March 29, 2021

2020 professional regulation round-up

Administrative Law
Professional Regulation

Here is a quick recap of some significant developments in professional regulation in 2020.

1. One year of Vavilov

In December 2019, the Supreme Court of Canada revised how courts (at least) must engage in judicial reviews: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”). Since then, Vavilov has been defining how courts address both judicial reviews and appeals from professional regulatory tribunals in key ways.

Professor Paul Daly has written a lengthy analysis of how courts are now being guided by Vavilov in his paper, Vavilov at One (available via SSRN  here or try our archive version here) which appears up-to-date as of October 2020.

One matter of specific interest to B.C. health regulators is the Vavilov distinction between judicial reviews and “appeals”, since some decisions under the Health Professions Act are subject to judicial review (or to review by the Health Professions Review Board), while other decisions (e.g., orders for “extraordinary action” pending investigation under HPA s. 35, and all discipline committee orders) are specifically subject to a right of appeal (under HPA section 40). The word “appeal” identifies a legislative intention that “appellate” standards apply. But under an appellate standard, an appellate court does not afford any deference to a tribunal on questions of law.

Vavilov does not directly address what “internal” standards of review apply to administrative review bodies (like the Health Professions Review Board) where the statute does not explicitly define their standard of review. For example, the HPA does not specify a standard of (HPRB) review relating to registration committee decisions, or inquiry committee decisions about how to investigate complaints. A hearing on whether Vavilov impacts “internal” review standards applying to the HPRB came before a five-member panel of the BC Court of Appeal in early 2020, as part of the HPRB’s appeal of the decision of Madam Justice Dardi in the Dawson case (2018 BCSC 2021) – a case we wrote about (here). As of this writing, the court has not yet rendered a decision.

The BC Supreme Court has, however, decided that even if a tribunal is insulated from court review by a highly deferential standard of review (e.g., patent unreasonableness pursuant to BC’s Administrative Tribunals Act), many Vavilov principles relating to “reasonableness” also apply under the “patent unreasonableness” standard, e.g., a decision-maker must still meaningfully account for the central issues and concerns raised by parties, and must still apply modern principles of statutory interpretation: Guevara v. Louie2020 BCSC 380 at para. 48 and 52-54.

2. COVID and regulating health professionals

Many health professions (albeit not all) are firmly based in science. This leads, however, to the question of what regulatory authorities may do about registrants or espouse “facts” relating to COVID, protective measures like masks, or vaccines, that run contrary to generally-accepted medical views. 2020 saw various regulatory authorities struggling with the tension between “factual” statements that have extra-weight because of the professions of the speakers, and freedom of expression:

  • In December 2020, the Oregon Medical Board issued an Order of Emergency Suspension against Dr. LaTulippe, who reportedly told a pro-Trump rally in November that he and his staff do not wear masks while working in his Dallas [Oregon] clinic. (A copy of the emergency order may be found here, or see our archive version here.)
  • On December 8, 2020, French health agency l’Agence régionale de santé (ARS) Auvergne-Rhône-Alpes reportedly ordered a precautionary five-month suspension of a lung specialist, Dr. Bellier, due to his refusing to wear a mask while working, and refusing to examine patients who were wearing one.
  • In February 2021, the College of Physicians and Surgeons of Ontario reportedly issued three cautions to a pediatrician, Dr. Gill, based on her “tweets” in the summer of 2020, e.g., that COVID is not a serious health issue, that masks and lockdowns are not necessary, and that a vaccine is unnecessary. (For links to the cautions, which have been appealed to the HPARB, go here.)
  • In or about March 2021, the College of Physicians and Surgeons of Newfoundland and Labrador reportedly cautioned a family physician, Dr. Peter Morry to stop encouraging people to disobey Chief Medical Officer of Health Dr. Janice Fitzgerald’s health orders during the pandemic, via COVID-19-related misinformation on his Facebook page posted in August 2020. (See the CBC report here.)

