March 14, 2023

2022 Professional Regulation Round-up

Here is our round-up of professional regulation cases and events in 2022! Of course, one major event has been BC enacting its new Health Professions and Occupations Act, RSBC 1996, c. 183, but we have been covering that in earlier posts since November 2022:

In case you missed them, here are some other noteworthy, court-related developments. Three important themes arising last year include (a) the Supreme Court of Canada weighing in on when delay by a tribunal amounts to abuse of process; (b) when regulators may discipline for “off-duty” conduct; and (c) when and how regulators may investigate and address the conduct of health professionals engaged in the anti-COVID-19 vaccination movement.

A. Procedural unfairness due to delay

Much-ado about the Saskatchewan Court of Appeal’s approach to delay in Abrametz v. Law Society of Saskatchewan (2020 SKCA 81) is now addressed by the Supreme Court of Canada’s decision to reverse that decision (due to the Saskatchewan court failing to afford deference to the Law Society’s tribunal), and to clarify the law of delay which the SCC established in its earlier Blencoe decision (2000 SCC 44): Law Society of Saskatchewan v. Abrametz, 2022 SCC 29.

The SCC maintains a three-step test of delay (at para. 72): “First, the delay must be inordinate. This is determined on an assessment of the context overall. Second, the delay must have caused significant prejudice. When these two requirements are met, the court or tribunal is to conduct a final assessment as to whether abuse of process is established. This will be so when the delay is manifestly unfair to the party to the proceedings or in some other way brings the administration of justice into disrepute….”

Notably, the court held that a stay of proceedings is not the only remedy for delay. A court may also order that an administrative decision-maker carry out its duties (at para. 80). Further, a stay of proceedings in not an automatic result of an abuse of process (at para. 85): “…the court or tribunal must ask itself: would going ahead with the proceeding result in more harm to the public interest than if the proceedings were permanently halted? If the answer is yes, then a stay of proceeding should be ordered. Otherwise, the application for a stay should be dismissed. In conducting this inquiry, the court or tribunal may have regard to whether other available remedies for abuse of process, short of a stay, would adequately protect the public’s interest in the proper administration of justice.” The court noted that, “[a] will be more difficult to obtain where the charges are more serious” (at para. 86).

The SCC clearly distinguished disciplinary proceedings from criminal proceedings, although it also found that disciplinary proceedings are also not “civil” proceedings; they are “sui generis”, meaning they fall into their own class (at paras. 54).

B. Discipline for “off-duty” unprofessional conduct

Under the HPA, “unprofessional conduct” includes “off-duty” conduct, sometimes called conduct unbecoming a professional. Accordingly, this concept has been carried over to BC’s new Health Professions and Occupations Act (or “HPOA”) which provides (in s. 11(2)) that a licensee commits an act of misconduct if the licensee engages in conduct that “(a) may bring the practice of a designated health profession into disrepute, or (b) is conduct unbecoming a licensee.” Off-duty conduct must, however, impact either a professional’s ability to practice, or more generally, the public’s confidence in the profession.

Several cases in 2022 illustrate different courts drawing (radically) different conclusions about whether a professional’s off-duty conduct is sufficiently connected to their professional practices to warrant discipline. Only the case decided in BC, however, might be “binding” on BC tribunals.

1. An Ontario court upheld a finding of misconduct by a physician who pleaded guilty to two crimes(assault and mischief) after a domestic altercation with his then-fiancee. The court noted that, “[121] Discipline committees of regulated health professions in this province have consistently found that criminal findings of guilt of assault in a domestic violence context are relevant to a member’s suitability to practise because such conduct displays ‘poor judgment, lack of self-control, and capacity for violent acts which stands in stark opposition to the caring, protecting, and healing goals and values’ characteristic of health professions…” Further, some decisions also find such conduct “relevant to a members suitability to practise based on the fact that in some medical specialities, physicians will be called on to treat victims of domestic violence, and must be sensitive to issues related to domestic violence; and also on the need for the profession to demonstrate to the public that acts of domestic violence by physicians, who stand in a position of trust towards patients, are not condoned by the profession.” Dr. Jha v. CPSO, 2022 ONSC 769.

