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a non-existent certificate of registration (for example, for a member whose certificate of registration has expired or been revoked).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.
Conclusion
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.
Footnotes
[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.
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