CNAR'S NETWORK NEWS eMAGAZINE Issue 04. Summer 2024

Page 1


From the CNAR Board Chair

Dear CNAR Community,

On June 12, 2024 CNAR held our Annual Meeting of Members (AMM) where we reviewed our progress on the strategic plan, reported on the overall fiscal health of the association, and voted in a new Board member, among other business. We are very pleased to announce Sam Lanctin as CNAR’s newest Board Director.

Sam is the former Registrar of the New Brunswick College of Pharmacists. A pharmacist by profession, Sam began his career in community pharmacy, operating multiple pharmacies over more than a decade.

Since early in his career, Sam has been involved in a wide array of pharmacy, community, and volunteer organizations at the local, provincial, national, and international levels. Building on more than 25 years of leadership experience, Sam is now an independent consultant, providing a variety of advisory services in the areas of governance, planning, strategy, board relations, policy development, and leadership. Welcome, Sam!

CNAR is very happy to welcome back Leigha Hubick as CNAR’s Treasurer and Director Margaret Drent for three-year terms. We are delighted that Director Glenn Pettifer will continue this year

as CNAR’s Vice Chair. I am grateful for the time and dedication of my fellow Board Directors and the extraordinary professionalism and expertise they provide to help CNAR continue to evolve and succeed. To learn more about all our current CNAR Directors, please visit:

www.cnar-rcor.ca/board-committee.

I would also like to take this moment to thank outgoing Director Stephanie Price. On behalf of the Board, we wish to extend our thanks to Stephanie for her work over the last five and a half years. She has played an instrumental part in bettering CNAR’s governance, operations, and financial integrity. We wish you the best of luck in all you do.

Finally, we thank the CNAR community for your ongoing contributions to our association and look forward to seeing you in Ottawa this fall at CNAR 2024!

Sincerely,

Message from the Executive Director

Dear CNAR Community,

Welcome to the summer edition of CNAR’s Network News!

CNAR wishes to again thank all who participated in our recent Membership Learning Needs Study. Completed in Q1, these results will inform CNAR’s education program initiatives going forward and will help us to stay aligned with our overall strategic plan. The high-level results of this comprehensive survey are on pages 5 and 6 of the magazine. We sincerely appreciate the time you take to complete our surveys throughout the year – we are listening!

These last few months, CNAR hosted our very successful Partner-led annual Spring Workshop Series featuring Barker Hutchinson & Associates, BDO, Meazure Learning, Pivotal Research, and PSI. CNAR collaborates with knowledge leaders from a number of different sectors to bring professional development opportunities to our community. We encourage you to also check out the Partner-led workshops that will be presented at CNAR 2024, which you can learn more about on page 11. I would like to sincerely thank all CNAR’s corporate Partners for their ongoing support

Last month, CNAR also hosted a fascinating UnLearn and Learn event on neurodiversity featuring the impressive Dr. Wendy McGuire, Owner of Scattergram Counselling and Consulting, which drew close to 200 registrants from our community. Our UnLearn and Learn series, launched last year, has proven to be a valuable tool

to support the “UnLearning” of biases or assumptions we unconsciously hold. I personally have gained so much insight and important takeaways from this session, as well as the previous events in this series. It is a good reminder that although we are professionals, we are also people; we must all work to remind ourselves to appreciate our differences more.

Of course, these last few months we also officially opened registration for CNAR 2024! With well over 700 delegates already registered to be in Ottawa or virtually with us this year, we very much look forward to hosting you. Our program this year is extremely strong; we are grateful that so many of you work with CNAR to tell your story and elevate the quality of the information we present at the Conference each year. It is our synergy with our community that has allowed for us all to learn from each other and do our jobs better. It is with that in mind, that I am pleased to announce our new corporate tagline, Achieving Regulatory Excellence Together.

I look forward to seeing you at the Conference and discussing how we can continue to collaborate with and support you.

Sincerely,

CNAR’s Corporate Partners

THANK YOU TO CNAR’S CORPORATE PARTNERS FOR YOUR ONGOING SUPPORT!

Member Learning Needs

STUDY FINDINGS

“IT IS LIKELY THE BEST FORUM FOR CANADIAN REGULATORS TO SHARE AND COLLABORATE.” *

A key priority under CNAR’s 2024-2026 Strategic Plan is to better understand members’ learning needs, issues, and expectations of CNAR. It is a critical piece of work to execute on another strategic priority – to ensure that our professional development and network offerings best align to members’ learning needs and preferences.

At the end of 2023 and through the first quarter of 2024, we worked with a consulting firm to conduct a study of members’ learning needs, issues, and expectations of CNAR. Along with meetings with staff and a review of key documents, members were invited to complete a survey and a few also engaged in interviews.

We have learned from the rich information we received. We heard that members:

• Appreciate the quality, relevance, and practicality of the content of CNAR’s programs.

• Highly value the Annual National Conference.

• Value the focus on professional regulation and expect CNAR to continue to focus its offerings on professional regulation. Among the many topics identified, examples of more frequently mentioned topics in survey responses include risk, equity diversity, and inclusion (EDI), complaints and investigations, and artificial intelligence (AI).

• Do not expect broader professional development support from CNAR (i.e., professional development not linked to or in the context of professional regulation).

• Value learning from industry experts and regulatory peers, including internationally.

• Place highest value on offerings that are practical, tactical, and focused on the how-to.

• Generally prefer synchronous learning options (such as workshops) that are structured and involve peer engagement and active learning. While in-person events are most preferred, virtual and recorded sessions are viewed as good alternatives.

*Quotes directly from members who participated in CNAR's 2024 Members' Learning Needs Study.

• Are interested in content from event briefs and asynchronous video replays.

• Have varying preferences for the length of events, with some suggestions to consider shorter events or breaking events into smaller components to support scheduling.

• Would like to see targeted offerings (i.e., more information about the intended audience for events and targeting events for certain roles or positions) and tiered offerings (e.g., content is tiered based on introductory, intermediate, and advanced levels of the material).

We sincerely thank all those who took the time to provide us with feedback and insights about your learning needs and preferences. We are listening to your feedback! Using the information from the study, we are undertaking an in-depth review of our programs and offerings to ensure that the professional development and networking opportunities we provide are best aligned to members’ learning needs. As part of our commitment to excellence and being responsive to the community’s needs, we will be issuing a small survey each year to keep the pulse of the membership’s learning needs over time. We look forward to your continued engagement and value the feedback you share with us.

“I ATTENDED THE CONFERENCE IN VANCOUVER AND HAVE ATTENDED A NUMBER OF WEBINARS THROUGHOUT THE YEAR AND FOUND THAT THEY WERE INCREDIBLY RELEVANT TO MY WORK, WELL ORGANIZED, INTERESTING, AND OF HIGH QUALITY.”*

CNAR 2024 Annual National Conference

CNAR 2024 IN-PERSON EVENT

Keynote Speaker : Dr.

CNAR’s 2024 in-person event, which will take place October 8th & 9th, in Ottawa, Ontario is the premier event in Canadian professional regulation, where attendees can network,

exchange ideas, explore the use of innovative technologies, and develop best practices as they navigate their journey towards regulatory excellence. We are thrilled to welcome delegates from Newfoundland to British Columbia, from across many sectors to the premier event in Canadian professional regulation. We look forward to celebrating this 17th Annual National Conference with you, which will be kicked off with a special keynote by the extraordinary Dr. Roberta Bondar, Canada’s first female astronaut and the first neurologist in space.

CNAR 2024 VIRTUAL EVENT

Not able to attend in person? Consider joining us virtually, where you will be able to view Dr. Roberta Bondar’s keynote address, watch plenary sessions live*, access on-demand content, interact with other delegates and sponsors on our virtual platform, tune into live CNAR TV interviews from

the show floor, and compete in our annual Trivia Contest Challenge to win yourself a ticket to CNAR 2025!

