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.