he should conduct himself.

At the core of the incivility dispute were Mr. Groia's innumerable allegations in the courtroom about prosecutorial misconduct, which did not appear to have a factual basis. Certainly in another famous case of Hill v. Church of Scientology of Toronto a defence lawyer paid the price for making on the courthouse steps while wearing his barrister robes unsupported allegations of criminal contempt against a prosecutor, leading to a $1.6 million defamation judgment in the prosecutor’s favour for which that defence lawyer was held partially responsible. I know both of those lawyers; the first still works as a prominent criminal defence counsel, the second now serves as a superior court judge. But initiating baseless criminal contempt proceedings against a prosecutor is likely in a different league than simply making in court rhetorical claims of misconduct during a trial. 

What is the test for professional rudeness?

So we’re left with the question, how rude is too rude? Is it what you say, or how you say it? Lots of professionals throughout Canada are prosecuted every year for things they perhaps shouldn’t have put in writing. Email seems particularly prone to inviting regrettable things being sent off to other professionals. Some professionals are even prosecuted for things said but not written down.

It's probably safe to assume that most regrettable things said or written never get reported to a regulator. But for the things that are reported, there’s little comprehensive data available on where “the line” gets consistently drawn for professionals within one profession or jurisdiction. Many of the regrettable things I’ve read that do wind up being investigated by regulators aren’t especially shocking. 

Is there a different line for professional to professional communications than for communications with public?

While I believe there’s no excuse for rudeness in any context, I think rudeness to clients, the public or the courts is far less excusable that rudeness to colleagues, which is more likely to arise out of the competitive environments in which many of us operate. I’ve been called by more than one person the most even tempered person they’ve ever met - but that doesn’t mean that one day the things I push down might not bubble up. Would I deserve to be prosecuted for that bad day? How many bad days would I need to have, affecting how many people, before prosecution was warranted? 

If this sounds like my normalizing rudeness, it’s not. It’s more a question of how many resources we want to pour into prosecuting one professional for being rude towards another professional, as opposed to spending those same resources protecting members of the public from those same professionals. Although it may seem that self-governing professions are only using their own resources to go after their members, ultimately that action can distract from protecting the public since enforcement resources are always finite. I’d prefer more routine practice inspections and more vigorous follow up on public complaints. 

Professional courtesy proceedings remain somewhat troubling, as they don’t involve clients or the court. They involve other colleagues. Clearly there are limits beyond which a professional can’t go with another colleague, but can a professional be franker, more direct, or even more downright rude with a colleague than with a client or court,  so long as the purpose of the communication is to advance a client’s interests?

I’m not suggesting professional to professional communications should be that way. My own personal test is that if I wouldn’t want to be quoted on the front page of the local newspaper saying something, then I’m not going to put it in writing to a colleague. Or preferably even utter the words out loud.

But is the line that can’t be crossed higher for colleague to colleague communications? And should regulators expend the sometimes enormous resources necessary to prosecute for civility cases short of truly shocking, outrageous and reprehensible conduct? 

Stay tuned for the SCC weighing in on the issue. 

Gordon S. Campbell is a professional conduct lawyer who assists all types of professionals with resolving discipline, performance, fitness and administrative allegations and proceedings throughout Canada. Learn more at www.proconductlaw.com. 

Why the D3 & TAD Principles are Key to a Successful Pro Conduct Defence

Why You Need to be Proactive in Addressing Professional Misconduct Matters

Anyone who is a professional risks being accused of misconduct at some point in her or his career. Because the standard for proving misconduct is only proof on a balance of probabilities (more than 50%), rather than the proof beyond a reasonable doubt standard of criminal allegations, you need to be ready to be much more proactive in rebutting professional misconduct allegations than you would in a criminal investigation. 

You'll usually be required by your regulator to present written responses to initial misconduct inquiries, and later won't have much choice over testifying under oath to defend yourself if those allegations progress to a full tribunal hearing. Because of this stark reality you need to practice your profession defensively, being always aware that any professional action (or lack of action) you decide upon could potentially lead to a misconduct allegation.

Now I know that taking this advice to extremes can lead to paranoia and working life paralysis, where you'll be afraid to even get out of bed each day for fear that something you do could lead to a discipline investigation being launched against you. But the opposite extreme where you just do what you subjectively think best, without turning over your actions in your mind in comparison to objective professional conduct standards, will equally lead you down a potentially quite dangerous conduct path.

So how are you to get on with your professional work life, protecting yourself and your livelihood, while at the same time being able to take decisions and enjoy your job? Follow two guiding principles: the D3 principle, and the TAD principle. These principles weren't created by academics, just by me as a result of my years of work in the professional conduct defence legal field. But I can say that my clients who have followed those principles have consistently had better professional conduct outcomes than those who did not. 

