Canada: Supreme Court Of Canada Refuses To Hear Appeal Challenging Zero Tolerance Rule For Health Care Practitioners

The Supreme Court of Canada recently dismissed a dental hygienist's request for leave to appeal from a decision revoking his license for treating his spouse. In the underlying Ontario Court of Appeal decision Tanase v College of Dental Hygienists of Ontario, 2021 ONCA 482 (Tanase), the court affirmed its stance on a “bright-line” rule for “zero-tolerance” with respect to sexual relationships between health care practitioners and patients. Such relationships are considered “sexual abuse” against a patient, with a very narrow exception carved out for spouses. The Court upheld the revocation of the Appellant's licence to practice, and did not find that this revocation infringed sections 7 or 12 of the Charter of Rights and Freedoms  (the Charter). By dismissing the request for leave to appeal, with costs, the Supreme Court of Canada has confirmed this holding.

Background

In Tanase, a dental hygienist (the Appellant) appealed a finding of professional misconduct by a Discipline Committee convened by the Council of the College of Dental Hygienists of Ontario (the College).¹ The Appellant and the patient had met in 2012. By mid-2014, the Appellant and patient commenced their sexual relationship, at which point, the Appellant ceased treating the patient due to the prohibition on sexual relationships between dental hygienists and patients.² The Appellant provided four treatments to the patient in 2015, and three treatments to the patient in 2016.³ Though the Appellant and patient married in January 2016, the College's spousal exception did not come into force until October 8, 2020.⁴ A complaint was made to the College in August 2016, which prompted the convention of a Discipline Committee, which found the Appellant had engaged in professional misconduct, and ordered a reprimand and revocation of his certificate of registration.⁵

The Appellant appealed this finding to Divisional Court, but the appeal was dismissed in September 2019.⁶ The Appellant then made an appeal to the Ontario Court of Appeal.

Relevant legislation and regulatory framework

Ontario legislation imposes a “zero-tolerance” policy for “sexual abuse” by members of the regulated health professions in Ontario, which is defined as “sexual intercourse or other forms of physical sexual relations between the member and the patient.”⁷ Members are guilty of professional misconduct under s. 51(1) of the Health Professions Procedural Code  (the Code),⁸ if they commit said “sexual abuse” against a patient, and will have their certificate of registration revoked if the “sexual abuse” entailed sexual intercourse, as per s. 51(5) of the Code.⁹

The spousal exception under s. 1(5) of the Code did not come into force until October 8, 2020, with “spouse” being narrowly defined under s. 1(6) of the Code as  either a “spouse” defined as marriage under s. 1 of the Family Law Act, or where a conjugal relationship existed outside of marriage continuously for more than three years.

Reinforcement of precedent

The Appellant challenged two key decisions before the Ontario Court of Appeal. The first was Leering v College of Chiropractors of Ontario  (Leering),¹⁰ in which the Court held that sexual abuse is established where a health care professional-patient relationship and a sexual relationship occur concurrently. The Appellant argued that Leering  was overruled by the Legislature in 2013 by permitting individual Colleges to enact regulations permitting health professionals to treat their spouses.¹¹

The Court in Tanase  affirmed Leering, holding that the Code  is intended to set clear rules, free of doubt or uncertainty, by setting clear prohibitions on certain conduct.¹² This is not to say that there cannot be exceptions, such as the spousal exception, but this does not overrule Leering – rather, the Legislature acknowledged Leering  while facilitating a means to adopt narrow or specific exceptions if particular Colleges felt it was appropriate to do so.¹³

Notwithstanding, the spousal exception came into effect after the Appellant treated the patient; in the words of the Court, “[e]ven if it had been in force at the relevant time, the spousal exception would not have operated to excuse the appellant's pre-marital treatment of S.M. after they began their sexual relationship. And because it was not in force, the spousal exception did not excuse the appellant's post-marital conduct either.”¹⁴

Charter considerations

The second case challenged by the Appellant is Mussani v College of Physicians and Surgeons of Ontario (Mussani),¹⁵ in which the Court held that the penalty of mandatory revocation of a health professional's certificate of registration for sexual abuse does not infringe either s. 7 or s. 12 of the Charter.¹⁶ The Appellant claimed that Mussani  was based on an outdated, expansive interpretation of s. 7, and that the requirement enshrined in 2007 to publicize the results of disciplinary proceedings engages s. 7 in a way that was not in issue in Mussani.¹⁷ The Appellant also claimed that the psychological stress caused by revoking one's registration is adequate to engage security of the person.¹⁸

The Court rejected these arguments, pointing to a long line of authority that s. 7 does not protect the right to practice a profession, including a regulated health profession.¹⁹ S. 7 is engaged when there is either “interference with bodily integrity and autonomy or serious state-imposed psychological stress”, and the Court found no evidence of either.²⁰ Serious consequences are not enough to engage s. 7.²¹

The Court also rejected the Appellant's efforts to engage s. 12 of the Charter in response to the revocation of his registration as a form of “cruel and unusual treatment”, citing the absence of authority supporting a claim that professional regulation constitutes “treatment” pursuant to s. 12.²²

In the alternative, the Appellant sought a stay from the Court pursuant to s. 106 of the Courts of Justice Act,²³ on the basis that revoking his licence was either harsh or unfair.²⁴ The Court declined to do so, citing that it “cannot refuse to give effect to the lawful decision of an administrative tribunal on the basis that it disapproves of the outcome in a particular case.”²⁵

Key takeaway

As noted, the Supreme Court of Canada had the opportunity to reconsider the matters at issue, but declined to provide leave to appeal. This confirms the set law in Ontario that there is a “bright-line” prohibition of any form of sexual relationship between a health practitioner and a patient under the Code, which describes these types of relationships as a form of “sexual abuse”. A very narrow exception exists for parties that are married or have been in a conjugal relationship for a minimum of three years prior to treatment being administered. This rule remains staunchly enforced, at peril of one's licence, and neither the prohibition generally, nor the penalty of revocation impugn one's Charter rights. It would therefore be imperative for any health practitioners to avoid any form of sexual relationship with a patient, and proceed with caution even if that patient is a spouse.

Footnotes

1 Tanase v College of Dental Hygienists of Ontario, 2021 ONCA 482 at para 4.

2 Ibid at para 11

3 Ibid at para 13

4 Ibid at para 13-14

5 Ibid at para 15

6 Ibid at para 15

7 Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c 18

8 Ibid at s 51(1)

9 Supra note 1 at para 16

10] 2010 ONCA 87

11 Supra note 1 at para 26

12 Ibid at para 29

13 Ibid at para 30

14 Ibid at para 34

15] 2004 CanLII 48653 (ONCA), 248 DLR (4th) 632.

16 Ibid at para 35

17 Ibid at para 37

18 Ibid at para 38

19 Ibid at para 40

20 Ibid at para 43

21 Ibid at para 45

22 Ibid at para 54

23] RSO 1990, c C.43

24 Ibid at para 58

25 Ibid at para 59

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