Details on recent bylaw changes

Here is an article-by-article breakdown of the recent changes to the bylaws covering the Standards of Conduct and the Disciplinary Process. These amendments have been in the works for a while now, and are intended to address some longstanding omissions (such as having no privacy policy, nor any requirement for a respondent to actually respond!) and various process problems. Overall, they incorporate greater structure, a defined timeline, more specifics regarding mediation and appeals, and new administrative penalties. The changes also lay the groundwork for future amendments specifically geared toward improving response to workplace harassment and abuse.

My apologies if any formatting oddities arise in the conversion to a blog post – hopefully it will all show up clearly in most browsers.

As always, we're happy to answer any questions you may have, so post them in the comments.

STANDARDS OF CONDUCT AND the DISCIPLINARY PROCESS
26.    The Association recognizes that the members of Equity, as professional artists, aspire to the highest standards in the practice of their craft. In the context of this endeavour, the Disciplinary Process is intended to address the needs of the members while maintaining and enhancing professional working relationships. The goal is resolution.	Unchanged.
COMPLAINTS
27.    Any person, or the Association, may file a complaint against any member of the Association who:	The Association has long had the ability to file a complaint, but this was never clearly stated. This update fixes that.
(i)     fails to pay any monies owing to the Association; or	Unchanged.
(ii)   acts in an unprofessional manner; or	Unchanged.
(iii)  engages in workplace violence or workplace harassment; or	This new wording limits the scope of these complaints to the workplace, and was proposed by our legal counsel. Prior wording was very open and suggested that Equity had the authority to address these and similar behaviours in any context, which we do not.
(iv)  refuses to fulfil a contract without reasonable cause; or	Verb changed to be more inclusive – was “perform a contract”. Otherwise unchanged.
(v)    is in conflict of interest to the detriment of another member of the Association; or	Unchanged.
(vi)  violates any of the Association's agreements; or	Updated - the original only specified negotiated agreements. That language predated many of our newer agreements and engagement policies, and had not been updated over time.
(vii) acts in a manner detrimental to the objects of the Association.	Unchanged.
27.1. In Articles 28 to 47.3, use of the singular “complainant”, “respondent”, “appellant” or “member” shall be understood to equally apply in the plural where such is the case.	This language was added to avoid tedious repetition of “complainant(s)” and other conditional plurals.
FILING AND FILING DEADLINES
28.    Complaints against a member shall be made in writing, signed by the complainant, and delivered to the Executive Director.	Unchanged. See note re: 29.
29.    The Association will provide a filing template and resource document for guidance. The complainant need not use the filing template, but he or she must include all the information required by the template form.	Previously, this bylaw was a partial list of example details, however complaints habitually arrived without all the necessary information. Using a filing template will mean far fewer back-and-forth conversations needed to ensure the complaint is complete when filed. The requirement for signing was also in here, but has been shifted to 28.
30.    Administrative complaints (e.g. refusal to perform a contract) shall be made within three (3) months of the date on which the complainant became aware of the incident(s) giving rise to the complaint. Other complaints shall be made within twelve (12) months of the date of the incident(s) giving rise to the complaint. No complaint shall be considered where the matter complained of was known or ought to have been known to the complainant for any longer period.	Administrative complaints now have a much shorter deadline than before – previously, it was a year. If either an engager or the Association wishes to file an administrative complaint, they must do so within a reasonable timeframe. The rest is unchanged.
VERIFIABLE COMMUNICATION
30.1. Except where otherwise stated, all filings, applications, requests, reports and notices required under Articles 27 to 47 shall be communicated in writing, through a service that provides for verification of receipt (e.g. registered mail, courier service requiring a signature, personal service.) Use of an unverified delivery service (e.g. regular mail, email, fax) is acceptable only when agreed to in advance by the recipient.	This new inclusion replaces multiple instances of “by registered mail or personal service” and similar language.
