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Professional Liability and Regulation - On the Docket
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Commercial disputes between professionals and their clients are routine. However, what is comparatively rare are disputes between the consultants (or other professionals) who advise a client and the client’s customers who may be harmed in some way by that client’s conduct. In those circumstances, there is generally no contractual relationship between the consultant and the client’s customer, and most cases have held that there is no duty of care between a professional and a person injured by the professionals’ client’s conduct. Lawyers, for example, have been held to potentially owe duties of care to non-clients in only the most exceptional circumstances. However, the recent decision of the British Columbia Supreme Court in British Columbia v McKinsey has the potential to substantially expand the scope of claims brought against professionals by persons allegedly harmed by those professionals’ clients’ conduct.
A recent decision from the Ontario Court of Appeal serves as a cautionary tale for regulated professionals and their counsel considering the terms of a potential resolution of discipline proceedings where related criminal proceedings may still be on the horizon. In R v Lo, the Court of Appeal upheld a trial judge’s decision during a criminal jury trial to admit into evidence the Agreed Statement of Fact (“ASF”) from a prior disciplinary hearing on related allegations before the College of Psychologists (“CPO”).
A recent Divisional Court case involving the College of Physicians and Surgeons of Ontario reaffirms the importance of ensuring that findings of professional misconduct by the College’s Discipline Committee fairly arise from the allegations contained in the College’s Notice of Hearing.
Class actions are common in the financial services sector. The relatively low bar for certification of such claims as class proceedings means that many such claims are certified. Yet certification is by no means automatic: where the litigation will not be significantly advanced through the resolution of common issues, courts will typically be reluctant to certify an action as a class proceeding.
In Horri v The College of Physicians and Surgeons, the Divisional Court reaffirms the importance of consistency and justification when a professional regulator sanctions one of its members. Penalties for misconduct should fall within the range established by previous case law, and regulators should exercise caution before departing from precedent on the basis of “changing social values.”
Effective May 30, 2017, professional regulators under the Regulated Health Professions Act received a new power to temporarily restrict or suspend the licence of a health professional during the course of an investigation into allegations of misconduct or incompetence. Previously, regulators could impose such measures only after the conclusion of an investigation and commencement of a Discipline Committee proceeding. This raises the question, what is the appropriate threshold of risk that must be established in order to suspend or restrict the licence of a professional whose case is still under investigation? What evidence is required? What reasons must be given in order to justify such an order? These questions are considered in the recent decision of Rohringer v Royal College of Dental Surgeons of Ontario 2017 ONSC 6656.
When one person negligently causes an accident, the law is clear about their responsibility. But when negligence acts on the part of a number of different parties combine to create a single accident, how should responsibility for that accident be apportioned between them? This was recently addressed by the Ontario Court of Appeal in its recent decision in Parent v Janandee Management Inc.
Over a decade after Ontario’s Limitations Act, 2002 came into force, courts are still grappling with when a cause of action is discoverable and a limitation period starts to run. An increasingly litigated question relates to whether a limitation period runs while efforts are ongoing to fix the error that gave rise to the plaintiff’s claim. The Court of Appeal for Ontario recently addressed this issue in Presidential MSH Corp v Marr, Foster & Co LLP.
“If my grandmother had wheels, she’d be a wagon” –Yiddish proverb
All professionals deal with difficult clients from time to time. Difficult clients are often characterized by an aversion to receiving negative opinions and a refusal to heed the counsel of the professionals they have retained. A natural temptation when dealing with such clients might be to stop giving negative opinions to them and to instead focus on simply completing the tasks which the client has instructed. However, as the recent decision in Western Troy Capital Resources Inc v Genivar Inc demonstrates, in order for professional firms to avoid potential liability, they must ensure that they state their negative opinions clearly to their clients, especially in circumstances where a professional believes that the work which they are being retained to complete is futile.
