Zeynep Onen, Law Society of Upper Canada Freya Kristjanson, Cavalluzzo Shilton McIntyre Cornish LLP

1. Why do regulators have a duty to act in the public interest? What is the duty to act in the public interest? 2. How does a regulator determine what is its specific focus concerning the public interest? 3. Are there best practices regarding including public interest in regulatory processes? 4. How does a regulator resolve conflicting duties or elements of the public interest?

The requirement to act in the public interest  Delegated responsibility by the public to the regulator  Delegated exercise of judgment and discretion  Public trust in the license or other ‘brand’  Founded on a cultural consensus

 Limited guidance from case law  SCC in R. v. Morales :  “As currently defined by the courts, the term “public interest” is incapable of framing the legal debate in any meaningful manner or structuring discretion in any way”

 “Public Interest”– must be interpreted in light of the legislative history of particular provision, and the legislative and social context in which phrase is used  Decision-makers must base their decisions on the facts of the case, must be consistent with terms and purpose of statute, and not act in an arbitrary manner  Common law guidance re discretionary decisions

 Take into consideration the concerns of society generally, or at least those concerns relevant given the statutory scheme, and not merely the interests of one segment of society  Equality and human rights values properly form part of the determination of what constitutes the public interest  Doré – obligation to take Charter values into account in adjudicative decision-making

 Statutes and Regulations  Explicit/implicit  General/specific  Regulatory Tool Box  Mission Statement  Rules, Policies, Guidelines  Strategic Plan/Business Plan/Priorities  General: Charter, Human Rights Code, Privacy  Adjudicative Decisions

 Governing legislation – may contain explicit provisions  Example: Law Society Act section 4.2 paragraph 3 “The Society has a duty to protect the public interest”

 Regulated Health Professions Act  36. (1) [Keep confidential all information that a person learns in the course of their duties except] …. (g) to confirm whether the College is investigating a member, if there is a compelling public interest in the disclosure of that information  Health Professions Procedural Code  2.1 It is the duty of the College to work in consultation with the Minister to ensure, as a matter of public interest, that the people of Ontario have access to adequate numbers of qualified, skilled and competent regulated health professionals.  3(2) (2) In carrying out its objects, the College has a duty to serve and protect the public interest.

 Implicit provisions in the governing legislation based on the powers granted to the regulator  In other words… What are the express legislated duties of the regulator – do they by implication define the public interest mandate? For example, the authority to license implies protection of the public interest by selecting competent and ethical individuals

 Regulator’s Policy making: Articulation of a regulator’s policy objectives in policy development and in policy documents  Express mandate: Setting out an express mandate or mission statement for the regulator to capture its public interest role  Example: OSC – Women on Boards

 The regulator’s definition of the public interest should be consistent across all tools in the regulatory tool box  Consistent with stakeholder communications, communications with Minister, public communications  Will infuse all elements of regulatory processes

 Failure to meet the mandate to regulate in the public interest = significant risks  Stakeholder confidence  Public confidence  Confidence of Board, Minister  Reputational risk  Litigation risk (regulatory negligence)

 Regulatory audit (public interest focus): examine all aspects of the organization – are we doing everything we should be doing under the legislation?  Assessing risk: What aspects of our processes create risk?  Enterprise risk management – public interest

 Inquiries, Complaints, Call Centres  receipt and response to complaints  triage function: jurisdiction; referral; documentation; delay  Case Assessment  appropriateness of case assessment criteria – public interest;  application of case assessment  appropriate consideration of statutory powers, duties, options  past complaints and continuing activity of licensee/registrant  delay

 Investigations  Prosecutions  Adjudication  Rules  Policies  Guidelines

 Communication: a necessary component of working in the public interest  Staff policies and training  Scanning the environment/ stakeholder relations  Shifting public interest demands: a moving target

 Mission Statement  Strategic Plan/Business Plan  Statement of Priorities  Governance Charter and Skills Matrix: Composition of Board/Commission – Do you have the capacity to regulate in the public interest?  Conflict of Interest Rules  Stakeholder Advisory Boards

 failure to use discretionary powers in good faith and for a proper purpose  failure to base decision on logically probative evidence  failure to consider relevant considerations/taking into account irrelevant considerations  failure to observe the basic rules of procedural fairness  conflict of interest, reasonable apprehension of bias  improperly fettering discretion  improper delegation  refusing to exercise a discretionary power in circumstances where the decision-maker is under a duty to do so, or  unreasonably delaying the making of a decision that the decision-maker is under a duty to make.

 Conflicting public interest duties  Obligations to different segments of the public  Balancing interests in the process  Limits to the public interest

 U.K. – coming to Canada (see B.C. College of Nurses)  Right-touch regulation is the minimum regulatory force required to achieve the desired result  Six Principles

 Proportionate: regulators should only intervene when necessary. Remedies should be appropriate to the risk posed, and costs identified and minimised  Consistent: rules and standards must be joined up and implemented fairly  Targeted: regulation should be focused on the problem, and minimise side effects

 Transparent: regulators should be open, and keep regulations simple and user friendly  Accountable: regulators must be able to justify decisions, and be subject to public scrutiny.  Agility: regulators must look forward to anticipate change rather than looking back to prevent the last crisis from happening again. An agile regulator would foresee changes that are going to occur in its field, anticipate the risks that will arise as a result of those changes, and take timely action to mitigate those risks. At the same time, an agile regulator would not react to everything as changes may occur which do not need a regulatory response.

 Questions?