PRELIMINARY REVIEW AND RESOLUTION PROCESS
30.2. The Executive Director will review the complaint and direct it as follows:	This section now more specifically sets out the process by which complaints are reviewed and submitted to Council, so that members and others know what to expect.
(a)    If the matter is a contractual or membership issue properly dealt with by staff, or if the complaint has been brought by the Association under the terms of Articles 27(i), (iv) or (vi), the complaint need not be placed before Council. In such cases: (i)     if the facts of the matter are not in dispute; and (ii)   if the member has been given notice of the infraction and an opportunity to respond or resolve the matter; and (iii)  if the matter has not been otherwise resolved; and (iv)  if the applicable agreement or engagement policy does not already provide for penalties appropriate to the infraction, (v)    the Executive Director may enact only such financial penalties and for such causes as are set out in Article 47.3 and the applicable engagement document. Council will be informed of the complaint and the outcome at its next meeting.	This section is new. Purely administrative complaints in the realm of contractual or membership obligations no longer need to go through the whole complaint process, providing that certain conditions are met. The Executive Director is limited in the penalties that may be set, and cannot impose penalties on top of any that may be specified in the relevant engagement document.
(b)  For all other matters, the Executive Director will review the complaint against the grounds for complaint set out in Article 27. Where the complaint is thereby covered:	For all other items, the language has been updated to spell out existing practice…
(i)     The Executive Director will confirm that the complainant has attempted to address the matter with the member in question, or taken all other reasonable steps to address the matter prior to launching a formal complaint proceeding, and deliver the complaint submission to Council. (ii)   Where the complainant has not attempted to address the matter with the member in question, or taken all other reasonable steps to address the matter prior to launching a formal complaint proceeding, the Executive Director will offer staff assistance to attempt a proactive resolution to the matter.	The Executive Director is required to confirm that the complainant has taken reasonable steps to resolve the matter, and assist, if possible.
(iii)  Where this offer is not acceptable to the complainant or where it may not be a reasonable expectation in the circumstances, or it does not result in resolution, the Executive Director will deliver the complaint submission to Council.	Where the complainant declines the assistance, the efforts are unsuccessful, or a direct engagement may not be appropriate, the matter is referred to Council.
(c)  Where it is determined that the complaint is not covered under Article 27, the Executive Director will so inform the complainant and, where appropriate, offer other staff assistance in resolving the matter.	This addition offers reasonable staff assistance to resolve other complaints that do not fall under the scope of the complaint process.
(d)  Where it is determined that the nature of the complaint is such that outside authorities, such as the police, must be notified, the Executive Director will so inform the complainant. The Executive Director may hold further action on the complaint in abeyance pending completion of any other process, except that Council will be informed of the complaint and any action taken at its next meeting.	On the advice of legal counsel, this exclusion was added, so matters that properly belong in other hands are placed there. In such a case, the Executive Director may either hold the complaint in abeyance or proceed. Either way, Council will be kept up to speed.
30.3  Complaint submissions to Council arising out of Articles 30.2(b)(i) or (iii) shall be put before Council at its next regularly scheduled meeting.	Unchanged, just in a different location in the bylaws.
PRIVACY
30.4  (a)  During the preliminary review, and in submitting the complaint to Council, the Executive Director will take all reasonable steps to preserve the privacy of both the complainant and respondent. (b)  For complaints to be submitted to Council, the Executive Director will not inform the respondent of the complaint unless Council accepts the complaint for further action. (c)  The written complaint will submitted to Council with identifying information removed. If Council accepts the complaint for further action, identifying information will be provided thereafter as necessary. (d)  Council will treat the complaint and the identities of those involved as confidential information.	These are all new privacy provisions - there were none before. The goal is to ensure that Council process decisions are made without bias, and with due regard to the privacy of all parties.
TIMELINE FOR COMPLETION
30.5  Completion of a complaints proceeding, including complaints handled under Article 30.2(a), is a priority activity for the Association. The Association will attempt to conclude administrative complaints within six (6) months of filing, where the pertinent facts are not in dispute. The Association will attempt to conclude all other complaints within twelve (12) months of filing.	This is a new requirement for Equity to act promptly and expeditiously on complaints. There was no overall timeline before, and proceedings typically trickled on for years.
