Pathologists of Ontario

2016 ONSC 7034

DIVISIONAL COURT FILE NO.: 219/15

DATE: 20161129

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

H. SACHS, G.P. DiTOMASO and C.J. HORKINS JJ.

BETWEEN:

BRENDA BERGE

Appellant

– and –

COLLEGE OF AUDIOLOGISTS AND SPEECH-LANGUAGE PATHOLOGISTS OF ONTARIO AND THE ATTORNEY GENERAL OF ONTARIO

Respondents

Morris Manning, Q.C., for the Appellant

Bernard C. LeBlanc and Natasha S. Danson, for the Respondent the College of Audiologists and Speech-Language Pathologists of Ontario

Daniel Guttman and Emily Bala, for the Respondent the Attorney General of Ontario

HEARD at Toronto: June 8, 2016

BY THE COURT

Introduction

[1] The Appellant is an audiologist who has a doctorate degree in audiology. In Ontario, audiologists are not permitted to use the title “Doctor” in the course of providing health care to individuals. They are permitted to use the title in relation to other professional activities (such as teaching).

[2] In an Agreed Statement of Facts, the Appellant admitted that she had used the title (or an abbreviation or variation of it) in the course of providing health care to individuals since 2009. As a result, on March 31, 2015, she was found guilty of professional misconduct by a discipline panel of the College of Audiologists and Speech-Language Pathologists of Ontario (the “Tribunal”).

[3] On October 25, 2015, the Tribunal ordered that the Appellant be reprimanded and that her certificate of registration be suspended for three months, one month of which was to be remitted. She was also ordered to complete a course on ethics and undergo two unannounced inspections per year at her expense over the course of three years (for a total of six inspections). Finally, she was ordered to pay costs in the amount of $97,595.

[4] The Appellant is appealing both of the Tribunal’s decisions. Central to the disposition of this appeal is whether s. 33 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “RHPA”), which limits the use of the title “Doctor” in relation to the provision of health services, unjustifiably infringes the Appellant’s rights under s. 2(b) (freedom of expression) of the Canadian Charter of Rights and Freedoms.

[5] Pursuant to s. 70(1) of the Health Professions Procedural Code (the “Code”) which is Schedule 2 to the RHPA), a party may appeal the Tribunal’s decisions to the Divisional Court.

Factual Background

[6] The Appellant obtained the Au.D. (Doctor of Audiology) degree in 1997 from Ball State University in Muncie, Indiana, U.S.A. During her clinical rotations she was at the Mayo Clinic in Rochester, Minnesota and the National Institutes of Health in Bethesda, Maryland. In 1997 she was awarded a post-doctoral fellowship in neuroanatomy by Dartmouth University Medical School-Dartmouth Hitchcock Medical Center in New Hampshire.

[7] She has been practising as an audiologist in the Province of Ontario since 1999 and operates as the Berge Hearing Clinic in Guelph, Ontario. Her practice involves providing complete and comprehensive audiovestibular care for patients including with respect to audiological diseases/disorders, auditory processing disorders, tinnitus and vestibular disorders.

[8] The Appellant has referred to herself as “Dr. Brenda Berge,” as well as other variations and abbreviations of “Dr. Brenda Berge,” on her practice website and on other websites, on business cards, and on her business sign.

[9] The Appellant acknowledged before the Tribunal that she was aware of the prohibition against the use of this title before she began practising in Ontario.

The Regulatory Scheme for Audiologists and Other Health Care Professionals

[10] Audiologists and other health professionals in Ontario are governed by umbrella legislation, the RHPA, which includes the Code, and health profession-specific acts. In the case of audiology, the health profession-specific act is the Audiology and Speech-Language Pathology Act, 1991, S.O. 1991, c. 19.

[11] Section 33 of the RHPA provides as follows:

(1) Except as allowed in the regulations under this Act, no person shall use the title “doctor”, a variation or abbreviation or an equivalent in another language in the course of providing or offering to provide, in Ontario, health care to individuals.

(1.1) Subsection (1) does not apply to a person who is a member of the College of Naturopaths of Ontario. [Note: this subsection was added in 2015.]

(1.2) A member referred to in subsection (1.1) shall not use the title “doctor” in written format without using the phrase, “naturopathic doctor”, immediately following his or her name. [Note: this subsection was added in 2015.]

(2) Subsection (1) does not apply to a person who is a member of,

(a) the College of Chiropractors of Ontario;

(b) the College of Optometrists of Ontario;

(c) the College of Physicians and Surgeons of Ontario;

(d) the College of Psychologists of Ontario; or

(e) the Royal College of Dental Surgeons of Ontario.

Note: On a day to be named by proclamation of the Lieutenant Governor, section 33 is amended by … adding the following subsection:

(2.1) Subsection (1) does not apply to a person who is a member of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario and who holds a certificate of registration that entitles the member to use the title “doctor”.

(3) In this section,

“abbreviation” includes an abbreviation of a variation.

Under s. 40(2) of the RHPA, everyone who contravenes s. 33 “is guilty of an offence and on conviction is liable to a fine of not more than $25,000 for a first offence and not more than $50,000 for a second or subsequent offence.”

Issues Raised

[12] The Appellant raises the following issues on this appeal:

(i) Does s. 33 of the RHPA breach s. 2(b) of the Charter and, if it does, can the breach be justified under s. 1 of the Charter?

(ii) Does the absence of a French version of Professional Misconduct, O. Reg. 749/93 (the College’s professional misconduct regulation; the “Regulation”) deprive the College of jurisdiction to hold a discipline hearing?

(iii) Is the Regulation ultra vires as either going beyond the grant of power found in the enabling legislation or merely mirroring the Code?

(iv) Did the Tribunal have jurisdiction to adjudicate a breach of ss. 33(1) and 40(2) of the RHPA?

(v) Did the College have jurisdiction to hold a discipline hearing in the absence of a referral by the College’s Inquiries, Complaints and Reports Committee of a “specified allegation”?

(vi) Did the Tribunal have jurisdiction to impose the penalty it imposed and to award the costs it awarded?

Does s. 33 of the RHPA Breach s. 2(b) of the Charter?

Section 2(b) of the Charter

[13] Section 2(b) of the Charter provides:

2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; …

Summary of the Appellant’s Position

[14] The Appellant submits that in referring to herself as “Doctor” she is seeking to express her qualifications to treat patients and to inform the public as to those qualifications. According to her, public consumers of health care and, in this case, the consumers of audiological services, have a constitutionally guaranteed right to know the clinical and academic qualifications of their health care providers.

The Tribunal’s Findings

[15] In response to this argument the Tribunal found as follows (Tribunal Decision, March 31, 2015, at p. 13):

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. College of Dental Surgeons of Ontario 1990 121 (SCC), [1990] S.C.J. No.65[.]

Having found that there is no infringement of the Member’s section 2(b) rights, the panel did not consider the section 1 arguments advanced by the parties.

Standard of Review

[16] Where an administrative decision maker determines whether a legislative provision is consistent with the Constitution, including the Charter, the applicable standard of review is correctness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 58).

Discussion and Analysis

[17] In College of Physicians and Surgeons of Ontario v. Larsen (1987), 1987 4213 (ON SC), 62 O.R. (2d) 545, 45 D.L.R. (4th) 700, the Ontario High Court of Justice held that the predecessor to s. 33 of the RHPA (which prohibited a chiropodist from using the “Doctor” title) did not infringe s. 2(b) of the Charter. In doing so the court stated at p. 552:

Gary Larsen holds the degree of Doctor of Podiatric Medicine. In my opinion, the prohibition complained of does not infringe Gary Larsen’s right to express that qualification. It merely restricts the manner in which the qualification may be expressed. The subsection does not prevent him from communicating the nature and fact of his degree by the suffix D.P.M. or Doctor of Podiatric Medicine. Nor does it prevent him from using the prefix “Doctor” or “Dr.” in matters unrelated to his practice of podiatric medicine. It merely restricts the use of these terms: “as an occupational designation relating to the treatment of human ailments or physical defects”.

