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By-Law 11

Made:  May 1, 2007
Amended:  June 28, 2007
September 20, 2007 (editorial changes)
October 25, 2007 (editorial changes)
February 21, 2008
April 24, 2008
October 30, 2008
January 29, 2009
October 28, 2010
April 25, 2013
May 30, 2013
March 4, 2014
June 26, 2014
February 23, 2017
May 25, 2017
December 12, 2018 (editorial changes)
October 24, 2019
 

REGULATION OF CONDUCT, CAPACITY AND PROFESSIONAL COMPETENCE

PART I

COMPLAINTS RESOLUTION COMMISSIONER

GENERAL

Definitions

1.  In this Part,
 
“complainant” means a person who makes a complaint;
 
“complaint” means a complaint made to the Society in respect of the conduct of a licensee;
 
“Commissioner” means the Complaints Resolution Commissioner appointed under section 49.14 of the Act;
 
“reviewable complaint” means a complaint that may be reviewed by the Commissioner under subsection 4 (1).

Provision of funds by Society

2.  (1)  The money required for the administration of this Part and sections 49.15 to 49.18 of the Act shall be paid out of such money as is budgeted therefor by Convocation.

Restrictions on spending

  (2)  In any year, the Commissioner shall not spend more money in the administration of this Part and sections 49.15 to 49.18 of the Act than is budgeted therefor by Convocation.

Annual report

3.  Not later than March 31 in each year, the Commissioner shall submit to the Professional Regulation Committee a report upon the affairs of the office of the Commissioner during the immediately preceding year, and the Committee shall lay the report before Convocation not later than at its regular meeting in June.

REVIEW OF COMPLAINTS

Reviewable complaints

4.  (1)  A complaint may be reviewed by the Commissioner if,
 
  (a)  the merits of the complaint have been considered by the Society;
  (b)  the complaint has not been disposed of by the Proceedings Authorization Committee, Hearing Division or Appeal Division;
  (c)  the complaint has not been previously reviewed by the Commissioner; and
  (d)  the Society has notified the complainant that it will be taking no further action in respect of the complaint.

Same

  (2)  A complaint may not be reviewed by the Commissioner to the extent that, in the opinion of the Commissioner, it concerns only the following matters:
 
  1.  Quantum of fees or disbursements charged by a licensee to a complainant.
  2.  Requirements imposed on a licensee under By-Law 9 [Financial Transactions and Records].
  3.  Negligence of a licensee.

Interpretation: “previously reviewed”

  (3)  For the purposes of this section, a complaint shall not be considered to have been previously reviewed by the Commissioner if the complaint was referred back to the Society for further consideration under subsection 7 (1).

Right to request referral

5.  (1)  A complainant may request the Society to refer to the Commissioner for review a reviewable complaint.

Request in writing

  (2)  A request to refer a reviewable complaint to the Commissioner for review shall be made in writing.

Time for making request

  (3)  A request to refer a reviewable complaint to the Commissioner for review shall be made within 60 days after the day on which the Society notifies the complainant that it will be taking no further action in respect of the complaint.

When notice given

  (4)  For the purposes of subsection (3), the Society will be deemed to have notified the complainant that it will be taking no further action in respect of the complaint,
 
  (a)  in the case of oral notification, on the day that the Society notified the complainant; and
  (b)  in the case of written notification,
 
  (i)  if it was sent by regular lettermail, on the fifth day after it was mailed, and
  (ii)  if it was faxed, on the first day after it was faxed.

Referral of complaints

6.  (1)  The Society shall refer to the Commissioner for review every reviewable complaint in respect of which a complainant has made a request under, and in accordance with, section 5.

Notice

  (2)  The Society shall notify in writing the licensee who is the subject of a complaint in respect of which a complainant has made a request under, and in accordance with, section 5 that the complaint has been referred to the Commissioner for review.

Fresh evidence

7.  (1)  When reviewing a complaint that has been referred to the Commissioner for review, if the Commissioner receives or obtains information, which in the Commissioner’s opinion is significant, about the conduct of the licensee who is the subject of the complaint that was not received or obtained by the Society as a result of or in the course of its consideration of the merits of the complaint, the Commissioner shall refer the information and complaint back to the Society for further consideration.

Disposition of complaint referred for review

  (2)  After reviewing a complaint that has been referred to the Commissioner for review, the Commissioner shall,
 
  (a)  if satisfied that the Society’s consideration of the complaint and its decision to take no further action in respect of the complaint is reasonable, so notify in writing the complainant and the Society; or
  (b)  if not satisfied that the Society’s consideration of the complaint and its decision to take no further action in respect of the complaint is reasonable, refer the complaint back to the Society with a recommendation that the Society take further action in respect of the complaint, or the licensee who is the subject of the complaint, and so notify in writing the complainant.

Disposition of complaint referred for review: notice

  (3)  The Society shall notify in writing the licensee who is the subject of a complaint reviewed by the Commissioner of the Commissioner’s disposition of the complaint.

Referral back to Society: notice

  (4)  If the Commissioner refers a complaint back to the Society with a recommendation that the Society take further action in respect of the complaint, or the licensee who is the subject of the complaint, the Society shall consider the recommendation and notify in writing the Commissioner, complainant and licensee who is the subject of the complaint of whether the Society will be following the recommendation.

