DISCIPLINE COMMITTEE OF THE COLLEGE OF AUDIOLOGISTS AND SPEECH-LANGUAGE PATHOLOGISTS OF ONTARIO
BETWEEN:
COLLEGE OF AUDIOLOGISTS AND SPEECH-LANGUAGE PATHOLOGISTS OF ONTARIO
- and -
BRENDA BERGE
Panel Members:
Present:
Deb Zelisko Mary Suddick Karen Bright Ruth Ann Penny
Bernie Le Blanc Melisse Willems
Morris Manning Brenda Berge
Daniel Guttman Brenda Jones
Luisa Ritacca
Chair, Audiologist
Speech-Language Pathologist Speech-Language Pathologist Public Representative
Counsel for the College
Director of Professional Conduct
Counsel for the Member Member
Counsel for Attorney General, Ontario
Independent Legal Counsel to the Panel
Hearing Dates: October 28-30, December 18, 2014
DECISION AND REASONS
This matter came for hearing before a panel of the Discipline Committee of the College of Audiologists and Speech Language Pathologists of Ontario (the "College") on October 28, 2014 at Toronto, Ontario. Brenda Berge (the "Member") whose conduct was under examination at this hearing brought a motion for an order dismissing the Notices of Hearing and the allegations set out therein, which are described below. The panel received twenty-six exhibits and heard over three days of submissions on this matter. Below, the panel sets out its decision and reasons with respect to the Member's motion and with respect to the allegations set out in the Notices of Hearing.
Overview
The Member, who holds a Doctor of Audiology degree is subject to two separate Notices of Hearing, both of which allege that the Member has engaged in professional misconduct in that she has used the title "doctor", or a variation or abbreviation of the title "doctor" in the course of providing or offering to provide health care to individuals in Ontario. These allegations have been outstanding since 2011 and 2012 respectively. In her motion, the Member challenges, among other things, the process followed with respect to the referral of these allegations to the Discipline Committee, and the constitutional validity of section 33 of the Regulated Health Professions Act ("RHPA"), and its applicability in the circumstances.
The Notices of Hearing
The allegations against the Member arc as set out in the Notices of Hearing filed as Exhibits 1 and 2, respectively.
R09-02 Notice of Hearing, December 7, 2011 (Exhibit #1) Statement of Allegations
Brenda Berge was, at all material times, an audiologist registered to practise audiology in the province of Ontario. Ms. Berge practised at Berge Hearing Clinic in Guelph, Ontario.
Since at least 2009, Ms. Berge has used the title "doctor", or a variation or abbreviation of the title "doctor", in the course of providing or offering to provide, in Ontario, health care to individuals.
In particular, Ms. Berge has referred to herself as "Dr. Brenda Berge", as well as variations and abbreviations of "Dr. Brenda Berge", on her practice website and on other websites, on business cards and on her business sign.
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- Ms. Berge has thereby engaged in professional misconduct within the meaning of paragraphs 16 (inappropriately using a term, title or designation in respect of the member's practice), 31 (contravening the Act, the Regulated Health Professions Act, 1991 or a regulation under either of them), 34 (improperly advertising or permitting advertising with respect to the member's practice) and 37 (engaging in conduct or performing an act, relevant to the practice of the profession, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional) of section 1 of Ontario regulation 749/93 under the Audiology and Speech-Language Pathology Act, 1991, S.O. 1991, c. 19.
C11-11 Notice of Hearing, February 3, 2012 (Exhibit 42) Statement of Allegations
Brenda Berge was, at all material times, an audiologist registered to practise audiology in the province of Ontario. Ms. Berge practised at Berge Hearing Clinic in Guelph, Ontario.
In 2011, Ms. Berge has used the title "doctor", or a variation or abbreviation of the title "doctor", in the course of providing or offering to provide, in Ontario, health care to individuals.
In particular, Ms. Berge has referred to herself as "Dr. Brenda Berge", as well as variations and abbreviations of "Dr. Brenda Berge", on her practice website.
Ms. Berge has thereby engaged in professional misconduct within the meaning of paragraphs 16 (inappropriately using a term, title or designation in respect of the member's practice), 31 (contravening the Act, the Regulated Health Professions Act, 1991 or a regulation under either of them), 34 (improperly advertising or permitting advertising with respect to the member's practice) and 37 (engaging in conduct or performing an act, relevant to the practice of the profession, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional) of section 1 of Ontario regulation 749/93 under the Audiology and Speech-Language Pathology Act, 1991, S.O.1991, c. 19.
Agreed Statement of Facts (Exhibit #4)
The parties agreed that in the event that the Member was wholly unsuccessful on her motion for an order dismissing the allegations, the principle evidence the panel ought to consider in deciding whether the allegations have been proved is as contained in the Agreed Statement of Facts which was filed at the start of the hearing. The Agreed Statement of Facts provides as follows:
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Investigation R09-02
Brenda Berge was, at all material times, an audiologist registered to practise audiology in the province of Ontario. Ms. Berge practised at Berge Hearing Clinic in Guelph, Ontario.
