College of Nurses of Ontario v. Dumchin; Federation of Health Regulatory Colleges of Ontario, Intervenor

[Indexed as: College of Nurses of Ontario v. Dumchin]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Sachs, E.M. Stewart and Pattillo JJ.

April 4, 2016

130 O.R. (3d) 602 | 2016 ONSC 626

Case Summary

Professions — Health professions — Discipline — Discipline panel having continuing jurisdiction under Health Professions Procedural Code to revoke or suspend member's certificate of registration after member resigns — Revocation appropriate penalty for nurse who was found guilty of professional misconduct based on his convictions for child pornography offences.

The discipline panel of the College of Nurses found the respondent nurse guilty of professional misconduct based on his convictions for child pornography offences. The panel found that the appropriate penalty was revocation of the respondent's certificate of registration, but concluded that it did not have jurisdiction to impose this penalty as the respondent had resigned before the hearing. While s. 51(2) of the Code gives the panel the authority to direct the registrar "to revoke the member's certificate of registration", the panel reasoned that once a member resigns, his certificate becomes non-existent. The panel ordered that the respondent be reprimanded. The college applied for judicial review of that decision.

Held, the application should be allowed.

The Regulated Health Professions Act, 1991, S.O. 1991, c. 18 and the Code must be given a broad and purposive interpretation in keeping with the college's duty to act in the public interest. Section 14 of the Code provides that a person whose certificate of registration is revoked or expires or resigns continues to be subject to the college's jurisdiction for professional misconduct. The panel construed the continuing jurisdiction bestowed by s. 14 too narrowly and employed an unreasonable, formalistic interpretation which was inconsistent with the plain language of s. 14. The purpose of s. 14 is to ensure that a member cannot frustrate the disciplinary process by resigning unilaterally. The panel's interpretation not only limits, but removes the college's important sanctioning powers, which include suspension and the imposition of conditions as well as revocation. To allow this interpretation to stand would be antithetical to the overarching public protection purposes of the statutory disciplinary regime.

There was no reason to interfere with the panel's determination that, but for its conclusion as to its jurisdiction, revocation of registration would be an appropriate penalty. The order of the panel should be set aside and the respondent's certificate should be revoked.

Cases referred to

Beitel v. College of Physicians and Surgeons of Ontario, [2013] O.J. No. 3281, 2013 ONSC 4658, 311 O.A.C. 35 (Div. Ct.); Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; [page603] Carruthers v. College of Nurses of Ontario (1996), 1996 11803 (ON SC), 31 O.R. (3d) 377, [1996] O.J. No. 4275, 141 D.L.R. (4th) 325, 96 O.A.C. 41, 67 A.C.W.S. (3d) 596 (Div. Ct.); McLean v. British Columbia (Securities Commission), [2013] 3 S.C.R. 895, [2013] S.C.J. No. 67, 2013 SCC 67, 347 B.C.A.C. 1, 452 N.R. 340, 2013EXP-3911, J.E. 2013-2131, EYB 2013-230152, 366 D.L.R. (4th) 30, [2014] 2 W.W.R. 415, 53 B.C.L.R. (5th) 1, 64 Admin. L.R. (5th) 237, 235 A.C.W.S. (3d) 290; Ontario College of Pharmacists v. 1724665 Ontario Inc. (c.o.b. Global Pharmacy Canada), [2013] O.J. No. 2670, 2013 ONCA 381, 308 O.A.C. 200, 363 D.L.R. (4th) 724, 228 A.C.W.S. (3d) 268

Statutes referred to

Regulated Health Professions Act, 1991, S.O. 1991, c. 18 [as am.], Sch. 2, ss. 14 [as am.], 25-56 [as am.], 51(2) [as am.], 70, 72 [as am.], 75 [as am.]

APPLICATION for judicial review of a decision of the discipline panel of the College of Nurses of Ontario.

Linda R. Rothstein and Emily Lawrence, for appellant.

James P. Thomson, for respondent.

Richard Steinecke, for intervenor.

