Alberta Optometrists: Survive ACO Disciplinary Action with Legal Support

If you are an Optometrist in Alberta, being disciplined by the Alberta College of Optometrists (the “ACO” or the “College”) can put your practice, reputation and professional standing at risk. It is essential that you take prompt action and respond to this challenging situation in a legally informed way.

As a first step, you should have an understanding of the potential consequences, the disciplinary procedures and your rights when being subjected to the ACO’s disciplinary scrutiny. It is equally crucial that you have a sound defence strategy and be prepared to safeguard your career.

This article can be an informational starting point for optometrists facing ACO regulatory challenges. However, it is not a substitute for legal advice tailored to your situation. It is highly recommended that you engage legal advice promptly.

For legal support, contact Taylor Janis’s Alberta offices in Edmonton or Calgary to schedule a consultation. We offer legal services to all professionals facing regulatory action across Alberta.

The Regulatory Framework

Under the Alberta Health Professions Act (the “Act”) and its accompanying Optometrists Profession Regulation, the Alberta College of Optometrists is the regulatory college for the profession of optometry in Alberta. Its regulated members have the exclusive right to use the protected titles optometrist and optometric contact lens practitioner.

Under the Act, the ACO has a mandate to serve and protect the public interest. It is responsible for establishing, maintaining, and enforcing the standards of registration, practice, competence, and ethics for optometrists. The College’s complaints and discipline process is one of the key ways to uphold these standards.

The Disciplinary Measures of the ACO

The Act confers on Alberta optometrists the privilege to self-regulate. Along with this privilege, the ACO is also conferred with broad powers and discretion to make legally binding disciplinary decisions against its regulated members. Upon determining that a regulated member has committed unprofessional conduct, the ACO Hearing Tribunal may order one or more of the following against the disciplined optometrist:

• A caution or reprimand;
• Imposition of conditions on their practice permit;
• Suspension of their practice permit temporarily or until certain conditions are satisfied;
• Requiring them to satisfy competence requirements;
  • The disciplined optometrist may be required to receive counselling or treatment programs, complete specific courses of study, or obtain supervised practical experience within a fixed period, during which their practice permit may be suspended.
• Cancellation of their registration and practice permit;
• Repayment of improper fees received from the complainant;
• Recovery of certain expenses incurred during the disciplinary process from the disciplined optometrist;
• A fine not exceeding $10,000 for each finding of unprofessional conduct and not exceeding $50,000 for the aggregation of all unprofessional conduct found at one hearing; and                          
• Any other order deemed appropriate for the protection of the public.

However, the list above does not give a comprehensive understanding of all the potential consequences of being disciplined, this is because:

• Under the Act, the ACO can order somewhat “novel” disciplinary measures for the protection of the public.
• The College can seek to enforce its disciplinary measures by ordering additional discipline, commencing debt actions or applying for court injunctions. Thus, non-compliance with a disciplinary order may lead to further legal liabilities.
• Where a matter raises a reasonable belief that a criminal offence has been committed, the Hearing Tribunal must forward its written decision to the Minister of Justice, opening up potential for further legal complications.

The Consequences of Being Disciplined

An adverse disciplinary decision by the ACO may result in career-altering consequences.

A severe disciplinary measure can threaten your livelihood and professional standing. Even a seemingly “lesser” disciplinary measure, such as a requirement to complete a course of study within a fixed period, can be highly disruptive to your professional and personal life.

Being disciplined may also result in widespread and irrecoverable reputational damage.

Under the Act, the ACP has the discretion to put its disciplinary decisions on public notice. Disciplinary decisions respecting sexual misconduct must be published on its website and normally remain indefinitely accessible. Moreover, information related to a disciplinary suspension, cancellation or condition imposed on a practice permit must be published and forwarded to out-of-province regulators for optometrists, affecting the long-term career prospects of the disciplined optometrist.

Assess and Mitigate Risks with Legal Advice

ACO disciplinary orders have legally binding effects and can be career-altering. Regulatory actions are intricate, and the factual and legal issues involved can often be contentious. When under the college’s disciplinary scrutiny, you should not overlook the risks, even if the allegations are seemingly unfounded or trivial.

Therefore, if you are expecting a regulatory action, you should promptly obtain legal advice and have your lawyer assess your case.

Taylor Janis Workplace Law is committed to providing practical and transparent legal advice. If the risks are substantial, we can provide thorough legal representation. If the risks are minimal, our advice can give you the peace of mind. Contact us at our Edmonton or Calgary office today to schedule an initial consultation.

