W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
Publication Ban Notification
The Discipline Committee of the College of Physicians and Surgeons of Ontario has made an order in this case banning the publication of the name of the complainant or information by which she may be identified pursuant to s. 45(3) of the Health Professions Procedural Code.
The order restricting publication in this proceeding shall continue.
DATE: 20061102
DOCKET: C44655
COURT OF APPEAL FOR ONTARIO
FELDMAN, MACPHERSON and SHARPE JJ.A.
B E T W E E N :
DR. R.A.R.
Susan Chapman and Jonathan Rosenstein for the appellant
Appellant
- and -
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Jill Copeland for the respondent
Respondent
Heard: September 5, 2006
On appeal from the judgment of the Divisional Court (Justices John G.J. O’Driscoll, Peter G. Jarvis, and W. Lawrence Whalen) dated September 14, 2005.
SHARPE J.A.:
[1] This appeal concerns the zero tolerance/mandatory revocation regime that applies to health care professionals in Ontario who engage in sexual relations with their patients. The appellant is a physician who, commencing in 1992, engaged in a sexual relationship with a woman who had been his patient since 1988 (“the patient”). By September 1993, the appellant and the patient were living together and planning to marry, although the appellant was already married to another woman. Despite their sexual relationship, the appellant continued to treat the patient on a regular basis as her physician.
[2] After extensive consultation and discussion in the medical profession, the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“RHPA”), introduced a new zero tolerance/mandatory revocation regime for sexual abuse of patients by health care professionals, effective January 1, 1994. The appellant continued a sexual relationship with the patient and also continued to treat her medically on a regular basis after January 1, 1994. By early 1997, the appellant and his patient had ceased living together. In March 1998, after an altercation, the appellant and the patient ceased both their sexual and professional relationships and she began to be treated by another physician.
[3] The patient laid a complaint against the appellant in 1998, and in March 2003, the Discipline Committee of The College of Physicians and Surgeons of Ontario (the “Discipline Committee” and the “College”, respectively) concluded that the zero tolerance/mandatory revocation regime applied, found the appellant guilty of sexual abuse, and revoked his certificate of registration. His appeal to the Divisional Court was dismissed. He appeals, with leave, to this court, arguing that by January 1, 1994, his relationship with the patient had become “spousal” in nature and that the zero tolerance/ mandatory revocation regime should, therefore, not apply to his conduct.
LEGISLATION
[4] Prior to January 1, 1994, Medicine, R.R.O. 1990 548, ss. 29(30) & 29(33) (“O. Reg. 548”) enacted pursuant to the Health Disciplines Act, R.S.O. 1990, c. H.4 (“HDA”), governed sexual relations between physicians and their patients:
- For the purposes of Part III of the Act, “professional misconduct” means,
(30) sexual impropriety with a patient.
(33) conduct or an act relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
[5] Pursuant to s. 61(5) of the HDA, a variety of sanctions, including revocation or suspension of a member’s certificate of registration, were available if the Discipline Committee found the member guilty of professional misconduct. It is common ground, however, that revocation was rarely imposed for sexual impropriety of the kind at issue on this appeal.
[6] Effective January 1, 1994, the Health Professions Procedural Code, being Schedule 2 to the RHPA (the “Code”), introduced the new zero tolerance/mandatory revocation regime for all health care professionals:
- (3) In this Code, “sexual abuse” of a patient by a member means,
(a) sexual intercourse or other forms of physical sexual relations between the member and the patient,
(b) touching, of a sexual nature, of the patient by the member, or
(c) behaviour or remarks of a sexual nature by the member towards the patient.
1.1. The purpose of the provisions of this Code with respect to sexual abuse of patients by members is to encourage the reporting of such abuse, to provide funding for therapy and counselling for patients who have been sexually abused by members and, ultimately, to eradicate the sexual abuse of patients by members.
- (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;
(b) the governing body of a health profession in a jurisdiction other than Ontario has found that the member committed an act of professional misconduct that would, in the opinion of the panel, be an act of professional misconduct as defined in the regulations;
(b.1) the member has sexually abused a patient; or
(c) the member has committed an act of professional misconduct as defined in the regulations.
(5) If a panel finds a member has committed an act of professional misconduct by sexually abusing a patient, the panel shall do the following in addition to anything else the panel may do under subsection (2):
Reprimand the member.
Revoke the member’s certificate of registration if the sexual abuse consisted of, or included, any of the following,
i. sexual intercourse,
ii. genital to genital, genital to anal, oral to genital, or oral to anal contact,
iii. masturbation of the member by, or in the presence of, the patient,
iv. masturbation of the patient by the member,
v. encouragement of the patient by the member to masturbate in the presence of the member.
[7] Section 70 of the Code provides for a right of appeal from the decision of the Discipline Committee to the Divisional Court:
- (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 Practise 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.
[8] The general catch-all category for acts of professional misconduct by physicians, including “disgraceful, dishonourable or unprofessional” conduct, is addressed under Professional Misconduct, O. Reg. 856/93, s. 1(1)(33) (“O. Reg. 856”) enacted pursuant to the Medicine Act, 1991, S.O. 1991, c. 30:
1(1)(33) An act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
[9] According to s. 1(1)(33), there is no minimum penalty for acts found to be “disgraceful, dishonourable or unprofessional conduct.”