[18] A year after Larsen was released, the Court of Appeal of Quebec upheld a provision that prohibited optometrists from using the title “Doctor” in Tremblay v. Québec (Procureur général) (C.A.Q.), [1988] J.Q. No. 2009 (C.A.), leave to appeal refused, [1989] C.S.C.R. No. 1. In brief reasons, reversing the Superior Court’s finding that the provision infringed s. 2(b), it noted that the goal of the provision was public protection and that the provision did not restrict the practice of the profession.

[19] In 1999, in Procureur général v. Duranleau, 1999 QCTP 69, [1999] DTPQ No. 153, a three-member panel of the Quebec Professions Tribunal found that a restriction on chiropractors from using the title “Doctor” did not infringe s. 2(b).

[20] In R. v. Baig (1992), 1992 2181 (BC CA), 21 B.C.A.C. 59, 78 C.C.C. (3d) 260 (C.A.), the Court of Appeal for British Columbia found that restricting a person who was not registered with the province as a psychologist, but had a Ph.D. in psychology, from using the title “Doctor” did not infringe s. 2(b). The court stated:

46. The purpose of the Psychologists Act and the Medical Practitioners Act is to regulate these professions and, in doing so, to protect the public interest.

47. I do not think it can be said in this case there is a right to call oneself a doctor or psychologist which is a protected right under the rubric of freedom of expression. This is not, in my opinion, an activity that is performed to convey a meaning as that phrase is used in Irwin Toy. What is being conveyed is the title which connotes certain qualifications. In my view, a title does not have expressive content in that it does no more than describe the person holding it. Even if it could be said that a prohibition against calling oneself a “Dr” or “psychologist” may in a broad view be an infringement of freedom of expression, I do not think that in this case the appellant can assert a violation of s. 2(b) of the Charter. I say this because in my opinion the appellant calling himself “Dr” or “psychologist” or any name that would represent himself as a psychologist, in conjunction with an advertisement as to treatment of depression, emotional conflict and getting off medication, as is the case here, is misrepresenting himself to the public at large, that representation being that he is qualified in British Columbia as a medical doctor or as a psychologist.

48. In my opinion, freedom of expression cannot include a right to misrepresent one’s professional qualifications to the public.

[21] In Government of Prince Edward Island v. Walker, 1993 1816 (PE SCAD), 111 Nfld. & P.E.I.R. 150, cited to [1993] P.E.I.J. No. 111 (S.C.(A.D.)), the Prince Edward Island Supreme Court (Appeal Division) heard a case involving certified general accountants who sought the right to practice public accountancy in Prince Edward Island. Under the governing legislation in the province, no person was entitled to practice as a public accountant or to represent himself or herself as a public accountant unless he or she was a member of the Institute of Chartered Accountants. Two certified general accountants, but not chartered accountants, argued that the legislation violated their right to freedom of expression.

[22] The trial judge accepted the argument. On appeal, the Court overturned that finding on the following basis (at paras. 7–8):

7. At the outset, I confess to considerable difficulty in seeing public accounting and auditing as an expressive activity and in accepting auditors’ reports as the kind of expression meant to have the constitutional protection afforded by s-s. 2(b) of the Charter. Nevertheless, it must be recognized that the Supreme Court of Canada gave very broad scope to s-s. 2(b) by its decision in Irwin Toy Ltd. v. Quebec (A.G.), 1989 87 (SCC), [1989] 1 S.C.R. 927. …

It therefore seems that at least the reporting functions of public accounting and auditing may fall within the ambit of s-s. 2(b). However, in my view, subsection 14(1) of the Public Accounting and Auditing Act does not contravene s-s. 2(b) of the Charter even if some aspects of public accounting and auditing do meet the very broad definition given to the term “expression” by the Supreme Court of Canada in Irwin Toy. I have come to that conclusion because 14(1) does not prohibit anyone from expressing themselves about any accounting matter; it only restricts the capacity in which they can do so. What it does is prohibit those who are not authorized by the Institute from carrying on business as, laying claim to the authority of, or representing themselves to be public accountants. Thus, the respondents are free to express themselves on any of the matters referred to in s-s. 1(e) so long as they do not purport to be doing so with the authority of, or in the capacity of, a public accountant.

8. In Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145 the Supreme Court of Canada said that the proper approach in interpreting the Charter is a purposive one. Then, in R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295 at p. 344, the Supreme Court said that the Charter should be given a generous interpretation, but at the same time warned against overshooting the actual purpose of the right or freedom in question. According to Dickson C.J. in Irwin Toy, supra, at p. 968 the purpose of the right to freedom of expression in s-s. 2(b) is to ensure that everyone can manifest their thoughts, opinions, and beliefs. However, as David Lepofsky said in his article in the National Journal of Constitutional Law, Vol. 3 No. 1 page 37, at page 97, “Section 2(b) does not constitutionally immunize from government regulation all human activity which might contribute to one’s human autonomy and self-fulfillment.” 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. Accordingly, the trial judge went too far in this case and erred in law by interpreting s-s. 2(b) so that it would not only guarantee a right to communicate opinions and ideas but also include the right to have them recognized as authoritative and to charge the public for them.

[23] The decision was appealed to the Supreme Court of Canada. In a brief oral decision reported at Walker v. Prince Edward Island, 1981 4244 (PE SCTD), [1995] 2 S.C.R. 407, 30 Nfld. & P.E.I.R. 181, the court dismissed the appeal, holding as follows:

In light of our previous decisions as regards ss. 2(b), 6 and 7 of the Canadian Charter of Rights and Freedoms, we are all of the view that there has been no restriction to those rights in this case. The constitutional questions are answered as follows:

1. Does s. 14(1) of the Public Accounting and Auditing Act, R.S.P.E.I. 1988, c. P-28, limit the appellants’ rights guaranteed by ss. 2(b), 6 or 7 of the Canadian Charter of Rights and Freedoms?

No.

2. If the answer to question 1 is in the affirmative, is s. 14(1) nevertheless justified by s. 1 of the Canadian Charter of Rights and Freedoms?

The first question is answered in the negative. The second question, therefore, does not arise.

[24] The Attorney General of Ontario, whose submissions on the Charter issues were adopted by the respondent College, argues that the Supreme Court decision in Walker is binding on this court. They further submit that the reasoning in Larsen, Tremblay, Duranleau and Baig is sound and should be followed on this appeal.

[25] In response, the Appellant asserts that Walker fails to take into account subsequent jurisprudence from the Supreme Court of Canada in relation to freedom of expression – jurisprudence that makes it clear that any activity, be it action or speech, that conveys or attempts to convey meaning, is constitutionally protected. The only exceptions are threats of violence or violent forms of expression.

[26] According to the Appellant, the use of a professional title is clearly expressive and is aimed at conveying a meaning, namely, a certain level of expertise and competence. In our view, this argument has merit.

[27] As Kent Roach and David Schneiderman have pointed out in their article entitled “Freedom of Expression in Canada” (2013), 61 S.C.L.R. (2d) 429, with the exception of violent forms of expression or threats of violence, the Supreme Court has consistently rejected any attempts to narrow the scope of s. 2(b) on the basis of content of the speech (see: R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697, 114 A.R. 81 (where racist incitement was given constitutional protection); R. v. Zundel, 1992 75 (SCC), [1992] 2 S.C.R. 731 (where speech denying the holocaust was found to fall within the scope of s. 2(b)); R. v. Butler, 1992 124 (SCC), [1992] 1 S.C.R. 452, 78 Man. R. (2d) 1 (obscene materials); and R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 (child pornography)).

