Probably what all professionals dread most is a formal finding that they’ve committed some form of misconduct, or are otherwise not fit to continue to continue in their profession. We’ve all invested a lifetime in getting to where we are professionally. Losing a job is bad enough, but one might be able to recover as there are other jobs out there. However you might never truly recover from losing a profession.
While it’s nice to think that professional conduct or employment proceedings should turn out as they should if you truly didn’t do anything worthy of serious sanction, we all know that’s not always going to be the case. Every decision maker brings personal biases to conduct hearings. And not every hearing has the full evidentiary picture before it. Thus it can be hard to predict whether or not there will be a finding of misconduct, and what kind of sanction might flow from such a finding, if you’re facing allegations brought before a professional regulator or employer.
You might be defending yourself before a professional conduct board or an employer’s tribunal (which could even just be your professional boss), hoping your reasonable explanations will carry the day, only to learn that you’ve not only lost the hearing, but also lost your professional position and perhaps even your entire profession. What’s to be done?
Rest assured you’ve got options. But you’ll need to act fast in pursuing them.
STRATEGY #1: ACT QUICKLY IN APPEALING A PROFESSIONAL OR EMPLOYMENT SANCTION, YOU’LL LIKELY ONLY HAVE 30 DAYS OR LESS
Being timely in an appeal is much more important than getting the grounds of appeal perfect. You might be trying to find a lawyer to help you with an appeal, but are having trouble raising the retainer, or even getting an appointment. Unfortunately none of these are excuses for being late with an appeal. You can file a two page handwritten appeal if need be, so long as it gets filed on time.
What amount to “on time” will vary greatly depending on what your’re trying to appeal, and where you’re trying to appeal to. Usually the longest you ever have to appeal anything under Canadian law is 30 days. There’s no magic to the 30 day limit (in theory it could be longer), but this just seems to be a common rule that has developed. So not matter what kind of appeal it is, if you’re getting close to 30 days from the time of decision it’s time to worry.
But some appeals can be shorter than 30 day limits. 15 days is also a common limit, though much less common than 30 days. And sometimes it can be as short as 10 or even 7 days, but both those brief limits are rare.
So don’t guess over how much time you have to appeal. Figure out where the appeal goes to, and ask someone there what the time limitation is. It won’t be a secret.
STRATEGY #2: CAREFULLY ASSESS WHO HAS JURISDICTION TO HEAR THE APPEAL
Who can hear a professional conduct or employment appeal can be a lot tricker to figure out than the question of how much time is available to appeal. The usual options for where an appeal goes are:
to an internal appeal body run by the professional regulator or employer;
to a court capable of hearing a judicial review, such as the Ontario Divisional Court or the Federal Court;
to a court capable of hearing a civil action, such as the Ontario Superior Court of Justice or the Federal Court;
to an appellate court, capable of hearing an appeal from a lower court, like the Ontario Court of Appeal or the Federal Court of Appeal (usually only after you’ve been in a lower level court for a first crack at an appeal).
STRATEGY #3: DETERMINE YOU BEST GROUNDS OF APPEAL TO INCLUDE IN A NOTICE
Appeals aren’t just another kick at the original hearing can. To win an appeal, you’ve usually got to find an error of law or mixed fact and law or jurisdiction. Possible appeal winning angles include:
a denial of procedural fairness and natural justice;
so serious a misapprehension of the facts as to amount to an error of law that could have affected the outcome of the hearing;
bias by the decision maker (which doesn’t need to be intentional and conscious);
an error of law serious enough to have affected the outcome of the proceedings.
STRATEGY #4: TAKE PROCEDURAL STEPS NECESSARY TO GET APPEAL HEARD
Being on time, before the right body, with good grounds, still won’t do you any good if you don’t have the necessary follow through to create and file all the required documents to have your case listed for an appeal hearing. Among the documents you may need to create or order and file include:
Notice of Appeal;
Transcripts of Hearing (not all conduct boards or employers will create transcripts out of hearings);
Exhibits from Hearing, compiled with other materials into an Appeal Record;
Factum of Legal Argument on Appeal (essentially a legal brief explaining the facts and law and why you should win, usually 30 pages or less).
STRATEGY #5: PARTICIPATE IN APPEAL HEARING & RESPOND TO PROFESSION/EMPLOYER MATERIALS
Some professional conduct or employment appeals will be paper processes, meaning there is no oral hearing and physical appearance before decision makers. Others will actually involve an in-person appearance to make oral argument and respond to questions.
Especially if there isn’t an in-person hearing, plan to file a brief written reply with the appellate decision maker to the responding submissions of the regulator or employer, as that might be your only chance to come to grips with the argument opposing your submissions.
Gordon S. Campbell is a professional conduct lawyer practicing throughout Canada who has argued cases up to the level of the Supreme Court of Canada. His representative works includes defending government executives, teachers, accountants, engineers and law enforcement officers on professional misconduct, medical, administrative, criminal and civil proceedings before conduct boards, appeal tribunals and in provincial and federal courts. Learn more at www.proconductlaw.com.