Ontario SC Considers Investigatory Powers of a College Investigator

Professional regulatory investigators in Ontario have the same powers as a Commission under the Public Inquiries Act. They have the power to "summons" materials from a third party including from the police.

In the case under review, a 75 year old physician was found guilty of acts of professional misconduct in that he had engaged in sexual acts with 3 boys, one of whom had been a patient. The incidents had occurred many years before the discipline hearing. In addition, the College had learned about them about 8 years before the hearing took place, as the police were conducting a criminal investigation.

The case considers many issues, too numerous to address here, but which include issues of delay, abuse of process, consideration of improperly obtained evidence, and whether the discipline committee was authorized to consider constitutional questions.

One of the more significant rulings was that the summons power did not infringe the constitutional right to freedom from unreasonable search and seizure (S.8 Charter). In a thorough review and analysis of the applicable case law, the Ontario Supreme Court held that the framework in which the summons power operated was not unbridled, and that a physician had only a limited expectation of privacy in his/her professional practice in view of a regulator's obligation to ensure public protection.

The Court also held that the discipline committee is authorized to consider questions of law including constitutional questions, and that the delay of 8 years from the time the College learned of the events and took its own proceedings, although of concern was not an inordinate delay.

The Court upheld the Committee's decision to cancel the registrant's license noting that it had considered all aggravating and mitigating factors, and that its concerns with denunciation and specific deterrence were reasonable. It should be noted that the Committee's award of $95,000.00 in costs against the physician was not disturbed, but the physician did not provide any evidence upon which that finding could be considered and if appropriate, disturbed.

Savant v. College of Physicians & Surgeons of Ontario

2011 ONSC 323

Harassment and the Privacy Commissioner

The College of Physicians and Surgeons recently refused to disclose contact information to an applicant, among other things.

The case involved a physician (applicant) who resigned from the College. The details are not set out, but the College had resolved to erase his name from the temporary register based on misrepresentations he made in his application for registration. He then resigned, and his resignation was accepted.

The applicant had filed numerous FOI requests with the College. He sued it unsuccessfully for defamation; made a complaint to the Ombudsman which was closed; and filed a complaint to the Human Rights Commission which was dismissed.

In responding to the FOI request under review, the College had refused to disclose contact information of third parties, relying upon S.22(2)(e) of FOIPOP. It was concerned that these third parties would be harassed by the former registrant and that this would constitute "harm" within the meaning of the section.

The Privacy Commissioner did not accept this argument, concluding that exposing these individuals to harm did not meet the test of "serious mental distress or anguish by harassment." Individuals receiving communications from the former registrant may be annoyed or frustrated by them, but this did not meet the test or "harm".

College of Physicians & Surgeons of British Columbia

Order F-11-10, March 31, 2011.

Privacy Commissioner Refuses to Hear a Case Against the Law Society of B.C.

The Law Society of B.C. (LSBC) was involved in civil litigation by a non practicing member who had launched a human rights complaint against it. The LSBC retained counsel to defend it. The member applied for correspondence between the LSBC counsel and third parties, some of which were disclosed. The LSBC took the position that the balance of the requested records were subject to solicitor client privilege pursuant to S.14 of FOIPOP and asked the Commissioner not to hold a hearing because it was plain and obvious that the privilege applied. The Commissioner agreed and exercised his discretion not to hold a hearing.

The decision contains a very good summary of the principles of litigation and solicitor-client privilege quoting from a BCSC decision called B. v. Canada [1995] 5 WWR 374.

Decision F11-01

LAW SOCIETY OF BRITISH COLUMBIA,

March 15, 2011.

BCCA Considers Non-Cooperative Accountant

The Institute of Chartered Accountants of B.C. was investigating an accountant. It made arrangements several times to attend his office to review files. The registrant was completely uncooperative. Ultimately he was disciplined for failing to cooperate in the investigation and he signed an undertaking in which he agreed to provide the requested files. He failed to comply with this undertaking and was disciplined for failing to do so.

This time a hearing took place at which the registrant represented himself. He was advised several times to seek legal counsel. At the last minute, the registrant sought an adjournment to retain counsel. This request was denied. During the hearing, the discipline committee requested its own counsel to assist the registrant to present his defense. The registrant's license to practice was cancelled.

The BCCA decided that the Discipline Committee did not breach the duty of procedural fairness to the registrant when it refused his adjournment request and noted that this kind of tribunal has the right to govern its own proceedings.

The case contains a useful summary and analysis of the legal principles that apply to this situation. It applied the correctness standard of review to the question of whether there had been a breach of the duty of fairness.

MACDONALD V. INSTITUTE OF CHARTERED ACCOUNTANTS OF B.C.

2010 BCCA 492

Can a Court Interfere with the Examination Process

The Ontario Supreme Court recently considered the degree to which a Court may interfere with the process followed by an examination body for a professional college. This is an important decision as it is the first to consider the issue in this context.

The Ontario College of Chiropractors requires successful completion of an examination for registration. This examination is administered by the Canadian Chiropractic Examining Board (CCEB), a not for profit corporation comprised of the provincial licensing bodies that regulate chiropractic practice. The Board schedules examinations 3 times per year in various locations. All of its policies and procedures, including deadlines for registration and late applications were clearly available on its website.

The applicant missed the deadline for registration for the examination, the last step she had to complete in order to be registered. She had a position waiting for her upon completion of this requirement. She said that she was late due to financial problems. When she tried to submit the examination fee past the deadline, it was not accepted by the CCEB and she could not take the examination. She lost the job opportunity noted above as she had to wait another 4 months to take the next offered examination.

She launched and was granted several internal appeals. The CCEB took these appeals seriously and presented much evidence regarding what happened, the reason for its policies and so forth.

She was unsuccessful in all internal appeals and appealed to the Court by judicial review. The main issues were whether the CCEB was a public body that was subject to judicial review, and whether it abused its discretion when it refused to allow her to register late for the examination.

The Ontario Supreme Court held that the CCEB did not have any statutory or regulatory power, even though it was comprised of the regulatory authorities. It did say that the CCEB was bound by the rules of natural justice and procedural fairness. As to how the applicant had been treated, the Court stated that "reviewing courts remain unwilling to interfere with policies established by such non-statutory entities or the procedural decisions they reach in the absence of manifest unfairness."

Another important point was that the applicant had argued that her financial situation was a hardship that was an extraordinary circumstance. She had incurred significant debt while completing her studies. The CCEB had rejected her argument and the Court held that its decision in this regard was reasonable.

FAWCETT V. CANADIAN CHIROPRACTIC EXAMINING BOARD

2010 ONSC 4903 (CanLii)