Unauthorized Practice Process
There are three options OPFA can take to prevent unregistered persons from engaging in the practice of professional forestry, or committing other offences under the Act. They are: alternative procedures; a prosecution; and a restraining order.
In the event of a complaint or information received relating to the unauthorized practice of forestry, the Association can take a number of steps prior to commencing legal action. It is likely that the majority of cases will be resolved in consultation with the employer and the individuals involved, possibly using dispute resolution techniques such as mediation. Consultations could also occur with the professional, trade or occupational association representing the individual if his or her profession, trade or occupation is organized. If the individual is a member of another professional organization, OPFA could lodge a complaint with that organization. The Association could issue a "cease and desist" letter to the individual who is the subject of the complaint. If these alternative procedures do not resolve the problem the Association may have to consider prosecution or seek a restraining order. However, the formality and expense of these proceedings represents a strong incentive to each party to resolve questions of "turf" by other means.
Provincial Offences Prosecution
The prohibitions in the Act are also provincial offences which can be prosecuted in provincial offences court. In this event, which in the forestry professions in other provinces is extremely rare, the court would hear evidence from the parties involved to make a decision based on the circumstances of each case as applied to the Act, the regulations, the by-laws, and the guidelines and policies of the Association. To establish whether a person was engaged in the practice of professional forestry as defined in the Act, the science of forestry and the current state of forestry practice would also come into consideration.
Upon receiving information relating to possible unauthorized practice or other offences, OPFA will have to investigate to obtain the evidence needed for a prosecution. Since the Act does not empower OPFA to investigate non-members, evidence must be obtained from willing people. If cooperation is not forthcoming, there are search warrant provisions under the Provincial Offences Act which can be used to obtain evidence, but evidence obtained in this manner can only be used in a prosecution and not for a civil proceeding such as a restraining order.
In the event a prosecution is pursued, procedures will be governed by the Provincial Offences Act. The prosecution may be conducted by OPFA or, if the local police can be persuaded to lay the charges, by the local Crown Attorney (the local Crown Attorney also has the power to intervene and take over a prosecution). Charges are laid before a justice of the peace.
“Provincial offences prosecutions are similar to criminal prosecutions. The person is charged with an offence. Once a court date is set, a plea is taken, and the prosecutor must prove the charge through witnesses. A judge or justice of the peace decides the case and may impose a fine if the person is convicted.” (Richard Steinecke, “A Complete Guide to the RHPA”, paragraph 11.340)
Proceedings are generally quick, a fine is immediately available to deter the person, and the person will then have a record which can be used in any subsequent case. Despite these advantages of a prosecution, it may be preferable to seek a restraining order.
Subsection 59 (1) of the Act enables the Association to prevent a continuing violation of the Act, the regulations or the by-laws by applying to a judge of the Superior Court of Justice for an order directing the person to comply with the provision. The procedure is commenced by a notice of application and does not require witnesses to attend and testify. Instead, the court relies on affidavits by witnesses and documentary evidence. Richard Steinecke outlines the advantages of this procedure (Supra, paragraph 11.390):
- The application can be brought anywhere in Ontario, not just where the defendant lives. For that reason, applications are often brought in Toronto where the colleges and their lawyers are located.
- The application is brought before a judge of the General Division of the Ontario Court of Justice [now the Superior Court of Justice – DC]. This is a higher level of court than provincial offences court. This means that the decision makes a better precedent for future cases. The judges of this court also tend to be more experienced in hearing detailed arguments of law and spending time considering individual cases.
- It is generally much more convenient to introduce evidence by means of affidavits rather that to have to arrange for witnesses to attend a hearing.
- If the defendant files an affidavit, the college has an opportunity to cross-examine him or her to obtain further evidence. Also, the college will know, before going to court, the defence from the defendant’s evidence and written arguments.
- The burden of proof is the civil one, on a balance of probabilities, not the criminal burden of “beyond a reasonable doubt” which applies in provincial offences court.
- The six month limitation period after which a provincial prosecution cannot be commenced does not apply. However, at least some of the evidence should be relatively recent in order to persuade a court that a current problem requiring an injunction exists.
- More flexible rules of evidence apply than in provincial offences prosecutions. For example, the evidence does not need to relate solely to incident in issue. Examples of prior breaches of the law and prior warnings from the college are relevant to whether the injunction ought to be granted. Hearsay evidence on uncontested points is also permissible.
- The college is assured of being the party arguing the application. The Crown cannot take over the prosecution. This enables the college to lead the type of evidence and to make the kinds of arguments that it feels are necessary. Also, the college’s lawyer may be more familiar with this area of the law.
- A restraining order prohibits repetition of the conduct, which is the ultimate goal of the college in most cases. A small fine for a provincial offence, on the other hand, can be seen by some people as the cost of doing business.
The college may receive an order for the person to pay some or all of its costs if it is successful in the application. The costs would be payable to the college, unlike any fine in a provincial offences prosecution. An order for costs can reduce the college’s expenses for prosecution if the order can be collected.