B-4 BY-LAW 24 – DISCIPLINE

24.2.1 Disciplinary actions shall not be implemented or communicated by the Institute until the later of the date for filing an appeal has passed pursuant to the Institutes policy, or the disciplinary decision has been upheld on Appeal. AGM 2016

B-4 BY-LAW 24 – DISCIPLINE - Appendix A

Resolutions Sub-Committee Comments- The Board of Directors is proposing this By-Law amendment further to a recommendation made by the Member Conduct Roster to the June 2017 Board meeting. The Roster’s recommendation was supported by the following notes:

In 2016, the Institute’s AGM adopted a resolution amending By-Law 24 to add:

24.2.1 Disciplinary actions shall not be implemented by the Institute until the later of the date for filing an appeal has passed pursuant to the Institute policy, or the disciplinary decision has been upheld on Appeal.

Allegations of misconduct are processed under the existing Dispute Resolution and Discipline Policy (“DRDP”). The Institute has in the past been confronted with serious allegations of misconduct ranging from financial improprieties, to sexual or physical assault and even to raiding of Institute members. Such allegations have been the subject of investigations under the DRDP and have often resulted in findings of misconduct requiring the imposition of disciplinary sanctions. Pursuant to the current Policy, in order for any suspension or expulsion to occur, an investigation must be carried out.

While any member can appeal disciplinary sanctions, such appeal can be time- consuming and can take several months before the disposal of the appeal. These delays are often the result of the third-party neutral’s availability and oftentimes, it is the appealing member who requests extensions of time to go through the process. Allowing an appellant to carry on as if no finding of misconduct has been made while the appeal process takes its course, as the new By-Law 24.2.1 now provides, imposes significant liability risks to the Institute.

In reviewing other organizations’ approach to dealing with disciplinary sanctions, it is apparent that a disciplinary penalty is not automatically suspended on appeal. On the contrary, unless a motion for a stay is sought in Court and granted, members of those organizations are subject to the disciplinary measure whilst the appeal process is ongoing. The only exception relates to police officers, who in many jurisdictions, continue to receive pay until all disciplinary appeals are exhausted. Appendix A, attached, provides examples of non-Institute bodies where the imposition of disciplinary measures take effect immediately notwithstanding appeal rights.

The MCR strongly believes that the disciplinary measures it has imposed over the past three years related to serious cases of misconduct that warranted immediate intervention once the investigation process was complete. The MCR is concerned about the risks associated with By-Law 24.2.1, in that it allows individuals who have been found to have engaged in misconduct by a third party to continue as if nothing had occurred. This has the potential of putting other members, including complainants, in harm’s way. It creates risk for the Institute to be found liable should further harm ensue on the basis that the Institute knew about the risk of harm and had a duty to act to prevent it. This is contrary to what the Institute advocates for on behalf of its members in the workplace and shifts the risk entirely onto the Institute and its members, away from the respondent, who would have had the benefit of a full investigation prior to having been suspended or removed from office.