CNAR's NETWORK NEWS e-MAGAZINE Issue 02 . Winter 2023

NETWORK

NEWS CONTINUOUSLY CONNECTING CANADIAN REGULATORS ISSUE 02 | WINTER 2023

IN THIS ISSUE 1. From the CNAR Board Chair and CNAR’s Executive Director 2. Member Renewals and Joining CNAR 3. CNAR 2023 4. Upcoming 2024 Events 5. CNAR Career Opportunity

6. CNAR’s 20th Anniversary 7. New Master Class Event Briefs 8. CNAR Committee Opportunities 9. Partner News 10. Community Corner 11. Job Bank

From the CNAR Board Chair and CNAR’s Executive Director By Alice Kennedy, CNAR Board Chair & Alyson Gaffney, CNAR Executive Director

2023: CNAR’S YEAR IN REVIEW As we reach the end of CNAR’s 20th Anniversary Year, it is our pleasure to share with you some of our 2023 milestones.

We preface this summary with our gratitude. CNAR would not be celebrating these achievements without the support and engagement of our membership, Board, Partners, volunteers, event speakers, sponsors, dedicated staff and others in our community who have helped to build CNAR and continue to faithfully contribute to our continued success. CNAR kicked off 2023 with our annual winter workshop series. A session on Governance Modernization featured renowned regulatory advisor, Harry Cayton; and our workshop on Board Culture was led by Governance Solutions. We also introduced a new programming initiative, CNAR’s UnLearn and Learn series to support the regulatory community in its ongoing journey in DEI, as well as truth and reconciliation. During our first UnLearn and Learn, TransFocus Consulting helped us to better understand gender diversity and inclusivity; in the fall, we learned more about 2  CNAR NETWORK NEWS | ISSUE 02

how a Canadian regulatory body turned their commitment to truth and reconciliation into an actionable plan. CNAR’s corporate Partnership Program also welcomed two new organizations: World Education Services and GlickLaw. With the expertise of our best-in-class Corporate Partners, we are able to provide the community with additional educational opportunities throughout the year, as well as during our spring and fall workshop series. This year, our Partner workshops tackled such topics as human rights issues for professional regulators; DEI in testing; navigating conflict in investigations; off-duty conduct; a regulator’s role in mental health and wellness; academic credential evaluations; designing a performance framework; and more. CNAR also hosted our inaugural virtual International Symposium, featuring speakers from America, U.K., Australia, and New Zealand, who explored such top topics in regulation as A.I. and compassionate regulation. This event, together with our ever-popular Virtual Discussions, eBooks, white papers, and event briefs helped us to offer many opportunities for professional development

and strengthen our continuous connection with the Canadian regulatory community in 2023. In addition, CNAR launched a new Research Program last winter with the intent of furthering knowledge and excellence in professional regulation. We look forward to sharing the findings by Dr. Tracey L. Adams, Professor, Department of Sociology, Western University and Dr. Kathleen Leslie, Associate Professor, Faculty of Health Disciplines, Athabasca University on Public Interest Regulation in a Digital Age: Challenges and Opportunities next year. Mid-year, we opened applications to join our Board of Directors, generating interest from 25 extremely qualified applicants. This year, CNAR’s Board further diversified - professionally and geographically - to better understand and serve the needs of regulators from coast to coast. Our dedicated volunteer Board has been very active this year in setting CNAR’s overall direction with the development of our new three-year strategic plan. CNAR looks forward to launching the operational initiatives generated by the strategic plan in 2024, commencing with the launch of a comprehensive member learning needs research initiative. The Board also significantly strengthened our governance policies to better align with CNAR’s 2022 by-laws, while ensuring due diligence in further establishing and maintaining effective corporate governance practices. We closed out the summer with the launch of our new online magazine format of Network News, which we look forward to expanding with additional interviews with the community in 2024.

In the last quarter of the year, we hosted CNAR 2023, our annual national conference event. Taking place both online and in Vancouver, BC, CNAR hosted over 900 delegates – making it the largest CNAR Conference in our history! The Conference kicked off with Rick Mercer, whose keynote was infused with extraordinary energy, humour, and wit. Conference delegates appreciated the compelling program, enjoyable venue, as well as networking with other Canadian regulatory bodies and organizations from across the nation. We encourage you to take a moment to read the Master Class briefs on A.I. and Truth Reconciliation that were generated from the conference on the CNAR portal. Also, be sure to mark your calendars for CNAR 2024, which will be hosted in Ottawa from October 7th to 9th, and consider submitting a speaking proposal before the March 18th, 2024 deadline.

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When we refer to “community,” we truly mean it; even with our considerable growth of 30 per cent in membership and 93 per cent participation in our program offerings in 2023, the CNAR community still operates as a large family. Thank you for being a part of it and for making our 20th Anniversary year a resounding success. We wish you a safe and happy holiday season and look forward to seeing you next year. Sincerely,

Alice Kennedy CNAR Board Chair

Alyson Gaffney CNAR Executive Director

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TABLE OF CONTENTS From the CNAR Board Chair and CNAR’s Executive Director 2 Member Renwals and Joining CNAR 5 CNAR 2023 8 Upcoming 2024 Events 11 CNAR Career Opportunity 18 CNAR’s 20th Anniversary 20 New Master Class Event Briefs 22 Partner News 23 Community Corner 41 Job Bank 42

Member Renewals and Joining CNAR RENEW OR JOIN CNAR BEFORE JAN. 1ST, 2024!

Renew today! All membership renewals are due before January 1st, 2024; be sure to renew now and keep your membership in good standing in preparation for another great year with CNAR!

ORGANIZATIONAL* (NOT-FOR-PROFIT)

For regulatory bodies or not-for-profit organizations involved in or supporting regulation. The Organizational Level provides the opportunity for you and your employees to enjoy the many benefits of CNAR, including:

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Opportunity to submit articles in CNAR’s quarterly newsletter, Network News

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Ability to exchange ideas at hot topic virtual discussions at no charge ($50 admission for non-members)

Eligible to serve on critically important committees that help define CNAR’s content, including the Education Program Advisory Committee and Conference Planning Committee

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Ability to feature your organization’s logo on CNAR’s website

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Opportunity to enhance your professional development and further your knowledge of self regulation by continuously connecting and learning from both experts and diverse peers from across Canada

Regulatory bodies at the Organizational level also have the potential to be a voting Member at the CNAR AMM, subject to Executive Director review and approval in accordance with CNAR’s bylaws. Please review the bylaws HERE.

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Discounts on all CNAR events, including the Annual National Conference

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Complimentary access to valuable memberonly resources including eBooks, white papers, commissioned research, survey results, event briefs (Master Class, International Symposium) and Virtual Discussion replays (replay rentals for non-members: $50)

Pricing: • $750 (1-9 Employees)

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Access to member-only events and early access to registration for the Annual National Conference

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Full access to CNAR’s Job Bank (job posting for non-members: $150)

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Access to CNAR’s Community Discussion Forums to discuss regulatory hot topics, share information, request referrals, and more

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Opportunity to share your stories of success or lessons learned with the regulatory community through speaking opportunities at virtual discussions

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$1,260 (Unlimited! 10+ Employees)

Employees are added to the CNAR portal as “members.” All members must be from the same organization and have a consistent email suffix. Board and Council representatives can be included on your account as members if their email suffix is consistent with the Organization. Pricing is based on the total number of full-time employees in your organization. Renewals are due every January 1st and fees are not prorated. All fees are subject to applicable taxes.

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INDIVIDUAL* (NOT-FOR-

PROFIT/FOR-PROFIT/OTHER) As a sole proprietor, a retiree, independent consultant or the Registrar of a small regulatory body, the Individual level ensures you still have access to the many benefits of CNAR including: •

Ability to exchange ideas at hot topic virtual discussions at no charge ($50 admission for non-members)

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Opportunity to enhance your professional development and further your knowledge of self regulation by continuously connecting and learning from both experts and diverse peers from across Canada

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Discounts on all CNAR events, including the Annual National Conference

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Complimentary access to valuable memberonly resources including eBooks, white papers, commissioned research, survey results, event briefs (Master Class, International Symposium) and Virtual Discussion replays (replay rentals for non-members: $50)

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Access to member-only events and early access to registration for the Annual National Conference

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Full access to CNAR’s Job Bank (job posting for non-members: $150)

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Access to CNAR’s Community Discussion Forums to discuss regulatory hot topics, share information, request referrals, and more

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Opportunity to share your stories of success or lessons learned with the regulatory community through speaking opportunities at virtual discussions

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Eligible to serve on critically important committees that help define CNAR’s content, including the Education Program Advisory Committee and Conference Planning Committee

Individuals are not eligible to vote at the CNAR AMM in accordance with CNAR’s bylaws. Please review the bylaws HERE. Pricing: • $500 (one single, non-transferable seat in the CNAR portal) Renewals are due every January 1st and the fee is not prorated. Fee is subject to applicable taxes.

SUPPLIER* (FOR-PROFIT) For-profit Suppliers have the opportunity to enjoy the many benefits of CNAR including:

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Access to CNAR’s Community Discussion Forums to discuss regulatory hot topics, share information, request referrals, and more

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Ability to exchange ideas at hot topic virtual discussions at no charge ($50 admission for non-members)

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Opportunity to enhance your professional development and further your knowledge of self regulation by continuously connecting and learning from both experts and diverse peers from across Canada

Opportunity to share your stories of success or lessons learned with the regulatory community through speaking opportunities at virtual discussions

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Access to sponsorship prospectus for Annual National Conference prior to public distribution

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Discounts on all CNAR events, including the Annual National Conference

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Complimentary access to valuable memberonly resources including eBooks, white papers, commissioned research, survey results, event briefs (Master Class, International Symposium) and Virtual Discussion replays (replay rentals for non-members: $50)

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Access to member-only events and early access to registration for the Annual National Conference

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Full access to CNAR’s Job Bank (job posting for non-members: $150)

Suppliers are not eligible to vote at the CNAR AMM in accordance with CNAR’s bylaws. Please review the bylaws HERE. Pricing: • $2,000 / year per organization for a maximum of five employees from the same organization (email suffixes must be consistent) to be added to the CNAR portal as “members.” Member seats are non-transferable, but can be reassigned annually upon renewal. Renewals are due every January 1st and fee is not prorated. Fee is subject to applicable taxes. Suppliers can purchase more than one Supplier package.

INTERESTED IN JOINING CNAR? TO COMPLETE A MEMBERSHIP APPLICATION, CLICK THE BUTTON BELOW. JOIN CNAR

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CNAR 2023 Annual National Conference THANK YOU FOR JOINING US!

