Disciplinary Records: Admissibiliy
Regulated Health Professions Act, 1991, S.O. 1991, c. 18
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Confidentiality
36 (1) Every person employed, retained or appointed for the purposes of the administration of this Act, a health profession Act or the Drug and Pharmacies Regulation Act and every member of a Council or committee of a College shall keep confidential all information that comes to his or her knowledge in the course of his or her duties and shall not communicate any information to any other person except,
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Not compellable
(2) No person or member described in subsection (1) shall be compelled to give testimony in a civil proceeding with regard to matters that come to his or her knowledge in the course of his or her duties. 1991, c. 18, s. 36 (2).
Evidence in civil proceedings
(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. 1991, c. 18, s. 36 (3); 1996, c. 1, Sched. G, s. 27 (2).
CIBC v. Deloitte & Touche, 2013 ONSC 2166 (CanLII)
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[94] As the above principles of statutory interpretation suggest, an important aspect of interpreting legislation is identifying the purpose of the enactment. In this regard, the apparent goals of s. 61 are to prevent evidence from a proceeding before the Institute being admissible in a civil proceeding.
[95] These goals are similar to the goals of s. 36 (3) of the Regulated Health Professions Act, 1991, discussed above.
[96] In F. (M.) v. S. (N.), supra, the majority of the Court of Appeal explained the purpose of s. 36 (3) of the Regulated Health Professions Act, 1991 at paras. 29, 31, and 36, as follows:
29. …. 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. ….
31. 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.
36. The Schwartz Report has focussed on one purpose of s. 36(3), to prevent patients from using discipline proceedings to build a civil case against health professionals. Had that been the only in-tended purpose, I think that the Legislature would have appropriately qualified the wording of s. 36(3). In my view, the purpose of s. 36(3) is to prevent not just patients but all participants in College proceedings from using documents generated for those proceedings in civil proceedings, in short to keep the two proceedings separate. ….
[97] The legislative purpose of s. 61 of the Chartered Accountants Act, 2010 is similar to the purpose of s. 36 (3) of the Regulated Health Professions Act. Thus, based on the case law, s. 61 is designed: (a) to encourage citizens to report professional misconduct; (b) to facilitate a full investigation and fair adjudication of the professionalism complaint; (c) to immunize a profession’s regulator and its officers and employees from being summonsed to give evidence in civil proceedings about what was disclosed and ascertained in the disciplinary proceedings; (d) to separate the discipline proceedings from any civil proceedings; and (e) to prevent the disciplinary proceedings from being used as a means of discovery to build or defend a civil case.
[98] In my opinion, within these identified purposes, particularly within the purpose of separating the disciplinary and the civil proceedings, is the purpose of negating the operation of issue estoppels arising from the decisions of the disciplinary proceedings applying to court proceedings. It is precisely for this reason that s. 61 provides that no decision or order made in a discipline proceedings is admissible in any civil proceeding.
Ontario v. Lipsitz, 2011 ONCA 466 (CanLII)editedit source
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[112] Dr. Lipsitz’s third argument on the cross-appeal is that an action should not be struck on the basis of the inadmissibility of documents under s. 36(3) of the RHPA because such an order would interfere with the trial judge’s discretion to decide evidentiary issues.
[113] In M.F. v. Sutherland, the court rejected a similar argument holding, at para. 40, that “if a paragraph in a party’s pleading pleads facts that cannot be proved at trial or pleads documents that cannot be admitted at trial, that paragraph may be struck out on a motion”. The court indicated that such a motion should be brought under Rule 25.11. The motion in this case was brought under that rule.
[114] Thus, I see no basis to interfere with the motion judge’s decision to strike Dr. Lipsitz’s allegations pertaining to the College’s investigations of his professional conduct. I agree with the motion judge’s comment at para. 34 of his endorsement where he said:
I would simply add, for the plaintiff’s benefit, that although the documentation is inadmissible, the fact that a complaint was made or that an investigative proceeding was commenced may be provable at trial.
[115] In the result, the cross-appeal is dismissed.
