Legal Support for Agrologists Facing BCIA Disciplinary Challenges

If you are a British Columbia agrologist, facing a disciplinary action by the British Columbia Institute of Agrologists (“BCIA”) can be intimidating. You likely have questions about the potential risks, the impending procedures, and how to defend against an allegation and protect your rights.

This article can be a starting point for gaining a baseline understanding of BCIA regulatory actions. However, this article is for informational purposes only, and Taylor Janis strongly recommends that you obtain legal counsel to help you assess and mitigate potential risks, navigate the complex procedures, prepare a robust defence and safeguard your rights.

The Regulatory Powers of BCIA

The Regulatory Role of BCIA

The practice of Agrology is strictly regulated in BC. Under the BC Professional Governance Act (The “Act”), the BC Institute of Aerologists is the sole self-governing regulator of registered agrologists in British Columbia. One of BCIA’s primary duties is to protect the public interest by establishing, monitoring, and enforcing standards of conduct, ethics and competence for agrologists. The Act also confers BCIA with broad bylaw-making powers to govern its internal affairs and procedures, including investigation and discipline procedures.

Disciplinary decisions by BCIA have legally binding effects on its registrants, who have the reserved rights to use titles such as Professional Agrologist (PAg), Articling Agrologist (AAg), Technical Agrologist (TAg), Articling Technical Agrologist (ATAg), and Limited License Agrologist (LLAg).

The Consequences of Being Disciplined:

The Act confers BCIA with broad regulatory discretion and disciplinary powers. Upon a finding of disciplinable conduct, BCIA may order one or more of the following against the disciplined agrologist:

• A reprimand
• A penalty of up to $100,000 against an agrologist ($2,000 in the case of a trainee or $250,000 in the case of a licensed firm);
• Imposition of conditions on the agrologist’s registration.
• Cancellation or suspension of the agrologist’s registration, and conditions may be imposed on the reinstatement of the registration; and
• Requiring the agrologist to complete remedial programs or satisfy a BCIA committee that they are competent to practice. These can be a part of the conditions imposed on registration or reinstatement of registration.

Additionally, the disciplined agrologist might also be ordered to pay certain costs associated with the disciplinary process.

Being disciplined by BCIA can have severe financial and career-threatening consequences for an Agrologist. Even a seemingly lesser disciplinary measure, such as a condition placed on an agrologist’s registration, can be highly disruptive to their practice of agrology. Moreover, non-compliance with a disciplinary order may lead to further legal liabilities, including further discipline and court-imposed sanctions.

The Reputational Implications

Furthermore, under the Act, its accompanying Professional Governance General Regulation and the BCIA Bylaws (the “Bylaws“), all BCIA disciplinary notations must remain on its online register permanently, and disciplinary orders must be published on its website. The publication must be done without anonymization, unless for the protection of the privacy interests of a person other than the disciplined agrologist, or an agrologist who suffers from certain physical or mental conditions.

Having a disciplinary record can be career-altering, as it may not only affect your reputation within your professional network but may also affect your standing and ability to register with other professional regulators.

Assess and Mitigate Risks with Legal Advice:

BCIA disciplinary decisions have legally binding effects, and the consequences can be career-threatening. It is highly advisable that you obtain legal advice promptly when under BCIA’s disciplinary scrutiny so that you can assess and mitigate the risks.

In regulatory actions, the perspectives on the underlying facts and applicable rules often diverge. Hence, even if the likelihood of receiving a discipline is seemingly remote, the importance of risk assessment should not be overlooked.

The next section of this article is about navigating factual and legal contentions when defending against an allegation. As you read on, bear in mind that Taylor Janis Workplace Law offers tailored legal services to all professionals facing regulatory challenges throughout BC. If you need legal advice to assess the potential risks, contact us today at our Vancouver or Kamloops office to schedule an initial consultation.

Navigating the Legal and Factual Contentions

Being exposed to the risk of receiving a BCIA discipline can be an intimidating experience, but it is not necessarily the end of the world. How you respond to and defend against an allegation may shape the outcome. When under disciplinary scrutiny, having a robust response and effective defence can be essential, which often requires legal expertise, a strong evidentiary foundation and skillful advocacy.

The laws

The first step to formulating an effective defence is to build solid legal arguments on the applicable legal rules.

Under the Act and the Bylaws, the following types of conduct are disciplinable (collectively, they are referred to as “disciplinable conduct” throughout this article for brevity).

• Professional misconduct;
  • This includes contravention of the Act, its accompanying regulations or the Bylaws.
  • This also includes failure to meet the technical standards and the broader ethical and professionalism requirements of practicing as an agrologist. Guidance on these can be found in the BCIA Code of Ethics and other standards published by the BCIA.
• Conduct unbecoming a registrant; and
  • Broadly put, this means conduct that undermines the reputation, standards, and principles of the profession or the BCIA, and conduct that undermines the safety, health and welfare of the public.
  • This means a registrant’s conduct in their personal life may potentially attract discipline.
• Incompetent performance of duties undertaken while engaged in the regulated practice.

