Canada: Alleged Acts of Sexual Abuse Pre-Bill 87: Will Bill 87 Apply?

Last Updated: March 6 2017
Article by Lara Kinkartz

Bill 87 (the "Bill"), which contains significant amendments to the Regulated Health Professions Act, 1991 ("RHPA"),1  passed first reading in the Ontario legislature in December 2016. Although the Bill is not yet law, if and when it is enacted, there will be some important changes to the way in which RHPA Colleges deal with allegations of sexual abuse.

Under the Bill, a broader scope of conduct will be considered sexual abuse, and more acts of sexual abuse will result in mandatory revocation. This raises the question: how should Colleges deal with allegations of sexual abuse when the events in question pre-dated these new amendments? Is the member subject to the old RHPA provisions, or might the new provisions apply to the allegations?

The answer? It depends. The law on the application of new legislative provisions to prior conduct is complex and often inconsistent. This bulletin outlines two situations in which this question is likely to arise but it is impossible to give an answer that encompasses every situation, and the discussion below will not apply to all scenarios. As always, Colleges would be wise to consult with legal counsel to determine the appropriate way to proceed in any particular case.

How do the amendments apply to a member who commits an act of sexual abuse before the Bill becomes law, if that conduct would not have resulted in mandatory revocation at the time it occurred but will result in mandatory revocation under the amendments?

Under the Bill, members who commit certain acts of sexual abuse (such as the touching of the patient's genitals, anus, breasts or buttocks) will face mandatory revocation even though the current version of the RHPA does not require revocation for this conduct. However, even if the offending conduct pre-dated the Bill, Colleges should consider the fact that the mandatory revocation provisions apply to discipline proceedings that take place after the Bill becomes law.

The rationale for this is the public protection purpose of Colleges, including their discipline proceedings – and the public protection purpose of the amendments that broaden the scope of the mandatory revocation provisions. Although the legislature generally cannot attach a new more severe punishment to conduct that occurred before the law was enacted, an exception exists for administrative proceedings that attach a "penalty" to past conduct for the purpose of public protection (and not for the primary purpose of punishing the member).2 

Under the Health Professions Procedural Code,3  RHPA Colleges have a duty to serve and protect the public interest. Although their discipline proceedings often involve an element of punishment, their primary purpose is to protect the public by allowing the College to assess the degree of risk involved in allowing a member to continue to practise the profession.4 Consequently, several court decisions have held that it is acceptable for regulatory bodies to apply newly-legislated penalties in respect of prior misconduct, particularly when that conduct is serious and raises ongoing public protection issues.5

While this does not mean Colleges should automatically assume that the amendments to the RHPA can be applied to prior conduct, there is precedent for applying new more stringent "penalty" provisions to misconduct that took place prior to the amendments. Therefore, there is a basis for RHPA Colleges to apply the new mandatory revocation provisions, even if the conduct pre-dated the amendments.

How do the amendments apply to a member who commits an act that would not be considered sexual abuse under the current RHPA, but will be captured by the definition under the amendments?

The Bill expands the definition of sexual abuse. For example, it broadens the definition of "patient" for the purposes of the sexual abuse provisions to include former patients, if the conduct occurs within one year of the professional relationship ending.6 This means that currently, a member who engages in sexual acts with a former patient may not have committed sexual abuse (or professional misconduct),7 but after the amendments come into force, the same conduct may be considered sexual abuse.

If a College is faced with a matter involving a member's sexual contact with a former patient, and if that conduct occurred entirely before the amendments come into force, it would be inappropriate to apply the new definition of "sexual abuse" to that conduct.8 The general rule is that a person cannot be liable for an act that was not "illegal" at the time it occurred. This means that if the member's actions were not considered to be sexual abuse under the law at the time – or would not have been considered professional misconduct at the time – the new definitions cannot be applied to retroactively characterize that conduct as sexual abuse.9 

However, for some Colleges, sexual acts with a former patient could be seen as a boundary violation or disgraceful, dishonourable, or unprofessional conduct under the current version of the RHPA. These Colleges could therefore proceed with allegations of that nature, just as they had prior to the amendments to the RHPA.

Alternatively, some courts have held that if a member's conduct is so serious that it raises ongoing concerns about his or her suitability to practise, it may be permissible to begin a discipline proceeding in respect of that conduct, even if it pre-dated the legislative amendments.10 In these cases, if possible, the allegations should be framed in terms of concerns about the member's current and ongoing suitability to practise, so as to avoid applying a new definition of misconduct to acts that pre-dated the legislation.11 In practice, this means that allegations will typically be framed in terms of disgraceful, dishonourable, and unprofessional conduct, to reflect the fact that the proceedings are focused on the member's current and ongoing suitability to practise.

Conclusion

The rules about the retrospective application of legislation are not straightforward, but there are some circumstances in which legislative amendments can be applied to prior conduct. However, courts are not entirely consistent in how they apply these rules. The discussion above therefore should not be taken as legal advice, and Colleges would be wise to obtain a legal opinion if questions of this nature arise.

Footnotes

1 S.O. 1991, c. 18

2Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301.

3Being Schedule 2 to the RHPA, s. 3(2).

4McKee v. College of Psychologists of British Columbia, [1994] B.C.J. No. 1778 (C.A.), at para. 7.

5See e.g. Brosseau; Re a Solicitor's Clerk, [1957] 3 All E.R. 617.

6Or such longer period as may be required by regulation.

7Currently, not all Colleges consider sexual contact with a former patient to be sexual abuse.

8See e.g. Kalin v. Ontario College of Teachers, [2005] O.J. No. 2097 (Div. Ct.).

9Tse v. College of Physicians and Surgeons of Ontario, [1978] O.J. No. 3251 (Div. Ct.); Kaplan v. Canadian Institute of Actuaries, [1994] A.J. No. 868 (Q.B.), aff'd [1997] A.J. No. 874 (C.A.)

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 Mondaq.com.

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

Authors
Lara Kinkartz
Events from this Firm
7 Dec 2017, Webinar, Toronto, Canada

FEX Members Jeff Noble, BDO, and Caroline Abela, WeirFoulds LLP, invite you to a complimentary webinar series titled: All About Shareholders.

11 Nov 2018, Seminar, Toronto, Canada

WeirFoulds Partner Glenn Ackerley will Chair the RICS & CIQS 5th Annual Construction & Project Management Seminar.

15 Nov 2018, Conference, Kingston, Jamaica

WeirFoulds is a proud sponsor of JAMBAR's Annual Weekend Conference.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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