[28] In Ford v. Quebec (Attorney General), 1988 19 (SCC), [1988] 2 S.C.R. 712, 54 D.L.R. (4th) 577 (a constitutional challenge to Quebec language laws that required that certain commercial signs be only in French), the Supreme Court rejected an attempt to confine the freedom of expression guarantee because the guarantee did not extend to the language in which the message is conveyed. In that case, the court found that language is “intimately related to the form and content of expression”; “[l]anguage is not merely a means or medium of expression; it colours the content and meaning of expression” (at p. 748).

[29] Finally, in considering whether s. 2(b) has been infringed, the Supreme Court (with the exception of its discussion of threats of violence in R. v Khawaja, 2012 SCC 69 at para. 70) has rejected any attempts to distinguish between expressive activities that are closely connected to the underlying rationales for freedom of expression (i.e., the promotion of a free flow of ideas essential to democracy and democratic institutions, the promotion of truth, and the ability to realize oneself and express one’s autonomy) and those expressive activities that are not closely connected to these rationales (see Ford). While an analysis as to the value of the speech may be relevant under s. 1, it is not when considering whether there has been a breach of s. 2(b).

[30] The Appellant also points to the Supreme Court decision in Rocket v. Royal College of Dental Surgeons of Ontario, 1990 121 (SCC), [1990] 2 S.C.R. 232, 73 O.R. (2d) 128, where the court held that the protection afforded by s. 2(b) encompassed commercial speech such as advertising, which can serve an important goal, namely, enhancing the ability of patients to make informed economic choices.

[31] The Appellant argues, based on this Supreme Court jurisprudence, that the reasoning in the lower court decisions cited by the Respondents should be rejected.

[32] In Larsen, the court found that restricting the right of a chiropodist to use the title “Dr.” did not infringe s. 2(b) because it did not restrict the ability of the chiropodist to convey information about his qualifications; it only restricted the manner in which those qualifications could be conveyed. According to the Appellant, in Ford, the Supreme Court of Canada rejected an attempt to narrow the scope of s. 2(b) based on the manner/content distinction.

[33] In Baig, the Court of Appeal for British Columbia found that legislation prohibiting an unregistered psychologist with a Ph.D. from using the title “Dr.” did not infringe s. 2(b) because the use of a title does not convey meaning and because the protection afforded by s. 2(b) cannot be extended to speech that is designed to mislead. According to the Appellant, both of these rationales cannot stand. First, as already noted, the use of this title does have a meaning – it conveys a professional qualification and expertise. Second, it would be incongruous with other Supreme Court jurisprudence to conclude that speech that is designed to misrepresent does not fall within the ambit of s. 2(b). In particular, in R. v. Lucas, 1998 815 (SCC), [1998] 1 S.C.R. 439, 163 Sask. R. 161, the Supreme Court confirmed that even deliberate falsehoods are protected by s. 2(b), a view that was subsequently echoed in Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610.

[34] In assessing the Appellant’s arguments it is interesting to note a subsequent decision by the Prince Edward Island Supreme Court (Appeal Division), Morin v. Prince Edward Island Regional Administrative Unit No. 3 School Board, 2002 PESCAD 9, 212 Nfld. & P.E.I.R. 69, leave to appeal refused, [2009] S.C.C.A. No. 414 where the Court discussed Walker as follows:

57 The broad and liberal interpretation of the Charter’s freedoms is shown by the great variety of forms of expression that have been held to be encompassed by s.2(b). They include the solicitations of a prostitute (Reference re ss.193 and 195.1(1)(c) supra), advertising to children (Irwin Toy), the language of signs in Quebec (Ford), the hate propaganda of a teacher (Keegstra), airport regulations prohibiting soliciting on airport premises (Commonwealth of Canada), and a municipal sign law (Guignard).

59 The decision of this court in Walker v. Prince Edward Island (1993), 1993 1816 (PE SCAD), 107 D.L.R. (4th) 69, affirmed by the Supreme Court of Canada (1995 92 (SCC), [1995] 2 S.C.R. 407) does not limit the overall breadth of these s.2(b) cases. In that case, certified general accountants (CGAs) challenged a provision in the Public Accounting and Auditing Act, R.S.P.E.I. 1988, c.P-28, which limited the right to practice public accounting for compensation to members of the Institute of Chartered Accountants. One basis for the challenge was an argument that the provision violated the freedom of expression (s.2(b) of the Charter) rights of the CGA’s. This Court found that while the reporting functions of public accounting and auditing may fall within the scope of s.2(b) as “expression,” the purpose was not to prohibit an expression of these views, but rather to restrict the manner of that expression, i.e. representing themselves as public accountants. The Court then went on to show that in any event such a restriction was justified under s. 1 of the Charter.

60 The Supreme Court, without explanation, found no restriction to the ss. 2(b), 6 and 7 Charter rights in that case. Without an explanation from that court, it is difficult to articulate the basis for this finding. It may be connected with the fact that a licensing function was involved or that a specific type of profession sought protection. In any event, this finding does not limit the breadth of the Supreme Court’s s.2(b) findings generally.

[35] We agree with the Prince Edward Island Supreme Court (Appeal Division) that it is difficult to articulate a basis for the Supreme Court’s conclusion in Walker. The only explanation given is a passing reference to the court’s “previous decisions” on s. 2(b), with none of those decisions being referred to individually. However, by the time the Supreme Court decided Walker, the significant cases relied upon by the Appellant to attack the rationales used by the Prince Edward Island Supreme Court (Appeal Division) in that case and other courts in similar cases to find no s. 2(b) violation had also been decided (see Keegstra, Zundel, Butler, Ford, Rocket, and Lucas). Thus, the Supreme Court must be presumed to have made its decision in light of this jurisprudence. The Appellant could point to no subsequent Supreme Court jurisprudence that changed the s. 2(b) landscape that was in place when Walker was decided.

[36] The Walker decision has not been reconsidered or overturned by the Supreme Court. As such, it is binding on this court and was binding on the Tribunal.

If s. 33 Breaches s. 2(b) of the Charter, Can That Breach Be Justified under s. 1?

[37] In light of the difficulty in understanding the rationale for Walker and in the event we are wrong that it binds our decision in this case, we will go on to consider the question of whether any infringement of s. 2(b) can be justified under s. 1 of the Charter.

Section 1 of the Charter

[38] Section 1 reads:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[39] Thus, for a limitation to be justified, the limitation must be reasonable, prescribed by law and one that “can be demonstrably justified in a free and democratic society.” The Appellant argues that the section at issue in this case is neither “prescribed by law,” nor do they meet the criteria for survival under s. 1 established by the Supreme Court of Canada in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; (1985), 26 D.L.R. (4th) 200, at pp. 138–40. According to that test, to be upheld as constitutional under s. 1, the section at issue:

(a) must pursue an objective that is sufficiently important to justify limiting a Charter right. “It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important” (Oakes at pp. 138–39);

(b) must be rationally connected to the objective;

(c) must impair the right no more than is necessary to accomplish the objective; and

(d) there must be a proportionality between the effects of the measures that are responsible for limiting the Charter right and the objective of those measures.

[40] As put by the Supreme Court in Oakes at pp. 136–37, “[t]he onus of proving that a limit on a right or freedom guaranteed by the Charter is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation.”

Prescribed by Law

[41] The Appellant argues that s. 33 of the RHPA is so vague that it cannot constitute a limit “prescribed by law.” According to the Appellant, the section does not sufficiently identify the conduct that gives rise to the offence provided in ss. 40(2) and (3) of the RHPA.

[42] As noted above, s. 33 of the RHPA provides as follows:

(1) Except as allowed in the regulations under this Act, no person shall use the title “doctor”, a variation or abbreviation or an equivalent in another language in the course of providing or offering to provide, in Ontario, health care to individuals.

(1.1) Subsection (1) does not apply to a person who is a member of the College of Naturopaths of Ontario. [Note: this subsection was added in 2015.]

(1.2) A member referred to in subsection (1.1) shall not use the title “doctor” in written format without using the phrase, “naturopathic doctor”, immediately following his or her name. [Note: this subsection was added in 2015.]