30.6  Should extraordinary circumstances necessitate an extension on the completion deadline of proceedings beyond the conclusion date set out in Article 30.5, either party, or the Executive Director, shall apply to Council for permission to extend, which permission will not be unreasonably withheld.	This new language allows limited deadline exemptions to be made, so that conclusion of proceedings is not jeopardised because of extraordinary circumstances. Such a situation might include the respondent being away on tour, etc. It would not include deliberate delay.
REVIEW BY COUNCIL
31.    Upon receipt of a complaint, Council may:	This section now provides much more structure for the preliminary Council review, so that members and others understand the process.
(i)     dismiss the complaint, where the complainant has failed to demonstrate a prima facie case under existing bylaws;	Previous wording allowed Council to simply dismiss the complaint out of hand, without due process. Council may now only dismiss complaints that do not fall under existing bylaws, or that do not clearly demonstrate that there is a case to be heard.
(ii)   direct the Executive Director to retain the services of a mediator, who shall attempt to settle any dispute or problem between the parties; or	Unchanged.
(iii)  direct the Executive Director to establish a Hearing Committee.	Unchanged.
32.    The Executive Director shall give notice of Council’s decision under Article 31 to the complainant within two (2) weeks of the decision.	The timeline was shortened for expediency. Previously it was 30 days.
32.1  Upon direction to engage a mediator or establish a Hearing Committee, the Executive Director shall also give notice of the complaint proceeding to the respondent within two (2) weeks of the decision. Such notice must include:	The timeline was shortened for expediency. Previously it was 30 days.
(i)     a copy of the complaint;	Unchanged.
(ii)   notice of expectation of a written response from the respondent; (iii)  explicit mention of the response requirements in Article 32.2, including a specific (calendar date) deadline; (iv)  explicit mention of failure to appear or respond requirements and outcomes under Articles 32.3 and 37.1(c); and (v)    a summary of the general process requirements, including verifiable communication requirements in Article 30.1.	(ii) to (v) are new requirements for information to be provided to the respondent. Only (i) was specified before. These terms are based on common tribunal rules.
32.2  The response under Article 32.1(ii) must: (i)     be received by the Executive Director within thirty-five (35) days of notice being given to the respondent; (ii)   respond to each allegation in the complaint; and (iii)  include any additional facts, allegations, and information on which the respondent intends to rely in his or her response.	This is all new. Previously, there were no requirements for a response, and so respondents tended to ignore complaints as long as possible. These terms are based on common tribunal rules.
32.3  No respondent is compelled to provide a response to the initial complaint. However where a respondent: (i)     fails to provide a response, the Hearing Committee or mediator may deem the respondent to have accepted all the allegations in the complaint, deem the respondent to have waived all rights with respect to further notice or participation in the proceeding, proceed to deal with the matter without further notice to the respondent, and decide the matter based only on material otherwise provided or available to it; or (ii)   files a response that is incomplete, the Hearing Committee or mediator is not  obliged to admit or consider evidence or submissions with respect to a fact or issue that was not raised in the written response.	This is all new. We cannot force people to provide a response, but neither can we reasonably allow lack of a proper or full response to stop or  stall the process indefinitely. As noted, failure to respond has been a regular problem in the past. These options are discretionary on a case by case basis, not obligatory, and are based on common tribunal rules.
32.4  Upon receipt, the Executive Director shall provide a copy of the response to the applicant within one (1) week.	This is all new. Previously, there was no requirement to inform the complainant.
33.    Moved to Article 40.3.	Unchanged, but moved.
34.    Moved to Article 32.1	Moved, and changed as noted.
HEARING COMMITTEE
35.    The Hearing Committee shall be comprised of no fewer than three (3) members in good standing of the Association not involved in the complaint, one of whom must be on Council.	Unchanged.
