Professional discipline allegations are more art than science. Regulatory statutes usually provide little or no guidance for writing them. But whether you call them allegations, charges, citations, complaints or something else, observing a few simple rules can make your discipline process smoother, fairer and faster.
Why do we need allegations anyway? Can't we just use the complaint letter?
Professional discipline proceedings often start with a complaint letter. Complaint letters sometimes suggest specific misconduct by the member, but more often they are too short and vague or too long and voluminous for the reader to determine the specific issues. In other cases there may not be a complaint letter at all. Many regulatory statutes permit the Regulator to commence proceedings if they have grounds to believe a member has committed unprofessional conduct. Regulators generally have broad discretion to investigate any aspect of the member's conduct, including new issues discovered during the investigation. Professional discipline allegations distill all of the available information and provide the member with fair notice of the case they have to meet. A discipline allegation enables the member to:
- Know what is being alleged;
- Avoid being taken by surprise at the hearing;
- Effectively participate in the hearing; and
- Fully and adequately defend him or herself.
What should the allegation say?
A well-written professional discipline allegation has two key elements:
- A statement of the material facts that are alleged to have occurred;1
- A statement of the legal conclusion to be drawn from those facts, i.e. that the conduct amounts to unprofessional conduct,2 as defined by the governing statute.
Although professional discipline allegations are very important, it is not necessary to write them with the same level of precision as a charge under the Criminal Code. Professional discipline allegations are judged by a standard of adequacy, not perfection. Their primary purpose is to give adequate notice to permit affected persons to know how they might be affected and to prepare adequately to respond.3
The facts must enable the member to appreciate the true nature of the alleged wrongdoing and to compare the alleged facts with his or her own conduct. For example, an allegation cannot simply allege incompetence in the provision of professional services. Such a bald assertion of wrongdoing would be impossible to defend and unfair to the member. On the other hand putting too many facts into an allegation can be risky. The regulator generally needs to prove all of the facts stated in an allegation. If the evidence only proves some of the facts stated in an allegation then the allegation could be dismissed.
The legal conclusion, i.e. that the alleged facts constitute unprofessional conduct under the governing statute can be stated as part of each allegation, or stated generally in reference to all of the allegations together. In some cases, where a member is alleged to have breached a specific statutory or professional requirement, it may be necessary to give "particulars" by referring to that requirement in the allegation. In other cases where the member's conduct has not breached a specific requirement it is usually sufficient to state the material facts and that the conduct was unprofessional conduct under the governing statute.
Do professional discipline allegations have any other purposes?
In addition to giving the member notice of the case they have to meet, professional discipline allegations have several other important purposes. Professional discipline allegations:
- Delineate the scope of the required disclosure to the member;
- Define the issues and the relevance of evidence that should be admitted at the hearing; and
- Limit the findings that can be made by the Discipline Tribunal at the hearing.
Professional Regulators are generally required to disclose all evidence that may be used to prove the discipline allegations and all evidence that may assist the member in his or her defence of those allegations, even if the Regulator does not intend to use it. The allegations are therefore an important guide in determining what should be disclosed.
Professional discipline allegations also define the scope of admissible evidence. Only evidence that is related to the allegations should be admitted at the hearing. Evidence that relates only to other issues may be treated as inadmissible. Such evidence is likely to have an unfair prejudicial effect on the Discipline Tribunal's perception of the member.
Lastly, allegations limit the findings that the Discipline Tribunal can make. Discipline Tribunals exercise authority delegated to them by the governing statute. A Discipline Tribunal cannot find the member guilty of an allegation that has not been referred to a hearing on proper notice to the member. That would be unfair. For example, a Discipline Tribunal that dismisses a charge of professional misconduct cannot find the member guilty of incompetence instead.4 Regulatory statutes have different ways to address new issues that arise at the hearing, but they always require time and proper notice to the member before he or she will be required to respond.
The statute says I have to give particulars of the alleged wrongdoing. Can I get help drafting the allegations?
Some regulatory statutes require an official such as a Complaints Director, Hearings Director, Registrar, Investigative Committee or some other official to refer matters to a hearing and give particulars of the conduct in respect of which the hearing will be held. This permits the official to obtain legal assistance to draft the charges.5
It is a good idea to have legal counsel review the results of the investigation and draft or provide comments on the allegations. Legal counsel can identify potential challenges in prosecuting the allegations and they can suggest revisions likely to make the hearing smoother and more efficient.
Tips for Drafting Allegations
- Review the investigation report and define each aspect of the member's conduct for which an allegation of unprofessional conduct could be made;
- Prepare the allegations based on the key conduct that is a concern, distilling the allegation to the key elements you intend to prove at the hearing;
- Consider whether you need to provide further detail by listing "particulars";
- Be sure the allegations or the notice generally states that the conduct was unprofessional conduct under the governing statute;6
- Consider seeking legal advice about the wording of the allegations, the need for any particulars and the sufficiency of the evidence to prove unprofessional conduct as defined by the governing statute.
1 Violette v. New Brunswick Dental Society (2004), 267 N.B.R. (2d) 205 (C.A.)
2 Or professional or occupational misconduct, unskilled practice, conduct deserving of sanction, etc.
3 Del Bianco v. Alberta Securities Commission (2004), 334 W.A.C. 361 (Alta C.A.) at para 11.
4 Sheddy v. Law Society of British Columbia (2007), 392 W.A.C. 121 (B.C.C.A.)
5 Reddy v. APEGBC, 2001 BCCA 237
6 Or whatever term is used in the governing statute: professional or occupational misconduct, unskilled practice, conduct deserving of sanction, etc.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.