CNAR 2023 Celebrates Largest Conference to Date CNAR’s 16th Annual Conference welcomed over 900 delegates from coast to coast both online and in stunning Vancouver, British Columbia - setting yet another record for CNAR attendance! This year’s Conference was particularly special, as CNAR also celebrates its 20th Anniversary year. CNAR 2023 addressed timely issues for regulators, with sessions on truth and reconciliation; diversity and inclusion; human resources; discipline; investigations; testing; governance; quality practice and continuing competence; performance measurement; and hot topics.

In the spirit of celebration, CNAR was extremely pleased to feature Rick Mercer, one of Canada’s most famous comics, who kicked off the in-person Conference on October 17th. His keynote entitled, Talking to Canadians, was inspired by his memoir of the same title.

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We are so grateful to work with amazingly dedicated organizations and volunteers who have helped make CNAR a go-to resource for the Canadian regulatory community,” said Alyson Gaffney, Executive Director, CNAR. “The Conference has evolved over the years to become a mustattend event in Canadian regulation for networking, developing best practices, and learning that contributes to our shared goal of regulatory excellence.”

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CNAR also brought back our very well received CNAR TV, which featured livestream interviews during meals and breaks. All CNAR TV segments, as well as the regular session programming, are now available for replay to both virtual and in-person delegates until January 26th 2024.

CNAR was very honoured to welcome delegates from across the nation to this very memorable Conference event.

FROM THE CNAR STAFF & BOARD, WE THANK OUR PARTNERS, SPONSORS, SPEAKERS, AND ATTENDEES FOR MAKING CNAR 2023 SUCH A SUCCESS!

“CNAR continues to be the go-to place for the latest view of what Canadian regulators are doing. I was blown away by the innovations and quality of work that was on display. Professional regulation is in good hands!”

“I have been going to conferences nationally and internationally for over 40 years and this was one of the best I have attended. Thank you.”

“Incredibly dynamic and well-organized conference.The offerings were relevant and revelatory. Brava.”

All quotes are unedited and pulled directly from CNAR 2023 feedback survey.

THANK YOU TO OUR TOP-LEVEL SPONSORS

Premier Sponsor

Platinum Sponsors

Gold Sponsors

Networking Reception

Thanks to Daniel Roukema and MDR Strategy Group for featuring CNAR 2023 in their most recent issue of The Registrar.

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2024 Events CNAR 2024 ANNUAL NATIONAL CONFERENCE: CALL FOR SPEAKERS NOW OPEN!

Secure your speaking slot at the premier event in Canadian professional self-regulation! CNAR is currently seeking speaking proposals for its 17th Annual National Conference, which will take place October 8th and October 9th, 2024 online and in Ottawa, Ontario. (Conference workshop programming will be offered on October 7th.) CNAR 2024 is committed to presenting diverse topics and learning opportunities for both beginner and advanced regulators from all across Canada. CNAR welcomes speakers who can share their experience in professional self-regulation, whether groundbreaking successes or crises that resulted in lessons learned. Proposals from both within and outside CNAR’s member and Partner community are welcome. Please go to www.cnar-rcor.ca to review the guidelines and submit your proposal.

The deadline to submit a proposal is Monday, March 18, 2024.

Planning to host your AGM or staff meeting at CNAR 2024? Contact Alana Coleman, Director, Communications and Member Services at acoleman@cnar-rcor.ca to inquire about securing meeting space at our host hotel.

JANUARY 18, 2024 VIRTUAL DISCUSSION EVENT

On January 18, 2024, CNAR will hosting its first virtual discussion event of the year on international mobility and professional registration. A panel of thought leaders from the regulatory community will explore trends, initiatives, challenges, and opportunities in international labour mobility and professional registration.

This event will be free to all CNAR Members, Partners, and Suppliers and $50/person for nonMembers. Registration will open in early January; be sure to bookmark www.cnar-rcor.ca to stay in the know! CNAR Virtual Discussion events serve to connect the professional regulatory community on a regular basis to discuss hot topics in a relaxed atmosphere.

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CNAR’s 2024 Winter Workshop Series: Achieving Regulatory Excellence in Dynamic Times REGISTRATION NOW OPEN Regulators across Canada and around the world are facing a myriad of pressures, shifts, and changes on many fronts. Domestic and international mobility, calls to action for social responsibility, legislative changes and restructuring, artificial intelligence and technology advancements, and more are impacting regulators across professions. Join CNAR this winter for three workshops that support the professional development of regulators striving for excellence in these dynamic times. With a speaker roster of experts and peers from Canada and abroad, this workshop series will feature right touch regulation, risk management, and regulatory leadership. All workshops will take place virtually on an online platform. The three workshops will be available a la carte or as a bundle. See below for detailed descriptions of each workshop. Members, Partners, and Suppliers can also enjoy discounted pricing.

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PRICING IS PER PERSON, PER WORKSHOP • Members, Partners, and Suppliers: $160 • Non-Members: $200

WORKSHOP BUNDLE – 15% DISCOUNT! (PER PERSON ADMISSION TO ALL THREE WORKSHOPS)

• Members, Partners, and Suppliers: $408 • Non-Members: $510 REGISTER

Workshop 1. Right Touch Regulation in Action Date:    Thursday, February 1, 2024 Time:    11:30 AM–3:15 PM ET Venue: Virtual (link to be provided to registrants closer to the event date) Right touch regulation principles were identified over a decade ago. How can regulators review their processes to align to the principles? What concrete actions can regulators take to more closely embody the principles in practice? In these dynamic times, how can regulators use the principles to support change management? What does the future hold? Dr. Alan Clamp, CEO, Professional Standards Authority, UK, will open the workshop with a presentation titled, ‘The Future of Right Touch Regulation: What Do We Keep and What Do We Change?.’ Dr. Clamp will consider the right touch principles and application of the right touch assurance model for regulation based on the risk of harm. He will explore the need for regulation to evolve and address new risks; he will also discuss how right touch principles can remain impactful - while major changes in the regulatory landscape demand the evidence base for right touch assurance be kept under review. Dr. Clamp will also address refocusing of regulation on the right issues and using regulation to prevent harm. He will make the case that this will produce a more compassionate model of regulation and reduce the fear of regulation, as well as contribute to more positive workplace cultures. Finally, Dr. Clamp will highlight the inherent risks associated with regulators operating in a vacuum, and the full benefits of regulation through collaboration. This session will also feature an interactive Q & A. In the second part of the workshop, Joy Peacock, Andrew Douglas, and Elisha Vadnais from the College of Registered Nurses of Alberta (CRNA) will lead an interactive session, ‘Achieving Regulatory Excellence Through the Framework of Right Touch Regulation.’ The presenters will take a deep dive sharing the model used by the CRNA for undertaking a right touch regulation review along with:

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lessons learned from the review process;

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insights about what it means to demonstrate right touch regulation principles in regulatory practices and operations; and

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decisions and actions taken to be more aligned with right touch regulation principles.

The approach and methods employed by the CRNA to bring right touch principles to the forefront of decision-making and measurement can be adopted by any regulatory body in the pursuit of high standards of excellence in regulation. This component of the workshop will include a presentation, small breakout group discussion (optional), and Q & A. A panel of members from the regulatory community engaging in discussion about right touch principles and change management will follow. Attendees will also have the opportunity to engage with the panelists in a Q & A.

Dr. Alan Clamp

Chief Executive Professional Standards Authority Alan Clamp is the Chief Executive of the Professional Standards Authority for Health and Social Care (PSA) in the United Kingdom. The PSA promotes the health, safety and wellbeing of patients, service users and the public by raising standards of regulation and voluntary registration of people working in health and care. Alan was previously the Chief Executive of the Security Industry Authority (SIA). The SIA is a public body established under the Private Security Act 2001 to regulate private security in the UK. Between 2011-2015 Alan held the post of Chief Executive at the Human Tissue Authority (HTA), an independent regulator sponsored by the Department of Health. In addition to his role at the PSA, Alan is a Non-Executive Director at the Parole Board and the Intellectual Property Regulation Board, and a Trustee of the Institute of Regulation.

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Joy Peacock

CEO and Registrar College of Registered Nurses of Alberta (CRNA) Joy Peacock is the CEO and Registrar at the College of Registered Nurses of Alberta (CRNA), the regulatory body of Alberta’s 40,000 registered nurses and nurse practitioners (NPs). Her experience leading large, diverse groups through complex change has provided policy and regulation oversight, program development, and innovative changes to healthcare regulation at both the provincial and national levels. Joy is known for challenging the status quo. For many years, Joy worked in various clinical practice areas and went on to hold healthcare leadership positions in Ontario, BC, Yukon, and Alberta. In the Yukon Territory, Joy was responsible for introducing the regulation and implementation of NPs into the healthcare setting. Prior to CRNA, Joy served as Executive Director of two provincial nursing organizations; one in the Yukon and the other in British Columbia. In these roles, she led organizations through formal health-care leadership, business development, continuous quality improvement, risk management, and policy development. She was a founding director on the Board of the BC Coalition of Nursing Associations. The coalition is the primary access point for government, health authorities and other healthcare bodies to seek advice, policy direction and collaboration with the nursing and healthcare community. Joy currently serves on the board of the Canadian Council of Registered Nurse Regulators (CCRNR) and the Executive Committee and board of the Alberta Federation of Regulated Health Professionals.

Andrew Douglas

Executive Director, Governance, Regulation, Standards and Practice College of Registered Nurses of Alberta (CRNA) Andrew Douglas is a senior health leader with over 17 years of experience in Alberta’s health system. Andrew has extensive knowledge of governance, health policy, strategic planning and the legislative process. In his current role as Executive Director, Andrew is responsible for supporting the College Council, which includes taking a lead role on governance operations, implementation and optimization initiatives. Andrew is also responsible for leading regulatory and professional practice initiatives, as well as other special projects at the College of Registered Nurses of Alberta.

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Prior to joining CRNA, Andrew worked for the Government of Alberta for close to 15 years. His most recent posting in government was the Director of the Health Professional Regulation Unit at Alberta Health. In this position Andrew was responsible for leading the development and implementation of legislation and regulation that had a direct impact on health professional regulatory organizations. Andrew also has experience in addiction and mental health policy, where he was responsible for leading legislation and provincial strategy development when he was a manager in the Addiction and Mental Health Branch at Alberta Health.

Elisha Vadnais

Governance Policy Lead College of Registered Nurses of Alberta (CRNA) Elisha Vadnais, MScN, BScN, RN, is a registered nurse who currently works as the governance policy lead at the College of Registered Nurses of Alberta (CRNA). Her work is focused on governance optimization including Council professional development, continuous improvement strategies, and policy development. Elisha has expertise in organizational wide assessment and evaluation strategies, including utilization of right-touch regulation. Her work has also included policy development of professional standards, regulatory committee optimization, and has a developing research portfolio on professional regulation and governance. Elisha has significant experience and expertise in the scholarship of teaching and learning (SOTL) and has presented at multiple national and international conferences, as well as a past recipient of research grants and a SOTL fellowship. Elisha, along with a team from the CRNA, are recipients of the Council for Licensure, Enforcement and Regulation (CLEAR) regulatory excellence team award. Elisha has a passion for inclusivity, diversity, equity, and accessibility, and sits on multiple provincial, and international committees related to advancing this work within professional regulation.

