Thank you very much for inviting me.
ICCRC, as a new professional regulator with a small budget, did an excellent job in the four years that I was its legal counsel, or one of its legal counsellors, which was 2014 through 2017. I've had no connection with the organization since I retired from practising law at the end of 2017.
ICCRC hasn't had any statutory authority, which meant that it was always open to legal challenges. A lot of those challenges caused delay, which permitted the bad actors to continue to be bad actors during the delay and to profit from unprofessional conduct.
I had been recommending that ICCRC obtain an authorizing statute since I started working with it. I have to say that the proposed law is well drafted, and I would commend everyone involved in drafting it. I don't say this too often, but this is a really good law.
I must caution you still about expecting too much too soon. There are still problems of education and administration that even the best law can't fix immediately. There will still be a backlog of cases that have to be resolved.
It's important to think about ICCRC's budget and size, because it had many critics, but I think those have been based in large part on looking at things like law societies and comparing them to ICCRC. The membership at the present time is about 5,000, according to the ICCRC 2018 annual report, but the Law Society of Ontario, of which I used to be a member, in only one Canadian province, has approximately 50,000 members. The average ICCRC member, contrary to what you may read in the papers, will earn typically about $60,000 a year after expenses and will have a hard time paying the membership fee of approximately $1,800. Meanwhile, the Ontario law society has a budget of $125 million, which is more than 10 times the size of the ICCRC's budget. This has been until recently a reason for understaffing and a serious limit on the ability to deal with the bad guys.
The proposed law is really good. I've attached to my paper a list of things that I prepared back in 2016 as to what should be in such a law and, as I checked off the boxes while reading the law, I think almost everything has been covered.
There could be one improvement I would suggest, which is to give the explicit power for ICCRC to seize property in Canada and perhaps also abroad, with the co-operation of other governments, so they can enforce monetary penalties. There's no point imposing a penalty and then having people say, “Well, I'm just not going to pay it, too bad for you.” The same thing would be true about giving them the authority to order an award of costs to recover investigation costs and legal fees spent in prosecutions. I would suggest, although this is not usual, that the power should be retroactive to cover existing cases.
I want to talk briefly about how members can abuse the discipline process, because, in the course of my work, I've read hundreds of these files of complaints and seen how it works in practice. It's still too easy for members who are being disciplined to abuse the system in a variety of ways: concealment of evidence, increased delay in costs and avoidance of the payment of penalties.
The new law fixes two of the three of those, because the investigators can now enter premises and seize documents, which they haven't been able to do until now. They can also avoid the delay and the adjournments because they have the power to deal with things more expeditiously.
In most professional discipline cases, the parties resolve the issues through negotiation, which usually results in a guilty plea and an agreement to a negotiated penalty.
Typically, 70% to 80% of cases are decided that way, but that has not been the case at ICCRC. That's because after long delays and weak investigative evidence, ICCRC either has to go to a costly hearing or agree to a trivial slap on the wrist with no monetary penalty. Without a law, if a member is finally found guilty of professional misconduct, the member can just refuse to pay the penalty and say “I have no money, goodbye”. Meanwhile ICCRC will have spent a lot of money and time on legal fees and will get nothing back for the victims and nothing back for itself.
The bad actors know that they can get away with paying nothing. They have no incentive to negotiate a settlement and to pay the agreed penalty. The law could be toughened up a little bit to make sure they have the power to do those things.
I would also mention that there are a few members who have sought electoral power at ICCRC by making unsubstantiated allegations of corruption and other such claims. They have repeatedly sued ICCRC and then withdrawn their legal actions before a hearing or before losing in order to avoid paying adverse costs.