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Medical Professionals (RHPA) - Psychologists. Peterson v. College of Psychologists of Ontario
In Peterson v. College of Psychologists of Ontario (Div Court, 2023) the Divisional Court considered Charter s.2(b) expressive freedom issues in a judicial review of a regulatory order (here, from the College of Psychologists) that imposed a 'specified continuing education or remedial program' ('SCERP') on a member in relation to social media statements. Note that such orders are not viewed as ones of 'professional discipline, but more ones of maintaining professionalism - particularly wrt non-clinical public statements. They tends to have a much more persuasive (even educational) nature, and in these days of social media, culture wars and COVID they are often quite 'political'.
In these quotes the court reviews the Dore/Loyola doctrine of balancing Charter freedoms in with the administrative mandate of the Psychology Act, 1991, and their interaction with JR standard of review deference ('reasonableness'):Doré and Vavilov – the legal framework
[30] In Doré, the Supreme Court addressed the question of “how to protect Charter guarantees and the values they reflect in the context of adjudicated administrative decisions.” (para. 3.) As the Court elaborated in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293, at para. 57 ("Trinity Western"), the Doré framework is "concerned with ensuring that Charter protections are upheld to the fullest extent possible given the statutory objectives within a particular administrative context."
[31] This requires an administrative decision-maker, such as the ICRC, to proportionately balance Charter rights and values and its statutory objectives. This is a highly contextual inquiry. A decision-maker must first consider the statutory objectives it is seeking to uphold, and then, secondly, “ask how the Charter value at issue will best be protected in view of the statutory objectives.” This requires conducting a proportionality exercise, balancing “the severity of the interference of the Charter protection with the statutory objectives.” However, as with the proportionality test under s. 1 of the Charter, which will be met if the measure falls within a range of reasonable alternatives, “in the context of a review of an administrative decision for reasonableness, … decision-makers are entitled to a measure of deference so long as the decision…‘falls within a range of possible, acceptable outcomes’.” (Doré at para. 56)
[32] The Supreme Court elaborated on the Doré framework in Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 ("Loyola"), and Trinity Western, observing that the Doré approach is not to be a “watered-down version of proportionality”, but is to be “robust.” On an application for judicial review, therefore, the role of the Court is to ensure that the administrative decision-maker “proportionately” balanced the impact on Charter rights and the statutory objectives which “gives effect, as fully as possible to the Charter protections at stake given the particular statutory mandate” (Loyola, at para. 39).” As the Court stated in Trinity Western at para. 80:Put another way, the Charter protection must be “affected as little as reasonably possible” in light of the applicable statutory objectives (Loyola, at para. 40). When a decision engages the Charter, reasonableness and proportionality become synonymous. Simply put, a decision that has a disproportionate impact on Charter rights is not reasonable. [33] However, it is also clear that the Doré approach still requires deference. A reviewing court need not agree with the outcome, as that would impose a standard of correctness; nor must a decision-maker “choose the option that limits the Charter protection least”; rather, the question is “always whether the decision falls within a range of reasonable outcomes.” (Trinity Western, at para. 81). As Abella J. put it at para. 58 of Doré: “If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable.”
[34] Vavilov does not change the standard of review which remains, clearly, a test of reasonableness, showing deference to, and respect for, decision-makers and their specialized expertise. Rather, Vavilov focuses the reviewing court on “the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome.” As the Court continued at para. 83:The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem. [35] A reasonable decision, we are told in Vavilov at para. 85, “is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.” However, reasons “must not be assessed against a standard of perfection”, they need not include all arguments, nor should they “always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge.” As the Court put it, “‘Administrative justice’ will not always look like ‘judicial justice’ and reviewing courts must remain acutely aware of that fact.” (Vavilov, at paras. 91 -92)
[36] Reasons must be read “in light of the history and context of the proceedings in which they were rendered”, including the evidence and submissions of the parties. As the Court continued at para. 94 of Vavilov, “[t]his may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency.”
[37] Further, the degree of justification found in reasons, like reasonableness review itself, must reflect the stakes of the decision. As the Court stated at para. 133 of Vavilov:Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood. At paras 38-49 the court applies the case facts to this law, and then continues:[50] High standards are imposed on members of the College of Psychologists who, like members of other regulated professions, take on responsibilities to their profession and to the public. As the Supreme Court observed in Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 SCR 513, at para. 36, “[t]he importance of monitoring competence and supervising the conduct of professionals stems from the extent to which the public places trust in them.”
[51] Even when “off duty”, courts have recognized that members of regulated professions can still harm public trust and confidence in their profession by their statements and conduct. As the British Columbia Court of Appeal put it in Kempling v. British Columbia College of Teachers, 2005 BCCA 327, 255 DLR (4th) 169, at para. 43, citing the Supreme Court in Ross: “When a teacher makes public statements espousing discriminatory views, and when such views are linked to his or her professional position as a teacher, harm to the integrity of the school system is a necessary result.”
[52] A similar situation arose recently in Pitter v. College of Nurses of Ontario and Alviano v. College of Nurses of Ontario, 2022 ONSC 5513, 164 OR (3d) 433, in which two nurses spoke out on social media and at a public gathering against masks and vaccines during the COVID-19 pandemic. Both identified themselves as registered nurses. The College of Nurses’ ICRC identified concerns with certain statements which were misleading and spread what could be dangerous misinformation. As this Court held, at para. 14:Given its statutory mandate, it was reasonable for the ICRC to be concerned about the Applicants’ statements. As the committee noted, in their public statements, both Applicants identified themselves as health professionals. Ms. Pitter publicly identified herself as a nurse practitioner and Ms. Alviano publicly identified herself as a registered nurse. This not only put the public at risk of being guided by false information, but also risked impacting the reputation of the profession. [53] In Pitter, the Court upheld the ICRC’s direction that the nurses be cautioned and attend remedial education through a SCERP.