FACTS
[10] The appellant is a family practitioner. He first encountered the patient in 1988, when she and her children became his patients. He acted as the patient’s primary care physician from 1988 until 1998 and treated her regularly and frequently throughout that entire period. The appellant commenced a sexual relationship with the patient in 1992, which continued until 1998.
[11] In the course of treating the patient, before they began their relationship, the appellant frequently provided her with personal counselling. During a medical appointment in 1990, the patient raised with the appellant the issue of her husband’s erectile dysfunction, and the appellant referred her husband to a specialist for assessment and treatment. In 1991, the patient was having difficulty dealing with the death of her father, caring for her mother who was afflicted with Parkinson’s disease, and resolving difficulties with her marriage. She brought these problems to the appellant and he treated her with psychotherapy and with a sleeping-aid drug requiring a prescription.
[12] In early 1992, while the appellant was living alone, the patient continued experiencing personal problems. She told him that she was seeing a psychologist but that she would be interested in seeing him socially. He invited her to his apartment where they had coffee, some cake, and a kiss on her departure. A sexual relationship quickly developed. The patient regularly stayed overnight at the appellant’s apartment. Their apartments were in the same building and in late 1993 they moved into the same unit. In July 1992, the patient started working at the appellant’s office. They shared financial resources and in October 1992, the patient purchased the assets of the appellant’s practice from his trustee in bankruptcy.
[13] Although the appellant was married, in approximately September 1993 he and the patient decided to marry once he obtained a divorce. Shortly thereafter, they travelled to England to celebrate their engagement with the appellant’s family. They continued to live as a couple and hold themselves out as engaged to be married. They travelled together, attended social and family functions, and the patient adopted the appellant’s orthodox religious practices. In October 1995, the appellant and the patient purchased a home and lived there with the patient’s three daughters.
[14] By the end of 1996, the personal relationship between the appellant and the patient was deteriorating and by February 1997, they were no longer living together. During this period, the appellant continued to treat her as his patient. Although they made numerous attempts to reconcile, the relationship ended in the spring of 1998.
[15] Throughout the course of their relationship, up to March 1998, the appellant continued to act as the patient’s primary care physician. He treated her regularly and frequently, sometimes at the office, sometimes at home. His records indicate that he treated her over ten times in 1993, over twenty times in 1994, and approximately fifteen times in 1995. During this period, the appellant regularly treated the patient for a variety of complaints requiring breast, rectal and vaginal examinations. In the fall of 1996, he diagnosed the patient as suffering from clinical depression requiring psychotherapy and medication which he provided.
PROCEEDINGS BEFORE THE DISCIPLINE COMMITTEE
[16] In the summer of 1998, the patient laid a complaint with the College and in February, 2001, the appellant was charged with the following offences:
(a) “sexual impropriety with a patient” under s. 29(30) of O. Reg. 548;
(b) “disgraceful, dishonourable or unprofessional” conduct under s. 29(33) of O. Reg. 548;
(c) “sexual abuse” under the Code; and
(d) “disgraceful, dishonourable or unprofessional” conduct under O. Reg. 856.
[17] The appellant pleaded not guilty to the charges and did not testify before the Discipline Committee. His counsel conceded that by initiating and maintaining a sexual relationship with his patient in 1992, the appellant was guilty of professional misconduct under the HDA provisions in force at that time and deserved to be sanctioned for that offence. He submitted, however, that the Discipline Committee had the authority to conclude that the offence of “sexual abuse” and the zero tolerance/mandatory revocation regime of the RHPA were not intended to capture “spousal” relationships. He argued that the relationship between the appellant and the patient had become “spousal” in nature before January 1, 1994, and he submitted that the appellant should therefore be found not guilty of “sexual abuse”, an offence that came into force after that date.
[18] The Discipline Committee rejected this submission and found that there was no room for it to interpret the RHPA as not applying to the appellant’s conduct. It concluded that the appellant had committed sexual impropriety with a patient under the HDA, sexual abuse of a patient under the RHPA, and an act or omission relevant to the practice of medicine that, having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
[19] The Discipline Committee found that “the doctor-patient and the sexual relationship continued until 1998” and that “[i]t is abundantly clear that Dr. R.A.R.’s misconduct spans both legislated periods.” The Discipline Committee “unequivocally” rejected the “spousal exemption” argument:
The legislation leaves no opportunity for discipline panels to “interpret” the intent of the legislators. Sex with a patient is sexual abuse, regardless of whether the sexual relationship has a positive or negative outcome. Dr. R.A.R. knew, or ought to have known that sex with his patient prior to 1994 was unacceptable. By January 1, 1994 he knew, or ought to have known that such misconduct was now sexual abuse and that the public and the profession had adopted a zero tolerance to such behaviour. Notwithstanding this knowledge, he made no effort to disengage himself from LC either personally or professionally.