The judgment of the court was delivered by

E.M. STEWART J.: —

Overview

[1] Mark Dumchin ("Dumchin"), a nurse, was registered by the College of Nurses of Ontario (the "college") until 2013, when he resigned his registration while under investigation for professional misconduct.

[2] In March 2015, following a hearing before a panel of the College's Discipline Committee, Dumchin was found guilty of professional misconduct due to his criminal convictions for possession of child pornography and making available child pornography. Although the panel considered that the appropriate penalty for this misconduct would be the revocation of Dumchin's certificate of registration, it concluded that it lacked statutory power to impose such a penalty because he had resigned. Instead of revocation, it ordered that Dumchin be reprimanded.

[3] The college appeals the penalty portion of the decision of panel of the Discipline Committee. The college submits that the panel's interpretation of its statutory powers is unreasonable and that Dumchin's certificate of registration ought to have been revoked.

[4] Dumchin takes the position that the panel's penalty order as to penalty was reasonable and ought to be upheld.

[5] The Federation of Health Regulatory Colleges of Ontario (the "FHRCO") has been granted intervenor status to explain [page604] the legislative regulatory regime and the consequences that would flow from the granting or denial of this appeal. The FHRCO submits that any interpretation of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the "RHPA") that prevents a discipline panel from imposing a suspension or revocation of registration on a resigned or expired former member will have significant consequences for the regulatory activities and mandate of the colleges operating under the RHPA.

Jurisdiction

[6] An appeal from an order of the panel of the Discipline Committee lies to the Divisional Court pursuant to s. 70 of the Health Professions Procedural Code (Sch. 2 to the RHPA, 1991, S.O. 1991, c. 18) (the "Code"):

70(1) A party to proceedings before the Board Concerning a registration hearing or review or to proceedings before a panel of the Discipline or Fitness to Practice Committee, other than a hearing of an application under subsection 72(1), may appeal from the decision of the Board or panel to the Divisional Court.

(2) An appeal under subsection (1) may be made on questions of law or fact or both.

(3) In an appeal under subsection (1), the Court has all the powers of the panel that dealt with the matter and, in an appeal from the Board, the Court also has all the powers of the Board.

Standard of Review

[7] The college and the FHRCO agree with Dumchin that the applicable standard of review is reasonableness. However, the college submits that, because the central issue on appeal is one of statutory interpretation, the "range of reasonable outcomes" in this case is necessarily limited to a single reasonable interpretation (see McLean v. British Columbia (Securities Commission), [2013] 3 S.C.R. 895, [2013] S.C.J. No. 67, 2013 SCC 67).

Preliminary issues

[8] Although Dumchin took issue with the college's delay of one day in serving its notice of appeal, he no longer pursues that argument on this appeal.

[9] Dumchin brought a motion to introduce fresh evidence on appeal to which the college takes no objection. Accordingly, the evidence was admitted.

Background facts

[10] The background facts are very straightforward and not in dispute. [page605]

[11] Dumchin has pleaded guilty in court to criminal charges of possession of child pornography and making available child pornography.

[12] In February 2013, Dumchin resigned from the college, seeking to avoid disciplinary consequences. In order to avoid a hearing, Dumchin offered to sign an irrevocable undertaking to never reapply for registration with the college or any nursing college in a jurisdiction in Canada or the United States.

[13] The college rejected Dumchin's proposal and proceeded to pursue a charge of professional misconduct against him and to conduct a hearing of the charge before a panel of the college's Discipline Committee.

[14] In March 2015, a panel of the Discipline Committee held a hearing. The panel accepted Dumchin's admission of the fact of his criminal convictions and determined that he was guilty of professional misconduct since these convictions are relevant to his suitability to work as a nurse. The Discipline Committee concluded that criminal conduct of this nature is inconsistent with the college's mandate to protect the public and undermines public perception of the profession.

[15] In submissions on penalty, the college sought revocation of the respondent's certificate of registration, with such revocation to take effect if and when he obtained an active certificate. The Discipline Committee denied this request on the basis of its interpretation of s. 51(2) of the Code.