[54] Many other professional discipline cases have involved situations in which a member’s misconduct in their personal life, or outside the immediate context of practising their profession, has nevertheless resulted in regulatory action. As observed by Copeland J. (as she then was) in Dr. Jha at para. 119:It is well-established that actions of members of a profession in their private lives may in some cases be relevant to and have an impact on their professional lives – including where the conduct is not consistent with the core values of a profession and/or where there is a need for a regulated profession to maintain confidence of the public in the profession and not be seen to condone certain types of conduct by its members: Wigglesworth at pp. 562-563; Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420 at paras 97-98; Re Cwinn and Law Society of Upper Canada (1980), 1980 CanLII 1694 (ON SC), 1980 CanLII 1964, 28 O.R. (2d) 61 (Div. Ct.), leave to appeal refused 28 O.R. (2d) 61n (C.A.); Adams v. Law Society of Alberta, 2000 ABCA 240, 82 Alta. L.R. (3d) 21. [55] Like the legal profession, the health professions recognize limitations on free expression to maintain "boundaries of civility" and professionalism: Ontario (College of Physicians and Surgeons of Ontario) v. Waddell, 2020 ONCPSD 9; Rathe v. College of Physicians and Surgeons of Ontario, 2013 ONSC 821; Ontario (College of Physicians and Surgeons of Ontario) v. Wright, 2018 ONCPSD 19.
[56] Here, the Panel of the College of Psychologists’ ICRC – an expert body - reviewed its Code and Standards and expressed concern that Dr. Peterson’s public statements, insofar as they contained degrading and demeaning language, may be inconsistent with its professional standards and could undermine public trust in the profession. The court continues with the Charter balancing - in light of the statutory objects of the Psychology Act, 1991 [paras 57-67] and the Vavilov 'reasonableness' JR standard of review [paras 68-76]. The case attracted a lot of media attention.
. Schuur v Sas
In Schuur v Sas (Div Court, 2023) the Divisional Court considered a judicial review of an HSARB disclosure order to only release a heavily redacted ICRC ['Inquiries, Complaints, and Reports Committee'] record of a complaint to the College of Psychologists.
In these quotes the court considered that the procedural fairness to be accorded a complainant is less that that to be accorded a professional, here a psychologist::iii. The Disclosure Order and Motion to Vary
[16] On 9 March 2020, the Applicant requested a review of the ICRC decision by the HPARB. In her request, the Applicant alleged deficiencies in the ICRC’s information gathering process and complained that she had never received a copy of Dr. Sas’s response to the complaint.
[17] On 24 February 2021, the HPARB made a disclosure order with respect to the ICRC’s Record of Investigation and any other documents the ICRC utilized in making its decision to the parties to the review. However, the HPARB ordered that pursuant to s. 32(3) of the Health Professions Procedural Code (being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18) (the “Code”), the Applicant was only entitled to a redacted version of the record containing approximately 92 unredacted pages of a total of 2,464 pages. The HPARB’s Disclosure Order noted that the redacted pages contained the personal health information of people not party of the complaint review process, and no consent was received to release the information. The relevant personal health information included that of the Applicant’s two children.
[18] Section 32(3)(c) of the Code provides:Exceptions
(3) The Board may refuse to disclose anything that may, in its opinion,
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(c) disclose financial or personal or other matters of such a nature that the desirability of avoiding their disclosure in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that disclosure be made; [19] The HPARB found that the confidentiality interests of the persons affected by disclosing their personal health information outweighed the desirability of adhering to the principle that full disclosure be made.
[20] On 5 April 2021, the Applicant provided the HPARB with signed consents for the release of the personal health information of her minor children. The HPARB did not change its position.
[21] On 5 May 2021, the Applicant filed a motion to vary the Disclosure Order and asked that the Record of Investigation be reproduced to her without the redactions, including the three USB keys that had documents/media the ICRC used in its determinations. Dr. Sas opposed the motion. The HPARB declined to vary or set aside the Disclosure Order because of the privacy interests of the children, and because the Record of Investigation contains court materials. Mitrow J. had issued endorsements restricting the Applicant’s access to litigation materials, as well as limiting Dr. Sas’s involvement in the family law litigation. The HPARB found the motion to vary was an attempt to obtain the documents which were specifically restricted by the court. Dr. Sas will be called to testify in the Applicant and her ex-partner’s four-year family litigation, and the HPARB found the proper forum to contest the findings of Dr. Sas was in court.
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[23] The HPARB found that the investigation need not be exhaustive to be adequate. The Applicant argued that she should have been provided with Dr. Sas’s response and that she should have been able to respond to it. The HPARB rejected this and noted that the procedural fairness owed to a complainant is more limited than that owed to the regulated health professional under investigation. The ICRC is required to provide a certain minimum disclosure to a complainant. Beyond that, the ICRC has discretion in ordering disclosure as circumscribed by s. 32. The HPARB was not persuaded that the ICRC would have come to a different conclusion had it received the Applicant’s comments about Dr. Sas’s response. The HPARB determined the decision was reasonable as the ICRC considered the materials before it, applied its own knowledge relating to the standards of the profession and applied its own expertise to interpret the Record.
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[34] It is well recognized that under s. 32(3) of the Code, the HPARB has differing disclosure obligations as between complainants and members being investigated. The disclosure obligation to a complainant is lower than that to the member complained about. The complainant is not at risk of the loss of any profession or occupation, nor is his right to bring an action for malpractice affected in any way. Because the stakes for the complainant are very low, the disclosure duty to him or her is commensurately low, subject to the other factors in Baker (see Walker, at paras. 14-16; Silverthorne, at para. 13).
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