The Committee also accepted the advice given by its independent legal counsel that laws do change from time to time requiring that changes in behaviour are necessary to ensure compliance with the law. This is particularly applicable to this case. Regardless of the inappropriateness of the sexual relationship in the first place, there is simply no justification for Dr. R.A.R. not to have transferred LC’s care to another physician once he was so clearly in breach of the accepted behaviour of his profession. In the Committee’s opinion, his failure to do so is perhaps the most egregious aspect of his misconduct.
[20] The Discipline Committee revoked the appellant’s certificate of registration as required by s. 51(5)2 of the RHPA, and added that even if revocation were not required by law, it regarded revocation as the only appropriate penalty in the circumstances. The Committee also ordered that the appellant be reprimanded, that he reimburse the College for any money paid to provide therapy to the patient up to a maximum of $10,000, and that he pay costs in the amount of $10,000.
APPEAL TO THE DIVISIONAL COURT
[21] In September 2005, the appellant’s appeal to the Divisional Court was dismissed. The Divisional Court held that the appropriate standard of review was reasonableness and found that the Discipline Committee had ample evidence upon which to conclude that there was a doctor-patient relationship from February 1, 1988 to the spring of 1998, and a sexual relationship from the spring of 1992 until the spring of 1998. The Divisional Court concluded that this “concurrency of the relationships are necessary ingredients to meet the definition of ‘sexual abuse’ under the legislation which carries a mandatory penalty of revocation of licence” and rejected the submission that the legislation could be interpreted as including a “spousal exemption”. The Divisional Court concluded: “[T]he Discipline Committee’s decision is supported by evidence and reasons which stand up to probing examination. … [T]he decision under review is reasonable”.
[22] Pending the appeals to the Divisional Court and to this court, the order of revocation of the appellant’s certificate of registration has been stayed on certain conditions.
ISSUE
[23] The central issue in this appeal is whether the Divisional Court erred by refusing to set aside the decision of the Discipline Committee on the ground that, since he had a “spousal” relationship with the patient by the time the zero tolerance/mandatory revocation regime for sexual abuse was enacted, the appellant’s conduct was beyond the regime’s ambit and the regime therefore does not apply to his conduct.
ANALYSIS
(1) Language and purpose of RHPA zero tolerance/mandatory revocation provisions
[24] In Mussani v. College of Physicians and Surgeons of Ontario (2004), 2004 48653 (ON CA), 74 O.R. (3d) 1 (C.A.), this court reviewed in detail the development of the zero tolerance/mandatory revocation policy embodied in the RHPA. The policy was enacted through the RHPA following the high profile Final Report of the Task Force on Sexual Abuse of Patients: see College of Physicians and Surgeons of Ontario, Task Force on Sexual Abuse of Patients, Final Report of the Task Force on Sexual Abuse of Patients (Toronto: College of Physicians and Surgeons of Ontario, 1991). As Blair J.A. noted in Mussani, supra at para. 20: “The Task Force found ample evidence that sexual abuse by physicians was a serious societal problem.” Blair J.A. explained the factors that motivated the adoption of the zero tolerance/mandatory revocation policy at paras. 21-22:
[21] Its recommendations for zero tolerance and mandatory revocation were founded upon a number of important findings and factors. Principal amongst these were the following:
a) the general vulnerability of patients in such relationships;
b) the power imbalance that almost invariably exists in favour of the practitioner, thus facilitating easy invasion of the patient’s sexual boundaries;
c) the privileged position of doctors in society, based on their education, status and access to resources;
d) the breach of trust entailed in such conduct by physicians;
e) the serious, long-term injury to the victim, both physical and emotional, that results from sexual abuse, including the harmful effects on future care caused by the victim’s inability to place her trust in other doctors and caregivers;
f) the fact that sexual abuse tarnishes public trust in the entire profession;
g) the results of an historical review by the Task Force of sanctioning decisions by the College’s Discipline Committee and the Divisional Court, which demonstrated a leniency that reflected “a profound non-appreciation of the harm done to victims”; and,
h) the significant risk of recidivism by abusers, enhanced by the ineffectiveness of rehabilitation measures and previous restrictions on doctors’ practices in providing protection against the re-occurrence of abuse.
[22] The Task Force recommended that the penalty for “sexual violation” of a patient – i.e., any physical sexual conduct – be mandatory revocation of licence for five years. It acknowledged this was severe, but stated the sanction was justified based on the foregoing considerations and the members’ conclusion that doctors should be held to the highest standard of conduct and accountability in this area.
[25] After extensive consultation and discussion in the medical profession, the recommendations of the Task Force were adopted by the legislature and applied to all health care professionals. The legislation, like the Task Force recommendations, is clear and unambiguous: when it comes to sexual relations between a doctor and a patient, there is a black letter, bright line prohibition with a drastic sanction and no exceptions or exemptions. The zero tolerance policy precludes inquiry into any explanation or excuse for the sexual activity. A patient’s consent is irrelevant.
[26] However, as with all legislation, the RHPA’s zero tolerance/mandatory revocation provisions must be interpreted and applied in the context of specific cases as they arise. The appellant submits that the legislation must be given a reasonable interpretation and that it would be unreasonable to apply the zero tolerance/mandatory revocation regime in this case given the nature of his relationship with the patient. He submits that his conduct in continuing to treat the patient after January 1, 1994, would be more appropriately considered as unprofessional conduct contrary to the Canadian Medical Association Code of Ethics, as adopted by the College, “that an ethical physician will provide only minor or emergency services to himself or his immediate family and these without payment”: College Notices. Issue No. 3, January 1982; Issue No. 15, July 1988: College of Physicians and Surgeons Policy #6-01, “Treating Self and Family Members”, March/April, 2002.