REGISTER FOR THE VIRTUAL CONFERENCE

Review the program and register for the Virtual Conference.

*Only one session from each concurrent block on the two-day program will be streamed live; lunch n’ learns will not be livestreamed. However, all concurrents and the lunch n’ learn sessions will be pre-recorded and available for replay (as well as live plenary sessions). Dr. Roberta Bondar’s October 8th keynote address will be livestreamed, and available for replay for one month after the conference.

Roberta Bondar

Thank You to CNAR 2024’s Sponsors:

PRE-CONFERENCE WORKSHOPS

CNAR 2024

Pre-Conference Events

CNAR 2024 features several compelling pre-Conference workshops, which will take place (in-person only) on October 7th.

FULL DAY WORKSHOPS

Fundamentals of Regulation

8 AM-4 PM ET

The Fundamentals of Regulation Workshop will appeal to anyone who is seeking to learn more about professional regulation in the Canadian context. This compact yet comprehensive program is designed to provide attendees with content that is both practical and informative, featuring presentations from experts in their respective fields in regulation.

Presentations and interactive breakout discussions will cover:

The regulator’s mandate: Serving and protecting the public interest

Presented by Stephanie Price, Executive Director at the Federation of Medical Regulatory Authorities of Canada.

Regulatory governance

Presented by Beth Deazeley, Registrar and CEO at the College of Early Childhood Educators.

Quality practice: Assuring entry and continuing competency

Presented by Lindsay Steele, Associate Director of Professional Practice at Engineers and Geoscientists BC.

Professional conduct: Complaints, investigations, discipline and fitness to practice

Presented by Gillian Slaughter, Director, Professional Conduct and Regulatory Affairs at the Royal College of Dental Surgeons of Ontario.

The regulator’s voice: Communications, engagement and stakeholder relations

Presented by Pattie LaCroix, Director of Communications and Policy at the College of Physicians and Surgeons of Nova Scotia.

Throughout the day, attendees will also have the opportunity to engage in Q & A with presenters and network with each other.

The workshop will be moderated and facilitated by Gillian Slaughter.

Who Should Attend?

Past participants of this highly-rated session include staff who have been working for a regulatory body for less than three years; board/council members who wish to learn more about how to ensure public protection in the regulatory sector; those who may have relied primarily on on-the-job training to gain knowledge and skills in the area; regulators seeking to enhance their peer network; and individuals seeking a “sampler” of topics in regulation.

Featured Speakers:

Beth Deazeley

Registrar & CEO

College of Early Childhood Educators

Pattie LaCroix, MA Director, Communications & Policy College of Physicians and Surgeons of Nova Scotia

Stephanie Price Executive Director Federation of Medical Regulatory Authorities of Canada (FMRAC)

Gillian Slaughter Director, Professional Conduct and Regulatory Affairs

Royal College of Dental Surgeons of Ontario

Lindsay Steele

Associate Director of Professional Practice Engineers and Geoscientists BC

MASTER CLASS 2024 WORKSHOPS:

Trauma-Informed Professional Regulation

8 AM-4:30 PM ET

The workshops will support regulators to develop and elevate their practices in trauma-informed, humancentered professional regulation. Individuals have the option to register for the full-day workshop or either the morning or afternoon standalone workshops.

MORNING HALF-DAY WORKSHOPS (RUNNING CONCURRENTLY)

How can and do regulators regulate in a traumainformed way? In this interactive workshop, attendees will learn about and critically examine what it means and looks like to use trauma-informed, humancentered approaches in professional regulation.

Attendees will learn about:

What is trauma-informed practice?

Trauma-informed practice involves more than adhering to a set of abstract principles. Learn from

2024 Master Class I: Critical Foundations in Trauma-Informed Regulation

8 AM-12 PM ET

(Registrants can select this half-day session ‘a la carte’ or select a Full Day Master Class Session Package which includes the Trauma Informed Practice Session below.)

a leading expert in the field about how trauma is experienced, what trauma responses may look like, and what changes are needed in practice and policy to integrate trauma-informed approaches into regulatory practice. Through this session attendees will develop an appreciation of the complexity of responses traumatized individuals may exhibit and the necessity for understanding and being sensitive to these responses in trauma-informed approaches.

What do trauma-informed approaches look like in regulation?

Building on the foundations from the opening session, attendees will hear from two regulators about a critical review of complaints and investigations processes to integrate trauma-informed practices and the use of a trauma-informed approach in a quality assurance program. Attendees will learn how a commitment to trauma-informed practice is driving changes in policies, approaches, and practices in these regulatory areas. While the examples focus on two regulatory areas, insights can be extrapolated to other regulatory functions.

How can regulators assess their traumainformed practices and know whether they are having the intended impacts?

What are possible indicators and outcome measures? The assessment of trauma-informed practices is usually anecdotal or ad hoc. In this session, attendees will engage in critical discussions about potential indicators and methods for assessing the impact of trauma-informed practices.

What does it mean to care for the team?

What strategies and tools can be used? Dealing with matters involving trauma or other sensitive, complex matters takes a toll on the individuals involved – from front-line staff, to managers/ directors, and committee members reviewing or hearing cases. Other team members can be affected by the experiences of their colleagues. Learn about the importance of caring for the team and practical strategies and resources to create safe and supportive work environments for individuals and teams involved in trauma-related matters.

This interactive workshop will include presentations, group discussion, Q & A with presenters, and resources.

Opening Speaker:

Featured Speakers:

Shelley Ball, BA (Hons), JD

Lawyer and Principal Shelsu Pacific Consulting Inc.

Megan McCarrell, RM, MPH

Director of Professional Practice and Policy College of Midwives of Ontario

Cathy Pappas

Director, Registration College of Immigration and Citizenship Consultants

Eric de Sa

Data Scientist

Royal College of Dental Surgeons of Ontario

Jenna Smith

Manager, Professional Conduct College of Registered Psychotherapists of Ontario

Advanced Strategies for Navigating Complex Situations

9 AM-12 PM ET

Regulatory investigators frequently encounter complex situations. How an investigator handles these situations can significantly impact the investigation’s outcome and profoundly alter the experience of those involved.

It is essential investigators exercise sound judgment and appropriate strategies to effectively navigate complex situations while also maintaining sensitivity and empathy. This interactive workshop focuses on providing practical strategies to manage complex situations with competence.

Join us as we explore four unique situations that require investigators to apply a combination of expertise, skill, empathy and sensitivity. Together we’ll explore practical strategies for investigations that involve:

• Participants who are neurodivergent

• Complaints of racism and bias

• Complex, trauma-informed interviews

• Participants who are minors

Throughout this workshop, participants will engage in interactive group discussions and activities tailored to each scenario. Participants will learn how to identify and accommodate diverse needs, address sensitive issues effectively, adapt investigation approaches to ensure fairness and integrity, and to be conscious of the physical and psychological safety of all participants.

Participants will depart with enhanced confidence in their ability to navigate complex investigative scenarios with competence and professionalism that can be immediately applied to their own work.

Learning Objectives:

1. Navigate complex investigations with skill and confidence.

2. Identify and accommodate diverse needs and adapt investigation approaches to ensure fairness and integrity, and to be mindful of the physical and psychological and safety of all participants.

3. Gain practical skills that can be applied to other complex situations with competence and professionalism.

Target audience

This workshop is appropriate for those with experience in investigations who would like to refine their organization’s process.

Featured Speakers:

Greg Hutchinson

President

Barker Hutchinson

Laura Hutchinson

Vice President

Barker Hutchinson

Evidence to Action: Leveraging Research and Evaluation for Risk-Based Regulatory Excellence

This hands-on workshop is designed to empower professionals from regulatory bodies with the knowledge and tools to apply cutting-edge research and evaluation methodologies toward effective risk-based regulation. Through a mix of expert presentations, case studies, and interactive sessions, participants will learn how to harness data and research to identify, assess, and mitigate risks, ultimately leading to improved regulatory practices and outcomes.

