CITATION: Iacovelli v. College of Nurses of Ontario, 2014 ONSC 7267

DIVISIONAL COURT FILE NO.: 493/13

DATE: 2014/12/17 .

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

C. McKINNON, SWINTON & HARVISON YOUNG JJ.

BETWEEN:

Mark Iacovelli

Applicant

– and –

College of Nurses of Ontario

Respondent

Shaun O’Brien and Mia London for the Applicant

Linda R. Rothstein and Emily Lawrence for the Respondent

– and –

Attorney General of Ontario

Intervener

S. Zachary Green, for the Intervener

HEARD AT TORONTO: October 27, 2014

C. McKINNON J.:

OVERVIEW

[1] This is an application for judicial review of a decision made by the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Nurses of Ontario (“College”), requiring the applicant to undergo an independent medical examination to assess his capacity to practise as a nurse. The applicant is a registered nurse who works as the Team Leader of Surgical Oncology at Sunnybrook Health Sciences Centre (“Sunnybrook”). The applicant has worked at Sunnybrook since May, 2007.

[2] On April 28, 2013 the applicant took a break from his duties at 0300 hours. He did not return from his break. Management and security were notified. At approximately 0500 hours strange noises were heard coming from one of the rooms in the hospital. The applicant was found lying on the ground with decreased consciousness, a compromised airway and a needle in his arm. A “Code Blue” was initiated and the applicant was taken to the emergency department. It can fairly be stated that his life was saved as a result of this timely intervention.

[3] The applicant’s nursing colleagues mentioned that he had been “unsettled and agitated” during his shift. On looking into his handbag the shift manager and security team found a patient drug delivery device containing Sufentanil, a drug that is 500 times more potent than morphine. Other medical supplies were found, including four empty Hydromorphone vials, a powerful opioid derived from morphine.

[4] On May 3, 2013 during a meeting held with his employer, the applicant admitted that he had a drug addiction and that he had taken narcotics from the facility for his own use. He admitted to using Sufentanil during his shift. He later admitted that he had used the Hydromorphone he had taken from the hospital throughout the previous month and that he “often” misappropriated narcotics from the hospital. He also acknowledged that he had a history of substance abuse and had received treatment for his addiction in the past. He later admitted to his treating physician that he had been under the influence of opiates at work and was using them daily in the year 2012 and that his current relapse had begun in March 2013.

[5] Upon learning of this disturbing incident, the College of Nurses of Ontario initiated an inquiry to determine whether the applicant was “incapacitated” within the meaning of s. 1(1) of the Health Profession Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S. O. 1991, c. 18 (“RHPA”), that is, whether he “suffered from a physical or mental condition or disorder that makes it desirable in the interests of the public” that his certificate of registration be “subject to terms, conditions, or limitations or that the member no longer be permitted to practise.” The College notified the applicant of its inquiry and requested that he voluntarily provide health records. It also gave him an opportunity to respond, which he did, through counsel.

[6] The response dated September 30, 2013 included a medical report from his treating physician, Dr. Lisa Lefebvre, an addiction specialist. The applicant’s lawyer acknowledged that the applicant suffered from substance dependence “which is now in remission”, that he fully admitted to misappropriating Hydromorphone and Sufentanil from his workplace and “regrets having done so. Mr. Iacovelli often misappropriated narcotics which were supposed to be wasted”. The letter states that the applicant proactively identified that he had a problem and sought treatment at the Centre for Addiction and Mental Health (“CAMH”) in August 2012. He was abstinent for a period from October 2012 until March 2013 when he experienced a relapse. Dr. Lefebvre’s report noted that the applicant had been in remission for approximately five months, completed regular urine tests that proved negative and entered a 21 day residential treatment program at CAMH on June 13, 2013, had completed the program successfully and was currently attending weekly aftercare groups at CAMH and a weekly Caduceus group facilitated by a physician. Dr. Lefebvre also recommended ongoing treatment and testing conditions and restrictions on the applicant in the workplace. The letter notes that Dr. Lefebvre is an addiction specialist whose qualifications had been approved by the College, and she had been retained by the College in other cases.

In this case, she has prepared a thorough report with detailed recommendations. Therefore, in our submission, there is no justification which would require the College to send Mr. Iacovelli for a further assessment by a different addiction specialist.

[7] On October 15, 2013 the ICRC panel wrote to the applicant pursuant to s. 59(2) of the Code informing him that he must undergo an independent examination by an addiction specialist, reciting the disturbing facts in the case and noting that Dr. Lefebvre, in her report, had documented a diagnosis of opioid dependence which had been in remission for approximately five months.

[8] On October 30, 2013 the applicant brought this application for judicial review, submitting that the order of the ICRC exceeds the jurisdiction of the College and is unreasonable because it disproportionately infringes on the applicant’s fundamental rights to bodily and psychological integrity, medical privacy and equality.

The Statutory and Regulatory Framework

[9] In Ontario, nursing is a self-regulated health profession. Only members of the College may hold themselves out as nurses and perform specific “controlled acts”, such as administering medication by injection. The College is the body responsible for regulating the nursing profession. The scheme that governs the operations and jurisdiction of the College is contained in the RHPA, the Health Professions Procedural Code (“the Code”), and the Nursing Act, 1991, S.O. 1991, c. 32.

[10] The primary objective of both the RHPA and the Code was described in the Ontario Legislature by Minister Caplan as being: “to provide maximum protection to the public in the provision of health services”: Second Session, 34th Parliament Hansard, June 6, 1990 at 1340 and 1350. The College’s role is to regulate its members in a manner that maintains the public’s confidence that “among other things, nurses are fit to practice”. In doing so, the College has a duty to serve and protect the public interest: Code, s. 3(2).

[11] The College is administered by a Registrar. The Code establishes seven committees of the College, two of which are relevant to this case, the ICRC and the Fitness to Practice Committee (“the FTPC”): Code, ss. 9(2) and (10).

[12] An inquiry commences when the College becomes aware that a member may be “incapacitated”.

[13] Once a concern is raised with the College, there are three stages to the inquiry process. First, the Registrar inquires to determine whether he or she believes a member may be incapacitated and delivers a report to the ICRC; second, the ICRC inquires further and in the context of allegations of incapacity, determines whether a matter should be referred to the FTPC; and, third, the FTPC adjudicates whether the member is, in fact, “incapacitated”, and, if so, what terms, conditions, or limitations are to be placed on his or her certificate of registration, including whether the member should be practicing at all.

[14] It is significant that, in the present application, the inquiry has not reached the third stage. It remains at the inquiry stage. The ICRC has not yet determined whether the matter should be referred to the FTPC.

[15] Expanding on these three processes, when a concern is raised, the Registrar makes appropriate inquiries, pursuant to s. 57 of the Code. That section provides as follows:

If the Registrar believes that a member may be incapacitated, the Registrar shall make inquiries he or she considers appropriate and shall report the results of the inquiries to the Inquiries, Complaints and Reports Committee.

[16] The Registrar does not determine whether a member is, in fact, “incapacitated”. Rather, the Registrar considers whether there is reliable information to suggest there may be a risk to the public if the member continues to practice without restriction because of potential incapacity.

[17] The second stage in the process involves the ICRC, which is an investigative and screening body that reviews issues of incapacity, professional misconduct and/or incompetence that arise from complaints, from Registrar’s reports, or from information received from other committees of the College: Richard Steinecke, A Complete Guide to the Regulated Health Professions Act, (“Steinecke”) Release no. 24, October 2013 at 7:20.20 (Toronto, Canada Law Book, 2013). A member’s employer or facility officer must report to the College if they have reasonable grounds to believe a member is “incapacitated”: Code, ss. 85.2 and 85.5

[18] Following receipt of a report from the Registrar pursuant to s. 57, the chair of the ICRC selects a panel of the ICRC to make further inquiries. Panels are comprised of at least three people, one of whom is a member of the public: Code, s. 58. Pursuant to s. 58(2) of the Code, the member is notified that a panel is conducting a health inquiry and is invited to respond in writing. The ICRC makes inquiries it considers appropriate, and may ask the member to provide copies of any relevant health records voluntarily to the College: Code, ss. 58(2) and 59(1). In accordance with s. 36 of the RHPA, this information is held in confidence.

[19] The ICRC is not an adjudicative body. It is not subject to the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”): Code, s. 1(2). It does not hold “in person” hearings, assess credibility or make findings of fact. Rather, its role is to assess complaints and Registrar’s reports, conduct or initiate investigations and fact finding, and refer matters to the appropriate adjudicative committees for determination, if appropriate. The ICRC’s purpose in conducting such health inquiries is to obtain information sufficient to enable it to decide what to do with the matter once it has finalized its report and to gather materials sufficient for the FTPC to be able to make a decision on the matter if the ICRC determines the matter should be referred to that committee: Code, ss. 61, 62 and 69, Steinecke, at 7:20.20. Just as in the case of the Registrar, the ICRC does not make a final decision as to a member’s capacity. That is the exclusive role of the FTPC.

[20] The ICRC’s investigation is governed by s. 59 of the Code.

59.(1) A panel shall make the inquiries it considers appropriate.

Physical or Mental Examinations

(2) If, after making inquiries, a panel has reasonable and probable grounds to believe that the member who is subject of the inquiry is incapacitated, the panel may require the member to submit to physical or mental examinations conducted or ordered by a health professional specified by the panel and may, subject to s. 63, make an order directing the Registrar to suspend the member’s certificate of registration until he or she submits to the examinations. (Emphasis added).

[21] In essence, the panel gathers information and assesses whether it has reasonable and probable grounds to believe a member is incapacitated. It is only if the panel determines that there are reasonable and probable grounds that it then may require the member to submit to an independent medical examination. The panel provides reasons for its decision to the member. If the member fails to attend the independent medical examination, the panel has the authority to order an interim suspension of the member’s certificate of registration until the member complies: Code, s. 59(2).

[22] The information gathering role of the panel is essential. Only the ICRC may require a member to undergo an independent mental examination. The FTPC cannot: Steinecke, at 7:20.20(1).

[23] Once a panel is satisfied that it has sufficient information, it concludes its inquiry and gives a copy of its report to the member: Code, s. 60. Pursuant to s. 61 of the Code, the panel may refer the matter to the FTPC for a hearing with respect to the member’s fitness to practice: Code, s. 61.

[24] If there is a referral to the FTPC, that committee sits in panels of at least three people, one of whom is a member of the public: Code, s. 64(2). The FTPC holds hearings into a member’s fitness to practice nursing. Hearings before the FTPC are adjudicative in nature. During this third stage in the process, the College and the member are both parties to the proceeding: Code, s. 65. FTPC hearings are closed to the public and any evidence introduced during the course of the hearing is sealed: Code, s. 68. The College has an obligation to disclose to the member the documentary evidence on which it relies, the identity of any expert and a copy of the expert’s report or summary of anticipated evidence, as well as the identity of any witness it intends to call: Code, s. 42.

[25] The member is entitled to participate fully in the hearing. Members may be represented by counsel, and have a full opportunity to challenge the College’s evidence and tender their own evidence. The onus is on the College to prove “incapacity” on a balance of probabilities: Steinecke, at 7:40.20.

[26] The FTPC relies upon both facts and expert opinions given in evidence to determine if the member has a physical or a mental condition or disorder that may impact the member’s professional practice; the nature of that condition or disorder, in particular, its diagnosis, prognosis, character and potential for relapse; whether the condition or disorder warrants restrictions on the member’s practice such that he or she can practice without compromising public safety, or is of a nature that the member should not be permitted to practice at all; and the nature and scope of any warranted restrictions; that is, how they should be tailored to the member’s condition, the likelihood of relapse, and the nature of the member’s employment: Code, s. 69.

[27] If the FTPC determines that a member is incapacitated, it then makes orders to revoke, suspend or impose terms, conditions or limitations on the member’s practice: Code, s. 69.

The Order Under Review

[28] Based on the facts set out earlier in these reasons, the Registrar reported the incident to the ICRC, pursuant to s. 57 of the Code. The ICRC notified the applicant of its investigation and, as noted earlier, he filed a written response through his legal counsel on September 30, 2013. In that response he admitted he had substance dependence. He asserted that he abstained from substances from October 2012, but provided no medical evidence to support this assertion. In fact, his treating physician reported that he had previously elected to quit group therapy sessions and kept postponing withdrawal because it was inconvenient for him. He also advised the ICRC that he was receiving treatment from Dr. Lisa Lefebvre at CAMH.

[29] As noted earlier, the applicant’s response included Dr. Lefebvre’s report in which she diagnosed the applicant as having an opioid dependence, which had been in remission for approximately five months. She briefly described the applicant’s treatment program and medical history. She disclosed that opiates were not the only substances that the applicant had used and that at the time of his initial assessment with her, he was still using cocaine regularly. Dr. Lefebvre made recommendations about his ability to practice and the terms, conditions and limitations that she viewed as being appropriate.

[30] The applicant, through his lawyer, did not raise any issues arising from the Canadian Charter of Rights and Freedoms (“Charter”) in his response to the ICRC, nor identify any facts that might indicate that an independent medical examination would be particularly onerous for him. He simply relied on the fact that Dr. Lefebvre was a specialist whose qualifications had been approved by the College and that no further assessment would be required.

[31] The ICRC determined that there were reasonable and probable grounds that the applicant was incapacitated within the meeting of s. 59(2) of the Code. It ordered that the applicant attend for an independent assessment administered by a named addiction specialist (who was not his treating physician), because it believed such an examination was appropriate and necessary in the circumstances.

The Standard of Review

[32] The parties agree that the standard of review in this case is one of reasonableness, in that the ICRC was interpreting and applying the Code, its home statute: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Assoc., 2011 SCC 61 at paras. 34 and 39.

[33] The applicant nonetheless argues that the ICRC exceeded its jurisdiction by ordering the applicant to attend a medical examination when it had before it a full and thorough report from an addiction specialist approved by the College which comprehensively addressed any public safety concerns. It is the applicant’s argument that in so doing the ICRC failed to exercise its discretion in accordance with fundamental values protected by the Charter and quasi-constitutional legislation such as the Human Rights Code, R.S.O. 1990, c. H.19, and the Personal Health Information Protection Act, S.O. 2004, c. 3, Sch. A, thereby infringing the applicant’s fundamental rights to bodily and psychological integrity and medical privacy. It also imposed a discriminatory burden on the applicant due to his admitted disability, in contravention of his equality rights.

[34] The College submits that to the extent the applicant is attempting to frame the issue under review as jurisdictional in order to influence the level of deference to be afforded to the ICRC’s decision, this argument should be rejected. The College argues that reasonableness is a single standard, deserving of deference, recognizing that there is usually more than one correct answer to a question.

[35] The notion of deference is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers. Tribunals have a margin of appreciation within the range of acceptable and rational outcomes. So long as a decision is “defensible in respect to the facts and law” it should not be interfered with on review: Canada (Citizenship and Immigation) v. Khosa, 2009 SCC 12 at para. 59; Alberta Teachers’ Assoc. at para. 34; Dunsmuir v. New Brunswick, 2008 SCC 9 at paras. 47 to 48; Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 11.

[36] I am persuaded that the argument of the College must prevail. The standard of review is “reasonableness”, pure and simple. To accept the submission of the applicant would effectively alter the “reasonableness” standard of review to a sliding scale, which is precisely what Dunsmuir, and cases following it, have sought to avoid.

Issues

[37] The applicant raises the following issues:

1. Whether the ICRC was required to consider Charter values in ordering an independent health assessment.

2. Whether Dr. Lisa Lefebvre’s report constitutes an adequate alternative to an independent health assessment as ordered by the ICRC.

3. Whether there were breaches of section 7 and 8 of the Charter in the circumstances of this case.

Whether the ICRC was Required to Consider Charter Values in Ordering an Independent Health Assessment

[38] The applicant relies upon the recent case of Doré v. Barreau du Québec, 2012 SCC 12 and in particular paras. 24 and 35 of that decision which state:

24 It goes without saying that administrative decision-makers must act consistently with the values underlying the grant of discretion including Charter values…(authorities deleted)

35 …Administrative decisions are always required to consider fundamental values. The Charter…simply acts as “a reminder that some values are clearly fundamental and…cannot be violated lightly”…Administrative bodies are empowered, and indeed required, to consider Charter values within the scope of their expertise...

[39] The applicant points out that in Doré, the Supreme Court confirmed that in assessing whether an administrative decision violates fundamental values, the decision is subject to judicial review on a reasonableness standard. The decision will be found to be unreasonable where it has disproportionately limited fundamental rights or values in the context of the statutory objectives. Where administrative decision-makers have a statutory mandate to protect public safety, they must fulfill their mandate in a manner that is “the least onerous and least restrictive” to an individual’s fundamental rights to equality, bodily integrity and medical privacy. Where a decision-maker imposes measures that are not the least infringing to these fundamental rights, its decision will be unreasonable: Doré, para. 49; Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21 at paras. 19 and 23.

[40] The applicant submits that the College is required to fulfill its mandate in a manner that prevents and removes barriers that impede the disabled from participating fully in the professional environment in a way that is responsive to their unique circumstances: College of Nurses v. Trozzi, 2011 ONSC 4614, [2011] O.J. No. 4744 (Div. Ct.) at para. 44.

[41] Thus, he argues that in light of the information available to the ICRC from Dr. Lefebvre, any further medical examination was unnecessary and unjustified. In making its order for the applicant to undergo an intrusive medical assessment by an addiction physician with whom he has no therapeutic relationship, the ICRC disproportionately limited his fundamental rights to bodily and psychological integrity, privacy and freedom from discrimination on the ground of disability. Furthermore, the applicant’s compliance is ensured by the threat of suspension on his license for non-attendance at the examination.

[42] The College answers that the ICRC was not required to engage in a balancing of factors, including consideration of Charter values, when making an order under s. 59(2) of the Code. The Attorney General of Ontario, the intervener, shares this view. The College submits that Doré was developed in the context of broad, multi-factored exercises of discretion by adjudicative decision-makers, not the sort of discretion at issue in the case at bar. This is abundantly clear from the specific context under consideration in Doré – the appropriate penalty to be ordered by a professional discipline tribunal where a lawyer criticized a judge, but it is also apparent from other examples discussed in Doré: a minister’s discretion in whether or not to surrender someone for extradition is open-ended, inevitably based on numerous considerations; so too is a school board’s decision about what textbooks should form part of the school curriculum. The College submits that, unlike these kinds of decisions, the ICRC’s exercise of discretion under s. 59(2) is narrowly circumscribed by the legislation, the role of the committee and the objectives of the statutory scheme. At its core, the ICRC plays a gatekeeper function: it collects relevant information for the benefit of the actual decision-maker, the FTPC. The ICRC does not exercise a statutory power of decision within the meaning of the Judicial Review Procedure Act, R.S.O. 1990 c.J.1, or the SPPA. Its decision is not multi-factored, nor is it primarily an issue of public policy. Rather, the ICRC must simply determine whether it has “reasonable and probable grounds to believe that a member may be incapacitated” and only then may it order an independent medical examination.

[43] The College submits that it is both unworkable and unnecessary to require the ICRC to perform an analysis of Charter values in addition to determining whether it has reasonable and probable grounds to believe that a member may be incapacitated. The College submits that the Supreme Court cannot have intended such a result. The fact that the legislature has placed a precondition on the ICRC’s authority to order an independent medical examination, namely, that there must be reasonable and probable grounds to order such an examination, adequately addresses the key Charter concerns raised by the applicant in this case, namely protection of privacy, bodily integrity and equality.

[44] The Attorney General submits that the legislature has balanced the interests of health professionals in being left alone with the needs of health professional Colleges to obtain medical information about members who are or may be suffering from a health condition that impairs their capacity to practice safely. The balance is reflected in the requirement that the ICRC may only require an independent medical examination where it has reasonable and probable grounds to believe the member is incapacitated. If the applicant believed that the threshold of reasonable probable grounds is insufficiently protective of his rights and a higher threshold is constitutionally required before an examination can be required, it was open to him to challenge the validity of s. 59(2), but he did not. In the absence of such a challenge, it is not open to the applicant to impugn the ICRC’s decision on the basis that the ICRC should have applied a different or stricter test than the one specified by the statute. The ICRC has done exactly what the legislature has asked it to do. If the applicant has a Charter complaint, it is with the content of this statute, not with the ICRC’s application of it.

[45] The Attorney General further submits that the ICRC made no error in applying the “reasonable and probable grounds” test set out in s. 59(2). It was not obliged to go further on its own initiative to use Charter values to supplement this expressed statutory test with a different “least onerous and least restrictive” test that is found nowhere in the home statute. Such an approach amounts to “reading in” language to the statutory text without ever making a finding of constitutional invalidity or considering whether the statute is justified under s. 1 of the Charter.

[46] The Attorney General submits that the Supreme Court has repeatedly cautioned that Charter values should not be invoked to “deprive the Charter of its more powerful purpose – the determination of the constitutional validity of legislation”. The approach of the applicant would effectively pre-empt judicial review of the constitutional validity of s. 59(2). The legislature is entitled to have its legislation tested against the Charter, including s. 1 of the Charter. Absent a finding that the balance the legislature has struck is unconstitutional, the ICRC’s role is to give effect to this balance and not to adopt a different one: R. v. Rodgers, 2006 SCC 15 at para. 18.

[47] In my view, the arguments of the respondent and the intervener are unassailable. The position that the applicant occupies at the present time is one step removed from the broad exercises of administrative discretion envisaged by the Supreme Court in Doré. The ICRC is an investigative and gatekeeping body. Its role is strictly proscribed by the legislation. The applicant’s privacy and integrity interests are protected by the fact that the ICRC may only order him to undergo an independent medical examination on reasonable and probable grounds. In this case, the applicant agrees that the ICRC does have reasonable and probable grounds to order a medical examination. His argument is simply that Dr. Lefebvre has already undertaken the examination and he should not be put to the trouble of undergoing a further examination given the statutory scheme described earlier in these reasons.

[48] At this stage of the proceedings, the ICRC is not bound to make its decisions on whether to refer a member for an independent medical examination based on a freestanding consideration of Charter values. Rather, it bases its decision on whether reasonable and probable grounds exist to order such an examination and thereby ensures that the Charter values raised by the applicant are respected. These grounds do exist, as acknowledged by the applicant.

[49] In contrast to the kinds of decision-makers considered in Doré, the ICRC is poorly suited to undertake a free-standing “Charter values” analysis each time it contemplates requiring an examination under s. 59(2). The ICRC does not have the benefit of contending parties making legal submissions before it. Indeed, in the present case, the applicant did not ask the ICRC to consider the Charter prior to requiring an examination under s. 59(2). The ICRC cannot be expected to balance Charter values on its own initiative, and in a legal vacuum.

[50] The applicant argued that the ICRC is required to exercise its powers in a manner that minimally infringes on the applicant’s fundamental rights and only where it is the “least restrictive and least onerous” option.

[51] I reject this argument. To give effect to it would be to use Charter values to replace the legislative threshold of “reasonable and probable grounds” with a different test, not found in the statute nor intended by the legislature. If a reformulation of the test in s. 59(2) is constitutionally required, it should be done either by the legislature in response to a declaration of invalidity or through the constitutional remedy of “reading in” after a judicial finding of invalidity of the statutory provision. No Notice of Constitutional Question has been served upon the Attorney General, nor has the Attorney General had any opportunity to adduce evidence justifying any such alleged infringement.

[52] With respect to “the least onerous and least restrictive” test urged by the applicant to be imported into a reading of s. 59(2), it need only be noted that that is the test set out in the “not criminally responsible” provisions of Part XXI of the Criminal Code. The Supreme Court’s comments in Doré concerning the least onerous and least restrictive test were made only in the context of discussing the “not criminally responsible” provisions of the Code, wherein the court noted “the test was laid out in the statute”: Doré, para. 49.

[53] The words “least onerous and least restrictive” occur nowhere in the RHPA and form no part of the legislature’s intention in drafting s. 59(2). They are plainly unsuitable to the functions of the health profession College, whose overarching duty is not to pose the least restrictions on its members, but rather to protect the public. All of the College’s actions are taken to serve and protect the public interest. A member’s interest in practicing without restrictions must necessarily take second place to this overriding duty.

[54] The applicant contends that his Charter values are engaged because the requirement to submit to an examination engages his fundamental rights to bodily and psychological integrity, medical privacy, and freedom from discrimination on the ground of disability. These factors may equally be said to arise in every exercise of the s. 59(2) power to require a medical examination of a member suspected or known to be incapacitated. There is nothing unique or particular about the applicant’s situation that may be said to engage these Charter values. If they are implicated in this case, they are implicated in every s. 59(2) examination required by every College operating under the RHPA.

[55] The Court of Appeal recently summarized the approach to interpreting statutes governing professional regulation in its decision in Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, leave to appeal refused [2012] S.C.C.A. No. 549. The statutory power at issue in Sazant is analogous to the statutory power at issue in this case, namely, the power of a health professional regulator to compel relevant information in an investigation where it has reasonable and probable grounds to believe its jurisdiction has been engaged by a member’s conduct. The court held at para. 101:

The Supreme Court of Canada has consistently emphasized the need for courts to interpret professional discipline statutes with a view to ensuring such statutes protect the public interest in the proper regulation of the professions (authorities deleted).

[56] The objective of the incapacity provisions of the Code is to provide a means to protect the public from practitioners whose illness is interfering with their ability to practice safely: Sazant at paras. 101–102. The goal of the incapacity process is to ensure that the member is sufficiently supervised and monitored so that he or she can continue practicing without jeopardizing the safety of the public, as well as to ensure he or she obtains necessary and appropriate treatment: Steinecke at 7:10.

[57] The reasonable and probable grounds requirement is the balance that the legislature has struck between the interests at stake. On the one hand, the member’s privacy, dignity, and bodily integrity are respected because it is only once the committee’s concerns have reached this threshold that an independent medical examination may be ordered. On the other hand, the public has a pressing and substantial interest in ensuring only members fit to practice nursing continue to do so.

[58] Thus, the requirement of section 59(2) of the Code that there be reasonable and probable grounds before an order may be made that an individual submit to an independent medical examination affords the individual the very protection sought in this case, namely that the applicant’s rights to bodily and psychological integrity, privacy and freedom from discrimination on the ground of disability be respected. Those considerations are implicit in the necessity that there exist reasonable and probable grounds to order an independent assessment and subsume the Charter considerations raised by the applicant.

[59] The applicant’s argument on this issue must fail.

Whether Dr. Lisa Lefebvre’s Report Constitutes an Adequate Alternative to an Independent Health Assessment as Ordered by the ICRC

[60] The applicant asks this court and the ICRC to accept that Dr. Lefebvre’s report is tantamount to an independent medical examination, pointing out that the report includes the applicant’s substance use history, his substance abuse treatment history, his family history, his past psychiatric history, his past medical history, his social history, his current medications, the results of Dr. Lefebvre’s physical examination of the applicant, a summary of his urine drug test results under Dr. Lefebvre’s care, his blood work results, together with Dr. Lefebvre’s conclusions and recommendations.

[61] The applicant submits that the policies of the College of Physicians and Surgeons of Ontario (“CPSO”) require treating physicians to provide reports that are “objective, reliable and unbiased”. The CPSO does not draw stark distinctions between the obligations of treating physicians and of independent medical examiners. Instead, the CPSO requires all physicians who provide reports for the use of third parties, such as the College, to do so in a manner that is “respectful, objective and that upholds the reputation of the profession”. Specifically, the CPSO expressly requires both treating physicians and independent medical examiners to ensure their reports are “comprehensive, contain accurate information, and are written in an objective manner”. Treating physicians, like independent medical examiners, must ensure that any findings and opinions contained in a report be “stated objectively” and be “free from personal bias”: College of Physicians and Surgeons of Ontario, “Policy Statement #2-12: Third Party Reports: Reports by Treating Physicians and Independent Medical Examiners, May 2012.

[62] That said, the applicant agrees that as part of their professional obligations, treating physicians are expected to act as advocates for their patients. However, it is submitted that the College has failed to articulate the correct meaning of this term in the context of the physician-patient relationship. Advocacy for patients means “the responsible use of expertise and influence to advance patients’ health care interests”. This includes assisting patients in successfully navigating the health care system and advocating for policies that promote the health and well-being of patients: College of Physicians and Surgeons of Ontario, “The Practice Guide: Medical Professionalism and College Policies”, 2007. The applicant submits that advocacy does not amount to using a third party report to advocate for a particular financial or professional outcome. Such conduct would be contrary to the physician’s professional obligations and could constitute professional misconduct. The applicant submits that Dr. Lefebvre’s report is comprehensive and balanced and that she provided her candid opinion that the applicant met the definition for “incapacity” in the legislation and stated that he was only fit to return to nursing practice with a number of standard, but stringent restrictions in place, including that he attend two regular support groups, have two addiction specialists in his treatment program and that conditions should last a minimum of five years.

[63] The College submits that this submission is fundamentally flawed and completely ignores the importance of independence and objectivity of expert opinion evidence, particularly medical expert evidence. The College submits that the CPSO, being the regulator of all physicians in the province, has issued a specific policy respecting third party reports. The policy draws a distinction between a “treating physician” and an “independent medical examiner” as well as a “patient” and “examinee”. The duties owed by a physician in each circumstance are overlapping somewhat, but they are not identical, and in many cases conflict. Most importantly, a physician owes his or her patient a fiduciary duty. The independent medical examiner does not. According to the CPSO’s Practice Guide, at p. 9, “the patient must always be confident that the physician has put the needs of the patient first. This principle should inform all aspects of the physician’s practice”.

[64] Physicians are also expected to advocate on behalf of their patients: Practice Guide, at p. 12. A treating physician may be in a conflict of interest when attempting to provide an independent opinion about his or her patient. The Guide at p. 16 states that: “If there is a conflict between a physician’s obligation to a patient and the obligation to the system (e.g. efficiency), the profession’s commitment to the value of altruism makes it clear that the patient should always come first”.

[65] The College submits that these aspects of the physician-patient relationship are inconsistent with the purpose of an independent medical examination. Such an examination is premised on obtaining objective information and opinion. An independent examiner cannot be an advocate for the examinee. An independent medical examiner, unlike a treating physician, must also consider, before accepting a retainer, “whether any actual or potential conflicts of interest exist between the physician and the parties involved”: Policy Statement #7-12 Medical Expert Reports and Testimony, Issue 4, 2012. Possible conflicts include a pre-existing professional relationship with the examinee. Examiners must also explain to the examinees that “they have been asked to act as medical experts, which means that their role is not to treat the individual, but to provide objective and impartial opinions to assist the adjudicative body”: Medical Expert Reports, p. 3.

[66] There is no evidence that the applicant’s treating physician turned her mind to these considerations when preparing her report. The College submits that the courts must consider the impact of a treating physician’s relationship on his or her objectivity. A treating physician is a participant in the facts of the case, as they unfold, and that does impact on objectivity: Peloso v. 778561 Ontario Inc. (c.o.b. J.L. Maintenance Services), 2005 ONSC 21543, [2005] O.J. No. 2489 (OSCJ), at para. 216.

[67] Practically speaking, the ICRC has no mechanism available to assess the objectivity of the opinion of the treating physician. There is not even an adverse party at the ICRC stage. The treating physician’s report is not subject to cross-examination unless and until the matter proceeds to the FTPC, at which point it is too late for the College to order an independent examination.

[68] The College further submits that the fact that the applicant’s treating physician has been retained by the College as an independent expert in other cases where she was not the treating physician is a complete “red herring”. The reasonableness of the ICRC’s decision cannot turn on the identity of the treating physician, just as the deference owed by the judiciary to an administrative adjudicator cannot turn on the specific adjudicator in question. It is the relationship between doctor and patient that risks comprising objectivity and independence. Dr. Lefebvre’s qualifications and previous retainers do not overcome these concerns.

[69] During the course of oral argument, Ms. Rothstein for the College carefully dissected the eight page report of Dr. Lefebvre. References were made in the report to the CAMH health record of the applicant and clinical interviews with him conducted by Dr. Lefebvre. None of these records were provided to the College. There are contradictions with respect to the applicant’s substance use history. It is unknown from the report exactly when he began using cocaine. The extent and use of cocaine is undocumented. Mention of relapse is noted, but no date is given. Mention of his drinking is given and the fact that he had his first drink at 17. Nowhere in the report is his age mentioned, so it is impossible to assess the impact of first onset of addiction to the present time. With respect to Dr. Lefebvre’s conclusions wherein she speaks of risk of relapse being, “particularly high in the first years of abstinence”, no mention is made of the number of years. Among the recommendations is that the applicant continue in aftercare groups at CAMH for a minimum of one year. It is submitted that this is not a strict condition. More troublesome is the recommendation that the applicant have restricted access to narcotics in the workplace for a minimum of six months. It was submitted in oral argument that frequently, in cases of addiction, the condition of restricted access to narcotics can last two to three years.

[70] Stated simply, the report of Dr. Lefebvre raises numerous questions with respect to the true state of the applicant’s addiction, his history, and appropriate conditions were he to continue to be employed as a nurse. The report can fairly be interpreted as pointing to the necessity of obtaining an independent medical examination.

[71] In the circumstances, I would find that the requirement imposed on the applicant, namely, that an independent medical examination be undertaken, is entirely reasonable in the circumstances of this case. The applicant’s argument on this issue must fail.

Whether There Were Breaches of Sections 7 and 8 of the Charter in the Circumstances of this Case

[72] Given my findings with respect to the applicant’s first two arguments, I need not consider whether there was a breach of ss. 7 and 8 of the Charter in the circumstances of this case.

[73] For these reasons, the application for judicial review is dismissed.

[74] In the event counsel are unable to agree on costs, short written submissions restricted to five pages in length may be made within a 45 day period on a schedule agreed to by counsel.

C. McKinnon, J.

Swinton, J.

Harvison Young, J.

Released: December 17, 2014

CITATION: Iacovelli v. College of Nurses of Ontario, 2014 ONSC 7267

DIVISIONAL COURT FILE NO.: 493/13

DATE: 2014/12/17 .

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

C. McKINNON, SWINTON & HARVISON YOUNG JJ.

BETWEEN:

Mark Iacovelli

Applicant

– and –

College of Nurses of Ontario

Respondent

– and –

Attorney General of Ontario

Intervener

C. McKINNON J.

K. SWINTON J.

A. HARVISON YOUNG J.

Released: December 17, 2014