The Disciplinary Process of the ACO

The disciplinary process of the ACO involves a sequence of escalating procedures. However, even the early stages of a disciplinary process can be highly complex, consequential and disruptive to your professional and personal life.

It is highly advisable that you retain a lawyer early so that you have valuable legal support for navigating the procedural complexities and minimizing unnecessary risks.

Complaints

Any person can file a complaint with the ACO against an optometrist. The College can also initiate a disciplinary process on reasonable grounds as if a complaint has been received, if it believes that a regulated member has committed unprofessional conduct.

Moreover, under certain circumstances, a fellow optometrist or the employer of an optometrist has a positive duty to report to the College regarding their concerns about the conduct of a regulated member.

Therefore, a complaint does not necessarily need to come from a patient, and it is not the only way to trigger a disciplinary process.

The ACO Complaints Director may only dismiss a complaint if it is vexatious, frivolous or lacks factual merit. Otherwise, they must initiate an investigation or facilitate an investigation.

Investigations

An unresolved complaint or a complaint deemed unresolvable will result in an investigation. An optometrist under investigation is referred to as an investigated person and will normally be notified of the particulars of the allegation. During an investigation, you have an obligation to cooperate, but also a need to avoid inadvertently jeopardizing your case.

The investigatory measures available to the ACO are broad, and an investigator can do one or more of the following:

• Require the investigated person to answer questions under oath;
• Require the investigated person to disclose documents, information and/or evidence relevant to the investigation; and
• Enter the investigated person’s premises for practice.

Under certain circumstances, the ACO may also:

• Apply for a court order to enforce its investigatory measures.
• Temporarily suspend or place conditions on the investigated person’s practice permit.

Hence, an investigation can be highly intrusive and disruptive to the investigated person’s professional and personal life.

When an investigation is eventually completed, unless the complaint is dismissed for being trivial, vexatious or factually meritless, the investigated matter will be referred to the ACO Hearing Tribunal.

When under investigation, legal representation can be crucial for avoiding potential legal pitfalls while remaining cooperative. It can also be integral to preparing a robust response to the allegations, which may discourage a frivolous, vexatious or meritless matter from being processed further, leading to a favourable and expedited resolution.

Hearings by the Hearing Tribunal

A hearing by the ACO Hearing Tribunal is highly consequential, as it determines whether the allegations are true, whether the alleged conduct constitutes unprofessional conduct, and/or the appropriate disciplinary sanctions. A finding of unprofessional conduct will result in binding disciplinary orders.

Facing a hearing can be an intensely intimidating experience because:

• A hearing is a quasi-judicial and adversarial proceeding:
  • Both parties (the Complaints Director vs. the investigated person) have a statutory right to counsel.
  • Decisions are based on the relative strength of the parties’ factual and legal submissions.
• An investigated person may be ordered to testify under oath:
  • If you testify, you may be examined (intensely scrutinized with questions) under oath.
  • Failure to cooperate may result in severe legal consequences.
• The time for preparation is limited:
  • A hearing would normally be scheduled within 90 days after a complaint has been referred to the Hearings Director.
  • The notice to attend and particulars of the matter can be given as late as 30 days before the hearing.
• A hearing may have profound reputational effects:
  • A hearing is presumed to be open to the public unless one of the limited legal exceptions requires it to be held in private in part or entirely.
  • Reputational harm may occur before a final verdict is reached, especially if the investigated person is under-prepared or acts in ways prejudicial to themselves.

Extensive preparation is often necessary for success at a hearing, and awareness of common pitfalls is crucial for minimizing reputational damage. Our strongest recommendation is that you exercise your statutory right to counsel if you are facing an ACO disciplinary hearing.

Appeals

If an investigated person believes a hearing decision is biased or unfair, they can appeal the decision to the ACO Council, and they can further appeal the ACO Council’s decision to the Alberta Court of Appeal.

However, an appeal should be seen as a last resort, and the preferred approach is to engage legal representation early and work towards a favourable outcome from the outset. This is because:

• It is a formidable task to have a decision overturned:
  • The appellate standards are high and subject to stringent legal and evidentiary thresholds. A later section of this article will discuss the appellate standards in depth.
  • Courts are required to pay deference to statutory regulators out of respect for legislative intent, following the Supreme Court of Canada decision Vavilov.
• During an Appeal, the detriments of a disciplinary order may persist:
  • An appeal does not automatically suspend the enforcement of a disciplinary order.
  • Even if an appeal is successful, the remedy might be that the matter is sent back to the ACO to be redetermined.
• An Appeal is legally intricate and technical:
  • An appeal is not a rehearing of the allegations, nor an opportunity for an appellant to reargue their case.
  • Normally, the scope of an appeal is limited to highly technical issues concerning the fairness of the original decision.