Since at least 2009, Ms. Berge has used the title "doctor", or a variation or abbreviation of the title "doctor", in the course of providing or offering to provide, in Ontario, health care to individuals.
In particular, Ms. Berge referred to herself as "Dr. Brenda Berge", as well as variations and abbreviations of "Dr. Brenda Berge", on her practice website and on other websites, on business cards and on her business sign.
The investigation Report of Bernard and Associates dated October 23, 2009 is attached hereto1.
Complaint C-11-11
In 2011, Ms. Berge has used the title "doctor", or a variation or abbreviation of the title "doctor", in the course of providing or offering to provide, in Ontario, health care to individuals.
In particular, Ms. Berge has referred to herself as "Dr. Brenda Berge", as well as variations and abbreviations of "Dr. Brenda Berge", on her practice website.
The Member's Motion
The Member filed a Notice of Motion dated March 14, 2013 (Exhibit #5(a)), wherein she sought an order dismissing the Notices of Hearing and the allegations contained therein. Initially, it appeared that the Member relied on a variety of grounds in support of her motion, however in the factum filed before us and in oral submissions the Member narrowed the grounds such that the following issues were before us:
(i) Does the College have jurisdiction to hold a discipline hearing alleging a breach of Regulation 749/93 (the “PM Regulation”) where the Regulation breaches section 86 of the Code?
(ii) Does the College have jurisdiction to hold a discipline hearing alleging a breach of the PM Regulation, where that Regulation is ultra vires?
(iii) Does the Discipline Committee have jurisdiction to adjudicate a contravention of sections 33(1) and 40 of the RHPA?
(iv) Did the Inquiries Complaints and Reports Committee ("ICRC") fail to properly refer "specified allegations" of professional misconduct against the Member to the Discipline Committee for hearing?
(v) Did the ICRC or the College engage in "selective prosecution" in choosing to refer these allegations against the Member?
(vi) Does section 33(1) of the RHPA breach section 2(b) of the Canadian Charter of Rights and Freedoms (the "Charter") and if so can the government justify a breach of section 2(b) under section 1 of the Charter?
(vii) Does section 33(1) of the RHPA breach section 7 of the Charter and if so can the government justify that breach under section 1 of the Charter?
Evidence Filed
As described above, the parties filed several affidavits and documents in support of their respective positions on the Member's motion.
The Member filed Book of Materials Volumes I through IV, Motion Record of the Moving Party, Volumes I through IV, Moving Party's Reply, and Additional Authorities relied on by the moving Party and the HPRAC – New Directions Report2. The Member included in her Motion Record, the following affidavits of note:
(i) the Member's sworn affidavit and cross examination transcript, in which she outlined her educational background; the College's contact with her regarding the use of the title doctor; and her rationale for using the title;
(ii) the sworn affidavit and cross examination transcript of Larry Engelmann, in which he described the role of the Academy of Doctors of Audiology ("ADA"); how various U.S. states allow audiologists to use the title "doctor"; and his opinion on Allison Henry's affidavit, the HPRAC - New Directions Report, and the RHPA's restrictions on the use of the title "doctor";
(iii) the sworn affidavit and cross examination transcript of Melisse Willems wherein she provided an overview of the Inquiries Complaints and Reports Committee ("ICRC") process when it is refers specified allegations of professional misconduct to the Discipline Committee for a hearing. Ms. Willems also provided evidence that with respect to the allegations referred as against the Member here, the usual process of the ICRC was followed; and
(iv) the sworn affidavit and cross examination of Allison Henry, in which she provided an overview of the RHPA and the restrictions on the use of the title "doctor"
In addition to relying on the evidence filed by the Member, the College and the Attorney General of Ontario ("AG Ontario") filed a number of statutes and relevant ease law.
Decision on the Motion
For the reasons set out below, the Member's motion is dismissed.
(i) Does the College have jurisdiction to hold a discipline hearing alleging a breach of Regulation 749/93 (the "PM Regulation") where the Regulation breaches section 86 of the Code?
(a) Position of the Member
The Member argues that the PM Regulation is invalid in its entirety because there is no official French version of it available. The Member argues that the absence of a French version of the Regulation, violates section 86 of the Health Professions Procedural Code (the "Code"), which provides in part that (i) a person has the right to use French in all dealings with the College and (ii) that the Council of the College shall take all reasonable measures and make all reasonable plans to ensure that persons may use French in all dealings with the College.
Further, the Member argues that the absence of a French version of the PM Regulation deprives her of the opportunity to compare and contrast the French version to the English version, and as such deprives her of potentially a more favourable version.
