What Does It Mean to Be “Ungovernable”?

Cancellation is the most severe sanction and only appropriate in very limited circumstances. One such circumstance is where the professional is ungovernable, but what does it mean for a professional to be ungovernable? 

While the Court of Appeal in Charkhandeh v. College of Dental Surgeons of Alberta acknowledged that ungovernability may justify cancellation, the Court said little about what it means to be ungovernable. Fortunately, various other decisions help to shed light on the meaning of ungovernability.

Definitions of Ungovernability

Ungovernability may be described as a pattern of conduct that demonstrates that a professional is unable or unwilling to respond to professional regulatory oversight.¹ It has similarly been described as a professional’s refusal to accept the authority of their regulatory body.²

Courts and tribunals have identified a list of factors which may be evaluated to determine whether a professional is ungovernable. The list of factors is as follows:

• the nature, duration, and repetitive character of the misconduct;
• any prior discipline history;
• any character evidence;
• the existence or lack of remorse. Remorse includes a recognition and understanding of the seriousness of the misconduct;
• the degree of willingness to be governed by the regulatory body;
• medical or other evidence that explains (though does not excuse) the misconduct;
• the likelihood of future misconduct, having regard to any treatment being undertaken, or other remedial efforts; and
• the member's ongoing co-operation with the regulatory body in addressing the outstanding matters that are the subject of the misconduct.

About this list of factors, courts and tribunals have held that it is not necessary that each and every factor be established before a finding of ungovernability is made. Rather, each case turns on its particular facts, and factors in one case may play a more significant and determinative role than they do in another case.

Examples of Ungovernability

Despite the direction that each case turns on its particular facts, the most significant and determinative factor in the analysis seems to be the degree to which the professional complies with their regulator’s directions or processes. Another important factor is whether the professional has previously been found to have engaged in some other type of misconduct. As examples:

• in Re Heshka, an Alberta accountant was found to be ungovernable when he, among other things, failed to comply with the temporary suspension of his registration imposed on him by his regulator and failed to cooperate with his regulator’s processes, including by failing to respond in a timely manner to communications from the regulator which required a response;
• in College of Physicians and Surgeons of Ontario v. Kadri, a physician was found to be ungovernable when he failed to comply with an interim order which placed terms, conditions, and limitations on the physician’s certificate of registration pending the regulator’s investigation and hearing process;
• in Ahluwalia v. College of Physicians and Surgeons, a physician was found to be ungovernable when he repeatedly misrepresented information related to patient records during an audit by his regulator. Of significance, the physician was previously disciplined for providing falsified patient records to his regulator some 20 years earlier;
• in Law Society of Alberta v. Peterson, a lawyer was found to be ungovernable when he continued to practice even after his regulator suspended him. The lawyer also then refused to engage in the disciplinary process;³ and
• in Park v. Royal College of Dental Surgeons of Ontario, a dentist was found to be ungovernable when he repeatedly breached undertakings to his regulator not to perform certain procedures and attempted to mislead the regulator’s investigators about the same. Additionally, the dentist had been disciplined a few years earlier for inappropriate billing practices and falsifying records.

Ungovernability + Protecting the Public

The Court of Appeal in Charkhandeh emphasized that the primary purpose of sanctioning is to protect the public. In cases of ungovernability, courts and tribunals have recognized that ungovernable professionals pose a significant risk to the public. As put by the Manitoba Court of Appeal in one case, “[a] finding of ungovernability is based on a case-by-case analysis in which the guiding principle is the public interest. Members of a profession must be willing to be governed by their regulator; otherwise, the public cannot be protected”.

Key Takeaway

Cancellation is the most severe sanction. As such, it ought to be used sparingly. However, cancellation may be an appropriate sanction in cases of ungovernability. In considering whether a professional is ungovernable, and thus whether cancellation may be an appropriate sanction, the regulator ought to consider the list of factors referred to above. While no single factor is determinative, the degree to which the professional complies with their regulator’s directions and processes is an especially important factor.

If you’re navigating professional discipline matters, understanding ungovernability is critical. Contact Leanne Monsma or any member of our Professional Regulatory Group to discuss how these principles may apply in your situation.