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Middleton v Sun Media Corp and al, 2006 CanLII 84666 (ON SCDC)editedit source
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[3] The appellant is a physician and surgeon who operates a cosmetic surgery centre in Toronto. In 1997, he performed cosmetic surgery on a patient, and in the course of the surgery, he took two photographs in the operating room showing the patient and two nurses. He claims that these photos were stolen and provided to the Toronto Sun, and that the defendants (respondents), the owners and publishers of the Sun and other newspapers, published the photographs several times between 1999 and 2001. He claims damages for breach of confidence and conversion.
[4] The College of Nurses conducted a disciplinary proceeding against the two nurses, which resulted in a dismissal of the complaints. The patient also laid a complaint against the appellant with the College of Physicians and Surgeons of Ontario. Following the decision of the College of Nurses, the Complaints Committee directed the College of Physicians and Surgeons to withdraw the complaint.
[5] The respondents moved before Master MacLeod for a further and better Affidavit of Documents, seeking an order that the appellant include a number of categories of documents including College documents. The Master refused to order disclosure of the documents relating to the College disciplinary proceedings.
[6] On appeal from his decision, the motions judge dismissed the appeal except in relation to the College documentation. She ordered that the following documentation be included in the appellant's Affidavit of Documents: "Documentation in the possession of the plaintiff/Centre regarding the proceedings at the College of Nurses of Ontario and at the College of Physicians and Surgeons of Ontario ("the College documents")."
The Issue
[7] At issue in this appeal is the interpretation of s. 36(3) of the Act, which provides:
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.
[8] There is no issue that the College documents are the type addressed by s. 36(3). The issue between the parties is the meaning of the word "admissible" in the legislation.
The Decision of the Motions Judge
[9] The motions judge concluded that s. 36(3) deals only with the admissibility of documents in evidence in a motion or trial in a civil proceeding, and it imposes an absolute bar to their admissibility in evidence. However, she concluded that the provision does not make College documents confidential when they are in the possession of a party to an action, nor does it prevent their use in a civil action (Reasons, paras. 28-33). Given the wording of the statutory provision, she "reluctantly" came to the conclusion that the Master was clearly wrong in his decision to withhold production of College documents in the possession of the appellant, and she allowed the appeal.
Analysis
[10] In Forget v. Sutherland (2000), 2000 CanLII 5761 (ON CA), 134 O.A.C 117, 188 D.L.R. (4th) 296 (C.A.), Laskin J.A., writing for the majority, described the purpose of s. 36(3) at para. 29:
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).... (emphasis added)
[11] Laskin J.A. continued:
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. (at para. 31)
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... In my view, the purpose of s. 36(3) is to prevent not just patients but all participants in College proceedings from using documents generated for those proceedings in civil proceedings, in short to keep the two proceedings separate, (at para. 36, emphasis added)
[12] In Forget, the defendant physician, in his defence to a civil action, sought to plead and rely on the plaintiff patient's complaint to the College of Physicians and Surgeons and her subsequent recantation. Relying on s. 36(3), the plaintiff brought a successful motion to strike the portion of the physician's defence that referred to College documents. The majority in the Court of Appeal held that if a paragraph of a party's pleading pleads facts that cannot be proven at trial or pleads documents that cannot be admitted at trial, that paragraph may be struck on a motion.
[13] Forget was followed by the Court of Appeal in Task Specific Rehabilitation Inc. v. Steinecke (2004), 2004 CanLII 4853 (ON CA), 188 O.A.C. 318, 244 D.L.R. (4th) 414.
[14] The appellant relies on Forget and submits that the motions judge erred in ordering production, as s. 36(3) prohibits the use of College documents in civil proceedings. The respondents submit that relevance for the purposes of discovery is different from admissibility at trial, and s. 36(3) is a bar only to the admissibility of the documents in evidence. Moreover, had the Legislature intended to prohibit production, it should have used clearer language, as it has done in other legislation, such as s. 38(2) of the Professional Engineers Act, R.S.O. 1990, c. P.28.