[27] I will first consider whether the Divisional Court applied the appropriate standard of review to the decision of the Discipline Committee. I will then consider whether the decision of the Discipline Committee to convict the appellant of sexual abuse and impose the penalty of mandatory revocation is vulnerable when assessed under the appropriate standard of review.
(2) Standard of Review
[28] As I have noted, s. 70 of the Code provides for an appeal to the Divisional Court “on questions of law or fact or both.” The appellant submits that as the issue on this appeal involves a question of law, the standard of correctness applies.
[29] The Divisional Court, following its own decision on the same statute in Devgan v. College of Physicians and Surgeons of Ontario, 2005 2325 (ON SCDC), [2005] O.J. No. 306 (Div. Ct.) at para. 36, concluded that the appropriate standard of review is reasonableness simpliciter. In my view, the Divisional Court correctly assessed the standard of review.
[30] The Supreme Court of Canada examined a similar statutory right of appeal in relation to the discipline of medical professionals in Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226. Writing for the Court, MacLachlin C.J.C. held, at paras. 20-21, that the pragmatic and functional approach must be applied when determining the standard of review for statutory rights of appeal: see U.E.S., Local 298 v. Bibeault, 1988 30 (SCC), [1988] 2 S.C.R. 1048; Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748; Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982.
[31] A review of the pragmatic and functional factors in Dr. Q. led to the Supreme Court finding, at para. 39, that the appropriate standard of review was reasonableness simpliciter. I reach the same conclusion here and note that my finding accords with a consistent line of cases regarding the decisions of the Discipline Committee: see e.g. Devgan, supra; Seidman v. College of Physicians and Surgeons of Ontario, [2003] O.J. No. 5098 (Div. Ct.); Smith v. College of Physicians and Surgeons of Ontario, [2006] O.J. No. 948 (Div. Ct.). I will review and apply the four pragmatic and functional factors described in Dr. Q. to explain why the Divisional Court correctly assessed the Discipline Committee’s decision based on the appropriate standard of reasonableness simpliciter.
[32] The first factor is the statutory mechanism for review and the presence or absence of a privative clause. As described in Dr. Q, at para. 27, “[a] statute may afford a broad right of appeal to a superior court or provide for a certified question to be posed to the reviewing court.” Here, since the legislation broadly permits statutory appeals on questions of both fact and law, “a more searching standard of review”, as noted in Dr. Q., at para. 27, is required, not the highly deferential standard of patent unreasonableness. However, the remaining three factors all point towards applying a deferential standard.
[33] The second factor is the expertise of the tribunal relative to that of the reviewing court on the issue. If the tribunal has greater expertise than the court, then a standard more deferential than correctness is required. In Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at paras. 30-33, the Supreme Court found that despite the fact that judges would be knowledgeable about the standards of ethical practice for lawyers, the expertise of the Discipline Committee of a provincial law society favoured deference by a court. Iacobucci J. explained, at para. 31, that practicing members of the profession “may be more intimately acquainted with” how standards of professional conduct “play out in the everyday practice of law” and that practicing lawyers “are uniquely positioned to identify professional misconduct and to appreciate its severity.” Iacobucci J. also cited the professional tribunal’s “relative expertise generated by repeated application of the objectives of professional regulation set out in the Act to specific cases in which misconduct is alleged.” Interpretation of the statute and its objectives in specific factual contexts “will tend to generate a relatively superior capacity to draw inferences from facts related to professional practice and also to assess the frequency and level of threat to the public and to the legal profession posed by certain forms of behaviour.”
[34] Iacobucci J.’s reasoning is directly applicable here. At issue are the ethical and professional standards of the medical profession; the Discipline Committee plainly has greater familiarity with those standards and their interpretation and application to specific fact situations than does the court, a factor that suggests that the court should apply a deferential standard of review to the Discipline Committee’s decisions.
[35] The third factor is the purpose of the legislation and the provision in particular. In Ryan, supra at paras. 39-40, Iacobucci J. applied the reasoning in Dr. Q., supra, in terms that are directly applicable here:
In the case of Dr. Q, at para. 31, the Chief Justice confirms earlier jurisprudence holding that “[a] statutory purpose that requires a tribunal to select from a range of remedial choices or administrative responses, is concerned with the protection of the public, engages policy issues, or involves the balancing of multiple sets of interests or considerations will demand greater deference from a reviewing court”. Sections 5 and 60(1) of the Act set out above clearly direct the Law Society to undertake a balancing exercise and require the Discipline Committee to choose among a range of remedial choices.
Taken as a whole, the legislative purpose of the Act suggests a higher degree of deference to decisions of the Discipline Committee. This deference gives effect to the legislature's intention to protect the public interest by allowing the legal profession to be self-regulating. The Law Society is clearly intended to be the primary body that articulates and enforces professional standards among its members.