(2) Subsection (1) does not apply to a person who is a member of,

(f) the College of Chiropractors of Ontario;

(g) the College of Optometrists of Ontario;

(h) the College of Physicians and Surgeons of Ontario;

(i) the College of Psychologists of Ontario; or

(j) the Royal College of Dental Surgeons of Ontario.

Note: On a day to be named by proclamation of the Lieutenant Governor, section 33 is amended by … adding the following subsection:

(2.1) Subsection (1) does not apply to a person who is a member of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario and who holds a certificate of registration that entitles the member to use the title “doctor”.

(3) In this section,

“abbreviation” includes an abbreviation of a variation.

[43] In our view, there is nothing vague about this section. It quite clearly prohibits the use of the title “Doctor” or any variation or abbreviation thereof, in relation to the delivery of health care to individuals, except as specifically permitted by the Act. There is no dispute that the Act does not allow audiologists to engage in this conduct and the Appellant has admitted that she is an audiologist who has engaged in this conduct. The fact that other members of the College have used the title without being disciplined or prosecuted for doing so does not equate to an argument that the section at issue is so vague as to not constitute a limit “prescribed by law.”

[44] If the Appellant’s s. 2(b) rights have been breached, s. 33 of the RHPA is a limit prescribed by law. Thus, it is necessary to go on to conduct an analysis under the Oakes test.

The Importance of Context

[45] The question of whether an infringement of the Charter is justified is contextual. In other words, at this stage a court is entitled to assess the value of the speech, and this assessment can affect the level of scrutiny that the court gives to the limitation under s. 1.

[46] As McLachlin J. stated in Rocket at pp. 246–47:

While the Canadian approach does not apply special tests to restrictions on commercial expression, our method of analysis does permit a sensitive, case-oriented approach to the determination of their constitutionality. Placing the conflicting values in their factual and social context when performing the s. 1 analysis permits the courts to have regard to special features of the expression in question. As Wilson J. notes in Edmonton Journal v. Alberta (Attorney General), 1989 20 (SCC), [1989] 2 S.C.R. 1326, not all expression is equally worthy of protection. Nor are all infringements of free expression equally serious.

[47] There are two features of the expression at issue in this case that it is important to keep in mind in conducting the analysis under s. 1.

[48] First, the speech at issue is commercial speech and commercial speech is protected under s. 2(b) not because of the economic interest of the speaker, but because it fosters informed consumer choice (Ford), which is an important public interest. However, as discussed later in these reasons, the speech at issue does not inhibit informed consumer choice. Further, as was the case in Rocket, the Appellant’s motive for wishing to impart the information at issue is primarily economic and her loss, if she is prevented from doing so, “is merely loss of profit, and not loss of opportunity to participate in the political process or the ‘marketplace of ideas’, or to realize one’s spiritual or artistic self-fulfillment.” (Rocket, p. 247)

[49] Second, patients and prospective patients are in a vulnerable position with respect to regulated health professionals. There is a power imbalance between health practitioners and patients that arises because of the superior knowledge of the former. The Supreme Court has suggested that “substantial latitude should be given to legislatures that act to protect a vulnerable group, or to mediate between competing groups, distinguishing this type of legislation from that in which the state appears as an antagonist to the individual (such as traditional criminal law)” (Rocket at p. 248, relying on Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 2 S.C.R. 927, 58 D.L.R. (4th) 577).

[50] In Rocket at pp. 238–49 McLachlin J. stated as follows:

Consumers of dental services would be highly vulnerable to unregulated advertising. As non-specialists, they would lack the ability to evaluate competing claims as to the quality of different dentists. Indeed, the practice of dentistry, like other professions, calls for so much exercise of subjective personal judgment that claims about the quality of different dentists may be inherently incapable of verification. Furthermore, the choice of a dentist is, as noted above, a relatively important one. The consuming public would thus be far more vulnerable to unregulated advertising from dental professionals than it would be to unregulated advertising from manufacturers or suppliers of many other, more standardized, goods or services. The fact that the provincial legislature here acted to protect a vulnerable group argues in favour of viewing its attempted compromise with some deference.

[51] These comments apply equally to advertising by audiologists such as the Appellant.

The HPRAC Report and the College’s Submission to the Minister Regarding That Report

[52] These documents and what they say are central to the Appellant’s submission on s. 1. Thus, we will review them in some detail.

[53] In February of 2005 the Minister of Health and Long-Term Care (the “Minister”) asked the Health Professions Regulatory Advisory Council (“HPRAC”), the Minister’s statutorily created advisory committee, to review how the health professions are regulated and to provide advice to the Minister (after consultation with appropriate stakeholders) as to whether any changes should be made.

[54] In April of 2006, HPRAC delivered its report entitled “Regulation of Health Professions in Ontario: New Directions” to the Minister (the “HPRAC Report” or the “Report”). In the Report, HPRAC considered the restriction on the use of the title “Doctor” in s. 33 of the RHPA and recommended (at p. 59) that “registered professionals with an earned academic doctoral degree” be allowed to use the title “Doctor” in the course of providing health care provided that:

• the academic distinction must have been granted by an educational institution that is accredited or approved by a certifying body authorized by the regulatory college;

• the doctoral title must be in the field in which the person is registered;

• that the title and the nature of the degree and the discipline in which the doctorate is held is clearly identified.

[55] In making this recommendation HPRAC concluded that “[o]ther than convention, there does not seem to have been an underlying principle regarding the restriction on the use of the doctor title in the legislation” (Report, at p. 56). In its view “restrictions on the use of the title in Ontario are inconsistent. They permit the use of doctor title for one group of professionals holding doctoral level academic distinctions while denying all other professionals with comparable doctoral achievements a similar privilege” (Report, at p. 57).

[56] HPRAC noted that an increasing number of health care professionals combine research and teaching with the delivery of medical services. In the first two capacities they are allowed to use the title “Doctor.” In the third they are not.

[57] HPRAC reviewed the use of the title “Doctor” in other jurisdictions and found that Ontario’s restrictions were out of step with the rules of health professional regulatory bodies in the majority of the English speaking world, most of whom “permit the use of the doctor title, often with a proviso that the title must include the discipline within which the doctorate has been granted” (Report, at p. 58).

[58] Therefore, HPRAC “concluded that this question is a social issue, and not a health-related matter. International practice, emerging professions and practices that combine clinical and academic activities with research make the rigid title distinctions of the RHPA unworkable. Current provisions appear to be a vehicle for maintenance of status rather than of public protection” (Report, p. 59).

[59] In January of 2009, the College of Audiologists and Speech-Language Pathologists of Ontario made its submission to the Minister regarding the HPRAC Report. In that submission it supported the recommendation that members of the College with an earned doctorate degree such as the Appellant should be entitled to use the title “Doctor” in the course of providing or offering to provide health care to individuals. At pages 8–9 of its submission the College states:

It has been argued by certain organizations, albeit without success, that the term “doctor” should be reserved exclusively for physicians because the public expects that such title holders possess a degree in medicine. Notwithstanding the fact that the term “doctor” has its roots in academia, there have long been other professionals, including those currently recognized under the RHPA such as dentists, chiropractors, psychologists and optometrists, who are not physicians, but are allowed to use the title “doctor” without restrictions. There is no evidence that consumers are unaware of different educational routes that lead to clinical doctoral degrees; indeed, patients are accustomed to meeting “doctors” across a range of disciplines. Precluding audiologists with doctoral degrees from identifying themselves as “doctor” compromises patients’ ability to make informed decisions when selecting health care providers and also unfairly undermines the legitimacy of audiologists’ academic achievements.

