BYLAW 13: COMPLAINT RESOLUTION PROCEDURES

Published: November 2015

Definitions

13.1 In these procedures:

13.1.1 “agent” means an agent as defined in the Foresters Act, and for the purposes of Section 24 of the Foresters Act, includes:

13.1.1.1 The registrar;
13.1.1.2 Members of the complaints resolution committee;
13.1.1.3 A person or persons designated by the complaints resolution committee to investigate a matter or act as a fact finder to assist with attempts at alternative complaint resolution;
13.1.1.4 Members of the standing investigations committee; or
13.1.1.5 A person or persons designated by the standing investigations committee to investigate a complaint made against a subject member;

13.1.2 “alternative complaint resolution” means a process or processes established under these bylaws , in accordance with Section 23 of the Foresters Act, to assist in appropriate circumstances in the resolution of complaints without completion of a discipline hearing and includes without limitation:

13.1.2.1 Negotiation of a resolution;
13.1.2.2 Mediation;
13.1.2.3 Arbitration; or
13.1.2.4 A combination of the above; but does not include a proposal under Bylaw 13.41 for issuance of a consent order;

13.1.3 “citation” means a citation issued under Section 24(4)(a) of the Foresters Act;
13.1.4 “complaints resolution committee” means a committee appointed by council under Bylaw 13.7.
13.1.5 “consent order” means an order issued by a panel under Section 27(4) of the Foresters Act upon acceptance of a proposal tendered by a member under Bylaw 13.41;
13.1.6 “discipline committee” means a pool of registered members designated by council to serve as panel members to conduct discipline hearings and such other functions as may be called for under the Foresters Act and these bylaws;
13.1.7 “investigation committee” means those persons designated by the standing investigation committee to investigate a particular complaint and shall be deemed agents for those purposes;
13.1.8 “panel” means members of the discipline committee designated by the chair of the discipline committee:

13.1.8.1 to act as a panel under Section 27 of the Foresters Act to conduct discipline hearings once a citation has been issued, or to decide whether to accept or reject proposals tendered under Bylaw 13.41 for issuance of a consent order ; and
13.1.8.2 to hear and decide upon alternative complaint resolution proposals under Bylaw 13.15.

13.1.9 “standing investigations committee” means those persons designated by council to the standing investigations committee having the duties set out herein;
13.1.10 “parties to a complaint” or “parties” means the person(s) making a complaint under Section 22 of the Foresters Act and the member(s) in respect of whom a complaint is made.
13.1.11 “review conditions” means the conditions described in Section 22(6) of the Foresters Act.
13.1.12 “any term defined in the Foresters Act has the same meaning for the purposes of these bylaws.”

Complaints Against Members or Former Members

13.2 A person may make a written complaint, addressed to the registrar, against a member as specified in subsections 22(1) through (3) of the Foresters Act Member’s Opportunity to Comment

13.3 If all review conditions have been met, the registrar will invite the subject member to provide a written response to the complaint.

13.4 If the subject member chooses to provide a written response he or she must do so within the time period stipulated by the registrar which will, in no event, be less than seven (7) business days.

Anonymity

13.5 If the registrar deems it appropriate, the identity of the complainant may be withheld from the subject member to protect the identity of the complainant.

13.6 The identity of the complainant shall only be withheld in circumstances where the registrar is satisfied that to do otherwise would put the safety of the complainant at risk, expose him or her to potential punitive action (as defined in the Foresters Act), or would unduly hinder the ability of the association to investigate the complaint.

Complaints Resolution Committee

13.7 Council shall appoint a complaints resolution committee consisting of not less than five (5) persons, the majority of whom must be registered members and at least one (1) of whom shall be a lay person.

Referral of Complaint to Complaints Resolution Committee

13.8 No more than ten (10) business days after receiving the subject member’s comments under Bylaw 13.4, or the expiration of the date set for receipt of the subject member’s comments, the registrar shall refer all complaints that meet review conditions set out in the Act and not otherwise resolved between the parties to the complaints resolution committee.