Workshop 2. Effective Risk Management in Changing Times Date:  Wednesday, February 28, 2024 Time:  11:30 AM–2:30 PM ET Venue: Virtual (link to be provided to registrants closer to the event date) In the work of regulators risk management is essential. How do regulators perceive, assess, and manage risk? What approaches can regulators take to more effectively address risks in the professions they regulate in these dynamic times? How can regulators navigate traditional risk-focused approaches with opportunities for innovation? Do pressures for change create risks or opportunities for innovation? Dr. Mark Fleming, Professor, Department of Psychology, Saint Mary’s University in Halifax, Nova Scotia, will open this workshop with an interactive session titled, ‘Risk: Perception, Assessment, and Management.’ Drawing on his background in psychology and work with highrisk industries (e.g., atomic energy) as well as in health professions, Dr. Fleming will explore understandings of risk. He will present a model for how regulators of health and non-health professions can take a systematic approach to identify, assess, and manage the risks they regulate. Dr. Fleming will also address how a systematic approach can help regulators to communicate with stakeholders about how their processes mitigate risks. He will also prompt critical reflection on how regulators’ approaches to risk management can better adapt to change and influence outcomes

for public protection. This session will include a presentation, small group discussion (optional), and Q & A. In the second part of the workshop, a panel from the regulatory community will discuss risk and innovation in professional regulation. Panelists will explore challenges, tensions, and opportunities between risk and innovation for the public interest. Attendees will have the opportunity to engage with the panelists during the closing Q & A.

Mark Fleming

Professor Department of Psychology, Saint Mary’s University Dr. Mark Fleming, PhD, is a Professor in the Department of Psychology at Saint Mary’s University in Halifax, Nova Scotia. He has just completed a five-year term as the CN Professor of Safety Culture. Dr. Fleming is an applied psychologist with nearly 30 years of experience working to enhance safety culture in a range of safety critical industries, including the offshore oil and gas, nuclear power, petrochemical, power generation and construction. He advises regulators (e.g., Canadian Energy Regulator, US Department of Transport, UK nuclear regulator) and large organizations on safety culture assessment and improvement. He is dedicated to developing practical and valid tools to assist organizations to prevent harm. He holds degrees from the University of Aberdeen, and The Robert Gordon University in Scotland.

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Workshop 3. Impactful Leadership in a Dynamic Regulatory World Date:  Wednesday, March 20, 2024 Time:  11:30 AM–2:30 PM ET Venue: Virtual (link to be provided to registrants closer to the event date) What are the implications of a dynamic environment on professional regulatory leadership? How must regulatory leadership evolve to ensure regulators of professions continue to be effective and relevant in the future? What leadership qualities and competencies are needed for impactful regulatory governance in dynamic times? Dr. Mike Saks, Emeritus Professor at the University of Suffolk, UK, and Honorary Professor at the University of Lincoln and the University of Westminster, UK and the University of Toronto, Canada, will open the workshop with a session on ‘Responsible Leadership, Professions, and the Public Interest.’ Dr. Saks’ presentation will be informed by his extensive research and work with regulators, governments, universities, and corporations in the United Kingdom and globally, as well as with the United Nations as Chair of the Institute for Responsible Leadership. During this session, he will unpack and explore different interpretations of responsible leadership and what good governance practices for regulators acting in the public interest can look like. Attendees will be invited to reflect on their own leadership philosophies and styles, while exploring opportunities for responsible leadership and the enhancement of effective regulation in the public interest. This session will include a presentation, group discussion, and Q & A. In the second part of the workshop, a panel from the regulatory community will discuss leadership styles in professional regulation for changing times. Panelists will explore leadership qualities and competencies needed for effective regulatory governance in times of dynamic change and consider future directions for regulatory leadership. Attendees will have the opportunity to engage with the panelists during the Q & A.

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While all in the regulatory community are welcome, this workshop may be of particular interest to management and senior management of regulatory bodies, Board/ Council members of regulatory bodies, and senior staff who support Boards/Councils.

Mike Saks

Emeritus Professor University of Suffolk, UK, Visiting Professor University of Lincoln, UK, University of Westminster, UK, and University of Toronto, Canada Chair of the UN-endorsed Institute for Responsible Leadership

Dr. Mike Saks is Emeritus Professor at the University of Suffolk and Visiting Professor at the University of Lincoln and the University of Westminster, UK, and the University of Toronto, Canada. He was previously Visiting Professor at the Royal Veterinary College, University of London, Plymouth Marjon University and the University of Essex, UK. In 2018 he became Honorary Senior Adviser on Leadership to the United Nations (UN) and co-founder of the UN-endorsed Institute for Responsible Leadership (IRL). He is an appointed member, and only UK representative, on the World Health Organization Technical Expert Group on Global Health Practitioner Regulation. He is a current Fellow of the Institute of Directors, the Institute of Knowledge Exchange, Rose Bruford College of Theatre and Performance, the Research Council for Complementary Medicine and the Royal Society of Arts. Internationally, he was President of the International Sociological Association (ISA) Research Committee on Professional Groups and, most recently, Vice President of the ISA Research Committee on Health. He is a Board member of several top international journals, including the Journal of Professions and Organization (Oxford University Press) – on which he is now Associate Editor. He also has a strong enterprise profile as a member of the Innovation Council, along with Chief Executives of major multinational corporations, and as a research adviser on corporate governance to Grant Thornton. In addition, he has been a chair/member of many health committees in the National Health Service and elsewhere at all levels – covering areas from the changing healthcare workforce to research and development. He has frequently advised professions and governments internationally on health and other matters – recently producing the commissioned Saks Report in 2021, charting a five-year strategic direction for the Royal College of Podiatry.

Mike Saks received his PhD in Sociology from the London School of Economics in 1985, where he also taught. He has held a university Chair since 1992. He was previously Provost/Chief Executive at University Campus Suffolk, Deputy Vice Chancellor at the University of Lincoln and Dean of Faculty of Health and Community Studies at De Montfort University – after contributing extensively to the Schools of Business, Law, Public Administration and Social Sciences there. He has just stepped down as a long-term Board member at Rose Bruford College in London, having earlier served on the Executive of the University of Essex and University of East Anglia. His successful career in universities has included receiving Times Higher Education awards for Widening Participation University of the Year and Outstanding Leadership and Management Team of the Year. He has given keynote presentations worldwide, from Argentina, Australia and Azerbaijan to Italy, Japan and South Africa, as well as addressing diplomats and ambassadors at the UN in Geneva. He has participated in funded research with partners spanning from the Russian Academy of Sciences in Moscow to the University of Toronto in Canada, where he received the Best Brains Exchange Award in 2014 from Health Canada and the Canadian Institutes of Health Research. Recent invited global visiting roles include the University of California in the United States and Wuhan University in China, in addition to membership of the Advisory Council of the School of Creative Arts in Ghana.

During his career Mike Saks has published over one hundred high-profile journal articles and chapters on health, leadership, professions, regulation and research methods, as well as some two dozen edited and single authored books on these subjects with top publishers including Oxford University Press, Routledge and Sage. He is series co-editor with Policy Press/Bristol University Press on the Sociology of Health Professions: Future International Developments. His latest books with Routledge – following his monograph on Professions: A Key Idea for Business and Society (2021) – are the volumes he has edited on Responsible Leadership: Essential to the Achievement of the UN Sustainable Development Goals (2023) and the National Health Services of Western Europe: Challenges, Reforms and Future Perspectives (2024). The former book was written in a unique partnership between the United Nations Institute for Training and Research (UNITAR) and the IRL, which he currently chairs. It includes twenty chapters by top-ranking contributors on issues ranging from corporate social responsibility, cybersecurity, ethics, education and responsible innovation to climate change, health, inequality, labour trafficking, diversity, and youth and social media. As part of his role with the IRL and UNITAR, he also coordinates and fronts up a series of online webinars which go out to many countries in the Global North as well as the Global South.

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CNAR IS HIRING!

CNAR Career Opportunity: Event and Marketing Specialist If you are interested in joining the CNAR team as our new Event and Marketing Specialist, we want to hear from you! CNAR hosts virtual offices in various cities and welcomes candidates from across the country. Please take a moment to review the job description and share it with your network! The Role:

Reporting to Alana Coleman, Director of Communications and Member Services, the Event and Marketing Specialist will be responsible for creating, planning, and implementing marketing programs and playing a key role in managing events, including CNAR’s Annual National Conference. As our ideal candidate, you bring to the table a high-level of expertise in digital marketing and event management. You’re a dynamic and creative selfstarter, can think on your feet, have excellent writing skills, and a ‘can-do’ attitude.

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Main Responsibilities:

Events (in-person, virtual, and hybrid): • Play a key role in driving the success of all CNAR events through innovative event creation, management, and execution. •

Develop efficiencies to ensure in-person, virtual, and hybrid events run smoothly.

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Analyze current event trends and technologies to ensure efficiencies and best-in-class service.

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Collaborate with a variety of stakeholders including members, speakers, sponsors, and partners.

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Look for creative solutions that contribute to event growth and ensure the highest quality experience for every delegate, whether in person or virtual.

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Manage sponsorship opportunities at our annual national conference; look for creative program growth; and own the success of sponsor involvement at the event.

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Support management of external contractors with our event platform provider, graphic designers, and others.

Marketing: • Develop strategies and implement creative digital marketing programs to engage with our membership and keep them up to date on CNAR programs. •

Create opportunities to fully leverage CNAR’s digital presence including the website, member portal, e-marketing, and social media platforms.

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Leverage knowledge in trends and digital marketing to deepen community reach and strengthen engagement with membership.

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Work closely with the Director of Marketing and Communications in creating strategies to increase, retain, and engage membership.

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Knowledge of Windows and Google applications (Excel, Word, Power Point, Adobe, Google Drive), virtual meeting applications (Zoom and Teams).

•

Create tools and analyze metrics to create reports on the effectiveness of CNAR’s digital marketing programs.

•

Advanced oral and written communication skills.

•

Excellent organizational and time management skills.

•

Apply experience in WordPress, WiX and other web tools to produce and maintain website content and ensure a smooth and efficient user experience.

•

Proactive interest in business strategy, trends, and operational effectiveness.

•

Support CNAR’s member services and retention programs with innovative and effective marketing campaigns.

•

An outgoing and service-oriented personality with the ability to cultivate and maintain positive relationships.

•

High level problem-solving skills and a strong initiative to identify and fix gaps in processes.

•

Bilingual (French/English) is considered an asset.

•

Knowledge of basic graphic design tools is an asset.

•

Experience supporting members in an association is an asset.

Other: • Other duties as required.

