Professional Regulation: When Does Failure to Cooperate become Ungovernability?
When does failure of a licensee to cooperate become ungovernability? This question has been addressed at all levels of tribunals and Courts, and recently by the Law Society of Newfoundland and Labrador’s Adjudication Tribunal in LeDrew (re) 2025 CanLII30347 ( NL LS) Feb 18, 2025.
Failure to cooperate is a major headache for professional regulators, requiring significant staff and committee time, financial resources, as well as procedural and reputational challenges. Yet it remains difficult to evaluate when the line is crossed from a failure to cooperate into the realm of ungovernability, the latter drawing a much more serious disciplinary response. So, what practical guidance can we glean from the cases?
Under what circumstances have professional regulators successfully argued ungovernability?
Kuny v. College of Registered Nurses of Manitoba, 2018 MBCA 21
Being found ungovernable by a tribunal twice in two years, the latter on the basis of a finding by a Discipline Committee that a licensee “failed to accept responsibility or to be accountable for his actions”, and “by his actions and words, refused to accept the authority or take direction from his governing body”, led to a College’s success on appeal seeking revocation on the basis of ungovernability (Kuny v. College of Registered Nurses of Manitoba, 2018 MBCA 21). The Court referenced a previous appeal decision involving the same licensee (Kuny v. College of Registered Nurses of Manitoba, 2017 MBCA 111, para. 73) stating:
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. A demonstrated inability or unwillingness to abide by the decision of a regulatory body will support a finding of ungovernable conduct.
Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041
It is generally accepted that to successfully make a case for ungovernability, there has to have been a pattern of misconduct, most often with a history of escalated disciplinary responses. However, in the case of Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041, a refusal to cooperate with the regulator without a history of discipline lead to a successful case for ungovernability.
In Reid, a disciplinary panel found him guilty of five counts of professional misconduct for inappropriate communications with a colleague, and for failing to cooperate with the College’s investigation. They imposed a 12-month suspension, reeducation, costs of $166,194.50 and a $10,000 fine (note that fines are most often appropriate in the cases of repeated similar misconduct). Reid appealed all findings. On appeal, the Court found the Appellant engaged in harassment of the complainant and the College’s staff and sent emails containing “insulting, threatening and disrespectful language”.
The Court found that the Appellant also failed to cooperate with the College’s investigation even though the licensee argued that the language of the statute allowed but did not require a member to respond. The Court cited Artinian v. College of Physicians and Surgeons of Ontario [1990] O.J. No 1116, at para. 9, as standing for the principle that, “Fundamentally, every professional has an obligation to cooperation with his self-governing body.” The Court added that “… it is not enough for there to be delayed or sparse responses, but rather there must be a clear refusal to cooperate with the investigation.” [para. 81] The Court in Reid also found that while a licensee’s personal circumstances are a relevant factor when assessing penalty, in this case the content of the emails ‘cannot be excused by any personal circumstance.’
LeDrew (Re), 2024 CanLII 121632 (NL LS)
In 2024, lawyer Kenneth LeDrew was found guilty of multiple breaches of the Code of Professional Conduct, including a failure to cooperate with the Law Society’s investigation and a practice review, and repeated communications with the Society which were found to be abusive, offensive, discriminatory, discourteous, and unprofessional. See LeDrew (Re), 2024 CanLII 121632 (NL LS). Examples of the failure to cooperate included:
- Failure to agree to the practice review
- Failure to provide the practice files, and other attempts to obstruct the review
- Disrespectful communications during the review
- Failure to respond to complaints in a timely and respectful manner
Examples of the unprofessional and abusive emails included:
- An email in which LeDrew stated “Thank you for yet another unproductive repetitious email” which was determined to be sarcastic and disrespectful in tone;
- LeDrew’s request that he be contacted by a “male member of LSNL” on the basis that he was being discriminated against by “female bureaucratic LSNFLD members”;
- A continued reference to female Law Society staff as “Ladies” or “Ladies of the Law Society” demonstrating a tone of disrespect;
- LeDrew’s use of all caps in emails denoting that the writer is shouting at the recipient; and
- A comment in an email to the Society, “Have a safe, enjoyable, nice, nondiscriminatory and productive weekend 😊”) was found, in the overall context of the evidence, sarcastic and disrespectful.
While LeDrew claimed his behaviour was attributable to medical issues, he produced no evidence to support this finding.
LeDrew then apparently evaded service of the panel decision on merits for two months and was found to have continued his disparaging comments about the Law Society following the decision. It was also discovered that he had been the subject of additional charges relating to failure to report his prior disbarment by the Law Society of Alberta in 2023 for similar violations.
At the sanction hearing, the Society argued that the misconduct should be looked at “globally” and that when considered in this way, LeDrew was ungovernable, and should be disbarred. The Tribunal agreed, emphasizing the critical importance of licensee cooperation in order for a regulator to effectively regulate in the public interest.