Complaints Resolution Committee Procedures

13.9 To the extent not already provided for in the Foresters Act and these bylaws, council may, by resolution, establish complaints resolution committee processes/procedures and decision making criteria.

Selection of Appropriate Complaint Resolution Mechanism

13.10 If the complaints resolution committee determines that one or more alternative complaint resolution processes are appropriate in the circumstances, and the parties to a complaint agree to engage such complaint resolution processes, the complaints resolution committee will identify which process or processes shall be attempted and shall make a recommendation to the registrar accordingly. At any time the registrar, with the consent of the parties to a complaint, may refer a complaint to be resolved by alternative complaint resolution.

Association May Be Party to Alternative Complaint Resolution Processes

13.11 The association, at its option, may be a party to any alternative complaint resolution process undertaken.

Arbitration

13.12 Should the registrar and the parties to a complaint agree to resolve that complaint by arbitration, the registrar shall request that the chair of the discipline committee designate a panel to act as a board of arbitration to arbitrate the complaint.

13.13 The board of arbitration designated to arbitrate the complaint:

13.13.1 May be a panel of one (1);
13.13.2 Shall, in addition to the duties, powers and functions agreed to by the parties to the complaint, have all of the powers of a panel granted under the Foresters Act, including, without in any way limiting the generality of the foregoing, the power to determine remedy and costs; and
13.13.3 To the extent not otherwise provided for in the Foresters Act, and these bylaws, shall have the power to determine its own procedures.

13.14 The board of arbitration’s decision shall be binding on the parties and shall be subject only to those appeal provisions granted under the Foresters Act, for decisions of a panel under Section 30 of the Foresters Act.

Panel Approval of Outcome of Alternative Complaint Resolution

13.15 Any proposed resolution of a complaint arrived at through alternative complaint resolution, other than cases in which, with the consent of the registrar, the complaint is withdrawn or in cases resolved through arbitration as set out above, must be approved by a panel.

Referral of Complaints Back to Registrar

13.16 After review of a complaint referred to them under Bylaw 13.8 and Bylaw 13.23 the complaints resolution committee will refer the matter back to the registrar with recommendations if:

13.16.1 They determine that alternative complaint resolution processes are appropriate in the circumstances; or
13.16.2 One (1) or more alternative complaint resolution processes directed by the complaints resolution committee have been attempted and the matter has not been resolved; or
13.16.3 They believe further investigations are required; or
13.16.4 They believe there are insufficient grounds to support an investigation; or
13.16.5 They believe there are sufficient grounds to support the issuance of a citation; or
13.16.6 They believe there are insufficient grounds to support a citation.

Registrar to Consider Referrals by Complaints Resolution Committee

13.17 Within fifteen (15) business days of receipt, the registrar will consider referrals of complaints by the complaints resolution committee under Bylaw 13.16 along with the recommendations, if any, of the complaints resolution committee and may either:

13.17.1 Attempt alternative complaint resolution as described in the Act and these Bylaws; or
13.17.2 Forward the complaint and any comments received from the subject member to the chair of the standing investigations committee for investigation under Section 24 of the Foresters Act; or
13.17.3 Issue a citation, if the matter has been investigated, and the registrar is satisfied that:

13.17.3.1 The investigation is complete; and
13.17.3.2 The investigation report is in the form of an agreed statement of facts; or
13.17.3.3 Where not in the form of an agreed statement of facts, the subject member has had an opportunity to review and comment on the investigation report; and
13.17.3.4. All other criteria set out in Section 24(4) of the Foresters Act for issuance of a citation have been met; or

13.17.4 Decline to issue a citation; or
13.17.5 Dismiss the complaint.

Deliberations of Standing Investigations Committee

13.18 Where the registrar forwards a complaint under Bylaw 13.17.2 the chair of the standing investigations committee will table the complaint and comments, if any, received from the subject member for consideration at the next scheduled standing investigations committee meeting, or may call a special meeting of the standing investigations committee to do so.