[16] After receiving the advice of its independent counsel and the submissions of the parties, the panel ruled that it did not have the jurisdiction to order revocation of Dumchin's certificate because he had resigned in advance of the hearing and thus did not have a certificate that could be revoked by it. In its reasons for penalty decision, the panel stated:

The Panel considered College Counsel's argument that continuing jurisdiction when a member has resigned is clearly provided for in the Code, and must by implication include the jurisdiction to impose a penalty (even revocation) on a non-existent certificate. The Panel does not agree that the continuing jurisdiction to investigate and adjudicate on matters referable to a time when a person was a member of the College extends the Discipline Committee's jurisdiction to impose revocation on a non-existent certificate.

[17] The panel also stated in its decision that if Dumchin had not resigned prior to the hearing, it would have considered the appropriate penalty to be revocation.

[18] The Discipline Committee ordered that Dumchin be reprimanded. The Discipline Committee stated that he would be required to apply to the college's Registration Committee in [page606] the event that he seeks to return to nursing. The Discipline Committee was of the opinion that it was unable to impose limitations on future registration and could only "trust the judgment and authority of those decision-making bodies within the College".

College Disciplinary Regime

[19] The college is a professional regulatory body established by statute to regulate the profession of nursing in Ontario and to govern nurses in accordance with the RHPA, the Code, the Nursing Act, 1991 and the General Regulation to the Nursing Act, 1991. In regulating and governing the profession, the college's overriding duty is to serve and protect the public interest. The executive director of the college fulfils the statutory role of registrar.

[20] The college has a mandate to maintain public confidence in nurses and in the profession's ability to regulate itself by enforcing the standards of practice and conduct through investigation and discipline process. The college investigates and prosecutes complaints and reports of allegations of professional misconduct and imposes penalties for professional misconduct.

[21] The investigation and disciplinary process begins with the receipt of a complaint or report about a member's conduct. An investigation under s. 75 of the Code is the first step in the investigation and disciplinary process. In appropriate cases, an investigator is appointed to inquire into the conduct of the member. The results of such investigation under s. 75 are then considered to determine whether a referral to the Discipline Committee is warranted.

[22] Where allegations are not referred to the Discipline Committee, it may caution the member, require them to participate in an educational program, and/or take other action that is not inconsistent with the Code. If specified allegations of professional misconduct are referred to the Discipline Committee, a panel of practicing nurses and appointed public members will be convened to conduct a hearing.

[23] The Code authorizes panels of the Discipline Committee to conduct adjudicative discipline hearings and make findings of professional misconduct and incompetence.

[24] There is no dispute that the college has jurisdiction to investigate, refer and prosecute allegations of misconduct. The Discipline Committee's jurisdiction to make findings of professional misconduct extends both to its members and former [page607] members, provided that the alleged conduct occurred while the person was a member.

[25] In that regard, s. 14 states:

14(1) A person whose certificate of registration is revoked or expires or who resigns as a member continues to be subject to the jurisdiction of the College for professional misconduct or incompetence referable to the time when the person was a member and may be investigated under section 75.

(2) A person whose certificate of registration is suspended continues to be subject to the jurisdiction of the College for incapacity and for professional misconduct or incompetence referable to the time when the person was a member or to the period of the suspension and may be investigated under section 75.

[26] There also is no dispute that the Code authorizes the Discipline Committee to make orders respecting penalties and costs. In respect of its ability to make orders, s. 51(2) provides:

51(2) If a panel finds a member has committed an act of professional misconduct, it may make an order doing any one or more of the following:

1. Directing the Registrar to revoke the member's certificate of registration.

2. Directing the Registrar to suspend the member's certificate of registration for a specified period of time.

3. Directing the Registrar to impose specified terms, conditions and limitations on the member's certificate of registration for a specified or indefinite period of time.

4. Requiring the member to appear before the panel to be reprimanded.

5. Requiring the member to pay a fine of not more than $35,000 to the Minister of Finance.

5.1

If the act of professional misconduct was the sexual abuse of a patient, requiring the member to reimburse the College for funding provided for that patient under the program required under section 85.7.