Same

  (5)  If the Commissioner refers a complaint back to the Society with a recommendation that the Society take further action in respect of the complaint, or the licensee who is the subject of the complaint, and the Society determines not to follow the recommendation of the Commissioner, the Society shall provide the Commissioner, complainant and licensee who is the subject of the complaint with a written explanation for the determination.

Procedure

8.  (1)  Subject to this Part, the procedures applicable to the review of a complaint referred to the Commissioner shall be determined by the Commissioner.

Meeting

  (2)  The Commissioner shall, where practicable, meet with each complainant whose complaint has been referred to the Commissioner for review, and the Commissioner may meet with the complainant by such telephone, electronic or other communication facilities as permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously.

Participation in review: Society

  (3)  Other than as provided for in subsections (5) and (6), or unless otherwise expressly permitted by the Commissioner, the Society shall not participate in a review of a complaint by the Commissioner.

Participation in review: licensee

  (4)  The licensee who is the subject of a complaint that has been referred to the Commissioner for review shall not participate in a review of the complaint by the Commissioner.

Description of consideration, etc.

  (5)  At the time that the Society refers a complaint to the Commissioner for review, the Society is entitled to provide the Commissioner with a description of its consideration of the complaint and an explanation of its decision to take no further action in respect of the complaint.

Requirement to answer questions

  (6)  The Commissioner may require the Society to provide information in respect of its consideration of a complaint that has been referred to the Commissioner for review and its decision to take no further action in respect of the complaint, and the Society shall provide such information.

RESOLUTION

Discretionary referral of complaints

9.  (1)  The Society may refer a complaint to the Commissioner for resolution if,
 
  (a)  the complaint is within the jurisdiction of the Society to investigate;
  (b)  the complaint has not been disposed of by the Proceedings Authorization Committee, Hearing Division or Appeal Division;
  (c)  the complaint has not been referred to the Proceedings Authorization Committee;
  (d)  no resolution of the complaint has been attempted by the Society; and
  (e)  the complainant and the licensee who is the subject of the complaint consent to the complaint being referred to the Commissioner for resolution.

Parties

10.  The parties to a resolution of a complaint by the Commissioner are the complainant, the licensee who is the subject of the complaint and the Society.

Outcome of Resolution

11.  (1)  There shall be no resolution of a complaint by the Commissioner until there is an agreement signed by all parties agreeing to the resolution.

No resolution

  (2)  If there is no resolution of a complaint by the Commissioner, the Commissioner shall so notify in writing the parties and refer the complaint back to the Society.

Enforcement of resolution

  (3)  A resolution of a complaint by the Commissioner shall be enforced by the Society.

Confidentiality: Commissioner

12.  (1)  Subject to subsection (2), the Commissioner shall not disclose any information that comes to the Commissioner’s knowledge during the resolution of a complaint.

Exceptions

  (2)  Subsection (1) does not prohibit disclosure required of the Commissioner under the Society’s rules of professional conduct.

Without prejudice

  (3)  All communications during the resolution of a complaint by the Commissioner and the Commissioner’s notes and record of the resolution shall be deemed to be without prejudice to any party.

Procedure

13.  Subject to this Part, the procedures applicable to the resolution of a complaint referred to the Commissioner shall be determined by the Commissioner.
 

PART II

DISCRIMINATION AND HARASSMENT COUNSEL

Interpretation

14.  In this Part, “Committee” means the Equity and Indigenous Affairs Committee.

Appointment

15.  (1)  Convocation shall appoint a person as Discrimination and Harassment Counsel in accordance with section 16.

Same

  (2)  Convocation may appoint one or more persons as Alternate Discrimination and Harassment Counsel in accordance with section 17.

Term of office

  (3)  Subject to subsection (4), the Counsel and each Alternate Counsel hold office for a term not exceeding three years and are eligible for reappointment.

Appointment at pleasure

  (4)  The Counsel and each Alternate Counsel hold office at the pleasure of Convocation.

No appointment without recommendation

16.  (1)  Convocation shall not appoint a person as Counsel unless the appointment is recommended by the Committee.

Vacancy in office

  (2)  When a vacancy exists in the office of Counsel, the Committee shall conduct a search for candidates for appointment as Counsel in accordance with procedures and criteria established by the Committee.

List of candidates

  (3)  At the conclusion of the search, the Committee shall give Convocation a ranked list of at least two persons the Committee recommends for appointment as Counsel, with brief supporting reasons.

Additional candidates

  (4)  If the Committee gives Convocation a list of persons it recommends for appointment, Convocation may require the Committee to give Convocation a list of additional persons who are recommended by the Committee for appointment.

Recommendations considered in absence of public

  (5)  Convocation shall consider the Committee’s recommendations in the absence of the public.

No appointment without recommendation

17.  (1)  Convocation shall not appoint a person as Alternate Counsel unless the appointment is recommended by the standing Committee.

Vacancy in office

  (2)  If the Committee wishes Convocation to appoint another person as Alternate Counsel, the Committee shall give Convocation, from the most recent list of persons the Committee recommended to Convocation for appointment as Counsel, a ranked list of at least two persons the Committee recommends for appointment as Alternate Counsel, with brief supporting reasons.

