What Happens When a Professional Complaint Is Made Against You in Alberta?

Receiving notice that a complaint has been made to your professional regulator can be unsettling. For many professionals, their licence is directly connected to their livelihood, reputation, and years of education and training.

First, understand that a complaint is not a finding of professional misconduct. Regulators receive complaints for many reasons. Some result in disciplinary proceedings. Others are dismissed, resolved, or dealt with through less serious regulatory measures.

The precise process depends upon the profession. A lawyer regulated by the Law Society of Alberta, for example, operates under a different statutory framework than a real estate, mortgage, property management, or condominium management professional regulated by the Real Estate Council of Alberta (RECA).

However, professionals should understand several common stages.

1. A Complaint Is Made

Professional regulators protect the public and maintain standards within their professions. Complaints can come from clients, customers, patients, employers, colleagues, other professionals, or members of the public.

The allegations can also vary considerably.

For lawyers, complaints may concern issues such as conflicts of interest, confidentiality, communications, delay, failure to follow instructions or the handling of trust funds. The Law Society specifically identifies these as concerns its complaint process may address.

For a RECA licensee, a complaint might concern representations made during a real estate transaction, disclosure obligations, handling of funds, dealings with a client, or compliance with the Real Estate Act and its Rules. RECA regulates conduct in Alberta’s real estate, mortgage brokerage and property management industries and investigates complaints that potentially fall within its statutory authority.

In either case, a complaint does not establish that the allegations are true.

2. The Regulator Determines What Happens Next

Not every complaint proceeds to a disciplinary hearing.

The Law Society currently streams complaints into either its Conduct Process or its non-disciplinary Early Intervention Process. In the Early Intervention Process, considerations include the seriousness of the allegations, regulatory risk, whether the matter can be resolved, the lawyer’s cooperation, and other relevant information. A matter can ultimately be resolved or dismissed without disciplinary proceedings.

RECA similarly considers whether a complaint falls within its jurisdiction. Its current investigation process contemplates screening and notification, investigation where appropriate, review of the evidence, and a decision by the Registrar. Possible outcomes include no action, an advisory note, reprimand, penalty, or referral to a Hearing Panel.

This distinction matters. Receiving a letter from a regulator can understandably feel as though disciplinary proceedings have already begun. In many cases, they have not.

3. Be Careful With Your Initial Response

One of the most important stages of a professional complaint can occur surprisingly early.

A regulator may ask you for an explanation, documents, records, emails, transaction materials or other information. The natural reaction is often to immediately write a lengthy response explaining why the complainant is wrong.

That can be a mistake.

Before responding, understand exactly what is being alleged. The underlying documents should be reviewed. Identify the applicable professional obligations. Any factual disagreement should be considered against the contemporaneous record.

The objective should not simply be to write the longest or most forceful denial possible. A good response should address the regulatory issue accurately and strategically without unnecessarily creating additional issues.

At the same time, professionals cannot simply ignore their regulator.

For example, the Law Society requires lawyers who are the subject of complaints to cooperate, respond substantively to requests, comply with deadlines, and be candid and courteous.

RECA has significant statutory investigative powers. Under section 38 of Alberta’s Real Estate Act, an investigator can demand relevant records and answers to relevant questions, and licensees must cooperate. The Act also expressly permits an investigator to investigate other matters relating to the licensee’s business that arise during the investigation.

That last point illustrates why an apparently simple complaint should not necessarily be treated casually.

4. The Investigation May Become Broader Than the Original Complaint

Professional discipline is not necessarily limited to deciding whether the complainant’s characterization of events is correct.

An investigator may interview witnesses, examine documents, review communications and obtain information from the professional.

Consider a complaint against a real estate professional concerning something allegedly said to a purchaser. The issue may initially seem like a simple disagreement about a conversation. Once investigated, however, the relevant questions could include what the licensee knew, what documents existed, what was disclosed, what was recorded in the file and whether the applicable professional obligations were satisfied.

Likewise, a complaint that a lawyer failed to communicate with a client may require consideration of emails, correspondence, instructions, limitation periods, file-management practices or other professional obligations.

This is one reason why professionals should preserve their records as soon as they learn that a complaint has been made.

It is also why you should prepare your response with the possibility that someone other than the original investigator may eventually read it.

5. A Complaint Can Be Dismissed, Resolved or Proceed to Discipline

There is a considerable difference between receiving a complaint and facing a formal disciplinary hearing.

In the Law Society’s Conduct Process, a complaint can be dismissed or referred to the Conduct Committee. The Conduct Committee can dismiss it, direct further investigation, order an alternative intervention such as a Mandatory Conduct Advisory or Letter of Caution, or direct the complaint to a hearing.

Under RECA’s process, an investigation can similarly conclude without formal discipline. Where sufficient evidence of conduct deserving of sanction exists, however, the Registrar may refer the matter to a Hearing Panel, issue a reprimand, or impose an administrative penalty where authorized.

At a formal hearing, the stakes become considerably higher. Evidence may be introduced, witnesses may testify, and the professional may have the opportunity to challenge the regulator’s case and present evidence in response.

6. The Consequences Can Extend Beyond the Penalty

Professional discipline can result in reprimands, monetary penalties or costs, educational requirements, restrictions on practice, suspension, or, in serious cases, loss of the ability to practise.

For Alberta lawyers found to have committed conduct deserving of sanction, possible disciplinary outcomes include a reprimand, fine, suspension, disbarment and responsibility for hearing costs.

But the formal penalty is only part of the picture.

Professional disciplinary proceedings can affect reputation, employment, business relationships and future professional opportunities. Public hearings or published disciplinary decisions can sometimes have consequences long after the proceeding itself has concluded.

For that reason, even where some underlying conduct is admitted, there may still be important issues concerning characterization of that conduct and the proportionality of the proposed sanction.

What Should You Do If You Receive a Professional Complaint?

Do not panic, but do not ignore it.

Read the regulator’s correspondence carefully. Identify every deadline. Preserve the complete underlying file, including emails, messages, notes and relevant records. Avoid contacting the complainant in a way that could create another allegation or complicate the existing complaint.

Most importantly, consider obtaining legal advice before providing a detailed substantive response.

There may be perfectly good answers to the allegations. The key is ensuring those answers are accurate, supported by the record, and responsive to the professional obligations at issue.

Early decisions can shape the course of the entire regulatory proceeding.

Yoav Niv Law represents professionals facing complaints, investigations, disciplinary proceedings and related administrative law matters in Alberta. We help professionals understand the allegations against them, prepare responses to regulators, navigate investigations, and defend their interests when matters proceed to disciplinary hearings.

This article provides general legal information only and is not legal advice. Professional regulatory procedures vary depending on the profession, regulator, governing legislation, and the circumstances of each case.