Written with the assistance of Justin Vessair,
Student-at-Law, McMillan LLP
"It wounds a man less to confess that he has failed in any
pursuit through idleness, neglect, the love of pleasure, etc.,
etc., which are his own faults, than through incapacity and
unfitness, which are the faults of his nature."
Self-regulating professions in Canada demand exacting standards
of their members. The pressure to comply is significant as failure
to do so can lead to disciplinary action and losing one's
license to practice. What then does a professional do when they
begin to question their own capacity to meet these demands due to
the onset or progression of a physical or mental illness, or
substance use that has gotten out of control? In such an
environment, it is unsurprisingly rare to hear of individuals
self-reporting mental issues, addictions or other potential issues
that can give rise to incapacity. Further, professionals tend to be
proud of their membership in their profession, who, like Lord
Melbourne, are loathe to report their own failures and deficiencies
that threaten to tear them away from their chosen pursuit.
Admitting that mental illness or addiction has affected a
person's ability to perform as a professional is a source of
deep embarrassment; a stigma both personal and professional
surrounds admissions of incapacity.
Understanding incapacity in the professions, the misguided
stigma that surrounds it, and how different professions have chosen
to deal with the problem, is essential in developing an informed
means of protecting the profession, the public, and the individual
suffering from incapacitating issues. The focus will be on Ontario
professional regulators and case law, but the conclusions are
largely applicable to all professional regulators in Canada.
There are generally three paths by which a regulator can deal
with the failure to maintain the standards exigent on a
professional: (i) discipline; (ii) incompetence; and (iii)
incapacity. However, not all professions deem there to be a
difference procedurally between incapacity and incompetence, and,
albeit rarely, some deal with all three under the rubric of
discipline. In general, issues pertaining to professional
negligence are not in the jurisdiction of the regulator, although
there is often overlap between professional misconduct and
negligence issues – the latter being a matter to be
determined by civil legal remedies by the party affected by the
professional negligence. Similarly, there is often overlap between
discipline issues and issues of incompetence or incapacity.
In Shirbigi v. JM Food Services Ltd. (2014 BCSC 1927), the B.C. Supreme Court found that an employer could not mask the fact that it had constructively dismissed the plaintiff simply by relocating her place of work.