Professional regulatory law in the year 2021 was largely consumed with COVID-related cases. During this year, regulatory bodies commenced disciplinary hearings against registrants who were making misleading statements to the public, and to patients, regarding public health measures, and in particular, masking and vaccines. This year also saw attempted judicial reviews from registrants seeking to assert Charter freedoms, in an effort to halt investigations and disciplinary hearings. As set out in our blog below, most of these proceedings have been unsuccessful, due to prematurity (and the matters have been redirected to discipline committees).
Cases we have been watching include the appeal in Abrametz v. Law Society of Saskatchewan, 2020 SKCA 81(which we blogged about here). Abrametz has now been heard by the Supreme Court of Canada (click here for the SCC factums), and we are awaiting the court’s decision.
We also include in our round-up the Dawson case. The decision came down in January 2022, but we’ve included it in this round-up because of the extraordinary nature of the decision by the court which functionally eliminates the HPRB’s right to deference, with respect to the reasonableness of Inquiry Committee dispositions.
Our regulatory round-up this year is somewhat unusual because it focuses on only three topics, but for honourable mention, here are a few more cases we thought would be useful for your regulatory toolboxes:
- College of Physicians and Surgeons of British Columbia v. Ezzati, 2021 BCCA 422 (where continuing unauthorized practice of medicine resulted in contempt of court; although the BC Court of Appeal decided that six-months of incarceration was excessive, it ordered a three-month sentence);
- Griffith v. Health Professions Appeal and Review Board, 2021 ONSC 5246 (where a registrant sought judicial review of an HPARB decision upholding a decision of an ICRC (Inquiry, Complaints and Reports Committee) to order a remedial program, and that the registrant appear before the ICRC to be cautioned; the Ontario court examined the function of the ICRC as a screening committee, which includes a limited weighing of facts);
- Park v. Royal College of Dental Surgeons of Ontario, 2021 ONSC 8088 (where a registrant’s persistent failure to abide by undertakings, combined with lack of insight, led to a finding of ungovernability; the court held that the Discipline Committee need not explicitly refer to a test or to case law before making a finding of ungovernability); in its reasons the committee sufficiently explained why revocation was appropriate, given the registrant’s ongoing pattern of failing to abide by his undertakings);
- Homan v. Nemanishen, 2021 BCSC 2515 (where a patient sued his physician, and also the College of Physicians and Surgeons of BC, for his becoming addicted to opioids prescribed by his physician; the court struck out the plaintiff’s claim against the college on the basis the college did not owe the plaintiff a private law duty of care, due to both a lack of specific interactions between him and the College, and due to a variety of policy considerations that prevent a duty of care from arising — we are advised that this case is under appeal).
With that, here are the three main topics of our 2021 regulatory round-up.
1. Professional regulation and COVID “anti-vaxxers”
2021 saw disputes between governments, which have been implementing COVID-related measures such as mask and vaccine mandates (which health colleges have in turn had to enforce against registrants), and vocal groups of individuals — including health professionals — asserting both opposing narratives and freedom from such measures.
For example, on October 2021, BC’s Provincial Health Officer ordered that regulated health professionals employed, contracted or funded to provide health care services by provincially funded organizations (including health authorities and provincial mental health facilities) be vaccinated against COVID-19. In the following month, at least one health college confirmed that an order of the PHO was imminent that would require that ALL regulated health professionals (and the staff in their offices or businesses) be fully vaccinated against COVID-19.
In response to one or both developments, attendees at the December AGM of the College of Chiropractors of BC — 173 of 261 AGM attendees, out of a total of about 1,300 registrants — passed a resolution, albeit one that was not binding on the College, to “take a stand to protect and maintain the right to medical freedom of choice for all health/medical interventions for BC registrant chiropractic doctors… and BC chiropractic patients….”
Yet despite vocal opposition by some health care professionals to masking and vaccination mandates, and indeed to the very concept that COVID-19 represents a significant health threat, regulatory authorities have been making clear that individual rights do not limit the professional obligations of registrants to ensure that their statements on social media have some basis in science, and that they follow (or at least not undermine) precautions in the public interest.
