by Mina Karabit August 20, 2022 4 min read

Facing a disciplinary proceeding at one’s College can be a stressful experience, especially as one’s reputation and licence are “on the line.” As tempting as it may be to take legal action against the College in the heat of the moment, it is often an ill-advised course of action. A recent decision from the Superior Court of Justice highlights why bringing action against a regulatory College is difficult and unlikely to succeed.

Background Facts

In Savic v. College of Physicians and Surgeons of Ontario, a physician commenced an action against his College — College of Physicians and Surgeons of Ontario. The Plaintiff had been the subject of multiple investigations and disciplinary matters since 2008 that ultimately ended in revocation of his licence to practice medicine.

His Amended Statement of Claim pleaded two causes of action: abuse of process and intentional inflection of mental distress. He claimed that the College, through its officials, committees, prosecutors, and tribunals, acted in bad faith and pursued the Plaintiff out of malice or personal vendetta. He argued that all the hardships and harms that have befallen him — the loss of his medical licence, his livelihood, his investment into his practice, and the mental anguish he has had to live with — flow from the first complaint and the registrar’s consistent follow-through with more investigations and procedures being commenced.

The Plaintiff alleged that the first complaint against him by one of the College’s former registrars set everything in motion as the complainant was a personal friend of the then-current registrar. He argued that one interaction with the College, in particular, formed a key piece of evidence. The Plaintiff stated that in 2010, he attended a meeting with the College’s then registrar to discuss, in part, an undertaking that the Plaintiff had given to the College in respect of an earlier disciplinary proceeding against him. According to the Plaintiff, the registrar approached him, pointed his finger in the Plaintiff’s face, and said, “from now on, we are going to put you under microscopic scrutiny for the rest of your career… We are going to go after you, and eventually, we will get you.”

The Motion

The College brought a motion to dismiss the action under Rule 20.01(3) of the Rules of Civil Procedure or, alternatively, that the Statement of Claim, or large parts thereof, be struck under Rule 21.01 or Rule 25.11. The College’s position was that the Plaintiff’s claim raised no viable cause of action. Even if the cause of action were theoretically possible, it could never be proven due to an assortment of immunities and admissibility rules and was therefore frivolous and vexatious.

The Court’s Analysis

Ultimately, Justice Morgan agreed with the College that there was no serious issue to be tried, and summary judgment was granted in favour of the College.

In reaching its decision, the Court’s reasoning focused on two main areas: the inadmissibility of documents and the immunity afforded to quasi-judicial and adjudicative bodies, like the College.

The first roadblock to the Plaintiff’s claim was the inadmissibility of documents under section 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (RHPA). The provision constitutes an absolute bar to the admissibility of any documentary evidence emanating from the College’s complaints and discipline processes, and there is no exception for fraud or bad faith. As a result, the Plaintiff’s allegations that the College’s various proceedings against him result from malicious or abusive intent are incapable of proof, given that no documentary evidence could be adduced to support his claim. The Court found that a self-serving affidavit was insufficient evidence. Since the Plaintiff could not adduce evidence in support of his claim, there could be no triable issue.

Second, the RHPA contains good faith immunity provisions under section 38, providing a regulatory body with broad immunity for the regulator and its staff. The immunity is only circumvented where bad faith or malice can be proved. Proving bad faith or malice is no easy feat as the claims must “meet a stringent standard of particularity” and “a bald plea of malice is insufficient.”

In this case, the Plaintiff’s pleadings contained unparticularized allegations that he was subjected to frivolous and vexatious prosecution and were contrary to Rule 25.06(8) of the Rules. The Court noted that the idea that all of the steps in the multiple proceedings against Plaintiff were all done in bad faith “strains credibility to the breaking point.”

The proceedings related to investigations of public complaints or proceedings authorized by the College’s statutory committees. A single individual, i.e., a former registrar, cannot be blamed for a committee-authorized investigation, a Discipline Committee adjudicative decision, and two decisions of the Divisional Court. Allowing the claim to proceed would authorize a collateral attack on the completed proceedings.  

Take Away

When a regulatory College complies with the applicable statutes, it will have statutory immunity unless it acts in bad faith. Unless there is specific and particularized evidence of malice, a claim against a regulatory body will likely fail. An assertion without evidence will not suffice. Failing to meet the high threshold will result in a dismissal of a claim, which can be a financially costly experience.

Note: Nothing in this blog post constitutes legal advice. Please contact us for guidance on how to proceed if you are facing a College investigation or disciplinary proceeding as we may be able to help.



Also in Blog

Striking a Jury Notice in Malpractice Actions
Striking a Jury Notice in Malpractice Actions

by Victoria Tremblett November 30, 2022 4 min read

A party may choose a jury trial by delivering a Jury Notice. The opposing party may move to strike the notice if it is not delivered in time or if a jury is inappropriate.
Out with Fax Machines – The Shift to Digital Healthcare
Out with Fax Machines – The Shift to Digital Healthcare

by Mina Karabit November 24, 2022 3 min read

Healthcare organizations and providers need to adopt modern and secure methods to communicate and transmit sensitive personal data.

Pay Equity for Midwives
Pay Equity for Midwives

by Victoria Tremblett November 17, 2022 4 min read

Litigation between the Association of Ontario Midwives and the Ministry of Health re gender discrimination and pay equity has finally come to a close.