• Deep Insights: Understand the critical role of research and evaluation in strengthening riskbased regulation and governance.

• Practical Skills: Acquire tools and techniques for data analysis and engaging stakeholders to inform better regulatory decisions.

• Actionable Strategies: Leave with real-world examples from profession regulators, ready-touse KPIs, and research strategies to apply in your regulatory context.

Target audience

This workshop targets researchers, policy analysts, regulatory officers, and decision-makers within professional regulatory bodies who are keen on adopting evidence-based practices to improve their risk management and governance frameworks.

Featured Speakers:

of Ontario

This hands-on skills-based workshop will address capacity concerns that are raised in registration, capacity proceedings, or discipline proceedings (or in parallel proceedings), with a particular focus on resolution strategies.

For instance, what should a regulator do if an applicant seeking registration with that regulator discloses that they have a serious mental health condition or disorder? What if, after the person is registered, a mental health condition or disorder is brought to the attention of the regulator? What if the condition or disorder is only brought to the attention of the regulator by way of disciplinary proceedings? How can an individual’s human rights be respected and balanced with the public interest through these processes? What does a capacity assessment entail and why is it necessary? This workshop will provide participants with the chance to explore these and other questions in a supportive environment.

Target audience

Suitable for all levels of experience, and those with an interest in the professional regulation of capacity issues.

Capacity Issues in Registration, Discipline, and Fitness to Practise – A Balancing of Rights and Responsibilities

9 AM-12 PM ET

Featured Speakers: Amy Block Partner

WeirFoulds LLP

Kelsey Ivory Partner

WeirFoulds LLP

Dr. Lisa Lefebvre

Addiction

Medicine Physician

Medical Director of SummitIME

Leanna Yue College of Nurses of Ontario Manager, Prosecutions and Monitoring

AFTERNOON

HALF-DAY WORKSHOPS (RUNNING CONCURRENTLY)

In this workshop, attendees will take a deep dive into trauma-informed practices in professional regulation. Attendees will be equipped with knowledge, skills, and tools to apply and enhance trauma-informed practice in their work. While certain content will be framed in relation to particular regulatory functions, it will be possible for attendees to extrapolate insights to apply to other regulatory areas.

Attendees will learn about:

Relationships and trust – cultural safety and humility practices in trauma-informed approaches – Have you or your organization received feedback that you are a safe and humble organization to interact with? Establishing relationships grounded in trust and humility are critical for trauma-informed practices for people to feel safe. Learn from a regulator about the review of their complaints process to make it safer and more accessible for Indigenous Peoples. Results will be shared from the first year of efforts to implement changes to support trauma-informed, culturally safe and humble practices in the complaints process. The session will include an opportunity to engage in group discussion.

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2024 Master Class II: Trauma-Informed Practice in Professional Regulation

1:00 PM-4:30 PM ET

(Registrants can select this half-day session ‘a la carte’ or select a Full Day Master Class Session Package which includes the Critical Foundations Session above.)

Featured Speakers:

Dean Benard

President and CEO

Benard + Associates

Eden Dales

Social Worker and Director

Eden Dales Social Work (EDSW)

Michelle Ouellette

Public Support Advisor

College of Physicians and Surgeons of Nova Scotia

Dr. Derek Puddester

Deputy Registrar, Complaints and Practice Investigations

College of Physicians and Surgeons of British Columbia

Language and communication: What and how to communicate through a trauma-informed lens – Trauma-informed, human-centered practices challenge regulators to reconsider and evaluate how they can communicate with a people-focused approach. Learn about the importance of language and communication in trauma-informed approaches. Through case studies and exercises, attendees will learn about writing and speaking through a traumainformed, human-centered lens.

Creating psychological safety in regulation practices – Critical to trauma-informed approaches is creating an environment of psychological safety to interact, whether with registrants, complainants, witnesses, applicants, or others. Interactions can occur in relation to various regulatory functions. A panel from the regulatory community will share and discuss the ways they use trauma-informed approaches to support psychological safety in interactions. This interactive workshop will include presentations, group discussion, Q & A with presenters, and resources.

AFTERNOON HALF-DAY WORKSHOPS (RUNNING CONCURRENTLY)

When is a regulator required to comply with the Canadian Charter of Rights and Freedoms? Which Charter rights are (or are not) engaged by a regulator’s processes? What does this look like in day-to-day operation and how can regulators ensure compliance?

A recent decision from the Supreme Court of Canada confirmed that, even when a regulator is in compliance with its strict obligations under the Charter, it must continue to balance Charter values when making discretionary decisions. This expanded obligation will have a significant impact on all aspects of a regulator’s activities, including policies and decisionmaking in registration, complaints, discipline and

Which Rights Where? Understanding the Canadian Charter of Rights and Freedoms in the Regulatory Context

1:00 PM-4:00 PM ET

quality assurance. For example, Board briefings, committee meeting submissions, and legal arguments at discipline hearings will all need to address Charter values as appropriate. Judicial scrutiny will evaluate how regulators incorporate Charter values when researching, discussing and explaining their processes.

In the first part of the workshop, we will identify and define Charter values to help you better understand your obligations. Then we will focus on strategies for successful compliance. Speakers from various regulatory backgrounds will discuss the practical implications of Charter values in day-to-day regulatory activities, and share strategies for success. At the end

of the workshop, SML lawyers will review the top Charter cases you need to know.

In order to encourage discussion and sharing, this workshop will feature speaker presentations, breakout discussions, poll questions and more. We look forward to welcoming participants for an engaging and thoughtful afternoon. Following the session, participants will receive an informational email with resources, caselaw and more.

Format:

• Workshop

• Short presentations

• Small group discussions and exercises

Target audience

Regulatory staff, committees, boards and counsel.

Featured Speakers:

Alyson Bird Governance & Legal Consultant

Nova Scotia College of Nursing

Rebecca Durcan Co-Managing Partner

SML

Anastasia-Maria Hountalas

Partner

SML

Cynthia Johansen

CEO & Registrar

BC College of Nurses and Midwives

Erica Richler Co-Managing Partner

SML

Juda Strawczynski

CEO & Registrar

CPATA

Alex Wilbee Founder & Lawyer Wilbee & Co.

Regulators encounter human rights issues in every aspect of their unique roles. Regulators must avoid discrimination and accommodate differences up to the point of undue hardship, but how can regulators learn to do that in practice? This workshop covers foundational principles of human rights law including discrimination and the duty to accommodate, managing the risks of human rights challenges and the practical application of human rights principles through scenarios. Participants will work through case-based scenarios applying human rights principles in areas such as registration, continuing competence, registrant monitoring, discipline referrals, disability as a defence, and penalties. Participants will receive practical tips to apply in their day-to-day regulatory work.

Participants will learn:

• What is “discrimination” under the law and how do human rights laws protect against it?

• What is the “duty to accommodate” and how should we think about it in the context of professional regulation?

• How do we apply human rights principles to actual scenarios that regulators may encounter in practice?

Human Rights Issues for Professional Regulatory Organizations –Understanding Obligations and Ensuring Compliance

1:00 PM-4:00 PM ET

Target audience

Staff and Council/Board members of professional regulatory organizations, regulatory committee volunteers, in-house legal counsel for professional regulatory organizations, no prior knowledge or experience with human rights law required.

Featured Speakers:

Assessment based considerations for diversity, equity, and inclusion (DE&I) are essential in content development. Bias in exam content could originate from many sources, such as use of content irrelevant language, cultural nuances, and regional or workplace setting differences. Lack of engagement from representative stakeholders can add to or exacerbate sources of bias in content development. DE&I initiatives are designed to reduce bias and create equal opportunities in credentialing and/or regulatory assessment programs. There are many areas where DE&I can play a critical role in the fairness of exams and considerations for DE&I initiatives are not limited to a single timepoint during the assessment life cycle. Two key challenges for regulatory bodies related to addressing DE&I considerations are identifying and engaging key stakeholders across all exam development activities, from practice analysis to review of item and exam performance statistics.