Actions by regulatory authorities: In 2021, a number of regulators across Canada took action against registrants who have apparently been disseminating (allegedly) misleading COVID-related (e.g., anti-mask and anti-vaccine) statements on social media. The College of Physicians and Surgeons of Ontario (CPSO), in particular, took a number of measures against “anti-vax” registrants in the form of cautions, interims suspensions, and even referrals to discipline. (We have gathered these examples from publicly-available resources; please refer to the linked judgments, notices, or articles for additional details!)
- In February 2021, CPSO issued a caution against Dr. Kulvinder Kaur Gill for his stating on social media, unequivocally and without providing any evidence, that there was no medical or scientific reason for the lockdown; and also for his “tweeting” that “If you have not yet figured out that we don’t need a vaccine, you are not paying attention.” Dr. Gill’s conduct resulted in seven public complaints, which in turn resulted in three decisions that Dr. Gill attend in person to be cautioned. The caution is currently under review by Ontario’s Health Professions Appeal and Review Board (HPARB). Dr. Gill applied for judicial review, but the court dismissed the application, as it related to the matters under HPARB review, as premature. The HPARB had jurisdiction to consider the constitutional issues being raised by Dr. Gill: Gill v. College of Physicians and Surgeons, 2021 ONSC 7549.
- In April 2021, CPSO issued a “Statement on Public Health Misinformation” in which it set out the following position statement for its registrants and the public: “The College is aware and concerned about the increase of misinformation circulating on social media and other platforms regarding physicians who are publicly contradicting public health orders and recommendations. Physicians hold a unique position of trust with the public and have a professional responsibility to not communicate anti-vaccine, anti-masking, anti-distancing and anti-lockdown statements and/or promoting unsupported, unproven treatments for COVID-19. Physicians must not make comments or provide advice that encourages the public to act contrary to public health orders and recommendations. Physicians who put the public at risk may face an investigation by the CPSO and disciplinary action, when warranted. When offering opinions, physicians must be guided by the law, regulatory standards, and the code of ethics and professional conduct. The information shared must not be misleading or deceptive and must be supported by available evidence and science.” (emphasis added)
- In September 2021, CPSO placed restrictions on the registration of Dr. Patrick Phillips, preventing him from providing medical exemptions relating to COVID-19 vaccines, COVID-19 testing and mask requirements, and preventing him from prescribing ivermectin, Fluvoxamine and Atorvastatin in relation to COVID-19. The College subsequently referred him to a discipline tribunal for (according to CPSO’s public notice) his social media communications, and his allegedly “misleading, incorrect or inflammatory statements about vaccinations, treatments and public health measures for COVID- 19.”
- In October 2021, CPSO also ordered an interim suspension of Dr. Rochagne Kilian, a physician whom one media article has reported as an opponent of vaccine mandates and passports. According to another media article, CPSO had earlier in that month placed restrictions on her registration, preventing her from providing medical exemptions in relation to COVID-19 vaccinations, mask requirements and testing.
- In November 2021, an Ontario court dismissed an application for judicial review of an interim suspension. That case involved a physician, Dr. Jeffrey Matheson, who in March 2021 undertook to comply with standards published by the Ontario Ministry of Health during the COVID pandemic. However, later that same month, a patient complained about the physician’s conduct during three appointments. According to the court, on one occasion, the physician removed his mask, and told the patient she could remove his mask. He told the patient that COVID was a media conspiracy. On a later occasion (in March, after he had given his undertaking to CPSO), he (as alleged by the complainant) again removed his mask in the examination room, and made comments about masks causing lung cancer. In April 2021, an inquiry committee ordered that Dr. Matheson’s registration be suspended during its investigation. The physician applied for judicial review of the interim suspension, but in November 2021, an Ontario court dismissed the application. Although the physician alleged procedural unfairness, due to his having only 14 days to provide submissions (instead of the 60 days he requested), the court found the process fair. The court also held that the decision to suspend his registration pending investigation was reasonable. Matheson v. College of Physicians and Surgeons of Ontario, 2021 ONSC 7597.