13.19 Notwithstanding the provisions of Bylaw 13.18, the standing investigations committee must meet to consider the complaint and any comments not more than forty (40) business days from the date it was referred by the registrar.

Standing Investigations Committee Processes and Procedures

13.20 To the extent not already provided for in the Foresters Act and these bylaws, council may, by resolution, establish processes/procedures and decision making criteria for the standing investigations committee and for agents designated to investigate a complaint, either under the provisions of Section 24 of the Foresters Act or in aid of alternative complaint resolution.

Standing Investigations Committee May Designate an Agent to Investigate

13.21 The standing investigations committee, after deliberation, may designate an agent to investigate the complaint pursuant to Section 24 of the Foresters Act and will inform the subject member of its decision.

Agent’s Report

13.22 On completion of an investigation, the agent must consider the information, records, and things obtained under Sections 24 and 25 of the Foresters Act and the credibility of any person interviewed in the course of the investigation. to make a preliminary assessment of:

13.22.1 Whether there is a reasonable basis for a belief described in Section 22(1) of the Foresters Act; and
13.22.2 If so, whether there may be a reasonable basis to issue a citation against the subject member for a discipline hearing.

13.23 The agent must report its findings in writing to the registrar who may forward all such reports to the complaints resolution committee for their consideration.

Notification of Registrar’s Determination if No Grounds Exist

13.24 If the registrar determines that there is no reasonable basis for a belief described in Section 22(1) of the Foresters Act, the registrar will, within fifteen (15) business days of making the determination notify the subject member and the complainant.

Subject Member’s Right to Comment on Report if Grounds Exist

13.25 If the registrar determines that that there is a reasonable basis for a belief described in Section 22(1) of the Foresters Act, the registrar will, within fifteen (15) business days of making the determination, inform the subject member and complainant and will send a copy of the report to the subject member by registered mail to the address last appearing in the association’s registry of members for that member.

13.26 The registrar will invite the subject member to comment on the report, and on whether a citation should be issued for a discipline hearing. The subject member’s comments must be received by the registrar no later than twenty (20) business days after mailing of the report to the subject member.

Determination Whether Matter Should Go to Hearing

13.27 The registrar will, within five (5) business days of the last date for the receipt of comments from the subject member, forward the agent’s report and the comments, if any, received from the subject member to the complaints resolution committee.

13.28 The complaints resolution committee will, within thirty (30) business days of receiving the agent’s report and comments from the subject member, if any, make a recommendation to the registrar as to whether a citation should be issued against the subject member for a discipline hearing.

Notification if Matter Not to Proceed to Hearing

13.29 If the registrar decides not to issue a citation for a discipline hearing the registrar will, within fifteen (15) business days, notify the subject member and the complainant.

Citation

13.30 If the registrar decides to issue a citation, under Section 24(4)(b) of the Foresters Act the registrar must send the citation to the subject member by registered mail or courier to the address last appearing in the association’s records for that member.

Deemed Receipt

13.31 Receipt of the citation, or any other document mentioned in these procedures, is deemed to occur after proof of posting.

Contents of Citation

13.32 The citation may contain one (1) or more allegations against the subject member and each allegation will:

13.32.1 Be sufficiently clear and specific to give the subject member notice of each of the allegations against him or her; and
13.32.2 Contain sufficient detail of the circumstances of the allegation(s) to give the subject member reasonable information with respect to the act or omission to be proved against him or her and to identify the matter or matters which is or are the subject of the discipline hearing and such information about the discipline process as is reasonably necessary.

Designation of Panel to Conduct Discipline Hearing

13.33 Once a citation has been issued, the registrar will forward it to the chair of the discipline committee with a request that the chair designate a panel to conduct a discipline hearing into the allegations contained in the citation.

13.34 The panel designated to conduct a discipline hearing shall be constituted of:

13.34.1 Not less than three (3) discipline committee members.

13.35 Notwithstanding the provisions of Bylaw 13.34, if the registrar and the subject member consent, the panel designated to conduct a discipline hearing may be a panel of one (1).