(b) Position of the College
In response, the College argues that there is no statutory requirement that the College make its regulations available in both English and French. Section 99 of the Legislation Act, 2006, makes clear that while statutes must be published in both official languages, regulations do not. Further, the College argues that while section 86 of the Code provides members the right to conduct all dealings with the College in French, there is no requirement for the College to make its regulations available in French. Finally, the College argues that there cannot be a requirement for a French version of the PM Regulation simply so this Member can hope to find an inconsistency between the two versions to use to her advantage.
(c) Advice from Independent Legal Counsel ("ILC")
ILC urged the panel to consider the purpose of section 86. Counsel explained that the intent of section 86 of the Code was to make reasonable efforts to ensure that documents were translated as required and that interpreters and French-speaking Committee members were made available where needed. The panel should consider whether the purpose of section 86 was to ensure that any member could require a French translation of the regulation so as to be able to compare it to an English one.
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Panel's Decision and Reason
The panel dismisses this aspect of the Member's motion for the following reasons:
Section 86 of the Code provides members the right to conduct all dealings with the College in French. This right is limited by subsections 86(2) and (4) to what is reasonable. Included in this is the right to use French in all dealing with the College; that the College shall identify and record the language preference of each College member; identify the language preference of each member of the public who has dealings with the College; and the Council shall ensure that all reasonable measures are in place to ensure that person may use French in all dealings with the College. It does not include a requirement to provide an official version of the PM Regulation in French.
The intent is for the College to ensure that a member can deal with the College in French, if that is their preference, not to allow for comparison between two versions of the same regulation to look for potential inconsistency between them. Here, the Member has never asked to deal with the College in French and there was no evidence before us that French was her preferred language. All of the written communications between the Member and the College that were before us were in English, the Member's evidence and submissions were filed in English, and the hearing took place in English, with no complaint from the Member.
In addition, the panel is satisfied that there are no legal obligations on the College to publish its regulations in both French and English. Section 99 of the Legislation Act,
2006, provides that regulations may be provided in French, but does not require it.
(ii) Does the College have jurisdiction to hold a discipline hearing alleging a breach of the PM Regulation, where that Regulation is ultra vires?
(a) Position of the Member
(i) Improper delegation or mirroring with regard to paragraphs 16 and 34 of the regulation.
The Member argues that paragraphs 16 and 34 of the PM Regulation violate the rule against sub-delegation in that they amount to an invalid delegation of legislative power, as they merely mirror the grant of power provided by the RHPA in another section (specifically, section 95(1), paragraphs (l) and (p) of the Code) The Member submits that the impugned paragraphs in the PM Regulation address advertising in much the same way that paragraphs (1) and (p) of section 95(1) of the Code does. As such, the Member argues that this panel ought not to make any findings in relation to paragraphs 16 and 34 of the PM Regulation.
(ii) Is paragraph 37 ("DDU") of the PM Regulation overly broad or otherwise not within the College's jurisdiction?
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It is the Member's position that paragraph 37 of the PM Regulation is overly broad, vague and therefore beyond any regulation-making power contemplated under section 95(1) of the Code. As such, the Member argues that this panel ought not to make any finding that she engaged in professional misconduct as that is defined under paragraph 37.
(iii) Is paragraph 31 of the PM Regulation overly broad and/or outside of the College's jurisdiction to enact?
Section 33(1) of the RHPA restricts the use of the title "doctor" or an abbreviation of the title in the course of providing or offering to provide health care to individuals in Ontario. Paragraph 31 of the PM Regulation makes it professional misconduct to contravene, among other things, the RHPA. The Member argues that it is outside of the College's jurisdiction to enact a regulation that makes it professional misconduct to contravene the RHPA, particularly given that such contravention is an offence in and of itself under the RHPA. The Member submits that she ought not to be found to have engaged in professional misconduct under paragraph 31 for a violation of section 33 of the RHPA, where a breach of that section is a separate "offence" and can be treated as such by the College.
(b) Position of the College
(i) The College's position is that there was no clearer evidence that paragraphs 34 and 16 were made under clause 95(1)(j) of the code than the fact that these two paragraphs were in the professional misconduct regulation, and that regulations as allowed for under clauses 95(1)(l) and (p) of the Code do not in fact exist. The College's position also included the assertion that health colleges have considerable discretion to determine what constitutes professional misconduct which is in line with one of the principal objectives of the RHPA. The College also referenced the case of the Supreme Court of Canada in Brant Dairy Co. v. Ontario (Milk Commission), 1972 CanLII 11 (SCC), [1973] S.C.R. 131 (S.C.C) citing impermissible 'mirroring' to be something different.
(ii) The College argues that it has the jurisdiction to define "professional misconduct" and that in doing so, it can include within that definition conduct which may also be covered by another section of the RHPA or Code. In particular, the College disputes the Member's argument that paragraphs 16 and 34 of the PM Regulation impermissibly mirror sections 95(1)(1) and (p) of the Code.
(iii) In support of its position, the College relies on the Divisional Court case, Yuan v. The Council of Traditional Chinese Medicine, 2014 ONSC 351 for the proposition that regulations defining professional misconduct must be interpreted broadly and purposively.
