January 16, 2019

2018 Fall Compendium

Inquiry and Investigations
Professional Regulation
Regulator Liability

The fall was way too busy for us to keep up with our blog, so here is a fall compendium to make up for it.

1. An investigation committee may issue “letters of guidance” (Manitoba): The investigation committee of a nursing college in Manitoba issued a “letter of guidance” to a registered nurse, where it concluded, in part, that the registrant had only partially met, or did not meet, a standard of practice, and that her behaviour during the investigation arose from a number of mental health issues, including an anxiety disorder and a major depressive disorder. The registrant challenged the committee’s authority to issue the letter of guidance. The court found that the committee reasonably interpreted its powers under the Registered Nurses Act, [14] and that it acted reasonably in issuing the letter. [18-19] Based in part on the BC decision of Maroofi v. College of Physicians and Surgeons of Canada, 2017 BCSC 1558, the letter of guidance was not disciplinary in nature. [15]

Hancock v. College of Registered Nurses of Manitoba, 2018 MBQB 149.

2. Civil claim against college personnel for bad faith conduct summarily dismissed (Alberta): An Alberta physiotherapist, eventually disciplined for some but not all disciplinary charges, civilly sued individual employees or agents of her college for negligent investigation, misfeasance in public office, and the like. The individual defendants applied to strike her claim and ultimately succeeded on appeal, on two grounds: first, that she had brought her claim out of time (under Alberta’s Limitations Act), [38] and second, based on a statutory immunity that prevents any civil action against specified individuals, for anything done by them in good faith. [41] The court addressed claims of bad faith against two individuals, [46] and due to ultimately concluded against any basis for bad faith [52 and 47], stating in relation to alleged bad faith of one individual that the claim of bad faith lacked an “air of reality”.

Fitzpatrick v. College of Physical Therapists of Alberta, 2018 ABQB 989.

3. An inquiry committee may continue its investigation after offering a consensual resolution (BC): An inquiry committee that offered to resolve a complaint against a registrant through a consent or undertaking, under s. 33(6)(c) and 36(1) of the Health Professions Act (which offer the registrant declined), but then learned that the registrant had 79 orthodontic patients, was entitled to order a chart review of 10 patients. In response to an application by the registrant based on the HPA not authorizing the order or a chart review, the court held that the language of HPA s. 36 is permissive: it does not require that the inquiry committee direct a citation if a consent undertaking is not reached. [56] The inquiry committee had jurisdiction to request a chart review. [58]

Yu v. College of Dental Surgeons of British Columbia, 2018 BCSC 1315.

4. College allowed to refashion a complaint as a registrar-initiated matter (Ontario): The Ontario Court of Appeal recently upheld a discipline decision which began as a complaint, but which was withdrawn and continued as a registrar-initiated matter. While the Ontario Divisional Court took issue with this process (and prevented the college from prosecuting the matter), the Court of Appeal found that the registrant’s rights were not denied. [23] Although the registrant was not told of the complaint until 16 months after it was filed, his ability to defend himself was not impaired. [23] “As long as there is no procedural unfairness to the accused member, the choice to accept the withdrawal of a complaint and to proceed with the Registrar-initiated process cannot be criticized.” [27]

Abdul v. Ontario College of Pharmacists, 2018 ONCA 699.

5. A finding of intentional billing fraud upheld (Ontario): The Ontario Divisional Court upheld discipline committee findings that an ophthalmologist who operated a laser eye surgery clinic had intentionally overbilled patients for procedures not performed, and upon hearing rumours of an investigation, directed employees to alter medical records to reflect specific procedures. The registrant asserted the overbilling and the failures to refund were inadvertent, and that the college’s evidence was “fundamentally flawed”. The court confirmed, however, the weighing of evidence and determining credibility is “at the core of the function of the fact-finding tribunal”, such that the tribunal was entitled to “the highest level of deference”. [31] Ultimately, the evidence against the registrant was “overwhelming”. [21] Respecting the panel allegedly ignoring inconsistencies in the testimony of the college’s witnesses, the court noted that where a trial judge demonstrates he is “alive” to inconsistencies, but accepts the evidence nonetheless, no basis for interference exists in the absence of “palpable and overriding error”. [40] The court’s deference extended to the panel’s conclusion against any collusion between the college’s witnesses. [41-45] The court’s deference also extended to the penalty decision. [88] The panel could give little weight to the registrant’s “good character” evidence, as “individuals who perpetrate fraud… are usually seen in the community as solid, responsible and law-abiding citizens”. [89]

Taylor v. College of Physicians and Surgeons of Ontario, 2018 ONSC 4562.

6. Advertising standards justifiably infringing freedom of expression (Alberta): The Alberta Court of Appeal upheld (most) findings relating to 21 allegations of professional misconduct relating to advertising (e.g., statements involving claims of superiority, that were false or misleading, and that disparaged other registrants and college committees, such as by alleging a conspiracy among orthodontists), but reversed findings relating to a breach of undertaking, and a failure to cooperate with an investigator. Notably the court confirmed that the college’s council, when internally reviewing a committee decision, was correct in applying a reasonableness standard of review. [73] In turn, the court also had to review the council’s decision on a reasonableness standard of review. This deference extended to the issue of whether statements constituted “advertising”, instead of or in addition to being political speech, [97-98] and – given the registrant asserting an infringement of his freedom of expression under the Charter – extended to the conclusion that sanctions for the registrant’s statements did not impair his right to free expression more than was “reasonably necessary” to maintain the integrity and reputation of the profession. [113]

Zuk v. Alberta Dental Association and College, 2018 ABCA 270.

Lisa C. Fong and Michael Ng