July 16, 2018

Happy summer: Notable regulatory cases since March

Administrative Law
Professional Regulation

As this spring (and now the summer) has been extremely busy, we weren’t able to keep up with our monthly blog schedule. To make that up, we’ve reviewed cases since March, and here are our notable picks.

1. Injunctions against unauthorized practice need not list specific prohibited acts

A non-physician, Ms. Li, who was subject to an injunction preventing her from practising medicine, breached the injunction by removing stitches from a client in her home — stitches from eyelid surgery that she asserted she performed before she agreed to the injunction. CPSBC asserted contempt of the order. The order restrained her from providing any service that may only be provided by a registrant of the College.  Ms. Li argued she did not know that removing the stitches contravened the injunction, and asserted no contempt because the order lacked clarity. She argued that a listing of the prohibited services would have provided her with more guidance and knowledge than the existing order. The court held that the order was sufficiently clear: “There is no order that could exhaustively set out the services a non- registrant of the College cannot perform.” [37] Further, the court concluded that Ms. Li performed the eye surgery while the injunction was in force.

College of Physicians and Surgeons of British Columbia v. Li, 2018 BCSC 923.

2. CPSBC obtains a consent injunction order preventing unauthorized practice against “Dr. Lipjob”

In late March 2018, the College of Physicians and Surgeons sought an obtained an injunction, by consent order, against a non-registrant. She called herself Dr. Rajji, used a forged medical licence to buy drugs and products, prescribed and injected botulinum toxin (botox) and other dermal fillers for a fee, and went by the Instagram handle, “DrLipjob”, all in breach of a previous undertaking she had given to the College to refrain from practising medicine or using reserved titles. The College also obtained the non-registrant’s agreement to pay $25,000 in costs.

College of Physicians and Surgeons of British Columbia v. Khakh, B.C.S.C. No. S179295 (Vancouver Registry)

3. Ontario: The need for courts to defer to (sexual misconduct) penalties imposed by discipline committees

After a discipline committee of CPSO imposed a six-month suspension, and some restrictions on practice (including supervision), on a physician found to have sexually abused four female patients (by touching their breasts in various ways, but without a finding of sexual intent, and combined with serious deficits in his communication skills), the College itself appealed the outcome, leading first to the Ontario Divisional Court overturning the penalty as unreasonable, but then to the Ontario Court of Appeal restoring that penalty, based on deference to the discipline committee and the absence of any reversible error. The Court of Appeal held that the Divisional Court properly identified a reasonableness standard of review, but failed to apply that standard by incorrectly substituting its own assessments of the evidence and the penalty. [40] The Court of Appeal deferred to the more nuanced findings of the discipline panel that the physician engaged in sexual abuse from an objective standpoint, but without finding any subjective sexual motivation. [50] In particular, the physician may have been “unaware” of the ways in which his behaviour was, in fact, abusive. [30] In that context, the penalties that the discipline committee imposed were not clearly unfit. A reviewing court had to show due deference, rather than usurp the administrative body’s role. [76] The court noted legislative changes in 2017 to increase the scope of mandatory licence revocation for sexual touching. Those changes did not, however, alter the error by the Divisional Court. [87]

College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420 (May 3, 2018)

4. Ontario: Sexual relationships with a recently former patients

A physician who entered into a long-term sexual relationship with a former patient, starting two weeks after he stopped treating her for depression, anxiety and sleep difficulties, had a penalty of revocation imposed by the discipline committee reversed by the Ontario Divisional Court, on the basis that it vastly exceeded the sentence imposed in similar circumstances. The discipline committee acknowledged that revocation was outside the range of typical penalties imposed in prior cases, but decided that revocation was justified because of the seriousness of the misconduct, and the registrant’s lack of insight. The Divisional Court considered the deferential requirements described by the Ontario Court of Appeal in Peirovy earlier in the month, but went on to examine previous cases that had garnered five- and six-month suspensions, and noted that the discipline committee did not provide any rationale for for its marked departure from case law. The Divisional Court remanded the question of penalty back to the discipline committee.

Horri v. College of Physicians and Surgeons of Ontario, 2018 ONSC 3193.