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(iv) The College further argues that there is ample authority for the College to enact and enforce paragraph 37 of the PM Regulation. It is common practice for regulated health colleges to include a "basket clause" provision when defining professional misconduct. (Re Matthews and Board of Directors of Physiotherapy, (1986), 1986 CanLII 2665 (ON HCJ), 54 O.R. (2d) 375, upheld on appeal 1987 CanLII 4372 (ON CA), 61 O.R. (2d) 475)
(v) in addition, the College argues that paragraph 31of the PM Regulation is not ultra vires or overly broad. The College submits that paragraph 31 (which makes it professional misconduct to breach the RHPA, among other things) clearly relates to the scope and purpose of both the RHPA and the Audiology and Speech Language Pathology Act, 1991, which is the regulation of audiologists and speech-language pathologists in Ontario. A contravention of the enabling legislation clearly and properly ought to be considered an act of professional misconduct.
Panel's Decision and Reason
The panel dismisses this aspect of the Member's motion for the following reasons:
We are satisfied that the PM Regulation fairly and reasonably defines professional misconduct for the College. The panel was not persuaded that the impugned paragraphs of the PM Regulation were ultra vires, overly broad or too vague to be fairly applied. The Member did not present the panel with any compelling case law in that regard.
Further, the panel is satisfied that the "basket clause" found at paragraph 37 of the PM Regulation is not overly broad or outside of the College's jurisdiction. The panel was referred to several other professional misconduct regulations from other health regulated colleges where a similar basket clause is included: O.Reg. 856/93 Medicine Act, 1991, s.1(27); O.Reg.218/94, Dental Hygiene Act, 1991, s.15(47);O. Reg 544/94 Massage Therapy, 1991, s.26(41); O. Reg.853/93 Dentistry Act, 1991, s.2(48); O. Reg. 854/93 Denturism Act, 1991 ,s.1(33).
Further in the case of Assn. of Professional Engineers of Ontario v. Karmash, [1998] O.J. No.2161 (Div. Ct), the Court concluded at para. 6., "it has not been found to lack sufficient precision to avoid unfairness or uncertainty. Necessarily, language could not be devised to particularize every sort of inventive and novel conduct that might be determined to be the sort described in the language of the present Regulation."
In summary, the panel concluded that the College acted within its jurisdiction in creating the PM Regulation. The sections under attack by the Member are neither overly broad, nor vague, In addition, the impugned sections do not amount to impermissible mirroring. The College did not act outside its jurisdiction in referring allegations grounded in the PM Regulation as against the Member.
(iv) Did the Inquiries Complaints and Reports Committee ("ICRC") fail to properly refer "specified allegations" of professional misconduct against the Member to the Discipline Committee for hearing?
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(a) Position of the Member
The Member argues that the allegations as contained in the Notices of Hearing marked as Exhibits #1 and 2 were not properly referred to the Discipline Committee by the ICRC and are therefore null and void. The Member submits that the ICRC is required by statute to refer "specified allegations" to the Discipline Committee (see section 26(1) of the Code). The Member argues that the evidence available establishes that specified allegations were not referred to the Discipline Committee and that the ICRC's counsel – not its members – drafted the allegations, following referral.
The Member argues that this irregularity in the referral of the allegations irreparably taints the process such that the panel has no jurisdiction to adjudicate on the improperly referred allegations.
(b) Position of the College
The College argues that the evidence before this panel establishes that the ICRC referred specified allegations to the Discipline Committee, such that there was no irregularity in the process followed. In particular, the College relies on the evidence of Melisse Willems, who confirmed that the ICRC referral process included, an agreement by the ICRC panel to refer the matter in principle, a review of the file by counsel, who prepared a draft of the allegations and a formal adoption of the allegations.
(c) Advice from Independent Legal Counsel
ILC encouraged the panel to consider in the circumstances whether there was any reason to doubt the veracity of Ms. Willems' affidavit evidence and in particular her explanation of the process undertaken by the ICRC prior to referring the allegations to the Discipline Committee. Counsel suggested that while the minutes from the ICRC that were filed with this panel were minimal, it is important to note that in this case the allegations were relatively simple and all related to the Member's use of the title "doctor" and/or "Dr" in treating or offering to treat individuals.
(d) Panel's Decision and Reason
The panel's decision was to dismiss this part of the motion for the following reasons:
The panel has considered the ICRC minutes filed and the evidence provided by Ms. Willems and was satisfied that the allegations were specified by the ICRC and that a referral of specified allegations was made by the ICRC Committee itself and not the prosecutor. The panel concluded that there was no reason to doubt the veracity of the evidence provided in the affidavit.
(v) Did the ICRC or the College engage in "selective prosecution" in choosing to refer these allegations against the Member?
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(a) Position of the Member
The Member argues that she has been targeted by the College and that there are other members who hold themselves out as "Doctors", against whom the College has taken no steps.