13.36 No member of the discipline committee who has served as a panel member to consider alternative complaint resolution proposals or any proposal for issuance of a consent order for the same matter subject to a citation may be a panel member designated to conduct the discipline hearing into that same matter.

Panel May Determine Own Procedure

13.37 To the extent not otherwise provided for in Foresters Act, these bylaws, or policies or procedures established by council, a panel has the power to determine its own procedures.

Duties of Judicial Member

13.38 If requested by the panel, the discipline committee chair may appoint legal counsel for a panel where matters of the complaint require such counsel.

13.38.1 The discipline committee chair must ensure that the expenditures for legal counsel required by the bylaws are in compliance with the ABCFP Discipline Expense Policy.

Death or Disability of a Panel Member

13.39 If a panel member is unable for any reason to serve on the panel, the remaining panel members may continue the discipline hearing and the vacancy does not invalidate the proceeding. If it is a panel of one (1) then the registrar will ask the discipline committee chair to appoint another panel of one.

Citation May Be Disclosed

13.40 After a citation has been issued and served on the subject member, the registrar may disclose the citation and its status to the public and to association members.

Consent Orders

13.41 A subject member may, at any time after the referral back to the registrar under Bylaw 13.16, and before the conclusion of a discipline hearing tender a written proposal to the registrar.

13.41.1 Conditionally admitting some or all of the allegations against him or her; and
13.41.2 Consenting to the making of an order under Section 27(4) of the Foresters Act.

13.42 The terms of a proposal tendered under Bylaw 13.41, may be negotiated between the registrar and the subject member.

13.43 If the registrar and the subject member reach agreement on the terms of a proposal under Bylaw 13.42, the registrar will, within seven (7) business days of reaching such agreement, request that the chair of the discipline committee designate a panel to decide whether to accept or reject the proposal.

13.44 Despite Bylaw 13.34 a panel under Bylaw 13.43 may be a panel of one (1).

13.45 If the panel accepts the proposal:

13.45.1 The panel will make an order under Section 27(4) of the Foresters Act  consistent with the proposal; and

13.46 The registrar will deliver a copy of the panel’s order to the subject member within five (5) business days of receiving it.

13.47 If no agreement can be reached between the registrar and the subject member on the terms of a proposal or if a panel decides to reject the proposal:

13.47.1 The matter will continue in accordance with these procedures as though the proposal had not been made; and

13.47.2 The subject member’s conditional admission described in Bylaw 13.41.1 and consent described in Bylaw 13.41.2 will not be disclosed to or considered by any panel subsequently hearing or deciding upon any alternative complaint resolution proposals under Bylaws 13.10 to 13.15 or conducting a discipline hearing and determining the matter under Section 27 of the Foresters Act.

Consent Order May Be Published

13.48 The registrar may publish a consent order issued under Bylaw 13.45.1 in such manner as the registrar decides, subject to ABCFP policy on publication of the names of members.

Failure to Attend Hearing

13.49 If the subject member fails to attend at the discipline hearing, the panel, on proof of posting of the citation by registered mail, may proceed with the inquiry in the subject member’s absence and may make its findings and its decisions without further notice to the subject member.

Disclosure and Notice

13.50 The rules of disclosure imposed under these Complaint Resolution Procedures shall be the same for any party to a complaint resolution or discipline process under these Complaint Resolution Procedures and at all stages of a complaint resolution or discipline process under these Complaint Resolution Procedures.

13.51 In addition to the obligations imposed under Bylaw 13.50 above, all parties to a proceeding before a panel must disclose all documents, records, and things on which they intend to rely or refer to at the hearing, at least fifteen (15) business days before the date set for commencement of the proceeding.

13.52 If any party to a proceeding before a panel intends to raise any preliminary issues of process or procedure, they must, at least five (5) business days before the date set for the commencement of the proceeding, provide notice to the panel and all other parties.

13.52.1 Notice of an intention to raise issues of process or procedure under Bylaw 13.52 must include particulars of all issues the party intends to raise and a brief of argument, including case-law on which that party intends to rely.

