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Medical Professionals (RHPA) - Immunity [RHPA s.38]. Yan v. Hutchinson
In Yan v. Hutchinson (Ont CA, 2023) the Court of Appeal reviews the immunity provisions of s.38 of the RHPA:[13] Second, s. 38 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“RHPA”) provides general immunity to the College and all participants in disciplinary proceedings. Under the heading “Immunity”, s. 38 provides:38 No action or other proceeding for damages shall be instituted against the Crown, the Minister, a College supervisor appointed under section 5.0.1 or his or her staff, an employee of the Crown, a College, a Council, or a member, officer, employee, agent or appointee of a College, a Council, a committee of a Council or a panel of a committee of a Council for an act done in good faith in the performance or intended performance of a duty or in the exercise or the intended exercise of a power under this Act, a health profession Act, the Drug and Pharmacies Regulation Act or a regulation or a by-law under those Acts or for any neglect or default in the performance or exercise in good faith of the duty or power. [14] The appellant’s claims are barred by s. 38 of the RHPA. The motion judge correctly found that no allegations of bad faith were particularized in the statements of claim that could defeat this immunity, relying on Conroy v. College of Physicians & Surgeons (Ontario), 2011 ONSC 324, 329 D.L.R. (4th) 689, at para. 68, aff’d 2011 ONCA 517, leave to appeal refused, [2011] S.C.C.A. No. 403. Ms. Yan’s statements of claim against the individual investigators make no allegations of bad faith. Two of the five of the statements of claim, those against counsel for the College in the disciplinary proceeding, Mr. McKechney, and independent legal counsel to the Discipline Committee, Mr. Marrocco, make only bald allegations of bad faith. The claims do not otherwise contain any particulars to support the allegation that counsel for the College acted improperly or in bad faith, nor could the pleaded factual circumstances of this case support a claim for bad faith.
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[20] Even if the appellant were permitted to raise these new causes of action on appeal, it is plain and obvious that they cannot succeed. All of the alleged causes of action are barred by s. 38 of the RHPA. The appellant does not allege or particularize allegations of bad faith. We agree with the respondents Ms. Yee and Mr. Hutchinson that any suggestion that the appellant’s Charter rights are violated by the immunity created by s. 38 of the RHPA or the College disciplinary process is more properly a challenge to the statutory scheme, not the respondents in these appeals. The causes of action relating to the tort of internet harassment and the tort of intentional infliction of mental suffering are also derivative of the defamation claims, because they appear to attack the publication of the disciplinary decision. These claims are also covered by absolute privilege.
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