Triple Jeopardy: Civil, Disciplinary, And Regulatory Proceedings Against Professionals

Members of regulated professions, such as engineers, architects, financial advisors, and health professionals, can face multiple proceedings arising from the same conduct. For instance, for a single event, an engineer may be sued in civil proceedings for negligence, be charged under building code or safety legislation, and face disciplinary proceedings of his/her professional body. The engineer has no control over the sequence of such multiple proceedings.

The insurer's interest is solely in the outcome of the civil proceedings, however, adverse rulings in regulatory and/or disciplinary proceedings can have a significant impact on those civil proceedings. Consequently, in practical terms, it may be prudent for the insurer to ensure that the insured is properly defended in the parallel proceedings. This article explores, from the insurer's perspective, the interplay among the civil, quasi-criminal, and disciplinary proceedings.

At common law [Hollington v. F. Hewthorn & Co., [1943] 1 K.B. 587 (Eng. C.A.)], findings in criminal proceedings were held to be inadmissible in subsequent civil proceedings. In Hollington, a case involving automobile negligence, the plaintiff could not tender evidence of the criminal conviction of the defendant arising from the same occurrence. The Canada Evidence Act and corresponding provincial legislation, however, provides that evidence of a prior conviction is admissible. Further, Canadian jurisprudence has diverged from the English common law and has defined the admissibility and weight that may be given to criminal convictions.

The principles articulated in the leading Canadian case, Del Core v. College of Pharmacists (Ontario) (1985), 51 O.R. (2d) 1 (Ont. C.A.), were reaffirmed in Franco et al. v. White, (2001) 53 O.R. (3d) 391 (Ont. C.A.). In Del Core, a pharmacist had been criminally convicted of obtaining pharmaceuticals by fraudulent means. The admissibility of evidence of that conviction was challenged by the disciplinary committee that was examining the same conduct. The court ruled:

[per Blair JA] The prior conviction must of course be relevant to the subsequent proceedings. Its weight and significance will depend on the circumstances of each case...

Since evidence of prior convictions affords only prima facie proof of guilt it follows that its effect may be countered in a variety of ways. For example, the conviction may be challenged or its effect mitigated by explanation of the circumstances...