At issue is whether any justification can be made to prolong the exclusion of audiologists with doctoral degrees from using the title “doctor” when treating patients. We were unable to find a single jurisdiction in North America where this is the case. In the vast majority of U.S. states and Canadian provinces, it is simply accepted that health care professionals with doctoral degrees are entitled to use the term “doctor” when providing services. In Alberta, for example, the Health Professions Act states that “a regulated member who holds a doctorate degree in speech-language pathology or audiology from a program approved by the Council may use the title doctor or the abbreviation Dr. alone or in combination with other words in connection with providing a health service.” Similar legislation exists in British Columbia. We believe that Ontario should adopt the same policy; this would resolve discrepancies between current regulations and the RHPA’s stated principle of treating health professionals in an equitable manner.

To meet standards of fairness, consistency and reason, the RHPA must be modernized to permit audiologists with doctoral degrees to use the title “doctor” when providing health care services.

The Application of the Oakes Test

Is the objective of s. 33 of the RHPA pressing and substantial?

[60] The evidence filed by the Respondents is that the purpose of s. 33 of the RHPA is to protect the public by minimizing confusion that arises through the use of the title “Doctor” in the course of providing or offering health care services to individuals.

[61] In Rocket, at pp. 249–50, McLachlin J found that:

It is difficult to overstate the importance in our society of the proper regulation of our learned professions.

I have no difficulty in concluding that it is essential to accord to professional societies the power to regulate the methods by which their members advertise, even though this may infringe the freedom of expression guaranteed to their members by s. 2 (b) of the Charter.

[62] In this case, as part of their obligation to regulate the profession in the public interest, the government enacted s. 33 of the RHPA to prevent prospective patients, who may include very vulnerable people, from being confused when seeking primary health care advisers.

[63] To support the pressing nature of the objective, the Attorney General points to American legislative proposals that reflect the potential dangers in overextending the “Doctor” title. The U.S. bill Truth in Healthcare Marketing Act of 2013, currently being considered by the House Energy and Commerce Committee of the U.S. Congress, references 2008 and 2010 nationwide surveys conducted by Global Strategy Group on behalf of the American Medical Association (the “AMA”). The proposed text of the Truth in Healthcare Marketing Act of 2013 explicitly states that the AMA surveys reveal “a depth of confusion regarding the education, skills and training of health care professionals.” The 2008 survey specifically indicated that 33% of survey respondents thought that an audiologist was a medical doctor, 27% were unsure, and 40% thought not. These surveys stand as some evidence that confusion does exist in the minds of the public (albeit American public) about whether audiologists are medical doctors.

[64] The objective of preventing confusion in the minds of a potentially vulnerable public as to the qualifications of their primary health care providers is a pressing and substantial objective.

Is s. 33 of the RHPA rationally connected to this objective?

[65] For a law to be rationally connected to its objective, it should not be “arbitrary, unfair or based on irrational considerations” (Oakes, at p. 139). A causal connection based on reason or logic will suffice to establish a rational connection, even if the evidence is inconclusive (RJR-MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199, 127 D.L.R. (4th) 1, at para. 158). Furthermore, to satisfy this part of the test, “[t]he government must show that it is reasonable to suppose that the limit may further the goal, not that it will do so” (Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 48).

[66] “The issue at the stage of rational connection is simply whether there is a rational link between the infringing measure and the government goal” (Hutterian Brethren, at para. 51). Restricting audiologists from using the title “Doctor” in relation to the delivery of health care services is clearly rationally connected to the goal of preventing confusion in the minds of the public as to whether an audiologist is medically trained.

[67] The Appellant, relying in part on the HPRAC Report, submits that the means chosen are not rationally connected to the goal because s. 33 of the RHPA already allows four other professions who are not medical doctors to use the title “Doctor” in relation to the delivery of health care services – chiropractors, optometrists, psychologists and dentists. Thus, the public is used to having health care professionals who are not medically trained referred to as “doctors.” It is irrational and arbitrary to not include audiologists in this list, particularly when most other jurisdictions do.

[68] The rationale given for distinguishing the professions that are allowed to use the title “Doctor” from the ones that are not is that entry into the former requires an undergraduate degree followed by a minimum of three years in a professional school or academic program and the completion of licensing examinations. Unlike the five health professions authorized to use the “Doctor” title, no class of audiologist certificate requires an applicant to have passed a licensing examination. Furthermore, unlike these other professions, audiologists are not entitled to communicate a diagnosis as the cause of an individual’s symptoms.

[69] The question of where to draw the line when it comes to the use of the title “Doctor” to prevent confusion in the minds of the public is obviously one that requires balancing a number of important considerations. However, for our purposes the only relevant question is who should do that line drawing in this instance – the legislature or the courts. In our view, given the nature of the speech involved (commercial speech) and the fact that this line-drawing exercise is rationally connected to the government’s important objective of preventing confusion in the minds of vulnerable members of the public, the courts should give deference to the legislature’s choices in this regard.

Does the limit minimally impair the right?

[70] As put by the Supreme Court in Hutterian Brethren at para. 53:

The question at his stage of the s. 1 proportionality analysis is whether the limit on the right is reasonably tailored to the pressing and substantial goal put forward to justify the limit. Another way of putting this question is to ask whether there are less harmful means of achieving the legislative goal. In making this assessment, the courts accord the legislature a measure of deference, particularly on complex social issues where the legislature may be better positioned than the courts to choose among a range of alternatives.

[71] The Appellant argues that the government’s legislative goal could be achieved in the way suggested by HPRAC, namely, allowing audiologists to use the title “Doctor,” but requiring them to put their actual credentials (Au.D.) after their names.

[72] In this regard it is important to note that the legislation in question does not prevent the Appellant or any other audiologist with a doctorate from communicating the important information that they wish to convey (namely the fact that they have a doctorate degree) to the public. Section 33 allows an audiologist with an Au.D. to convey that fact – for example by referring to herself as “Jane Doe, Au.D.” In this way this case is distinguishable from Rocket, where the Supreme Court was dealing with a restriction on advertising that prevented the communication of useful information to the public such as “dentists’ office hours, the languages they speak, and other objective facts relevant to their practice” (Rocket, at p. 251).

[73] Again, this an area where the legislature is better positioned than the courts to choose the means to realize its objective.

[74] The fact that audiologists in some Canadian provinces or U.S. states are not uniformly prohibited from using the title “Doctor” does not mean that the Ontario legislation has failed the minimal impairment test. It merely means that different jurisdictions have chosen to draw the line of acceptable conduct differently.

[75] The Supreme Court has held that legislative action to protect vulnerable groups is not “necessarily restricted to the least common denominator of actions taken elsewhere” (Irwin Toy, at p. 999) and that the minimal impairment test “must not be applied in a manner that amounts to identifying the Canadian province that has adopted the ‘preferable’ approach to a social issue and requiring that all other provinces follow suit” (Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61, at para. 440 per McLachlin C.J.C.).

Is the impugned provision proportionate?

[76] This part of the test requires a court to ask: “are the overall effects of the law on the claimants disproportionate to the government’s objectives?” (Hutterian Brethren, at para. 73).

[77] Section 33 seeks to protect those seeking health care, a vulnerable group, from being confused. This is an important objective. In contrast, the effect on the Appellant is minimal. As already noted, audiologists with an Au.D. may use the title “Doctor” in any setting but a clinical setting. Further, in a clinical setting, they may convey the fact that they have a doctorate degree in audiology, by using “Au.D.” or an equivalent as a suffix. Thus, any limitation on freedom of expression is minimal and merely economic. Therefore, it cannot be said that the overall effects of s. 33 are “disproportionate to the government’s objectives.”

Conclusion on s. 1

[78] If s. 33 of the RHPA violates the Charter, the Respondents have met their onus under s. 1 of the Charter. Therefore, the constitutional challenge to s. 33 is dismissed.

The Jurisdictional Issues

[79] The Appellant submits that the College had no jurisdiction to hold a discipline hearing. The five issues raised are addressed below. For the reasons set out we reject the Appellant’s position.