D3: Document, Document, Document

The D3 principle stands for: document, document, document. This is the principle closest to my heart as a lawyer, and addresses situations after they have happened. I regularly read professional misconduct judgments where professionals had potentially strong defences available to rebut allegations of misconduct levelled against them, but they lacked anything more than their own personal (and unfortunately sometime vague) recollections about what really happened and who really said what to whom concerning the events in question. And that just wasn't enough to save themselves from their professional regulators.

In the teeter-totter that credibility contests can turn into, you don't want to get stuck in the position of only having your own sworn testimony and current recollections of events that might have happened years before to defend yourself with. Having notes taken contemporaneously with events, including detailed dates, times, people spoken with, close paraphrasing of actual conversations, and back up documents are all vital to defending your version of the story.

Now I know document, document, document might seem like an overstated principle, but you could have trouble even getting past the first "document" to protect yourself. You want to preserve all your emails, notes of all your telephone conversations (including voice mails if possible), personal notes of your activities, back up documents like video recordings, radio logs, security footage, and witness names and contact details. 

I'm not suggesting you do this for every facet of your professional life. But you must do so for situations that set off your spidey-sense tingling! You might even at the time of questionable events write letters to others involved, in order to confirm that they agree with your version of the facts. Don't just stick your head in the sand and hope that nothing comes of a situation.

TAD: Think, Act, Document

The TAD principle is really a more preventative version of the D3 principle: Think, Act, Document. For situations where your gut is telling you there might be a professional ethics risk, you slow down, THINK through the potential ramifications of doing or not doing something (and maybe obtain advice from your professional regulator or other colleagues), ACT only after have taken that time to reflect, and again DOCUMENT your actions, and the thought processes and consultations that went into that Act. I've defended teachers, accountants, police officers and medical professionals all accused of misconduct, and my consistent common requirement in all of those cases was for ample records of the events in question, actually kept by my clients, rather than solely having records being selectively retrieved by regulatory investigators and prosecutors.

D3 and TAD Apply Frequently

How often are these D3 and TAD dangerous situations going to come up? Probably not every day. Though perhaps once a week. And I would suggest certainly once a month. If you aren't wondering if a situation is professionally dangerous at least a few times a year, you aren't trying hard enough.

Practicing your profession defensively means spotting the problem situations before they explode. You're going to miss a few of them - it happens to all of us. But if you've at least documented most situations, you will greatly enhance your chances of a successful professional misconduct defence, giving your lawyer and yourself something to work with to rebut allegations during an investigation or hearing, rather than just taking blow after blow from the prosecution's evidence, and being only able to offer up a weak "I didn't do it" in your own defence.

Gordon S. Campbell is a professional conduct lawyer who assists all types of professionals with resolving discipline, performance, fitness and administrative allegations and proceedings throughout Canada. Learn more at www.proconductlaw.com. 

How to Minimize Sanctions in Professional Misconduct Proceedings

When facing allegations of professional misconduct, the first goal for any professional should be to advance a strong defence which can result in the professional regulator dismissing all of the allegations as unfounded. However, when that is not possible, the second goal should be to minimize the impact of any misconduct proceedings on the ongoing practice of your profession.

Professional misconduct proceedings can for many professionals actually have more detrimental outcomes than criminal proceedings for most of the population, because criminal proceedings rarely have the potential to permanently take away a person's livelihood. Not so with professional misconduct proceedings.

The good news is that professional misconduct proceedings embrace a wide spectrum of sanctions, ranging from admonishment, counselling or cautions on the low end, through to fines, suspensions and revocation of licence. Completely and permanently losing a licence to practice is rare, but it does happen, and needs to be guarded against at all costs.

Retaining someone to engage in resolution negotiations for you with the regulator at the earliest possible stage of proceedings - even at the investigative stage - can be the best way to minimize sanctions for professional misconduct. And even if a negotiated sanction isn't possible, strong representation before a hearing tribunal from someone who is familiar with past precedents of others in a similar situation who received reasonable sanctions will also benefit you.

The usual meaning of the term "in good standing" with your association, and thus your continuing ability to work in a professional capacity for an employer or yourself, usually only requires your licence to not be suspended or revoked. It does not preclude ongoing or completed discipline proceedings, as ongoing proceedings are only allegations, and even completed findings of misconduct are usually remedial in nature - seeking to push a professional in the right future direction, rather than snuffing out any future chance of change and contribution to serving the public.

