Oct 15, 2020

Regulators, like many organizations, develop numerous written policies and procedures to guide their staff and committees. Some are borrowed and adapted from those of other organizations. Of course, human nature being what it is, sometimes the actual day-to-day practices vary from the written document. The impact of such a departure arose in the case of Berge v College of Audiologists and Speech-Language Pathologists of Ontario, 2019 ONSC 3351 (http://canlii.ca/t/j0vqs). The practitioner in that case was disciplined for using the title “Doctor” when doing so was prohibited by legislation. She acknowledged her use of the title. Her discipline finding was upheld upon appeal. Afterwards the practitioner again challenged the outcome and obtained a copy of the regulator’s policy and procedures manual which suggested a formal written motion for referrals to discipline. The regulator had not made such a formal motion.

The Court held that a policy and procedure was not the same as a statutory condition precedent. Failure to follow the suggested process in the manual did not affect the referral to discipline. It would have only affected the validity of the legal proceedings if the action actually taken amounted to procedural unfairness. There was no such unfairness or loss of jurisdiction here because it was obvious that a referral to discipline had been made (despite the absence of a formal written motion) and the practitioner knew at all times the content of the allegations. The Court also found that the later discovery of the full manual did not meet the test for fresh evidence and its non-disclosure did not amount to a fraud on the disciplinary tribunal or the Court.

Of course, it is always preferable to ensure that current practices and written policies and procedures remain consistent over time.