Moreover, an agrologist has to act lawfully at all times, and BCIA may have to consider other sources of law when making a disciplinary decision, including other legislation, common law cases or regulatory decision precedents. For example, competence does not mean perfection, and to properly assess whether an agrologist has performed their work competently, BCIA might have to consider applicable common law principles and decisions made by other regulators.

Hence, having a strong legal defence requires more than familiarity with the rules specifically governing an agrologist. On the contrary, broad legal knowledge and extensive legal research are often required for formulating robust legal defences.

The Facts

Ultimately, a disciplinary decision by BCIA must align with facts that can be substantiated with evidence. However, building a robust evidentiary basis can be a challenging task without legal support, because:

• In disciplinary actions, the facts are often intensely disputed, and facts can only be assessed on the relative strength of competing evidence from all parties involved. Hence, your evidence should be well-presented and organized, ideally with the help of experienced legal counsel.
• The BCIA Hearing Committee is not bound by the rules of evidence applicable to a judicial court, but it has the discretion to exclude problematic evidence. Moreover, pieces of evidence are not equal in their relevance and probative value. Your legal advocate can highlight the factual relevance and legal materiality of key favourable evidence as well as flag unreliable or unduly prejudicial competing evidence.

Hence, having legal representation is instrumental in formulating a robust factual defence.

Advocacy

A lawyer can be an indispensable asset when preparing legal and factual defences. Moreover, as your advocate, your lawyer not only pays undivided loyalty to you but also assists the adjudicator in making a fair decision. A lawyer can do this by highlighting key issues and factors that may otherwise be overlooked.

Tenacious and resourceful advocacy can be especially instrumental when complex or principled analysis is engaged. For example, the BCIA Code of Ethics requires an agrologist to “hold paramount the safety, health and welfare of the public, including the protection of the environment and natural resources”. A professional judgement on an agricultural project’s ecological impacts necessarily needs to take into consideration all the constraints and countervailing interests which may not be obvious to an adjudicator. When the adjudicators need to engage in full-picture analysis and identify key issues, skillful advocacy can be crucial to achieving a fair and favourable outcome.

We Can Be Your Advocate

When defending against a BCIA regulatory action, legal representation and advocacy can be an indispensable asset.

Taylor Janis is committed to providing transparent legal advice and thorough legal representation. We can leverage our legal knowledge, practical know-how, and advocacy skills to strategically defend your professional future.

Legal representation is not only instrumental to a legally informed defence but also in navigating the complexity of BCIA disciplinary procedures. Please read on if you would like to know more about the disciplinary process of BCIA.

The Disciplinary Process of BCIA

The disciplinary process of BCIA involves a series of procedures, each heightening the complexity, stress, consequentialness and disruptions.

Complaint/ Audit / Practice Review

Disciplinary actions normally arise as a result of complaints, audits or practice reviews. Below are a few things that are worth knowing about these procedures:

• Complaints:
  • Any person can file a complaint with the BCIA Registrar if they have a concern with an agrologist’s conduct or competence.
  • The Registrar of BCIA can only close a complaint if it is frivolous, vexatious or made in bad faith, or if the alleged conduct is not disciplinable or outside of BCIA’s jurisdiction. Otherwise, they must refer the matter to the Investigation Committee according to the Bylaws.
• Audit & practice reviews:
  • Aside from the routine audit programs, the BCIA may commence a practice review if it obtains information indicating a registrant might have committed disciplinable conduct.
  • A practice review arising out of such concerns can be highly disruptive to an agrologist’s practice and personal life, as they have a duty to fully cooperate and may be required to answer questions and/or provide access to information and records.
  • Under certain exceptional circumstances, during or after a practice review, a registrant’s registration may be suspended or have certain restrictions or conditions placed thereupon.

The key takeaway here is, a complaint does not necessarily come from a client, and a disciplinary action does not necessarily arise out of a complaint.

Investigations

During an investigation, an Agrologist has to fully cooperate but also avoid legal pitfalls or inadvertently prejudicing themselves. The investigatory measures available to the Investigation Committee are broad, and the investigated agrologist may be required to do one or more of the following:

• Provide answers and explanations, which may involve personal appearance before the Registrar, the Investigation Committee or the Board of BCIA;
  • Under the bylaw, an investigated registrant can be accompanied by counsel when making personal appearances.
• Produce files, documents, records, information or other evidence in the their possession; and
• Cooperate with an investigator’s request to access, inquire or inspect:
  • the premises, equipment and material used for their practice,
  • the records related to their practice, and
  • the practice they have engaged in or supervised.