2. In contrast, a Saskatchewan court decided — in our respectful view, somewhat controversially — that where a medical student (later a physician) had sex with a woman he met through Tinder but engaged in “rough sex” acts to which the woman testified she did not consent (such as, according to the woman, his hitting her on her face and head many times), such conduct was not unprofessional conduct. The court reasoned that the woman was not a patient and the physician was not criminally charged. The court concluded that the facts established “no true nexus” between his sexual encounter with the complainant and his practice (at para. 201). Leontowicz v. CPS Sask., 2022 SKQB 98.

3. The BC Supreme Court confirmed that, “it is well settled that off-duty conduct can give rise to discipline when it has a negative impact on the individual’s ability to carry out their professional obligations or where the conduct has a negative impact on, or conflicts with the core values of, the profession”. See Klop v. College of Naturopathic Physicians of British Columbia, 2022 BCSC 2086 at para. 110. In that case, a naturopathic doctor owned businesses that manufactured and exported fecal microbiota transplant (“FMT”) materials. FMT involves transferring bacteria from the fecies of a healthy individual into the guts of patient, with the aim of re-establishing a healthy microbial community in the recipient. The ND promoted FMT on websites connected to his status as an ND (at para. 3). As part of the College’s Inquiry Committee investigating the registrant’s manufacturing and exporting FMT materials to Mexico to treat children with autism (which raised various concerns, including non-compliance with Canada’s Food and Drug Act), the committee took extraordinary (i.e., interim) action by prohibiting the ND from producing and manufacturing FMT materials, and from advertising, promoting, selling or shipping those materials to the public (at para. 5). The BC court confirmed that “the scope of off-duty conduct that may fall within the ambit of unprofessional conduct is broad. Failure to comply with one’s obligations under another statute may constitute unprofessional conduct where it could affect the public’s confidence in, or the reputation of, the profession or reflects on a professional’s integrity….” (at para. 120).

C. Inquiry – court assistance on obtaining documents

While regulators may discipline registrants for failing to disclose documents relevant to an investigation (and thereby failing to cooperate), they may also obtain more immediate help from a court. This is illustrated by two decisions.

1. First, an Ontario court ordered that licensee physicians provide medical charts and patient information to an investigator where three licensees had apparently issued medical exemptions to COVID-19 vaccinations and diagnostic testing (not medically indicated), and the licensees declined to comply with investigative requests:  CPSO v. O’Connor, 2022 ONSC 195. The court usefully noted that (at para. 28), “Where a regulator ‘applies to the court to enforce legislation, and a clear breach of the legislation is established, only in exceptional circumstances will the court refuse an injunction to restrain the continued breach’….”

2. Second, an Alberta Court ordered that a professional, subject to criminal prosecution, obtain and disclose to the College the documents he was entitled to receive from the prosecution: College of Physicians and Surgeons of Alberta v. Al-Naami, 2022 ABQB 438. The court held the college had a power to investigate, including a power to compel production of any evidence relevant to the investigation, or to apply to the Court to compel production of any relevant evidence (at para. 59). The Crown’s disclosure was relevant to a College investigation into the registrant possibly possessing and transmitting child pornography (at para. 36), and relevant to risks to the public pending the investigation (at para. 37). The registrant had a right to access Crown disclosure, which gave him a sufficient degree of control over those documents for the court to make the order (at para. 40).

D. Inquiry – extraordinary action

Several cases illustrate the CPSO ordering interim suspensions or other interim orders against physicians who had apparently issued COVID-19 vaccination exemptions without medical basis:

1. A committee imposed various monitoring conditions on a licensee in Thirlwell v. College of Physicians and Surgeons of Ontario, 2022 ONSC 2654 (May, 10, 2022, with an application for a stay pending leave to appeal denied 2022 ONCA 494). The legal issue on review was about the committee requiring that the licensee sign an irrevocable consent to the college making inquiries to the Ontario Health insurance Plan (OHIP) as part of monitoring the licensee’s practice. The court found the requirement reasonable (at para. 35), as “[i]t may be that the logs required, by the Interim Order, to be produced and copied to the College will provide the sought-after identification of those served by [the licensee] who may have asked for, been offered or provided with, an exemption.”

2. A screening committee ordered an interim suspension for a licensee physician while investigating the licensee for issuing a vaccine exemption to “a high-risk immunocompromised patient”, and for disseminating “misinformation” regarding COVID-19. The committee determined no measure short of a suspension would protect patients (at para. 2) in Dr. Luchkiw v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5738 (Oct. 12, 2022).