In finding LeDrew ungovernable, the Tribunal considered LeDrew’s historical lack of cooperation, his documented similar failure to cooperate in proceedings in Alberta, his failure to acknowledge his guilt despite the evidence against him, his unprofessional communications with Law Society staff and the continuation of his disrespectful behaviour following the Panel’s decision on the merits of the charges. At para 26 of the decision:
Of significant concern to this Adjudication Tribunal is the evidence submitted by the Law Society regarding the Respondent’s correspondence with a second Tribunal relating to a further disciplinary proceeding. As reproduced at paragraph 8 of these reasons, the Respondent has engaged in further communication in which he denigrates the Law Society and its processes, for example, referring to the further disciplinary process as an “unprofessional and inequitable prolonged and redundant make-work farce.” Furthermore, the Respondent has again, in a manner very similar to several of the communications at issue in the Merits Decision, complained about the “unacceptable gender imbalance” of the staff composition of the Law Society and alleges that the proceedings against him are somehow due to this “gender imbalance.”
The Tribunal concluded that LeDrew’s conduct demonstrated ungovernability, found there were no mitigating factors, and determined he must therefore be disbarred. In doing so they concluded he was unable or unwilling to be governed and could not be trusted to comply with his ethical obligations or cooperate with the Law Society in the future.
The panel reinforced that a pattern of failing to cooperate creates serious risks relating to a regulator’s ability to regulate in the public interest:
- … given the privilege of self-regulation accorded to the practice of law, members’ cooperation with their governing body is critically important. Given the Respondent’s failure to cooperate with the Law Society and its processes – both prior to and following the issuing of the subject complaints, protection of the public as well as deterrence toward similar behavior is highly relevant.
Hanson v. College of Physicians and Surgeons of Ontario, 2021 ONSC 513
In the case of Hanson v. College of Physicians and Surgeons of Ontario, 2021 ONSC 513, the discipline tribunal, upheld by the Court, found that a practitioner’s past history can have a significant impact on subsequent disciplinary sanctions, even when the licensee in this case had, since the most recent conduct, successfully completed a course of clinical remediation and mentorship, which led to an expert report that the practitioner was providing an appropriate standard of care and was not lacking in good judgement or substantive knowledge.
The tribunal and subsequent Court found that Dr. Hanson’s significant discipline history (1 suspension, 2 reprimands, 5 cautions, 1 counsel, referral to the Quality Assurance Committee, re-education, clinical supervision and three separate undertakings) involved many examples of unethical conduct, including misleading other health care practitioners and the regulator, led to a determination that he was irremediable (a twist on the term ungovernable), and “…when considering penalty, the Committee was entitled to consider the whole of the Appellant’s disciplinary record, including conduct which occurred after the conduct that led to the misconduct in issue.” The Court also found that Hanson’s history of mental illness and substance abuse did not establish a basis for a sanction less than revocation:
While there was evidence before the Committee of the Appellant’s diagnosis of substance use and bipolar disorders and that he had been subject to health monitoring since 2019, there was no evidence of submissions made to the Committee that the Appellant’s mental health or the treatment of his disorders in any way contributed to the misconduct in issue. … There must be some connection in the evidence between the health issue and the misconduct in question before the matter can be considered in respect of penalty.
Key Takeaways
These cases provide an instructive overview of when a lack of cooperation, disrespectful communications by a licensee, and/or a history of escalated discipline will tip the scales into a finding of ungovernability.
Disciplinary panels will look for repeated and ongoing conduct, a lack of remorse or insight, the absence of mitigating factors, and whether the pattern supports a finding that the licensee is either unwilling or unable to be governed.
When faced with an uncooperative licensee, to ensure procedural fairness a regulator can:
- Rely on its power to compel cooperation under statute, by-laws, policy and the common law to require or compel cooperation;
- Warn a licensee of the potential consequences of a failure to cooperate, including a separate complaint instigated on that basis;
- Issue a summons to the licensee to further compel cooperation and disclosure; and
- File a complaint based on allegations of failure to cooperate and, where possible, obtain a clear refusal to cooperate from the licensee.
When instigating a complaint or charges based on a failure to cooperate, a regulator should focus the charges on specific Code of Conduct violations by the licensee, for example, the duty to respond to complaints and communications from the regulator. Should a licensee ultimately be found guilty of a litany and/or pattern of violations amounting to professional misconduct , as in LeDrew, a Discipline Panel may then be invited to make a global finding of ungovernability with a resulting revocation.
Regulators are experiencing an increase in ‘weaponization’ of professional regulation complaints processes, and lack of respect by licensees for their regulators. It is a challenge to decide when a licensee’s uncooperative and/or disrespectful behaviour toward staff and regulatory processes crosses the line into ungovernability. Regulators need to consider when and whether such conduct begins to bring the reputation of the profession into disrepute and raises questions by the public about whether the regulator is able to effectively regulate its members.
Pink Larkin has an experienced team of practitioners ready to assist professional regulators, not-for-profits and charities with a wide range of legal service needs including complaints investigation and prosecution, governance best practices, effective decision-making, Board and adjudicator training, and legislative and policy drafting.