Same

  (3)  If the Committee is not able to give Convocation, from the most recent list of persons the Committee recommended to Convocation for appointment as Counsel, a ranked list of at least two persons the Committee recommends for appointment as Alternate Counsel, the Committee shall,
 
  (a)  conduct a search for candidates for appointment as Alternate Counsel in accordance with procedures and criteria established by the Committee; and
  (b)  at the conclusion of the search, the Committee shall give Convocation a ranked list of at least two persons the Committee recommends for appointment as Alternate Counsel, with brief supporting reasons.

Additional candidates

  (4)  If the Committee gives Convocation a list of persons it recommends for appointment, Convocation may require the Committee to give Convocation a list of additional persons who are recommended by the Committee for appointment.

Recommendations considered in absence of public

  (5)  Convocation shall consider the Committee’s recommendations in the absence of the public.

Application of ss. 16 and 17

18.  If Convocation, on the recommendation of the Committee,
 
  (a)  reappoints the Counsel, subsections 16 (2) to (4) do not apply; or
  (b)  reappoints an Alternate Counsel, subsections 17 (2) to (4) do not apply.

Function of Counsel

19.  (1)  It is the function of the Counsel,
 
  (a)  to assist, in a manner that the Counsel deems appropriate, any person who believes that he or she has been discriminated against or harassed by a licensee;
  (b)  to assist the Society, as required, to develop and conduct for licensees information and educational programs relating to discrimination and harassment; and
  (c)  to perform such other functions as may be assigned to the Counsel by Convocation.

Information received not for investigation

  (2)  Information received by the Counsel under clause (1) (a) is not information received by the Society for the purposes of section 49.3 of the Act.

Access to information

  (3)  Except with the prior permission of the Society, the Counsel is not entitled to have any information in the records or within the knowledge of the Society respecting a licensee.

Annual and semi-annual report to Committee

20.  (1)  Unless the Committee directs otherwise, the Counsel shall make a report to the Committee,
 
  (a)  not later than January 31 in each year, upon the affairs of the Counsel during the period July 1 to December 31 of the immediately preceding year; and
  (b)  not later than September 1 in each year, upon the affairs of the Counsel during the period January 1 to June 30 of that year.

Report to Convocation

  (2)  The Committee shall submit each report received from the Counsel to Convocation on the first day following the deadline for the receipt of the report by the Committee on which Convocation has a regular meeting.

Confidentiality

21.  (1)  The Counsel shall not disclose,
 
  (a)  any information that comes to his or her knowledge as a result of the performance of his or her duties under clause 19 (1) (a); or
  (b)  any information that comes to his or her knowledge under subsection 19 (3) that a bencher, officer, employee, agent or representative of the Society is prohibited from disclosing under section 49.12.

Rules of professional conduct

  (2)  For greater certainty, clause (1) (a) prevails over the Society’s rules of professional conduct to the extent that the rules require the Counsel to disclose to the Society the information mentioned in clause (1) (a).

Exceptions

  (3)  Subsection (1) does not prohibit,
 
  (a)  disclosure required in connection with the administration of the Act, the regulations, the by-laws or the rules of practice and procedure;
  (b)  disclosure of information that is a matter of public record;
  (c)  disclosure of information where the Counsel has reasonable grounds to believe that there is an imminent risk to an identifiable individual or group of individuals of death, serious bodily harm or serious psychological harm that substantially interferes with the individual=s or group=s health or well-being and that the disclosure is necessary to prevent the death or harm;
  (d)  disclosure by the Counsel to his or her counsel; or
  (e)  disclosure with the written consent of all persons whose interests might reasonably be affected by the disclosure.

Alternate Counsel:  Counsel unable to act

22.  (1)  If the Counsel for any reason is unable to perform the function of the Counsel during his or her term in office, an Alternate Counsel shall perform the function of the Counsel.

Selection of Alternate Counsel

  (2)  The Alternate Counsel mentioned in subsection (1) shall be chosen by the Counsel or, if the Counsel is unable to do so, by the Chief Executive Officer.

Alternate Counsel:  Counsel office vacant

  (3)  Despite subsection (1), if there is a vacancy in the office of the Counsel, an Alternate Counsel chosen by the Committee shall perform the function of the Counsel until a Counsel is appointed under section 15.

Annual and semi-annual report to Committee

  (4)  If the Committee directs, an Alternate Counsel shall make any report mentioned in section 20.

Application of s. 21

  (5)  Section 21 applies to an Alternate Counsel while performing the function of the Counsel.
 

PART III

INVESTIGATIONS

EXERCISE OF POWERS

Exercise of powers, etc.

23.  The holders of the following offices may exercise the powers and perform the duties under subsections 49.3 (2) and (4) of the Act:
 
  1.  Executive Director, Professional Regulation.
  2.  Manager and Senior Counsel, Professional Regulation.
  3.  Director, Intake and Resolution, Professional Regulation.
  4.  Assistant Manager, Intake and Resolution, Professional Regulation.
 