5.2

If the panel makes an order under paragraph 5.1 requiring the member to post security acceptable to the College to guarantee the payment of any amounts the member may be required to reimburse under the order under paragraph 5.1.

[27] The Code also authorizes the Discipline Committee to hold a hearing if a revoked member requests re-entry into the profession. Members whose certificates have been revoked by order of the Discipline Committee may apply to the registrar for reinstatement under s. 72 of the Code. When that happens, the Discipline Committee may hold a hearing in which the member has full participatory rights. [page608]

[28] The question raised on this appeal is whether the college's continuing jurisdiction under s. 14 applies to all of the possible orders that a panel of the Discipline Committee can make under s. 51(2) of the Code, including the imposition of conditions, suspension and revocation.

[29] The RHPA submits that similar provisions and procedures apply to health professions regulated by the RHPA including physicians, pharmacists, psychologists and several others. Hence, the determination of this issue will have broad significance for all regulatory activity carried out under the statute carried out in the public interest.

Issues

A. Was the discipline panel's determination that it lacked jurisdiction to impose penalties of revocation, suspension and/or conditions on a certificate of registration for a member of the college who has resigned unreasonable?

B. If the answer to Issue "A" is yes, should the discipline panel have revoked Dumchin's certificate of registration?

A: Was the discipline panel's determination that it lacked jurisdiction to impose penalties of revocation, suspension and/or conditions on a certificate of registration for a member of the college who has resigned unreasonable?

[30] The RHPA and the Code regulate the health professions for the protection of the public. The college's disciplinary process is intended to advance the duties and objectives of the college and, in particular, to maintain professional standards of practice and standards of professional ethics, protect the public from unethical and/or incompetent nurses, and to foster and maintain public confidence in the integrity of healthcare professionals (see Carruthers v. College of Nurses of Ontario (1996), 1996 11803 (ON SC), 31 O.R. (3d) 377, [1996] O.J. No. 4275 (Div. Ct.)).

[31] It is argued on behalf of Dumchin that the decision of the panel and its interpretation of its powers under the statute were reasonable. He argues that the findings of professional misconduct, the imposition of a reprimand and publication of the member's name are adequate to fulfil the college's mandate to protect the public and to communicate to it and members of the nursing profession the seriousness with which it views such conduct.

[32] We do not agree with this submission. [page609]

[33] The RHPA and the Code must be given a broad and purposive interpretation in keeping with the college's duty to act in the public interest. Interpretations that lead to absurd results and/or undermine the college's ability carry out its duties are inconsistent with this legislative intent and are to be avoided (see Beitel v. College of Physicians and Surgeons of Ontario, [2013] O.J. No. 3281, 2013 ONSC 4658 (Div. Ct.); Ontario College of Pharmacists v. 1724665 Ontario Inc. (c.o.b. Global Pharmacy Canada), [2013] O.J. No. 2670, 2013 ONCA 381).

[34] As a matter of statutory interpretation, the panel was required to read the words of the Code 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 the legislature (see Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42).

[35] The college submits that the panel failed to give effect to the college's continuing jurisdiction to impose sanctions on a member who has resigned as a result of its unreasonable interpretation of its governing statute. The FHRCO agrees with this position, as do we.

[36] Reasonableness is a deferential standard, but it cannot shield a tribunal's answer to a question about its jurisdiction that is inconsistent with the text, context and purpose of the statutory scheme. Where the decision under review is fundamentally one of statutory interpretation, what is required is nonetheless an interpretation of the text of the statute which respects the words chosen by the legislature.

[37] In concluding that its continuing jurisdiction did not extend to ordering the revocation of Dumchin's certificate, the panel relied on the words "certificate of registration" in s. 51(2). It reasoned that once a member resigns his certificate becomes "non-existent", and that by using the word's "certificate of registration" the legislature had intended to prohibit a panel from ordering a suspension or revocation of a "non-existent" certificate. By so doing, the panel construed the continuing jurisdiction bestowed by s. 14 too narrowly and employed an unreasonable, formalistic interpretation.

