Complaint Form

See Bill 110

Complaint Form (a pdf file)

Alternative Dispute Resolution Guidelines

Approved by Council July 20, 2001

Introduction

The OPFA has developed these alternative dispute resolution (ADR) procedures as an alternative to the formal complaints process.  The ADR procedures enable the parties involved to work together to resolve the issues relating to a complaint about a member.  Our objective is to help the public, employers and members achieve greater satisfaction in the resolution of complaints, and to ensure that complaints are resolved in a way that effectively protects the public interest.  Because ADR is less formal, it becomes much more important to ensure that adequate procedural safeguards are in place to protect the rights of the parties and the integrity of the process.  These procedures are consistent with our efforts to improve the quality of the practice of professional forestry and reflect a trend in society toward a non-adversarial means of dealing with conflict.

The Ontario Professional Foresters Association

The OPFA is the governing body for the approximately 900 Registered Professional Foresters (R.P.F.s) in Ontario in 2001.  The principal object of the Association is to regulate the practice of professional forestry in order that the public interest may be served and protected.  Among other things, the Association sets requirements for entry to the profession, registers practitioners, and develops and enforces ethics and standards of practice.  To find out more about the Association, contact the OPFA office for more information or visit the website at www.opfa.on.ca. 

The Complaints Process

The Association has a duty to consider and investigate complaints regarding the conduct or actions of a member.  For serious complaints, an investigator will gather relevant documents and interview people with knowledge of the complaint.  This information is reviewed and considered by the Complaints Committee which is made up of R.P.F.s elected by members of the Association, and members of the public appointed by government.  Normally, neither the member complained against nor the complainant are present when the Committee reviews a case. 

The Committee can decide to dismiss the complaint, or may decide on a course of action designed to improve the member's practice.  Cases involving serious professional misconduct, unskilled practice or incapacity supported by strong evidence may be referred to the Discipline Committee for a hearing.  Complaints are not made public unless they are referred to the Discipline Committee. For more information on the complaints or discipline process, please contact the Association office.

Alternative Dispute Resolution

ADR is a set of voluntary procedures designed to assist parties in resolving issues themselves without the use of formal proceedings such as hearings.  ADR is becoming more popular in civil proceedings because the techniques – primarily mediation – result in significant savings for the parties in both time and money, and greater satisfaction with the outcome because the parties are directly involved in creating their own solution.  The techniques are also increasingly used by professional associations and colleges as well as various administrative tribunals.

Voluntary

The most important feature of any ADR procedures is that they are completely voluntary.  They can only be undertaken if the parties agree, and either party can end the process for any reason at any time and rely on the formal procedures of the Association.  If the Association believes that a party is not acting in good faith it, too, may terminate the ADR proceedings and continue with the formal procedures.

The main techniques which comprise ADR are informal negotiations, mediation, and arbitration.  Since arbitration involves a hearing followed by a decision, it is not sufficiently different from a discipline hearing to provide a useful alternative.  The most useful procedures for discipline matters are informal negotiations and mediation.

Informal Negotiations

It is common for professional associations and colleges to negotiate with the parties to a complaint at virtually every stage.  For example, the Registrar, on first learning of a complaint, may speak to both parties and successfully resolve a simple issue.  If the matter proceeds to an investigation, the facts may suggest a possible solution as simple as an apology, and the investigator can assist in negotiating a resolution acceptable to the parties and the Association.  Informal negotiations can occur right up to a disciplinary hearing in a form of plea bargaining. 

Mediation

Mediation is a form of assisted negotiation which involves the use of a trained, neutral facilitator who helps the parties reach a voluntary settlement that meets their needs and is acceptable to the Association.  All parties, including the Association, must consent to the process, the mediator, and the resolution. If agreement is not reached, the matter reverts to the formal complaints and discipline procedures.  If a resolution is reached, it must be approved by the Complaints Committee or, if it has already been referred to it, the Discipline Committee, in order to ensure that the resolution is in the pubic interest.