PART IV

PROFESSIONAL COMPETENCE

INTERPRETATION

Interpretation

24.  In this Part,
 
“holiday” means,
 
  (a)  any Saturday or Sunday;
  (b)  New Year’s Eve Day, and where New Year’s Eve Day falls on a Saturday or Sunday, the preceding Friday;
  (c)  New Year’s Day, and where New Year’s Day falls on a Saturday or Sunday, the following Monday;
  (d)  Good Friday;
  (e)  Easter Monday;
  (f)  Victoria Day;
  (g)  Canada Day, and where Canada Day falls on a Saturday or Sunday, the following Monday;
  (h)  Civic Holiday;
  (i)  Labour Day;
  (j)  Thanksgiving Day;
  (k)  Remembrance Day, and where Remembrance Day falls on a Saturday or Sunday, the following Monday;
  (l)  Christmas Eve Day, and where Christmas Eve Day falls on a Saturday or Sunday, the preceding Friday;
  (m)  Christmas Day, and where Christmas Day falls on a Saturday or Sunday, the following Monday and Tuesday, and where Christmas Day falls on a Friday, the following Monday;
  (n)  Boxing Day; and
  (o)  any special holiday proclaimed by the Governor General or the Lieutenant Governor;
 
“panelist” means a member of the Hearing Division appointed under subsection 42 (6) of the Act to review a proposal for an order made to a licensee.

Exercise of powers by committee

25.  The performance of any duty, or the exercise of any power, given to the Professional Development and Competence Committee under this Part is not subject to the approval of Convocation.

INFORMATION

Requirement to provide information

26.  (1)  The Society may require a licensee to provide to the Society specific information about the licensee’s quality of service to clients, including specific information about,
 
  (a)  the licensee’s knowledge, skill or judgment;
  (b)  the licensee’s attention to the interests of clients;
  (c)  the records, systems or procedures of the licensee’s professional business; and
  (d)  other aspects of the licensee’s professional business.

Notice of requirement to provide information

  (2)  The Society shall notify a licensee in writing of the requirement to provide information under subsection (1) and shall send to the licensee a detailed list of the information to be provided by him or her.

Time for providing information

  (3)  The licensee shall provide to the Society the specific information required of him or her not later than thirty days after the date specified on the notice of the requirement to provide information.

Extension of time for providing information

  (4)  Despite subsection (3), on the request of the licensee, the Society may extend the time within which the licensee is required to provide to the Society the specific information required of him or her.

Request for extension of time

  (5)  A request to the Society to extend time under subsection (4) shall be made by the licensee in writing and not later than the day on which the licensee is required under subsection (3) to provide to the Society the specific information required of him or her.

PRACTICE REVIEWS

Reviews

27.  (1)  A review of a licensee’s professional business may be conducted if,
 
  (a)  an employee of the Society holding the office of Executive Director, Professional Development and Competence is satisfied that there are reasonable grounds for believing that the licensee may be failing or may have failed to meet standards of professional competence;
  (b)  the licensee holds a Class L1 licence and has held the licence for not more than eight years;
  (c)  the licensee holds a Class L1 licence and,
 
  (i)  is required to pay the full amount of the annual fee under subsection 2 (2) of By-Law 5 [Annual Fee], and
  (ii)  is required to pay insurance premium levies under subsection 2 (1) of By-Law 6 [Professional Liability Insurance];
 
  (d)  the licensee holds a Class P1 licence; or
  (e)  the licensee holds a Class L3 licence and is required to pay the full amount of the annual fee under subsection 2 (2) of By-Law 5 [Annual Fee].

Determination of reasonable grounds

  (2)  For the purposes of clause (1) (a), in determining that there are reasonable grounds for believing that the licensee may be failing or may have failed to meet standards of professional competence, the following may be considered:
 
  1.  The nature, number and type of complaints made to the Society in respect of the conduct and competence of the licensee.
  2.  Any order made against the licensee under section 35, 40, 44 or 47 or subsection 49.35 (2) of the Act.
  3.  Any undertaking given to the Society by the licensee.
  4.  Any information that comes to the knowledge of an officer, employee, agent or representative of the Society in the course of or as a result of considering a complaint which suggests that the licensee may be failing or may have failed to meet standards of professional competence.
  5.  Any information that comes to the knowledge of an officer, employee, agent or representative of the Society in the course of or as a result of an investigation which suggests that the licensee may be failing or may have failed to meet standards of professional competence.
  6.  Any information that comes to the knowledge of an officer, employee, agent or representative of the Society in the course of or as a result of a proceeding which suggests that the licensee may be failing or may have failed to meet standards of professional competence.
  7.  The result of an audit where the result suggests that,
 
  (a)  the licensee is in default of the requirements of By-Law 9 [Financial Transactions and Records;
  (b)  the licensee is in default of the requirements of the rules of professional conduct for licensees with respect to conflicts of interest;
  (c)  there are deficiencies in the records, systems or procedures of the licensee’s professional business; or
  (d)  there are deficiencies in the administration of the licensee’s professional business.

Review of licensee’s professional business

28.  (1)  The Society shall assign one or more persons to conduct a review of a licensee’s professional business.

Assignment of additional persons to review

  (2)  At any time after a review has commenced, the Society may assign one or more persons to assist or replace the person or persons originally assigned to conduct the review.

Review of professional business is not public information

  (3)  The fact that a review of a licensee’s professional business is being or has been conducted shall not be made public, except as required in connection with a proceeding under the Act.

Final report

29.  (1)  On completion of a review of a licensee’s professional business, the person or persons who conducted the review shall submit to the Society a final report on the review.

Contents of final report

  (2)  The final report on a review of a licensee’s professional business shall contain,
 
  (a)  the opinion of the person or persons who conducted the review as to whether the licensee who was the subject of the review is failing or has failed to meet standards of professional competence; and
  (b)  if the person or persons who conducted the review are of the opinion that the licensee who was the subject of the review is failing or has failed to meet standards of professional competence, the recommendations of the person or persons.