Given the challenging and intricate nature of an appeal, the value of legal representation is eminently clear if an appeal becomes necessary. However, the preferred approach to disciplinary proceedings is a proactive one: you should obtain legal representation to strive for a favourable outcome at the earlier stages.

Voluntary/ Alternative Resolutions

There are alternative ways to resolve a complaint without going through an entire hearing process.

• Before a complaint is referred to the Hearing Tribunal, the Complaints Director may refer the matter to an alternative complaint resolution process. This is a voluntary process similar to mediation, where the complainant and the investigated person can reach a voluntary settlement.
• Before the Hearing Tribunal makes a factual determination regarding the alleged unprofessional conduct, the investigated person may admit some or all of the allegations. If accepted, such an admission can substantially shorten the fact-finding phase of the hearing.

However, these are consequential strategic decisions, and should be approached with legal advice, because:

• A settlement agreement is normally legally enforceable.
  • You need to ensure that its terms and conditions are fair and reasonable to you, based on a comprehensive review of all relevant legal and factual factors.
• An admission of unprofessional conduct does not conclude the disciplinary process.
  • A hearing may be necessary to determine the appropriate disciplinary measures.
• There are reputational implications.
  • Decisions based on an admission are subject to the same publication and notification requirements and policies as any other disciplinary decisions.
• An admission of unprofessional conduct largely forecloses an appeal on grounds of erroneous fact-finding.

A voluntary settlement or admission may be advantageous under the right circumstances, but it is a strategic and consequential decision. Before making such a decision, you should have your lawyer comprehensively review your case first.

Engage Legal Representation Promptly

Even the early stages of an ACO disciplinary process can be highly complex, consequential, and disruptive to your practice and personal life. Moreover, the reputational effects often start to emerge when the process commences, even before a final verdict is reached.

Throughout all stages of a disciplinary process, you need to avoid inadvertently jeopardizing your case, and you should also avoid settling a defensible case on unreasonable terms.

When you are expecting or undergoing a disciplinary process, you should engage legal representation promptly. A lawyer can provide valuable legal support to navigate the complex procedures, make legally informed decisions and streamline the process where possible and reasonable.

The seasoned lawyers at Taylor Janis Workplace Law are not only tenacious advocates but also resourceful problem solvers. For any questions or concerns about an upcoming or ongoing ACO disciplinary procedure, contact Taylor Janis today to schedule a consultation.

*The procedures cited above may vary if the alleged unprofessional conduct is related to the incapacity of the regulated member, sexual misconduct, or the procurement or performance of female genital mutilation.

Effective Defence: Rules, Facts and Advocacy

An effective defence is often essential for success at a hearing, and a robust response to an investigation can lead to a favourable early resolution.

Mounting an effective defence requires more than presenting your perspectives on the allegations. It often requires resourcefully and precisely applying legal authorities, supporting your factual positions with robust evidence, and enhancing the overall persuasiveness with skillful advocacy. This can be especially true when the matter involves complex or contentious factual and legal issues.

Interpreting and Applying the Legal Rules

Under the Act, unprofessional conduct is disciplinable and captures a wide range of conduct:

• Displaying a lack of knowledge, skill or judgment when providing service;
• Contravention of applicable legislation, code of ethics or standards of practice;
• Providing optometry services without an appropriate practice permit or registration, or in ways contravening the conditions imposed on a practice permit;
• Non-compliance with an investigatory request or disciplinary decision of the ACO; and
• Conduct that harms the integrity of the optometry profession.

However, the above is not a closed-ended list of all types of conduct that are disciplineable, nor does it provide a full-pictured understanding of how disciplinary decisions are made. When formulating a legal defence, it is important to know:

• There are multiple sources of legal rules specifically applicable to optometrists:
  • Any contravention of the Act, its accompanying regulations, the ACO Bylaws, the ACO Code of Ethics, or the ACO Standards of Practice can be unprofessional conduct under the Act.
  • Legal expertise can be essential for correctly interpreting and referencing legal rules from all these sources.
• The ACO can consider other legal authorities, such as common law cases:
  • A regulated member of the college, like everyone else, must act lawfully at all times. Correspondingly, the ACO may consider other sources of legal rules and principles when adjudicating a matter, especially when the issue is complicated or nuanced.
  • For example, the Code of Ethics requires an optometrist “to maintain, except where required or authorized by law, the confidence and privacy of all information concerning a patient“. This means that when an optometrist is accused of breaching confidentiality, a common law or statutory exception to confidentiality may be considered by the Hearing Tribunal.