This workshop is designed to help regulatory organizations assess their content development processes for opportunities to address and reduce potential sources of bias. We will discuss the following elements to identify approaches to creating greater equity in exam content development:

• Subject matter expert (SME) recruitment, selection, training, and engagement

• Item writing training and guidelines

• Item and exam form review processes

• Language or localization considerations

• Use of item performance statistics to inform content use and future development

ABCDE&I: Assessment Based Considerations for Diversity, Equity, and Inclusion in Content Development

1:00 PM-4:00 PM ET

The purpose of this workshop is to provide participants with an opportunity to engage in thoughtful discussions and learning integration exercises on DE&I considerations in content development. By the end of this workshop, attendees will be able to identify opportunities and approaches for reducing the risks of including biased content into their assessments. Participants will also be able to identify stakeholder groups, engage in discussions on DE&I considerations in exam content development, and apply learnings to their individualized work settings and organizations.

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Featured Speakers:

Services Association of Social Work Boards

Isabelle Gonthier, PhD, ICE-CCP Chief Assessment Officer, PSI Services

Pamela Ing, PhD, ICE-CCP Senior Director, Psychometric Services, PSI Services

The focus will be on DE&I considerations in content development and the importance of intentional SME involvement (recruitment, selection, training, engagement). The content of this presentation is applicable to all regulatory bodies across all disciplines and jurisdictions.

Learning objectives:

1. Identify opportunities and approaches for reducing the risks of including biased content into assessments.

NEW EBOOK AVAILABLE

Approaches to Regulation: A Look at Proactive Regulation

CNAR 2023’s presentation, ‘Proactive Regulation: The Key to Modernizing How We Regulate,’ challenged regulators to consider proactive approaches to regulatory functions.

In the course of their session, presenters illustrated four key considerations related to regulatory approaches:

• Identifying and understanding aims.

• Defining, understanding, and assessing risks.

• Grounding decisions in evidence.

• Focusing on outcomes.

This eBook explores these points and includes some questions regulators can use to reflect on and strategize about their approaches to regulation.

2. Develop strategies for key stakeholder selection and involvement in assessment content development to address DE&I considerations.

3. Discuss DE&I considerations related to assessment content development and apply workshop learnings to participants’ individualized work settings and organizations.

Target audience

The target audience for this workshop is individuals who work with or oversee the development of content for assessments.

Access to CNAR’s eBooks is exclusive to CNAR members and Partners. Please log into the portal to access or join CNAR now to enjoy members benefits.

JOIN CNAR

SAVE THE DATE

CNAR 2025

CNAR 2025 WILL TAKE PLACE IN CALGARY, ALBERTA, OCTOBER 20-22, 2025!

The Role of Credibility Assessments in Professional Regulatory Matters

In professional regulatory investigations, continuous evolution in practices and approaches aims to enhance fairness and thoroughness. Among these developments, the nuanced use of credibility assessments has emerged as a critical element. This article explores how credibility assessments function within the investigative process and their impact on decision-making in regulatory matters.

FOUNDATION OF FAIRNESS IN INVESTIGATIONS

The core objective of regulatory investigations is to gather evidence impartially and meticulously. Investigators, acting as neutral factfinders, are tasked with collecting information without bias and are not to make judgments about the information’s veracity. This

distinction is essential to maintaining the objectivity and fairness of the investigative process. Nonetheless, investigators employ credibility assessments to evaluate the reliability of the information they gather, guiding them on which leads to pursue more intensely and whether additional sources should be consulted. This approach ensures a thorough exploration of relevant information without drawing conclusions on the truthfulness or validity of the claims.

ROLE OF DESIGNATED DECISION-MAKERS

Decision-making based on gathered evidence is reserved for designated authorities within the regulatory body, such as screening committees or hearing panels, rather than the investigators.

Screening Committees:

Screening committees play a pivotal role in the initial review of evidence. As seen in the case of Griffith v. Health Professions Appeal and Review Board, these committees are authorized to engage in limited fact-finding and evidence weighing. They assess the evidence’s sufficiency and its seriousness regarding public interest, deciding whether issues warrant disciplinary hearings or remedial actions to protect the public. This critical review and evaluation empower them to decide without escalating all cases to disciplinary levels.

Hearing Panels as Credibility Assessors:

Hearing panels are the ultimate arbiters of credibility and fact in the regulatory process. Unlike investigators and screening committees, hearing panels make the final determinations on cases. They assess the facts of the case and the credibility of testimonies and evidence, which is vital in disputed or testimonialheavy cases. Their assessment process involves examining the consistency, plausibility, and coherence of all testimonies and evidence, considering the demeanor, motives, and potential biases of witnesses. This comprehensive evaluation is crucial to ensuring decisions are well-founded on a thorough understanding of the case dynamics. Hearing panels adhere to the principles of procedural fairness and natural justice, guaranteeing that all parties can present their case, respond to evidence, and challenge the reliability of opposing testimonies. This balanced approach is critical to maintaining the legitimacy and fairness of the regulatory process.

MAINTAINING INTEGRITY AND FAIRNESS

The structured separation of roles among investigators, screening committees, and hearing panels maintains the integrity and fairness of regulatory procedures. By collecting all relevant information without bias and leaving the decisionmaking to well-informed panels, this separation ensures decisions are based on a balanced review of all collected evidence, adhering to principles of fairness and justice.

The use of credibility assessments in professional regulatory matters is a sophisticated tool that enhances the investigation process and supports the decision-making framework. By meticulously evaluating credibility and ensuring procedural fairness, regulatory bodies can make informed decisions that uphold the highest standards of integrity and fairness, essential for maintaining public trust and professional standards.

Can I Sue for That?: Civil Suits Against Regulators

Regulators in Ontario enjoy several different types of immunities from legal challenges, including immunity from being sued in negligence for acts undertaken in good faith. Generally, the courts have judiciously protected immunities in order to spare regulators undue interference in their processes, which are designed to protect the public interest. But the legal protections for regulators do not extend to bad faith conduct, and a new case from British Columbia, Thmbran, may have lowered the bar for what a court is willing to consider bad faith, at least at the preliminary phase on a motion to strike as disclosing no reasonable cause of action.

i.

Protecting Regulatory Activity: Statutory Immunities

In Ontario, a combination of legislation and common law has narrowed the private causes of action available to private litigants against regulators. For example, it is now established that a college cannot be held vicariously liable for the acts of practitioners that

it has registered or licensed.1 A college also cannot be construed, for the most part, as a fiduciary to the members of the public that it is protecting.2 Courts have consistently declined to acknowledge the existence of a duty of care, a necessary element of a negligence claim, between a regulator and a member of the public or of the profession.

Health colleges covered under the Regulated Health Professions Act (“RHPA”) are also statutorily immunized from negligence claims.3 Section 38(1) of the RHPA prohibits actions against health colleges, committees, staff and committee members, including but not limited to negligence, if the conduct was undertaken within the scope of the Act and in good

1 Richard Steinecke et al, A Complete Guide to the Regulated Health Professions Act (Toronto: Thomson Reuters, 2024) at §2.12 [“Steinecke”], citing Street v Ontario Racing Commission, 2008 ONCA 10.

2 Ibid, citing Howatt v College of Physicians and Surgeons (Ontario), [2005] O.J. No. 1380.

3 1991, S.O. 1991, c. 18.

faith. The governing statutes of many other regulators, including the Law Society of Ontario,4 the College of Early Childhood Educators,5 and the College of Social Workers and Social Service Workers,6 include similar immunity provisions.