Final report

  (3)  The Society shall provide to the licensee who is the subject of the final report a copy thereof.

Recommendations

30.  (1)  If on completion of a review of a licensee’s professional business and receipt of the final report on the review, the Society decides to make recommendations to the licensee under subsection 42 (3) of the Act, but not to include the recommendations in a proposal for an order under subsection 42 (4) of the Act, the Society shall so notify the licensee in writing.

Same

  (2)  The Society may make recommendations to the licensee at the same time as the Society notifies the licensee under subsection (1) or within a reasonable period of time after the Society notifies the licensee under subsection (1).

Proposal for order

31.  (1)  If on completion of a review of a licensee’s professional business and receipt of the final report on the review, the Society decides to make recommendations to the licensee under subsection 42 (3) of the Act and to include the recommendations in a proposal for an order under subsection 42 (4) of the Act, the Society shall so notify the licensee in writing.

Same

  (2)  The notice under subsection (1) shall be accompanied by the proposal for an order.

Form of proposal for an order

  (3)  A proposal for an order shall, as far as possible, be in the form of an order made under subsection 42 (7) of the Act.

Time for responding to proposal

  (4)  A licensee who receives a proposal for an order shall, not later than thirty days after the date specified on the notice given to the licensee under subsection (1), notify the Society in writing as to whether the licensee accepts the proposal.

Extension of time for responding to proposal

  (5)  Despite subsection (4), on the request of the licensee, or on its own initiative, the Society may extend the time within which the licensee is to respond to the proposal.

Request for extension of time

  (6)  A request to the Society to extend time under subsection (5) shall be made by the licensee in writing and not later than the day on which the licensee is required under subsection (4) to respond to the proposal.

Modifying proposal for order

  (7)  Before the time for responding to a proposal for an order has expired, the Society may modify the proposal if the licensee consents to the modification, and the modified proposal shall be deemed to be the proposal to which the licensee is required to respond under subsection (4).

Failure to respond

  (8)  A licensee who fails to respond in writing to a proposal for an order within the thirty day period specified in subsection (4), or within the extended time period specified by the Society under subsection (5), the licensee shall be deemed to have refused to accept the proposal.

Review of proposal by panelist: materials

32.  The Society shall provide to the panelist the following materials:
 
  1.  The final report on the review of the licensee’s professional business.
  2.  The licensee’s written response, if any, to the final report, including the licensee’s written response, if any, to the recommendations of the person or persons who conducted the review.
  3.  The proposal for an order made to the licensee.
  4.  The licensee’s written response, if any, to the proposal.

Review of proposal by panelist: refusal to make order

33.  The panelist may refuse to make an order giving effect to the proposal only after a meeting with the licensee and the Society.

Review of proposal by panelist: modifications

34.  The panelist may make an order that includes modifications to the proposal only after a meeting with the licensee and the Society.

Communications with licensee and Society prohibited

35.  The panelist shall not communicate with the licensee or the Society with respect to the proposal except in accordance with section 36.

Meeting with licensee and Society

36.  (1)  The panelist may meet with the licensee and the Society by means of such telephone, electronic or other communication facilities as permit all persons participating in the meeting to communicate with each other instantaneously and simultaneously.

Both parties to be present

  (2)  Subject to subsection (3), the panelist shall not meet with the licensee alone or with the Society alone to discuss the proposal, but nothing in this subsection is intended to deny to the licensee the right to counsel.

Exception

  (3)  The panelist may meet with the Society alone to discuss the proposal if,
 
  (a)  the meeting is not held under section 34; and
  (b)  notice of the meeting has been given to the licensee in accordance with subsections (4) and (5) and the licensee fails to attend at the meeting.

Notice

  (4)  The Society shall give to a licensee reasonable notice of a meeting with the panelist.

Same

  (5)  A notice of a meeting shall be in writing and shall include,
 
  (a)  a statement of the time, place and purpose of the meeting; and
  (b)  a statement that if the licensee does not attend at the meeting, the panelist may meet with the Society alone to discuss the proposal.

Order

37.  (1)  An order made under subsection 42 (7) of the Act shall be in Form 11A and shall contain,
 
  (a)  the name of the panelist who made it;
  (b)  the date on which it was made; and
  (c)  a recital of the particulars necessary to understand the order, including the date of any meeting and the persons who attended at the meeting.

Same

  (2)  The operative parts of an order made under subsection 42 (7) of the Act shall be divided into paragraphs, numbered consecutively.

Notice of order

  (3)  The Society shall send to the licensee who is the subject of an order made under subsection 42 (7) of the Act a copy of the order by any of the following methods:
 
  1.  Personal delivery to the licensee.
  2.  Regular lettermail to the last known address of the licensee.
  3.  Fax to the last known fax number of the licensee.
  4.  E-mail to the last known e-mail address of the licensee.

Date of receipt: mail

  (4)  If the copy of the order is sent by regular lettermail, it shall be deemed to be received by the licensee on the fifth day after the day it is mailed, unless the day is a holiday, in which case the copy shall be deemed to be received on the next day that is not a holiday.

Date of receipt: fax or e-mail

  (5)  If the copy of the order is sent by fax or e-mail, it shall be deemed to be received by the licensee on the day after it was sent, unless the day is a holiday, in which case the copy shall be deemed to be received on the next day that is not a holiday.

Effective date of order

  (6)  Unless otherwise provided in the order, an order made under subsection 42 (7) of the Act is effective from the date on which it is made.