36.    Article 35 notwithstanding, if a vacancy develops on the Hearing Committee, the Executive Director may use his or her best judgment as to whether or not a replacement need be found, and the best manner for bringing the replacement up to date on the proceedings.	This is all new. Previously, there was no instruction on filling vacancies.
HEARING AND MEDIATION TIMELINES
36.1. The Hearing Committee or Mediator will be informed of the timeline provisions of Articles 30.5 and 30.6. The Hearing Committee or Mediator will set reasonable timelines for exchange of information, hearings and other necessary activities, and will not permit parties to unnecessarily delay proceedings.	This is all new. No timelines were previously specified.
36.2. Where a complaint proceeding is not concluded within the established completion deadline or extension, the Hearing Committee or Mediator may either declare the complaint abandoned, or proceed to decide the matter on the basis of available information.	This is all new, and prevents deliberate delay from thwarting completion of the process. Note that 30.6 allows for an extension if needed for extraordinary circumstances.
HEARING PROCESS
37.    (a)  The Hearing Committee shall provide to the complainant and respondent at least thirty (30) days' notice of the time and place of hearing. The Hearing Committee may hold the hearing in person or by teleconference or videoconference.	Unchanged.
(b)  The Hearing Committee shall select one of its members as chairperson and shall determine its own practice and procedure.	Unchanged.
(c)  The Hearing Committee shall not be required to follow the rules of evidence applicable in judicial proceedings, but shall not consider, request or admit evidence not clearly relevant to the complaint.	Unchanged, except that it has been rewritten for clarity.
(d)  The Hearing Committee shall have the right to question any witnesses and may inquire about the facts in the manner it deems acceptable and appropriate.	Unchanged.
37.1  (a)  The complainant and respondent may attend and give evidence orally, may bring witnesses, and may present affidavit(s) or other written evidence, provided all such evidence is clearly relevant to the.	Unchanged.
(b)  Parties to the complaint may elect to be represented by another person of their choice. Any such other representative shall participate at the parties' own expense.	Unchanged.
(c)  No respondent is compelled to appear at, have representation at, or provide a submission to the hearing. However, where no response is put forward by a respondent, any allegations made in respect of that respondent may be deemed to have been accepted, and the Hearing Committee or mediator may proceed to decide the matter on the basis of available information.	This is new, and follows on the earlier material dealing with lack of response. Not showing up for the hearing has also been a problem in the past. These options are discretionary on a case by case basis, not obligatory, and are based on common tribunal rules.
37.2  The complainants’ case shall be presented first, followed by that of the respondent, and the reply, if any, of the complainant.	Originally, this only specified that the complainant presented first. The additional wording was added on advice from our counsel.
37.3  The complainant and the respondent, or his or her representative, shall have the right to question witnesses presented by the opposite party.	A section that prohibited “cross-examination” was removed on advice from our counsel.
38.    The Hearing Committee may dismiss the complaint, or impose one or more of the following penalties, taking guidance from historic response to similar complaints: (i)     reprimand; (ii)   suspension, for a period not to exceed two (2) years; (iii)  a fine payable to the Association, in an amount not to exceed $5,000.00, with terms for payment; (iv)  expulsion from membership in the Association.	Unchanged.
38.1  In making a determination on a penalty under Article 38, the Hearing Committee may take into consideration previous rulings concerning the respondent.	This is new. It allows consideration of previous rulings.
38.2  Additionally, the Hearing Committee may make such recommendations as the Committee considers reasonable and appropriate to the offence. Such recommendations may be made in addition to, or as an alternative to, any penalty already imposed by the Hearing Committee under Article 38.	This is new. Council recognised that Equity only has the purview to impose certain penalties, but wanted to provide a Hearing Committee with the option to recommend other actions or alternative actions outside of those.