Resourceful and precise application of a wide range of legal authorities is often integral to an effective defence. Legal rules and principles are often highly nuanced, particularly when applied to the facts or when interacting with each other. Therefore, preparing a sound legal argument may require considerable legal expertise and research skills.

Supporting a Factual Defence with Evidence

In ACO regulatory proceedings, the perspectives of the parties often diverge, and the facts are often intensely disputed. Ultimately, decisions are made based on the relative strength of competing evidence from both parties.

Legal representation can be instrumental for building a robust evidentiary basis and mounting an effective factual defence. This is because:

• Pieces of evidence are not equal in their probative value, factual relevance and legal materiality.
  • Skillful organization and presentation are often crucial for showcasing the strength and relevance of your evidence.
  • Your legal counsel can flag problematic opposing evidence for being unreliable or irrelevant, thus enhancing the chance of a favourable outcome.
• The ACO Hearing Tribunal has discretion to admit or exclude pieces of evidence and weigh them differently.
  • The Hearing Tribunal is not bound by the courts’ rules of evidence. It has a degree of discretion in admitting, excluding and weighing evidence, and this discretion should be exercised fairly.
  • A lawyer can highlight evidence that might otherwise be underconsidered, as well as object to opposing evidence that is unduly prejudicial to you, thus minimizing the chance of unfair fact-finding.

Enhancing the Pursuasiveness with Skillful Advocacy

A lawyer, as your advocate, will tenaciously examine the strengths and flaws of each argument. This can be vital to the persuasiveness of your defence.

Your legal advocate also assists the adjudicator in making a fair decision, for example:

• A skillful advocate can highlight hidden but important factors which may otherwise be overlooked.
  • This can be especially instrumental when complex or principled analysis is engaged.
  • For example, competence does not equate to perfection. Whether an optometrist has acted competently is an analysis that often needs to take into account all relevant circumstances and factors. These variables are not necessarily obvious for an adjudicator reviewing a case retrospectively.
• A resourceful advocate can assist the decision-makers with issues that are not within their expertise.
  • Members of the Hearing Tribunal may not necessarily possess the same level of judicial training as a judge. When a legal rule or principle is at issue, legal counsel can play a crucial role in supporting their efforts to make fair decisions.

Moreover, when being subjected to the ACO’s regulatory discretion, your legal advocate can play a vital role in safeguarding your administrative law rights, which are the focus of the next section of this article.

Taylor Janis Workplace Law Advocates for You

Optometry is a demanding profession. While you are dedicated to caring for your patients, it can be difficult to divert your attention to all the moving parts in mounting an effective defence. When facing a regulatory action, obtaining legal counsel can be crucial to protecting your professional future.

Taylor Janis is committed to defending our clients’ best interests in regulatory actions. Please do not hesitate to contact us if you need a skilled and tenacious advocate.

Your Rights When Facing Regulatory Challenges

During an ACO disciplinary process, every procedure engages your administrative law rights. These rights have common law and even constitutional foundations.

Protecting your rights is often integral to upholding fairness. Therefore, you should be informed of your rights and be prepared to safeguard them. The recommended approach to these ends is to retain legal counsel early and throughout the disciplinary process, so that you have a legal advocate to spot, flat and object to potential infringements as they emerge.

Your Rights to Fairness

Fundamentally, your rights when facing regulatory actions are informed by the principles of natural justice and fairness, which can be difficult and abstract legal concepts to grasp. It is often equally difficult to apply these principles to the circumstances, especially without legal guidance.

For a brief informational overview, you have three broad but distinct rights:

• The right to substantive fairness:
  • This means a decision and its factual and legal reasoning must meet certain standards.
  • The Act provides that a final disciplinary decision made by the ACO Council can be appealed to the Alberta Court of Appeal. Hence, the standards here are “no palpable and overriding errors” in fact-finding and “correctness” in legal reasoning (Vavilov; Housen).
• The right to procedural fairness:
  • This right is about due process. At its core, this means everyone is entitled to know the particulars of the allegations against them and have appropriate opportunities to make a full answer and defence.
  • The due process can be found under the Act and the ACO Bylaws.
  • A lack of due process or due process conducted unfairly can both result in infringements. Hence, spotting an infringement of this right may require both legal knowledge and in-depth analysis of the circumstances of a procedure.
• The right to unbiased decision makers
  • The legal standard is that decision makers should not give a reasonable apprehension of bias to a reasonable bystander observing the entire decision-making process.
  • Reasonable apprehension of bias is a high legal and factual threshold: it is not any apprehension of bias.

The applicable standards for overturning a final disciplinary decision made by the ACO Council are the same as the appellate standards on appeal from lower courts. Moreover, courts are required to follow the common law principle of paying deference to regulatory decision makers out of respect for legislative intent.