Order is not public information

  (7)  An order made under subsection 42 (7) of the Act shall not be made public.

Order making licence subject to terms, etc., is public information

  (8)  Despite subsection (7), an order made under subsection 42 (7) of the Act that imposes terms, conditions, limitations or restrictions on the licensee or the licensee’s licence is a matter of public record.
 

PART V

PAYMENT OF COSTS

AUDIT

Payment of costs

38.  On application by the Society, a bencher appointed for the purpose by Convocation may make an order requiring a licensee who was the subject of an audit under section 49.2 of the Act to pay the cost or a portion of the cost of the audit if the bencher is satisfied that,
 
  (a)  the audit was required because the licensee had failed to submit to the Society the report required under section 4 of By-Law 8 [Reporting and Filing Requirements];
  (b)  at the time arranged between the Society and the licensee, the person conducting the audit could not gain entry to the business premises of the licensee;
  (c)  at any time during the audit, the licensee failed to produce to the person conducting the audit the financial records and other documents that the licensee prior to a specified time had been requested to make available to the person at that time;
  (d)  at any time during the audit, the licensee failed to produce to the person conducting the audit financial records that were up to date and the failure to produce financial records that were up to date increased significantly the amount of time required to complete the audit; or
  (e)  at any time during the audit, the licensee produced financial records that were not in compliance with the requirements of By-Law 9 [Financial Transactions and Records] and the production of financial records that were not in compliance with the requirements of By-Law 9 [Financial Transactions and Records] increased the amount of time required to complete the audit.

Notice of application

39.  (1)  An application for payment of the cost or a portion of the cost of an audit shall be commenced by the Society notifying the licensee in writing of the application.

Method of giving notice

  (2)  Notice under subsection (1) is sufficiently given if,
 
  (a)  it is delivered personally;
  (b)  it is sent by regular lettermail addressed to the licensee at the latest address for the licensee appearing on the records of the Society; or
  (c)  it is faxed to the licensee at the latest fax number for the licensee appearing on the records of the Society.

Receipt of notice

  (3)  Notice under subsection (1) shall be deemed to have been received by the licensee,
 
  (a)  if it was sent by regular lettermail, on the fifth day after it was mailed; and
  (b)  if it was faxed, on the first day after it was faxed.

Bill of costs

40.  (1)  Where the Society is applying for payment of the cost or a portion of the cost of an audit, the Society shall send to the licensee at least ten days before the date fixed for consideration of the application a bill of costs setting out the expenses, fees, disbursements and other charges incurred by the Society to conduct the audit.

Tariff

  (2)  The bill of costs prepared by the Society shall, as far as possible, be in accordance with a tariff established by Convocation from time to time.

Application of certain sections

  (3)  Subsections 39 (2) and (3) apply, with necessary modifications, to the delivery of the bill of costs under subsection (1).

Consideration of application: procedure

41.  (1)  Subject to sections 39 and 40 and subsections (2), (3), (5) and (6), the procedure applicable to the consideration of an application for the payment of the cost or a portion of the cost of an audit shall be determined by the bencher and, without limiting the generality of the foregoing, the bencher may decide who may make submissions to him or her, when and in what manner.

Submissions by licensee and Society

  (2)  The licensee and the Society are entitled to make submissions to the bencher when he or she is considering an application for the payment of the cost or a portion of the cost of an audit.

Ability to pay

  (3)  In considering an application for the payment of the cost or a portion of the cost of an audit, the bencher shall take into account, among other relevant factors, the licensee’s ability to pay.

Authority of bencher

  (4)  After considering an application for payment of the cost or a portion of the cost of an audit, the bencher shall,
 
  (a)  dismiss the application and declare that the licensee is not required to pay the cost or any portion of the cost of the audit; or
  (b)  order that the licensee pay the cost or a portion of the cost of the audit, as requested by the Society in the application or as determined by the bencher, and set the due date for payment.

Tariff

  (5)  Where the bencher determines under clause (4) (b) that the licensee is to pay the cost or a portion of the cost of the audit other than as requested by the Society in the application, the bencher’s determination as to the amount payable by the licensee shall, as far as possible, be in accordance with a tariff established by Convocation from time to time.

Reasons for decision

  (6)  If requested by the licensee or the Society, the bencher shall state in writing the reasons for his or her decision on the application.

Appeal

42.  (1)  The licensee or the Society if dissatisfied with the bencher=s decision under subsection 41 (4) may appeal the decision to a panel of three benchers appointed for the purpose by Convocation.

Time for appeal

  (2)  An appeal under subsection (1) shall be commenced,
 
  (a)  if the licensee is appealing, by the licensee notifying the Society in writing of the appeal within thirty days after the day the bencher delivers his or her decision; or
  (b)  if the Society is appealing, by the Society notifying the licensee in writing of the appeal within thirty days after the day the bencher delivers his or her decision.

Procedure

  (3)  The rules of practice and procedure apply, with necessary modifications, to the consideration by the panel of three benchers of an appeal under subsection (1) as if the consideration of the appeal were the hearing of an appeal under subsection 49.32 (2) of the Act.

Same

  (4)  Where the rules of practice and procedure are silent with respect to a matter of procedure, the Statutory Powers Procedure Act applies to the consideration by the panel of three benchers of an appeal under subsection (1).