[36] Like the legal profession, the medical profession is also self-governing and the College’s Discipline Committee is called upon to decide whether or not its zero tolerance/mandatory revocation regime should apply in particular circumstances. As in Ryan, supra, the legislature intended the Discipline Committee to be the primary body to articulate and enforce the ethical standards of the medical profession. This factor also suggests the court owes deference to the Disciplinary Committee’s decision.
[37] The fourth factor involves the nature of the question to be decided – law, fact, or mixed law and fact. In my view, the present case poses questions of both law and fact. There is a legal issue, namely, the proper interpretation of the RHPA zero tolerance/mandatory revocation provisions. However, as that interpretive question necessarily involves a significant measure of professional ethical judgment, it is an issue on which curial deference is appropriate. The interpretive legal issue is also bound up with the significant factual issue of the nature of the appellant’s relationship with his patient and how that relationship impacts upon the propriety of him treating her as his patient. On that issue also, curial deference to the professional expertise of the Discipline Committee is appropriate.
[38] Taking all these factors into account, I conclude that the Divisional Court correctly assessed the appropriate standard of review as reasonableness simpliciter.
(3) Did the Divisional Court err in finding that it was reasonable for the Discipline Committee to conclude that the zero tolerance/mandatory revocation provisions applied to the appellant?
[39] The appellant submits that he and the patient were “spouses” by January 1, 1994, when the zero tolerance/mandatory revocation regime came into force. He further submits that since he had established a “spousal relationship” with the patient it is unreasonable to interpret the legislation as applying to his situation.
[40] A central difficulty with this argument is that the term “spouse” has no clear definition in law that can be applied universally to all situations. “Spouse” or “spousal relationship” means one thing in one context and something quite different in another. There is no clear definition of “spouse” at common law, nor is there one single definition under the statutes of this province as indicated by the appendix to these reasons charting a variety of definitions of “spouse” used in the statutes and regulations of Ontario.
[41] As of January 1, 1994, the appellant lived with the patient and they planned to marry. However, the appellant was still married to another woman, and he and the patient had only been living together for a matter of a few months as of January 1, 1994. Given its short duration, the relationship between the appellant and the patient clearly did not meet the definition set out in the Family Law Act, R.S.O. 1990, c. F.3, s. 29 which is the definition most commonly used in other Ontario statutes with respect to the rights and benefits pertaining to spousal relationships:
“spouse” means a spouse as defined in subsection 1 (1) [married or having in good faith entered into a void or voidable marriage], and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.
It may be arguable that the appellant meets the more expansive definition set out in the Human Rights Code, R.S.O. 1990, c. H.19, s. 10(1), since this definition contains no specific temporal requirement for the duration of the relationship: “‘spouse” means the person to whom a person is married or with whom the person is living in a conjugal relationship outside marriage.” However, given the relatively short duration of the live-in relationship, it is a not certain that they had formed a “conjugal relationship” as required by the definition of “spouse” in the Human Rights Code.
[42] The Discipline Committee was plainly wary of an argument that had the potential to open a significant hole in the zero tolerance/ mandatory revocation provisions. If a committed live-in relationship of a few months would exempt a physician, would one that had lasted only a few weeks or a few days? As the respondent points out, accepting the submission that there is a “spousal exemption” would risk changing Discipline Committee sexual abuse hearings into inquiries about whether a “spousal relationship” existed and when the relationship became “spousal”, and divert attention from the central question posed by the legislation, namely, was there a concurrent sexual and physician-patient relationship. When combined with the nature and duration of his relationship with the patient, the lack of definition inherent in the term “spouse” makes the exemption claimed by the appellant an uneasy fit with the clear cut, bright line approach of the RHPA’s zero tolerance/mandatory revocation regime.
[43] The Discipline Committee may well have overly simplified its task when it stated, “[t]he legislation leaves no opportunity for discipline panels to ‘interpret’ the intent of the legislators.” The RHPA, like all legislation, must be interpreted before it can be applied. However, given its clear language and the nature of its underlying purpose, the RHPA leaves little room for interpretation when it comes to sexual relations between a physician and a patient. In my view, it was not unreasonable on the facts of this case for the Discipline Committee to decide that the legislation simply could not be interpreted in a manner that would exempt the appellant from its reach.
[44] To the extent the legislation may leave some scope for finding that the zero tolerance/mandatory revocation regime does not apply to certain relationships, that is a matter that necessarily involves professional ethical standards – a matter that lies squarely within the expertise of the Discipline Committee. Given the relatively short duration of the appellant’s live-in relationship with the patient, the extensive medical treatment he gave her following January 1, 1994, the absence of a clear legal definition of “spouse”, and the very clear and unambiguous language of the RHPA’s zero tolerance/mandatory revocation provisions, it is my opinion that the Discipline Committee’s decision stands up to the somewhat probing examination mandated by the reasonableness simpliciter standard of review.
[45] Both parties rely on this court’s decision in Mussani, supra. The appellant submits that Mussani establishes that there is a “spousal exemption” while the respondent argues that the case rejects that very proposition. In Mussani, the RHPA zero tolerance/mandatory revocation provisions were unsuccessfully challenged as violating the Canadian Charter of Rights and Freedoms. The physician who challenged the legislation argued that it would be absurd to apply the zero tolerance/mandatory revocation policy to the hypothetical case of a physician who treated his spouse. Because the legislation as worded contains no exemption for spouses, the physician argued that the law should be struck down on the ground that it was overly broad. Both the Divisional Court and this court rejected that submission.