(b) Position of the College
The College argues that there is no defence of "selective prosecution" available to the Member and that in any event, it is prevented from disclosing how and to what extent it has addressed other members who misuse the title "doctor" (Dr.) unless and until the matter is referred to Discipline Committee. Section 36 of the RHPA prevents the College from revealing information about another member, which would not otherwise be publicly available through the College's Register.
In any event, whether the College has taken action against other members for misusing the title "doctor" bears no relevance to whether the Member in this case has engaged in professional misconduct.
(c) Advice from Independent Legal Counsel
ILC reminded the panel that it could only deal with the specific case that was before it and that it ought not to consider whether there are or should be other cases referred to the Discipline Committee. Further, ILC advised the panel that pursuant to the confidentiality requirements of section 36 of the RHPA, the College could not share information it has obtained in the course of carrying out its functions, other than if that information is publicly available through the Register and/or prior Discipline cases.
(d) Panel's Decision and Reason
The panel dismisses this portion of the motion for the following reasons:
The panel can only consider the evidence before it and address any allegations set forward in the Notices of Hearing. The actions that the College may take with respect to other members using or misusing the title "doctor" ("Dr."), to the extent there are such other members, are not before the panel. Given the confidentiality requirements of s.36 of the RHPA the panel can only consider the information before it.
(vi) Does section 33(1) of the RHPA breach section 2(b) of the Canadian Charter of Rights and Freedoms (the "Charter") and if so can the government justify a breach of section 2(b) under section 1 of the Charter?
(a) Position of the Member
The Member argues that the prohibition on the use of the title "doctor" as set out in section 33 of the RHPA infringes on her right to free expression, otherwise protected by section 2(b) of the Charter. Further, she argues that such infringement cannot be saved under section 1 of the Charter.
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The Member's counsel provided the panel with comprehensive written and oral submissions on this point. In essence, the Member argues that the prohibition unduly limits her ability to provide accurate information to patients/potential patients and the public about her professional designation and education. She says that in turn this limits the public's right to receive accurate and complete information about their health care provider.
The Member referred the panel to a number of cases3, including the Supreme Court of Canada decision in Rocket et al. and Royal College of Dental Surgeons of Ontario, [1988] O.J. No. 383 (C.A.), aff’d 1990 CanLII 121 (SCC), [1990] S.C.J. No. 65, which makes clear that legislation that deprives professionals of their ability to advertise their qualifications, hours and location of practice, among other things, is contrary to section 2(b) of the Charter.
(b) Position of the Attorney General of Ontario (AG)
The AG Ontario argues that section 33 of the RHPA does not infringe upon the Member's rights as protected under section 2(b) of the Charter. Further, the AG Ontario argues that the right to use the title doctor and more generally professional designations themselves do not fall within the scope of "expression" that is protected by the Charter. The AG relies on a number of cases in support of its position, but principally argues that the High Court decision in the College of Physicians and Surgeons of Ontario v. Larsen 1987 CanLII 4213 (ON HCJ), [1987] O.J. No. 1106, is binding on this panel and dispositive of the issue raised by the Member on her motion. In Larsen, the court held that section 66(1) of the Health Disciplines Act, R.S.O. 1980, c. 196 (a predecessor section to section 33 of the RHPA), which prohibited a podiatrist from using the title "doctor" did not infringe on the rights protected under section 2(b) of the Charter.
Similarly, in the case of Walker v Prince Edward island 1993 CanLII 1816 (PE SCAD), [1993] P.E.I.J. No.111, the Supreme Court of Appeal held that s-s.14(1) of the Public Accounting and Auditing Act which limits the right to practice public accounting for compensation in the Province to the members of the Institute of Chartered Accountants does not violate s-s 2(b) or s.7 of the Charter. It was noted that 14(1) did not prohibit anyone from expressing themselves about any accounting-related matters, but did restrict the capacity in which one might do so, "a construction which would have s-s.2(b) include a guaranteed right to carry on a business, practice a profession, to be regarded as authoritative in a field, or to charge a fee for services as a public accountant overshoots its purpose and goes beyond what is necessary to give effect to it."
(c) Advice from Independent Legal Counsel
ILC reminded the panel that the Member bears the onus of showing, on a balance of probabilities, that a Charter infringement exists. Counsel reviewed the binding legal authorities, which confirm that commercial expression is a form of expression that is protected under section 2(b) of the Charter. Further, ILC reminded the panel that it is bound by cases from the Supreme Court and the Ontario courts and may be guided by decisions from courts in other jurisdictions. With respect to the High Court: decision in Larsen, ILC explained that in her view that decision is good law and is binding on the panel.