What you bring: •

5+ years of professional experience - preferably working in a multi-stakeholder environment - in an event management role.

•

Post-secondary degree, diploma or certificate in event management, communications, and/ or marketing, or an equivalent combination of education and experience.

•

Ability to create project management plans and execute them effectively on time and on budget.

•

Advanced experience in digital marketing, website management, and content updating (WiX, WordPress).

•

A proven track record in executing successful events.

•

Attention to detail, with an eye for event attendee experience and production.

•

Ability to thrive in a virtual work environment while also being collaborative and a strong team player.

Compensation: •

$75K + opportunity for year-end bonus.

•

Benefits (vision, dental, health).

HOW TO APPLY:

Please submit your resume with a cover letter that outlines how your skills and experience meet our qualifications to our recruitment partner at careers@businesssherpagroup.com.

CNAR NETWORK NEWS | ISSUE 02   19

CNAR’s 20th Anniversary

NEW TRIVIA QUESTION NOW POSTED! It’s not too late to secure your place on the Leader Board and win a ticket to CNAR 2024! In celebration of CNAR’s 20th Anniversary year, we are posting trivia on our dedicated anniversary webpage at www.cnar20th.cnar-rcor.ca/. A new question is now available! Follow CNAR’s milestones to answer the trivia questions and qualify for a chance to win a ticket to our Annual National Conference next year in Ottawa! Submit your answers to CNAR20th@cnar-rcor.ca. We’ll be announcing the winner the second week of January, 2024. Good luck!

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Follow CNAR’s Journey CNNAR CORA

CORA

2000

2003

2006

2007

Engineers Canada and the Canadian Nurses Association discuss responding to changes to the Immigration Act. They invite other national associations of regulators to join and create the Coalition of Regulatoryrelated Agencies. The first meeting welcomes 14 national organizations.

“CNNAR” is born! CORA becomes the Canadian Network of National Associations of Regulators (CNNAR) to reflect the increasing need to address common issues at the national level.

CNNAR becomes a non-profit corporation under the Canada Corporations Act.

CNNAR hosts its first national conference! This is followed by annual educational events.

CNNAR

2012

2014

2015

2017

CNNAR holds its first conference outside of Toronto, Ontario and welcomes its largest number of attendees to date in Ottawa.

CNNAR is renamed the Canadian Network of Agencies for Regulation (CNAR) to embrace its growing membership. CNAR creates Communities of Interest for professional regulators to share information, best practices, and resources. CNAR adds investigations training to its roster of educational offerings.

CNAR launches its new website and self-serve member portal. The new site includes collaborative work spaces, searchable directories, event registration, a job board, and a survey tool.

CNAR introduces a more inclusive membership model in which provincial organizations from the not-for-profit sector become eligible to join CNAR. CNAR’s organizational membership more than doubles by the end of the calendar year. CNAR hosts its largest annual Conference to date, with almost 400 delegates attending the event in Halifax, Nova Scotia.

2018

2019

2020

2021

CNAR launches its Corporate Partnership Program, formalizing relationships with four key organizations.

CNAR Annual Conference, hosted in Quebec City, attracts almost 600 delegates from every province and territory in Canada.

CNAR introduces ‘virtual discussions’ open to the entire community to discuss the challenges presented by the pandemic. Virtual discussions evolve to become a staple of CNAR programming going forward.

CNAR deepens live virtual content offerings, launches eBooks, introduces a video library.

2022 CNAR launches a hybrid Conference format, attracting a combined number of delegates with both virtual attendees + inperson attendees on Prince Edward Island. CNAR 2022 also marks the first in Canada’s smallest province, demonstrating commitment to serving regulators nationwide.

2023

CNAR hosts an augural International Symposium, featuring speakers from the U.K., Australia, New Zealand, and the U.S. CNAR marks our 20th Anniversary celebration in Vancouver, BC with our largest conference ever!

New Master Class Event Briefs CNAR’s 2023 Master Class explored two important topics to help experienced Canadian regulators advance their professional development and learning. CNAR has prepared summary briefs on each session as resources for both workshop

attendees and the membership. For the benefit of offering an additional resource in truth and reconciliation for use in the entire community, the first brief is available for everyone to download.

ADVANCING YOUR JOURNEY IN TRUTH AND RECONCILIATION: TWO-EYED SEEING AND BUILDING RELATIONSHIPS

This workshop was held on October 16, 2023 in what is now known as Vancouver, British Columbia, which is acknowledged as the unceded traditional territories of the xʷməθkʷəy̓əm (Musqueam Nation), Sḵwx̱wú7mesh (Squamish Nation), and səlilwətaɬ (Tsleil-Waututh Nation). The workshop aimed to support regulators in advancing in their journeys of truth and reconciliation, recognizing that journeys are different and each is at their own place. Content focused on two-eyed seeing and building relationships with Indigenous communities. Please login to CNAR’s portal to download the brief from the workshop or go to www.cnar-rcor.ca.

DEMYSTIFYING AI FOR REGULATORY LEADERS

This workshop was held on October 16, 2023 in Vancouver, British Columbia. With rapid advancements in artificial intelligence (AI), the workshop aimed to help regulatory leaders better understand AI and current trends to monitor and explore some key issues and considerations in the application of AI to regulator’s practices and processes and in the practice of professions. Please login to CNAR’s portal to download the brief from this workshop. Access to this resource is exclusive to CNAR members, Partners, and Suppliers. To access this and CNAR’s full library of resources, join CNAR by completing an application at www.cnar-rcor.ca/joincnar.

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CNAR Committee Opportunities WE ARE RECRUITING! CNAR is now recruiting for new Committee members for both our Conference Planning Committee and Education Program Advisory Committee. Interested in playing an instrumental role in Conference content selection or contributing to program development throughout the year?

Each member of these Committees also receives a complimentary admission ticket to CNAR 2024! Please complete the brief application. APPLY HERE

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

CNAR NETWORK NEWS | ISSUE 02   23

PARTNER NEWS

Beyond Trauma: Empowering Resilience Through Investigations By Dean Benard, Benard + Associates The term “trauma-informed” has been a cornerstone in various fields, emphasizing the importance of recognizing and addressing the impact of past traumas on those with whom we interact. The investigation field has embraced this important concept and in turn the topic of trauma-informed investigations has become a hot one. The words “Trauma-Informed” appear before many things to essentially differentiate one approach from another. This has been a good thing, because it has raised awareness and opened people’s eyes. However, as we delve deeper into our

24  CNAR NETWORK NEWS | ISSUE 02

commitment to ensuring equity, fairness, dignity, and respect in our work, it’s becoming clear that “trauma-informed investigations” should simply be “investigations”. In other words, the concepts and practical approaches that make up a traumainformed approach, should be routinely applied in our investigation work. Here I will make the argument to move away from the word “trauma-informed” and simply recognize that the practice of conducting investigations has evolved and must continue to evolve. One step toward this ongoing evolution is to use language

that is more relatable, less stigmatizing, and places a greater emphasis on resilience and the strength of individuals to overcome adversity.

THE POWER OF LANGUAGE

Language plays a pivotal role in our understanding of the world. As the renowned poet Maya Angelou once said, “Words have the power to shape our perceptions and guide our actions.” In the context of investigative work, the words we choose to describe our approach can significantly impact the experiences of individuals involved. While the term “trauma-informed” has undoubtedly raised awareness about the importance of recognizing and addressing trauma, it also has limitations that hinder our progress toward fostering resilience and empowerment. The word “trauma” carries a heavy weight, often evoking images of victimhood and helplessness. It can inadvertently perpetuate stigmas and reinforce the idea that individuals are defined by their past experiences.

WHAT IS BEING TRAUMA-INFORMED?

It’s important to emphasize that being “traumainformed” is not reserved for specialists with a deep understanding of psychology. It is understanding a basic set of concepts that promote an approach to our investigations that is people-centred and founded on dignity, respect, fairness, empathy, and understanding. Last month I attended a conference, and a speaker, who is a self-proclaimed “finder of fact” and “pragmatic” investigator, stated, “I don’t understand all the complexities of trauma and its impact on people, so I don’t do this stuff.” This statement highlights how people can get caught up in words and language, missing the crucial point that being trauma-informed is not about delving into a person’s specific history, determining whether they have experienced trauma, and diagnosing them in some manner. It’s about recognizing that trauma has an impact on people, that will vary from person to person. It is about recognizing the signs of trauma and understanding its impact. However, we all have trauma in our past, and not every investigation

will uncover a person’s past trauma, except of course where the issue under investigation is logically traumatic. Investigators are not expected to be mental health experts, and all they can do is deal with the behaviour, emotions, and actions of those with whom they engage. The hallmark signs associated with trauma are plentiful and can include anxiety, depression, sleep disturbances, irritability, anger, avoidance behaviors, memory problems, mood swings, and the list goes on. All of these are commonly associated with other conditions and disorders, and investigators are not able to determine which condition, experience, or disorder an individual might be experiencing, nor should they.

WHAT DOES TRAUMA-INFORMED INVESTIGATION LOOK LIKE

It starts by dropping the assumptions and implied meanings investigators have historically given to various behaviours people exhibit, people’s ability to recall information and how they recall it, and mythical beliefs concerning people’s action or inaction. The following list includes the core components of trauma-informed investigations. While reading this list it is important ask – Are any of the items in this list things that should only be undertaken or considered if a person has or is suspected to have experienced trauma? The answer is surely NO. It is obvious in looking at this list that every person engaged in an investigation should be afforded the same treatment: •

Safety and Security: Ensuring the physical and emotional safety of all participants in the investigation. This involves creating a secure environment where individuals feel protected and respected.

•

Trustworthiness and Transparency: Maintaining trust through clear, consistent, and transparent operations. Building trust is essential in a trauma-informed approach, as many individuals with trauma histories have had experiences that lead them to distrust authorities or systems.

CNAR NETWORK NEWS | ISSUE 02   25

•

Empowerment and Choice: Empowering those involved in the investigation by respecting their autonomy and self-determination. This means giving them choices and control over how they engage in the investigation process.

•

•

Collaboration and Mutuality: Prioritizing a partnership approach where all parties are involved in a meaningful way. This involves recognizing the importance of collaboration and shared decision-making.

The point here is to recognize that investigation work necessarily involves all the above components, and utilizing these fundamental principles is critical to delivering access to justice, empowering victims, and instilling confidence in our work.

•

Cultural, Historical, and Gender Sensitivity: Acknowledging and respecting the cultural, historical, and gender contexts of individuals. This involves being aware of biases, stereotypes, and the specific needs of diverse populations.

•

Supportive Listening and Communication: Employing active listening and empathetic communication techniques. This means avoiding judgment, providing support, and ensuring that communication is respectful and considerate of the individual’s experiences and needs.

•

Confidentiality and Privacy: Ensuring the confidentiality and privacy of all individuals involved in the investigation. This is crucial for building trust and ensuring that individuals feel safe to share sensitive information.