[46] The appellant relies on the judgment of the Divisional Court where Then J. stated, at paras. 152-54:
The first proposed hypothetical is the situation where a physician treats his or her spouse. “Patient” is not defined in the RHPA. This means that Discipline Committees and the courts must interpret the meaning of “patient” in the context of determining whether sexual activity occurred in the professional-patient relationship. It seems highly unlikely that tribunals or courts would interpret this term as including a physician’s spouse. Neither the appellant nor the OMA provided a single disciplinary case in which the term “patient” was interpreted to include a physician’s spouse.
Interpreting “patient” for the purposes of s. 51(5)2 of the Code as including a spouse would be an unreasonable interpretation of the legislation. The sanction in s. 51(5)2 is ordered if “a panel finds a member has committed an act of professional misconduct by sexually abusing a patient.” It is far-fetched to characterize the intimate relationship between spouses as “sexual abuse” simply because a physician may have treated his or her spouse.
…The “zero tolerance” regime was adopted because of the power imbalance and relationship of trust between physician and patient. It was recognized that in these circumstances patient consent to such relationships was suspect and could seriously harm vulnerable patients. Prohibitions exist because of concern about the consequences for the mental and physical health of a patient who enters into an intimate relationship when vulnerable. These concerns are not present in the case of spouses. [Emphasis added.]
[47] In this court’s judgment in Mussani, at para. 102, Blair J.A. agreed with the result suggested by Then J. but analyzed the problem in different terms, suggesting that the application of the zero tolerance/mandatory revocation provisions to physicians who treat their spouses does not rest on any exclusion or exemption but on whether there was a physician-patient relationship:
While the spousal hypotheticals appear troubling at first blush, I agree with the conclusion of Then J.: “It is far fetched to characterize the intimate relationship between spouses as ‘sexual abuse’ merely because a physician may have treated his or her spouse.” … The fact that during the course of a marriage a physician may provide incidental medical care to his or her spouse is unlikely, in my view, to establish a physician/patient relationship which would attract the discipline procedures of the Code. [Emphasis added.]
[48] The passage quoted from the decision of the Divisional Court in Mussani tends to support the appellant’s contention that there is a “spousal exemption”. However, I find it impossible to read the reasons of this court in Mussani, and in particular the italicized sentence in the passage I have quoted, at para. 46, as holding there to be a “spousal exemption”. This court recognized that it is “unlikely” that a physician could be guilty of sexual abuse of a spouse. The word “unlikely” is simply inconsistent with an exemption of the kind claimed by the appellant. In my view, the decision of this court in Mussani indicates that the question is not to be approached on the basis of any categorical exclusion of spouses, but on the basis of whether or not a physician-patient relationship has been established, recognizing that it is unlikely that a physician-patient relationship will be established between a physician and his or her spouse. The Discipline Committee in the present case followed that approach. There was ample evidence of a physician-patient relationship: indeed, the appellant conceded that fact before the Discipline Committee. As the physician-patient relationship coincided with a sexual relationship, the Discipline Committee found the appellant guilty of “sexual abuse” as that offence is described in the RHPA.
[49] In Mussani, at para. 72, this court recognized that there are “admitted problems with zero tolerance/mandatory penalty regimes” as they are “rigid” and “can lead to results in individual cases that are harsh, extreme, and even arguably unjust” when applied to “situations where there may be genuine consent to a relationship between mature adults, and no power imbalance or exploitation on the part of the health professional.” Despite the fact that the regime may catch what Blair J.A. described, at para. 82, as “the relatively rare case of a genuinely consensual relationship” and “eliminate the defence of genuine consent for the purposes of the penalty imposed”, this court upheld the regime in recognition of the fact that it was, as noted in para. 73, “enacted in response to a recognized and growing problem of sexual abuse in the medical profession … to rectify a situation where discretionary sanctioning on the part of professional disciplinary committees and the courts had been found to be wanting.”
[50] The application of the regime to the appellant may well be harsh since his relationship with the patient appears to have been consensual but, as both the Discipline Committee and the Divisional Court noted, the appellant could have avoided the problem by terminating his treatment relationship with the patient. This too is entirely in accord with what this court stated in Mussani at para. 79:
The fact that an intimate sexual relationship which began during treatment may blossom into a truly loving one but still lead to revocation of a health professional’s certificate of registration, does not necessarily make the Mandatory Revocation Provisions unconstitutionally broad, in the sense that they overshoot the legislative objectives. The health professional need only terminate the treatment relationship to avoid the problem. [Emphasis added.]
[51] On the facts of this case, I am not convinced that the decision of the Discipline Committee to apply the zero tolerance/mandatory revocation provisions to the appellant was unreasonable.
(4) Did the Divisional Court err is refusing to reverse the decision of the Discipline Committee on the ground that it retroactively applied the sexual abuse provisions of the [RHPA](https://www.canlii.org/en/on/laws/stat/so-1991-c-18/latest/so-1991-c-18.html) to pre-1994 conduct?