[15] In interpreting legislation, a court is to read the words of the Act "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" (Yonge Street Hotels Ltd. v. Municipal Property Assessment Corporation, 2005 CanLII 14438 (ON CA), [2005] O.J. No. 1741 (QL), 50 O.M.B.R. 1 (C.A.), at para. 15, quoting Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983) at p. 87). More recently, the Supreme Court of Canada has emphasized again that the grammatical and ordinary sense is not determinative of the interpretation of a statute. In each case, the entire context of the provisions, including the purpose and scheme of the legislation, must be considered (City of Calgary v. ATCO Gas and Pipelines Ltd., 2006 SCC 4, 263 D.L.R. (4th) 193, at para. 48).
[16] In our view, the motions judge erred in her interpretation of s. 36(3), given the decision of the Court of Appeal in Forget. While she distinguished Forget on the basis that the case dealt with the admissibility of documents in evidence at a civil trial, not production of documents, in our view Forget is binding and determinative of the issue in this appeal.
[17] In that case, the Court of Appeal clearly held that College proceedings and civil proceedings were meant to be kept separate, given the terms and purpose of s. 36 of the Act. Moreover, the Court of Appeal clearly held that the words "not admissible in civil proceedings" in s. 36(3) meant that the documents could not be used in civil proceedings.
[18] While the Court of Appeal was dealing with a pleadings motion and considering the ultimate admissibility of material at trial. Laskin J.A.'s statement of the purpose of the legislation was framed in broad terms. Requiring the inclusion of College documents in an Affidavit of Documents is contrary to the legislation's purpose as he stated it – namely, to keep civil proceedings and College proceedings separate.
[19] In construing a statute, the words are to be considered in their entire context and in light of the purpose of the legislation. In this case, the words "not admissible" must mean "not capable of use" in a civil proceeding, as the Court of Appeal stated in Forget. If not, the confidentiality which the Legislature seeks to protect in College proceedings will be undermined through disclosure of the documents in civil proceedings. Even if there is protection from further disclosure to the public through the deemed undertaking rule, there will still be disclosure of information to those who have not been involved in the College process – an event that the Legislature sought to prevent through the provisions of s. 36.
[20] Therefore, there is no obligation to include the College documents in the Affidavit of Documents, for that would be inconsistent with the wording of s. 36(3), when read in light of the purpose of the subsection, as articulated in Forget.
Conclusion
[21] The appeal is allowed, and the order of disclosure made by the motions judge is set aside. In accordance with the parties' agreement on costs, the appellant shall have costs of the appeal from the Master in the amount of $3,500; costs of the leave to appeal motion in the amount of $3,500; and costs of the appeal before this Court in the amount of $3,000.
[22] Appeal allowed.
Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461 (CanLII)editedit source
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[33] Applying these principles to this case, Pouget is not precluded from asserting claims against SEHC based on bad faith, which has been pleaded, as long as those claims can be proved without using any document referred to in s. 36(3). The fact of a complaint and of an investigation can be proved at trial.
[34] The case law reviewed above, including Sutherland, does not support the respondents’ position that documents created in the normal course of business automatically become inadmissible under s. 36(3) if those documents are later referenced in, or appended to, a report to the College. Such an interpretation of s. 36(3) is not supported by the clear language of the provision, which speaks of a report, document or thing prepared for or a statement given at a proceeding. It would also yield the absurd result that while Pouget has a claim for wrongful dismissal, she would have no meaningful way to prove that claim if documents such as her appointment schedule and billing records for February 2003 became immune from production because they later formed part of the “narrative” of SEHC’s report to the College.
[35] The exclusion from evidence of the complaint will clearly pose a practical problem for Pouget’s bad faith claim. She will have to prove bad faith without being able to refer to the contents of the complaint itself except to the extent that the substance of the complaint can be inferred from the background documents. That, however, is a practical problem of proof and not a legal barrier that would justify dismissing the action at the pleading stage.
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Simone v. Law Society of Ontario, 2021 ONLSTH 114 (CanLII)editedit source
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[1] Kathleen Lickers: – Ms. Simone (the applicant) has applied for a paralegal licence under s. 27(1) the Law Society Act, RSO 1990, c. L.8 (the Act). In this motion, she seeks an order that certain documents and information be excluded from the evidence in the hearing of her application. Ms. Simone relies on s. 36(3) of the Regulated Health Professions Act (RHPA).
