Looking Ahead Consumer Protection through Professional Regulation Barriers

Looking Ahead: Consumer Protection through Professional Regulation Barriers to Consumer Satisfaction Richard Steinecke Maciura Le. Blanc Council on Licensure, Toronto Symposium Enforcement and Regulation June 15, 2010 © CLEAR 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 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, Toronto Symposium Enforcement and Regulation 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, Toronto Symposium Enforcement and Regulation 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, Toronto Symposium Enforcement and Regulation 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, Toronto Symposium Enforcement and Regulation 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, Toronto Symposium Enforcement and Regulation 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, Toronto Symposium Enforcement and Regulation 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, Toronto Symposium Enforcement and Regulation 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, Toronto Symposium Enforcement and Regulation 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, Toronto Symposium Enforcement and Regulation 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, Toronto Symposium Enforcement and Regulation 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, Toronto Symposium Enforcement and Regulation 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, Toronto Symposium Enforcement and Regulation 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, Toronto Symposium Enforcement and Regulation June 15, 2010

Speaker Contact Information • • Richard Steinecke Maciura Le. Blanc Barristers and Solicitors rsteinecke@sml-law. com Council on Licensure, Toronto Symposium Enforcement and Regulation June 15, 2010