[52] The appellant also relies upon the well-established principle that unless required by its express language or necessary implication, a statute cannot have retroactive or retrospective application. The appellant submits that the Discipline Committee retroactively applied the RHPA zero tolerance/mandatory revocation regime to his relationship with the patient.
[53] I see no merit in this submission. The Discipline Committee expressly recognized that at the moment the legal regime changed on January 1, 1994, the appellant was required to change his behaviour to bring himself into compliance with the new regime. It judged him on the basis of his conduct following January 1, 1994, not on the basis of his pre-1994 conduct, and found that since he had abandoned neither his sexual nor his physician-patient relationship, he was guilty of the new offence created by the RHPA.
CONCLUSION
[54] For these reasons, I would dismiss the appeal with costs to the respondent fixed at $15,000 inclusive of disbursements and G.S.T.
[55] There will be a continuation of the publication ban imposed by the Discipline Committee prohibiting the publication or broadcast of the name of the patient, or information by which she might be identified.
“Robert J. Sharpe J.A.”
“I agree K. Feldman J.A.”
“I agree J.C. MacPherson J.A.”
RELEASED: November 2, 2006
Appendix
As of September 22, 2006, the word “spouse” is included in 176 Ontario statutes and regulations, but rises to prominence in significantly less than that. This chart details how twenty-six Ontario statutes and regulations define the word “spouse”. There are four general categories of definition. The first category mimics the definition found in the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”). The second category uses the definition found in the Human Rights Code, R.S.O. 1990, c. H.19 (“HRC”). The third possibility is for the definition to be different than either the FLA or HRC. The fourth possibility is for the definition to be a modified version of the language found in the FLA.
Statute / Regulation
Follows definition in the FLA
Follows definition in the HRC
Follows other definition
Follows modified definition in the FLA
Family Law Act, R.S.O. 1990, c. F.3
Yes[1]
Pension Benefits Act, R.R.O. 1990, O. Reg. 909
Yes[2]
MPPs Pension Act, 1996, S.O. 1996, c. 6, Sched. A
Yes[3]
Ministry of Training, Colleges and Universities Act, R.R.O. 1990, O. Reg. 774
Yes[4]
Family Benefits Act, R.R.O. 1990, O. Reg. 366
Yes[5]
Courts of Justice Act, O. Reg. 67/92
Yes[6]
Workplace Safety and Insurance Act, 1997, O. Reg. 455/97
Yes[7]
Pension Benefits Act, R.S.O. 1990, c. P.8
Yes[8]
Change of Name Act, R.S.O. 1990, c. C.7
Yes[9]
Retail Sales Tax Act, R.S.O. 1990, c. R.31
Yes[10]
Public Service Act, R.R.O. 1990, O. Reg. 977
Yes[11]
Yes
Employment Standards Act, 2000, S.O. 2000, c. 41
Yes[12]
Yes
Human Rights Code, R.S.O. 1990, c. H.19
Yes[13]
Execution Act, R.S.O. 1990, c. E.24
Yes[14]
Loan and Trust Corporations Act, R.S.O. 1990, c. L.25
Yes[15]
Ontario Disability Support Program Act, 1997, O. Reg. 222/98
Yes[16]
Yes
Ontario Works Act, 1997, O. Reg. 134/98
Yes[17]
Succession Law Reform Act, R.S.O. 1990, c. S.26
Yes[18]
Social Housing Reform Act, 2000, O. Reg. 298/01
Yes[19]
Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A
Yes[20]
Substitute Decisions Act, 1992, S.O. 1992, c. 30
Yes[21]
[City of ]Toronto Act, 2006, S.O. 2006, c. 11, Sched. A
Yes[22]
Homes for the Aged and Rest Homes Act, R.R.O. 1990, O. Reg. 637
Yes[23]
Charitable Institutions Act, R.R.O. 1990, O. Reg. 69
Yes[24]
Nursing Homes Act, R.R.O. 1990, O. Reg. 832
Yes[25]
Coroners Act, R.S.O. 1990, c. C.37
Yes[26]
[1] s. 1. “spouse” means either of two persons who,
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.
s. 29. “spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.
[2] Briese v. Spencer, [2001] O.J. No. 4637 at para. 6 (S.C.J.) (adopts FLA definition).
[3] “spouse” means either of two persons who,
(a) are married to each other,
(b) have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under the plan,
(c) have lived together in a conjugal relationship outside marriage continuously for a period of not less than three years, or
(d) have lived together in a conjugal relationship outside marriage in a relationship of some permanence, if they are the natural or adoptive parents of a child.
[4] Ibid.
[5] “spouse” means,
(a) a person who together with the applicant or recipient have declared to the Director or a welfare administrator appointed under section 4 of the General Welfare Assistance Act that they are spouses,
(b) a person who is required under the provisions of a court order or domestic contract to support the applicant, recipient or any of his or her dependent children, or
(c) a person who has an obligation to support the applicant or recipient or any of his or her dependent children under section 30 or 31 of the Family Law Act despite a domestic contract or other agreement between the person and the applicant or recipient whereby they purport to waive or release such obligation to support.