While regulatory authorities are rightfully cautious about restricting registrants’ expressions of views that are inherently and clearly “political” in nature, e.g., opinions about about weighing the harms of COVID against the harms of pandemic “lockdown” policies, regulatory authorities may wish to look more carefully at underlying statements of “facts”, e.g., about the nature of dangers of COVID-19, that may fall more squarely within the scopes of professional practice that they regulate, and whether such professional statements have support within the profession.

If a regulatory authority considers the Charter rights of registrants, but concludes that preventing specific kinds of professional misrepresentations is a proportional means of furthering a pressing and substantial objective, such a conclusion may be reasonable. For a more recent case where a court addressed the constitutionality of restrictive measures relating to the COVID-19 pademic, see our companion blog entry in Beaudoin v British Columbia, 2021 BCSC 512 (our summary is here).

3. Freedom of expression

Regulatory authorities are no strangers to the constraints on their regulatory powers arising from Charter rights. In addition to revealing the thorny issue of the extent to which regulatory authorities may regulate pandemic-related speech, 2020 saw some notables where courts have addressed the extent to which speech may be limited.

For example, in the “death midwives” case, the BC Court of Appeal upheld the constitutionality of statutory restrictions under the Health Professions Act against anyone using titles reserved to specific professions as occupational titles relating to any kind of work, and not merely health-related work: College of Midwives of British Columbia v. MaryMoon2020 BCCA 224 (which we wrote about here).

More problematically, the Saskatchewan Court of Appeal also held that a discipline committee erred in how it decided that an off-duty nurse had committed misconduct when, on social media, she criticized facility health care professionals who had cared for her grandfather: Strom v. Saskatchewan Registered Nurses Association2020 SKCA 112 (which we wrote about here).

4. Indigenous-specific discrimination in BC healthcare

In November 2020, Mary Ellen Turpel-Lafond released her report, In Plain Sight, concerning racism, stereotyping and discrimination against Indigenous peoples in the B.C. health care system. (The full report may be found here, or our archived copy here.) The report concludes “widespread systemic racism against Indigenous peoples . This racism results in a range of negative impacts, harm, and even death.” The report sets out eleven findings about the experiences of Indigenous peoples in the BC healthcare system:

  1. Widespread Indigenous-specific stereotyping, racism and discrimination exist in the BC health care system;
  2. Racism limits access to medical treatment and negatively affects the health and wellness of Indigenous peoples in BC;
  3. Indigenous women and girls are disproportionately impacted by Indigenous-specific racism in the health care system;
  4. Current public health emergencies magnify racism and vulnerabilities and disproportionately impact Indigenous peoples;
  5. Indigenous health care workers face significant racism and discrimination in their work and study environments;
  6. Current education and training programs are inadequate to address Indigenous-specific racism in health care;
  7. Complaints processes in the health care system do not work for Indigenous peoples;
  8. Indigenous health practices and knowledge are not integrated into the health care system in a meaningful and consistent way;
  9. There is insufficient integration, or “hard-wiring” of Indigenous cultural safety throughout the health care system;
  10. Indigenous structures and roles in health decision-making need to be strengthened; and
  11. There is no accountability for eliminating Indigenous-specific racism in the BC health care system, including system-wide data and monitoring of progress.

The report goes on to make twenty-four recommendations for uprooting Indigenous-specific racism that will require shifts in “governance, leadership, legislation and policy, education, and practice” (p.2).

5. Abrametz and procedurally unfair “delay”

In 2020, the Saskatchewan Court of Appeal took what seems to be a far stricter approach than what the Supreme Court of Canada set out in Blencoe (2000 SCC 44) to how long regulatory authorities have before they must reach a disciplinary outcome: Abrametz v Law Society of Saskatchewan2020 SKCA 81.

The relevance of the Abrametz case to practice in BC arises from the Supreme Court of Canada granting, on February 25, 2021, leave to the appeal for the Law Society of Saskatchewan. (As of this writing, the parties have not filed their factums, but they will eventually be available here.)

