Oct 23, 2020

There are some cases in which many issues are raised and dealt with. Multiple points of learning on a diversity of topics can arise. Houghton v Association of Ontario Land Surveyors, 2020 ONSC 863, http://canlii.ca/t/j54tk is one such case. Mr. Houghton’s licence was revoked after a 21 day hearing. The allegations are summarized by the Court as follows:

One allegation was that Mr. Houghton had counselled a client to make a complaint against a fellow surveyor for malicious reasons. The other complaints essentially related to Mr. Houghton’s alleged practice of:

a. failing to quote a fee before signing the clients to an unlimited time and disbursements retainer agreement;

b. taking a modest monetary retainer at the outset of an assignment that the clients believed to be the full fee;

c. then claiming to have performed research resulting in additional fee charges incurred without the client’s prior approval; and finally

d. charging the clients’ credit cards with the unapproved fees pursuant to credit card authorizations that Mr. Houghton had obtained previously from each of the clients.

A summary of the more interesting points for other regulators are as follows:

1. The Complaints Committee dismissal of individual complaints related to billing disputes does not prevent the regulator from later investigating those same concerns through the alternative Registrar’s investigation route, particularly where that investigation is focussed on a pattern of financially abusing clients. This outcome is not dissimilar to the decision in Abdul v Ontario College of Pharmacists, 2018 ONCA 699, http://canlii.ca/t/htpdg.

2. The Court acknowledged the concerns that the scope of the investigation was not clearly set out and that the investigator may have looked at some issues that were not part of the original reasonable and probable grounds. However, the investigation focussed primarily on the reasonable and probable grounds concerns and the Discipline Committee was careful not to adjudicate on any additional issues.

3. In respect of the allegation of counselling a client to complain against a competitor, the Court agreed that this is professional misconduct where done maliciously. “Here it is perfectly obvious that where one surveyor is found to have acted expressly to injure another surveyor’s reputation by having a client file a groundless complaint and the client did as he was urged to do, injury is self-evident.”

4. In upholding the order of revocation the Court held that the following were relevant considerations:

a. A history and attitude indicating a likelihood of reoffending;

b. The emotional harm inflicted on clients and the damage caused to the reputation to the profession by such dishonest conduct;

c. The attempt to try to silence witnesses by imposing non-disclosure agreements in respect of the regulator through civil settlement agreements.

5. On the likelihood of re-offending the Court discussed the principle that a practitioner’s vigorous defence of allegations should not be considered an aggravating factor. However, a discipline tribunal is able to take into account that the practitioner “demonstrated a profound lack of understanding of ethical expectations and conduct, which continued during the penalty phase of the hearing”. The Court said that the tribunal: “was entitled to include in its consideration Mr. Houghton’s lack of recognition and lack of accountability for his actions as factors that weighed on the risk of repetition, the need to protect the public, and deterrence.”

6. The Court also upheld the order that the practitioner pay costs of $250,000, which were only a fraction of the actual legal costs, where “the length of the hearing was largely driven by Mr. Houghton’s approach to challenge the proceedings with multiple days of motions and allegations against Association personnel.”

Regulators will benefit from this guidance by the Court on so many issues.