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RHPA - Policy Advisories. Casella v. Ontario (College of Chiropodists)
In Casella v. Ontario (College of Chiropodists) (Div Court, 2024) the Divisional Court considers an HPPC s.70(1-2) appeal from a misconduct finding of the "Discipline Committee (the “Committee”) of the College of Chiropodists of Ontario". Here, the court considers a form of 'policy directive', which are taking on a greater (and poorly governed) role in administrative tribunal proceedings - and it's role in this disciplinary context:The College’s Discontinuation of Services Advisory
8. The College’s Discontinuation of Services Advisory, which was posted on the College’s website, provided members with guidance on the steps required to close their practices, including in circumstances related to licence revocations and suspensions. This included notification to patients regarding the closure of the practice and the transfer of records and patients to another member of the profession. The Advisory also reminds persons who are suspended that they are not permitted to say that they are a member of the College and/or use the title “chiropodists” or “podiarists” and that this is an offence under the Chiropody Act, 1991, S.O 1991, c. 20. The Appellant’s evidence is that he did not consult the Advisory on being suspended.
9. Shortly after the Appellant’s first suspension terminated, the College adopted Suspension Guidelines which state, among other things, that a suspended member must not benefit or profit from the practice of chiropody. The Deputy Registrar, Meghan Clarke, testified at the hearing that Suspension Guidelines were adopted because there was a need to clarify for members who were suspended “what practicing meant and what they could do and could not do in their hiring a locum”. Ms. Clarke’s undisputed evidence was that the Guidelines merely set out the College’s expectations for conduct during a suspension; it did not alter members’ existing obligations or the College’s interpretation of those obligations prior to its adoption, which that College says were the same as set out in the Guidelines.
10. The Appellant relies upon the fact that the Suspension Guidelines did not exist during his suspension and were only adopted three days after his first suspension terminated. His submission is that during his suspension, there was no prohibition on benefitting from the practice of chiropody and a suspension did not necessarily imply such a prohibition.
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32. The Committee acknowledged that the College did not have written suspension guidelines in place at the time of the Appellant’s suspension and that it therefore did not measure the Appellant’s conduct against the Guideline for Suspension approved after the completion of the Appellant’s suspension. The Committee also accepted that there was no specific guidance offered by the College at the time to clarify for the Appellant how and to what extent he could continue to use his corporation to maintain his clinic. However, it found that if he had any questions, he had resources available to him, including the College and his counsel. The College’s uncontradicted evidence, as noted above, was that the Guidelines merely formalized for members the options available to them: while suspended, the member either closes their practice or transfers the practice to a locum but is not permitted to profit or benefit from that engagement. . Chaban v. Royal College of Dental Surgeons of Ontario
In Chaban v. Royal College of Dental Surgeons of Ontario (Div Court, 2023) the Divisional Court considered the role of 'prevention advisories', here a form of policy assistance by the Royal College of Dental Surgeons of Ontario (here addressing the use of social media):The Committee Did not Err in Finding that Dr. Chaban Breached the Prevention Advisory
[33] The thrust of Dr. Chaban’s argument regarding the Prevention Advisory is two-fold. First, he states that it is aimed at sexual abuse. But there is no allegation, let alone evidence, that he committed any form of sexual abuse. Second, he states that the Prevention Advisory is intended to deal with a dentist’s behaviour towards their actual patients. But the Videos make no reference to any actual patients.
[34] Dr. Chaban’s claim of innocence regarding any sexual abuse is fair and uncontested. However, that is not determinative of the scope of the Prevention Advisory.
[35] The breadth of the Prevention Advisory is not limited to sexual abuse; it is far broader than that. It includes written communication and the maintenance of a professional working environment. It requires dentists to “maintain professionalism in their written communication, including content on websites and social media”.
[36] The Prevention Advisory specifically refers to the applicability of the Social Media Advisory. It states that “[i]napproriate use of social media or websites can harm your practice and your reputation”. In referring to the obligation to maintain a professional working environment, it requires dentists to ensure that their workplace “does not include sexually suggestive jokes, posters, pictures, and/or documents that could be offensive to patients or staff”.
[37] This obligation extends to the virtual realm as well. The Social Media Advisory states that “dentists are bound by ethical and professional obligations that extend beyond their clinics or offices. When you are online, you must follow the same rules of professional conduct that guide you at work” [emphasis added]. The Social Media Advisory adds that dentists must ensure that “content [they] upload to the internet does not hurt public confidence in the dental profession or compromise [their] professionalism.”
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