Appeal court clarifies admissibility of health professional regulatory proceedings into civil context
This article was produced in partnership with Bogoroch & Associates LLP.
A recent decision out of the Court of Appeal considers the correct interpretation of s. 36(3) of the Regulated Health Professions Act (RHPA) and creates an opportunity for plaintiffs to introduce select findings from health professional regulatory proceedings into the civil context, serving as another record for their case.
“K.K. v. M.M. may provide some leeway for plaintiffs, and there's a lot of evidentiary value to that,” says Mahsa Dabirian, partner at Bogoroch & Associates LLP. “It will be interesting to see how the courts will interpret the principles in the decision and whether there will be more flexibility in allowing evidence whose admissibility has previously been prohibited.”
Oftentimes, clients not only start a civil medical malpractice but also file a complaint against their physician with the College of Physicians and Surgeons of Ontario (CPSO). The CPSO performs an investigation and renders a decision, which could take many forms such as requiring the physician undertake to refrain from performing a medical procedure, to undergo further training and education, to work under a reviewer, to have patient files audited periodically and in rare circumstances, revocation of the physician’s licence to practice medicine. In the civil context, the reports, documents, records and decisions arising from a CPSO complaint are inadmissible in the lawsuit, as legislated in s. 36(3) of the RHPA. One rationale is to avoid health professionals from being reluctant to participate in the investigative process because it could be used against them in a civil proceeding.
K.K. v. M.M. is a family law case proceeding where the pre-trial judge awarded custody of the children to the father after relying on the report of an assessor, Dr. Sol Goldstein, who opined that there was parental alienation by the mother. At trial, Dr. Goldstein was summoned to testify, but he did not attend. The father attempted to admit Dr. Goldstein’s report and requested that the trial judge give weight to his opinion.
The mother objected to the admissibility of Dr. Goldstein’s reports and argued they should be given no weight if admitted, based on the findings of the CPSO arising from complaints filed against him. She sought to admit a copy of the decision from the CPSO and printout of the public register indicating that Dr. Goldstein gave undertakings to refrain from conducting assessments regarding parental alienation. The father objected to admitting these findings citing, s. 36(3) of the RHPA, which prohibits records of regulatory proceedings at the CPSO and decisions made therein from being used in civil proceedings.
“Interestingly, the trial judge found that the prohibition in s. 36(3) did not apply to family law proceedings and that Dr. Goldstein’s opinions would not be considered, largely because the CPSO undertaking was public. If the evidence was excluded, the mother would have had to adduce expert evidence to prove the deficiencies in Dr. Goldstein’s report, causing unnecessary delay and expense,” says Dabirian.
On appeal, the father alleged that the trial judge failed to consider the recommendations of Dr. Goldstein meaningfully.
The Ontario Court of Appeal clarified that a plain reading of s. 36(3) creates a blanket, non-discretionary prohibition against the admissibility of the documents specifically legislated, such as any report, document, statement, order or decision – all of which are inadmissible in a civil proceeding.
“However, exempted is anything from a CPSO investigation that is not specifically legislated, which could be admissible. Thus, the Court of Appeal affirmed the trial judge’s decision and noted that the legislation did not specifically prevent reference to the fact that a complaint was launched, investigation held, or undertaking given by the health professional, and this may be provable in Court without reference to a prohibited document. The Court of Appeal also noted the trial judge erred in concluding that a family law proceeding is not a civil proceeding as contemplated by the RHPA,” says Dabirian.
One element Dabirian found interesting was the fact that the physician gave undertakings to not perform certain assessments. The Court of Appeal noted that public undertakings are not meant to be confidential. They provide the public with notice, and their admission in civil proceedings where a trial judge deems them relevant does not undermine the purpose of section 36(3).
“This is important because relevant evidence should not be ignored by a trial judge. Allowing the trial judge to be aware of highly probative evidence regarding the validity of relevant opinions and recommendations is crucial. Judges can otherwise never learn that a health professional was previously warned about their practice, especially if it directly impacts the case at hand,” says Dabirian.
“As parallel civil proceedings based on similar facts underlying a College matter are very common, this case provides meaningful guidance of managing evidentiary issues relating parallel proceedings. It will be interesting to see if this case will pave the way for Courts to be more willing to admit evidence that otherwise would have been held to be inadmissible.”