The Act does not specifically authorize mediation, but it is consistent with the objects of the Association outlined in section 5 of the Act.  In addition, subsection 4.(1) and section 4.1 of the Statutory Powers and Procedures Act permit parties and the relevant committees to waive formal procedural requirements on consent.

The advantages of mediation include the following :

• Mediation involves more extensive participation by the complainant and the practitioner in the process.  In a discipline hearing, the complainant’s role is that of a witness and the practitioner is insulated from the discipline process by his or her lawyer.  Mediators will attempt to involve the complainant and the practitioner directly in the discussions and formulation of a resolution.

• Resolutions through mediation tend to be more meaningful to the participants because they have contributed to the process and because they have agreed tot he resolution before it was finalized.  This generally produces greater commitment, particularly on the part of the practitioner, to implement the terms of the agreement.

• Mediation involves the skills of a trained mediator.  Mediators try to bring forward and meet the underlying interests of the parties in the dispute rather than focusing solely on the stated positions of the parties.

• Mediation offers broader options for disposition that a discipline hearing would.  For example, an admission of wrongdoing or an apology can result from mediation.  These often cannot be directly ordered by a discipline committee.

• Mediation is generally significantly less expensive to a college than a discipline hearing.

ADR as Education

Based on experience in other professions which use ADR procedures, including the nursing and medical professions, only cases involving the most egregious or incompetent conduct go to the discipline committee.  The majority of cases involve educational deficiencies and are resolved by requiring the practitioner to seek educational improvement.  These cases are seen as educational opportunities to give advice and guidance to members, and opportunities to encourage reflective practice.  As a result, the objective of ADR has evolved to include how to review a member’s practice and design the most appropriate educational programs in order to improve the member’s behaviour.  For this reason, the quality assurance committee (or its equivalent) has begun to play a key role in the ADR process in some professions.  In those professions this committee, unlike the complaints committee, has the power to order members to participate in additional education programs.  For this reason, complainants are encouraged in this direction in appropriate cases.

Guidelines: When is the use of ADR appropriate

Cases not eligible for ADR

1. Complaints which are found by the Complaints Committee to be frivolous, vexatious or an abuse of process, or which do not involve valid forestry practice issues.
2. Complaints in which the complainant has an unrealistic expectation regarding the outcome of the process.  For example, if the complainant feels a member should lose the right to practice due to a relatively minor infraction, the complaint is unlikely to be resolved voluntarily.
3. Complaints which, in the public interest, should be fully reviewed by the Complaints Committee and possibly referred to the Discipline Committee for a full hearing.  These could include, for example, cases which raise serious allegations of professional misconduct or unskilled practice of professional forestry, cases involving complex issues which would benefit from an independent review, or cases which relate to incapacity.
4. Complaints involving a member with a history of conduct which has been the subject of previous complaints or discipline proceedings, or previous ADR agreements which have not been honoured by the member.
5. Complaints with a high degree of publicity.

Cases eligible for ADR

1. Any complaint, whether or not formally filed, which relates to a member’s practice or conduct.
2. The parties to the complaint, including the Association, are interested in ADR as an alternative to formal procedures, and agree to make their best efforts to reach agreement.
3. The subject matter of the complaint is appropriate to be addressed by mutual agreement.
4. The Association is satisfied that the matter can be addressed by voluntary agreement in a manner which protects the public interest.
5. Serious cases which would be best suited for formal resolution, but which lack sufficient evidence to refer to the Discipline Committee.