Aside from the above, under certain circumstances, BCIA may do one or more of the following:

• Apply for a court order to expand the investigatory power to search and seize evidence from other premises; and
• Suspend or cancel the agrologist’s registration, or impose limits or conditions on their practice when doing so is deemed necessary to protect the public.

An investigation by BCIA is therefore highly consequential and disruptive to an agrologist’s professional and personal life. It is highly advisable that you obtain legal advice when undergoing an investigation.

Discipline Hearings

The final stage of the BICA disciplinary process is a discipline hearing, which is a quasi-judicial procedure that can be intensely intimidating and stressful to navigate. As a decision hearing is considered final with limited scope for judicial review, it can irreversibly damage an agrologist’s career and reputation.

Our strongest recommendation is that you exercise your right to legal counsel when facing a discipline hearing. This is because:

• A discipline hearing is an adversarial procedure, where both the legal and factual issues can be intensely contentious:
  • Under the Bylaws, the parties (BCIA vs. the respondent agrologist) both have a right to legal representation.
  • A decision will be made based on the relative strength of the parties’ submissions, meaning extensive preparation and strong advocacy can be essential for achieving a favourable outcome.
• The preparation timeline can be limited and intense:
  • Under the Bylaws, the date, time and place of a hearing can be delivered to the respondent agrologist as late as 30days before the hearing takes place, while evidence must be disclosed timely to be admissible.
• A hearing has profound reputational implications:
  • Hearing citations are put on public notice, and hearings are presumptively open to the public; therefore, secondary reputational harm can occur even before the hearing reaches a verdict, especially if a respondent registrant is underprepared.
• The respondent agrologist is a compellable witness:
  • The respondent agrologist may be ordered to testify and be subjected to examination (intensely scrutinized with questions), and a failure to cooperate may attract severe legal consequences.
• The decision made by the Discipline Committee is considered final, as the registrant cannot internally appeal it within the BCIA.
  • A petition for judicial review at court is the only legal venue for remedies after receiving a hearing decision, but a judicial review is a formidable challenge. More details about judicial reviews will be provided in the next section of this article.

Given its intensity, high consequences and quasi-judicial nature, it is eminently clear that you should exercise your statutory right to be represented by counsel at a Discipline Committee hearing.

Alternative Resolutions

There are alternative ways to resolve a disciplinary matter without going through the hearing process. For example:

• BCIA may request that the Agrologist under investigation consent to a reprimand or to undertake to perform/refrain from certain actions (known as a reprimand or remedial action by consent).
• Before the commencement of a Discipline Committee hearing, the registrant can also agree to a consent order, which requires them to admit to some or all of the allegations and agree to the disciplinary measures proposed by BCIA.

If an alternative resolution is reached, then the matter is resolved without the need for a hearing decision. However, you should evaluate an alternative resolution carefully with legal advice. This is because:

• An alternative resolution has legally binding effects.
  • Hence, you should only agree to what is reasonable, taking into account all legal and factual constraints.
• An alternative resolution can also be seen as a form of admission to the alleged facts
  • An admission can substantially foreclose the possibility of seeking future judicial remedies on grounds of unreasonable fact-finding.
• You should consider the potential reputational damage
  • A consent order has the same effects as a disciplinary order made by the Discipline Committee, so it is subject to the same publication rules and policies.

An alternative resolution may have certain advantages in the right circumstances, but it should not be entered hastily. Instead, you should obtain legal advice and have your lawyer comprehensively review your case before agreeing to any alternative resolution.

Engage Legal Representation Early

Even the early stages of a BCIA disciplinary process are highly consequential, complex and disruptive. Taylor Janis strongly recommends that you obtain legal representation early, so that you can have adequate legal assistance to avoid legal pitfalls when navigating the procedural complexities and making key strategic decisions.

Another reason for early engagement with legal representation is that your rights are engaged every step of the way through a disciplinary process. Please read on if you would like to know more.

BCIA Disciplinary Procedures Engage Your Rights

When undergoing a BCIA disciplinary action, your administrative law and common law rights are always engaged, and some of these rights even have constitutional gravity.

