Failing to cooperate with a regulatory investigation won’t get you off the hook

A former chemist in Quebec has learned that failing to cooperate with a regulatory investigation into allegations of serious misconduct will not allow you to escape penalty.

Cozak sanctioned by discipline committee for failure to cooperate

Daniel Cozak, a chemist, was arrested in September 2015 for his alleged involvement in an illegal ecstasy lab. He faced criminal charges but was never convicted after the criminal proceedings against him were stayed.

The Ordre des chimistes du Québec (the “Regulator”) began investigating him in November 2017, arguing that Cozak’s alleged involvement in the ecstasy lab violated Quebec’s Code des professions and the Code de déontologie des chimistes. The Regulator received little cooperation from Cozak, who failed to hand over requested documents and refused to properly answer questions when interviewed, omitting information and making unfounded claims of memory loss.

Despite acquitting him on disciplinary charges involving the use of false identification to import and store chemicals used to produce ecstasy, the discipline committee (the “Committee”) found Cozak guilty of refusing to cooperate with the Regulator and obstructing the Regulator’s investigation into his alleged misconduct, for which the Committee imposed a four-month suspension as a sanction.

Both Cozak and the Regulator appealed different aspects of the Committee’s decision. Cozak appealed the Committee’s decision finding him guilty of obstructing the Regulator during its investigation. Whereas the Regulator appealed the Committee’s imposition of a four-month sanction for Cozak’s obstruction and failure to cooperate, as well as its decision to acquit Cozak on the false identification charges.

On October 26, 2022, Quebec’s Tribunal des Professions (the “Tribunal”) – a specialized tribunal that hears appeals of various regulatory bodies’ disciplinary decisions and certain administrative decisions – released its decision regarding these appeals in Chimistes (Ordre professionnel des) c. Cozak, 2022 QCTP 46 (the “Decision”). (Note: Our review of the Decision was translated from French.)

Obstruction warrants stiffer penalty, tribunal finds

The Tribunal found that Cozak had demonstrated, through his lack of useful collaboration, an “insolent attitude aimed at ridiculing the Regulator [translated]” throughout its efforts to investigate the matter. By becoming a member of l’Ordre des chimistes du Québec, Cozak agreed to submit to the authority of the Regulator and to cooperate fully with investigations. Cozak’s behaviour was found to have obstructed the Regulator from carrying out its mission of protecting the public and undermined public confidence in the disciplinary process.

The Tribunal noted that the seriousness of Cozak’s misconduct reflects poorly on the profession as a whole, and that the sanction must reflect as such. Additionally, failing to levy a penalty that sufficiently reflects the seriousness of such obstruction might tempt other regulated professionals to refuse to cooperate with investigations, believing that they would be sanctioned less severely for obstruction than for the ethical misconduct for which they are being investigated.

For these and other reasons, the Tribunal accepted the Regulator’s appeal, finding the original sanctions against Cozac to be inadequate. The Tribunal revoked the four-month suspension, instead imposing a permanent ban on Cozak working as a chemist. The Tribunal concluded by stating that Cozak’s obstruction is an exceptional situation that requires the imposition of such a sanction – otherwise, “the credibility of the disciplinary justice system is at stake [translated].” The Tribunal also reversed the acquittal pertaining to the false identification charges, returning this matter to the Committee to determine the appropriate sanction.

An important reminder for regulated professionals

This case serves as a reminder of the importance of cooperating with regulatory investigations – and that obstructing an investigation into serious allegations will not spare you from potentially serious consequences.

The lawyers in our Regulated Professionals practice group have extensive experience advising a wide range of regulated professionals – including  doctors, dentists, optometrists, pharmacists, chiropractors, veterinarians and other professionals – involving regulatory investigations. We also advise colleges and associations on prosecuting complaints against members, acting as independent counsel during enforcement proceedings. We provide advice to disciplinary hearing panels and offer assistance with investigations into alleged misconduct. We also advise regulators on determining the appropriate sanctions for misconduct, and on credentialing and continuing education requirements for regulated professionals. Contact us to learn how we can help.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.