[2] For the reasons that follow, I allow the motion in part.
CONTEXT
[3] After submitting her licensing application, Ms. Simone self-reported and provided particulars regarding three questions on the good character amendment form:
(7) Have you ever been suspended, disqualified, censured or otherwise disciplined as a member of any professional organization?
(8) Have you ever been denied a licence or permit or had any licence or permit revoked for failure to meet good character requirements? If yes, provide details.
(9) Have you ever been refused admission as an applicant or member of any professional body? If yes, provide details.
[4] The applicant responded “no” but provided explanations. During the good character investigation subsequently initiated by the Law Society, Ms. Simone provided further information in writing and orally, and authorized production of documents from a third party, the College of Dental Hygienists of Ontario (CDHO), to the Law Society.
[5] The third party documents obtained by the Law Society from the CDHO include Ms. Simone’s membership renewal, her communications with the Quality Assurance Committee, her communications with the Inquiries, Complaints and Reports Committee, the report of an investigator, and the CDHO’s discipline file, which included communication between Ms. Simone and CDHO counsel, the CDHO’s notice of hearing, disclosure brief, pre-hearing conference memorandum, report of the pre-hearing conference and a signed undertaking.
[6] To be clear, none of the third-party documents relate to an external complaint made to the CDHO, but rather to regulatory issues arising from Ms. Simone’s conduct during the membership renewal and quality assurance processes of her previous regulatory college.
[7] The Law Society investigator assigned to Ms. Simone’s good character investigation relied on these documents in forming recommendations and in writing the investigation report for the Law Society, which ultimately recommended a referral to the Tribunal for a licensing hearing. A notice of referral for hearing was issued on June 16, 2020.
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Analysis and Conclusion
[24] I conclude that materials not prepared for use in a CDHO proceeding and/or that exist independently of such a proceeding are admissible. My reasons follow.
[25] As the Fuhgeh panel noted, the Ontario Court of Appeal in Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461 drew a key distinction between documents that were prepared for an RHPA proceeding and documents that were prepared independent of such a proceeding but rather were produced in the ordinary course of business: paras. 25 and 34-35.
[26] Holding (at para. 24) that the purpose of s. 36(3) was “to prevent … all participants in College proceedings from using documents generated for those proceedings in civil proceedings, in short to keep the two proceedings separate [emphasis added],” the Court concluded (at para. 34) that documents created in the normal course of business did not become inadmissible by virtue of later being referenced in a report to the College. Moreover, since s. 36(3) of the RHPA “refers only to a ‘report, document, or thing’, it does not prevent a party from pleading and proving the fact that a complaint was made in the first place”: paras. 20, 25.
[27] Applying Pouget to this motion, I conclude that, although the Law Society may not rely upon a report, document or thing prepared for, or a statement given at, a CDHO proceeding, it is not precluded from addressing Ms. Simone’s licence status with the CDHO in her licensing hearing before the Tribunal. Thus, Ms. Simone’s prior conduct is not immunized from scrutiny.
[28] On this basis, the licensing hearing can proceed with materials that were not “prepared for” use in the CDHO proceeding. The parties seemed willing to work on reaching an agreement on this category of documents.
[29] The motion is therefore allowed in part but dismissed insofar as it seeks to exclude materials beyond the plain wording of s. 36(3) and the holding in Pouget.
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References
- ↑ Regulated Health Professions Act, 1991, S.O. 1991, c. 18 [1]
- ↑ CIBC v. Deloitte & Touche, 2013 ONSC 2166 (CanLII)https://rvt.link/aw
- ↑ Ontario v. Lipsitz, 2011 ONCA 466 (CanLII), https://rvt.link/ax
- ↑ Middleton v Sun Media Corp and al, 2006 CanLII 84666 (ON SCDC), https://rvt.link/ay
- ↑ Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461 (CanLII), https://rvt.link/az
- ↑ Simone v. Law Society of Ontario, 2021 ONLSTH 114 (CanLII), https://rvt.link/a-