[6] “spouse” means,
(a) a spouse as defined in section 1 of the Family Law Act, or
(b) either of two persons who have lived together in a conjugal relationship outside marriage,
(i) continuously for a period of not less than three years, or
(ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child or have demonstrated a settled intention to treat a child as a child of their family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody.
[7] “spouse” means either of two persons who,
(a) are married to each other, or
(b) are not married to each other and are living together in a conjugal relationship,
(i) continuously for a period of not less than three years, or
(ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child, both as defined in the Family Law Act.
[8] Ibid.
[9] “spouse” has the same meaning as in section 1 of the Family Law Act.
[10] “spouse” has the meaning given to that expression by section 29 of the Family Law Act.
[11] “spouse” means,
(a) a spouse as defined in section 1 of the Family Law Act, or
(b) either of two persons who live together in a conjugal relationship outside marriage.
[12] Ibid.
[13] “spouse” means the person to whom a person is married or with whom the person is living in a conjugal relationship outside marriage.
[14] Ibid.
[15] Ibid.
[16] “spouse”, in relation to an applicant or recipient, means,
(a) a person, if the person and the applicant or recipient have together declared to the Director or to an administrator under the Ontario Works Act, 1997 that they are spouses,
(b) a person who is required under a court order or domestic contract to support the applicant or recipient or any of his or her dependants,
(c) a person who has an obligation to support the applicant or recipient or any of his or her dependants under section 30 or 31 of the Family Law Act , whether or not there is a domestic contract or other agreement between the person and the applicant or recipient whereby they purport to waive or release such obligation to support, or
(d) a person who has been residing in the same dwelling place as the applicant or recipient for a period of at least three months, if,
(i) the extent of the social and familial aspects of the relationship between the two persons is consistent with cohabitation, and
(ii) the extent of the financial support provided by one person to the other or the degree of financial interdependence between the two persons is consistent with cohabitation.
(2) For the purpose of the definition of “spouse”, sexual factors shall not be investigated or considered in determining whether or not a person is a spouse.
[17] “spouse”, in relation to an applicant or recipient, means,
(a) a person, if the person and the applicant or recipient have together declared to the administrator or to the Director under the Ontario Disability Support Program Act, 1997 that they are spouses,
(b) a person who is required under a court order or domestic contract to support the applicant or recipient or any of his or her dependants,
(c) a person who has an obligation to support the applicant or recipient or any of his or her dependants under section 30 or 31 of the Family Law Act , whether or not there is a domestic contract or other agreement between the person and the applicant or recipient whereby they purport to waive or release such obligation to support, or
(d) a person who has been residing in the same dwelling place as the applicant or recipient for a period of at least three months, if,
(i) the extent of the social and familial aspects of the relationship between the two persons is consistent with cohabitation, and
(ii) the extent of the financial support provided by one person to the other or the degree of financial interdependence between the two persons is consistent with cohabitation.
[18] “spouse” means either of two persons who,
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Act.
[19] “spouse”, in relation to a member of a household, means,
(a) an individual who, together with the member, has declared to the service manager that the individual and the member are spouses, or
(b) an individual who is residing in the same dwelling place as the member, if the social and familial aspects of the relationship between the individual and the member amount to cohabitation and,
(i) the individual is providing financial support to the member,
(ii) the member is providing financial support to the individual, or
(iii) the individual and the member have a mutual agreement or arrangement regarding their financial affairs.
(2) For the purpose of the definition of “spouse”, sexual factors shall not be investigated or considered in determining whether or not an individual is a spouse.
[20] “spouse” means either of two persons who, at the time of death of the one who was the worker, were cohabiting and,
(a) were married to each other, or
(b) were living together in a conjugal relationship outside marriage and,
(i) had cohabited for at least one year,
(ii) were together the parents of a child, or
(iii) had together entered into a cohabitation agreement under section 53 of the Family Law Act.
[21] Ibid.
[22] Ibid.
[23] “spouse” means a person,
(a) to whom the person is married, or
(b) with whom the person is living, or was living immediately before one of them was admitted to a home, in a conjugal relationship outside marriage, if the two persons,
(i) have cohabited for at least one year,
(ii) are together the parents of a child, or
(iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act.
[24] “spouse” means a person,
(a) to whom the person is married, or
(b) with whom the person is living, or was living immediately before one of them was admitted to an approved charitable home for the aged, in a conjugal relationship outside marriage, if the two persons,
(i) have cohabited for at least one year,
(ii) are together the parents of a child, or
(iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act.
[25] “spouse” means a person,
(a) to whom the person is married, or
(b) with whom the person is living, or was living immediately before one of them was admitted to a nursing home, in a conjugal relationship outside marriage, if the two persons,
(i) have cohabited for at least one year,
(ii) are together the parents of a child, or
(iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act.
[26] “spouse” means a person,
(a) to whom the deceased was married immediately before his or her death,
(b) with whom the deceased was living in a conjugal relationship outside marriage immediately before his or her death, if the deceased and the other person,
(i) had cohabited for at least one year,
(ii) were together the parents of a child, or
(iii) had together entered into a cohabitation agreement under section 53 of the Family Law Act.