5. Misconduct by criticizing other registrants on social media

A registered nurse, while on maternity leave and not practising as a nurse, posted comments on social media criticizing the end of life care her grandfather received at a specific care facility, which included her criticizing the professional competence of the nursing staff at that facility. A discipline committee of the Saskatchewan Registered Nurses Association decided that she had engaged in professional misconduct; her comments “harmed the reputation of the nursing staff… and undermined the public confidence in the staff at that facility” contrary to the best interests of the profession. [75] On judicial review, the registrant raised a Charter argument against discipline for her “private” conduct. Although she asserted she was acting as a private individual, she identified herself as a nurse in her posts. [59] Neither the committee nor the court disputed an infringement of the registrant’s freedom of expression under s. 2(b) of the Charter. The issue was whether the decision “proportionally balanced the right to freedom of expression with the objectives of the Act, in the context of [the registrant’s] circumstances.” [105] The court held that the finding of misconduct was reasonable, given the nature and extent of harm to the profession, and the fact that the registrant would still be able to advance their complaints through other means. [111]

Cases like Strom often attract criticism that professionals cannot freely speak their personal thoughts and values. In professional regulation, however, there is a distinction between free speech and a professional using their professional status to bolster personal comments in a manner inconsistent with professional standards. The latter does not mean that professionals do not have a right of free speech; but what it does mean is that people who are professionals who are held to a higher standard in terms of how they may criticize colleagues and other professionals.

Strom v Saskatchewan Registered Nurses’ Association, 2018 SKQB 110

6. Relying on legal advice meets professional standards

The College of Physicians and Surgeons of BC (CPSBC) dismissed a complaint against a physician who provided pain medicines to a patient mother to address severe pain, over the objections of the patient’s son who had power to decide about her care. After the Health Professions Review Board (HPRB) dismissed a review, the B.C. Supreme Court (BCSC) confirmed the HPRB decision:Sanders v. College of Physicians and Surgeons of British Columbia, 2018 BCSC 441. On a judicial review from the HPRB’s decision, the complainant asserted that neither the Inquiry Committee nor the HPRB addressed if the physician had complied with applicable laws in providing health care without his consent as the patient’s representative. The court confirmed, however, the positions of the College and the HPRB:

  1. the court owed a high degree of deference to the HPRB’s decision; [89]
  2. an investigation by means of a report summarizing information gathered by an investigator or inspector is an acceptable method of investigation; and
  3. the IC and the HPRB did not have to come to a conclusion on the legal issue of whether the physician breached the law, given that the physician sought advice on his legal obligations.

On the issue of whether the registrant breached the law, the physician took advice from various persons, including the risk management department of Island Health Authority. [29-30] The court concluded that, “a strict determination of the legality of overriding the petitioner’s consent could be seen as far less significant than the professional standards-related question of whether Dr. Love ways acting in accordance with satisfactory practice standards.” [134] The physician did not plainly act illegally against the wishes of a representative acting in good faith in the patient’s best interests. The HPRB could therefore uphold a finding that the registrant’s conduct was professionally “satisfactory” despite a subsequent legal opinion about the lawfulness of his overriding the complainant’s wishes. [134]

Sanders v. College of Physicians and Surgeons of British Columbia, 2018 BCSC 441.

7. How tribunals should deal with Charter issues: applying the Doré case

Tribunals do not always have a lot of experience in dealing with how they must address Charter rights, which registrants may assert as restricting the options open to a regulator in a particular case. The proper approach was recently set out by a B.C. court in a case (Albion, 2018 BCSC 1010) brought to our attention by Angela Westmacott, Q.C., regulatory lawyer extraordinaire.

Albion Truck Repairs, a business that conducts commercial vehicle inspections under the Motor Vehicle Act, had its licence as a designated inspection facility suspended for six months, under a reconsideration decision by the Deputy Director of the Commercial Vehicle Safety and Enforcement Branch (“CVSE”). The CVSSE is part of the Ministry of Transportation and Infrastructure. As part of an audit, an officer seized all of Albion’s vehicle inspection reports. Eventually, Albion had its licence suspended, which the Deputy Director upheld. [36 and 41] Albion challenged the suspension in part by disputing a right of a CVSE peace officer to seize Albion’s records, and by asserting that a search and seizure was unreasonable and a breach of Albion’s right under s. 8 of the Charter to be secure against unreasonable search and seizure.