Hence, it is highly challenging to address infringements after a disciplinary decision is made. The preferred approach to safeguarding your rights is to retain ongoing legal support during a disciplinary process. Having a legal counsel engaged throughout means they can spot, flag and object to potential infringement as they arise, which can be essential for upholding rights and fairness.

Engage Legal Representation Early

Your rights are constantly engaged when facing a disciplinary process. Once it is made, it is a formidable task to overturn a disciplinary decision and address infringements through an appeal.

Our strongest recommendation is that you retain legal counsel early and keep them involved throughout the entire ACO disciplinary process, protecting your rights at every step.

Taylor Janis Workplace Law is dedicated to advocating for the rights of our Clients. Contact us today to schedule an initial consultation.

Choose the Right Legal Counsel

When facing an ACO regulatory action, skilled legal representation can be essential for protecting your reputation, practice and professional standing.

The regulatory action legal team at Taylor Janis is well-equipped to provide thorough, practical, and transparent legal advice. Whether you are dealing with an investigation, hearing, or appeal, Taylor Janis has the legal and practical expertise to assist you in navigating the challenging waters. With a proven track record of success in regulatory actions and a commitment to always providing tailored legal services, Taylor Janis understands the intricacies of regulatory actions and appreciates that every case and each client’s needs are unique.

As the first step of securing a tailored legal plan, contact one of Taylor Janis Workplace Law’s Alberta offices in Edmonton or Calgary for an initial consultation. We offer legal services to all professionals facing regulatory actions in all areas of Alberta.

Frequently Asked Questions

How Long Does an ACO Disciplinary Process Typically Take?

The length of the process depends on many factors, including the legal and factual merits and complexity of the matter, as well as how you respond to the situation. A vexatious or frivolous complaint is likely to be dismissed fairly quickly, but if a matter leads to an investigation or hearing, it can take a few months or even over a year to resolve. A robust and legally informed response can potentially lead to an expedited resolution. If you are concerned about the disruptive effects of the process, you should consider consulting and retaining a lawyer.

Do I Need a Lawyer for Minor ACO Complaints?

Even when a complaint is seemingly trivial or unfounded, it is still a good idea to at least talk to a lawyer first. A lawyer is equipped with the legal knowledge and research skills to assess the actual strength and gravity of a claim and can more accurately assess the potential risks. Having a lawyer on your side also shows that you are taking the situation seriously and are prepared, which may help resolve vexatious or meritless complaints early, thus minimizing the disruption and stress. If a complaint is truly unfounded, at least you get peace of mind knowing the risk is minimal after a consultation with a lawyer.

How much Does Legal Representation Cost? Will My Professional Liability Insurance Cover the Legal Fees?

Every case is different, so the total cost may vary. At Taylor Janis, we are committed to providing transparent fee structures. Depending on your case, we may be able to offer some flexibility in fee arrangements. The ACO Bylaws require all practicing optometrists to maintain professional liability insurance, but your insurance coverage may or may not include legal fees for regulatory actions. If you are unsure about fees or the coverage, we recommend a quick initial consultation with us so we can review your insurance policy and provide an estimation.

Can I Continue Practicing Optometry During a Disciplinary Process?

This depends. If the ACO did not suspend or place conditions on your practice permit, then you can continue practicing. However, if your permit is suspended or has conditions placed upon it, then you should strictly adhere to the College’s direction; otherwise, you are risking further legal liabilities. You can legally challenge an arbitrary or unfair decision to suspend or place conditions on your practice permit. If you are concerned about your ability to work when undergoing regulatory challenges, you should consult a lawyer.

Conclusion

For an Optometrist facing an ACO regulatory action, early and ongoing legal support can be crucial for protecting their reputation and professional standing. ACO is a statutory regulatory college that can make disciplinary orders with legally binding effects, and being disciplined can result in career-threatening consequences and irrecoverable reputational effects. The disciplinary process of the ACO involves procedures that are highly complex, consequential and disruptive. When undergoing these procedures, an optometrist’s administrative law rights are constantly engaged. Early and ongoing legal support can play a vital role in mitigating risks, navigating the procedural complexities, preparing a robust defence and achieving a fair outcome. For skilled legal support, you can contact Taylor Janis’s Edmonton or Calgary office to schedule a consultation.

References:

• Health Professions Act, RSA 2000, c H-7
• Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235
• Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653
• ACO Bylaws
• ACO Standards of Practice
• ACO Code of Ethics

Resources for Readers:

• Hearing decisions published by the ACO
• Filing a complaint with ACO

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