Proceedings to Be Recorded

13.53 All proceedings of a disciplinary hearing will be recorded and any party may obtain, at his or her own expense, a transcript of any part of the hearing.

Proof of Posting of Citation

13.54 Before hearing any evidence respecting the allegations set out in the citation, the panel will determine whether the citation was served in accordance with these bylaws.

Citation to Be Exhibit

13.55 If the requirements for notice under these bylaws have been met, or have been waived by the subject member, the citation and proof of service will be filed as an exhibit at the hearing and the hearing shall proceed.

Scope of Inquiry

13.56 The panel may consider at one (1) discipline hearing a citation which contains one or more allegations.

Amendment of Citation

13.57 The citation may be amended prior to commencement of a hearing by counsel for the association, providing at least fifteen (15) business days-notice to the subject member, or otherwise after the commencement of a hearing by the panel on such terms as it determines including an adjournment of the proceedings.

Subject Member Compellable to Give Evidence

13.58 The association may require the subject member to give evidence at the hearing. If the association requires the subject member to give evidence on behalf of the association, counsel for the association, or the registrar, will give the subject member reasonable notice of this fact. For the purpose of this provision reasonable notice is no less than fifteen (15) business days prior to the date set for commencement of the hearing.

Testimony

13.59 The testimony of witnesses will be taken under oath or affirmation. Witnesses may be cross-examined and evidence given in defense and reply.

Rules of Evidence

13.60 A panel may receive, accept, and consider evidence and information it considers relevant to the issues before it, whether or not that evidence or information would be admissible under the rules of evidence in a court of law under the Supreme Court Rules or the Rules of the Court of Appeal.

Summons

13.61 Witnesses may be summoned to attend the hearing by personal service of a summons in the form established by the registrar from time-to-time for that purpose.

Subpoena

13.62 The attendance of witnesses may be compelled through issuance of a subpoena in accordance with the provisions of Section 28 of the Foresters Act.

Witness Allowances

13.63 Witnesses required to attend a hearing may be granted the same allowances as witnesses attending in the Supreme Court.

Panel Decision

13.64 Unless affected by the death or disability of a panel member and Bylaw 1.39 applies, a panel must decide any matter by a majority and the decision of the majority is the decision of the panel.

13.64.1 If Bylaw 13.39 applies and only two (2) panel members are either available to or are empowered to make a decision on a matter, the decision must be unanimous.

13.65 If a majority decision under Bylaw 13.64 or a unanimous decision under Bylaw 13.64.1 cannot be reached, the citation shall be referred back to the registrar for a re-hearing in its entirety.

13.66 The decision of the panel will be in writing.

13.67 If there is a minority opinion, it too shall be in writing.

Notification of Member

13.68 Where a disciplinary hearing proceeds in the absence of the subject member, in accordance with Bylaw 13.49, the panel will notify the subject member of its decision by registered mail.

13.69 The subject member is deemed to have received notice of the decision ten (10) days after proof of posting.

Publication

13.70 The registrar may publish the decision of the panel in such manner as he or she decides as per the ABCFP policy on the publication of names.

Costs

13.71 A panel may consider all factors it deems relevant in determining what, if any, costs the subject member shall be required to pay. Specifically, a panel is not limited by any provisions of case law pertaining to the awarding of costs or provisions for the awarding of costs under the Rules of Court for the Supreme Court of British Columbia and may award full costs to the association if one or part of an allegation in a citation is proven regardless of whether the remainder of the allegation or allegations in a citation are proven.

13.72 An award of costs, made against a subject member shall not, in the aggregate, exceed the actual amount of money spent by the association for the investigation of the complaint and the discipline hearing itself.

13.73 Once an award of costs has been made, the registrar may, at the request of the subject member, consider proposals for extending any time limit for the payment of costs made in such an order as well as payment schemes for such payment and may enter into an agreement or agreements to extend the time for payment or establish a payment scheme if, in the registrar’s opinion, it is reasonable and prudent to do so.


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