The general idea behind the statutory immunity can be considered a principle of non-interference. The legislature has opted to immunize regulatory activity in various ways in order to prevent undue interference with regulatory processes that are designed to protect the public. Statutory prohibitions also give regulators breathing room to balance multiple competing priorities and interests.7 Protecting regulators from negligence claims underpinned by good faith acts, for example, helps to ensure that they can balance the interests of multiple stakeholders, and do not have to labour under a paramount duty to an individual licensee or a member of the public.8

ii. Challenging Regulatory Activity: Bad Faith Conduct and Malicious Prosecution

Statutory immunities are a powerful tool to deflect legal challenges to regulatory activity, but they are not boundless. First, they are internally limited. The provisions protect only regulatory activities undertaken in good faith and in the performance or intended performance of a duty of the exercise of a power or intended power under the Act, and they only prevent suits seeking damages against regulators (i.e., financial relief). Immunity clauses do nothing to prevent plaintiffs and applicants from seeking other forms of relief against regulators, such as declarations, injunctions and judicial review.9

Second, immunity clauses do not oust liability for regulators for acts undertaken in bad faith. Negligence is an “unintentional tort”, meaning a plaintiff does not have to prove that the defendant acted in bad faith or with an improper motive. Statutory immunity provisions reflect the legislature’s desire to shield regulators and their staff from potential liability arising from unintentional wrongdoing, but liability for intentional wrongdoing is still sometimes available.

4 Law Society Act, R.S.O. 1990, c.L.8, s 9.

5 Early Childhood Educators Act, 2007, S.O. 2007, c. 7, Sched. 8, s 50.

6 Social Work and Social Service Work Act, 1998, S.O. 1998, c. 31, s 49.

7 Steinecke, supra note 1 at §2.12.

8 Ibid

9 Ibid

Under this umbrella, a variety of tort claims against regulators remain on the table, though it is important to note that the case law in Ontario is not particularly well developed. Malicious prosecution and misfeasance of public office – a tort also referred to as abuse of public office or abuse of statutory power10 –are two such causes of action.11 Seeing as the statutory immunity in negligence is limited to good faith acts, a court may set the immunity aside if the plaintiff or applicant can show bad faith or motive.12 Misfeasance of public office and malicious prosecution claims both require the plaintiff to show that the defendant acted with “malice or intent”.13 The legal standard for both torts is relatively strict. For example, in order to demonstrate bad faith, the plaintiff or applicant must show a “deliberate and dishonest wrongful abuse of the powers given to a public officer, coupled with the knowledge that the misconduct is likely to injure the plaintiff”.14

iii. Thmbran: BCSC Unwilling to Dismiss Allegations

Outright

In Thmbran v the British Columbia College of Nurses and Midwives (BCCNM), released in March 2024, the British Columbia Supreme Court (“BCSC”) preserved several tort claims against a regulator on a motion to strike.15 A registered nurse brought a claim for civil and Charter damages against the College of Nurses and Midwives (“College”), the College inspector, the College’s legal counsel, the College’s Inquiry Committee and the BC Ministry of Health, alleging that the defendants had engaged in bad faith and “malicious use of process” when handling a professional misconduct complaint.16 The plaintiff was formerly the Director of Care at a senior citizens residence, and the complaint stated that the plaintiff had failed to report the sexual assault of one resident by another resident before she went off on

10 Conway v Law Society of Upper Canada, 2016 ONCA 72 at para 20 [“Conway”].

11 See e.g., Finney v Barreau du Quebec, 2004 SCC 36 and Stoffman v Ontario Veterinary Assn, 73 O.R. (2d) 737 (Div Ct), Robson v Law Society of Upper Canada, 2016 ONSC 5579.

12 Conway, supra note 10 at para 22.

13 Ibid; Drainville v Vilchez, 2014 ONSC 4060 at para 16.

14 Ibid at para 20, citing Odhavji Estate v Woodhouse, 2003 SCC 69 at para 28.

15 2024 BCSC 441 [“Thmbran”].

16 The court, interpreting the pleadings generously and with an eye to the fact that the plaintiff was self-represented, determined that “malicious use of process” was a claim for malicious prosecution: ibid at para 95.

an extended health leave. In her civil suit, the plaintiff claimed that she had been wrongfully targeted by the College, used as a scapegoat in order to cover up or avoid confronting the mishandling of the incident by other College members, and coerced and targeted by the College’s investigator and legal counsel.17 She sought damages for a variety of torts, including conspiracy, civil fraud and deceit, defamation and intentional infliction of emotional distress. The defendants moved to strike or dismiss the claim on the basis of statutory immunity.

The court struck most of the claims, but found that the pleadings were sufficient to ground an ongoing claim against the College for bad faith and malicious prosecution. The court found that the defendants had engaged in a wide range of unfair conduct, including ignoring multiple requests by the plaintiff to particularize the allegations, offering different versions of the underlying facts that led to the complaint, and failing to inform the plaintiff why the College cancelled a Discipline Committee hearing three weeks before it was set to begin and unilaterally resolved the complaint by way of a Letter of Expectation (“LOE”), which is now part of the plaintiff’s permanent employee record. The College also tried several times to get the plaintiff to sign a consent order making findings of fact against her and disposing of the claim prior to the hearing. She refused, and insisted on her right to be heard.

Finally, the court noted that the plaintiff could point to a variety of procedural fairness issues if she converted elements of the civil action to a judicial review, including:

the apparent arbitrariness of the process, the ever-changing “facts” and dates, and the significantly different consent orders offered with the significantly different penalties on the same facts [which] all point to procedural unfairness (and perhaps bad faith). It is further open to [the plaintiffs] to argue that the final resolution [of the complaint, via the LOE] was procedurally unfair (and perhaps in bad faith), as it robbed

17 Thmbran, supra note 14 at paras 2, 43.

[the plaintiff] of proper notice, the opportunity to clear her name (which the College knew she wanted), made final findings of “fact” that the College knew she refuted, and took away from her any avenue of review or appeal.18

The plaintiff in Thmbran has a long way to go to prove her claims against the College on the merits. But the ruling shows that courts may be reluctant to dismiss claims out of hand when it is critical of a regulator’s conduct. The court took issue with several aspects of the process and disposition of the complaint against the plaintiff, including that the LOE made final findings of fact against her after she expressed a desire for a hearing. Further, the court refused to dismiss the claim of misfeasance against the College’s legal counsel, on the basis that she was present during meetings of the Inquiry Committee in which strategic decisions, of which the court disapproved, were being made.19 Overall, the case is a strong example of judicial reticence to strike civil claims against regulators at the preliminary phase if the court believes that the regulator’s conduct may have been offside.

The information and comments herein are for the general information of the reader and are not intended as advice or opinion to be relied upon in relation to any particular circumstances. For particular application of the law to specific situations, the reader should seek professional advice.

18 Ibid at para 92.

19 Ibid at paras 127-128.

Embracing DE&I in the Testing Industry: A Collective Effort for Fair

and Inclusive

Assessments

PSI Testing

Recently, PSI hosted a successful Spring Workshop on Diversity, Equity, and Inclusion Across the Assessment Lifecycle: Key Considerations and Plan of Action with CNAR, setting the stage for ongoing conversations about creating equitable testing environments. This event highlighted the importance of integrating DE&I principles across the testing lifecycle to ensure that assessments are fair and accessible to all individuals.

Building on the insights and strategies discussed during the workshop, this article explores the crucial elements of DE&I in the testing industry and outlines actionable steps for fostering a more equitable and inclusive assessment environment. The guide covers the following themes:

THE IMPORTANCE OF DE&I IN TESTING

In the testing industry, a united vision and commitment to DE&I are essential. We must work together to guarantee that all groups have access to fair testing opportunities. A lack of DE&I in testing is not just an industry issue; it is a broader social justice concern.

