Canada: Stretching The Limits Of Statutory Interpretation: The Implications Of College Of Nurses Of Ontario v Mark Dumchin On The Jurisdiction Of Regulated Health Colleges Over Former Members

Co-authored by Natalie Carrothers, 2015-2016 Articling Student.

On April 4, 2016, the Divisional Court released its decision in College of Nurses of Ontario v Mark Dumchin[1]. The decision has significant implications for regulated health professionals engaged in proceedings before the discipline committees of the various regulated health colleges across the province. In short, Dumchin stands for the proposition that a discipline committee has the authority to revoke, suspend, or impose terms, conditions or limitations on a non-existent certificate of registration (for example, for a member whose certificate of registration has expired or been revoked).

It is important to note that Dumchin is the first judicial pronouncement on this issue. Until now, there has been no judicial authority on the matter; rather, the issue has been adjudicated in an ad hoc and rather confused manner by the discipline committees of the various regulated health colleges. Consequently, given the novel issue involved in this case, and the confusion that preceded it, Dumchin promised at last to provide a rigorous analysis and a clear, consistent line of judicial reasoning on the significant issues at play. Unfortunately, the decision is mired with confusing statements regarding the purpose and role of regulatory health colleges. In the end, Dumchin leaves the reader with more questions than answers.

The Decisions Below

Dumchin involved a hearing before a Panel of the Discipline Committee of the College of Nurses of Ontario. Although this decision is specific to the College of Nurses of Ontario, it is applicable to the discipline committees of the other regulated health colleges as a result of the Health Professions Procedural Code.[2]

At the time of the hearing, the Member had resigned his membership after having been found criminally guilty of possessing child pornography and making child pornography available in the form of a video file. Understandably, the Panel found that the acts in question constituted professional misconduct. College counsel submitted that the appropriate penalty was an oral reprimand and revocation of the Member's certificate of registration, should such a certificate of registration ever come to exist in the future. College counsel argued that revocation was warranted to ensure that the public was adequately protected and that public confidence in the College would be maintained, since the Member had resigned "by his own election" and was able to seek re-registration.

Independent Legal Counsel ("ILC") to the Committee advised that while the Panel has jurisdiction to order the Member to be reprimanded, the Panel did not have jurisdiction to order the Registrar to revoke, suspend and/or impose terms, conditions or limitations because the Member did not have a current certificate of registration; to do so would be to impose a prospective penalty. ILC noted that if the Member sought to return to the practice of nursing, he would be required to apply to the Registration Committee for reinstatement and the Registration Committee would have before it all the information regarding the Panel's findings of professional misconduct, including any comments by the Panel on the appropriate penalty that would have been ordered had the Member held an active certificate of registration.

After considering the submissions of ILC and the parties, the Panel concluded that it did not have jurisdiction to impose revocation on a non-existent certificate. It expressly rejected College Counsel's argument that the continuing jurisdiction of the College (pursuant to the Code) to investigate and adjudicate on matters referable to a time when a person was a member of the College extended so far as to permit the Committee to impose revocation on a non-existent certificate. Further, the Panel held that it could not set terms, limitations, and/or conditions on an inactive certificate of registration, as it was unable to impose limitations on re-registration, and trusted the judgment and authority of the Registration Committee in that respect.

The College of Nurses appealed the decision to the Divisional Court arguing that the Discipline Committee did in fact have the jurisdiction to order revocation even in circumstances where a member does not hold an active certificate of registration. The Federation of Health Regulatory Colleges of Ontario, a federation comprised of Ontario's health regulatory colleges, intervened to support the position advanced by the College of Nurses.

The Court agreed with the position of the College of Nurses and found that the Committee's interpretation of its governing statute was unreasonable, as it "failed to give effect to the statutory context in which the Committee's sanctioning powers exist, and failed to interpret them in a manner that was consistent with that context and the purpose of s. 14."[3] The germane portions of the Court's decision are as follows:

Section 14 makes a person who has resigned "subject to the jurisdiction of the College for professional misconduct." The only limitation on the College's continuing disciplinary jurisdiction is that the alleged conduct must be "referable to the time when the person was a member." If the legislature had intended to limit the College's express continuing disciplinary jurisdiction to restrict the range of available penalties, it would have done so clearly and unambiguously.[4]


The [Discipline Committee] panel's interpretation not only limits but removes the College's important sanctioning powers which include suspension and the imposition of conditions as well as revocation. ... To allow such an interpretation to stand is antithetical to the overarching public protection purposes of the statutory Disciplinary Regime: ensuring that members are held accountable to their regulator for the prime objective of protection of the public.[5]

Unanswered Questions

As set out above, the decision of the Divisional Court in Dumchin raises several questions. Pursuant to section 14 of the Code, the health regulatory colleges have continuing jurisdiction over former members to investigate, refer matters to the discipline committee and prosecute alleged misconduct that occurred while a person was a member. However, in Dumchin, the Divisional Court went further and held that this jurisdiction includes the authority to impose the entire range of penalties available, including those penalties that rely upon the existence of an active certificate of registration (revocation, suspension, and the imposition of terms, conditions, and limitations).