3. A screening committee ordered terms, and later an interim suspension, for a licensee physician the committee was investigating for providing exemptions from COVID-19 vaccine requirements without medical justification in Kilian v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5931.

4. BC’s College of Physicians and Surgeons also notably ordered an interim suspension (under HPA s. 35) on a physician whom the committee was investigating for issuing vaccination and masking exemptions not medically indicated. The certificates exempted purported patients from any vaccination requirements (for any disease) for at least 10 years. The committee imposed an interim suspension on the basis, “the Registrant subordinated his professional obligations and the best medical interests of his ‘patient to some other consideration”, ultimately leading him to apparently issue an exemption that was “completely incompatible with what is required of a physician and is inconsistent with the safe competent practice of medicine”: CPSBC v. Dr. Malthouse (March  18, 2022), published on the CPSBC website (here).

E. Inquiry – a “caution” about anti-vaccination speech

An Ontario court confirmed that an inquiry committee may properly “caution” a professional about speech concerning COVID, provided the committee properly weighs its statutory mandate against freedom of speech: Pitter v. College of Nurses of Ontario, 2022 ONSC 5513.

F. The HPRB’s jurisdiction

The Health Professions Review Board has jurisdiction over the adequacy of investigations and the reasonableness of (some) Inquiry Committee dispositions. However, as the BC Court of Appeal determined in the Dawson case (in early 2022, which we covered in our 2021 Professional Regulation Round-up here), the HPRB lacks authority to deal with process issues that do not impact the adequacy of investigation or the reasonableness of the disposition. This limited jurisdiction was again confirmed where the BC Supreme Court held the HPRB lacks jurisdiction to make an order about the composition of an Inquiry Committee panel, or about events occurring after a disposition: College of Dental Surgeons of BC v. Health Professions Review Board, 2022 BCSC 941. In that case, the HPRB ordered, among other things, that the college appoint a new panel to include an orthodontist. The court found (at para. 36), “The enabling statute does not confer onto the Board any authority to control the composition of the Committee or a panel of the Committee reconsidering a matter sent back to the Inquiry Committee. It does not fall within the mandate of the Board to determine who should be on the Committee or what members of the Committee should reconsider a matter.” Accordingly, the HPRB’s direction was “extraneous to the Inquiry Committee’s reconsideration of the Complaint, it is not within the Board’s jurisdiction  and is therefore patently unreasonable” (at para. 41).

G. Honourable mentions

Here are three other court decisions of potential interest.

1. The (limited) duty of disciplinary panels to assist self-represented litigants: Hirtie v. College of Nurses of Ontario, 2022 ONSC 1479.

2. Applications for judicial review during a disciplinary hearing are generally premature: Hemminger v. Law Society of BC, 2022 BCSC 30.

3. The Alberta Court of Appeal rendered an interesting decision about when discipline panels should or should not award costs: Jinnah v. Alberta Dental Association and College, 2022 ABCA 336. Essentially,, that court reasoned (at para. 136), “The imposition of all or a significant percentage of the costs of self-regulation on the profession as a whole is fair because all members benefit from self-regulation.” (emphasis added) Accordingly, a finding of misconduct does not, by itself, warrant a tribunal imposing a significant portion of costs of an investigation into and hearing of a complaint an a professional, absent a compelling reason (at para. 139).

For purposes of BC regulators, the most notable aspect of the Jinnah case is that it does not apply in BC, where the prevailing consideration is not how a court might set policy for how discipline committees should award costs, but rather the legislature’s intention in providing for “costs” under the HPA. BC courts have held that, when the legislature refers to “costs” in statutes, it intends that tribunals apply principles that courts apply when awarding and quantifying costs in civil proceedings, unless a statute says otherwise, e.g., in Roberts v. College of Dental Surgeons (British Columbia) (1999), 63 B.C.L.R. (3d) 116 (C.A.) and Shpak v. Institute of Chartered Accountants of British Columbia, 2003 BCCA 149. One such principle is that costs usually “follow the event”, meaning costs will normally be awarded against an unsuccessful party. However, another costs principle is that a tribunal should generally award only costs (meaning legal fees) on a partial-indemnity basis (often called “party-and-party” costs), and should not require the payment of all (or substantially all) costs (often called “special” costs or “solicitor-client” costs) except where a litigant has engaged in reprehensible conduct. But a costs may provide for 100% of reasonable disbursements (other than lawyers’ fees).

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