[38] In our view, this interpretation is inconsistent with the plain language of s. 14 and the purpose of the college's continuing disciplinary jurisdiction. We agree with the submissions of the college and the FHRCO that, when interpreted broadly and purposively, s. 14 makes a former member subject to all stages of the investigation and disciplinary process: investigation, hearing, findings and sanction. [page610]

[39] Section 14 makes a person who has resigned "subject to the jurisdiction of the College for professional misconduct". The only limitation on the college's continuing disciplinary jurisdiction is that the alleged misconduct must be "referable to the time when the person was a member". If the legislature had intended to limit the college's express continuing disciplinary jurisdiction to restrict the range of available penalties, it would have done so clearly and unambiguously. Absent a clear and unambiguous limitation, the panel should have read s. 51(2) in a manner consistent with the legislative purpose and intent that the college have continuing jurisdiction over former members at all stages of the disciplinary process.

[40] As counsel for the college has pointed out, to give effect to s. 14, s. 51(2) and many other related provisions in the Code are to be interpreted broadly. For example, all of the Code provisions that deal with investigation and discipline (ss. 25 to 56 (including the opening phrase of s. 51(2), and subsections 51(2)(1), (2) and (2)) and s. 75) use the words "member" and "former member". To interpret these provisions as applying only to current members would render s. 14 meaningless and be an absurd result.

[41] Accordingly, in the context of professional regulation, a "certificate of registration" does not mean a piece of paper confirming one's membership in the profession. In this statutory context, a "certificate of registration" means the entitlement to practice in a regulated profession.

[42] The purpose of s. 14 is to ensure that a member cannot frustrate the disciplinary process by resigning unilaterally. The panel's interpretation not only limits but removes the college's important sanctioning powers which include suspension and the imposition of conditions as well as revocation. This would serve to encourage members to resign to avoid the consequences of their misconduct, whatever its nature. To allow such an interpretation to stand is antithetical to the overarching public protection purposes of the statutory disciplinary regime: ensuring that members are held accountable to their regulator for the prime objective of protection of the public.

[43] The regulatory scheme provides that applications of members whose certificate of registration have been revoked are dealt with by the Discipline Committee. This, too, is a vital feature of the process designed to protect the public, a feature which is effectively circumvented if the decision of the panel is to be upheld.

[44] In our view, the panel's decision failed to give effect to the statutory context in which the Discipline Committee's sanctioning [page611] powers exist, and failed to interpret them in a manner that was consistent with that context and the purpose of s. 14.

[45] As a result, we consider the panel's interpretation of the relevant provisions of the statute and its jurisdiction thereunder to be unreasonable. As such, it must be set aside.

B: If the answer to Issue "A" is yes, should the discipline panel have revoked Dumchin's certificate of registration?

[46] In its reasons, the Discipline Committee stated that, but for its conclusion as to the interpretation of the provision in the statute delineating its powers, it considered revocation of registration to be the appropriate penalty.

[47] We see no reason to interfere with that determination and decline to do so. Although we recognize that Dumchin has been subjected to a disciplinary investigation and hearing, found guilty of professional misconduct, reprimanded and the results of the hearing before the panel been made publicly available, in our view it would be an inappropriate usurping of the panel's determination of a just and fitting penalty for this conduct for us to do otherwise.

[48] We also note that the revocation of Dumchin's registration is not necessarily permanent. It remains open to him to seek reinstatement in accordance with the procedure provided for in the Code. We therefore consider the interpretation urged by the college, which requires the prospective operation of the revocation order to be within the panel's jurisdiction, as the only reasonable interpretation available.

Conclusion

[49] For these reasons, that part of the order of the panel of the Discipline Committee being appealed from is hereby set aside. In its place, an order shall go revoking Dumchin's certificate of registration.

Costs

[50] The college does not seek costs of this appeal. By virtue of the terms of its intervention, the FHRCO likewise does not seek costs.

Application allowed.

[page612]

End of Document