The Standard of Review

[80] The Appellant frames each issue as one of jurisdiction. A true question of jurisdiction requires a correctness standard of review. Otherwise, the standard of review is reasonableness on an appeal from a tribunal.

[81] A standard of reasonableness flows from the deference to the administrative decision maker. Deference in this context “imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 48; Bayfield v. College of Physiotherapists of Ontario, 2014 ONSC 6570 at para.3 (“Bayfield v. College of Physiotherapists”). Deference is afforded to such decision makers in circumstances where the tribunal has particular expertise with respect to the issues before it.

[82] The reasonableness standard of review asks “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” (Dunsmuir at para. 47).

[83] In Dunsmuir at para. 59, the court emphasized that the term “true question of jurisdiction” is to be interpreted narrowly:

“Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter.

[84] Subsequently, in Alberta (Information and Privacy Commissioner) v. Alberta Teachers Federation, 2011 SCC 61, [2011] 3 S.C.R. 654 at para.39, the court stated that “[t]rue questions of jurisdiction are narrow and will be exceptional”. Further, “the party seeking to invoke [jurisdiction] must be required to demonstrate why the court should not review a tribunal's interpretation of its home statute on the deferential standard of reasonableness.”

[85] The Appellant has not demonstrated why each issue is a true question of jurisdiction, other than to say it is.

[86] As explained below, the issues required the Tribunal to interpret and apply its own Regulation and Code. Therefore the Tribunal’s decision must be reviewed using the “deferential standard of reasonableness”. If we are wrong and a true question of jurisdiction was raised, then we are of the view that the Tribunal’s decision on all issues was correct.

Analysis of the Issues

Issue # 1 - Does the absence of a French version of Professional Misconduct, O. Reg. 749/93 (the College's professional misconduct regulation; the "Regulation") deprive the College of jurisdiction to hold a discipline hearing?

[87] The Notices of Hearing charge a breach of the Regulation. The Appellant argues that the absence of a French version of the Regulation violates s. 86 of the RHPA [sic] and thereby invalidates the Regulation in its entirety. (The Appellant refers to s. 86 of the RHPA. Since there is no s. 86 in this Act, this is presumed to refer to s. 86 of the Code). She states that the lack of a French version of the Regulation deprived her of the opportunity to compare and contrast a French version with the English version and to choose the potentially more favourable version.

[88] The Tribunal rejected the Appellant’s argument. It explained that s.86 of the Code does not give members of the College the absolute right to conduct all dealings with the College in French. The right is limited by ss. 86(2) and (4) of the Code to what is reasonable. Further, the Tribunal noted that there is no mandatory requirement under the Legislation Act, 2006, S.O. 2006, c. 21 Sched. F to publish all regulations in French.

[89] The Tribunal explained that the intent of s. 86 is 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 consistency between them”. All of the communication (oral and written) between the College and the Appellant, including the hearing, had been in English, with no complaint.

[90] This is not a true question of jurisdiction. The tribunal was interpreting its own Code and the Legislation Act, which is clear. Accordingly the standard of review is reasonableness.

[91] The Tribunal’s decision was reasonable. The Appellant’s argument is premised on a non-existent legal right. There is no requirement that the Regulation be promulgated in French.

[92] The Legislation Act governs the language requirements of Ontario statutes and regulations and specifically provides for different language requirements for statutes and regulations. It is clear that while an act must be published in both languages, this mandatory requirement does not apply to a regulation.

[93] Section 98 of the Legislation Act requires that acts such as the RHPA “shall” be published in both languages. Section 99 of the Legislation Act deals with regulations and contains permissive language concerning the promulgation of a French version of English regulations. As a result, while regulations may be in French, it is not necessary. The relevant parts of sections 98 and 99 of the Legislation Act provide as follows:

98.(4) The Chief Legislative Counsel may at any time cause an Act that is unconsolidated and unrepealed to be consolidated and published on the e-Laws website as consolidated law. 2009, c. 33, Sched. 2, s. 43 (34).

(5) If the Chief Legislative Counsel causes an Act to be consolidated under subsection (4), he or she shall, in the case of a public Act, or may, in the case of a private Act,

(a) prepare a French version of the Act; and

(b) cause the French version to be consolidated and published on the e-Laws website as consolidated law together with the English version.

99. (3) The Chief Legislative Counsel may at any time cause a regulation that is unconsolidated and unrevoked to be consolidated and published on the e-Laws website as consolidated law. 2009, c. 33, Sched. 2, s. 43 (35).

(4) If the Chief Legislative Counsel causes a regulation to be consolidated under subsection (3), he or she may,

(a) prepare a French version of the regulation; and

(b) cause the French version to be consolidated and published on the e-Laws website as consolidated law together with the English version.

[Emphasis added.]

[94] The Tribunal considered Section 86 of the Code that states:

86. (1) A person has the right to use French in all dealings with the College.

(1.1) The College shall identify and record the language preference of each College member and identify the language preference of each member of the public who has dealings with the College.

(2) The Council shall take all reasonable measures and make all reasonable plans to ensure that persons may use French in all dealings with the College.

(3) In this section,

“dealings” means any service or procedure available to the public or to members and includes giving or receiving communications, information or notices, making applications, taking examinations or tests and participating in programs or in hearings or reviews.

(4) A person’s right under subsection (1) is subject to the limits that are reasonable in the circumstances.

[Emphasis added.]

[95] As noted, the Tribunal explained that s. 86(1) of the Code is limited by ss. 86(2) and (4) to what is "reasonable" in the circumstances. The Tribunal explained why the Appellant’s position was not reasonable. Further, the definition of “dealings” in ss. 86(3) of the Code provides a number of instances describing the word "dealings" and does not include the need to provide regulations in French.

[96] In summary, there is no basis for the Appellant’s argument.

Issue # 2 - Is the Regulation ultra vires as either going beyond the grant of power found in the enabling legislation or merely mirroring the Code?

[97] The Appellant argues that the Regulation sets out provisions which either go beyond the grant of power found in the enabling legislation or merely mirror the Code and are therefore, ultra vires. Accordingly, she states that the College had no jurisdiction to hold a discipline hearing.

[98] This is not a true question of jurisdiction. The issue required the Tribunal to interpret the Regulation and Code, which it clearly had jurisdiction to do. The standard of review is therefore reasonableness.

[99] The mirroring argument focuses on two grounds of professional misconduct that the Appellant was found to have breached, specifically paragraphs 16 and 34 of section 1 of the Regulation as follows:

16. Inappropriately using a term, title or designation in respect of the member's practice.

17. Improperly advertising or permitting advertising with respect to the member's practice.

[100] The Appellant argues that paragraphs 16 and 34 of the Regulation were passed under the authority of ss. 95(1)(l) and (p) of the Code, respectively. These provisions provide that the College can make regulations:

(l) respecting the promotion or advertising of the practice of the profession;

(p) regulating or prohibiting the use of terms, titles and designations by members in respect of their practices

[101] The Appellant submits that paragraphs 16 and 34 of the Regulation "mirror" the regulation making authority under ss. 95(1)(l) and (p) of the Code, with the result that paragraphs 16 and 34 are ultra vires.

[102] The Tribunal rejected this argument noting that the Appellant offered no compelling case law to support her position. The Tribunal’s decision was reasonable as explained below.

[103] In Brant Dairy Co. v. Ontario (Milk Commission), 1972 11 (SCC), [1973] S.C.R. 131 (S.C.C.) at para. 12 the court explained impermissible mirroring as follows:

A statutory body which is empowered to do something by regulation does not act within its authority by simply repeating the power in a regulation in the words in which it was conferred. That evades exercise of the power and, indeed, turns a legislative power into an administrative one. It amounts to a redelegation by the Board to itself in a form different from that originally authorized;

[104] The Appellant’s position misconstrues the legal basis for paragraphs 16 and 34 of the Regulation. Paragraphs 16 and 34, along with the other provisions of the Regulation, were not enacted under the regulation-making authority of ss. 95(1)(l) and (p) of the Code. In fact there are no regulations made under those provisions. Instead, paragraphs 34 and 16, along with the other provisions of Regulation, were enacted under the authority to make regulations defining professional misconduct under s. 95(1)(j) of the Code that provides as follows:

95. (1) Subject to the approval of the Lieutenant Governor in Council and with prior review of the Minister, the Council may make regulations, […]

(j) defining professional misconduct for the purposes of clause 51 (1) (c).