DEFINING DE&I IN TESTING

Diversity: Develop tests that consider diverse backgrounds and experiences. Equity: Remove unnecessary barriers to ensure fair treatment for every test taker. Inclusivity: Ensure tests are accessible to all, preventing any test taker from being advantaged or disadvantaged.

THE IMPACT OF DE&I IN TESTING

The tests we deliver have the potential to change lives, enabling individuals from various backgrounds to pursue or advance in their careers. We have a social responsibility to develop and administer fair tests that are inclusive and accessible to everyone. These tests must also be legally defensible and compliant with relevant DE&I legislation and regulations.

EXPANDING MARKET REACH THROUGH DE&I

Making tests more accessible to marginalized and underserved communities can help grow the market by reaching a broader audience of test takers. As Isabelle Gonthier, Chief Assessment Officer at PSI, states, “We provide assessments that enable people to see their dreams come true. Whether it’s achieving the next academic milestone, obtaining a certification, or securing a license, we focus sharply on DE&I across the assessment lifecycle for all tests and exams we develop and deliver.”

INTEGRATING DE&I INTO ORGANIZATIONAL CULTURE

For DE&I efforts to be meaningful and effective, they must be embedded into the culture of both the organization and the testing provider. This requires a commitment to tangible practices and demonstrable behaviors beyond a single assessment or one-time seminar. DE&I considerations must be continuously integrated throughout the assessment lifecycle.

DE&I IN TEST DEVELOPMENT

Bias in test content can arise from various sources, including irrelevant language, cultural nuances, and regional differences. To ensure the validity of tests, content must be equally accessible to all eligible test takers. Biased test content can lead to unreliable outcomes that do not accurately reflect a test taker’s competence. As Pamela Ing Stemmer, Senior Director of Psychometric Services at PSI, emphasizes, “Thinking about the ultimate user when developing a test is critically important. Every step of the way is essential in making the testing experience valid, reliable, and fair.”

COLLABORATING WITH SUBJECT MATTER EXPERTS (SMES)

When developing test content, DE&I should always be a priority for both the test development team and the SMEs they work with. Key areas to consider include:

1. SME Recruitment and Selection: Ensure a diverse and representative group of SMEs, considering demographic characteristics (race, ethnicity, gender identity), practice areas or specialties, and experience levels.

2. SME Training: Provide item writers and reviewers with training on DE&I principles, encouraging them to recognize their own biases and commit to sensitivity and continuous improvement. For instance, use objective descriptions in item scenarios and avoid unnecessary references to gender or race.

3. Item Development Checklists: Support SMEs with checklists to ensure adherence to DE&I guidelines throughout the process. Examples include gender balancing, using genderless items, creating universal scenarios, and avoiding slang or idioms.

ACHIEVING DE&I GOALS IN HEALTHCARE TESTING

Understanding the importance of DE&I is crucial for achieving these goals. In healthcare, for example, using inclusive language in test items can significantly impact diagnostic accuracy and patient outcomes.

As Shebbra E. Toussaint, Senior Director of Client Services at PSI, notes, “An item referring to a white man with a medical condition might result in a black woman with the same condition being less accurately diagnosed. That’s potentially life-changing.”

By embedding DE&I principles into the fabric of the testing industry, we can ensure that assessments are fair, inclusive, and reflective of the diverse populations they serve. You can read more by downloading our full guide, Diversity, Equity, and Inclusion Across the Assessment Lifecycle.

Lessons from 2024 Judicial Review Decisions for Regulators

Milestones are often a time to reflect. Halfway through 2024, regulators can glean much from the judicial review decisions released so far. This article surveys six Ontario judicial review decisions related to professional regulation released from January 1 to May 22, 2024.

These are:

1. Zhao v HPARB, 2024 ONSC 515 [Zhao];

2. Folkes v College of Nurses of Ontario, 2024 ONSC 1497 [Folkes];

3. Spirou v College of Physiotherapists of Ontario, 2024 ONSC 964 [Spirou];

4. Chaban v Royal College of Dental Surgeons of Ontario, 2024 ONSC 1075 [Chaban];

5. Fuchigami v Ontario College of Teachers, 2024 ONSC 106 [Fuchigami]; and

6. Gill v Health Professions Appeal and Review Board, 2024 ONSC 2588 [Gill].

While this article provides lessons to regulators, the takeaways in this article are not meant to amount to legal advice.

Judicial review of regulatory decisions occurs provincially at specified courts across Canada. These are the Nunavut Court of Justice; Superior Court of Québec; Supreme Court of British Columbia, Prince Edward Island, Nova Scotia, Newfoundland and Labrador, Yukon, Northwest Territories; Court of King’s Bench for Saskatchewan, of Alberta, Manitoba, New Brunswick; and in Ontario, the Divisional Court at the Superior Court of Justice. In judicial review, these courts ensure regulatory decisions are reasonable, fair, and accord with the law. If the party bringing the judicial review shows an error along those lines, they can ask the court to vary or set aside the decision.

Errors are limited to those that are jurisdictional, procedural or pertain to an error of law. They can include, for example, the regulator failing to investigate a complaint adequately, misinterpreting the law, failing to provide adequate notice of proceedings to the practitioner, and rendering an unreasonable decision. The standard of review is reasonableness. The exception is if the matter raises a constitutional question, a question of law centrally important to the legal system, or a question about jurisdictional boundaries between administrative bodies. Those exceptions require the correctness standard. Judicial reviews in this article featured no exceptions.

Here are six lessons distilled from the judicial reviews.

1. Investigate adequately but not exhaustively.

2. Make reasonable efforts to consider relevant materials to decide the proper regulatory response.

3. Act within jurisdiction.

4. Assess the conduct objectively.

5. Know the conduct to respond to.

6. Uphold statutory objectives while minimally limiting Charter values.

1. INVESTIGATE ADEQUATELY BUT NOT EXHAUSTIVELY.

Regulatory investigations should ensure reasonable efforts to consider all records and documents relevant to the complaint. Failing to investigate crucial evidence and omitting evidence unreasonably can be detrimental to regulators on judicial review. The Court may find regulatory investigations inadequate if key witnesses are not interviewed, treatment records are not collected from other practitioners who have relevant information, or an expert opinion is not obtained for complex issues that surpass the deciding panel’s expertise.

In Zhao, the complainant spouse of a surgical patient sought judicial review of the regulator’s decision to not take further action against the medical anesthesiologist for the surgery. The complaint was inadequate care that led to severe dementia and a shortened life.

The complainant argued that the investigation into her complaint was inadequate. She argued that the regulator should have interviewed a surgical resident, medical student, and three nurses. However, on judicial review, the Court found the investigation adequate. The regulator relied on substantial documentary information about the surgery that included contemporaneous medical records. Even if the surgical resident could recall the patient’s status, there was no indication that the information might have reasonably affected the regulator’s decision. The Court found it reasonable for the regulator to be assured by the medical records. It concurred that medical records are a reliable source of information about a patient encounter without compelling information to the contrary.

The regulator also reasonably took no further action because the medical student and two of the three nurses could not recall the case.

The regulator’s decision withstood judicial review because the investigation: (1) covered the events and concerns in question; (2) obtained enough relevant and reliable information for the regulator to make an informed decision; and (3) left no indication that additional information, if collected, would have changed the regulator’s decision.

2.

MAKE REASONABLE EFFORTS TO CONSIDER RELEVANT MATERIALS TO DECIDE THE PROPER REGULATORY RESPONSE.

At the screening stage, regulators can rely on relevant admissions to issue remediation where appropriate. Regulators should ensure that the regulatory response is reasonably tied to the facts and the law. Law would include, for example, regulators’ governing statutes, regulations thereunder, and the published standards enforced by those laws. Regulators’ decisions should be transparent, justifiable, and intelligible.