At the tribunal level, the case began with an audit investigation of a lawyer starting in 2012, and concluded with a discipline committee finding of conduct unbecoming a lawyer on January 10, 2018, based on the member contravening trust account rules in order to engage in tax evasion. The Hearing Committee found (at para. 43) that the member had, on eight occasions between 2008 and 2010, withdrawn trust funds my means other than a cheque payable to his general account, as required by rules. In seven of those cases, he issued cheques to clients that were then endorsed by the clients and cashed by him. In one case, he had issued three cheques to a fictitious person, endorsed that fictitious name on the cheques, and cashed them. He acknowledged that, in each of these eight instances, he did not deposit the funds into his law office account until late November 2012, long after the transactions had occurred. The Hearing Committee eventually disbarred him.

The court, however, went on to find an inordinate delay that constituted an abuse of process. It stayed the discipline proceeding and set aside the penalty and costs award.

The court’s decision turns on two issues that the Supreme Court of Canada seems likely to address.

First, the court undertook a detailed analysis of a 53-month period between the the start of an audit and a discipline decision to determine and designate particular time periods as involving unexplained and undue delay, as distinct from what it called the “inherent” time requirements of the case. However, the basis on which the court discerned inherent time requirements, so that excess periods not attributable to the respondent amounted to “undue delay” by the regulatory authority, are not always transparent. In any event, the court ultimately added up various periods of “undue delay” to discern a total period of delay that it ultimately concluded was “inordinate” delay.

In a second stage of analysis (starting at para. 198), the court found prejudice to the member, based in part on his being subject to interim practice conditions (at para. 202) and based in part on the lawyer suffering “stress and stigma from the time these proceedings were initiated” (at para. 214). This led to the further conclusion he suffered prejudice “of such a magnitude that the public’s sense of decency and fairness would be offended” (at para. 215).

Yet in Blencoe, the Supreme Court of Canada emphasized that while abuse of process is not necessarily limited to acts that result in an unfair hearing, and might arise from psychological harm, “…few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute.” (Blencoe at para. 115)

One key consequence of Abrametz – to the extent it receives any traction in BC – is the extent to allows the ordinary or usual stresses of being of a registrant being subject to regulatory discipline to combine with inordinate delay and create an “abuse of process” that will halt a discipline process.

6. Imprisonment for unauthorized practice

Where someone repeatedly engages in unauthorized practice, despite a court order enjoining that person from engaging in providing prohibited services, a court may move from fines to imprisonment. This was illustrated in College of Physicians and Surgeons of BC v. Ezatti2021 BCSC 205 (mostly heard by the court in 2020, but decided in January 2021).

The respondent Ezatti was originally enjoined against unauthorized practice in 2017. The court found her in contempt of court for a first time in 2018 (2018 BCSC 2006) and in January 2020, fined her $5,000, and awarded the College half of its special costs (2020 BCSC 339). However, on numerous occasions from August 2018 to May 2020, the respondent had still been holding herself out as a doctor, assessing the suitability of individuals for botox or dermal filler injections, and giving injections. The court confirmed “contempt on at least 18 days, on over 30 individuals” (at para. 29). The court found that, “these individuals were deprived of the opportunity to make an informed decision on whether to have the injection by an unlicensed, unqualified, and uninsured person” (at para. 30).

Given that the Respondent continued in contempt after the first penalty, she demonstrated “disobedience and disdain for the legitimate practice of medicine and of the court process and orders” (at para. 34). The court considered her behaviour much more serious than the situation in CPSBC v. Khakh2019 BCSC 1604 (Khakh #2), where someone administered botox to one person on one occasion, and was sentenced to 30 days’ imprisonment and a $7,500 fine. The court ordered imprisonment of six months, and a fine of $15,000 (consisting of $9,426 to the Attorney General of BC, and $5,574 to the College as restitution to victims. The court also awarded special costs to the College.

Lisa C. Fong, Q.C. and Michael Ng