Consumer Protection through Professional Regulation

Looking Ahead:

Council on Licensure,

Enforcement and Regulation

Toronto Symposium

June 15, 2010© CLEAR 2010

Barriers to Consumer

SatisfactionRichard Steinecke

Steinecke Maciura LeBlanc

Council on Licensure,

Enforcement and Regulation

Toronto Symposium

June 15, 2010

Thoughts on Satisfaction

• This life is not for complaint, but for satisfaction- Henry David Thoreau

• I can't get no, I can't get no,I can't get no satisfaction- Mick Jagger and Keith Richards

• I should think that being my old lady would be all the satisfaction or career any woman needs. Mick Jagger

Council on Licensure,

Enforcement and Regulation

Toronto Symposium

June 15, 2010

Essence of Consumer Protection

• Empowerment of consumer by– Disclosure– Mandatory contract with mandatory

terms– Rules for providers– Remedies (e.g., cooling off period,

rescission, warranties, etc.)

• Levels the playing field– Evens power differential

Council on Licensure,

Enforcement and Regulation

Toronto Symposium

June 15, 2010

Essence of Professional Regulation

• Ensuring high level of skill and ethics by– Qualifications for entry into profession– Professional values (ethics, misconduct)– Enhancing skills (quality assurance)

• Focus on profession– Consumer protection a by-product

Council on Licensure,

Enforcement and Regulation

Toronto Symposium

June 15, 2010

Examples of Differences

• Discipline focuses on professional’s error– Judged by expectations of peers, not public

• Davidson v. RCDSO (1925)

– Nature of error > impact on consumer– Some misconduct is all about the profession

• E.g., unseemly advertising• E.g., criticism of colleagues• E.g., cooperation with professional body

Council on Licensure,

Enforcement and Regulation

Toronto Symposium

June 15, 2010

Examples of Differences

• Standing of consumer– Source of information, not a party

• Pieters v. Ontario College of Teachers

– Even CRC / LAT / HPARB is a watchdog of regulator and process• Not a consumer remedy

– No standing at discipline (rare intervener), fitness, quality assurance, registration

Council on Licensure,

Enforcement and Regulation

Toronto Symposium

June 15, 2010

Examples of Differences

• No remedy for consumer– Board of Funeral Services v. Schmolinski

• Sanctions re-direct / rehabilitate member– Suspension, TCL’s, reprimand– Ultimate sanction is removal

• Goals– Protect the public – Preserving the reputation of the profession

Council on Licensure,

Enforcement and Regulation

Toronto Symposium

June 15, 2010

Why the Differences

• Values better than rules• Excellence better than “achieving”

the bare minimum• Specialized knowledge problems

– Difficult for consumer to protect self– Some paternalism is right (e.g., sexual

abuse)

Council on Licensure,

Enforcement and Regulation

Toronto Symposium

June 15, 2010

Why the Differences

• The “self” in self-regulation has a benefit– The power of peers– Desire to conform to the community– The benefits of belonging

• Severity of sanction requires fairness– Termination of livelihood

• Redress lie with the courts

Council on Licensure,

Enforcement and Regulation

Toronto Symposium

June 15, 2010

There is Overlap

• Complaints, reviews, interveners• Client relations / client centred initiatives• Open processes• Website content requirements• Enhanced public register• Liability insurance requirements• Compensation schemes

– E.g., trust funds, sexual abuse counselling

Council on Licensure,

Enforcement and Regulation

Toronto Symposium

June 15, 2010

There is Overlap

• Some misconduct rules– Informed consent– Right of access to records– Advertising– Billing disclosure– False or misleading statements– Conflict of interest

Council on Licensure,

Enforcement and Regulation

Toronto Symposium

June 15, 2010

Practical Future Developments

• What more can be done without compromising professional self-regulation?

• Mandatory contracts with mandatory terms– Extension of informed consent principles

• Client relations programs– Proactive measures

• Transparency about members– Fostering consumer choice

Council on Licensure,

Enforcement and Regulation

Toronto Symposium

June 15, 2010

Radical Future Developments

• May compromise self-regulation values

• Increase consumer standing– Party in discipline, fitness hearings– Seats at policy / rule making table

• Remedies– Enhanced compensation schemes– Consumer remedy powers (e.g., refunds,

rescission, apologies)

Council on Licensure,

Enforcement and Regulation

Toronto Symposium

June 15, 2010

Concluding Thoughts

• Show me a thoroughly satisfied man, and I will show you a failure. ~ Thomas Edison

• I have the simplest tastes. I am always satisfied with the best. ~ Oscar Wilde

• If I have a thousand ideas and only one turns out to be good I am satisfied. ~ Alfred Nobel

Council on Licensure,

Enforcement and Regulation

Toronto Symposium

June 15, 2010

Speaker Contact Information

• Richard Steinecke• Steinecke Maciura LeBlanc• Barristers and Solicitors • rsteinecke@sml-law.com