The court noted that as an administrative decision-maker exercising statutory discretion, the Deputy Director had to take Charter values into account, and balance them with the public safety statutory objectives under the MVA. The Deputy Director had to “engage in a proportionality exercising, balancing the severity of interference with the Charter rights and the statutory objective of public safety. [67] The court held that the Deputy Director reasonably concluded no breach of Albion’s right under s. 8 of the Charter:

1. The Deputy Director acted reasonably in interpreting the search and seizure power (to make copies) as permitting temporary removal of records for copying, [71] and by temporarily seizing records for copying instead of using Albion’s photocopier to copy almost a year’s worth of records. [72 and 78]

2. The search was confined to commercial premises, and the seizure confined to business records that Albion was obliged to keep and produce for inspection under the statutory scheme, such that Albion had a diminished privacy interest in the records [73 and 78]

The Deputy Minister also reasonably concluded that even without the seized records, other evidence justified the suspension. [74 and 78] The court rejected several other grounds of challenge based on the Deputy Director having reasonably interpreted the provisions of the MVA, [90 and 100] and having reasonably exercised discretion to uphold the suspension. [95]

Albion Truck Repairs Ltd. v. British Columbia (Ministry of Transportation and Infrastructure), 2018 BCSC 1010

8. SCC confirms deference to (human rights) tribunals interpreting their home statute

The Supreme Court of Canada recently confirmed the principle that courts should generally defer to tribunals in how they interpret their home statutes, and definitively overruled cases giving no deference to human rights tribunals that interpreted human rights laws: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31.

The dispute arose in the context of a human rights challenge to the effects of provisions of the Indian Act, which defined how individuals qualify for status as “Indians”, and by extension, operated to both strip individuals of their Indian Act status and prevent their children from registering as status “Indians”, in part to gradually reduce the number of status “Indians”. The Canadian Human Rights Tribunal decided that the legislative provisions themselves did not fall within the statutory meaning of a “service” customarily held out to the public, as required under the Canadian Human Rights Act.

Deference and home statutes: The SCC referred to a well-established presumption that “where an administrative body interprets its home statute, the reasonableness standard applies”.[27] The court went onto to note “no principled difference between a human rights tribunal and any other decision maker interpreting its home statute”. [29] Accordingly, “[h]uman rights tribunals are equally entitled to deference where they apply their home statute.” [29]

Deference despite concurrent jurisdictions: In response to the proposition that the tribunal lacked expertise in legal issues for which other federal tribunals had concurrent jurisdiction to interpret the Canadian Human Rights Act, the court held that the ability of other federal tribunals to apply the statute “does not rob the Tribunal of its expertise in its home statute”. [43; also see 51]

The category of “true jurisdiction” issues is on “life support”: As part of its analysis, the court explored the question of what may constitute a “true” question of a tribunal’s jurisdiction that invites a correctness standard of review: “Since Alberta Teachers, the search for true questions of vires has, in fact, been fruitless.” [37] It noted that “true questions of jurisdiction have been on life support” since the Alberta Teachers case, [41] but without full submissions on the point, “it will be for future litigants to establish either that the category remains necessary or that the time has come… to ‘euthanize the issue’ once and for all…” [41].

The reasonableness of the tribunal’s decision: While actions “of the executive” in providing services primarily available to the public are reviewable under human rights legislation, the tribunal reasonably decided that legislation per se, and in particular the eligibility criteria under the Indian Act, is not a “service”. [57-63] The court expressly noted, however, that the tribunal’s decision did not decide if the Indian Act infringe the complainants’ equality rights under s. 15 of the Charter. [67]

LEAF intervened to argue that a broader interpretation of services to include legislative criteria as a meaningful way of addressing the inaccessibility of Charter litigation for female indigenous litigants. Bringing a Charter challenge is an expensive and long endeavour, meaning that most people won’t be able to challenge discrimination. Some thinkers on indigenous law might agree with LEAF, and argue that one form of reconciliation is that the law must make room for the special adversities that indigenous peoples face when challenging discrimination embedded in legislation, especially where human rights legislation has been recognized by the courts as quasi-constitutional in nature. Other legal thinkers may disagree, as a power to overturn legislation should be isolated to the Charter.

Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31

Lisa C. Fong and Michael Ng