The challenge with some professional discipline proceedings is the lack of an intermediate range of sanctions. For example, for the defence of some police officers whom I represent from time to time on internal administrative discipline matters, the maximum penalty might jump from forfeiture of 10 days pay to dismissal, with nothing in between. A negotiated sanction can therefore be important to minimize the risk that 10 days pay appears to a sentencing tribunal to be too minimal, and thus they jump directly to dismissal.

Proposing at an early stage a concrete remedial plan to the regulator can also be an important part of a strategy to minimize sanctions for professional misconduct. This remedial plan might include medical treatment of some sort, the taking of particular kinds of courses, or even working for a time under the supervision of another professional. You shouldn't leave it to the regulator to come up with a plan, you need to be proactive and then sell the regulator on a sanction you can live with. True, you aren't guaranteed they'll accept your plan, but with a firm enough advocate representing you, the regulator will realize the great costs it may suffer from conducting a protracted discipline hearing against you, and the risks it runs in not being successful at such a hearing. One particularly attractive incentive may be to voluntarily offer the regulator something that it might not be able to obtain through a tribunal imposed sanction, and in return request that no suspension or revocation of licence be imposed.

I find that the sanction outcomes of professional discipline proceedings aren't as bound by past precedent as are criminal and regulatory prosecutions in the courts. Discipline bodies can get more creative as to sanctions, your advocate can form a closer and more collaborative relationship with the regulatory investigators and prosecutors than would ever be possible in a criminal prosecution-defence situation, and thus an optimal outcome for you which minimizes the impact of any sanctions on the practice of your profession can be quite achievable.

Top 5 Tips to Survive a Professional Misconduct Investigation

1. Get Early Legal Advice

One hour of a lawyer's time could save you 100 hours of lawyer time later. Make the call early, and don't try to deal with a professional misconduct investigation all by yourself. Whether you are a physician, dentist, pharmacist, veterinarian, nurse, teacher, engineer, accountant, architect, lawyer, police officer or real estate agent, there's no need to guess about how to best respond to a notice informing you that you're under investigation. Bodies like the College of Physicians and Surgeons, Royal College of Dental Surgeons, College of Pharmacists, College of Veterinarians, College of Nurses, Professional Engineers, Certified Professional Accountants, Association of Architects, Law Societies, police discipline tribunals, and real estate associations all have their own particular rules, and you can't make any assumptions about how each will or will not approach an investigation into alleged misconduct.


2. Have a Lawyer Act as an Intermediary for you with your Professional Regulator 

Many professionals don't realize that professional misconduct investigations are very unlike police criminal investigations. In police criminal investigations, the police will rarely share the information in their possession until charges have been laid, and any decision to participate in the investigation will be solely a one-way affair where you provide information but receive nothing in return. By contrast, professional misconduct investigators will often be willing to collaborate with your legal representative in gathering the facts and arriving at recommendations and conclusions. Being proactive with professional discipline can often pay great rewards, like informal resolution, whereas in criminal investigations the best advice usually is to stay silent and let the investigation run its course.


3. Get Help in Gathering and Organizing the Evidence You'll Need to Respond to Professional Misconduct Allegations

Professionals facing professional discipline need to search for and preserve exculpatory evidence before it disappears. This means obtaining witness statements; copying, organizing and analysing documentary records; finding and preserving emails, texts and other forms of electronic communications. Calling defence evidence in criminal trials is relatively rare, in part because of the heavy burden of proof beyond a reasonable doubt faced by the prosecution, where the defence can remain silent and wait for the prosecution to fail of its own accord. However, in professional misconduct proceedings the burden is only proof on a balance of probabilities, and what is and is not acceptable professional practice involves a host of grey areas, so you need to prepare early to present a strong defence case that goes far beyond just your personal testimony that you did nothing wrong.


4. Be Represented in Any Professional Discipline Board or Tribunal Hearing

Regardless of whether your professional regulator is inquiring into your competence, your record keeping, your conduct concerning clients, or your capacity and health, appearing with a lawyer will permit you to present your best case in terms of evidence and legal submissions. These hearings are much more like courts of law than informal get togethers. They are very legalistic in nature in terms of applicable rules, procedure, and precedent. The college which regulates your conduct will be represented by legal counsel, as will be the board or tribunal itself. You'll therefore be at a great disadvantage if you don't have some legal expertise on your side. This assistance need not be enormously expensive (because these hearing usually don't last for weeks on end, unlike some criminal trials), and might even be covered by your professional insurance - but you need to ask your insurer.


5. Be Legally Prepared with Resolution or Sanction Precedents

The prospects of resolving your case favourably will usually depend on what kinds of past precedents can be located and analysed, demonstrating that other individuals in your situation received favourable treatment that you also deserve. A lawyer will usually be the one best placed to find, analyse and present such precedents for you.