[105] The second part of the Appellant’s argument focuses on the regulation making power in s. 95(1) of the Code. The Appellant argues that s. 95(1) of the Code does not provide the power to create s. 1 paragraphs 31 and 37 of the Regulation. As a result, she states that these paragraphs are ultra vires.

[106] The Appellant was found to have breached s. 1 paragraph 37. This paragraph is known as the basket clause and states:

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.

[107] The Appellant argues that paragraph 37 leaves the member in a position where she cannot know what might constitute an offence. Therefore, she states that the allegations against her that relied on this paragraph, should have been dismissed.

[108] A “basket clause” definition of professional misconduct is commonplace and entirely valid. It is also necessary, given the impossible task of defining all acts that can possibly give rise to a finding of professional misconduct. The Tribunal relied on Assn. of Professional Engineers of Ontario v. Karmash, [1998] O.J. No. 2161 (Div. Ct.). At para. 6, of this decision, the court accepted the use of a basket clause:

We do not adopt the submissions made on behalf of the Appellant to the effect that the section that formed the foundation for the charge against him [disgraceful, dishonourable or unprofessional conduct] was too vague or imprecise, or that there was any unfairness in the way in which the Committee approached their judgmental or interpretive task. The kind of language that was the foundation for the Committee's inquiry has been the subject of searching analysis in this province in Law Society and other professional regulatory body decisions, certainly with some frequency by this Court. 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.

[109] Section 1, paragraph 31 of the Regulation states that it is professional misconduct to contravene the Audiology and Speech-Language Pathology Act, the RHPA or a regulation under either of them. Similar to her argument concerning paragraph 37, the Appellant argues that paragraph 31 is overly broad.

[110] The Appellant argues that the regulation making power in s. 95(1) of the Code does not support the power to make the Regulation and is therefore ultra vires. Specifically she states that the power is not found in s. 95(1)(j) of the Code that grants power to make regulations “defining professional misconduct for the purpose of clause 51(1)(c) of the Code” because it does not contain any definition of professional misconduct and its breadth is far beyond any acts envisioned by s.95(1)(j). Accordingly, the Appellant states that the portions of the Statement of Allegations relying on s. 1 paragraph 31 ought to have been dismissed.

[111] We reject the Appellant’s argument. Paragraph 31 clearly relates to the scope and purpose of the RHPA and the Audiology and Speech-Language Pathology Act. These Acts regulate the profession of audiologists and speech-language pathologists and protect the public by ensuring that audiologists and speech-language pathologists properly identify themselves. Contravening the Act that establishes the entire regime is consistent with the purpose of the College and is properly considered to be an act of professional misconduct.

[112] It is acceptable for a regulator to prosecute a member for professional misconduct on the basis of a member’s breach of a statute that is relevant to the practice of the profession (see Dufault v. British Columbia College of Teachers, 2002 BCSC 618 (B.C.S.C.).

[113] Finally, the argument that paragraph 31 is ultra vires is inconsistent with the broad and purposive approach that must be adopted when determining if a regulation is consistent with the objective of the enabling statute and the scope of the statutory mandate. As stated in Yuan v. Transitional Council of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, 2014 ONSC 351, [2014] O.J. No. 420 at para. 3 (“Yuan”), regulations benefit from a presumption of validity that places the burden on the challenger to demonstrate invalidity. This presumption “favours an interpretive approach that reconciles the regulation with its enabling statute so that, where possible, the regulation is construed in a manner which renders it intra vires”.

[114] Further the court stated in Yuan at para 3 that for regulations “[t]o be found ultra vires on the basis of inconsistency with statutory purpose, regulations must be "irrelevant""extraneous" or "completely unrelated" to the statutory purpose.”

[115] Clearly, the Regulation is not irrelevant, extraneous or completely unrelated to the statutory purpose of the RHPA or the Audiology and Speech-Language Pathology Act.

[116] In summary, the Tribunal’s decision was reasonable. It found that the sections of the Regulation were “neither overly broad, nor vague” and “the impugned sections did not amount it impermissible mirroring”. There is no basis for the Appellant’s argument.

Issue # 3 - Did the Tribunal have jurisdiction to adjudicate a breach of ss. 33(1) and 40(2) of the RHPA?

[117] The essence of the Appellant’s argument is that ss. 33(1) and 40(2) of the RHPA create offences. The Tribunal is not a court and has no jurisdiction to deal with offences.

[118] The Tribunal identified this issue in its reasons at page 4, but did not deal with it in the body of the Decision and Reasons. The parties agree that the issue was argued. They have provided written submissions on the issue and have not raised the lack of reasons with this Court as a problem. It is not possible in this situation to assess the reasons for reasonableness. However, this court can and does take jurisdiction to decide the issue. For the reasons that follow, we conclude that the Appellant’s argument has no merit.

[119] The Appellant states that the Notices of Hearing and the finding of the Tribunal “results in the incontrovertible fact that a finding of professional misconduct in this case resulted in a finding of guilt in relation to ss. 33(1) and 40(2).” She states that this is an indirect method of prosecuting a breach of the RHPA without support in this Act or its regulations.

[120] As noted, the Discipline Committee found that the Appellant engaged in an act of professional misconduct pursuant to paragraph 31 of section 1 of the Regulation. This paragraph deals with a breach of the RHPA, the Audiology and Speech-Language Pathology Act or any regulations made under either act. The particular section that the Appellant was found to have breached, is section 33 of the RHPA, which reads:

33.(1) Except as allowed in the regulations under this Act, no person shall use the title "doctor", a variation or abbreviation or an equivalent in another language in the course of providing or offering to provide, in Ontario, health care to individuals.

[121] On this appeal, the Appellant also raises s. 40(2) of the RHPA that states:

(2) Every individual who contravenes section 31, 32 or 33 or subsection 34 (2), 34.1 (2) or 36 (1) is guilty of an offence and on conviction is liable to a fine of not more than $25,000 for a first offence and not more than $50,000 for a second or subsequent offence.

[122] There is no basis for raising this section. The College did not prosecute the Appellant under subsection 40(2) of the RHPA. It was not referred to in the Notices of Hearing and the Tribunal did not convict the Appellant under this section.

[123] Turning to s.33 (1) of the RHPA, there is no basis for the Appellant’s argument. We start with s. 51(1)(a) and (c) of the Code and the obvious distinction between these subsections that state as follows:

51. (1) A panel shall find that a member has committed an act of professional misconduct if,

(a) the member has been found guilty of an offence that is relevant to the member’s suitability to practise;

(c) the member has committed an act of professional misconduct as defined in the regulations. [Emphasis add.]

[124] Paragraph 31 of the Regulation states that professional misconduct includes:

31. Contravening the Act, the Regulated Health Professions Act, 1991 or a regulation under either of them.

[125] Paragraph 31 of the Regulation was enacted under the College's authority to create regulations defining professional misconduct under ss. 51(1)(c) of the Code, not ss. 51 (1)(a) .

[126] The Tribunal found that by referring to herself as “Dr.”, the Appellant committed an act of professional misconduct, as defined in the Regulation, by breaching s. 33 of the RHPA. This is clearly distinct from a finding under s. 51(1)(a) of the Code, which says that it is professional misconduct to have been found guilty of an offence relevant to their suitability to practice their profession. Accordingly there is no basis for raising this issue.

