January 2, 2017

Limits on using professional disciplinary evidence in other proceedings

Administrative Law
Professional Regulation
Regulator Liability

The enabling statutes of some professional regulatory bodies limit the use of information and documents from investigations and disciplinary matters before courts or other tribunals. Such provisions may impede civil claims that depend on proof of events during investigation or discipline. The impact of such restrictions was recently illustrated where a teacher filed a human rights complaint in Ontario, against the Ontario College of Teachers (the “College”), in Black v. Ontario College of Teachers, 2016 HRTO 1233.

The complainant was a teacher who alleged that the College, and more generally the educational system in Ontario, was not doing enough to prevent and respond to child abuse and racism in schools. While that teacher was sitting on a discipline committee panel of the college, and addressing the reinstatement of a member who had been convicted of sexual exploitation, the teacher allegedly breached confidentiality provisions of the Ontario College of Teachers Act (the “Act”). The college investigated the violation, which the teacher alleged was harassment and reprisal against him for speaking out on the issue of child abuse within the school system. [16] The discipline committee reprimanded him, and based on how he was reprimanded, among other things, the teacher alleged that the College had discriminated against him.

The Act provides that no record of a proceeding under the Act, and no document prepared or statement given at such a proceeding, and no order or decision made in such a proceeding, is admissible in any civil proceeding other than under the Act, or an appeal or judicial relating to a proceeding under the Act. [22] Given that restriction, the Human Rights Tribunal held that the content of the reprimand was inadmissible before the Tribunal. “There is essentially nothing left for the applicant to rely upon to make out his allegation relating to the content of reprimand once the content is found inadmissible. Any oral testimony regarding the content of the reprimand would also be inadmissible.” As a result, the teacher’s human rights complaint had no reasonable prospect of success. [34] This Ontario decision relies on similar Ontario court and tribunals decisions where evidence from discipline proceedings was found inadmissible, e.g.,

  • Conroy v. The College of Physicians and Surgeons of Ontario, 2011 ONSC 324 at paras. 51-57, affirmed 2011 ONCA 517 (plaintiff suing for libel flowing from public notice of his referral to the Fitness to Practice Committee; evidence at what transpired at various proceedings was inadmissible in court);
  • Frank v. Legate, 2015 ONCA 631 at para. 61 (physician who was subject to complaints to the College of Physicians and Surgeons of Ontario suing for, among other things, malicious prosecution; but nothing from the record of the complaint was admissible in the civil action);
  • Dindial v. College of Nurses of Ontario, 2016 HRTO 1170  at paras. 21-26 and Ten v. College of Massage Therapists of Ontario, 2016 HRTO 147 at para. 21 (prohibition against admissibility “effectively prevented issues arising from those proceedings and those decisions from being adjudicated before the [Human Rights] Tribunal”; given the prohibition, case having no reasonable prospect of success)

A comparable provision in British Columbia’s Health Professions Act is differently worded, and may not be as wide as its Ontario counterparts in some circumstances (see HPA s. 53(2) and (3)). But an example of a party to a court action in B.C. unable to obtain documents from a health professions college may be seen in Casses v. Canadian Broadcasting Corp., 2014 BCSC 1901 (concerning document production sought against the College of Physicians and Surgeons of British Columbia).

Black v. Ontario College of Teachers, 2016 HRTO 1233

Lisa C. Fong and Michael Ng