(d) Panel's Decision and Reason
The panel dismisses the Member's motion with respect to section 2(b) of the Charter for the following reasons:
The Member bears the onus of demonstrating that a Charter infringement exists. In the panel's view, the Larsen decision is dispositive of the issue here. The Court in Larsen confirmed that using the title doctor is not protected speech nor is a prohibition against the use of the title an infringement of s.2(b). The legislation does not prohibit the Member from communicating professional designations and credentials, which is consistent with the Charter and with the cases cited by the parties, including Larsen and Rocket v. Royal College of Dental Surgeons of Ontario 1990 CanLII 121 (SCC), [1990] S.C.J. No.65
Having found that there is no infringement of the Member's section 2(b) Charter rights, the panel did not consider the section 1 arguments advanced by the parties.
(vii) Does section 33(1) of the RHPA breach section 7 of the Charter and if so can the government justify that breach under section 1 of the Charter?
(a) Position of the Member
The Member argues that the denial of access to full health services violates both her and her patients' rights to liberty and security of the person. The Member submits that by prohibiting her from using the title "doctor" while treating her patients, interferes with her patients' rights to complete and informed health services. The Member argues that s.33 interferes with her right to security of the person in that it puts her ability to practice in jeopardy. The Member also states that the process has had serious and profound effects on her psychological integrity.
(b) Position of the AG
The AG Ontario argues that in order to succeed, the Member must first demonstrate that there has been a deprivation of her right to life, liberty and/or security of the person in the application of section 33 of the RHPA, and second, the Member must demonstrate that the deprivation is not in accordance with the principles of fundamental justice.
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The Attorney General of Ontario's position is that the Member's complaint with respect to the prohibition over the use of the title "doctor" is driven purely by a concern over economic rights, which are not protected under section 7 of the Charter. (Mussani v. The College of Physicians and Surgeons of Ontario 2004 CanLII 48653 (ON CA), [2004], 248D.L.R (4th) 632; Yuan v. the Transitional Council of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (Exh 17/21); Irwin Toy Ltd v. Quebec (A.G), [1989] 1S, CR927; R v. Schmidt, 2014 ONCA 188)
The Attorney General Ontario submits in addition that the Member has adduced no evidence of any deprivation borne by any patient in Ontario because of the restriction on use of the title "Doctor" let alone grossly disproportionate effects.
The Attorney General Ontario argues that even if this panel were to agree that there has been a deprivation of the Member's rights in the application of section 33 of the RHPA, such deprivation is in accordance with the principles of fundamental justice. The RHPA is not overly broad, nor are its effects grossly disproportionate and/or arbitrary. The objective of section 33 is to protect the public by minimizing confusion when seeking health care providers. There is no evidence before this panel that excluding audiologists with a Doctor of Audiology degree ("AuD") from using the title "Doctor" is not rationally connected to this purpose".
(c) Advice from Independent Legal Counsel
ILC reminded the panel that the Member bears the burden of demonstrating to this panel that section 33 deprives her of her right to life, liberty and security of the person as protected by s.7 of the Charter. The Member must also satisfy the panel that such deprivation is not in accordance with the principles of fundamental justice.
(d) Panel's Decision and Reason
The panel dismisses this ground of the Member's motion for the following reasons.
While the Member filed extensive evidence in support of her position, the panel did not find that the evidence demonstrated a deprivation of the Member's s. 7 Charter rights as a result of the restriction place on her use of the title "Doctor".
Further, the panel notes that the Justice Blair, of the Ontario Court of Appeal in Mussani v. College of Physicians and Surgeons of Ontario [2004], concluded that there is "no constitutional right to practise a profession unfettered by the applicable rules and standards which regulate that profession".
The panel found no violation of s.7 of the Charter because the member is allowed to describe her educational credentials to patients and potential patients in order to best inform them about her qualifications and training. While the Member cannot use the specific title "Doctor", as that is prohibited under the RHPA, except in certain circumstances, the panel found that this limit did not unduly restrict patients' access to the appropriate information about the Member's qualifications.
The panel does not accept that the restrictions on the Member have caused her psychological distress that could amount to a deprivation of her s. 7 rights,
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Decision on the Allegations
Having denied the Member's motion, the panel considered the allegations set out in the Notices of Hearing and finds that the Member engaged in professional misconduct as alleged.
Reasons for Decision
In the Agreed Statement of Facts, the Member has acknowledged that she referred to herself as "Dr. Brenda Berge", as well as variations and abbreviations of "Dr. Brenda Berge", on her practice website and on other websites, on business cards and on her business sign. The panel is satisfied that this conduct amounts to professional misconduct as alleged in that it is a clear contravention of section 33 of the RHPA; it amounts to improper advertising; and that it is an act relevant to the Member's practice that having regard to all of the circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional.
Specifically, Ms. Berge has used the title "doctor", or a variation or abbreviation of the title "doctor", in the course of providing or offering to provide, in Ontario, health care to individuals since 2009. By inappropriately using a term, title or designation in respect to her practice the panel finds the member to have engaged in professional misconduct within the meaning of paragraph 16 of the RHPA.