- In December 2021, an Ontario court dismissed an application for judicial review against a CPSO inquiry committee decision to refer a matter concerning a physician, Dr. Caroline Turek, to a discipline hearing. Although the court decision does not set out the nature of the alleged misconduct, the respondent sought review on the basis the College was merely attempting to regulate free speech. The court dismissed the application as premature, as a discipline committee of the CPSO would have to first consider the defence that the College was merely investigating free speech, and had no basis for professional misconduct or incompetence. Turek v. College of Physicians and Surgeons of Ontario, 2021 ONSC 8105.
- Most recently, in January 2022, CPSO proceeded in court against three physicians (Drs. Mary Elizabeth O’Connor, Mark Raymond Trozzi, and Patrick Brian Phillips) for their refusing to cooperate with investigations relating to them issuing medical exemptions for COVID-19 vaccinations and diagnostic testing (and relating to one of them using online websites and social media to disseminate what CPSO characterized as misleading health information). The court ordered that the physicians cooperate with the investigations, “without prejudice to the Respondents’ right to bring a constitutional challenge to the investigation by the Applicant”: College of Physicians and Surgeons of Ontario v. O’Connor, Trozzi and Phillips, 2022 ONSC 195.
These are merely some examples. Other health colleges throughout Canada (including colleges superintending their professions of medicine, nursing, and chiropractic) have also addressed similar acts by registrants.
Charter challenges: Some constitutional (or quasi-constitutional) issues relating to vaccine mandates have, however, been preliminarily addressed outside of the professional regulatory context.
For example, with respect to Charter issues, a plaintiff challenged a federal vaccination requirement for supplier personnel. The plaintiff alleged a breach of his section 7 Charter right to life, liberty, and security of the person, and also that the policy was unsupported by evidence, arbitrary, overbroad, and had disproportionate effects. The Federal Court declined, however, to stay the vaccination requirement pending a hearing, as the plaintiff failed to show any serious issue of a Charter violation; that loss of a job did not constitute irreparable harm; and that the public interest outweighed the identified harms to the plaintiff: Lavergne-Poitras v. Canada (Attorney General), 2021 FC 1232.
Human rights challenges: Various complainants have also sought to challenge the legality of COVID-related measures, such as mandatory masking and vaccine passports, through the human rights regime. However, such challenges have been unsuccessful to date:
- Where a shop refuses entry to a person without a mask, and that person asserts an exemption due to health issues, but refuses to clarify what health issues (apart from a general difficulty breathing with a mask), such a situation does not disclose discrimination based on a physical or mental disability. BC’s Human Rights Code does not protect people who refuse to wear a mask based on personal preference. The Customer v. The Store, 2021 BCHRT 39. Also Rael v Cartwright Jewelers and another, 2021 BCHRT 106.
- Where a person asserts they are exempt from wearing a mask in a store due to a disability, and the store attempts to accommodate by requiring that they instead where a face shield (which the person also refuses to wear), the store’s requirement for at least a face shield will be justified where the limitation is instituted for valid reasons, in good faith, and where it is impossible to accommodate without incurring undue hardship. Szeles v. Costco Wholesale Canada Ltd., 2021 AHRC 154.
- The human right against discrimination on the basis of “creed” is not engaged by a person who refuses to wear a mask to enter a store, based on a personal belief that the requirement to wear a mask does harm medically, physically, and spiritually. Dubé v. Dutch Love Cannabis, 2021 HRTO 300.
- Similarly, a requirement for proof of vaccination to access various events or services does not discriminate on the basis of political belief. While a genuinely held belief opposing government rules regarding vaccination could be a political belief within the meaning of the BC Human Rights Code, protection from discrimination based on political belief under the Code only extends to employment, employment advertisements, and membership in employment-related organizations. Complainant obo Class of Persons v. John Horgan, 2021 BCHRT 120.
- Although a person subject to a proof of vaccination requirement may have a disability, such as asthma, the requirement is not discriminatory unless the person must show a connection between having asthma and not being fully vaccinated, which is the basis for being denied service, e.g., that having asthma prevented them from being vaccinated. Complainant v. Dr. Bonnie Henry, 2021 BCHRT 119.
Given regulatory authorities starting this year to investigate the conduct of registrants acting in a professional capacity to oppose mandated COVID measures, the coming year will likely see disciplinary outcomes and resulting appeal or review proceedings.
