Ontario Superior Court of Justice Divisional Court

Court File No. 456/05

Date: 2006-04-21

Chapnik, Whalen and Swinton JJ.

Counsel:

Scott Turton, for plaintiff (appellant), William Middleton.

Rebecca Burrows, for defendants (respondents), Sun Media Corp. and Sun Media (Toronto) Corp.

The judgment of the court was delivered by

[1] Swinton J:—This is an appeal from one part of an interlocutory order of Spies J. dated October 14, 2005 requiring the plaintiff (appellant) to include in his Affidavit of Documents documentation in his possession regarding proceedings at the College of Nurses of Ontario and at the College of Physicians and Surgeons of Ontario [143 A.C.W.S. (3d) 61]. Leave to appeal was granted by Carnwath J. on December 6, 2005 [144 A.C.W.S. (3d) 443].

[2] At issue in this appeal is the interpretation of s. 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 ("the Act"), which provides that no record, report, document or thing prepared for, or statement given at a proceeding under the Act is admissible in a civil proceeding, in particular, the issue is whether such documents must be included in an Affidavit of Documents if they are in a party's possession.

BACKGROUND

[3] The appellant is a physician and surgeon who operates a cosmetic surgery centre in Toronto. In 1997, he performed cosmetic surgery on a patient, and in the course of the surgery, he took two photographs in the operating room showing the patient and two nurses. He claims that these photos were stolen and provided to the Toronto Sun, and that the defendants (respondents), the owners and publishers of the Sun and other newspapers, published the photographs several times between 1999 and 2001. He claims damages for breach of confidence and conversion.

[4] The College of Nurses conducted a disciplinary proceeding against the two nurses, which resulted in a dismissal of the complaints. The patient also laid a complaint against the appellant with the College of Physicians and Surgeons of Ontario. Following the decision of the College of Nurses, the Complaints Committee directed the College of Physicians and Surgeons to withdraw the complaint.

[5] The respondents moved before Master MacLeod for a further and better Affidavit of Documents, seeking an order that the appellant include a number of categories of documents including College documents. The Master refused to order disclosure of the documents relating to the College disciplinary proceedings.

[6] On appeal from his decision, the motions judge dismissed the appeal except in relation to the College documentation. She ordered that the following documentation be included in the appellant's Affidavit of Documents: "Documentation in the possession of the plaintiff/Centre regarding the proceedings at the College of Nurses of Ontario and at the College of Physicians and Surgeons of Ontario ("the College documents")."

The Issue

[7] At issue in this appeal is the interpretation of s. 36(3) of the Act, which provides:

36(3) No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

[8] There is no issue that the College documents are the type addressed by s. 36(3). The issue between the parties is the meaning of the word "admissible" in the legislation.

The Decision of the Motions Judge

[9] The motions judge concluded that s. 36(3) deals only with the admissibility of documents in evidence in a motion or trial in a civil proceeding, and it imposes an absolute bar to their admissibility in evidence. However, she concluded that the provision does not make College documents confidential when they are in the possession of a party to an action, nor does it prevent their use in a civil action (Reasons, paras. 28-33). Given the wording of the statutory provision, she "reluctantly" came to the conclusion that the Master was clearly wrong in his decision to withhold production of College documents in the possession of the appellant, and she allowed the appeal.

Analysis

[10] In Forget v. Sutherland (2000), 2000 5761 (ON CA), 134 O.A.C 117, 188 D.L.R. (4th) 296 (C.A.), Laskin J.A., writing for the majority, described the purpose of s. 36(3) at para. 29:

I find no relevant indicators of legislative meaning to displace the presumption in favour of the ordinary meaning of s. 36(3). The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action. This purpose would be defeated by reading a fraud or bad faith exception into s. 36(3).... (emphasis added)

[11] Laskin J.A. continued:

Section 36(3) is one of a number of legislative provisions whose broad objective is to keep College proceedings and civil proceedings separate. Section 36(1) provides for the confidentiality of information that comes to the knowledge of College employees; and s.36(2) provides that College employees cannot be compelled to testify in civil proceedings about matters that come to their knowledge in the course of their duties. (at para. 31)