Payment of cost of audit

  (5)  Where a licensee or the Society appeals under subsection (1), payment of the cost or a portion of the cost of an audit, as ordered by the bencher under subsection 41 (4), is postponed until the appeal is disposed of by the panel of three benchers.

Decision on appeal

  (6)  After considering an appeal made under subsection (1), the panel of three benchers shall,
 
  (a)  confirm the bencher’s decision; or
  (b)  strike out the bencher’s decision and substitute its own decision.

Decision final

  (7)  The decision of the panel of three benchers on an appeal made under subsection (1) is final.
 

PART VI

PROCEEDINGS AUTHORIZATION COMMITTEE

GENERAL

Definitions

43.  In this Part,
 
“Committee” means the Proceedings Authorization Committee;
 
“outside counsel” means a person appointed under section 49.53 of the Act to represent the Society in any proceeding under Part II of the Act before the Hearing Division, the Appeal Division or a court that concerns a bencher or employee of the Society;

Proceedings Authorization Committee

44.  (1)  The Proceedings Authorization Committee is continued as the Proceedings Authorization Committee in English and as Comité d’autorisation des instances in French.

Composition

  (2)  The Committee shall consist of six persons appointed by Convocation,
 
  (a)  at least one of whom shall be the chair or a vice-chair of the Professional Regulation Committee;
  (b)  at least one of whom shall be the chair or a vice-chair of the Professional Development and Competence Committee;
  (c)  at least one of whom shall be an elected bencher who is licensed to practise law in Ontario as a barrister and solicitor;
  (d)  at least one of whom shall be an elected bencher who is licensed to provide legal services in Ontario; and
  (e)  at least one of whom shall be a person who is not a licensee.
 
  (3)  Revoked.

Term of office

  (4)  Subject to subsection (5), a person appointed to the Committee shall hold office for a term of one year and is eligible for reappointment.

Appointment at pleasure

  (5)  A person appointed to the Committee holds office as a member of the Committee at the pleasure of Convocation.

Chair

45.  (1)  Convocation shall appoint one member of the Committee who is an elected bencher as chair of the Committee.

Term of office

  (2)  Subject to subsection (3), the chair holds office for a term of one year and is eligible for reappointment.

Appointment at pleasure

  (3)  The chair holds office at the pleasure of Convocation.

Function of Committee

46.  It is the function of the Committee,
 
  (a)  to review all matters referred to it in accordance with this Part and, in respect of each matter, to determine whether any action mentioned in subsection 51 (1) should be taken; and
  (b)  to determine, in any given case, whether the Society should apply to the Superior Court of Justice for an order under section 49.13 of the Act.

REVIEW OF MATTERS REFERRED TO COMMITTEE

Review of matters: quorum of Committee

47.  (1)  Two members of the Committee constitute a quorum for the purposes of reviewing a matter and taking action in respect of the matter.

Temporary members

  (2)  If no two members of the Committee are able to constitute a quorum because five or more members of the Committee are unable for any reason to act, the chair of the Committee may appoint one or more persons as temporary members of the Committee for the purposes of constituting a quorum, and the temporary members shall be deemed, for the purposes of subsection (1), to be members of the Committee.

Review by telephone conference call, etc.

48.  The Committee may meet to review a matter by means of such telephone, electronic or other communication facilities as permit all persons participating in the meeting to communicate with each other instantaneously and simultaneously.

No right to participate

49.  (1)  Subject to subsection (2), no person may participate in the review of a matter by the Committee.

Participation at request of Committee

  (2)  For the purposes of answering any questions that the Committee might have about a matter referred to it or about actions that may be taken by the Committee with respect to a matter referred to it, the Committee may require one or more of the following persons to participate in a review of a matter:
 
  1.  The person who referred the matter to it.
  2.  An officer, employee, agent or representative of the Society who is or was involved in an audit, investigation, review, search or seizure relating to the matter.

Referral by Society

50.  (1)  Subject to subsection (2), during or after an audit, investigation or review, the Society may refer to the Committee a matter respecting the conduct of a licensee or group of licensees, the capacity of a licensee or the professional competence of a licensee for one or more of the following purposes:
 
  1.  Obtaining directions with respect to the conduct of an audit, investigation or review.
  2.  Obtaining approval or directions for the informal resolution of the matter.
  3.  Obtaining authorization for the Society to move in an intended proceeding or in a proceeding, if the Hearing Division has not commenced a hearing to determine the merits of the proceeding, for an interlocutory order suspending a licensee’s licence or restricting the manner in which a licensee may practise law or provide legal services.
  4.  Obtaining authorization for the Society to apply to the Hearing Division for a determination of whether,
 
  i.  a licensee has contravened section 33 of the Act,
  ii.  a licensee is or has been incapacitated, or
  iii.  a licensee is failing or has failed to meet standards of professional competence.

Restrictions on referrals by Society

  (2)  The Society shall not refer to the Committee a matter respecting the conduct of a licensee if the matter is a complaint that has been referred to the Complaints Resolution Commissioner for resolution or review and the Complaints Resolution Commissioner has not yet disposed of the matter.

Referral by panelist

  (3)  Subject to subsection (4), a member of the Hearing Division appointed under subsection 42 (6) of the Act to review a proposal for an order made to a licensee may refer to the Committee a matter respecting the professional competence of the licensee for the purpose of obtaining authorization for the Society to apply to the Tribunal for a determination by the Hearing Division of whether the licensee is failing or has failed to meet standards of professional competence.