•

Training and Staff Support: Providing ongoing training and support for investigators and staff to ensure they are equipped to apply a traumainformed approach. This includes training in trauma awareness, cultural competence, and self-care to prevent secondary traumatic stress.

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Avoiding Re-Traumatization: Being mindful of actions, words, and processes that could potentially re-traumatize individuals. This involves careful planning and execution of investigative procedures.

The term trauma-informed and the lessons from this important connection of concepts and understanding, has been critical to the practice of investigations taking a great leap forward. Now it is time to truly incorporate this practice into the very foundation of all investigative work. The journey towards resilience is a collective one. In shedding the label ‘trauma-informed’ from our vocabulary, we make room for a more inclusive and empowering narrative – one that acknowledges the inherent strength and dignity in every individual and ensures that these values are interwoven into the fabric of our investigative processes. This is a call to action for all investigators to embrace a holistic approach that not only seeks facts but also fosters trust, access to justice, respect, dignity, healing, and growth.

PARTNER NEWS

Wagg the Dog: A Focused Approach for Regulators Seeking Crown Disclosure By Benjamin Kates & Madison Bell, WeirFoulds LLP

INTRODUCTION

As if regulatory investigations were not challenging enough on their own, a host of issues emerge when they take place at the same time as a pending criminal prosecution based on the same underlying facts. Parallel proceedings such as these are not infrequent, given that, in professional regulation, criminal charges trigger a duty to report by a registrant and may, ultimately, also give rise to allegations of professional misconduct. This article is directed at a specific problem that can arise in the context of concurrent regulatory and criminal proceedings: what options are available when a regulatory investigation requires information

related to a criminal prosecution, whether from the police, the Crown, or the registrant under investigation? At the crux of the issue is the ability of investigators to obtain the Crown Brief. The Crown Brief is a document, or suite of documents, created and gathered by government authorities (as representatives of the “Crown”) in the exercise of the government’s policing and prosecutorial functions. It has been described as containing “a myriad of documents as varied as the fact situations underlying criminal prosecutions.”1 The contents of the Crown Brief typically include the synopsis of allegations, police notes, witness and police officers’ statements, exhibits such as CNAR NETWORK NEWS | ISSUE 02   27

photographs, medical reports, and the criminal record of the accused. In more complex cases, search warrant information, surveillance reports, wiretap evidence and scientific reports such as DNA, toxicology, pathology reports may be included. In addition, the police investigation portion of the Crown Brief may contain information gathered throughout their inquiry which is irrelevant to the prosecution. Crucially, for present purposes, the Crown Brief can be obtained for the purpose of a regulatory investigation only in limited circumstances: namely, with the agreement of the Attorney General or pursuant to a court order. Parties who seek the Crown Brief in ordinary civil proceedings must bring what is called a “Wagg Motion” (discussed further below), but regulators are not required to do so. The law provides many regulators with an expediated route for obtaining production from the Crown.2 When Crown Brief requests come from regulators, the Attorney General retains the ability to resist producing of some or all of the brief on grounds that production is contrary to the public interest. Consequently, where the regulator and the Attorney General do not agree, the regulator will still have to resort to the courts. Given that dynamic, it is advisable for regulators to obtain legal assistance and pursue a constructive approach when seeking the Crown Brief while being wary of overly broad or speculative reliance by the Attorney General on the “public interest” to decline production – particularly so since regulators share in the in the mandate of public protection and public interest. The balance of this article will set out the principles of D.P. v. Wagg (“Wagg”) as they have been modified and applied in the administrative context before proposing four considerations when dealing with the need for Crown materials: (i) develop a rapport with government authorities; (ii) persist with requests when faced with initial resistance; (iii) remember that certain investigations are backed by summons power; (iv) bear in mind that the public interest will be governing.

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REQUESTS FOR THE CROWN BRIEF ENGAGE PUBLIC INTEREST CONSIDERATIONS: D.P. V. WAGG The legal principles surrounding disclosure of the Crown Brief in parallel proceedings first developed in the context of civil litigation, most notably in Wagg. That case introduced the notion that private litigants cannot be relied upon to consider the public interest when determining whether the Crown Brief should be used in a collateral proceeding. Wagg deputized the Attorney General and police to speak to public interest considerations. Wagg involved a physician who was charged with sexual assault of a patient. The patient then brought a civil action against the physician. Although parties to a civil action are required to produce all relevant documents in their possession, power, or control (subject to claims of privilege), the physician refused to produce the Crown Brief that had been disclosed to him. The Court of Appeal’s decision in Wagg held that the physician was required to disclose the existence of the Crown Brief in his affidavit of documents. However, he would be obliged to produce the documents themselves only if either: (i) there was consent from all parties, the Attorney General, and the police or (ii) a screening motion, involving a hearing in the Superior Court of Justice, on notice to the Attorney General and the relevant police service, concluded that documents should be produced.3 The screening motion put in place by the Court of Appeal is now commonly referred to a “Wagg Motion”. Judges hearing such motions for production will consider whether some of the documents are subject to privilege or public interest immunity and generally whether “there is a prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information”.4 The Court of Appeal reserved a role in Wagg Motions for the Attorney General and the police because the two parties to the civil action, the physician and the patient, were not equipped to

speak to the public interest considerations involved in the court’s determination. Participation by public authorities in Wagg Motions is designed to ensure that the Crown and police have the opportunity to identify public interest concerns that could be resolved by the court, if necessary.

WAGG PRINCIPLES APPLY TO AN INVESTIGATOR’S SUMMONS BUT THE PROCESS DOES NOT

Regulators can dispense with a Wagg Motion, but not notice to the Attorney General, if their duly appointed investigators are statutorily endowed with a summons power. In CPSO v. Peel Regional Police (“Peel”),5 the Divisional Court specifically considered the application of Wagg in the context of a summons issued pursuant to section 7 (now section 33) of the Public Inquiries Act, 2009 (the “PIA”). Many Ontario regulators’ enabling statutes provide for investigatory powers pursuant to the PIA and are therefore captured by the ruling in Peel.6 As a general proposition, investigators should not underestimate the scope of this summons power. In Sazant v. CPSO (a case decided after Peel), the Court of Appeal held that the summons power should be given a broad and purposive interpretation to enable investigators to carry on their duty to investigate and thereby advance a statutory mandate to properly regulate the profession and protect the public.7 In Peel, the regulator became aware through media articles that one of its registrants was the subject of criminal charges related to child pornography. The College appointed investigators to investigate whether the registrant has committed an act of professional misconduct or was incompetent. The investigator issues a summons to the Chief of Peel Regional Police seeking production of the Crown Brief in the registrant’s criminal prosecution. At issue was the application of Wagg in the circumstances. The Divisional Court concluded that regulatory investigators empowered under the PIA may issue a summons for all or part of the Crown Brief without having to resort to a Wagg Motion, as long as the Attorney General receives notice: “There is no

compelling reason to add a court-imposed vetting process to a broad power conferred by legislature, provided that the College ensures that the Attorney General is given notice and has an opportunity to raise public interest concerns that may militate against production”.8 The court specifically contemplated that the Wagg scheme, fashioned in the context of civil proceedings, was neither necessary nor appropriate in the context of an administrative body exercising powers under the PIA.9 However, the decision also concluded that the public interest considerations identified in Wagg continue to apply.10 As a result, the Attorney General is not automatically obliged to comply with a summons where it objects to it on public interest grounds. Such an objection “would constitute a lawful excuse justifying the respondent’s refusal to comply with the summons issued by the College.”11 When such an objection is raised, the regulator can challenge it with a petition to the Divisional Court pursuant to section 8 (now subsection 33(5)) of the PIA. In a more recent decision, College of Physicians and Surgeons of Alberta v. Al-Naami,12 the Alberta Court of Queen’s Bench agreed, as a general proposition, that Peel modified the Wagg framework for regulatory investigations backed by powers of compulsion. In Al-Naami, the College of Physicians and Surgeons of Alberta asked the registrant to consent to access Crown disclosure in related criminal proceedings so that it could assess whether he could safely return to practice with conditions. Although Alberta’s Health Professions Act,13 at section 63(1) granted the College investigator powers of compulsion, the College nevertheless applied to the Court of Queen’s Bench for an order directing the physician to produce the relevant evidence, on notice to the Attorney General. In granting the College’s order, the court rejected the physician’s submission that in Alberta, unlike in Ontario, “the Court must act as a gatekeeper in every case in which a party seeks Crown production in the regulatory context”.14 Instead, the court agreed with the College that “the Wagg framework should be extended to a disciplinary procedure in a modified form, as decided in Peel”.15 It concluded that for the College to compel production of Crown disclosure, it need only comply with its CNAR NETWORK NEWS | ISSUE 02   29

existing powers of compulsion under the Health Professions Act, with the additional requirement to give notice to the Attorney General.16 It went on to say that if the Attorney General does raise public interest concerns and an agreement cannot be reached, the dispute must be settled by an application to court.17

THE SCOPE OF “PUBLIC INTEREST”

Although Peel was decided in 2009, there is a dearth of authority exploring when the Attorney General’s reliance on “public interest” will prevail over a regulator’s request for documentary production. The lack of case law suggests that, more often than not, regulatory bodies and the Attorney General are able to reach a mutually agreeable compromise on documentary production. There is no set list of public policy reasons as to why the Attorney General (or police or registrant for that matter) can refuse compliance with a summons. The Divisional Court decision in Wagg specifically identified the following public interest categories: police informant privilege, public interest immunity, the privacy interests of third parties (including safety concerns), as well as the concern that disclosure may compromise ongoing criminal proceedings. The court recognized that more public interest concerns may arise depending on the case. 18 Although limited as a binding authority, a recent decision of Ontario’s License Appeal Tribunal (“LAT”) suggests that adjudicators may defer to assertions by the Attorney General that production of the Crown Brief would be contrary to public interest, particularly when a criminal matter is ongoing. In Jarvis v Registrar (Real Estate and Business Brokers Act),19 the Registrar revoked a broker’s registration and refused to reinstate it because the broker was found to be bankrupt, had made false statements in his registration application and had outstanding criminal charges related to his misappropriation of funds. The broker appealed the decision to the LAT. In preparation for the hearing, the Registrar sought production of the Crown Brief related to the criminal charges against the broker. The Attorney General agreed to produce a redacted

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Crown Synopsis but not the entire Crown Brief, which it said would jeopardize the integrity of the ongoing prosecution. The LAT accepted the Attorney General’s argument that the public interest in nondisclosure during an ongoing prosecution overrode the interest in access to all relevant materials for the purpose of the LAT hearing. It found, in particular, that disclosure could compromise the criminal prosecution by tainting or giving the appearance of tainting witness evidence.20 Citing the possibility that the same witnesses would be called at the both the LAT hearing and the criminal trial, the LAT found no basis to increase the risk of exposure and contamination vital to the criminal prosecution.21 The LAT did not accept the Registrar’s submission that the Attorney General’s concerns were speculative. However, it did comment that “[b]lanket statements and broad generalities with respect to risk are not sufficient for the Attorney General to override the public interest in access to relevant information for LAT proceedings”. The tribunal’s conclusion is an important one given the Attorney General’s representation that, where a criminal proceeding is ongoing, it is unlikely to release the Crown Brief except in rare circumstances.22

CONCLUSIONS AND STRATEGIES FOR REQUESTING THE CROWN BRIEF Regulators and their investigators must be able to recognize when an investigation will benefit from evidence contained in a Crown Brief and the avenues for obtaining it. We recommend that the following considerations be kept top of mind when assessing whether to request such documents, whether in the possession of the police, the Attorney General, or the subject registrant: 1.