38.3  Where the Hearing Committee determines that the complaint was solely frivolous or vexatious in its intent or made in bad faith, and the complaint is dismissed, the Hearing Committee may impose one or more of the penalties from Articles 38(i) to (iii) on the complainant.	This is new. While frivolous complaints have not historically been a big issue, Council thought it prudent to provide for a response to them. Our counsel provided the wording.
39.    The Hearing Committee shall make a report in writing within thirty (30) days of the conclusion of the hearing, which report shall include brief reasons for its decision, and shall deliver a copy of its report to the complainant and respondent and to Council.	A timeline was added. See also 47.2.
40.    The decision of the Hearing Committee shall be immediately enforceable, until and unless reversed by the Appeals Process.	Unchanged.
MEDIATION PROCESS
40.1. The Mediator shall determine his or her own reasonable practice and procedures to assist both parties to resolve the matter, except that the Mediator may not permit any amendment or setting aside of Association Bylaws or Council Policy. 40.2. The Mediator shall make a report in writing within thirty (30) days of the conclusion of the mediation, which report shall include a summary of all points of agreement, signed by the affected parties, and shall deliver a copy of its report to the complainant, to the respondent and to Council. 40.3. Where an agreement is reached resulting in resolution, the results of the mediation shall be enforceable upon the terms set out in the signed agreement. 40.4. Where the complaint is not resolved, the complaint will again be put before Council at its next regularly scheduled meeting. Council may: (i)     Dismiss the complaint, where there is no prima facie case for complaint under existing bylaws; or (ii)   Direct the Executive Director to establish a Hearing Committee. 40.5. The Executive Director shall give notice of Council’s decision under Article 40.4 to the complainant and respondent within two (2) weeks of the decision.	This is all new. Previously, the process simply mentioned mediation as an option, and then said nothing further about it.
APPEALS PROCESS
41.    Where the complainant or the respondent is dissatisfied with the decision of the Hearing Committee, the complainant or the respondent may appeal to Council by submitting a Request for Appeal to the Executive Director within thirty (30) days after receiving the report.	Unchanged.
42.    The Request for Appeal shall include a copy of the Hearing Committee’s report that is the subject of the request for appeal, and a short summary of the reasons for the request for appeal, which must be based upon at least one of the following grounds:	Unchanged.
(i)     the Hearing Committee did not provide an impartial hearing or a reasonable opportunity for the presentation of the appellant’s complaint or defence; or	Unchanged.
(ii)   the Hearing Committee based its decision on facts that were not in evidence, did not follow the procedures provided for in the bylaws, or otherwise materially erred in its procedure; or	Added “materially” to guard against appeals for trivially technical reasons. Otherwise unchanged.
(iii)  there is new evidence available at the time of filing the appeal, that was not available or could not reasonably have been obtained at the time of the hearing; or	Unchanged.
(iv)  the penalty imposed was either insufficient or excessive.	Unchanged.
43.    Where Council receives a Request for Appeal, Council shall, at its next regular meeting, consider the grounds for the appeal, and may, in its sole discretion, dismiss the request or appoint an Appeal Committee comprised of no fewer than three (3) members of Council. No member of Council with previous involvement in the complaint process shall be appointed.	The size of the appeal committee was lowered from 5. Otherwise unchanged.
44.    The Appeal Committee shall provide prompt notice of their intent to address the appeal to the appellant and the affected complainant or respondent from the original complaint. The notice shall outline the timeline for receipt of the written submissions. 44.1. Both the appellant and the respondent shall be offered an opportunity to provide written submissions addressing the criteria enumerated in Article 42. 44.2. The Appeal Committee shall determine the appeal based on written submissions addressing the criteria enumerated in Article 42. This process shall be conducted in advance of the next scheduled meeting of Council following the deadline for submissions.	Split into separate articles, but otherwise unchanged.
45.    The Appeal Committee may: (i)     uphold the decision of the Hearing Committee and dismiss the appeal; or (ii)   request that Council appoint a new Hearing Committee in accordance with Articles 35-40; or (iii)  alter the penalty imposed by the Hearing Committee in accordance with Article 38.	Unchanged.