... In my view, the purpose of s. 36(3) is to prevent not just patients but all participants in College proceedings from using documents generated for those proceedings in civil proceedings, in short to keep the two proceedings separate, (at para. 36, emphasis added)

[12] In Forget, the defendant physician, in his defence to a civil action, sought to plead and rely on the plaintiff patient's complaint to the College of Physicians and Surgeons and her subsequent recantation. Relying on s. 36(3), the plaintiff brought a successful motion to strike the portion of the physician's defence that referred to College documents. The majority in the Court of Appeal held that if a paragraph of a party's pleading pleads facts that cannot be proven at trial or pleads documents that cannot be admitted at trial, that paragraph may be struck on a motion.

[13] Forget was followed by the Court of Appeal in Task Specific Rehabilitation Inc. v. Steinecke (2004), 2004 4853 (ON CA), 188 O.A.C. 318, 244 D.L.R. (4th) 414.

[14] The appellant relies on Forget and submits that the motions judge erred in ordering production, as s. 36(3) prohibits the use of College documents in civil proceedings. The respondents submit that relevance for the purposes of discovery is different from admissibility at trial, and s. 36(3) is a bar only to the admissibility of the documents in evidence. Moreover, had the Legislature intended to prohibit production, it should have used clearer language, as it has done in other legislation, such as s. 38(2) of the Professional Engineers Act, R.S.O. 1990, c. P.28.

[15] In interpreting legislation, a court is to read the words of the Act "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" (Yonge Street Hotels Ltd. v. Municipal Property Assessment Corporation, 2005 14438 (ON CA), [2005] O.J. No. 1741 (QL), 50 O.M.B.R. 1 (C.A.), at para. 15, quoting Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983) at p. 87). More recently, the Supreme Court of Canada has emphasized again that the grammatical and ordinary sense is not determinative of the interpretation of a statute. In each case, the entire context of the provisions, including the purpose and scheme of the legislation, must be considered (City of Calgary v. ATCO Gas and Pipelines Ltd., 2006 SCC 4, 263 D.L.R. (4th) 193, at para. 48).

[16] In our view, the motions judge erred in her interpretation of s. 36(3), given the decision of the Court of Appeal in Forget. While she distinguished Forget on the basis that the case dealt with the admissibility of documents in evidence at a civil trial, not production of documents, in our view Forget is binding and determinative of the issue in this appeal.

[17] In that case, the Court of Appeal clearly held that College proceedings and civil proceedings were meant to be kept separate, given the terms and purpose of s. 36 of the Act. Moreover, the Court of Appeal clearly held that the words "not admissible in civil proceedings" in s. 36(3) meant that the documents could not be used in civil proceedings.

[18] While the Court of Appeal was dealing with a pleadings motion and considering the ultimate admissibility of material at trial. Laskin J.A.'s statement of the purpose of the legislation was framed in broad terms. Requiring the inclusion of College documents in an Affidavit of Documents is contrary to the legislation's purpose as he stated it – namely, to keep civil proceedings and College proceedings separate.

[19] In construing a statute, the words are to be considered in their entire context and in light of the purpose of the legislation. In this case, the words "not admissible" must mean "not capable of use" in a civil proceeding, as the Court of Appeal stated in Forget. If not, the confidentiality which the Legislature seeks to protect in College proceedings will be undermined through disclosure of the documents in civil proceedings. Even if there is protection from further disclosure to the public through the deemed undertaking rule, there will still be disclosure of information to those who have not been involved in the College process – an event that the Legislature sought to prevent through the provisions of s. 36.

[20] Therefore, there is no obligation to include the College documents in the Affidavit of Documents, for that would be inconsistent with the wording of s. 36(3), when read in light of the purpose of the subsection, as articulated in Forget.

Conclusion

[21] The appeal is allowed, and the order of disclosure made by the motions judge is set aside. In accordance with the parties' agreement on costs, the appellant shall have costs of the appeal from the Master in the amount of $3,500; costs of the leave to appeal motion in the amount of $3,500; and costs of the appeal before this Court in the amount of $3,000.

[22] Appeal allowed.