Further by the continued use of the title "doctor" in dealings with patients and on her business sign, website and business cards, the panel finds the Member to have engaged in professional misconduct within the meaning of paragraphs 31 (31 (contravening the Act, the Regulated Health Professions Act, 1991 or a regulation under either of them), and 34 (improperly advertising or permitting advertising with respect to the member's practice). The Member knowingly breached the regulation that governs her profession, with full regard to her obligations as a member of the College. The panel finds this willing and persistent breach of the law constitutes professional misconduct within the meaning of paragraph 37 (engaging in conduct or performing an act, relevant to the practice of the profession, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional) of section 1 of Ontario regulation 749/93 under the Audiology and Speech-Language Pathology Act, 1991, S.O. 1991, c. 19.
I, Deb Zelisko, sign this Decision as Chairperson of this Discipline Panel and on behalf of the Panel members.
Date:
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BETWEEN:
Chair, Audiologist
Speech-Language Pathologist Speech-Language Pathologist Public Representative
Counsel for Attorney General, Ontario (did not take part in the hearing on Sanctions)
DECISION AND REASONS on Sanctions and Costs
By decision dated March 31, 2015, this panel of the Committee of the College of Audiologists and Speech Language Pathologists of Ontario (the "College") dismissed the Member's motion to dismiss the Notices of Hearing and the allegations against her as set out therein. In our decision, the panel also found the Member to have engaged in professional misconduct within the meaning of paragraphs 16, 31, 34 and 37 of section 1 of Ontario Regulation 749/93 under the Audiology and Speech-Language Pathology Act, 1991.
On September 2, 2015, the parties appeared before the panel for a hearing on the issue of appropriate sanction and costs in light of the panel's decision. The panel heard submissions from the College and the Member's counsel, and received four additional exhibits.
Below, the panel sets out its decision and reasons with respect to sanction and costs. Sanction
- Position of the College
The College asked the panel to make an order on sanction, as follows:
requiring the member to appear before the panel to be reprimanded;
directing the Registrar to suspend the member's certificate of registration for a period of three continuous months to commence on a date to be fixed by the Registrar, although such date being within three months of the order taking effect;
directing the Registrar to impose specified terms, conditions and limitations on the member's certificate of registration requiring the member to successfully complete, at her own expense and to the satisfaction of the Registrar, an ethics course; and
directing the Registrar to impose specified terms, conditions and limitations on the member's certificate of registration requiring the member to undergo 3 unannounced
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inspections at the member's expense, to a total of $500.00 per inspection, within 24-months following the order taking effect.
The position of the College was that there were general principles which should be applied in determining an appropriate sanction. The College submitted that the panel should consider denunciation, general and specific deterrence and rehabilitation.
The College presented a Book of Authorities on Penalties (Exhibit 26) and a Costs Record of the Responding Party, (Exhibit 27) which it provided as the basis for the sanctions requested. Included in Exhibit 27 was a letter from the College's then-Complaints Committee confirming that the Member had been cautioned about her misuse of the title "doctor" by that Committee in 2009.
- Position of the Member
The Member argued that the sanction proposed by the College was unreasonable, not in keeping with earlier cases, and grossly unfair. The Member argued that the cases provided by the College were not relevant, as all of the cases cited involved members who held themselves out as having credentials which they did not in fact have. Here, the Member argued, there is no question that the Member has her Aud. D designation. The only issue here was whether she was allowed to use the title "doctor" (or an abbreviation) in providing health care to patients in Ontario. As such, the Member argued that the panel should not rely on the cases filed by the College in determining an appropriate sanction. Further, the Member argued that the sanction proposed by the College was disproportionate .
- Decision of the Panel
The panel makes the following order with respect to sanction:
(A) THE DISCIPLINE COMMITTEE DIRECTS the Member, Brenda Berge to appear before it to be reprimanded, on a date to be fixed.
(B) THE DISCIPLINE COMMITTEE DIRECTS the Registrar to suspend Brenda Berge's certificate of registration for a period of three (3) continuous months, 1 month of which shall be
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remitted. The suspension shall commence on a date to be fixed by the Registrar, although such date shall be within three months of the order taking effect.
(C) THE DISCIPLINE COMMITTEE directs the Registrar to impose a term, condition and
limitation on the Member's certificate of registration,
a. Requiring that she successfully complete a course in ethics, focusing in professional obligations, such as the ProBe course, to the satisfaction of the Registrar, and at the Member's own expense.
b. Requiring that the Member is to undergo two (2) unannounced inspections per annum at the Member's expense, to a total of $500.00 per inspection, over the course of 3-years for a total of six (6) unannounced inspections over the period.
Reasons for Sanction
The panel considered the principles of sanctioning when making its decision and also considered the risk to the public, and the importance of members upholding the basic tenets of self-regulation. The reprimand and suspension were based on the principles of Denunciation, and General and Specific Deterrence. It is the panel's view that in order for self-regulation to be effective, each member must abide by the current and relevant legislation. Further, each member must conduct themselves in a manner that is consistent with the expectations set by the College. While the member may disagree with a rule or expectation, he or she cannot simply ignore it. The reprimand and suspension also address the need to publicly denounce the Member's conduct and will act as both a deterrent for the Member and the membership at large. The panel agreed to remit a portion of the suspension because there was no evidence presented to suggest that the Member's misconduct had ever put the public in danger or at risk of harm. The panel did not find it necessary to attach the remittance to another term of the sanction ordered.