In Folkes, a nurse sought judicial review of the regulator’s decision to caution her and require her to complete remedial continuing education. She argued the decision was unreasonable.

The nurse had worked for two public health units

at the same time, during the same hours, without her employers knowing. The regulator found this was a conflict of interest and a deliberate, dishonest act. In her response to the regulator’s investigation, she admitted to the overlapping employment and conceded it was a conflict she should have avoided.

On judicial review, the court recognized it was reasonable for the regulator to be concerned about offduty conduct that may harm public confidence in the profession. The remediation and caution ordered were reasonable because they pertained to the regulator’s professional standards and ethics, code of conduct, and were not sanctions. Rather, they were tools to improve her practice and avoid future similar concerns for the public’s benefit.

The regulator’s decision withstood judicial review because: (1) the regulator was entitled to rely on the nurse’s admission when deciding to order remediation; (2) there was an ample record on which the regulator was able to reach its decision; and (3) the regulator was not required to examine all records, documents, conduct interviews, hear testimony, or make credibility findings given the regulator’s screening role at the investigation stage.

3. ACT WITHIN JURISDICTION.

Where appropriate, regulators are permitted to take a broad interpretation of the law regarding its legal purposes.

In Spirou, the regulator made four decisions to issue four separate cautions for four physiotherapists. The physiotherapists co-owned a multidisciplinary health clinic that provided physiotherapy and other health services. They sought judicial review of the cautions.

The cautions arose from an insurance company’s complaint that the clinic had a general and systemic practice of waiving insurance co-payments for its patients. The clinic’s website advertised same and provided no dispute this occurred. Evidence also included invoices.

On judicial review, the physiotherapists argued the regulator erred by reprimanding them for the management and business practices of the clinic. They argued that the regulator lacked jurisdiction to hold

physiotherapists accountable for systemic issues in clinics or businesses.

The Court held that the regulator did act within its jurisdiction. The regulator’s statutory objects were broad. They included regulating the practice of the profession; developing, establishing, and maintaining standards of professional ethics; and promoting relations between the regulator and stakeholders. In this context, regulations evolved. Under regulation, the regulator could find misconduct when a physiotherapist failed to take reasonable steps to ensure they submit accurate accounts in their name. In this case, the physiotherapists did not deny they owned and ran the clinic and directed the clinic’s practice of waiving co-payments. Documentary evidence showed they did not submit accurate accounts in their names.

The Court found it would be nonsensical for the regulator to regulate billings of individual physiotherapists but not those of physiotherapists who ran their practice through a business. This would allow physiotherapists to thwart regulatory oversight.

The regulator’s decision withstood judicial review because it was within the regulator’s jurisdiction to caution the physiotherapists for their clinic’s systemic business practices.

4. ASSESS THE CONDUCT OBJECTIVELY.

Regulators should assess conduct through an objective lens, against its published standards, governing statutes, and regulations thereunder, and not complainants’ personal perspectives.

In Fuchigami, the complainant teacher sought a judicial review of the regulator’s decisions not to take further action against three colleagues. A Grade 8 play about bullying and school violence presented at the complainant’s school “triggered” him. He took issue with the fellow teacher who directed the play and the principal who approved it. He also took issue with the superintendent for not requiring the principal to notify parents once traumatic response to the play was reported.

The regulator found the teacher colleague followed school board policy properly when mounting the play and obtained the principal’s informed consent to do so.

The principal approved a play that was purchased from a reputable educational supplier and was renowned for positive reviews from student critics. The principal also communicated sensitively about the play and took proper measures when notified of the traumatic response. The superintendent ensured the school community’s wellbeing. No students reported being negatively affected by the play. Viewed objectively, the colleagues acted reasonably within their professional responsibilities, including exercising reasonable professional judgment in the play’s aftermath.

On judicial review, the Court upheld the regulator’s decision that it was not equipped to assess a potential link between a teacher’s alleged conduct and the mental health consequences it may have had on others. The regulator found the colleagues were not professionally responsible for the complainant’s subjective response to the play. The regulator assessed the colleagues’ conduct objectively based on information it had and the relevant professional standards.

The regulator’s decision withstood judicial review because its reasons, when taken as a whole, sufficiently explained its decisions.

5. KNOW THE CONDUCT TO RESPOND TO.

Regulators can act when a health practitioner engages in sexual innuendo on social media in relation to their practice, even without actual patients involved. Published practice advisories notifying practitioners of their professional obligations and what is acceptable and unacceptable can help regulators identify and justify conduct concerns. Where appropriate, regulators should develop advisories that are broad enough to capture the scope of concerning behaviour.

In Chaban, it was reasonable for the regulator to order a caution and require remedial coursework for a dentist posting material with sexual innuendo on social media. He posted two TikTok videos under a handle that identified his last name and the fact that he was a doctor. The first video showed him in his scrubs facing the camera in a mask in an office with diplomas. The soundtrack played a song with the lyric “I am not trying to seduce you” to which he cocked

his eyebrows. At the lyric, “would you like me to seduce you”, he pulled down his mask, and licked his upper teeth while smiling.

In the second video, he looked into the camera without a mask in ordinary dress in a residential unit. He cocked his eyebrows and smiled when the caption above his head read “when you give your patient an oral exam and see a circle pattern at the back of their throat”.

A member of the public saw the second video when it was posted. They told the regulator about the “blow job content” on TikTok, calling it “sexist and disgusting” and “unbelievable” for a doctor.

On judicial review, the Court upheld the regulator’s decision that the videos were contrary to the regulator’s practice advisories about social media use and preventing sexual abuse and boundary violations. It was upheld despite the dentist arguing they were wrongly applied. He argued the prevention advisory was for sexual abuse and behaviour towards actual patients, but that he had not engaged in sexual abuse and the videos did not refer to actual patients.

The Court found both advisories broad enough to leave open to the regulator to decide the dentist breached them. The prevention advisory applied because it was broader than just sexual abuse. It required dentists to maintain professionalism in written communications, including online and on social media to avoid harming reputation and practice. It required dentists to keep a professional working environment by refraining from making or posting sexually suggestive material. Similarly, the social media advisory required dentists to ensure their online content did not hurt public confidence in the profession or compromise professionalism. Although the dentist’s biography was not posted with the videos, the Court accepted the regulator’s submission that his handle was clearly shown as the maker of the videos, that the videos’ theme was dentistry, and his biography was accessible on his profile just a few clicks away.

Given the practice advisories, the regulator was concerned the videos were offensive, sexualized, and unprofessional. The videos were a risk to the public because they offered a message that a dentist could be interested in patients’ sexual habits and make patients uncomfortable.

The regulator’s decision withstood judicial review because its concerns about the dentist’s conduct were reasonable.

6. UPHOLD STATUTORY OBJECTIVES WHILE MINIMALLY LIMITING CHARTER VALUES.

Legally, regulators must consider practitioners’ Charter rights. Where Charter rights or values are at stake, regulators should take a balanced approach between ensuring the least impact on practitioners’ Charter rights and achieving their legal objectives. A balanced approach ensures that regulators neither turn a blind eye to Charter rights and values when they are raised nor forgo their legal objectives.

In Gill, a physician sought judicial review of eight of the regulator’s decisions. In three of those decisions, the regulator cautioned her for posting three tweets that spread misinformation about COVID-19 at the height of the pandemic. She posted that there was no medical or scientific reason for the “prolonged, harmful and illogical lockdown”, that vaccine was not needed, and retweeted a post that called contact tracing, testing, and isolation ineffective against COVID-19. Of the many other tweets she posted, these ones clearly spread unverifiable information. The regulator took no further action on those other tweets in five different decisions.

