by Mina Karabit April 27, 2022 6 min read

Several legislative provisions in the Regulated Health Professions Act, 1991 (RHPA)are aimed at keeping college and civil proceedings separate. For example, section 36(1) provides for the confidentiality of information that comes to the knowledge of college employees. Section 36(2)stipulates that college employees cannot be compelled to testify in civil proceedings about matters that come to their knowledge during their duties.

Section 36(3) makes documents and records of regulatory proceedings and decisions made in them inadmissible in civil proceedings. As the Court of Appeal for Ontario explained over 20 years ago in F. (M.) v. Dr. Sutherland, the purpose of section 36(3) is to encourage reporting of complaints of professional misconduct against members of health professions and to ensure those complaints are thoroughly investigated and fairly decided without any participant in the proceedings fearing that the document could be then used in a civil action. The Court explained that without the absolute protection given by section 36(3), patients might be discouraged from, not encouraged to, report certain sensitive complaints like instances of sexual abuse.

The Court of Appeal for Ontario recently revisited the limits of section 36(3) in K.K. v. M.M. – a child custody matter. The decision highlights the need for regulated health professionals to be vigilant with respect to what undertakings they give and when during a college proceeding.

In K.K. v. M.M, before the trial, the father was granted sole custody of the children based on an interim finding of a motion judge of parental alienation by the mother. The motion judge relied on the expert evidence of a court-appointed assessor, Dr. Goldstein, under the Children’s Law Reform Act (CLRA). Dr. Goldstein expressed the view that one of the children’s mental health was being seriously compromised by the respondent’s influence and recommended the immediate removal of the children from the mother’s care.

The Trial Judge’s Decision

At trial, the father intended to call Dr. Goldstein as a witness to testify about the assessment he was appointed to conduct. Despite being served with a summons to attend, Dr. Goldstein did not appear for trial. Instead of asking for an order from the trial judge to compel attendance, the father sought to admit Dr. Goldstein’s reports into evidence. He asked the trial judge to give weight to the opinions and recommendations contained in them.

The mother objected to the admissibility of Dr. Goldstein’s assessment reports and letters based on the College of Physicians and Surgeons of Ontario’s (CPSO) findings arising from complaints she filed against him. The mother sought to admit a copy of the Inquiries, Complaints and Reports Committee’s (ICRC) decision on one of her complaints. The decision set out how the ICRC had serious concerns about his approach to his assessments in this case, and he would benefit from remediation.

She also sought to admit copies of the documents put before the ICRC committee and a printout of the CPSO’s online public register indicating Dr. Goldstein’s member status and his undertakings to the Discipline Committee. The public undertakings restricted Dr. Goldstein’s practice. He undertook not to conduct any new assessments of individuals he believes have been subject to or have engaged in parental alienation and to terminate any ongoing practice related to parental alienation. He also undertook not to provide opinion evidence about parental alienation to any third-party regarding individuals he assessed or treated, except as required by law, in which case he was to advise the relevant parties to consult the CPSO’s public register.

The father objected to the introduction of the material, citing section 36(3) of the RHPA.

The trial judge held that the prohibition did not apply in this case. She admitted the ICRC’s decision. Given their findings that the assessments were conducted sub-standardly, she gave no weight to Dr. Goldstein’s written opinions or recommendations. She also noted that in the alternative, had she not admitted the ICRC decision, she still would not have relied on Dr. Goldstein’s opinions unless the father produced Dr. Goldstein for cross-examination, which he was unable to do. 

The trial judge noted that the statutory prohibition did not render inadmissible the fact that a complaint was made and did not capture the website information referring to the undertakings given by Dr. Goldstein.

The trial judge also proceeded to determine whether the case before her fell within the meaning of a ‘civil proceeding,” thus engaging the prohibition of section 36(3). The trial judge drew distinctions between ‘traditional’ civil proceedings and family law litigation, namely the interests at play and remedies available. The trial judge found that to consider the case as a “civil proceeding” would yield an absurd result contrary to the legislature’s intention. Upholding the prohibition would require her to ignore the ICRC’s findings, forcing the mother to duplicate the CPSO proceeding by calling expert evidence and proving deficiencies, resulting in more delay and expense in the litigation. Upholding the prohibition would mean determining the children’s best interests without reference to highly probative evidence about the validity of the opinions expressed by the court-appointed assessor.