Guidelines: Conducting ADR

1. ADR should be offered to the parties when the Association is first notified of a complaint and at every opportunity, as the facts or the situation suggests, in the complaints process.
2. The Complaints Committee can direct the matter to mediation if, after reviewing the results of an investigation and possibly an independent peer opinion, they feel it is appropriate to explore agreement as an alternative to having the Committee make a decision.
3. The parties must be advised that their participation in ADR is completely voluntary, and that they can return to the Association’s formal procedures at any time and for any reason.  If the ADR process is terminated, the complaint will proceed through the formal channels as if ADR had not been attempted.  The Complaints Committee will not have knowledge of information revealed during ADR procedures.
4. The parties’ consent can be verbal in the case of informal negotiations.  For mediation, the parties’ written consent should be obtained in the form of a mediation agreement.
5. It is not necessary for the parties to meet during any part of the ADR process.
6. The parties to ADR include the complainant, the member complained against, and the Association.  Other individuals may also take part in the process if the parties consent.  These could include legal counsel for the complainant or the member, consultants, other individuals affected by or knowledgeable about the complaint, or anyone else agreed to by the parties.
7. The Association facilitates the ADR process, including all communication between the parties, keeps each party up to date and involved in the development of a resolution, drafts any agreement reached between the parties, and ensures through ongoing monitoring that the concerns are resolved and implemented.
8. The individual who conducts the ADR process, whether informal negotiations or mediation, depends on the stage the complaint has reached in the formal process.  For example, initial attempts at informal negotiations may be conducted by the Registrar. If the matter proceeds to an investigation, the investigator may attempt informal negotiations.  If the parties agree to a mediation, they must agree on a mediator.  The mediator could be the Registrar, the investigator, or a third party acceptable to the parties. 
9. The background of the person conducting ADR procedures, particularly during early stages of informal negotiations, can be critical.  For example, if an investigator can clearly and objectively explain why certain procedures were or were not followed by a member, an early resolution may be more likely.
10. If the parties agree that a resolution should focus on continuing education, an investigation may still be appropriate but it would focus on facts required to design an appropriate educational program.  For example, how does the member’s practice and procedure relate to the standards and expectations of the profession?  An investigator may retain a practice consultant to assist in designing a suitable program.
11. Information revealed during the ADR process remains confidential.  Following an unsuccessful attempt at ADR, the Complaints Committee will not have knowledge of statements made by any party while participating in ADR.  No information will be made public, and the parties are asked to maintain confidentiality.  Information disclosed during ADR, and in an agreement reached, will not be used or referred to in any future complaint or discipline proceeding.
12. Notwithstanding the foregoing, the member complained against must be warned that the Association cannot ignore information revealed during ADR that points to another possible incident of professional misconduct or unskilled practice of forestry.
13. Any reasonable solution is possible provided the parties, including the Association, agree.  Proposals for solutions can include a letter of apology, an agreement for the member to participate in a specific education program, and a meeting between the parties to discuss the issues in a non-confrontational manner.
14. A resolution results in the withdrawal of the complaint and an agreement that the matter is closed.

ADR Agreements

The Complaints Committee has no power to enforce any agreements reached as a result of ADR procedures.  Pending the OPFA developing a bylaw relating to practice review and quality assurance, agreements reached will by and large be enforced voluntarily.  If a member breaches an agreement however, it could represent a breach of the professional misconduct regulation (paragraph 4, failing to fulfill the terms of an agreement with a client or employer), which could result in another complaint and investigation. 

The incentive for members to participate in ADR procedures is that it keeps their professional record clear.  The fact that a member was involved, the particulars of any agreement reached, and even the fact that an agreement was reached will not be brought forward in any future complaint unless the complaint is related to a breach of an ADR agreement.  Otherwise, any information regarding a complaint or its resolution reached through ADR procedures will not be used or referred to in any future Association investigation.  The only time this information will be relevant in future complaints is when staff have to determine whether it is appropriate for the member to participate in ADR again.

An ADR agreement should be signed by the parties involved, and it should list everything that has been agreed to as part of the resolution of the matter.  The agreement, the originating complaint, the letter from the complainant withdrawing the complaint, and any other relevant information is then reviewed by the Complaints Committee on a no-names basis so as not to prejudice the member in future complaints, if any.  The Committee must formally confirm the resolution of the complaint in order to ensure that the public interest is considered and protected.

This page last modified September 18, 2005