2. UNDRIP, DRIPA, and Bronstein
In 2021, Parliament enacting the the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14(the “Federal Declaration Act”). The Federal Declaration Act is similar in structure to the Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44 (the “BC Declaration Act”), passed in November 2019 to give normative effect to the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). However, the Federal Declaration Act notably recognizes UNDRIP as “a universal international human rights instrument with application in Canadian law”. Accordingly, UNDRIP now represents, with respect to both BC and federal law, “the minimum standards for the survival, dignity and well-being” of the Indigenous peoples. Although existing laws are not rendered invalid if they are inconsistent with UNDRIP, both the BC government and the federal government must take all measures necessary to ensure that laws are consistent with UNDRIP.
Further, while one of the purposes of the BC Declaration Act was to affirm the application of UNDRIP to the laws of British Columbia, BC (and the Federal Declaration Act notably specifies a similar purpose for the Federal Declaration Act), BC went further in 2021 by adding section 8.1(3) to the Interpretation Act, RSBC 1996, c. 238. Section 8.1(3) provides that, “Every Act and regulation must be construed as being consistent with the Declaration.” Although the wording is somewhat ambiguous (since it could be read as deeming every enactment consistent with UNDRIP), government made clear during third reading (of the bill introducing the amendment — November 23, 2021) that, “Our intention is that it will operate in such a way that a reasonable interpretation that’s consistent with the UN declaration should be preferred by a statutory decision-maker or a court over an interpretation that is not consistent with the DRIPA legislation.”
Accordingly, as part of interpreting any statute that may impact Indigenous peoples (or the extent of the powers that a statute confers), courts and tribunals must also interpret UNDRIP, to determine if it requires one interpretation over another. UNDRIP notably addresses a broad range of social issues, including various aspects of health care. For example, it provides for
- a right of Indigenous peoples to participate in decision-making in matters that could affect their rights, and to maintain and develop their own indigenous decision-making institutions: Article 18;
- a right to be actively involved in developing and determining health programmes affecting them, and, as far as possible, to administer such programmes through their own institutions: Article 23; and
- a right to their traditional medicines, and to maintain their health practices, as well as a right to access, without discrimination, to all social and health services: Article 24.
Respect for the rights of Indigenous peoples, and their distrust of colonial processes, may also require that colleges adapt their discipline processes. Such need was illustrated in the 2021 Law Society discipline case of Bronstein (Re), 2021 LSBC 19.
In the Bronstein matter, from 2009 until February 2015, Mr. Bronstein acted for approximately 624 victims of the “Sixties Scoop”, during which approximately 20,000 children were taken from their Indigenous families, placed in foster homes, and adopted by white families. Mr. Bronstein’s clients made claims under the Independent Assessment Process. WIth respect to misconduct in how he represented his clients, a majority of the discipline hearing panel accepted a joint submission of the parties. However, the joint submission and sanctions (which included a one-month suspension) were necessitated by the fact that the Law Society would have difficulty proving allegations, due to Indigenous clients refusing to participate in the discipline process.
The majority of the hearing panel relied on the Truth and Reconciliation Commission Final Report to assist in defining one aspect of cultural competency in lawyering: “Cultural competence in lawyering requires an understanding” of the reality of the ways that “the Canadian legal system is implicated in residential schools policy and the egregious harms that arose as a result” and Indigenous peoples’ resultant views of “the law as a tool of government oppression” and their “deep and abiding mistrust in Canada’s legal system.” They also recognized that our adversarial system can be “an extraordinarily difficult experience[,]” meaning that some victims, such as sexual assault victims, are deterred from testifying.
In a strong dissent, one panelist (who was also Indigenous) rejected the joint submission, finding that the proposed sanction was inadequate. While she accepted that it was likely that the affected community did not wish to participate in the Law Society’s hearing process, her view was that this is indicative of an unacceptable barrier to the participation of vulnerable witnesses in the Law Society’s regulatory scheme. She made numerous recommendations, including the creation of a review panel to examine the way the Law Society and its tribunal addresses regulatory matters involving Indigenous persons, complaints, and issues. Her recommendations included that staff, investigators, counsel, and tribunal members be culturally sensitive, culturally competent, and trauma-informed, and have a requisite level of knowledge and expertise in Indigenous culture, history, and law, and the history of Residential School abuses and their impact on Indigenous communities and individuals. She also recommended alternatives to the Law Society’s standard adversarial investigative and hearing process, including the following:
- allowing witnesses to testify with a support worker;
- permitting witnesses to testify by video or behind a screen;
- allowing the admission of victim statements as evidence of the truth of their contents; and
- limiting cross-examination that is abusive, repetitive, or otherwise inappropriate.
