March 24, 2011

Immunity of regulatory personnel from lawsuits: Part 2

Administrative Law
Professional Regulation
Regulator Liability

In December, we examined the protection from lawsuits that regulatory personnel receive under s.24 of the Health Professions Act, through a parallel provision (section 38 of Ontario’s Registered Health Professions Act) considered in Deep v. College of Physicians and Surgeons of Ontario, 2010 ONSC 5248 (September 23, 2010).

A degree of additional protection flows from s.53 of the HPA, which prevents a person with knowledge gained while exercising a power or performing a duty from giving or being compelled to give evidence in judicial proceedings (except proceedings under the HPA), and prevents related records from being compellable in judicial proceedings (except proceedings under the HPA). The Ontario Court of Appeal considered the parallel Ontario provision, s.36(3) of the RHPA, in Deep v. College of Physicians and Surgeons of Ontario, 2011 ONCA 196 (“Deep”):

36(3) No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

The Ontario Court of Appeal previously discussed the principle underlying this rule in Task Specific Rehabilitation Inc. (c.o.b. TSR Clinics) v. Steinecke, [2004] O.J. No. 3159 (C.A.) (“Steinecke”). In that case, a corporation providing occupational therapy assessments sought to claim damages against a lawyer hired by the College of Occupational Therapists of Ontario. The lawyer had been hired to prosecute a complaint against one of the corporation’s employees, and eventually negotiated a plea agreement under which both parties consented to adopt an agreed statement of facts. This statement contained admissions by the registrant casting her employer in a negative light. [5]

Prior to this case, the corporate plaintiff had already proceeded with a judicial review of the original complaint. As part of the settlement of that review, the corporation had obtained a letter from the College specifying the decision of the Discipline Committee was directed at the conduct of the former employee, not that of her employer. [9] The corporation then brought its action against the lawyer hired by the College, alleging the agreed statement of facts drafted by the lawyer was false in respect of its assessment of the corporation’s practices. [10] At trial, the lawyer successfully argued the claim should be dismissed, as RHPA s. 36(3) prevented the corporation from relying on the statement as evidence. [13] The corporation appealed.

The corporation asserted s. 36(3) contained an implied good faith requirement, such that it would not apply in a claim based on an allegedly bad faith decision [20], but the Court in Steinecke rejected this argument, applying its reasoning in its prior decision of M.F. v. Sutherland (2000), 188 D.L.R. (4th) 296 (Ont. C.A.):

I find no relevant indicators of legislative meaning to displace the presumption in favour of the ordinary meaning of s. 36(3). The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action. This purpose would be defeated by reading a fraud or bad faith exception into s. 36(3). The mere allegation of fraud or bad faith, however unfounded, could make the provision inapplicable.

Section 36(3) is one of a number of legislative provisions whose broad objective is to keep College proceedings and civil proceedings separate. Section 36(1) provides for the confidentiality of information that comes to the knowledge of College employees; and s. 36(2) provides that College employees cannot be compelled to testify in civil proceedings about matters that come to their knowledge in the course of their duties.

Accordingly, the Court ultimately ruled in Steinecke that section 36(3) was deliberately drafted so as not to include a good faith requirement. [22] As shown by the recent Court of Appeal decision in Deep, Steinecke is still good law, as the Court found that Deep could not rely on documents inadmissible under civil proceedings due to s. RHPA 36(3), and found that, “[w]ithout this evidence the appellant has no way of proving the necessary facts to support his claim.”

Those noting the history of these cases may not be surprised by this outcome – the trial decision in Steinecke was authored by Rouleau J. of the Superior Court of Justice, as he then was, while Deep was a unanimous decision of the Court of Appeal , featuring the assent of Rouleau J.A.

Deep v. College of Physicians and Surgeons of Ontario, 2011 ONCA 196 (“Deep”)

Michael Ng and Christian Morey