46.    The Appeal Committee shall report its decision to Council and to the parties.	Unchanged.
47.    The decision of the Appeal Committee is final and binding	Previously, the bylaw indicated that the decision of the appeal committee could not be reviewed or questioned in any Court. On the advice of our counsel, it was removed (given that it was completely unenforceable.)
REASONABLE ACCOMMODATION IN PROCESS
47.1. For complaints brought under Article 27(iii), Council and/or the Executive Director may make such reasonable accommodations in the process, timelines and deadlines of Articles 28-47 as he or she deems advisable in the circumstances, provided such accommodations do not compromise the integrity of the process as a whole.	This is new, and is a temporary stand-in for any future changes related to workplace harassment, etc. See the preamble notes.
NOTICE TO MEMBERSHIP
47.2. Following conclusion of the Appeals Process, or expiry of the deadline for launching an appeal, Council will publish a brief notice to the membership, providing basic information on the complaint and its disposition.	Moved from 39. Previously, Council could determine on a case by case basis whether or not it would publish, and what it would publish. There were no guidelines, and therefore no consistency in reporting. Council has decided that, if a member had been sanctioned under the Disciplinary Process, the membership deserves notice, although it will be kept brief. A basic template has been developed for a single paragraph announcement.
ADMINISTRATIVE PENALTIES
47.3  The Executive Director may impose the following financial penalties under Article 30.2(a). (a)  For working while on withdrawal, suspension or when fines are outstanding: (i)     1st  offense: payment of all outstanding amounts plus a fine of $100   (ii)   2nd offense: payment of all outstanding amounts plus a fine of $200 (iii)  3rd offense: payment of all outstanding amounts plus a fine of $300 and a mandatory meeting with the Executive Director for membership education. (b)  For working without an appropriate Equity contract; for working for less than the applicable minimum fees or those fees as modified by concession by the Association; for working for an engager who has been declared unfair; for failure to respect a reciprocal agreement between Equity and another association: (i)     1st offense: a fine of no less than $200, and no more than $500; (ii)   2nd offense: a fine of no less than $300, and no more than $750; (iii)  3rd offense: a fine of no less than $400, and no more than $1000. (c)  For failure to fulfil the terms of an engagement without reasonable cause, including lateness to rehearsals or performances: (i)     1st offense: a fine of up to $250; (ii)   2nd offense: a fine of up to $500; (iii)  3rd offense: a fine of up to $750. (d)  For refusal to fulfil a contract without reasonable cause, or failure to appear for a performance: (i)     1st offense: a fine of up to one week’s fee as stated on the contract, or a calculated equivalent where there is no guaranteed fee; (ii)   2nd offense: a fine of up to two week’s fees as stated on the contract, or a calculated equivalent where there is no guaranteed fee.	This is all new. It gives the Executive Director the ability to impose a limited range of fines, within the constraints of 30.2(a), for a specific set of contract or membership related infractions, without having to go through the who complaint process. Infractions exceeding these must still go before Council.
APPEAL OF ADMINISTRATIVE PENALTIES
47.4  Any member subject to a penalty under Article 47.3 may appeal to Council by submitting a Request for Appeal to the Executive Director within thirty (30) days after receiving the notice of the penalty. 47.5  The Request for Appeal shall include a short summary of the reasons for the request for appeal, which must be based upon at least one of the following grounds: (i)     that the penalty was inappropriately applied; or (ii)   the penalty imposed was excessive. 47.6  Where Council receives a Request for Appeal, Council shall, at its next regular meeting, decide the matter. Council may: (i)     uphold the decision of the Executive Director; or (ii)   alter the penalty imposed by the Executive Director, within the bounds of Article 47.3; or (iii)  set aside the penalty. 47.7  Council shall report its decision to the Executive Director and to the appellant. 47.8  The decision of Council is final and binding.	This is all new, and provides the respondent with access to an appeal process before the entire Council in the case of administrative penalties.