Restrictions on referrals by panelist

  (4)  A member of the Hearing Division appointed under subsection 42 (6) of the Act to review a proposal for an order made to a licensee shall not refer to the Committee a matter respecting the professional competence of the licensee except after the bencher has,
 
  (a)  met with the licensee and the Society, as required under sections 33 and 34, in accordance with sections 35 and 36; and
  (b)  refused to make an order under subsection 42 (7) of the Act.

Recommendations for action

  (5)  A person who refers a matter to the Committee may recommend actions to be taken by the Committee in respect of the matter, and, in making his or her recommendations, the person is not restricted to recommending the actions mentioned in paragraphs 1 to 7 of subsection 51 (1).

Review of matters

51.  (1)  After reviewing a matter, the Committee may determine that no action should be taken in respect of the matter or, subject to subsections (2) to (4), the Committee may take one or more of the following actions:
 
  1.  Approve, or give directions for, the informal resolution of the matter.
  2.  Authorize the Society to apply to the Tribunal for a determination by the Hearing Division of whether,
 
  i.  a licensee has contravened section 33 of the Act,
  ii.  a licensee is or has been incapacitated, or
  iii.  a licensee is failing or has failed to meet standards of professional competence.
 
  3.  Invite a licensee to attend before a panel of benchers to receive advice concerning his or her conduct
  4.  Invite a licensee to attend before a panel of benchers to receive advice concerning his or her professional competence.
  5.  Send to a licensee a letter of advice concerning his or her conduct.
  6.  Send to a licensee a letter of advice concerning his or her professional competence.
  7.  Authorize the Society to move in an intended proceeding or in a proceeding, if the Hearing Division has not commenced a hearing to determine the merits of the proceeding, for an interlocutory order suspending a licensee’s licence or restricting the manner in which a licensee may practise law or provide legal services.
  8.  Any other action that the Committee considers appropriate.

Restriction on authorization of conduct proceedings

  (2)  The Committee shall not authorize the Society to apply to the Tribunal for a determination by the Hearing Division of whether a licensee has contravened section 33 of the Act unless the Committee is satisfied that there are reasonable grounds for believing that the licensee has contravened section 33 of the Act.

Restriction on authorization of capacity proceedings

  (3)  The Committee shall not authorize the Society to apply to the Tribunal for a determination by the Hearing Division of whether a licensee is or has been incapacitated unless the Committee is satisfied that there are reasonable grounds for believing that the licensee is or has been incapacitated.

Restriction on authorization of professional competence proceedings

  (4)  The Committee shall not authorize the Society to apply to the Tribunal for a determination by the Hearing Division of whether a licensee is failing or has failed to meet standards of professional competence unless the Committee is satisfied that there are reasonable grounds for believing that the licensee is failing or has failed to meet standards of professional competence.

Appointment of representative

52.  (1)  Where the Committee authorizes the Society to apply to the Tribunal for a determination by the Hearing Division of whether a licensee is or has been incapacitated, the Committee may appoint another licensee to represent the licensee in proceedings under Part II of the Act before the Hearing Division, the Appeal Division or a court if the Committee is satisfied that,
 
  (a)  the licensee is unable to participate in the proceedings or is unable to instruct counsel to do so;
  (b)  the licensee has no legal representation; and
  (c)  the licensee does not have a guardian, an attorney or a similar person who has authority to represent the licensee in the proceedings.

Costs

  (2)  The costs resulting from an appointment under subsection (1) shall be paid for by the Society.

Decision in writing

53.  The Committee shall record in writing its decision on every matter referred to it.

Notice

54.  The Committee shall give to the Society notice of its decision on every matter referred to it.

Reasons

55.  The Committee is not required to provide at any time to any person its reasons for a decision.
 
56.  Revoked.

APPLICATION FOR DISCLOSURE ORDER

Application by Society

57.  (1)  On application by the Society, the Committee shall determine whether the Society should apply to the Superior Court of Justice for an order under section 49.13 of the Act.

Quorum of Committee

  (2)  Any two members of the Committee constitute a quorum for the purposes of making the determination under subsection (1).

Factors to be considered

  (3)  In making the determination under subsection (1), the Committee shall give primary consideration to the extent to which disclosure of information is necessary in order to protect the public and further the administration of justice.

Application of certain sections

  (4)  Sections 48, 49, 53, 54 and 55 apply, with necessary modifications, to the making of a determination under subsection (1).
 

PART VII

DEADLINE FOR PAYMENT OF ORDERS FOR COSTS

Deadline for payment

58.  (1)  For the purposes of subsection 49.28 (3) of the Act, a licensee shall pay an order for costs, if not specified or otherwise provided for in the order, within one year of the date of the order.

Application by licensee

  (2)  On application by a licensee in writing, the Executive Director, Professional Regulation, a person holding an office designated by the Executive Director, Professional Regulation or a person holding an office designated by the Chief Executive Officer may:
 
  1.  Extend, by more than one week but less than 52 weeks, the deadline for paying costs provided for under an order for costs or under subsection (1).
  2.  Establish a payment plan for the payment of an order for costs.
  3.  Agree to accept an amount payable under an order for costs that, if paid by the licensee, satisfies the Society that the order for costs is paid in full.
  4.  Waive all or a portion of the interest otherwise payable under an order for costs.
 
Terms or Concepts Explained