Develop a Rapport: The Crown Brief, even if in the possession of the registrant, cannot be obtained, or used, without either the agreement of the Attorney General or a court order. Where the Attorney General does agree to provide documents from the Crown Brief, it will ordinarily stipulate limitations of use in an

undertaking. The best and easiest way to obtain information related to a criminal proceeding is by agreement. That being the case, it is advantageous for regulators to develop and maintain good personal relationships with representatives of the Attorney General and, ideally, law enforcement. Having a familiar counterpart on the other side of an information request can streamline the process, build trust, and reduce bureaucratic obstacles. Regulators may wish to explore developing a Memorandum of Understanding with the Attorney General and with frequently encountered police forces. 2.

Persist: Investigators should not stop their pursuit for necessary information at the first sign of resistance. Police officers and Crown prosecutors are often, reflexively and understandably, reluctant to disclose information forming part of an ongoing case. The recipient of an information request may not appreciate regulators’ public interest mandate, their regulatory powers, or the case law governing such requests. When faced with a categorical rejection, consider a more targeted request, a more thorough explanation of the need, or both.

3. Remember the Summons: Regulators and their investigators should be aware of the nature of their power to compel information. A regulator will have added leverage to obtain information where summons powers are available, such as pursuant to the Public Inquiries Act, 2009. Even if a summons does not result in comprehensive production, it will oblige the receiving party to engage. It is important to remember that summons powers do not carry on indefinitely, and investigators often lose their authority when a matter is referred to discipline. Be sure to consult your authorizing statute and seek legal advice.

fide risk that doing so might prejudice the prosecution of an ongoing criminal matter. That said, regulators and their investigators should not accept boiler plate statements that production of parts of the Crown Brief will pose a risk to a prosecution. It is important to scrutinize the stated reasons for withholding documents to make sure they apply to the actual request at issue and the intended use of the materials at the time. There is always recourse to the courts: the ability of public interest concerns relied upon by the Attorney General to prevail over a regulator’s own public interest considerations remains an underlitigated area lacking in binding authority. 1

D.P. v. Wagg, 2002, CanLII 49636 (ON SCDC) at para. 22 [“Wagg (Div Ct)”], aff’d 2004 CanLII 39048 (ONCA) [“Wagg (OCA)”]. 2 Denise Dwyer, “Report of the Working Group on the Collateral Use of the Crown Brief Disclosure” (2007: Uniform Law Conference of Canada Joint Civil and Criminal Sections) at page 6. 3 Wagg (ONCA) at para. 17. 4 Wagg (ONCA) at para. 17. 5 2009 CanLII 55315 (ON SCDC) [“Peel”]. 6 See e.g., Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, s. 76; Ontario Social Work and Social Service Work Act, 1998, S.O. 1998, c. 31, s. 32(4); Early Childhood Educations Act, 2007, S.O. 2007, c. 7 Sch. 8, s.. 39(4); Ontario College of Teachers Act, 1992, S.O. 1996 c. 12, s. 36(4); Professional Engineers Act, R.S.O. 1990, c. P. 28, s. 33(2.1); Architects Act, RSO 1990, c. A. 26, s. 38 (2.1); Veterinarians Act, R.S.O. 1990, c. V. 3, s. 36(2.1). 7 Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727 at para. 99. 8 Peel at para. 75. 9 Peel at para. 76. 10 Peel at para. 76. 11 Peel at para. 75. 12 2022 ABQB 438 [“Al-Naami”] 13 RSA 2000, C H-7. 14 Al-Naami at para. 42. 15 Al-Naami at para. 49 16 Al-Naami at para. 50. 17 Al-Naami at para. 51. 18 Wagg (Div Ct) at paras. 18-38. 19 2023 CanLII 7259 (ON LAT) [“Jarvis”]. 20 Jarvis at para. 14 21 Jarvis at paras.15-19. 22 Jarvis at para. 22.

4. Public Interest Governs: Courts have found that public interest principles arising from the collateral use of the Crown Brief apply to requests from professional regulators. Ultimately, regulators may not be able to obtain Crown Brief materials – through the courts or otherwise – where there is a bona CNAR NETWORK NEWS | ISSUE 02   31

PARTNER NEWS

Who Covers Costs in Disciplinary Matters: A Tale of Two Provinces By Lisa Feinberg, GlickLaw The question of who should pay the costs of a disciplinary proceeding when there is a finding of professional misconduct is being answered differently by different provinces. In Ontario, the presumption is that a registrant should pay the reasonable costs of a disciplinary proceeding when the registrant is found liable for misconduct. However, in the last few years, the Alberta Court of Appeal has released a series of decisions increasingly critical of this practice, culminating in Jinnah v Alberta Dental Association and College,1 which held that costs should presumptively be borne by the entire profession rather than the registrant, absent exceptional circumstances. The Supreme Court of Canada denied leave to appeal this decision in March 2023, which does not lend the decision any precedential value2 but still leaves uncertainty nationwide on how to approach the allocation of costs in disciplinary proceedings.3 While Jinnah is not law across Canada, Jinnah

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provides helpful guidance to regulators about what to do (and what not to do) to ensure their costs can be recovered.

COMPETING POLICY CONSIDERATIONS

The allocation of costs in disciplinary matters is driven by competing policy considerations. On one hand, tribunals and courts are sensitive to the fact that regulators are funded by the membership of the profession. It is not fair for the entire profession to bear the costs of a successful prosecution that was only made necessary because of a registrant’s misconduct. In such a case, the registrant should indemnify the regulator for the reasonable costs of the proceeding.4 On the other hand, the costs of a prosecution can be unduly onerous for an individual registrant and may deter them from mounting a meritorious defence.5 The question is how to resolve these competing considerations.

ONTARIO APPROACH TO COSTS

In Ontario, the legislative framework of most regulators allow for hearing panels to order costs against a registrant.6 In these cases, the costs of successful disciplinary proceeding are generally paid by the registrant to the regulator (often on a partial indemnity or 2/3 basis) to avoid burdening the entire profession.7 Some Ontario courts have gone as far as saying that a regulator has an obligation to its broader membership to pursue costs awards.8 That said, such costs are not intended to be punitive to the registrant in question but rather compensatory to the profession as a whole. Costs must therefore be reasonable.9

ALBERTA APPROACH TO COSTS

Until recently, there was a presumption in Alberta that the reasonable costs of a successful prosecution should be paid by the registrant rather than the profession as a whole.10 In the last few years, the Court of Appeal of Alberta has been critical of this approach. In 2021, in Alsaadi v. Alberta College of Pharmacy,11 the Court of Appeal reduced costs payable by a pharmacist from $120,000 to $100,000, where the regulator had raised new allegations midhearing. The concurring reasons were critical of a costs regime that effectively precluded professionals from raising a legitimate defence.12 In 2022, in Dr. Ignacio Tan III v Alberta Veterinary Medical Association,13 the Court of Appeal of Alberta reduced the costs of a successful prosecution awarded against a veterinarian from 80 percent to 50 percent of costs incurred. In so doing, the Court noted that self-regulation was a “privilege” and the profession’s responsibility to pay for the costs of disciplinary proceedings was the “inevitable consequence” of that privilege. That said, the Court accepted that it was acceptable to recover “some of those costs back from disciplined members.” 14 Months after the release of Tan, the Court of Appeal of Alberta took its approach one step further in Jinnah.15 It overturned a costs award of $37,500 against a dentist who engaged in improper billing practices with a patient and

remitted the matter back to the hearing panel for redetermination. In so doing, the Court established a new presumption that the profession as a whole – and not the registrant who engaged in the misconduct – should bear the costs of a successful disciplinary proceeding.16 This presumption would only be rebutted if one of the following compelling reasons existed: 1.

The registrant engaged in serious misconduct (such as sexual abuse or fraud);

2. The registrant was a serial offender; 3. The registrant failed to cooperate with the regulator; 4. The registrant engaged in hearing misconduct. Absent one of these compelling reasons, the registrant would not be ordered to pay costs. The Court held that this decision applied to all professionals regulated by Alberta’s Heath Professions Act.17 Following Jinnah, some tribunals, such as hearing panels of the Law Society of Alberta,18 have distinguished their legislation from the Health Professions Act, finding that the cost principles in Jinnah do not apply. However, most tribunals have applied Jinnah but continued to order cost awards to regulators, albeit at reduced rates. These tribunals have been careful to justify their costs orders by identifying at least one of the compelling cases exceptions.19 Effectively, Jinnah requires regulators in Alberta to better justify the costs incurred before they can ask that registrants reimburse those costs.

