Chipping Away at the Regulatory Privilege

Over two decades ago, the Court of Appeal for Ontario issued a comprehensive decision protecting information obtained or used by health regulators from being used in civil proceedings: F. (M.) v. Dr. Sutherland, 2000 CanLII 5761 (ON CA), https://canlii.ca/t/1cwt9. In Ontario, that protection is set out in section 36(3) of the Regulated Health Professions Act, 1991 or the RHPA. A prime rationale for that protection was to encourage candid cooperation by practitioners with the regulator’s complaints and discipline processes without fear that the information provided would be used to sue them. Another equally important rationale was to permit regulators to obtain, use, and discuss this information without a concern that they were affecting civil proceedings. A third rationale was to prevent the complaints and discipline processes from being used for a collateral purpose such as advancing a civil claim in the courts.

A recent decision of that same Court appears to qualify that protection somewhat. K.K. v. M.M., 2022 ONCA 72 (CanLII), https://canlii.ca/t/jm07l, was a child custody case. A major consideration in that dispute was an expert report by a physician that strongly favoured one side over the other. In challenging the written opinion, one of the parties sought to introduce materials from the physician’s regulator’s complaints process where the regulator expressed significant concerns about the physician’s approach to the expert report that had been prepared in the custody proceedings. The physician gave an undertaking to address those concerns, which was posted on the regulator’s website.

The Court upheld the general principle that the legislation regulating health practitioners in Ontario (and specifically section 36(3) of the RHPA) created

… 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.

However, the Court qualified that protection as follows:

… anything not specifically mentioned is fair game. As mentioned, the trial judge noted that the statutory prohibition did not preclude 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. We agree. The law is clear that the fact that a complaint was launched, an investigation held, and a decision rendered by the [complaints committee] are not covered by s. 36(3) of the RHPA and may be otherwise provable in court, without reference to a prohibited document ….

As well, Dr. Goldstein’s undertakings, while they may have been made in response to a decision or order covered by s. 36(3), are also not themselves either a decision or order captured by s. 36(3). The undertakings were generated by Dr. Goldstein himself, not by the board, and presumably were also generated after the board had completed its process and released its decision. The rationale that applies to keeping the other items listed in s. 36(3) confidential does not apply to them. 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 s. 36(3), discussed below. We therefore agree with the trial judge that the undertakings themselves were admissible.

In fact, most undertakings given by practitioners are given to regulators before any decision is made on a complaint. The reason a practitioner gives an undertaking is often to demonstrate insight and the ability to change one’s practices to avoid a more significant outcome. This decision may make it more difficult for regulators to negotiate undertakings with practitioners.

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