The Rights Are Ultimately About Fairness

Your rights when being subjected to BCIA regulatory actions can be a complex legal topic, but to summarize it, courts have recognized three broad and distinct rights:

• The right to procedural fairness:
  • Fundamentally, this is about due process, which should enable you to know the case against you and make a full answer and defence.
  • Your procedural entitlements can be found in the Act and the BCIA Bylaws. Your right to procedural fairness is infringed when there is a lack of due process, or when due process is not done fairly.
• The right to unbiased decision makers:
  • The decision maker should not raise a reasonable apprehension of bias to a reasonably informed bystander who has observed the entire decision-making process.
• The right to substantive fairness:
  • The legal venue to challenge the substantive fairness of a BCIA disciplinary decision is to petition the Supreme Court of British Columbia for a judicial review.
  • Following the landmark Vavilov decision, the judicial review standard to overturn a decision because of substantive unfairness is that the decision is “unreasonable,” which is a high legal threshold that requires proof that the decision is incoherent in its internal reasoning or consideration of the legal and factual factors.

Safeguarding Your Rights with Early Legal Representation

When facing a regulatory action, safeguarding your rights is often integral to upholding fairness. The preferable approach to safeguarding your rights is to engage legal representation early and throughout the entire disciplinary process, because:

• Spotting infringements of rights often requires a keen-eyed analysis of the entire circumstance of a regulatory decision and its making process. This is because rights can be abstract and nuanced, and rights-related issues are often embedded within the processes and reasoning.
• Concerns about rights should ideally be addressed as they arise, as it is a formidable task to overturn an unfair decision through judicial review once it has been made.
  • The review standards have high legal and evidentiary thresholds. Moreover, common law principles require courts to pay deference to regulatory decision-makers out of respect for legislative intent.
  • A petition to the court does not automatically halt the enforcement of a disciplinary order, and when a petition is successful, the remedy might be that a matter is sent back to the BCIA to be decided again.
• Your counsel can assist the decision makers in making fairer decisions. Your counsel represents your interests only, but they can also assist the decision makers by highlighting factors and flagging concerns that might otherwise be overlooked by them.

To conclude, a judicial review should be seen as a last resort attempt to seek judicial remedies after the damage of an unfair decision has already been done. The ideal approach to protecting your rights is to have your legal counsel engaged with the entire disciplinary process, so that they can spot, flag and object to potential infringements as they are about to emerge.

Having a Legal Plan Tailored to Your Needs

If you are facing BCIA’s disciplinary scrutiny, it is highly recommended that you retain legal counsel as early as possible, even if the likelihood of being disciplined appears remote.

Taylor Janis Workplace Law recognizes the intricacies of regulatory actions. We also appreciate that every case is different, and so are each client’s needs. This is why we are committed to always offering tailored legal plans. We can be your tenacious advocate when defending against an allegation, or your resourceful problem solvers when pursuing an early and reasonable resolution. We can provide thorough legal representation in complex cases, and transparent and practical legal advice when the risks are minimal.

Reach out to one of our BC offices in Vancouver or Kamloops today to schedule an initial consultation, which is the first step to securing a tailored legal plan.

Frequently Asked Questions

How Long Does the BCIA Disciplinary Process Typically Take?

These would vary greatly depending on many factors, such as the complexity and strength of the case, as well as your response to the situation. A frivolous or vexatious allegation is likely to be dismissed fairly quickly, but if a matter progresses into an investigation or hearing, it can take a few months or even over a year to resolve. If you have concerns about the disruptive effects of the disciplinary process, you should obtain legal advice early. A prompt and effective response under legal advice may lead to an expedited resolution.

I Am No Longer Registered with BCIA. Should I Be Concerned about Its Discipline?

The BCIA can discipline former registrants for their conduct that occurred while they were still a registrant. A disciplinary record may affect your ability to register with regulators in other jurisdictions. Hence, even if you are no longer practicing Agrology in BC, you should still act promptly and retain legal counsel when under BCIA’s regulatory scrutiny.

What Are the Consequences of Failure to Cooperate with BCIA During an Investigation?

Failure to cooperate with a BCIA investigation may result in further legal consequences, including additional disciplines and court sanctions. If you have any questions about how to cooperate with BCIA whilst avoiding legal pitfalls, you should contact Taylor Janis Workplace Law for legal guidance.

Conclusion

BCIA discipline measures have legally binding consequences for a BC agrologist, and they can have severe reputational and career-threatening effects. To strategically defend against an allegation requires strong legal and factual positions as well as resourceful and tenacious advocacy. When undergoing a BCIA disciplinary process, an agrologist has a duty to cooperate fully, but they also need to avoid inadvertently jeopardizing their own case. The disciplinary procedures of BCIA are complex, stressful and disruptive to an agrologist’s practice, and they invariably engage the agrologist’s administrative law rights. Therefore, it is highly advisable that you act promptly and obtain legal advice when facing a BCIA regulatory challenge.

References:

• Professional Governance Act [SBC 2018] CHAPTER 47
• Professional Governance General Regulation, B.C. Reg. 107/2019
• Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653
• BCIA Bylaws
• BCIA Code of Ethics

Resources for Readers:

• Policies and guidelines published by the BCIA
• BCIA Complaint Process

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