LESSONS LEARNED

While Jinnah is not law across Canada, the decision is instructive to regulators seeking to use their resources wisely in their regulation in the public interest. Moreover, Jinnah serves as a warning to regulators in other provinces that courts could revisit their ability to recover costs in the future. The decision provides guidance on factors that will increase the likelihood that a regulator is able to obtain costs. The following are suggestions for regulators who wish to ensure that their cost orders are defensible before a hearing panel: CNAR NETWORK NEWS | ISSUE 02   33

1. Expend resources proportionate to the seriousness of the misconduct, the registrant’s history, and/or response to the regulator: Hearing panels will be more likely to order costs where the professional misconduct is serious. Regulators should generally focus their disciplinary resources on serious cases, such as those involving sexual abuse or fraud. That said, there will be cases of less serious misconduct, which regulators may have to pursue for various reasons, such as the registrant’s disciplinary history or the registrant’s conduct in responding to the investigation or hearing. In those cases, regulators should document such conduct, as it could be used to justify a costs award at the end of the hearing. 2. Re-asses on an ongoing basis: Regulators should continually assess the strength of their cases. Sometimes, after matters are referred to discipline, new evidence or arguments raised by the registrant emerge that affect the viability of the prosecution. A regulator acting in the public interest is responsible to ensure that its resources are expended only for those cases that continue to be viable. 3. Communicate with the registrant regarding costs: Regulators should communicate directly with registrants at every stage of the disciplinary to advise them of potential cost consequences associated with that stage of the process. If a registrant is advised in writing of their costs exposure prior to a hearing, a regulator seeking costs can argue that the registrant conducted their defense with knowledge of the cost consequences. However, care must be taken to ensure the tone and content of such communications is advisory in nature and not perceived as threatening. 4. Document efforts to streamline proceedings: Regulators should explore ways to reduce costs and streamline proceedings, such as through the use of admissions. When doing so, regulators should advise the registrant of the potential costs consequences

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to them associated with refusing to make such admissions. If a registrant refuses to make reasonable admissions, regulators should document such refusals in writing, again noting the potential cost consequences. 5. Consider tariffs: Regulators may consider using tariffs to quantify costs. Tariffs are transparent and obviate the need to quantify and justify costs awards. Regardless of whether Jinnah becomes law outside of Alberta, the above suggestions ensure that costs incurred are reasonable, proportionate, and transparent and will assist regulators justifying costs awards against a registrant who is liable for professional misconduct. 1 2 3 4

5 6 7 8 9

10 11 12 13 14 15 16 17 18

19

2022 ABCA 336. R. v. Zuber, 2004 CanLII 2549 (ON SC) at para. 38. 2023 CanLII 24527 (SCC). Walia v. College of Veterinarians of Ontario, 2021 ONSC 4023 at para 31; Al-Ghamdi v College of Physicians and Surgeons of Alberta, 2020 ABCA 71 at para. 48; Chuang v. Royal College of Dental Surgeons of Ontario, 2006 CanLII 19433 (ON SCDC) at para. 19; Berge v College of Audiologists and Speech-Language Pathologists of Ontario, 2016 ONSC 7034 at para. 147. Robinson v. College of Early Childhood Educators, 2018 ONSC 6150 at para. 52. See for example, Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c 18, s. 15.3. Walia v. College of Veterinarians of Ontario, 2021 ONSC 4023. Reid v. College of Chiropractors of Ontario, 2016 ONCA 779 at para. 24. Ontario courts have been fairly deferential to costs orders, even when on the higher end. In Robinson v. College of Early Childhood Educators, 2018 ONSC 6150, an early childhood educator challenged the jurisdiction of his regulator to order a $257,353.76 costs order against him, but did not challenge the quantum of the costs order itself. The Divisional Court reluctantly upheld the quantum of the costs order that had not been challenged, which was over five times greater than his annual salary, despite expressing concerns at para. 52 about the potential chilling effect of the cost consequences. Shulakewych v Alberta Assn of Architects (1997), 196 AR 312 (CA). Alsaadi v Alberta College of Pharmacy, 2021 ABCA 313 at paras. 114-15. Ibid. at paras. 114-15. 2022 ABCA 221, leave to appeal refused in Ignacio Tan III v. Alberta Veterinary Medical Association, 2023 CanLII 24516 (SCC). Ibid. at para. 42. 2022 ABCA 336. Ibid. at paras.134-136. Ibid. at para. 140. Law Society of Alberta v Beaver, 2023 ABLS 4 at para. 91. Other Law Society cases have not resolved whether Jinnah applies to the Legal Professions Act: Law Society of Alberta v Tahn, 2023 ABLS 15 at paras. 39-41; Law Society of Alberta v. Ralh, 2023 ABLS 9 at para. 44; Law Society of Alberta v Ihensekhien-Eraga, 2023 ABLS 13 at para. 80. Chaudhri (Re), 2023 ABRECA 1 (cost award of $21,292.50 against a real estate agent who committed fraud in a mortgage application); Singh (Re), 2023 ABRECA 10 (cost award of $23,465 against a real state agent who committed multiple acts of fraud); Kelley (Re), 2023 ABRECA 12 (costs award of $7,642 against the real estate agent who engaged in fraud); Physiotherapy Alberta – College + Association v Sherman, 2023 ABPACA 2 (cost award of $10,000, representing only 10 precent of actual costs, against physiotherapist who engaged in sexual abuse).

PARTNER NEWS

Lessons from Lauzon: The Importance of Justified and Coherent Reasons From Rosen Sunshine LLP The Ontario Court of Appeal recently reiterated the expectation that administrative decision makers’ written reasons be justified, intelligible, and transparent. Written reasons that fall short of this risk being found to be unreasonable on review. In this blog, we provide an overview of the Ontario Court of Appeal’s reasoning in Lauzon v. Ontario (Justices of the Peace Review Council) as it relates to the importance of justified and coherent reasons, and explain the standard that administrative decision makers are expected to meet in relation to their written reasons.

OUTCOME OF CASE IN BRIEF In Lauzon, the Ontario Court of Appeal (the “Court”) ruled that JP Lauzon, who had been removed from office as a Justice of the Peace in 2020, should be reinstated to her position, but would be required to serve a 30-day suspension.

In 2016, JP Lauzon wrote an article that was “sharply critical” of the operation of bail courts and the conduct of Crown prosecutors.1 The article was published in the National Post, and prompted complaints from three senior Crown Attorneys about JP Lauzon to the Justices of the Peace Review Council (the “Council”). In 2018, after

CNAR NETWORK NEWS | ISSUE 02   35

an investigation pursuant to the Justices of the Peace Act, the Council’s Complaints Committee ordered a formal hearing. The Hearing Panel (the “Panel”) unanimously held that JP Lauzon had committed judicial misconduct. The majority of the Panel members recommended that JP Lauzon be removed from office in order to restore public confidence in the administration of justice, while one dissenting member recommended that JP Lauzon be reprimanded and face a 30-day suspension without pay.2 The Court allowed the appeal in part and substituted the disposition of the dissenting Panel member, ordering that JP Lauzon be reprimanded and suspended for 30 days.

VAVILOV AND THE STANDARD OF REVIEW

On appeal, the standard of review for the Panel’s decision was that of reasonableness, meaning that the question facing the Court of Appeal was whether the Panel’s decisions about JP Lauzon’s conduct were reasonable. In 2019, the Supreme Court of Canada clarified the law on standard of review and provided guidance on the application of this reasonableness standard in Canada (Minister of Citizenship and Immigration) v. Vavilov. The reasonableness approach to reviewing a decision is concerned with both the administrative decision maker’s reasoning process and its outcome.3 The majority in Vavilov stressed that where written reasons are provided by an administrative decision maker, those reasons must be “justified, intelligible and transparent”, writing that it is “unacceptable” for an administrative decision maker to provide parties with formal reasons that fail to justify its decision.4 Decisions will be found to be unreasonable in two circumstances: (1) Where there are “failures of rationality internal to the reasoning process.” (2) Where a decision is “untenable in light of the relevant factual and legal constraints that bear on it.”5

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To avoid failing on the first count, the decision must be based on an internally coherent reasoning that is both rational and logical. To avoid failing on the second count, the decision must be justified in relation to the relevant law and facts.

THE COURT’S DETERMINATION IN LAUZON

The Panel rendered two decisions: a merits decision, and a disposition decision. While the Court in Lauzon found that the Panel’s conclusion in the merits decision that JP Lauzon committed judicial misconduct was reasonable, the Court pointed to many errors in the Panel’s reasons in the disposition decision, rendering the decision unreasonable. The Court focused its assessment on the reasonableness of the disposition decision and found that the reasons provided by the Panel were not inherently coherent, rational, and justified. One example of the flawed reasoning of the majority of the Panel that the Court pointed to was its finding that JP Lauzon is irremediably biased against Crown Attorneys. The Court determined that the finding of an “appearance of bias” by the Panel in the merits decision was significantly amplified in the disposition reasons. This amplified finding was unreasonable.6 The Court found that the Panel, in approaching the case’s evidence, consistently decontextualized aspects of the case: it did not take a holistic approach to JP Lauzon’s article; its articulation of her misconduct evolved throughout the decisions; the Panel did not seriously consider JP Lauzon’s assertions about problems in the bail system; the Panel discounted JP Lauzon’s positive motivation in writing the article; and the Panel was not even-handed in its approach to the evidence.7 The Court noted that the Panel’s decontextualized approach does not accord with the fully contextual approach that is necessary under Vavilov.8 The majority in Vavilov stressed the importance of context, writing that what is reasonable “will always depend on the constraints imposed by the legal and factual context of the particular decision under review.”9 This decontextualized approach to

the evidence was then carried forward by the Panel in their reasoning, resulting in an amplified finding of bias in the disposition reasons, which the Court found to be unreasonable. Similarly, the Court found that the Panel’s written reasons were lacking in that they did not adequately consider the effect that the disposition would have on JP Lauzon.10 The Panel did not adequately engage with precedents in assessing the disposition, which it was required to do under Vavilov.11 Furthermore, the Court pointed out that the Panel was required to consider both aggravating and mitigating factors, which are set out in s. 17.3 of the Justices of the Peace Review Council Procedures Document.12 The Court noted that it is both “telling and unusual that the majority [of the Panel] did not identify a single mitigating factor in JP Lauzon’s favour.”13 Without the context of the precedents and consideration of the aggravating and mitigating factors, the Court determined that Panel’s assessment of the seriousness of JP Lauzon’s misconduct was not reasonable. As a final example, while the Court noted that the Panel did not err in taking the Doré approach in applying s. 1 of the Charter rather than the test established in R. v. Oakes, the disposition decision did not engage in the “robust proportionality review” that is required under Doré.14 The Court noted that the Panel did not undertake a full Doré analysis but instead simply stated that it would be “guided by Charter principles” when making its findings.15 The Court warned that the Doré approach should not tempt administrative decision makers to ignore key steps in the required analysis. In the case of JP Lauzon, the rights limitation analysis was complex and involved many competing public interests, and the Panel therefore “had to do more.”16

KEY TAKEAWAY

One of the key takeaways from Lauzon for administrative decision makers is the importance of written reasons that are justified, intelligible, and transparent. Decisions that do not adequately consider the context of the case in the way demanded by Vavilov and that ignore key steps in the required analysis of the conduct risk being found as unreasonable on review. Administrative decision makers must take care to ensure their written reasons adequately justify the decision they have reached, and it is integral that decisionmakers are seen as both rational and fair. Lauzon demonstrates that a decision maker will not discharge its obligation to consider precedents, Charter values, or factors by simply identifying them; engaging with these requires a detailed and robust analysis of their impact on the decision. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

Lauzon, at para. 3. Lauzon, at para. 7. Vavilov, at para. 87. At para. 95. Vavilov, at para. 101. Lauzon, at paras. 51-52. Lauzon, at paras. 59-60. Ibid, at para. 59. Vavilov, at para. 90. At para. 105. Lauzon, at para. 106. At para. 128. At para. 128. At para. 139. At para. 149. Lauzon, at para. 149.

