What May Influence the Severity of Disciplinary Sanctions by Professional Regulatory Bodies?

Under their respective enabling legislation, professional regulatory bodies¹ are typically granted broad powers and discretion to enforce standards of conduct and ethics for their corresponding profession.

Such powers and discretion commonly pertain to processing complaints, conducting practice reviews and investigations, as well as making disciplinary decisions with legally binding effects. A common way for regulatory bodies to determine appropriate disciplinary sanctions is through disciplinary hearings held by an internal hearing committee, tribunal or panel. Such hearings are an important mechanism for upholding fairness.

Regulators, whether self-regulatory bodies (e.g. the ones for CFAs) or government agencies, operate under the rule of law and cannot exercise their powers arbitrarily. Hence, they often make their decisions with reference to established jurisprudence and legal principles so that such decisions are legally justified.

Jaswal v. Medical Board (Nfld.) is a highly influential common law case which has been cited in a significant number of Alberta regulatory disciplinary decisions and some BC ones.

Jaswal speaks to three issues commonly present in regulatory actions: 1) The factual thresholds for finding misconduct; 2) The assessment of disciplinary proceeding costs recoverable from a respondent; and 3) The approach to determining appropriate disciplinary sanctions. The Supreme Court of Newfoundland and Labrador’s reasoning on the third issue is perhaps the most influential aspect of this case, and this aspect is the focus of this article.

Taylor Janis Workplace Law offers legal services to all professionals facing regulatory challenges in all areas of Alberta and BC. Whether you are facing a regulatory action or legally challenging a disciplinary decision, do not hesitate to contact us to schedule a consultation.

Case Overview

The Impugned Disciplinary Decision:

Dr. Jaswal faced two allegations in a regulatory action by the Newfoundland Medical Board (the “Board”): (1) sexual assault of a patient, D.M.; and (2) initiating or continuing a social encounter with D.M., a woman known to be emotionally fragile.

• The Board found insufficient evidence of sexual assault but concluded Dr. Jaswal’s interaction with D.M. constituted professional misconduct.
• The disciplinary orders: The Medical Board ordered a 14-month suspension of Dr. Jaswal’s license and ordered him to pay up to $20,000 in proceeding expenses.

The Appeal at the NLSC

• The grounds of appeal: Dr. Jaswal appealed the Medical Board’s disciplinary decision to the Supreme Court of Newfoundland and Labrador (the “NLSC”) and legally challenged its fact-finding and the sanction and expenses ordered.
• The decision by the NLSC:
  1. The conduct should be characterized as conduct unbecoming, not professional misconduct.
  2. The sanction was substituted with a 2-month suspension.
  3. The expenses payable are adjusted to 40% of the reasonable expenses incurred by the Board for the proceeding.

The NLSC’s reasoning regarding appropriate sanctions is highly influential and widely referenced in both regulatory and court actions.

The Important Legal Principles on Disciplinary Sanctions

In reaching its conclusion regarding appropriate disciplinary sanction, the NLSC considered 13 distinct and non-exhaustive factors. These factors are commonly referred to as Jaswal Factors and have shaped a significant number of disciplinary decisions by professional regulators in many Canadian jurisdictions, particularly in their determination of appropriate sanctions.

The 13 Jaswal Factors can be characterized as below, though exact wording may vary depending on the regulator and the underlying allegation of a case:

1. The nature and gravity of the proven allegations.
2. The age and experience of the respondent professional.
   • Seniority is likely to weigh in favour of severer sanctions.
3. The previous character of the respondent, particularly the records of complaints or discipline.
4. The age and mental condition of the complainant.
   • If a factor of vulnerability is exploited, it will likely increase the severity of the sanctions.
5. The number of times the impugned conduct was proven to have occurred.
6. The role of the respondent in acknowledging what had occurred.
   • Admission to misconduct can potentially lead to leniency, but a respondent should not give up a simply defensible case for a “lesser” sanction.
7. Whether the respondent had already suffered other serious penalties as a result of the allegations.
8. The impact of the impugned on the complainant.
9. The presence or absence of any mitigating circumstances.
   • Showing remorse or proactively trying to compensate the losses of a complainant may be considered mitigating factors.
10. The need to promote deterrence for protecting the public or for upholding professional standards.
11. The need to maintain the public’s confidence in the integrity of the regulated profession.
12. The degree of consensus that the proven conduct is impermissible.
    • A breach of a widely accepted rule is likely to result in severer sanctions.
13. The severity of sanctions in other similar cases.
    • This factor can be determined with reference to past disciplinary decisions by other regulators, including regulators for other professions.

Properly understood, Jaswal factors can be highly intricate and nuanced. Regulators frequently engage both case-by-case factual analysis and principled legal analysis when considering these factors.

The Key Takeaways

Regulatory bodies have to exercise their powers within the constraints of their enabling legislation and administrative law principles. Their decisions can be legally challenged through an appeal or judicial review. Hence, it is very common for them to reference common law and regulatory decision precedents when evaluating appropriate sanctions.

Disciplinary hearings by regulatory bodies are typically adversarial and quasi-judicial proceedings, during which a respondent professional can leverage their counsel’s legal knowledge and advocacy skills to present cases such as Jaswal and attempt to reach a favourable outcome.

Arguing Jaswal Factors May Require Legal Expertise

Notably, regulators are not strictly bound by common law cases in the same way as a lower court is bound by a higher court’s decision. Hence, regulators have a degree of discretion in weighing Jaswal factors. When attempting to persuade a regulatory decision maker, a legal advocate can play an instrumental role in the following ways:

• A skilled advocate can highlight the authoritative nature of a particular case. They can also highlight why a case is relevant and applicable to a matter at hand.
• A resourceful advocate can cite and apply a wide range of legal authorities to enhance the persuasiveness of an argument.
• Regulatory decision makers do not necessarily have the same judicial training as judges. Where a legal issue is outside of their expertise, a legal advocate can assist them in their effort to make a fair decision.

It Is A Formidable Task to Legally Challenge a Regulator’s Decision

When facing a regulatory action, the preferred approach is to strive towards a favourable outcome at the earliest stage possible. Although disciplinary decisions can be legally challenged in courts, it is a formidable task to have a decision overturned. This is for a few reasons:

• Under the landmark Vavilov decision by the Supreme Court of Canada, the legal thresholds for overturning a decision are high, regardless of whether it is an appeal or judicial review. Moreover, courts are required to pay deference to regulators out of respect for legislative intent.
• A judicial review or an appeal to a court is not a rehearing of the allegations. Typically, only highly technical issues related to rights and fairness can be considered.
• Typically, a judicial review or appeal to a court does not automatically pause the enforcement of a disciplinary decision. Even if someone succeeds at an appeal or judicial review, the remedy might be that the matter is sent back to the regulator to be redecided.

Hence, our strongest recommendation is to engage legal representation promptly when facing a regulatory challenge.

Taylor Janis Advocates For You

Whether you are facing a regulatory action or legally challenging a disciplinary decision, you can entrust Taylor Janis to zealously advocate for your best interest.

The regulatory action legal team at Taylor Janis appreciates the intricacies of regulatory and appellate actions. We also appreciate that every case and each client’s needs are different. With a proven track record, we are committed to offering tailored legal plans.

Whether you are facing a regulatory action or legally challenging a disciplinary decision, do not hesitate to contact us to schedule a consultation.

Footnote:

1. The list of professional regulatory bodies in Alberta & The list of professional regulatory bodies in BC ↩︎

References:

• Jaswal v. Medical Board (Nfld.), 1996 CanLII 11630 (NL SC)
• Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653

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