On account of Dumchin, former members facing disciplinary proceedings are subject to having their non-existent certificates of registration revoked, suspended or subject to terms, conditions and limitations. For example, a former member who has not held a certificate of registration for ten years could be ordered to undergo education and remediation in respect of professional misconduct committed during the time the person was a member. The fact that the former member may have retired, moved to another country or never intends to practice again is irrelevant.

This reasoning potentially creates a bizarre scenario that raises significant concerns. Unfortunately, the Court does little in its decision to address these concerns. Rather, its exercise in statutory interpretation raise more questions than answers.

First, the Court states that the relevant penalty provisions of the Code include the words "member" and "former member". This, in the Court's view, supports the interpretation that the Legislature intended to make former members subject to the same penalties as current members. This reasoning is troubling because the word "former" is not used at all within the relevant provision of the Code. What then do we make of the Court's conclusion? Perhaps it could be argued that the actual use of the word "former" is not required since section 14(1) of the Code extends jurisdiction over a person whose certificate of registration is revoked or expires or who resigns as a member. Yet this does not address the fundamental issue of the difference between a "person" and a "certificate of registration". Section 14(1) of the Code extends jurisdiction of a "person"; it does not say anything about jurisdiction over a non-existent "certificate of registration." The Court does not appear to have considered the implications of this subtle but significant distinction.

Second, the Court states that if the Legislature had intended to limit the College's express continuing disciplinary jurisdiction to restrict the range of available penalties, it would have done so clearly and unambiguously. However, it could also be reasoned that if the Legislature intended to extend the College's jurisdiction over non-existence certificates of registration, it could have done so clearly and unambiguously by stating that the panel may revoke a member's formerly held certificate of registration. This is precisely what it did in section 14(1) over persons who were previously members; and this is precisely what the Quebec Legislature did in its comparable legislation.

Third, the Court determines that the RHPA and the Code must be given a broad and purposive interpretation in keeping with the College's obligation to protect the public. This supports the view that the Discipline Committee has the jurisdiction to order the full range of penalties, regardless of the existence of a certificate of registration. In the Court's view, the alternative interpretation suggested by the Committee would lead to absurd results, such as the ability of a member to circumvent the penalty of revocation by resigning, and thereby undermine the College's ability to carry out its duties. However, the Court does not address the very conclusion by the Committee that the judgment and authority of the Registration Committee ought to be trusted. The Registration Committee is another body of each College created by statutory decree and can fulfil the duty to protect the public by refusing to grant a certificate of registration in any subsequent application.

Fourth, the Court interprets "certificate of registration" to mean the "entitlement to practice in a regulated profession." Why then is "certificate of registration" defined in section 1 of the RHPA as "a certificate of registration issued by the Registrar"? The Court does not answer this question. In fact, it does not even acknowledge the section 1 definition. Perhaps most important, if a health professional does not have an active certificate of registration, then they do not have an entitlement to practice in a regulated profession. The Court therefore leaves unanswered the same fundamental question: how can a non-existent entitlement be restricted, suspended, or revoked?

Finally, Dumchin raises questions about the Court's application of the reasonableness standard of review. The Court suggests that a higher standard (although still the reasonable standard) applies where the decision review is fundamentally one of statutory interpretation. Yet is it not squarely within the expertise of the Discipline Committee to determine how its regulatory body will best be able to fulfil its functions and duties? The reader is left with the distinct impression that a correctness standard has been applied despite the very nature of the decision urging deference.


The Divisional Court's decision in Dumchin has resulted in wide ranging implications and has left those affected by the decision with several unanswered questions, including "what exactly did the Legislature intend" and "will the Legislature seek to amend the Code to unambiguously state whether jurisdiction extends to the imposition of penalties against a non-existent certificate of registration?" Only time will tell whether the decision will stand the test of time.


[1] 2016 ONSC 626 [Dumchin].

[2] Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991 c18 [the Code], which is deemed by the Regulated Health Professions Act, 1991 [the RHPA] to be part of the legislation applying to each of the 26 health professions governed by the RHPA.

[3] Supra note 4 at para 44.

[4] Ibid at para 39.

[5] Ibid at para 42.

Originally published by Ontario Bar Association.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions