CITATION: Lum, Konjarski v. Inquiries, Complaints and Reports Committee of the College of Physiotherapists of Ontario, 2015 ONSC 7227
DIVISIONAL COURT FILE NO.: 294/15 and 295/15 DATE: 20151119
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, V. J. MACKINNON AND D. L. CORBETT JJ.
BETWEEN:
File No. 294/15
LO-MING LUM
Applicant
– and –
INQUIRIES, COMPLAINTS AND REPORTS COMMITTEE (ICRC) OF THE COLLEGE OF PHYSIOTHERAPISTS OF ONTARIO
Respondent
File No. 295/15
JEKLINA (GINA) KONJARSKI
Applicant
-and –
INQUIRIES, COMPLAINTS AND REPORTS COMMITTEE (ICRC) OF THE COLLEGE OF PHYSIOTHERAPISTS OF ONTARIO
Respondent
In Person
Joanna Birenbaum, for the Respondent, College of Physiotherapists of Ontario
In Person
Joanna Birenbaum, for the Respondent, College of Physiotherapists of Ontario
HEARD at Toronto: November 19, 2015
SWINTON J. (ORALLY)
[1] The applicants, Ms. Konjarski and Ms. Lum, seek judicial review of a decision of the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Physiotherapists of Ontario dated May 14, 2015. The Committee decided:
(a) not to refer complaints against the applicants to a Discipline Committee; and
(b) to issue a caution to the applicants respecting their public communications about a number of individuals and organizations.
[2] We provide one set of reasons for both applications, which were heard together.
[3] The applicants argue that the ICRC:
(a) exceeded its jurisdiction by making findings of fact;
(b) exceeded its jurisdiction by making findings of professional misconduct; and
(c) said it would revisit the allegations against the applicants if they do not “cease this type of activity.”
[4] The applicants are correct that the ICRC may not make findings of fact, determinations of professional misconduct or suggest that its decision not to refer issues to a Discipline Committee may be revisited in the future.
[5] The applicants are not correct, however, in reading the ICRC’s decision as containing these errors. The ICRC’s decision is set out on the first page of its letter:
At the conclusion of its deliberations on April 9, 2015, the panel confirmed that there were concerns with regards to your conduct and behaviour as it related to your attempts to engage the public in order to gain support and/or cause others to have a negative view of your former colleagues, public officials and organizations, and that this conduct reflected negatively on you as a physiotherapist and the profession as a whole. The panel has determined that the concerns are significant enough to require that you appear before a panel of the ICRC at a future date, to be scheduled by the Registrar, in order to receive a caution.
[6] The ICRC concluded that there were “concerns”. It did not make findings of professional misconduct.
[7] The ICRC did consider the materials before it, but it did not make findings of fact or credibility. It did, however, perform its screening duty by considering the materials before it, including the applicants’ response. In sum, the information giving rise to the ICRC proceeding described alleged unprofessional communications made by the applicants to the public by social media and flyers placed in residential mailboxes.
[8] The applicants’ response was grounded in their rights to “free speech” and their grievances against their former employer and former colleagues. The substance of the alleged unprofessional communications seem, on their face, to be intemperate.
[9] The ICRC did not make findings as to what specific communications were made by the applicants, to whom the communications were made, or what the substance was of those communications. On pages 3 and 4 of the decision, the ICRC wrote as follows:
The panel was most concerned that, despite having received advice from the Registrar in the past concerning your public communications, you resumed similar practices a short time later. The information you distributed included messaging that targeted specific individuals and was hand delivered to public and private locations. Not only does this have the potential to damage your reputation it also reflects poorly on the profession as a whole. The panel acknowledges that both you and your former colleague feel as though you have been treated badly by a number of individuals and organizations including the College.
[10] The ICRC was reasonably concerned that the applicants had not followed the Registrar’s advice about their public communications, given in a letter in September 2013. In the final paragraph of its decision, the ICRC wrote:
You are cautioned to cease this type of activity. Should you choose to continue these types of activities a future panel of the ICRC will be required to consider whether a referral to the Discipline Committee for a hearing is warranted, the outcome of which could be the revocation of your certificate of registration.
This is not a threat to revisit the allegations before the ICRC. It is a statement that if the applicants continue to make public communications of the kind reviewed by the ICRC, a future ICRC may refer those future intemperate communications to a Discipline Committee.
[11] The applicants’ jurisdictional arguments fail.
[12] The applicants have raised allegations of bias in fact and/or reasonable apprehension of bias. There is no evidence of bias by the ICRC, real or apprehended.
[13] The applicants argue that the alleged bias of the Registrar or others at the College is somehow bias of the ICRC. There is no merit to this argument.
[14] The applicants argue they were denied procedural fairness because they did not get a copy of the April 30, 2013 Hutchinson letter. The applicants received a copy of that letter when it became relevant as background context to the ICRC’s consideration of the report dated March 2015 resulting from an investigation. The applicants had the opportunity to respond to the letter at that time. There was no obligation on the part of the College to disclose that document earlier.
[15] The applicants claim that they were denied procedural fairness because an early file memo was not provided to them. The applicants are concerned because this document allegedly characterized their conduct as menacing during a visit by them to the College on March 22, 2013, resulting in a “lockdown” at the College. This information is simply not relevant to the issues before the ICRC or before us.
[16] The applicants claim their Charter rights to freedom of expression and to life, liberty and security of the person have been infringed.
[17] A professional governing body may regulate standards of professional communication. Respecting freedom of expression, we are satisfied that the ICRC considered the Charter values which were raised by the applicants. Given the record before the ICRC, its approach is reasonable in the circumstances of this case.
[18] There is no issue of infringing the applicants’ s. 7 right to life, liberty or security of the person in this case. Moreover, it does not appear this issue was raised before the ICRC.
[19] For these reasons, the applications for judicial review are dismissed.
COSTS
[20] I have endorsed each of the Application Records, “This application is dismissed for oral reasons delivered today. Costs to the respondent fixed at $1,500.00.”
___________________________ SWINTON J.
V. J. MACKINNON J.
D. L. CORBETT J.
Date of Reasons for Judgment: November 19, 2015
Date of Release: November 20, 2015
CITATION: Lum, Konjarski v. Inquiries, Complaints and Reports Committee of the College of Physiotherapists of Ontario, 2015 ONSC 7227
DIVISIONAL COURT FILE NO.: 294/15 and 295/15 DATE: 20151119
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, V. J. MACKINNON AND
D. L. CORBETT JJ.
BETWEEN:
File No. 294/15
LO-MING LUM
Applicant
– and –
INQUIRIES, COMPLAINTS AND REPORTS COMMITTEE (ICRC) OF THE COLLEGE OF PHYSIOTHERAPISTS OF ONTARIO
Respondent
File No. 295/15
JEKLINA (GINA) KONJARSKI
Applicant
-and –
INQUIRIES, COMPLAINTS AND REPORTS COMMITTEE (ICRC) OF THE COLLEGE OF PHYSIOTHERAPISTS OF ONTARIO
Respondent
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: November 19, 2015
Date of Release: November 20, 2015