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

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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)

9. 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

10. 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

11. 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

12. 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

13. 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)

14. 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

15. 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