On judicial review, the Court upheld the regulator’s three decisions even though the physician argued that the regulator failed to consider her Charter right to freedom of expression, in this case, political speech. She argued that the regulator failed to consider the “public good” that impairing her Charter right served, or the negative impact that the impairment had on her right. The Court accepted that as an administrative decision maker, the regulator must consider how best to protect her Charter right in terms of its statutory objectives. The regulator could decide the measure chosen, but the measure must be within a range of possible, acceptable outcomes.

The Court found the cautions impacted the physician’s Charter rights minimally as it was remedial, not punitive. The public nature of the cautions also did not alter their remedial nature. The Court found it acceptable that the regulator’s decisions endorsed that political speech was important. The Court noted, for example, that the regulator found it was fair for a physician to question the effectiveness of the government’s policies about contact tracing, testing and isolation. However, it was improper to call the policies “counter-productive” without evidence. It was improper to engage in speech that contained misinformation.

The Court found that cautioning the physician for spreading misinformation was within the regulator’s statutory objective to regulate the profession and to develop, establish, and maintain standards of physicians’ professional ethics. In this context, the regulator had developed guidance on social media use and how physicians should conduct themselves in the COVID-19 pandemic. These resources required physicians to protect their own and the profession’s reputation when posting on social media. They were advised that during the pandemic, comments providing misinformation countering government or public health directives could harm the public. The regulator referenced these policies in its decisions. The regulator’s decision withstood judicial review because the regulator reasonably balanced the physician’s free speech rights against its overriding duty to protect the public.

CONCLUDING THOUGHTS

These six judicial review decisions show that 2024 has been off to an interesting start. They reflect a range of themes regarding conduct, from the adequacy of care to employment dishonesty, to billing and business practice concerns, to considering the relationship between professional responsibility and mental health consequences, to social media use and Charter rights and values. They also provide lessons for best practices as regulators continue to seek excellence in the important work they do for the remainder of 2024 and beyond.

DIY or Partnership: Which Test Development Approach is Best for Your Program?

DIY or Partnership: Which Test Development Approach is Best for Your Program? Prometric READ THE GUIDE

Deciding between developing tests and assessments in-house or outsourcing can be challenging. Both approaches have unique advantages and complexities. A DIY approach allows for greater control but demands significant resources and expertise. Partnering with a specialized vendor offers

professional expertise and streamlined processes. Which path will best serve your goals? Dive in to explore the pros and cons of each approach and make an informed decision that is best for your organization.

Interim Orders: A Difficult Decision

Legislation for many regulatory processes provides that interim orders, including an interim suspension, may be imposed before the conclusion of the investigation and adjudicative process. An interim order may be essential to protect the public while the regulatory proceeding is concluded. However, it is also exceptional in nature as it impacts the rights and interests of an investigated person prior to any factual finding or conclusion on liability. There is an inherent tension between the presumption of innocence and the need to protect the public pending the completion of the process. As a result, determining whether an investigated person should be subject to orders while a complaint is investigated and decided is one of the most difficult decisions faced in a regulatory process.

One of the issues for an interim order is identifying the test that must be met before any order can be imposed. The starting point is, of course, conducting an examination of the legislation in question to determine

if it identifies the test or addresses the factors to be considered. There are three general approaches for tests for imposing interim orders:

1. The statute incorporates a very specific test for an interim order.

2. The statute incorporates a test for issuing an interim order, but the test is very general, typically focusing on the need to protect the public.

3. The statute provides for interim orders but does not specify the test that must be met or the factors to be considered in determining whether to make an interim order. For example, Alberta’s Health Professions Act simply provides that on the recommendation of the complaints director, a person or committee designated by Council may, at any time after a complaint is made until a hearing is completed, impose conditions on the investigated person’s practice or suspend their practice permit.

In circumstances where no test is specified or where the focus is on the need to protect the public, the following factors are useful to consider when determining if an interim order is appropriate:

1. Whether there is a real risk to clients/patients, colleagues or other members of the public if an order is not made, it is not enough that an order be merely desirable.

2. The seriousness of the risk to members of the public if the individual were allowed to continue practicing without restriction. This includes consideration of the nature and seriousness of the allegation, the nature of the evidence, the circumstances in which the impugned conduct occurred, and the likelihood of the alleged conduct being repeated if an interim order were not imposed.

3. The impact an order may have on the registrant. An order will impact the registrant’s right to practice and may also impact financially and on the registrant’s reputation. The consequences of the order should not be disproportionate to the risk from which the decision-maker is seeking to protect the public from.

4. The source of the allegation and its potential seriousness. An allegation that is trivial or clearly misconceived should not be given weight.

5. Whether interims conditions of practice would be sufficient and proportionate or if an interim suspension is necessary to protect the public. The “least restrictive measures” principle should be applied.

Additional factors may also include:

1. The investigated person’s disciplinary history

2. Whether new allegations of misconduct were reported or arose during the investigation

3. The investigated person’s cooperation with the investigation

4. The overall passage of time in the proceedings, including the likely timeline until the conclusion of the proceedings

When examining if an interim order is appropriate, the decision maker is not deciding on the merits of the allegation. The question is usually whether the interim order is necessary to protect the public in the interim. The credibility or merits of a disputed allegation should not be decided at this stage. Nonetheless, a “provisional assessment” of the facts is appropriate to determine if it is manifestly unfounded or exaggerated.

An investigated person is entitled to procedural fairness with respect to an interim order. While the determination of the content of procedural fairness is context-dependent, in the majority of cases, the duty of procedural fairness will be met by:

1. Advising the investigated person that the decisionmaker is considering imposing a suspension or imposing conditions on practice.

2. Disclosing to the investigated person the material being relied upon concerning a potential interim order.

3. Providing a reasonable timeframe for the investigated person to make submissions on whether an interim order should be made and, if so, the content of any order. If a suspension is being considered, the investigated person should also be permitted to make submissions on whether practice restrictions would be sufficient and the content of any restrictions. If the possibility of an interim order arises in circumstances where it is urgent to take action, it will be reasonable to expect the investigated person to respond in a shorter time than usual, provided that they are still given a reasonable opportunity to make submissions.

4. A decision by the designated decision-maker advising whether an interim order has or has not been made, along with their reasons and rationale for doing so.

Full disclosure of all information is not required, particularly where this could impact the integrity of the ongoing investigation. In most cases, permitting written submissions rather than an in-person meeting should be sufficient. This is especially the case given that there won’t typically be witnesses or cross- examination, and the matter likely needs to be addressed fairly urgently.

If an investigated person considers an interim order to be inappropriate or imposed in an unfair manner, then they can legally challenge the order, but they do not have the option of simply ignoring the interim order.

This article is intended to be legal information and not legal advice. It provides a summary of the general case law, but a regulator must consider the particular test created by the governing legislation, as well as any case law that interprets that legislative test and any case law from the particular province in which the regulator is acting, before making any decision on interim orders. If you require advice on the process of interim orders and the best course of action to take in your particular situation, contact Jason Kully or any member of Field Law’s Professional Regulatory Group.

The content for this article was derived from the “Interim Orders” chapter of the LexisNexis textbook, “The Law of Regulatory Investigations in Canada”, authored by James Casey, KC, Jason Kully, and Michelle Casey. More information on interim orders, including case examples, the assessment of the strength of evidence, and the standard of review applied by courts if an order is challenged, as well as an extensive discussion of other legal issues that arise during investigations, can be found in the textbook which is now available.

Seeking Your Input!

Earlier in 2024 CNAR launched a Community of Practice: Entry to Practice & Registration discussion forum. We are seeking feedback on the experience so far and input on future directions for communities of practice on other topics in professional regulation. We welcome feedback from those who have contributed posts, those who have followed/ read the posts, and anyone else who wishes to share thoughts on future directions for communities of practice.

COMPLETE THE SURVEY

All responses are anonymous.

Thank you in advance for your time and feedback!

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Issuu converts static files into: digital portfolios, online yearbooks, online catalogs, digital photo albums and more. Sign up and create your flipbook.