Issue # 4 - Did the College have jurisdiction to hold a discipline hearing in the absence of a referral by the College's Inquiries, Complaints and Reports Committee (the "ICRC") of a "specified allegation"?

[127] The Appellant argues that the ICRC failed to properly refer "specified allegations" of professional misconduct against her to the Discipline Committee for a hearing. Further, the Appellant alleges that ICRC counsel, rather than the ICRC members, drafted the allegations. As a result, she states that the Notices of Hearing are nullities.

[128] This is not a true question of jurisdiction. The issue deals with the procedure that the ICRC follows, the Code and a question of evidence. The standard of review is therefore reasonableness.

[129] Subsection 26(1) of the Code states in part:

26. (1) A panel, after investigating a complaint or considering a report, considering the submissions of the member and making reasonable efforts to consider all records and documents it considers relevant to the complaint or the report, may do any one or more of the following:

27. Refer a specified allegation of the member’s professional misconduct or incompetence to the Discipline Committee if the allegation is related to the complaint or the report.

[Emphasis added.]

[130] The College agrees that it is not proper for the ICRC to broadly indicate that they are referring "the complaint" or "the report" or even "the member" to the Discipline Committee. Rather, the ICRC must specify the aspect of the matter being referred. The parties disagree on whether the ICRC referred specified allegations of professional misconduct.

[131] The evidence reviewed below, confirms that the ICRC did refer specified allegations of professional misconduct and the College followed the two step process that is described by Richard Steinecke in A Complete Guide to the RHPA as follows: "[A] prudent method for specifying allegations is to refer the matter in principle, send the file to the prosecutor to draft the allegations in accordance with the intentions of the ICRC, and then, at the next meeting, formally refer the allegations as drafted”.

[132] Melisse Willems, the Director, Professional Conduct for the College confirmed that this two-step process was followed in this case. As she explained, panels of the ICRC first consider the material before it and then decide how to dispose of the matter. If the Panel decides that a referral to the Discipline Committee is warranted, the Panel refers in principle and then instructs College counsel to draft specified allegations of professional misconduct for the Panel's consideration.

[133] Counsel then sends draft specified allegations of professional misconduct to College staff for distribution to the Panel for its consideration. The draft specified allegations are then circulated to the Panel. The members of the Panel discuss the draft by email, conference call, in-person or by a combination of these methods. As a result of this discussion, the Panel decides whether to refer the draft allegations, or a variation of them, to the Discipline Committee for a hearing. Ms. Willems testified that this is what occurred in this case.

[134] The Appellant argues that Ms. Willems’ evidence alone is insufficient and that documents should have been produced to show that specified allegations were referred to the Discipline Committee.

[135] According to Ms. Willems, the minutes of the Panel documented the referral of these matters in principle. The allegations were then drafted by counsel, circulated, deliberated and voted upon by teleconference and email. The College did not produce copies of these communications between the panel members because they are privileged.

[136] The Appellant brought a motion seeking production of the documents. A Panel that did not preside over the actual hearing dismissed the motion, because deliberative privilege justified the non-disclosure of the documents. The Appellant did not appeal this ruling.

[137] The Tribunal accepted the evidence of Ms. Willems as it was entitled to do. Based on this evidence, the Tribunal concluded that the ICRC properly referred specified allegations of professional misconduct against the Appellant to the Discipline Committee for a hearing. This decision was reasonable. The Tribunal rejected the Appellant’s attack on the process that was followed.

[138] The Tribunal’s approach recognizes that the principle of deliberative privilege permits members of adjudicative committees, such as the ICRC and the Discipline Committee, to discuss, deliberate and vote on issues that come before them, without being concerned that their discussions or votes will later be disclosed. The ICRC Panel members expressed opinions and voted by email. This is protected by deliberative privilege (see Agnew and Ontario Association of Architects (1988), 1987 4030 (ON SC), 64 O.R. (2d) 8 at paras 27-33; Ellis-Don Ltd. v. Ontario Labour Relations Board (1994), 1994 10531 (ON SC), 16 O.R. (3d) 698 at paras. 10; Wilson v. College of Physicians and Surgeons of Ontario, [1981] O.J. No. 2472 at para. 14).

[139] The Appellant has not produced any authority to support her position that ICRC members rather than ICRC counsel must draft the allegations that are referred. We reject this argument. It is the role of independent counsel to offer advice to the members.

[140] In summary, the Tribunal’s decision on this issue was reasonable.

Issue # 5 - Did the Tribunal have jurisdiction to impose the penalty it imposed and to award the costs it awarded?

[141] The Tribunal imposed the following penalty on the Appellant. A reprimand was ordered. The Appellant’s certificate of registration was suspended for three months. The Registrar of the College was directed to impose a “term, condition and limitation on the Appellant’s certificate of registration” that required the Appellant to successfully complete an ethics course and undergo six inspections of her practice. Lastly, the Appellant was ordered to pay the College its costs fixed at $97,959.

[142] The Appellant argues that the Tribunal had no jurisdiction to impose this penalty.

[143] This is not a question of jurisdiction. The issue required the Tribunal to consider and apply the Code. The standard of review is therefore reasonableness. In particular, this court has applied a reasonableness standard of review when dealing with penalty (see Bayfield v. College of Physiotherapists at para.3).

[144] The costs order was not a penalty for non-compliance, as the Appellant suggests. Costs were awarded to deflect the College's costs incurred during its successful prosecution of the Appellant. In awarding costs, the Tribunal was applying s. 53.1 of the Code. If a member is found to have committed an act of professional misconduct, s. 53.1 allows a discipline committee to order the member to pay all or part of the College's expenses. This includes legal costs and expenses, investigation costs and expenses and the costs and expenses incurred in conducting the hearing.

[145] The Tribunal’s costs decision was reasonable. There was ample evidence to support the College’s costs. Ruth Cimerman, the College's Director, Finance and Operations, swore an affidavit outlining the College's costs and expenses, and attached a detailed worksheet and the Bill of Costs for the College's prosecution counsel. The College also produced a Bill of Costs from the College's independent legal counsel as part of its submission.

[146] The College’s costs of the hearing were in the range of $260,000. It asked the Tribunal to order the Appellant to pay the reduced amount of $100,000. The Tribunal ordered the Appellant to pay $97,595. This was significantly less than the typical two-thirds approach that has been used in other cases (see Bayfield v College of Physiotherapists at para. 10).

[147] Costs are highly discretionary. The Tribunal fixed a fair amount and reasonably concluded that the College should not “bear the entire cost of the protracted proceedings”. It is not appropriate to look to other members of the profession to fund the entire costs of a successful prosecution (see Chuang v. Royal College of Dental Surgeons of Ontario, 2006 19433 (ON SCDC), [2006] O.J. No. 2300 (Div. Ct.) at para. 19).

[148] Pursuant to s. 51(2) of the Code, the Tribunal had wide discretion in crafting the appropriate penalty. The penalty was reasonable given the professional misconduct in question. The Tribunal made orders under the following subsections of s. 51(2):

(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:

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.

[149] In summary, we find that the tribunal’s penalty decision was reasonable.

Conclusion

[150] For these reasons the appeal is dismissed. The Attorney General does not seek costs. As agreed by the parties, the Respondent College is entitled to its costs fixed in the amount of $20,000.00. It is so ordered.

H. Sachs J.

G.P. DiTomaso J.

C.J. Horkins J.

Released: 20161129

Pathologists of Ontario

2016 ONSC 7034

DIVISIONAL COURT FILE NO.: 219/15

DATE: 20161129

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

H. SACHS, G.P. DiTOMASO and

C.J. HORKINS JJ.

BETWEEN:

BRENDA BERGE

Appellant

– and –

COLLEGE OF AUDIOLOGISTS AND SPEECH-LANGUAGE PATHOLOGISTS OF ONTARIO AND THE ATTORNEY GENERAL OF ONTARIO

Respondents

REASONS FOR JUDGMENT

BY THE COURT

Released: 20161129