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Evidence - Statutory Privilege

. K.K. v. M.M.

In K.K. v. M.M. (Ont CA, 2021) the Court of Appeal considered an evidence excluding provision of the Regulated Health Professions Act:
(3) Does s. 36(3) of the RHPA prohibit the admission of the CPSO materials?

[45] Section 36(3) of the RHPA provides the following:
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.
[46] As the trial judge correctly stated, these words must be read 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 the legislature: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

[47] On a plain reading, this section creates a blanket prohibition against admitting in a civil proceeding any records, reports or documents directly related to a proceeding under the RHPA. The text of the provision leaves no room for exception or discretion in relation to the specific items mentioned: a record of a proceeding, a report, a document or thing prepared for or statement given at such a proceeding, or an order or decision made in such a proceeding.

[48] That said, anything not specifically mentioned is fair game. As mentioned, the trial judge noted that the statutory prohibition did not preclude admissibility of evidence of the fact that a complaint was made and did not capture the website information referring to the undertakings given by Dr. Goldstein. We agree. The law is clear that the fact that a complaint was launched, an investigation held, and a decision rendered by the IRC are not covered by s. 36(3) of the RHPA and may be otherwise provable in court, without reference to a prohibited document: F. (M.) v. Sutherland (2000), 2000 CanLII 5761 (ON CA), 188 D.L.R. (4th) 296 (Ont. C.A.), at para. 45, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 531; Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461, 294 O.A.C. 293, at para. 25; Ontario v. Lipsitz, 2011 ONCA 466, 281 O.A.C. 67, at para. 114, leave to appeal refused, [2011] S.C.C.A. No. 407; Armitage v. Brantford General Hospital (2004), 2004 CanLII 32184 (ON SC), 71 O.R. (3d) 44 (S.C.), at para. 29.

[49] As well, Dr. Goldstein’s undertakings, while they may have been made in response to a decision or order covered by s. 36(3), are also not themselves either a decision or order captured by s. 36(3). The undertakings were generated by Dr. Goldstein himself, not by the board, and presumably were also generated after the board had completed its process and released its decision. The rationale that applies to keeping the other items listed in s. 36(3) confidential does not apply to them. Public undertakings are not meant to be confidential, they provide the public with notice, and their admission in civil proceedings where a trial judge deems them relevant does not undermine the purpose of s. 36(3), discussed below. We therefore agree with the trial judge that the undertakings themselves were admissible.

[50] However, we respectfully disagree with the trial judge’s conclusion that all proceedings involving the best interests of the child are not civil proceedings and entirely evade the reach of s. 36(3) of the RHPA. In our view, an exemption for all family law cases goes too far.

[51] First, private family law disputes, while distinct from other civil litigation in many respects, are “civil” proceedings in the ordinary sense of the word: they concern private relations between members of the community in contrast to criminal or child protection proceedings, which both involve state action. If the legislature had intended to exempt family law litigation from the reach of s. 36(3), it would have said so.

[52] As this court explained in Sutherland, at para. 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.
[53] The “broad objective” of the provision “is to keep College proceedings and civil proceedings separate”: Sutherland, at para. 31; see also Lipsitz, at paras. 101-3.

[54] A global exemption to s. 36(3) for all family law cases would significantly erode the reach and purpose of s. 36(3). This is because unfortunately, family law disputes involving the best interests of children are fairly common. It would not be unusual for one of the many participants in an RHPA proceeding to at some point become involved in a family law proceeding involving the best interests of children.

[55] Fortunately, it is possible to preserve the integrity and purpose of s. 36(3) of the RHPA while also giving effect to the purpose of Part III of the CLRA, which includes ensuring, “that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children” and to s. 30 of the CLRA, under which Dr. Goldstein’s report was prepared, the purpose of which is to “report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.”

[56] The trial judge was aware of the need to avoid absurdity in the context of these two distinct legislative schemes. Specifically, the trial judge was appropriately concerned that in the circumstances of this case, where a motion judge had relied on Dr. Goldstein’s opinions in finding parental alienation by the mother, which in turn resulted in a reversal of custody and a temporary order that lasted for more than six years, the court should not be deprived of highly probative evidence regarding the validity of those opinions and recommendations.

[57] However, absurdity is avoided and the ordinary meaning of s. 36(3) preserved in two ways. First, although it is indisputable that increased efficiency could be achieved by allowing for the admissibility in family law proceedings of “orders or decisions made” at a proceeding governed by the RHPA, or “a report, document or thing prepared for or statement given at [an RHPA governed] proceeding”, s. 36(3) does not create an evidentiary privilege relating to the information or evidence used to prepare such orders, decisions, reports, documents, things or statements. There is nothing to prevent the parties from selecting and presenting such background evidence or information so that a trial judge is not deprived of highly probative evidence regarding the validity of relevant opinions and recommendations. Second, and as already explained, s. 36(3) does not apply to the fact that the complaint was made, the fact that an investigation was conducted, and the fact that a board decision was rendered and undertakings given. As this case demonstrates, depending on the circumstances those “facts” may be relevant when determining the probative value to give to opinions and recommendations. When these limitations on the reach of s. 36(3) are considered, “harmony [can be achieved] between the various statutes enacted by the same government”: Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3, at para. 121; Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc., 2021 ONCA 925, at para. 28.


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