The father appealed several of the trial judge’s findings to the Court of Appeal. He submitted that the trial judge erred in treating section 36(3) of the RHPA as inapplicable. He argued that the trial judge erred in concluding that a family law proceeding is not a civil proceeding as contemplated by the RHPA and that the decision to admit the CPSO material stained her decision. She erroneously gave no weight to the assessor’s opinion or recommendations.

The Court of Appeal of Ontario’s Decision  

The Court of Appeal for Ontario upheld the trial judge’s decision. The fact of the complaint, the fact that an investigation was conducted and a decision given, and the content of the public undertakings were all admissible and sufficient to support the decision to give Dr. Goldstein’s opinions no weight.

The Court noted that on a plain reading, the 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.

The Court went on to clarify that anything not specifically mentioned is fair game. The statutory prohibition did not preclude the 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. The fact that a complaint was launched, an investigation was held, and a decision rendered by the ICRC were not covered by section 36(3) and may be otherwise provable in court without reference to a prohibited document.

Similarly, Dr. Goldstein’s undertakings are not a decision or order captured by section 36(3), although they may have been made in response to a decision or order covered by section 36(3). The Court noted that Dr. Goldstein generated the undertakings himself and they presumably were also generated after the college completed its process and released its decision. Given that the undertakings are meant to provide the public with notice, the rationale for keeping the other items in section 36(3) confidential does not apply to them.

While the Court of Appeal for Ontario agreed with the trial judge that the undertakings themselves were admissible, it disagreed with the trial judge’s conclusion that all proceedings involving the best interests of the child are not civil proceedings entirely evading the reach of section 36(3) of the RHPA. An exemption for all family law cases goes too far.

The Court noted that while family law disputes may be distinct from other civil litigation in many respects, they are still “civil” proceedings as they concern private relations between individuals in contrast to criminal or child protection proceedings that involve state action. A global exemption to section 36(3) for allfamily law cases would erode the broad objective of the provision to keep college and civil proceedings separate. It would not be unimaginable to think that one of the participants in a college proceeding would become, at some point, involved in a family law proceeding involving the best interests of children.

Preserving the integrity and purpose of section 36(3) of the RHPA while giving effect to the CLRA was possible. The trial judge was appropriately concerned that the court should not be deprived of highly probative evidence regarding the validity of Dr. Goldstein’s opinion and recommendations that led to the father having custody of the children for more than six years.

The Court of Appeal noted that while increased efficiency could be achieved by allowing for the admissibility in family law proceedings of orders or decisions made at a college proceeding, section 36(3) does not create an evidentiary privilege relating to the information or evidence used to prepare these orders, decision, etc. Parties are not prevented from selecting and presenting background evidence or information so that a trial judge is not deprived of highly probative evidence regarding the validity of relevant opinions and recommendations. Moreover, section 36(3) does not apply to the fact that an investigation was conducted, a decision was rendered, and undertakings were given.


NOTE: At Wise Health Law we have extensive experience in assisting health professionals with college and civil proceedings. Please contact us to see if we can assist you.  

To learn more about Wise Health Law and our services, please contact us!

Also in Blog

Regulated Health Professionals can be Held Accountable for Business Practices
Regulated Health Professionals can be Held Accountable for Business Practices

by Mina Karabit April 20, 2024 2 min read

The Divisional Court confirms that Colleges can have jurisdiction to consider the business practices of regulated health professionals.
Two physicians discussing licence revocation due to conduct during COVID-19 pandemic
Conduct During the COVID-19 Pandemic Results in Licence Revocation

by Mina Karabit March 12, 2024 4 min read

CPSO revokes physician’s certificate of registration revoked based on findings he was unprofessional, incompetent and ungovernable during the pandemic.
Limits on Physician Access to Hospital Records Even in the Face of Malpractice Litigation
Limits on Physician Access to Hospital Records Even in the Face of Malpractice Litigation

by Mina Karabit November 29, 2023 5 min read

Physicians should not access hospital records, even to defend malpractice litigation.