The Bronstein case is an important launch-pad for regulators to explore and develop discipline hearing process that will be culturally appropriate for Indigenous complainants and witnesses. Later in 2021, the Law Society established a task force to review disciplinary processes, particularly with respect to the unique needs of Indigenous people. Under its terms of reference, the Task Force will provide a report that includes the following:
- An analysis of the effects on Indigenous complainants and witnesses of the processes used to gather, assess, introduce and submit evidence during investigations and hearings;
- An analysis of the nature and goals of proceedings that involve Indigenous people and Indigenous communities;
- Consideration and comparison of the differences that exist between Indigenous perspectives regarding conflict resolution, and the conventional approach of the Law Society and the Law Society Tribunal to investigation, discipline and adjudication;
- Consideration of how to incorporate Indigenous perspectives into Law Society complaints, investigation, discipline and Tribunal processes and procedures;
- An assessment of intercultural competence and trauma-informed practices at the Law Society, and identification of opportunities for training and development;
- Consideration of the use of interculturally competent and trauma-informed expertise by Law Society staff, the Tribunal and outside counsel; and
- Identification of actions to prevent, and remedial measures to address, the impacts of members’ misconduct on Indigenous complainants, witnesses and communities.
3. The Dawson case
The BC Court of Appeal recently clarified how the Health Professions Review Board (HPRB) may review investigations, and also how courts may review HPRB decisions about the reasonableness of inquiry committee dispositions: College of Physicians and Surgeons of BC v. Health Professions Review Board, 2022 BCCA 10.
We recently addressed the Dawson case (here, at least until we transition to our new website). In brief, the court held as follows:
(a) The Review Board has no authority to deal with process errors that do not impact the adequacy of investigation or the reasonableness of the disposition. Such errors must be addressed by a court on judicial review.
(b) The Review Board may decide what “adequacy” of investigations means, and the court will not interfere unless a decision of the Review Board is patently unreasonable. However, the court clarified that an investigation is adequate if it is sufficient to meet its goals. Accordingly, if the Review Board demands that a college seek further information, that information must be helpful, e.g., to assessing whether a registrant departed from professional standards.
(c) Where an inquiry committee’s disposition is entitled to deference from the Review Board, and the Review Board is also entitled to deference from a court, the proper approach for a court is simpler than it seems. Since the question for the Review Board — whether the Inquiry Committee’s disposition was reasonable — only has one right answer, the court may simply assess for itself whether the disposition was reasonable. If the Review Board did not come to the one right outcome, its own assessment was patently unreasonable.
In coming to these conclusions, the Court of Appeal decided it had to overturn a case called Ridsdale v. Anderson, 2016 BCSC 942 (”Ridsdale”), where the court held that dispositions by an inquiry committee are not subject to judicial review. This overturning would also extend to the decision in Maroofi v. College of Physicians and Surgeons of BC, 2017 BCSC 1558 (”Maroofi”).
However, this conclusion requires a closer look.
Ridsdale actually involved two rulings. The second ruling in Ridsdale was that, where an inquiry committee disposes of a complaint in a way that does not impact the registrant’s legal rights (such as when it issues a letter of criticism), a court may decline to hear an application for judicial review by the registrant, where the decision will be meaningless because the registrant’s rights will be unchanged no matter what the court decides. The Maroofi case involved the same set of rulings. The overturning of Ridsdale (and Maroofi) would therefore not seem to alter the discretionary power of courts to refuse to address applications for review (despite their authority to review, should they choose) on the basis that the case is one where, whatever the court decides, the court will not be altering legal rights, duties, or liabilities.
The Review Board has until mid-March 2022 to seek leave to appeal to the Supreme Court of Canada.
Lisa C. Fong, Q.C. and Michael Ng