The requirement for the Member to complete an ethics course similar to the ProBe course addresses the principle of rehabilitation. The panel noted that despite a previous letter of caution, dated March 6, 2009, dealing with the similar issues before us on this hearing, the Member continued to engage in the same misconduct. The intent of the ethics course is to provide the
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Member with a focus on the importance compliance in the area of self-regulation, and on the public safety and transparency requirements as set out in the governing legislation.
Finally, the panel ordered six inspections over the course of three years in order to provide some assurance to the College that the Member will remain compliant. Given the length of time that the Member continued to breach the regulations after receiving a letter of caution, the panel concluded that a longer inspection period than what the College had suggested was appropriate.
Costs
- Position of the College
In support of its requests for costs, the College filed an Affidavit, enclosing the cost outlines prepared by prosecution counsel and independent legal counsel. The College also filed the cost outline of independent legal counsel who assisted with this matter, but who did not assist on the hearing itself.
At Exhibit 26, the College provided the panel with case law addressing when and at what rate costs are ordered in discipline cases at other health colleges in the province. It is clear from the case law that there are no clear rules regarding how costs should be assessed. It appears that in certain instances, the courts have found an order requiring a member to pay two-thirds of the total costs was appropriate. The panel also noted that the College of Physicians and Surgeons of Ontario (CSPO) has set in its Rules of Procedure a per diem levy used to assess costs against members in appropriate cases. No such rule or levy exists at this College.
The College argued that this panel has jurisdiction to order costs against the member, pursuant to section 53.1 of the Health Professions Procedural Code, which provides in part that, "in an appropriate case, a panel may make an order requiring a member who the panel finds has committed an act of professional misconduct or finds to be incompetent to pay all or part of the following costs and expenses...". In this case, the College submitted that an order for costs against the Member was appropriate. While the College's actual hearing costs were in the range of $260,000.00, the College asked the panel to order the Member to pay $100,000.00 in costs, payable over a one-year period.
The College argued that while it was within the Member's right to dispute the allegations and to bring her various procedural motions, the College ought not to bear the entire cost of the protracted
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proceedings. Further, the College noted that while the Member had a right to challenge the veracity and constitutionality of the legislation, she could have done so without engaging in professional misconduct.
- Position of the Member
The Member argued that the costs incurred and the costs sought were unreasonable in the circumstances. The Member argued that the costs being sought by the College were very high and pointed out that the CPSO per diem levy would amount to a substantially lower sum. The Member also argued the she had right to dispute the allegations and that order costs at all was akin to punishing her simply for asserting her rights.
Ultimately, the Member argued that no costs should be ordered and alternatively if costs were ordered they should be at a substantially reduced amount from the amount sought by the College.
- Panel's Decision on Cost
Having considered the evidence filed and the parties submissions, the panel orders the Member to pay to the College $97,595, payable over three years. The Member is ordered to pay the first $15,000 within 60-days of this order being final and required to pay the remaining instalments of $ 41,297.50 at twelve and twenty-four months later.
Reasons for Decision on Costs
The panel's reasons included the following:
The total cost of the hearing as provided by the College amounted to $260,330.38
The amount of $574.21 which were expenses related to the original investigation was considered part of the standard work of the ICRC committee and was deducted from the total;
The amount of $11,336.50, which was noted to be costs incurred with sorting out documentation which the College indicated took longer than expected. As a result, the panel reduced this amount by half for a total of $5,668.25;
The remaining amount was $254,087.92;
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The College did not ask for 2/3 of the costs, but a much smaller proportion. By applying the percentage of the costs that the College used in deriving the request of $100,000 in costs (.3841), the panel derived an amount of $97,595.
In determining the payment period the panel took into account that the Member will be suspended for a two month period as well as the overall amount required for the Member to pay and the cost of the 6 visits.
The panel's rationale on ordering costs was based on the length and costs associated with the hearing. The Member chose to ignore the rules and expectations set forward by the College. While the Member had the right to take the steps that she did, she cannot do so expecting that she should not share in the costs incurred in this type of case.
I, Deb Zelisko, sign this Decision as Chairperson of this Discipline Panel and on behalf of the Panel members.
Date:
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Footnotes
- The documents listed in the Agreed Statement of Facts are not included herein.
- Health Professions Regulatory Council — New Directions Report, 2006 5
- On February 6, 2015 the Supreme Court of Canada released its decision in Carter v. Canada, 2015 SCC 5. Subsequently, counsel for the member, with the consent of the other parties, asked that the panel consider this decision in deliberating on the present matter. We have reviewed Carter and have found It not relevant to the specific issues before us. 12