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PARTNER NEWS

How They Do Things Across the Pond by Bernie LeBlanc, Steinecke Maciura LeBlanc, Originally published in SML’s Grey Areas Newsletter. Republished with permission. Since the establishment of the Professional Standards Authority (PSA), Canadian regulators have been monitoring professional regulation developments in the United Kingdom. Some, but certainly not all, of the approaches taken in the UK have been adapted by some Canadian jurisdictions and regulators. Most notable was the enactment of the Health Professions and Occupations Act in British Columbia. However, the evolution of administrative law for professional regulators has diverged somewhat between the UK and Canada. Some of these differences and similarities are apparent from the recent UK court decision in Professional Standards Authority for Health and Social Care v Social Work England & Anor [2023] EWHC 2125 (Admin) (18 August 2023). There, a social worker was disciplined for abusing and neglecting her children (e.g., by making demeaning

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and disturbing comments to them and by overdosing in their presence), which resulted in the intervention of the child welfare authorities, and for dishonestly denying during a job interview that she was or had been under investigation by her regulator. The discipline panel found that her fitness to practise was impaired in that she failed to promote and maintain public confidence in the social work profession and that she failed to promote and maintain proper professional standards. However, the panel “concluded that a finding of impairment was not necessary to protect, promote and maintain the health, safety and wellbeing of the public.” As a result, it only imposed a warning. The oversight body, the PSA, appealed the decision. It argued that the factual determinations of the discipline panel supported a finding of impairment in the third category (i.e., the health, safety and wellbeing of the public). It also argued that a suspension was necessary in the circumstances.

SOME DIFFERENCES

The first major difference between the UK process and most Canadian ones is that an oversight body can initiate appeals to the courts regarding discipline findings that it believes are unacceptable. While such appeals are relatively rare, the PSA has had a remarkable record of success with respect to appeals it has brought. [Interestingly, the regulator was also a party to the appeal. Initially it opposed the PSA’s position but then changed its position to support the appeal.] Another major difference is that what most Canadian regulators call “discipline” hearings are called “fitness to practise” hearings in the UK. In Canada, the term “fitness to practise” usually refers to incapacity issues rather than conduct concerns. This is not just a matter of semantics. The UK approach focusses more on the potential for future misbehaviour than on sanctioning past misconduct. The UK approach is analogous to those relatively few Canadian professional regulators whose ambit is largely confined to addressing whether the person will act with honesty, integrity and in accordance with the law. This non-punitive approach is particularly important when it comes to the issue of sanction. Following the leading decision in Bolton v Law Society [1994] 1 WLR 512, the Court noted that “it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of a regulatory jurisdiction than on the ordinary run of sentences imposed in criminal cases.” In Canada, courts often apply some criminal sentencing concepts, especially mitigating factors, to discipline sanctions (e.g., College of Physicians and Surgeons of Ontario v McIntyre, 2017 ONSC 116 (CanLII)). Rather, consequences for the individual registrant are generally motivated by ensuring that their future behaviour is acceptable and, to a lesser degree, to ensure public confidence in the regulator. However, the Court did say: “The reputation of the profession is more important than the fortunes of any individual member.”

MANY SIMILARITIES

Many other aspects of the decision would be familiar to Canadian regulators. For example, in this case, the social worker was self- represented, not an unusual occurrence in Canada. The Court also expressed the need to afford deference to the disciplinary panel. For instance, on the issue of sanction, the Court said: Given that the Panel usually has greater expertise in the social work field than the court, an appeal court should only interfere with such an evaluative decision if (1) there was an error of principle in carrying out the evaluation; or (2) for any other reason, the evaluation was wrong, that is to say that it was an evaluative decision which fell outside the bounds of what the Panel could properly and reasonably decide…. Similarly, the Court allowed that regulators should be cautious when scrutinizing the private life of registrants: I accept that, to some degree, a social worker may be able to rely on a division between her private and professional lives. A social worker who has a transient personal crisis may not have impaired judgment in relation to his or her professional caseload. If all that the Panel had found was that MDR had used inappropriate language or displayed undue melancholy to her children during an isolated and stressful part of her life, this appeal would be unfounded. However, the Court agreed with the discipline panel that this sort of conduct, by a social worker, was relevant to her fitness to practise the profession. A pattern of abuse, to the point of requiring intervention by child welfare authorities, reflected on both her ability to provide those sorts of services in the future and on public confidence in the regulator and the profession as a whole. With respect to her dishonesty during her job interview, the Court said: The recruitment of social workers has at its centre the objective of keeping safe vulnerable adults and children. By being dishonest in her interview, MDR placed her own interests above the

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protection of the health, safety and well-being of the public contrary to the overarching objective.

On this point, the Court said that the social worker”: was entitled to mount a vigorous defence to the charges against her; but her decision to call her daughter to give untruthful evidence to the Panel went significantly beyond offering an alternative account of past events and went beyond “a failed attempt to tell the story in a better light than eventually proved warranted”…. It demonstrated a lack of honesty. MDR’s decision to place dishonest evidence before the Panel fatally undermines the Panel’s conclusion that there was no risk of repetition of the dishonesty shown to DCC.

When it came to sanction, the Court found that the discipline panel had made an irrational decision given its evidentiary findings. The social worker had not demonstrated insight into the seriousness of her conduct or its impact on her practise of the profession. Having found that the social worker’s conduct was “attitudinal and behavioural” … “it ought to have been plain to the Panel that her attitudes could not reasonably be regarded as having changed.” Also similar to Canadian courts, the UK Court affirmed that the social worker’s contesting of the allegations, even after the finding was made by the discipline panel, should not be treated as an aggravating factor. However, the Court treated the inconsistent assertions of the social worker (e.g., about whether she knowingly made false statements during the job interview) and her calling her daughter to give testimony contrary to the daughter’s previous written statement, as rebutting the social worker’s assertion of insight.

PARTNER NEWS

OUTCOME

The Court said: “the Panel erred in concluding that a finding of impairment was not necessary on grounds of risk to the protection of the health, safety and well- being of the public….” While the Court was tempted to impose a one-year suspension, it, like many Canadian courts, deferred to the expertise of the regulator. The Court remitted the matter to the regulator to make a fresh finding on sanction.

From PSI Testing In the testing industry, we need a united vision and shared commitment to diversity, equity and inclusion (DE&I). We have a social responsibility to ensure the tests that are developed allow for diverse backgrounds and experiences, removes all unnecessary barriers, and ensures accessibility so that no test taker is advantaged or disadvantaged. Read our new guide Diversity, Equity & Inclusion Across the Assessment Lifecycle to learn:

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•

Why DE&I in testing matters

•

What integrating DE&I looks like throughout each stage of the assessment lifecycle

•

How to incorporate DE&I in the test taker experience

Community Corner CNAR welcomes article submissions from our community for publication in Network News. To submit, please contact Alana Coleman at acoleman@cnar-rcor.ca for more information. Please note, submitted articles by members and Partners provide an additional means to exchange ideas and best practices and do not necessarily represent CNAR’s views. Per a submission by Judith Rigby Registrar and CEO, College of Dental Technologists of Ontario, and Zahra Grant, Governance Officer, College of Midwives of Ontario, please find below an article summarizing HPRO project. The health profession regulators of Ontario (HPRO) initiated a first-of-its-kind project to build equity, diversity and inclusion competencies into the way Ontario’s health regulatory Colleges meet their legislative mandate to regulate 26 health professions in the public interest. Health disparities that are the result of our societal structures and systems have been exacerbated by the COVID-19 pandemic. The increased attention to the intersecting ways inequities exist prioritized the focus of HPRO to understand the role of health regulators in addressing these issues. Understanding the complexities of these intersections is crucial to work on anti-racism, reconciliation, and building an inclusive world that honours and values diversity. The history of health regulation in Ontario is deeply intertwined with Canada’s history, which has been significantly influenced by the legacy of colonialism and white supremacy (Adams, 2020). This legacy continues to have profound and lasting effects. In 2021 HPRO received funding from the Government of Canada’s Community Support, Multiculturalism, and Anti-Racism Initiatives Program (CSMARI) to advance anti-racism initiatives and build capacity for incorporating equity-based analysis into health regulation. That regulators should have a role in addressing equity

and anti-racism is quite a revolutionary idea in that it requires an expansive and critical approach that has not traditionally been in the realm of professional regulation. This is no easy task. The struggle in this is that we live in a world in constant relationship with often oppressive systems, as Black feminist thinker Audre Lorde noted concerning power within oppressive systems “there is no single-issue struggle, because we do not live single issue lives”. As regulators we are mandated to protect the public interest. A significant factor of this mandate is understanding how a multitude of issues including racism, equity, diversity and inclusion contribute and impact the public interest. HPRO struck a steering committee of ten members representing HPRO and various health regulatory Colleges, who provided significant in-kind contributions throughout the project. From January 2022 to May 2023, the Steering committee worked with Consultants Graybridge Malkam who served as project managers throughout the development of tools and resources. The participation of the steering committee throughout the process was effective and the group was actively engaged providing their expertise and guidance. Member Colleges also participated in consultations, reviewed and piloted the tools, participated in training sessions, and implementation workshops to help ensure that the materials would meet their needs. Upon completion of the project a comprehensive set of materials have been made available to the regulatory Colleges. They are as follows: •

EDI Self-assessment Guide for Year-end 2022 CPMF Reporting

•

HPRO EDI Organizational Self-Assessment and Action Guide (Incl. Equity Impact Assessment tools)

•

HPRO EDI and Anti-Racism Tools - Briefing outline, Case Studies, FAQs

•

Overview of the Context for EDI, Anti-Racism and Equity Impact Assessments

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It is HPRO’s hope and intention that access and availability of these materials will benefit health regulatory Colleges by providing guidance that is applicable, while recognizing that Colleges will be at different stages and have different approaches to this work. That the needs of one regulatory College may differ significantly from the next is an understanding that is critical in equity work where the recognition and valuing of difference is foundational to the goals anti-racism and social

COMMUNITY FORUMS

Need help finding resources? Wish to connect with the community to discuss hot topics? Interested in checking out current news items? Be sure to post and subscribe to CNAR’s community forums, located in the CNAR Portal. CNAR PORTAL

JOB BANK

CNAR members, Partners, and Suppliers can post and view jobs anytime, free of charge! The following positions are currently active in the Job Bank located in the CNAR portal: Alberta Complaints Director Ontario Manager, Policy and Governance Bilingual Senior Analyst Bilingual Coordinator

Click HERE to view the current postings.

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justice. There is much work to do and none of us are absolved from doing it, but having tools and supports to help get us there is necessary when engaging in this work. We hope others can learn and benefit. References: Adams, T. L. (2020). Health professional regulation in historical context: Canada, the USA and the UK (19th century to present). Human Resources for Health, 18(1), 1-7.

Happy Holidays From CNAR

CNAR will be closed for the holidays on December 25th, 2023, reopening on January 3rd, 2024. CNAR staff wishes you a safe and happy holiday season!

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ISSUE 02 | WINTER 2023 www.cnar-rcor.ca